COMMENTS ON PROPOSED NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REGULATIONS (U)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00759R000100170001-7
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 119
• Document Creation Date: December 16, 2016
• Document Release Date: June 23, 2005
• Sequence Number: 1
• Publication Date: July 11, 1978
• Content Type: MF

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11 JUL 197$
MEMORANDUM FOR: Chief, Logistics and Procurement Law
Division, OGC
ATTENTION:
VIA: Director of Logistics
Chief, Plans and Programs Staff, OL
FROM:
Deputy ile . , 77.77 Estate and
Construction Division, OL
SUBJECT: Comments on Proposed National Environmental
Policy Act (NEPA) Regulations (U)
REFERENCLS (a) Memo dtd 13 Jun 78 to C/RECD/OL fuu:
C
D/OCG
;
IPL
L(
same subject
(b) Memo to NEP~i Contacts dtd. Jun 78
fm Nicholas Yost, General Couns,oL,
Council on Cnvironmental Quality, GO',
sub j ec.t : Publication of Proposed `E P A
Regulations for Comment (OL 8 260 )
(c) L.I 43-16 dtd. 22 Jan 74, subject: `attioa. l
Env i ronm,ent:a l Policy Act I11,:plement:r ng Pro -
cedur es (pul. f ished In Federal Re .-l-st er ,
Vol. 39, No. 19, Monday, 28 Janua--y 1974)
(U) As you requested in reference (a), this me^iorand:m
provides Office of Logistics' co.n.ments or the proposed .EPA
Regulations dated 31 May 1978 (attached) . Paragraph 2 of thimemorandum describes those areas in the regulations which would
have an -impact on this Agency. Paragraphs 3 and 4 discuss
several of those areas which havo major policy implications :tor
the Agency and make specific recommcnda.t ions to implement these
regulations should they be promulgated.
2. (C) Referring to the attached NI3PA proposed regulations
and the supplementary information provided ',cy MNlr. Warren, Cha_r-
~
men, Council on Environmental Quality ("IQ), we comment is
follows:
J2bi
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SUBJECT: Comments on Proposed National Environmental Policy
Act (NEPA) Regulations (U)
a. In paragraph 2 (A)(i) of the supplementary
information, Mr. Warren comments that agencies are
directed to write concise Environmental Impact State-
ments (EIS's) which shall not normally be less than
150 pages or, for proposals of unusual scope and
complexity, 300 pages. I cannot help but believe
that, rather than "less than," he means "not more
than." I'm afraid that this "Freudian slip" is
indicative of what follows.
b. In paragraph 4 of the supplementary informa-
tion, Mr. Warren makes it clear that these regulations
do not apply outside of the United States and that the
entire issue of such application is still under discus
sion. As of your office is well aware from
meetings in which in participated with members of the
CEQ, it has been Agency policy that we will follow
whatever procdeures apply to the organizations
through which we work. I think we should go further
than this and clearly state that while we must, of
necessity, act in this manner, it is the Agency's
position that such regulations should not apply out-
side of the United States.
c. Section 1501.7, Scoping, requires that a
decision to prepare an environmental impact statement
must be published in the Federal Register.
d. Section 1502.4, Major Federal Actions Requiring
the Preparation of Environmental Impact Statements, and
Section 1508.17, Major Federal Action, both clearly
indicate that not only activities such as construction
require the preparation of assessments and environmental
impact statements but also Agency programs, regulations,
or legislation which could have an impact on the environ-
ment or a significant effect on public health or safety.
This is emphasized in Section 1508.25, Significantly,
which also clarifies the definitions of actions to be
included under the NEPA process. Clearly, the process
applies to major operational programs which have, in the
past, been undertaken by the Directorate of Science and
Technology and by the Office of Technical Services as
well as to the obvious construction of facilities or
their maintenance and operation.
e. Section 1502.19, Circulation of Environmental
Impact Statement, requires that such statements be
distributed in both the Federal and public domains.
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SUBJECT: Comments on Proposed National Environmental Policy
Act (NEPA) Regulations (U)
f. Section 1505.1, Agency Decisionmaking Procedures,
requires that agencies adopt procedures to ensure that
decisions are made in accordance with NEPA. Since these
procedures would have application not only within the
Office of Logistics but Agency-wide when applied to
programs and legislation, these procedures would have
to be promulagted as a Headquarters Regulation rather
than a Logistics Instruction, as presently the case.
g. Section 1505.2, Record of Decision in Those
Cases Requiring Environmental Impact Statements, would
require that each agency publish a public record of its
decision on EIS's.
h. Section 1506.6, Public Involvement, specifies
in some detail the extent to which agencies shall ensure
that the public is involved i.n the NEPA process.
i. Section 1506.0, Filing Requirements, requires
that?EIS's be filed with EPA and CEQ.
j. Section 1507.3, Agency Procedures, requires that
within 8 months of publication of the regulations each
agency.shall develop and publish in the Federal Register
their own implementing procedures. Most important of all,
subparagraph c of this section provides that agencies may
include, in their procedures, criteria for providing
exceptions for actions that need to be kept secret in the
interest of national defense or foreign policy and are
properly classified pursuant to Executive order or statute.
3. (C) Notwithstanding the time and effort which will
be required in implementing these procedures within the Agency,
we can do so for unclassified projects and programs. The big-
gest problem is how we treat classified projects or programs
and how we treat projects or programs which in themselves are
not classified but for which the Agency's relationship with
that project or program is classified. There is also a
question in my mind as to what responsibility the Agency has
for proprietary projects or other covert activities of the
Agency:
a. Regarding classified projects, Section 1507.3,
Agency Procedures, does permit that our procedures
include criteria for the handling of classified projects.
3
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SUBJECT: Comments on Proposed National Environmental Policy
Act (NEPA) Regulations (U)
It will be necessary, of course, for our procedures
in this area to be published in the Federal Register,
but at least it provides us with the mechanism for
handling projects or programs which are in themselves
.classified. This specific section does not make it
clear what, if any, reporting to CEQ would be required,
and I assume that this was intentionally left nebulous.
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SUBJECT: Comments on Proposed National Environmental Policy
Act (NEPA) Regulations (U)
NEPA implementing procedures are issued as a Headquarters
Regulation rather than a Logistics Instruction, then it
is incumbent on all Agency managers, including those
responsible for such programs, to ensure that they are
observed.
4. (U) In summary, there is no question that the pro-
cedures, as proposed, will create a tremendous workload for
not only this office but other offices of the Agency if literally
and conscientiously applied. Nothwithstanding that fact, I
believe we can, as with Freedom of Information and the Privacy
Act, live with it and abide by it if we must. However, I think
in your comments to Mr. Yost it is absolutely essential that you
emphasize the importance of Section 1507.3(c) regarding pro-
cedures for the handling of classified projects. If the NEPA
procedures, as presently written, ar6 adapted, then the next
major hurdles for us will be the development of those classified
procedures, their acceptance (following public review) by CEQ,
and their inclusion in the Headquarters Regulations.
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cc: V L, w/o atts.
/P&PS/OL, w/atts.
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 Ut C':ASSMED
ROUTING AND RECORD SHEET
SUBJECT: (Optional)
Comments on Proposed NEPA Regulations
FROM:
EXTENSION
NO.
8118
DATE 13 June 1978
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
2.
4.
6.
9.
10.
12.
13.
14.
15.
~
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13 June 1978
MEMORANDUM FOR: Real Estate & Construction Division
Office of Logistics
STATINTL ATTENTION:
.Logistics Procurement-Law Division
Office of General Counsel
SUBJECT: Comments on Proposed NEPA Regulations
STATINTL
1. We have reviewed your draft letter commenting on
proposed NEPA regulations. As you are well aware, the impact
of the proposed NEPA regulations are immense and would impact
on not one, but several areas of Agency concern. The Agency
is not alone in this position. Consequently, several Govern-
ment-wide meetings have either occurred, or are planned, to
discuss a unified response to the Counsel on Environmental
Quality (CEQ). (See attached memorandum from the White House.)
It appears to be in the Agency's best interest to present CEQ
a unified Agency position instead of what may develop into
several differing, and possibly contradictory, views presented
by separate Agency elements. Therefore, we request that any
such response-to CEQ be coordinated by this Office with the
total Agency response which will be presented for White House
review in the near future.
2. We will keep you informed of the status of this matter
and seek your views for our final presentation for White House
review. STATJNTL
3. Your papers are returned;hPrPw th--
cc: D/L, w/att
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THE WHITE HOUSE
June 7, 1978
MEMORANDUM FOR:. Distribution List Attached
FROM: MARGARET McKENNA
SUBJECT: Application of NEPA to Federal
Government Activities Overseas
As discussed at our meeting on.May 18, below is an
outline of the schedule we will be following:
1. Our office has requested a formal
legal opinion on the NEPA issue from
the Office of Legal Counsel at Justice.
Attached.
2. Our office will draft an options
paper to present to the President.
3. The State Department and CEQ will
work on regulations for the extra-
territorial application of NEPA to
State by June 15. If they reach an
agreement, their regulations can be
used as a model for other agencies.
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THE WHITE HOUSE
June 7, 1978
MEMORANDUM FOR: JOHN HARMON
FROM: MARGARET McKENNA
SUBJECT: Extra-territorial Application
of NEPA
As you know, there has been a great deal of concern and
discussion on the issue of the extra-territorial application
of NEPA. We are requesting from the Office of Legal Counsel
an opinion discussing the issue of whether NEPA applies to
Federal government activities overseas, and if it does
apply, the extent of its application. Your analysis should
detail what flexibility the President has in making decisions
in the matter and should address both the procedural and
substantive aspects of the issue. It should also contain an
interpretation of the statute, including the legislative
history, and a discussion of any court decisions which
address or discuss the extra-territorial application of
NEPA.
We would also like you to analyze the possible effect on
legal action that might result if the President.were to (1)
direct the agencies to write their own regulations, or (2)
direct the agencies to write their own regulations in con-
sultation with CEQ and subject to the approval of CEQ.
The analysis should fully discuss the arguments on both
sides of the issue and your opinion as to the strengths and
weaknesses of these arguments.
Several agencies have already done extensive research on
this matter. By copy of this memorandum, I am asking that
they cooperate with you by providing to the Department of
Justice any legal research or memoranda concerning this
issue.
Please provide this office with your analysis by June 30.
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Distribution List
June 7, 1978
Application of NEPA to Federal
Government Activities Overseas
Joan Bernstein Robert Mundheim
Environmental Protection Agency Department of the Treasury
Lynn Coleman
Department of Energy
Kathy Fletcher
Domestic Policy Staff
Warren Glick
Export-Import Bank
Herbert Hansell
Department of State
John Harmon
Department of Justice
C. L. Haslam
Department of Commerce
Linda Kamm
Department of Transportation
Leo Krulitz
Department of the Interior
Anthony Lapham.
Central Intelligence Agency
F. Peter Libassi
Department of Health,
Education and Welfare
Jessica Tuchman Matthews
National Security Council
William Nichols
Office of Management & Budget.
Ruth T. Prokop
Department of Housing and
Urban Development
Richard Rivers
STR
Deanne Siemer
Department of Defense
Nicholas Yost.
CEQ
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t) L // ~L-: 7 V 1,-)
FORM NO. REPLACES FORM 95.1
i MAY ae 238 DOCUMENT CONTROL (13-40)
WHICH 19 OBSOLETE MFG 1-77
SEC. CL. ORIGIN I CONT OL NO.
Council on Environmental.
UNCL EX,QFFICF OF PRES /---
DATE OF bOC I DATE RECD DATE OUT 1 SUSPENSE DAATE' CROSS REFER N~E OR
7June 1 12 June 9) I( POINT OF FILING
TO NEPA Contacts
FROM Council on Environmental Quality 1TING SDATE
ENT
SUBJ. Publication of Proposed NEPA AEO/OT,
Regulations for Comment Jt,
ANSWERED NO REPLY
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EXECUTIVE OFFICE OF THE PRESIDENT
COUNCIL ON ENVIRONMENTAL QUALITY
722 JACKSON PLACE, N. W.
WASHINGTON, D. C. 20006
June 7, 1978
MEMORANDUM
TO: NEPA Contacts
SUBJECT: Publication of Proposed NEPA Regulations for Comment
As noted in our May 10, 1978 memorandum to you, the Council has
now placed the proposed NEPA regulations in the Federal Register
for public comment. Consistent with our responsiveness to the
views of over forty agencies, we hope that we have addressed
your concerns. However, we hope you will feel free to contact
us, either through formal comments or informal meetings.
We have simultaneously forwarded copies to Heads of Agencies,
along with our special environmental assessment of the regulations.
Thank you for your past assistance and we look forward to your
further cooperation.
NICHOLAS C. YOST
General Council
C/1 EB
DC_
EX
SA
RO
CIS Er.
PE
C/HEB
RECD
FILE
PE
J7
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COUNCIL ON ENVIRONMENTAL QUALITY
722 JACKSON PLACE, N. W.
WASHINGTON, D. C. 20006
May 31, 1978
COUNCIL ON ENVIRONMENTAL QUALITY
TITLE 40 - PROTECTION OF THE ENVIRONMENT
CHAPTER V - COUNCIL ON ENVIRONMENTAL QUALITY
PARTS 1500-1508 -- IMPLEMENTATION OF THE PROCEDURAL
PROVISIONS OF THE NATIONAL ENVIRONMENTAL
POLICY ACT - REGULATIONS
AGENCY: Council on Environmental Quality,
Executive Office of the President
ACTION: Proposed Regulations
SUMMARY: These proposed regulations implementing
procedural provisions of the National Environmental
Policy Act are submitted for public comment.
Comments must be rece' M-3 h~z -411glist 11- 1978. They
should be a dressed to. Nicholas C. Yost, General
Counsel, Attention: NEPA Comments, Council on
Environmental Quality, 722 Jackson Place, N.W.,
Washington, D.C. 20006
FOR FURTHER INFORMATION CONTACT: Nicholas C. Yost,
General Counsel, Council on Environmental Quality
(address above), 202-633-7032
SUPPLEMENTARY INFORMATION
'1. Purpose
We are publishing for public review draft regulations to implement the
National Environmental Policy Act. Their purpose is to provide all
federal agencies with an efficient, uniform procedure for translating
the law into practical action. We expect the new regulations to accom-
plish three principal aims: to reduce paperwork, to reduce delays, and
at the same time to produce better decisions, thereby better accomplish-
ing the law's objective, which is to protect and enhance the quality of
the human environment.
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 - 2 -
ThesAM vb+dt iB Pa @O AS/ u:i~ - s85t~Q~i ~R P -Touncils,
under Executive Order 11514 (1970), and apply more broadly. The Guide-
lines assist federal agencies in carrying out NEPA's most conspicuous
requirement, the preparation of environmental impact statements (EISs).
These regulations were developed in response to Executive Order 11991
issued by President Carter in 1977, and implement "the procedural pro-
visions of the Act." They address all nine subdivisions of Section
102(2) of the Act, rather than just the EIS provision covered by the
Guidelines, and they carry out the broad purposes and spirit of the Act.
President Carter instructed us that the regulations should be:
"...designed to make the environmental impact statement
more useful to decisionmakers and the public; and to
reduce paperwork and the accumulation of extraneous back-
ground data, in order to emphasize the need to focus on
real environmental issues and alternatives."
The President has also signed Executive Order 12044, dealing with regu-
latory reform. It is our intention that that Order and these NEPA
regulations be read together and implemented consistently.
2. Summary of Changes Made By The Regulations
Following this mandate in developing the new regulations, we have kept
in mind the threefold objective of less paperwork, less delay, and
better decisions.
A. Reducing Paperwork
The measures to reduce paperwork are listed in sec. 1500.4 of the regu-
lations. Neither NEPA nor these regulations impose paperwork requirements
on the public. These regulations reduce such requirements on agencies of
government.
i. Reducing the length of environmental impact statements.
Agencies are directed to write concise EISs, which shall not normally be
less than 150 pages, or, for proposals of unusual scope and complexity,
300 pages.
ii. Emphasize options among alternatives. The regulations
stress that, the environmental analysis is to concentrate on alternatives,
which are the heart of the matter; to treat peripheral matters briefly;
and to avoid accumulating masses of background data which tend to obscure
theimportant issues.
iii. Using an early "scoping" process to determine what the
important issues are. To assist agencies in deciding what the central
issues are, how long the EIS shall be, and how the responsibility for
the EIS will be allocated among the lead agency and cooperating agencies,
a new "scoping" procedure is established. Scoping meetings are to be
held as early in the NEPA process as possible -- inmost cases, shortly
after the decision to prepare an EIS -- and shall be integrated with
other planning.
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advocate writing in plain, direct language.
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v. Following a clear format. The regulations spell out a
standard format intended to eliminate repetitive discussion, stress the
major conclusions, highlight the areas of controversy, and focus on the
issues to be resolved.
vi. Requiring summaries of environmental impact statements to
make the document more usable by more people.
vii. Eliminating duplication. To eliminate duplication, the
regulations provide for federal agencies to prepare EISs jointly with
state and local units of government which have "little NEPA" require-
ments. They also permit a federal agency to adopt another agency's EIS.
viii. Consistent terminology. The regulations provide a
uniform terminology for the implementation of NEPA. For instance, the
CEQ requirement for an environmental assessment will replace the follow-
ing (nonexhaustive) list of comparable existing agency procedures:
"survey" (Corps of Engineers), "environmental analysis" (Forest Service),
"initial assessment" (Transportation), "normal or special clearance"
(HUD), "environmental analysis report" (Interior), and "marginal impact
statement" (HEW).)
ix. Reducing paperwork requirements. The regulations will
reduce reporting paperwork requirements as summarized below. The
existing Guidelines issued under Executive Order 11514 cover section
102(2)(C) of NEPA (environmental impact statements), and the new CEQ
regulations cover sections 11'02(2)(A) through '(I). The regulations
replace not only the requirements of the Guidelines concerning environ-
mental impact statements, but also replace more than 70 different sets
of existing agency regulations, although each agency will issue its own
implementing procedures to explain how these regulations apply to its
particular programs.
Existing Requirements
(Applicable Guidelines
sections are noted.)
Assessment
(optional under Guidelines
case-by-case basis; current
n a
y
required, however by most jor
agencies in practice :or in procedures)
1500.6.
Notice of intent to
prepare impact statement
1500.6.
New Requirements
(Applicable regulations
sections are noted.)
Assessment
(limited requirement: not
required where there would
not be environmental effects
or where an EIS would normally
be required) 1501.3, .4,
Notice of intent to prepare
EIS and commence scoping process
1501.7
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Quarterly list of notices
of intent'
1500.6.
Negative determination
(decision not to
statement)
1500.6.
Quarterly list
determinations
1500.6
Draft EIS
1500.7
Final EIS
1500.6, .10
EISs on legislative reports
("agency reports on legislation
initiated elsewhere")
1500.5(a)(1)
Agency report to CEQ on
implementation experience
1500.14(b)
Agency report to CEQ on
substantive guidance
1500.6(c), .14
Record of decision (no Guideline
provision but required by many agencies'
own procedures and in a wide range of
cases generally under the Administrative
Procedure Act and 0MB Circular A-95,
Part I, sec. 6(c) and (d), Part II,
see. 5(b)(4)).
B. Reducing Delay
The measures to reduce delay are listed in
lations.
Requirement abolished
Finding--of no significant impact
1501.4.
Requirement abolished
Draft EIS
1502.9
Final EIS
1502.9
Requirement abolished
Requirement abolished
Requirement abolished
Record of decision (brief
explanation of decision
EIS has been prepared; no
circulation requirement)
1505.2.
sec. 1500.5 of the regu-
i. Time limits on the NEPA process. The regulations
encourage lead agencies to set time limits on the NEPA process and
require that they be set when requested by an applicant.
impact
of negative
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ii. Integrating EIS requirements with other environmental review
requirements. Often the NEPA process and the requirements of other laws
proceed separately, causing delay. The regulations provide for all
agencies with jurisdiction over the project to cooperate so that all
reviews may be conducted simultaneously.
iii. Integrating the NEPA process.into early planning. If
environmental review is tacked on to the end of the planning. process,
then the process is prolonged, or else the EIS is written to justify a
decision that has already been made, and genuine consideration may not
be given to environmental factors.
iv. Emphasizing interagency cooperation before the EIS is drafted.
The regulations emphasize that other agencies should begin cooperating
with the lead agency before the EIS is prepared in order to encourage
early resolution of differences. By having the affected agencies cooperate
early in preparing a draft EIS, we hope both to produce a better draft
and to reduce delays caused by unnecessarily late criticism.
v. Swift and fair resolution of lead agency disputes. When
agencies differ as to who shall take the lead in preparing an EIS or
none is willing to take the lead, the regulations provide a means for
prompt resolution of the dispute.
vi. Prepare EISs on programs and not repeat the same material
in project specific EISs. Material common to many actions may be covered
in a broad EIS, and then through "tiering" maybe incorporated by
reference rather than reiterated in each subsequent EIS.
vii. Legal delays. The regulations provide that litigation
should come at the end rather than in the middle of the process.
viii. Accelerated procedures for legislative proposals. The
regulations provide accelerated simplified procedures for environmental
analysis of legislative proposals, to fit better with Congressional
schedules.
C. Better Decisions
Most of the features described above will help to improve decisionmaking.
This, of course, is the fundamental purpose of the NEPA process, the end
to which the EIS is a means. Section 101 of NEPA_sets forth the sub-
stantive requirements of the Act, the policy to be implemented by the
"action-forcing" procedures of Section 102. These procedures must be
tied to their intended purpose, otherwise they are indeed useless paper-
work and wasted time. A central purpose of these regulations is to tie
means to ends.
i. Securing more accurate, professional documents. The
regulations insist upon accurate documents as the basis for sound
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decisions. The documents should draw upon all the appropriate disciplines
from the natural and social sciences, plus the environmental design
arts. The lead agency is responsible for the professional integrity of
reports, and care should be taken to keep any possible bias from data
prepared by applicants out of the environmental analysis. A list of
people who helped prepare documents, and their professional qualifications,
should be included in the EIS.
ii. Recording in the decision how the EIS was used. The new
regulations require agencies to point out in the EIS analysis of alterna-
tives which one is preferable on environmental grounds -- including the
often-overlooked alternative of no action at all. (However, if "no
action" is identified as environmentally preferable, a second-best
alternative must also be pointed out.)
Agencies must also produce a concise public record, indicating how the
EIS was used in arriving at the decision. If the EIS is disregarded, it
really is useless paperwork. It only contributes if it is used by the
decisiohmaker and the public. The record must state what the final
decision was; whether the environmentally preferable alternative was
selected; and if not, what considerations of national policy led to
another choice.
iii. Insure follow-up of agency decisions. When an agency
requires environmentally protective mitigation measures in its decision,
the regulations provide for means to ensure that these measures are
monitored and implemented.
Taken altogether, the regulations aim for a streamlined process, but one
which has a broader purpose than the Guidelines they replace. The
Guidelines emphasized a single document, the EIS, while the regulations
emphasize the entire NEPA process, from early planning through assess-
ment and EIS preparation through provisions for follow-up. They attempt
to gear means to ends -- to insure that the action-forcing procedures of
sec. 102(2). of NEPA are used by agencies to fulfill the requirements of
the Congressionally mandated policy set out in sec. 101 of the Act.
Furthermore, the regulations are uniform, applying in the same way to
all federal agencies, although each agency will develop its own procedures
for implementing the regulations. Our attempt has been with these new
regulations to carry out as faithfully as possible the original intent
of Congress in enacting NEPA.
3. Background
f
We have been greatly-assisted in our task by the hundreds of people who
responded to our call for suggestions on how to make the NEPA process
work better. In public hearings which we held in June 1977, we invited
testimony from a 'broad array of public officials, organizations, and
private citizens, affirmatively involving NEPA's critics as well as its
friends.
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Among those represented were the U.S. Chamber of Commerce, which co-
ordinated testimony from business; the Building and Construction Trades
Department of the AFL-CIO, for labor; the National Conference of State
Legislatures, for state and local governments; the Natural Resources
Defense Council, for environmental groups. Scientists, scholars, and
the general public were there.
There was extraordinary consensus among these diverse witnesses. All,
without exception, expressed the view that NEPA benefited the public.
Equally widely shared was the view that the process had become needlessly
cumbersome and should be trimmed down. Witness after witness said that
the length and detail of _EISs made it extremely difficult to distinguish
the important from the trivial. The degree of unanimity about the good
and bad points of the NEPA process was such that at one point an official
spokesman for the oil industry rose to say that he adopted in its entirety
the presentation of the President of the Sierra Club.
After the hearings we culled the record to organize both the problems
and the solutions proposed by witnesses into a 38-page "NEPA Hearing
Questionnaire.". The questionnaire was sent to all witnesses., every
state governor, all federal agencies, and everyone who responded to an
invitation in the Federal Register. We received more than 300 replies,
from a broad cross section of groups and individuals. By the comments
we received from respondents we gauged our success in faithfully pre-
senting the results of the public hearings. One commenter, an electric
utility official, said that for the first time in his life he knew the
government was'listening to him, because all'the suggestions made at the
hearing turned up in the questionnaire. We then collated all the responses
for use in drafting the regulations.
We also met with every agency of the federal govenment to.discuss what
should be in.the regulations. Guided by these extensive interactions
with government agencies and the public, we prepared draft regulations
which were circulated for comment to all federal agencies in December,
1977. We then studied agency comments in detail, and consulted numerous
federal officials with special experience in implementing the Act.
Informal redrafts were circulated to the agencies with greatest experience
in preparing environmental impact statements. Improvements from our
December 12 draft reflect this process.
At the same time that federal agencies were reviewing the early draft,
we continued to meet with, listen to, and brief members of the public,
including representatives of business, labor, state and local governments,
environmental groups and others. We also considered seriously and
proposed in our regulations virtually every major recommendation made by
the Commission on Federal Paperwork and the General Accounting Office in
their recent studies on the environmental impact statement process. The
studies by these two independent bodies were among the most detailed and
informed reviews of the paperwork abuses of the impact statement process.
In many, cases, such as streamlining intergovernmental coordination, the
proposed regulations go further than their recommendations.
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4. Exclusion
It should be noted that the issue of application of NEPA to environ-
mental effects occurring outside the United States is the subject of
continued discussions within the government and is not addressed in
these regulations. Affected agencies continue to hold different views
on this issue. Nothing in these regulations should be construed as
asserting that NEPA either does or does not apply in this situation.
5. Analysis and Assessment of The Regulations
Since Executive Order 12044 became effective on March 23, 1978, after
the Council's draft NEPA regulations had completed interagency review,
the extent to which Executive Order 12044 applies to the Council's
nearly completed process of developing NEPA regulations is not clear.
Nevertheless, the requirements. of Executive Order 12044 have been under-
taken to the fullest extent possible. The analyses required by sections
2(b), (c), (d), and 3(b), to the extent they may apply to the Council's
proposed NEPA regulations, are available on request.
The Council has prepared a special environmental assessment of these
regulations to illustrate the analysis that is appropriate under NEPA.
The assessment discusses alternative regulatory approaches. Some
regulations lend themselves to an analysis of,their environmental impacts,
particularly regulations with substantive requirements or those which
apply to a physical setting. Although the Council obviously believes
that its regulations will work to improve. environmental quality, the
impacts of procedural regulations of this kind are not susceptible to
detailed analysis beyond that set out in the assessment.
Both the analyses under Executive Order 12044 and the assessment described
above are available on request. Comments may be made on both documents
in the same manner and by the same time as the comments on the regulations.
6. Additional Subjects for Comments
Several issues have been brought to our attention as appropriate subjects
to be covered in the regulations. They are difficult issues on which we
particularly solicit thoughtful views.
a. Data bank. Many were intrigued by the idea-of a national data
bank in which information developed in one EIS would be stored and
become available for use in a subsequent EIS. Public comment on the
questionnaire led us to conclude, reluctantly, that the idea is im-
practical. In practice most environmental information is specific to
given areas or activities. To assemble a nationwide data bank would
demand financial and other resources that are simply beyond the benefits
that may be achieved. We have not included a data bank in these regu-
lations but have instead tried to insure that in the scoping process the
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preparers of one EIS become aware of all related EISs so they can make
use of the-information in them. We would, however, welcome comment on
this subject.
b. Encouragement for agencies to fund public comments on EISs
when an important viewpoint would otherwise not be presented. The
Council has been urged to provide either encouragement or direction to
agencies, as part of their routine EIS preparation, to provide funds to
responsible groups for public comments when important viewpoints would
not otherwise be presented. Although we are acutely aware of the
importance of comments to the success of the EIS process, we have.not
included such a provision. We would welcome comment on this subject
also.
Conclusion
We look forward to your comments and help. To repeat, comments should
be sent by August 11, 1978, to Nicholas C. Yost, General Counsel,
Attention: NEPA-Comments, Council on Environmental Quality, 722 Jackson
Place, N.W., Washington, D.C. 20006.
Thank you for cooperating with us.
u.u~14.1
CHARLES WARREN
Chairman
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Table of Contents
Part 1500.
Purpose, Policy, and Mandate ..... ................ 1
Sec.
1500.1
Purpose
....................................... 1
Sec.
1500.2
Policy
........................................ 1
Sec.
1500.3
Mandate
.......... ............................ 2
Sec.
1500.4
Reducing Paperwork .......................... 2
Sec.
1500.5
Reducing Delay ........................ 4
Sec.
1500.6
Agency Authority .............................. 5
Part 1501. NEPA and Agency Planning ............................ 5
Sec.
1501.1
Purpose ............. ..........................
5
Sec.
1501.2
Apply NEPA Early in' Process ...................
5
Sec.
1501.3
When to Prepare an Environmental Assessment ...
6
Sec.
1501.4
Whether tb Prepare an Environmental Impact
Statement ......
6
Sec.
1501.5
Lead Agencies
?
7
Sec.
1501.6
..........................
Cooperating Agencies
9
Sec.
1501.7
Scoping .......................................
9
Sec.
1501.8
Time .Limits ...................................
11
Part 1502.
Environmental Impact Statement ..
12.
Sec.
1502.1
Purpose ........... ...................... ..
12
Sec.
1502.2
Implementation ...............................
12
Sec.
1502.3
Statutory Requirements. for Statements ........
13
Sec.
1502.4
Major Federal Actions Requiring the Preparation
of Environmental Impact Statements
13
Sec.
1502.5
Timing ........... ..
14
Sec.
1502 6
Interdisciplinary Preparation
15
Sec.
1502.7
Page Limits ..... .......... ..............
15
Sec.
1502.8
Writing ......................?
15
Sec.
1502.9
Draft, Final, and Supplemental Statements ....
1.5
Sec.
1502.10
Recommended Format ...........................
16
Sec.
1502.11
Cover Sheet ...................
17
Sec.
1502.12
Summary .............
17
Sec.
1502.13
Purpose and Need .............................
18
Sec.
1502.14
Alternatives Including the Proposed Action....
18
Sec..
1502.15
Environmental Consequences ...................
19
Sec.
1502.16 Affected Environment .........................
19
Sec.
1502.17
List of Preparers ............................
20
Sec.
1502.18
Appendix ............... .
20
Sec.
1502.19
Circulation of the Environmental Impact
Statement .......... .................. 20
Sec. 1502.20 Tiering ...................................... 21
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Sec. 1502.21 Incorporation by Reference 21
Sec. 1502.22 Incomplete or Unavailable Information ........ 21
Sec. 1502.23 Cost-Benefit Analysis ................... .... 21
Sec. 1502.24 Methodology and Scientific Accuracy .......... 22
Sec. 1502.25 Environmental Review and Consultation
Requirements ............................... 22,
Part 1503. Commenting ......................................... 22
Sec. 1503.1 Inviting Comments 22
Sec. 1503.2 Duty to Comment .............................. 23
Sec. 1503.3 Specificity of Comments .......... . 23
Sec. 1503.4 Response to Comments .... . 23
Part 1504. Predecisioo Referrals to the Council of Proposed
Federal Actions Found to be Environmentally
Unsatisfactory .................. ........... 24
Sec. 1504.1 Purpose ...................................... 24
Sec. 1504.2 Criteria for Referral ........................ 24
Sec. 1504.3 Procedure for Referrals and Response ......... 25
Part 1505. NEPA and Agency Decisionmaking ..................... 27
Sec. 1505.1 Agency Decisionmaking Procedures ............. 27
Sec. 1505.2 Record of Decision In Those Cases Requiring
Environmental Impact Statements ............ 28
Sec. 1505.3 Implementing the-Decision .. ................. 28
Part 1506. Other Requirements of NEPA ........................ 29
Sec. 1506.1 Limitations on Actions During NEPA Process ... 29
Sec. 1506.2 Elimination of Duplication with State and
Local Procedures ........................... 29
Sec. 1506.3 Adoption ..................................... 30
Sec. 1506.4 Combining Documents ......... . 30
Sec. 1506.5 Agency Responsibility .......... .......... 30
Sec. 1506.6 Public Involvement ................ ..:.......... 31
Sec. 1506.7 Further Guidance 32
Sec. 1506.8 Proposals for Legislation .................... 33
Sec. 1506.9 Filing Requirements 34
Sec. 1506.10 Timing of Agency Action ...................... 34
Sec. 1506.11 Emergencies .................................. 35
Sec. 1506.12 Effective Date ............................... 35
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Part 1507. Agency Compliance. ................................. 36
Sec.
1507.1
Compliance ....................... ...........
36
Sec.
1507.2
Agency Capability to comply ..................
36
Sec.
1507.3
Agency Procedures .............................
37
Part 1508.
Terminology and index .............................. 38
Sec.
1508.1
Terminology ..
38
Sec.
1508.2
Act ..........................................
38
Sec.
1508.3`
Affecting .................. ................
38
Sec.
1508.4
Categorical Exclusion ..
38
Sec.
1508 5
Cooperating Agency .........
39
Sec.
1508.6..
Council
39
Sec.
1508.7
Cumulative Impact ............ ................
39
Sec.
1508.8
Effects ....................
..................
39
Sec.
1508.9
.
Environmental Assessment .....................
40
Sec.
1508.10
Environmental Document .......................
40
Sec.
1508.11 Environmental Impact Statement ...............
40
Sec.
1508.12 Federal Agency ...............................
40
Sec.
1508.13 Finding of No Significant Impact .............
41
Sec.
1508.14 Human Environment ............................
41
Sec.
1508.15 Lead Agency ..................................
41
41
Sec.
1508.16
Legislation ....... ...............
? Sec.
1508.17
Major Federal Action ...... ............
41
Sec.
1508.18
Matter .........................................
43
Sec.
1508.19
Mitigation ...................................
43
Sec.
1508.20
NEPA Process .................................
43
Sec.
1508.21
Notice of Intent
43
Sec.
1508.22
Proposal .... ...............................
44
Sec.
1508.23
Referring Agency .........
44
Sec.
1508.24
Scope . ............ ...............
44
Sec.
1508.25
Significantly......... ................................
45
Sec.
1508.26.
Tiering ................
46
Index ............................ ........................... 47
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Part 1500. Purpose, Policy, and Mandate
Sec. 1500.1 Purpose
The National Environmental Policy Act '(NEPA) is our basic national
charter for protection of the environment. It establishes policy, sets
goals (section 101), and provides means (section 102) for carrying out
the policy. Section 102(2) contains "action-forcing" provisions to make
sure that federal agencies act according to the letter and spirit of the
Act. The regulations that follow implement Section 102(2). Their
purpose is to tell federal agencies what they must do to comply with the
procedures and achieve the goals of the'Act. The President, the federal
agencies, and. the courts share responsibility for enforcing the Act so
as to achieve the substantive requirements of section 101.
NEPA procedures must insure that environmental information is
available to public officials and citizens before decisions are made and
before actions are taken. The information must be of high quality.
Accurate scientific analysis, expert agency comments, and public scru-
tiny are essential to implementing NEPA. Most important, NEPA documents
must concentrate on the issues that are truly significant to the action
in question, rather than amassing needless detail.
Ultimately, of course, it. is not. better documents but better
decisions that count. NEPA's purpose is not to generate paperwork --
even excellent paperwork -- but to foster excellent action. The NEPA
process is intended to help public officials make decisions that are
based on understanding of environmental consequences, and take actions
that protect, restore, and enhance the environment. These regulations
provide the direction. to achieve this purpose.
Section 1500.2 Policy
Federal agencies shall to the fullest extent possible:
(a) Interpret and administer the policies, regulations, and public
laws of the United States in accordance with the policies set forth in
the Act and in these regulations.
(b) Implement procedures to make the NEPA process more useful to
decisionmakers and the public; to reduce paperwork and the accumulation
of extraneous background data; and to emphasize real environmental
issues and alternatives. Environmental impact statements shall be
concise, clear, and to the point, and shall be supported by evidence
that agencies have made the necessary environmental analyses.
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'(c) Integrate the requirements of.NEPA with other planning and
envranrnerrtal review procedures required by law or by.agency practice
,so that all such procedures run concurrently., rather than consecutively.
(d) 'Encourage and facilitate public involvement in decisions which
affect the quality of:the?human environment.
`(e) 'Use the'NEPA process to identify and assess the reasonable
alternatives to proposed actions that will avoid or minimize adverse
effects of-these actions upon the quality of the human environment.
'(f) Use all practicable means, consistent with the requirements of
the Act and other essential considerations of national policy, to restore
and enhance'the quality of the human environment and avoid or minimize
any possible adverse effects of their actions upon the quality of the
human environment.
Sec. 1500.3 'Mandate
`Parts?1500-1508 of-this Title provide regulations applicable to and
binding on all Federal agencies for implementing the procedural provisions
of the National Environmental Policy Act of 1969,.as amended (P.L. 91-190,
42 U.S.C. 4321 et seq.) (NEPA or the Act) except where compliance would
be inconsistent with other statutory requirements. These regulations
are issued pursuant-to NEPA, the Environmental Quality Improvement Act
of 1970, as amended (42 U.S.C. 4371 et se q.), Section 309 of the Clean
Air Act, as amended (42 U.S.C. 1857h-7), and Executive Order 11514,
Protection and Enhancement of Environmental Quality (March 5, 1970, as
amended by Executive Order 11991, May 24, 1977). These regulations,
unlike the predecessor guidelines, are not confined to Sec. 102(2)(C)
(environmental impact statements). The regulations apply to the whole
of section 102(2). The provisions of the Act and of these regulations
must be read together as a whole in order to comply with the spirit. and
letter of the law. It is the Council's intention that judicial review
of agency compliance with these regulations not occur before an agency
has filed the final environmental impact statement, or has made a
finding of no significant impact,'or takes action that will result in
irreparable injury.
Sec.'1500.4 -Reducing Paperwork
"Agencies shall reduce excess paperwork by:
(a) Reducing the length of environmental impact statements
(section 1502.2(c)), by means such as setting appropriate page limits
(section 1501.7(b)(1) and 1502.7).
?(b) Preparing analytic rather than encyclopedic environmental
impact statements (section 1502.2(a)).
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~'c'7icFuos~ g ry brief y issues other than significant ones
(section 1502.2(b)).
(d) Writing envrionmental impact statements in plain language
(section 1502.8).
(e) Following a clear format for environmental impact statements
(section 1502.10).
(f) Emphasizing the portions of the environmental impact statement
that are useful to decisionmakers and the public (sections 1502.14 and
1502.15) and reducing emphasis on background material (section 1502.16).
(g) Using the scoping process not only to identify significant
environmental issues deserving of study, but also to deemphasize insig-
nificant issues, narrowing the scope of the environmental impact
statement process accordingly (section 1501.7).
(h) Summarizing the environmental impact statement (section
1502.12) and circulating the summary instead of the entire environmental
impact statement if the latter is unusually long (section 1502.19).
(i) Using program, policy, or plan environmental impact statements
and tiering from statements of broad scope to those of narrower scope to
eliminate repetitive discussions of the same issues (sections 1502.4 and
1502.20).
(j) Incorporating by reference (section 1502.21).
(k) Integrating NEPA.requirements with other environmental review
and consultation requirements (section 1502.25).
(1) Requiring comments to be as specific as possible (section
1503.3).
(m) Attaching and, circulating only changes to the draft environ-
mental impact statement, rather than rewriting and circulating the
entire statement when changes are minor (section 1503.4(b)).
(n) Eliminating duplication with State and local procedures by
providing for joint preparation (section 1506.2) and with other Federal
procedures by providing for one agency's adoption of appropriate environ-
mental documents prepared by another agency (section 1506.3).
(o) Combining environmental documents with other documents (section
1506.4).
(p) Using categorical exclusions to exclude from environmental
impact statement requirements categories of actions which do not indi-
vidually or cumulatively have a significant effect on the human environment
(section 1508.4).
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(q) Using a finding of no significant impact and not preparing an
environmental impact statement when an action not otherwise excluded
will not have a significant effect on the human environment (section
1508.13).
Sec. 1500.5 Reducing Delay
Agencies shall reduce delay by-.
(a) Integrating the NEPA process into early planning (section
1501.2).
(b) Emphasizing interagency cooperation before the environmental
impact statement is prepared rather than adversary comments on a com-
pleted document (section 1501.6).
(c) Insuring the swift and fair resolution of lead agency disputes
(section.1501.5).
(d) Using the scoping process for an early identification of what
are and what are not the real issues (section 1501.7).
(e) Establishing appropriate time limits for the environmental
impact statement process (sections 1501.7(b)(2) and 1501.8).
(f) Preparing environmental impact statements early in the process
(section 1502.5).
(g) Integrating NEPA requirements with other environmental review
and consultation requirements (section 150:2.25).
(h) Eliminating duplication with State and local procedures by
providing for joint preparation (section 1506.2) and with other Federal
procedures by providing for one agency's adoption of appropriate environ-
mental documents prepared by-another agency (section 1506.3).
(i) Combining environmental documents with other documents (section
1.506..4)
(j) Using acc-elerated procedures for proposals for legislation
(section. 1506.8). .
(k) Using categorical exclusions to exclude from environmental
impact statement requirements categories of actions which do not indi-
vidually or cumulatively have a significant effect on the human environment
(section 1508.4).
(1) Using a finding of no significant impact and not preparing an
environmental impact statement when an action not otherwise excluded
will not have a significant effect on the human environment (section
1508.13).
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Each agency shall interpret the provisions of the Act as a supple-
ment to its existing authority and as a mandate to view traditional
policies and missions in the light of the Act's national environmental
objectives. Agencies shall review their policies, procedures, and
regulations accordingly and revise them as necessary to ensure full
compliance with the purposes and provisions of the Act. The phrase "to.
the fullest extent possible" in section 102 means that each agency of
the Federal Government shall comply with that section unless existing
law applicable to the agency's operations expressly prohibits or makes
compliance impossible.
Part 1501. NEPA and Agency Planning
Sec. 1501.1 Purpose
The purposes of. this part include:
(a) Integrating the NEPA process into early planning to insure
appropriate consideration of NEPA's policies and to eliminate delay.
(b) Emphasizing cooperative consultation among agencies before the
environmental impact statement is prepared rather than adversary com-
ments on a completed document.
(c) Providing for the swift and fair resolution of lead agency
disputes.
(d) Identifying at an early stage the. significant environmental
issues deserving of study and deemphasizing insignificant issues,
narrowing the scope of the environmental impact statement accordingly.
(e) Providing a mechanism for putting appropriate time limits on
the environmental impact statement process.
Sec. 1501.2 Apply NEPA Early in Process
Agencies shall integrate the NEPA process with other planning at
the earliest possible time to insure that planning and decisions reflect
environmental values, to avoid delays later-in the process, and to head
off potential conflicts.
Each agency shall:
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(a) As specified by sec. 1507.2 comply with the mandate of
Sec. 102(2-)(A) to "utilize a systematic,- interdisciplinary approach
which'will insure the integrated use of the natural and social sciences
and the environmental design arts in planning and in decis.ionma_king.
which may have- animpact on man's environment."
(b) Identify environmental effects and values in adequate detail
so they can be' compared to economic and technical analyses. Environ-
mental documents and appropriate analyses shall be circulated and reviewed
at the same time as other planning documents.
(c) Study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources as pro-
vided by sec. 102(2)(E) of the Act.
(d) Provide for cases where actions are planned by other than
Federal agencies before Federal involvement so that:
(1)
The sponsor of the proposal initiates studies if Federal
invOlvement.is foreseeable.
(2)
The
and
and
Federal agency consults early with appropriate State
local agencies and with interested private persons
organizations when its own involvement is reasonably
foreseeable.
(3)
The Federal agency commences its NEPA process at the
earliest possible time.
Sec: 1501.3 When-to.Prepare an Environmental Assessment
An environmental assessment (sec. 1508.9) shall be prepared unless
one is not necessary under the .procedures adopted under sec. 1507.3(b).
Agencies may prepare an assessment on any action at any time in order to
assist agency planning and decisionmaking.
Sec. 1501.4 Whether to Prepa-re..an,Environmental Impact Statement
In determining whether to prepare an environmental impact statement
the Federal agency shall:
(a) Determine under section 1507.3 whether the proposal is one
which
(1) riorinally requires an environmental impact statement, or
(2) normally does not require either an environmental impact
statement or an environmental assessment (categorical
exclusion).
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(b) If the proposed action is not covered by 'rubsection (a),
prepare an environmental assessment (section 1508.9). The agency shall
involve environmental agencies and the public, to the extent practicable,
in preparing the assessment.
(c) Based on the environmental assessment make its determination
whether to prepare an environmental impact statement.
(d) If the agency will prepare an environmental impact statement,
the agency shall-commence the scoping process (section 1501.7).
(e) If the agency determines on the basis of the environmental
assessment not to prepare a statement, the agency shall prepare a
finding of no significant impact (section 1508.13).
(1) The agency shall make the finding of no significant impact
available in a manner calculated to inform the affected
public as specified in section 1506.6.
(2) In certain limited circumstances the agency shall make
the finding of no significant impact available for
public review for 30 days before the agency makes its
final determination whether to prepare an environmental
impact statement and.before the action may begin. The
circumstances are:
(1.) The proposed action is, or is closely similar to,
one which normally-requires the preparation of an
environmental impact statement under the procedures
adopted by the agency pursuant to section 1507.3(b),
or
(ii) the nature of the proposed action is one without
precedent.
Sec. 1501.5 Lead Agencies
(a) A lead agency shall supervise the preparation of an environ-
mental impact statement if more than one Federal agency either:
(1) proposes or is involved in the same action; or
(2) is involved in a group of actions directly-related
to each other because of their functional inter-
dependence or geographical proximity.
(b) More than one Federal, State, or local agency, one of which
must be Federal, may act as joint lead agencies to prepare an environ-
mental impact statement. (Sec. 1506.2)
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tioon satis/rie//s2fhel -RDP85ions59F'O 0011000
the
potential lead agencies concerned shall determine by letter or memoran-
dum which agency shall be the lead agency and which shall be cooperating
agencies. The agencies shall resolve the lead agency question in a
manner that will not cause delay. If there is disagreement among the
agencies, the following factors (which are listed in descending impor-
tance) shall determine lead agency designation:
(1) 'Magnitude of agency's ~involveinent.
(2) Project approval/disapproval authority.
(3) Expertise concerning the action's environmental'effects.
(4) Duration of agency's involvement.
(5) Sequence of agency's involvement.
(d) If potential lead agencies fail to agree on which agency
shall be the lead agency as specified in subsection (c), (1) any Federal
agency or (2) any State or local agency or private person substantially
affected by the absence of agreement on lead agency designation may make
a'written request to the potential lead agencies that a lead agency be
designated.
(e) If Federal agencies-are unable to agree on which agency will
be the lead agency or if the procedure described in subsection (d) has
not resulted within a reasonable time in a lead agency-designation, any
of the agencies or persons concerned may file a request with the Council
asking it to determine which Federal agency shall be the lead agency.
A-copy of the request shall-be transmitted to each potential lead
agency. The request shall consist of:
(1) a precise description of the nature and extent of
the proposed action;
(2) a detailed statement of why each potential lead
agency should or should not be the lead agency under
the criteria specified in subsection (2).
(f) A response may be filed by any potential lead agency concerned
within 20 days after a request is filed with the Council. The Council
shall determine within 20 days after receiving the request and all
responses which Federal agency shall be the lead agency and the.extent
to which the other Federal agencies concerned shall be cooperating
Federal agencies.
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The purpose of this section is to emphasize agency cooperation
early in the NEPA process. Upon request of the lead agency, any other
Federal agency which has jurisdiction by law shall be a cooperating
agency. In addition any other Federal agency which has special exper-
tise with respect to any environmental issue, which should be addressed
in the statement may be a cooperating agency upon request of the lead
agency.
(a) The lead agency shall:
(1) Request the participation of each cooperating
agency in the NEPA process at the earliest possible
time.
(2) To the maximum extent possible consistent with its
responsibility as lead agency use the environmental
analysis and proposals of cooperating agencies with
jurisdiction by law or special expertise.
Meet with a cooperating agency at the latter's request.
Each cooperating agency shall:
Participate in the NEPA process at the earliest possible
time.
Participate in the scoping process.
Assume on request of the lead agency responsibility for
developing information and preparing environmental
analyses including portions of the environmental impact
statement concerning which the cooperating agency has
special expertise.
(4) Make available staff support at the lead agency's request
to enhance the latter's interdisciplinary capability.
(5) Normally a cooperating agency shall use its own funds.
The lead agency shall, to the extent available funds
permit, fund those major activities or analyses it
requests from cooperating agencies. Potential lead
agencies shall include such funding requirements in
their budget requests.
There shall be an early and open process for determining the scope
of issues to be addressed and for identifying the significant issues.
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This A rea ces d F? ailelbe eterOm0ed0 s/cop'ing -RC ss
after
its decision to prepare an environmental impact statement and before
the scoping process the lead agency shall publish a notice of intent
(sec. 1508.21) in the Federal. Register.
(a) As part of the scoping process the lead agency shall:
'(1) Invite the participation of affected Federal, State, and local
agencies, any affected Indian tribe, the proponent of the action, and
other interested persons (including those who might not be in accord
with the action).
(2) Determine the scope (sec. 1508.24)' and the significant issues
to be analyzed in depth in the environmental impact statement.
(3) Identify and eliminate from detailed study the issues which
are not significant or which have been covered by prior environmental
review (sec. 1506.3), narrowing the discussion of these issues in the
statement to a brief presentation of why they will not have a significant
effect on the human environment or a reference to their coverage else-
where.
(4) Allocate assignments for preparation of the environmental
.impact statement among the lead and cooperating agencies, with the lead
agency retaining responsibility for the statement.
(5) Indicate any environmental assessments and other.environmPntal
.impact statements which are being or will be prepared that are related
to but are not part of the scope of the impact statement which is the
subject of the meeting.
(6) Identify other-environmental-review and consultation require-
ments-so the lead and cooperating agencies may comply with section
1502.25.
(7) Indicate the. relationship between the timing of the preparation
of environmental analyses and the agency's tentative planning and
decisionmaking schedule.
($) When practicable hold an early scoping meeting or meetings
which maybe integrated with any other early planning meeting the
agency has. Such scoping meeting will often be appropriate when the
impacts of.a particular action are confined to specific sites.
(b} As part of the scoping process the lead agency may:
(1) Set page limits on environmental documents (sec. 1502.7).
(2) Set time limits (sec. 1501.8).
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(c) An agency'shall revise the determirations made under sub-
sections (a) and (b) if substantial changes are made later in the
proposed action or if significant new circumstances (including infor-
mation) arise. which bear on the proposal or its impacts.
Sec. 1501.8 Time Limits
Although the Council has decided that universal time limits for the
entire NEPA process are too inflexible to prescribe, Federal agencies
are encouraged to set time limits appropriate to individual action
(consistent with sec. 1506.10). When multiple agencies are involved
the reference to agency below means lead agency.
(a) The agency shall:
(1) Consider the following factors in determining time limits:
(i) Potential for environmental harm.
(ii) Size of the proposed action.
(iii) State of the art of analytic techniques.
(iv) Degree of public need for the proposed actions,
including the consequences of delay.
(v) Number of persons and agencies affected.
(vi) Degree to which relevant information is known and
if not known the time required for obtaining it.
(vii) Degree to which the action is controversial.
(2) Set limits if an applicant for the proposed action requests
them, provided that they are consistent with the purposes of
NEPA and other essential considerations of national policy.
(b) The agency may:
(1) Set overall time limits or limits for each constituent part
of the NEPA process, which may include:
(i)
Decision on whether to prepare an environmental
impact statement (if not already decided).
(ii) Determination of the scope of the environmental
impact statement.
(iii) Preparation of the draft environmental impact
statement.
(iv) Review of any comments on the draft environmental
impact statement from the public and agencies.
(v) Preparation of the final environmental impact
statement.
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(vf) Review of any comments on the final environmental
impact statement..
(vii) Decision on the action based in part on the environ-
mental impact statement.
(2) Designate a person (such as the project manager or a person
in the agency's office with NEPA responsibilities) to expedite
the NEPA process.
(c) State or local agencies or members of the public-may request
a Federal agency to set time limits.
Part 1502. Environmental Impact Statements
Sec. 1502.1. Purpose
The primary purpose of an environmental. impact statement is as an
action-forcing device to insure that the policies and goals defined in
the Act are infused into the ongoing programs and actions of. the Federal
Government. It shall provide full and fair. discussion of significant
environmental impacts and shall inform decisionmakers and the public of
the reasonable alternatives which would avoid or minimize adverse impacts
or enhance the quality of the human environment. Agencies shall focus
on significant environmental issues and alternatives and shall reduce
paperwork and the accumulation of extraneous background data. Statements
shall be concise, clear, and to the point, and shall be supported by
evidence that the.agency has made the necessary environmental analyses.
An environmental impact statement is more-than a disclosure document.
It shall be used by Federal officials in conjunction with other relevant
material to plan actions and make decisions..
Sec. 1502.2 Implementation
To-achieve--the purposes set forth in sec. 1502.1 agencies shall'
prepare environmental impact statements in the following manner:
(a)' Environmental impact statements shall. be analytic rather than
encyclopedic. -
(b) Impacts shall be discussed in. proportion to their significance.
There shall be only brief discussion of. other than significant issues.
As in a, finding of no significant impact, there-should be only enough
discussion. to show why more study is not warranted.
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(c) Environmental impact statements shall be kept concise
shall be no longer than absolutely necessary ~o comply with NEPA and
with these regulations. Length should vary first with potential
environmental problems and then with project size.
(d) Environmental impact statements, shall state how alternatives
considered in it and decisions based on it will or will not achieve the
requirements of sections 101 and 102(1) of the Act and other environ-
mental laws and policies.
(e) The range of alternatives discussed in environmental impact
statements shall encompass those the ultimate agency decisionmaker
considers.
(f) Agencies shall not commit resources prejudicing selection of
alternatives before making a final decision (sec. 1506.1).
(g) Environmental impact statements shall serve as the means of
assessing the environmental impact of proposed agency actions, rather
than justifying decisions already made.
Sec. 1502.3 Statutory Requirements for Statements
As required by sec. 102(2)(C) of NEPA environmental impact state-
ments (section 1508.11) are to be included in every recommendation or
report
on proposals (section 1508.22)
for legislation and (section 1508.16)
other major Federal actions (section 1508.17)
significantly (section 1508.25)
affecting (sections 1508.3, 1508.8)
- the quality of the human environment (section 1508.14).
Sec. 1502.4 Major Federal Actions Requiring the Preparation of
Environmental Impact Statements
(a) Agencies shall make sure the proposal which is the subject of
an environmental.impact statement is properly defined. Agencies shall
use the criteria for scope (sec. 1508.24) to determine which proposal(s)
shall be the subject of a particular statement. Proposals or parts of
proposals which are related to each other closely enough to be, in
effect, a single course of action shall be evaluated in a single impact
statement.
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(b) Environmental impact statements may be prepared, and are
sometimes required, for broad Federal actions such as the adoption of
new agency programs or regulations (sec. 1.508.17). Agencies shall
epare statements on broad actions to be relevant to policy and timed
coincide with meaningful points in agency planning and decisionmaking.
(c) When preparing statements on broad actions
a
enci
fi
,
g
es may
nd
it useful to evaluate the proposal(s) by one or more agencies in one of
the following ways:
(1) Geographic, including actions occurring in the
same general location, such as an ocean, region,
or metropolitan area.
?(2) Generic, including actions which have relevant
similarities, such as common timing, impacts,
alternatives, methods of implementation, media,
or subject matter.
(3) Technological development including federal or
'federally assisted research, development or demon-
9tration programs aimed at developing new technologies
which, -if applied, could significantly affect the
-quality of the human environment. Statements shall be
prepared on such programs and shall be available before
the program has reached a stage of investment or com-
mitment to implementation likely to determine subsequent
development.or restrict later alternatives.
(d) Agencies shall as appropriate employ scoping (sec. 1501.7),
tiering (sec. 1502.20), and other methods listed in sec. 1500.4 and
1500.5'to'relate broad and narrow actions and to avoid duplication and
delay.
Sec. 1502.5 ming
An agency shall commence preparation of an environmental impact
statement as close as possible to the time-the agency makes or is
Presented with a proposal (section 1508.22) so that preparation can
be'eompleted in time for the final statement to be included in any
recommendation or report on the proposal. The statement shall be
prepared early enough so that it can practically serve as.an important
contribution to the decisionmaking process and shall not be used to
rationalize or justify decisions already made (secs. 1500.2(c), 1501.2,
and 1502.2). For instance:
(a) For projects directly undertaken by Federal agencies such
statements shall be prepared at the feasibility analysis (go-no go)
stage and may be supplemented at a later stage if necessary.
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environmental assessments or statements shall be commenced at the
latest immediately after the application is received, but federal
agencies are encouraged to prepare them earlier, preferably jointly
with applicable State or local agencies.
(c) For adjudication, the final environmental impact statement
shall normally precede the final staff recommendation and that portion
of the public hearing related to the impact study. In appropriate
circumstances the statement may follow preliminary hearings designed
to gather information for use in the statements.
Sec. 1502.6 Interdisciplinary Preparation
. Environmental impact statements shall be prepared using an inter-
disciplinary approach which will insure the integrated use of the natural
and social sciences and the environmental design arts (section 102(2)(A)
of the Act). The disciplines of the preparers shall be correlated to
the scope and issues identified in the scoping process (sec. 1501.7).
Sec. 1502.7 Page Limits
The text of final environmental impact statements (e.g., subsections
(d) through (g) of sec. 1502.10) shall normally be less than 150 pages
and for proposals of unusual scope or complexity shall normally be less
than 300 pages.
Sec. 1502.8 Writing
Environmental impact statements shall be written in plain language
and may use appropriate graphics so that they may be understood by
decisionmakers and the public. Agencies should employ iariters of clear
prose or editors to write, review, or edit statements, which will be
based upon the analysis and supporting data from the natural and social
sciences and the environmental design arts.
Sec. 1502.9 Draft, Final, and Supplemental Statements
Except as provided in section. 1506.8, environmental impact state-
ments shall be prepared in two stages and may be supplemented.
(a) Draft environmental impact statements shall be prepared in
accordance with the scope decided upon in the scoping process. The
lead agency shall work with the cooperating agencies and shall obtain
comments as required in Part 1503. At the time the draft statement is
prepared it must fulfill and satisfy to the fullest extent possible the
requirements established for final statements in section 102(2)(C) of
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 t:he Act. I i a (Iraf1, _ tatement is so inadequate as t 3reclude meaning-
1 .Apnrpygp,F4r, eAPOR .Q? 1 1}p, -LR - t7 MRDO Oc1d d7 draft of
lb(- ;I)prupriato portion. In the draft statement the agency shall make
cv.ery rffort to disclose and discuss at appropriate- points in the text
all major points of view on the environmental impacts of the alternatives
including.the proposed action..
(b) Final environmental impact statements shall respond to comments
as required in Part 1503. In. the final statement the agency shall
discuss at appropriate points in the text. the existence of any respon-
sible opposing view not adequately discussed in the draft statement and
shall indicate the agency's response to the issues raised.
(c) Agencies:
(l) Shall prepare supplements to either draft or final
environmental. impact statements if:
.(i). The agency makes substantial changes in the
proposed action that are relevant to environmental
concerns; or
(iii). There: are significant new circumstances, relevant
to>environmental concerns (including information),
bearing: on the proposed action or. its impacts.
(2) May also prepare supplements when the agency determines
that the. purposes of the Act will be furthered by doing so.
(3). Shall adopt procedures for introducing a supplement into
its formal administrative record, if such a record exists..
(4,) Shall prepare, circulate, and file a supplement to
astatement in the same fashion (exclusive of scoping)
as-a. draft statement unless alternative procedures are
approved by the Council.
Sec. 1502.10 Recommended Format
Agencies-shall.use a. format for environmental impact statements
which will encourage good analysis and clear presentation of the
alternatives including the proposed actions. The following standard
format for environmental impact statements should be followed unless
ther.e is a compelling reason to do otherwise:
(.a) Cover: sheet
(b) Summary
(c) Table of Contents
(d) Purpose of and Need for Action
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(e) Alternatives Including Proposed Action (secs. t02(2)(G)(iii)
and 102(2)(E) of the Act)
(f) Environmental Consequences (especially secs. 102(2)(C)(i),
(ii), (iv), and (v) of the Act)
(g) Affected Environment
?(h) List of Preparers
(i). List of Agencies, Organizations, and Persons to Whom
Copies of the Statement Are Sent
(j) Index
(k) Appendices (if any)
If a different format is used, it shall include subsections (a),
(b), (c), (h), (i) and (j) and shall include the substance of sub-
sections (d), (e), (f), (g), and (k) as further described in sections
1502.11-1502.18 in any appropriate format.
Sec. 1502.11 Cover Sheet
The cover sheet shall not exceed one page. It shall include:
(a) The name of the responsible agencies including the lead
agency and any cooperating agencies.
(b) The name of the proposed action that is the subject of
the statement (and if.appropriate the names of related
cooperating agency actions), together with the State(s)
and county(ies) (or the country if applicable) where
the action is located.
(c) The name, address, and telephone number of the person at
the agency who can supply further information.
(d) A designation of the statement as a draft, final, or draft
or final supplement.
(e) A one paragraph abstract of the statement.
(f) The date by which comments must be received (computed in
cooperation with EPA (sec. 1506.10)).
Sec. 1502.12 Summary
Each environmental impact statement shall contain a summary which
adequately and accurately summarize.s the statement. The summary shall
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stres tie major conclusions, areas or controversy (inc uding issues
raised by agencies and the public), and the issues to be resolved
(including the choice among alternatives). The summary will normally
not exceed 15 pages.
Sec. 1502.13 Purpose and Need
The statement shall briefly specify the underlying purpose and need
to which the agency is responding in proposing the action and alterna-
tives. Normally this section shall not exceed one page.
Sec. 1502.14 Alternatives Including the Proposed Action
This section is the heart of the environmental impact statement.
Based on the information and analysis presented in the sections on the
Environmental Consequences (sec. 1502.15) and the Affected Environment
(sec. 1502.16), it should present the environmental impacts of the
proposal and the alternatives in comparative form, thus sharpening the
issues and providing a clear basis for choice among options by the
decisio'nmaker and the public. In this section agencies shall:
(a)
Rigorously explore and objectively evaluate all
reasonable alternatives, and for alternatives which
were eliminated from detailed study, briefly discuss
the reasons for such elimination.
(b) Devote substantial treatment to each alternative
considered in detail including the proposed action
so that reviewers may evaluate the comparative merits.
(c) Include reasonable alternatives not within the
jurisdiction of the lead agency.
(d) Include the no action alternative.
(e) Identify the environmentally preferable alternative (or
alternatives if two or more are equally preferable) and
the reasons for identifying it. If the alternative
identified is for no action, the agency shall also identify
the alternative other than no action that is environmentally
preferable and the reasons for identifying it.
(f) Identify the agency's preferred alternative or alternatives
if one or more exists in the draft statement and identify
such alternative(s) in the final statement unless another
law prohibits the expression of such a preference.
(g) Include appropriate mitigation measures not already included
in the proposed action or alternatives.
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Sec. 1502.15 Environmental Consequences
This section forms the scientific and analytic basis for the
comparisons under sec. 1502.14. It shall consolidate the discussions
of those elements required by secs. 102(2)(C)(i), (ii), (iv), and (v)
of NEPA which are within the scope of the statement and as much of
sec. 102(2)(C)(iii) as is necessary to support the comparisons. This
includes the environmental impacts of the proposed action and alterna-
tives, any adverse environmental effects which cannot be avoided should
the proposal be implemented, the relationship between short-term uses of
man's environment and the maintenance and enhancement of long-term
productivity, and any irreversible or irretrievable commitments of
resources which would be involved in the proposed action should it be
implemented. The Council intends that preparers not cause duplication
in the discussions under section 1502.14 and this section. This section
shall include discussions of:
(a) Direct effects and their significance (sec. 1508.8).
(b) Indirect effects and their significance (sec. 1508.8).
(c) Possible conflicts between the proposed action and the objectives
of Federal, regional, State, and local land use plans, policies, and
controls for the area concerned.
(d) The environmental effects of alternatives including the
proposed action. The comparisons under sec. 1502.14 will be based
on this discussion.
(e) Energy requirements and conservation potential of various
alternatives and mitigation measures.
(f) Natural or depletable resource requirements and conservation
potential of various alternatives and mitigation measures.
(g) Means to mitigate adverse environmental impacts (if not
fully covered under sec. 1502.14(g)).
Sec. 1502.16 Affected Environment
The environmental impact statement shall succinctly describe the
environment of the area or areas to be affected by the alternatives
under consideration. The descriptions shall be no longer than is necessary
to understand the effects of the alternatives. Data and analyses in a
statement shall be commensurate with the importance.of the impact, with
less important material summarized, consolidated, or simply referenced.
Agencies shall avoid useless bulk in statements and shall concentrate
effort and attention on important issues. Verbose descriptions of the
affected environment are themselves no measure of the adequacy of an
environmental impact statement.
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The environmental impact statement shall list the names, together
with their qualifications and professional disciplines (sections 1502.6
and 1502.8), of the persons who were primarily responsible for preparing
the environmental impact statement or significant background papers,
including basic components of the statement. Where possible the names
of persons who are responsible for a particular analysis, including
analyses in background papers, shall be identified. Normally the list
will not exceed two pages.
Sec. 1502.18 Appendix
If an agency prepares an appendix to an environmental impact state-
ment the appendix shall:
(a) Consist. of material prepared in connection with an environ-
mental impact statement (as distinct from material which is not so
prepared and which is incorporated by reference (sec. 1502.21)).
(b) Normally consist of material which substantiates any analysis
fundamental to the impact statement.
(c) Normally be analytic and relevant to the decision to be made.
(d) Be circulated with the environmental impact statement or be
readily available on request.
Sec. 1502.19 Circulation of the Environmental Impact Statement
Agencies shall circulate the entire draft and final environmental
impact statements except as provided in section 1502.18(d) and 1503.4(c).
However,.if the statement is unusually long, the agency may circulate
the summary instead, except that the entire statement shall be furnished
to:
(a) Any Federal agency which has jurisdiction by law or special
expertise with respect to any environmental impact involved and any
appropriate Federal, State or local agency authorized to develop and
enforce environmental standards.
(b) Any person, organization, or agency requesting the entire
environmental impact statement.
(c) In the case of a final environmental impact statement any
person, organization, or agency which submitted substantive comments on
the draft.
If the agency circulates the summary and thereafter receives a
timely request for the entire statement, the time for comment for
that requestor only shall be extended by at least 15 days beyond the
minimum period.
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Agencies are encouraged to tier their environmental impact state-
ments to eliminate repetitive discussions of the same issues and to
focus on the actual issues ripe for decision at each level of environ-
mental review (sec. 1508.26). Whenever a broad environmental impact
statement has been prepared (such as a program or policy statement) and
a subsequent statement or environmental assessment is then prepared on
an action included within the entire program or policy (such-as a'site
specific action) the subsequent statement or environmental assessment
need only summarize the issues discussed in the broader statement and
incorporate such discussions by reference and shall concentrate on the
issues specific to the subsequent action. Tiering may also be appropriate
for different stages of actions. (1508.26(b)).
Sec. 1502.21 Incorporation by Reference
Agencies shall incorporate material into an environmental impact
statement by reference when to do so will cut down on bulk without
impeding agency and public review of the action.. The incorporated
material shall be cited in the statement and its content briefly
described. No material may be incorporated by reference unless it
is reasonably available for inspection by potentially interested persons
within the time allowed for comment. Material based on proprietary
data which is itself not available for review and comment shall not be
incorporated by reference.
Sec. 1502.22 Incomplete or Unavailable Information
Agencies dealing with gaps in relevant information, including
scientific uncertainty, shall always make clear that such information is
lacking or that uncertainty exists.
(a) If the information is essential to a reasoned choice among
alternatives and is not known and.the costs of obtaining it are not
exorbitant, the agency shall include the information in the environ-
mental impact statement.
(b) If the information is important to the decision and the means
to obtain it are not known (e.g.., the means for obtaining it are beyond
the state of the art) the agency shall weigh the need for the action
against the risk and severity of possible adverse-impacts were the
action to proceed in the face of uncertainty. If the agency proceeds,
it shall include a worst case analysis.
Sec. 1502.23 Cost-Benefit Analysis
If a cost-benefit analysis is being considered for the proposed
action, it shall be incorporated by reference or appended to the
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statement as an aid-in evaluating the environmental consequences. To
assess the adequacy of compliance with sec. 102(2)(B) of the Act the
statement shall when a cost-benefit analysis is prepared discuss the
relationship between that analysis and any analyses of unquantified
environmental impacts, values, and amenities.
Sec. 1502.24 Methodology and Scientific Accuracy
Agencies shall insure the professional, including scientific,
integrity of the discussions and analyses in environmental impact
statements. They shall identify any methodologies used and shall make
explicit reference by footnote to the scientific and other sources
relied upon for conclusions in the statement.
Sec. 1502.25 Environmental Review and Consultation Requirements
To the fullest extent possible, agencies shall prepare draft
environmental impact. statements concurrently with and integrated with
environmental impact analyses and related surveys and studies. required
by the Fish and Wildlife Coordination Act (16 U.S.C. Sec. 661 et se q.)
the National Historic Preservation Act of 1966 (16 U.S.C. Sec. 470 et
seg.), the Endangered Species Act of 1972.(16 U.S.C. Sec. 1531 et sue.)
and other environmental review laws.
Part 1503. Commenting
Sec. 1503.1 Inviting Comments
(a) After preparing a draft environmental impact statement and
before preparing a final environmental impact statement the agency
shall:
(1) Obtain the comments of any Federal agency which-has
jurisdiction by law or special expertise with respect
to any environmental impact involved or which is
authorized to develop and enforce environmental standards.
(2) Request the comments of appropriate State and local
-agencies which are authorized to develop and enforce
environmental standards, or any agency which has
requested that it receive statements on actions of
the kind proposed.
(3) Request comments from the public, affirmatively
soliciting comments from those persons or organizations
who may be interested or affected.
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. (h) After preparing a final environmental impact statement an
agency may request comments on it before the decision is finally made.
In any case other agencies or persons may make comments before the final
decision unless a different time is provided under sec. 1506.10.
Sec. 1503.2 Duty to Comment -
Federal agencies with jurisdiction by law or special expertise with
respect to any environmental impact involved or which are authorized to
develop and enforce environmental standards shall comment on statements
within their jurisdiction, expertise, or authority. A. Federal agency
may (and a cooperating agency that is satisfied that its views are
adequately reflected in the environmental impact statement would) reply
that it has no comment.
Sec. 1503.3 Specificity of Comments
Comments on an environmental impact statement or on a proposed
action shall be an specific as possible and may address either the
adequacy of the statement or the merits of the alternatives discussed
or both. When a commenting agency criticizes a lead agency's pre-
dictive methodology, the commenting agency should describe the
alternative methodology which it. prefers and why.
Sec. 1503.4 Response to Comments
(a) An agency preparing a final environmental impact statement
shall assess and consider comments both individually and collectively,
and shall respond by one or more of the means listed below specifying
its response in the final statement. Possible responses. are to:
(1) Modify the proposed action.
(2) Develop and evaluate alternatives not previously given
serious consideration by the agency.
(3) Supplement,. improve, or modify. its analyses.
(4) Make factual corrections.
(5) Explain why the comments do not warrant further agency
response, citing the sources, authorities, or reasons which
support the agency's position and, if appropriate, indicate
those circumstances which would trigger agency reappraisal
or further response. .
(b) All substantive comments received on the draft statement (or
summaries thereof where the response has been exceptionally voluminous),
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should be attached to the final statement whether or not the comment is
thought to merit individual discussion by the agency in the text of the
statement.
(c) If changes are minor and are confined to the responses described
in subsections (a)(4) and (5), agencies may write them on errata sheets
and attach them to the statement instead of rewriting the draft statement.
In such cases only the comments, the responses, and the changes and not
the final statement need be circulated (sec. 1502.19). The entire
document with a new cover sheet shall be filed as the final statement
(sec. 1506.9).
Part 1504. Predecision Referrals
to the Council of Proposed Federal Actions
Found to be Environmentally Unsatisfactory
Sec. 1504.1 Purpose
This part establishes procedures for referring to the Council
Federal interagency disagreements concerning proposed major Federal
actions that might cause unsatisfactory environmental effects. It
provides means for early resolution of such disagreements.
Under Section 309 of the Clean Air Act (42 U.S.C. 7609), the
Administrator of the Environmental Protection Agency is directed to
review and comment publicly on the environmental impacts of Federal
activities, including actions for which environmental impact statements
are prepared. If after this review the Administrator determines that
the matter is "unsatisfactory from the standpoint of public health or
welfare or environmental quality", Section 309 directs that the matter
be referred to the Council (hereafter "environmental referrals").
Under Sec. 102(2)(C) of the Act other federal agencies may make
similar reviews of environmental impact statements, including judgments
on the acceptability of anticipated environmental impacts. These
reviews must be made available to the President, the Council and the
public.
Sec. 1504.2 Criteria for Referral
Environmental referrals. should only be made to the Council after
concerted, timely (as early as possible in the process), but unsuccessful
attempts to resolve differences with the lead agency. In determining
what envrronmental objections to the matter are appropriate to refer to
the Council, an agency should weigh potential adverse environmental
impacts, considering:,
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(a) Possible violation of national environmental standards or
policies.
(b) Severity.
(c) Geographical scope.
(d) Duration.
(e) Importance as precedents.
(f)
Availability of environmentally preferable alternatives.
Sec. 1504.3 Procedure for Referrals and Response
(a) A Federal agency making a referral to the Council shall:
(1) Advise the lead agency at the earliest possible time
that it intends to refer a matter to the Council
unless a satisfactory agreement is reached.
(2) Include such advice in the referring agency's comments
on the draft environmental impact statement, except
when the statement does not contain adequate infor-
mation to permit an assessment of the, matter's
environmental acceptability.
.(3) Identify any essential information that is lacking
and request that it be made available at the earliest
possible time.
(4) Send copies of such advice to the Council.
(b) The referring agency shall deliver its referral to the Council
not later than twenty-five (25) days after the final environmental
impact statement has been made available to the Environmental Protection
Agency, commenting agencies, and the public. Except when an extension
of this period has been granted by the lead agency, the Council will not
accept a referral after that date.
A copy of the letter signed by the head of the referring
agency and delivered to the lead agency informing the
lead agency of the referral and the reasons for it, and
requesting that no action betaken to implement the matter
until the Council acts upon the referral. The letter
shall include a copy of the statement referred to in
sec. 1504.3(c)(2) below.
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(2) A statement supported by factual evidence leading to
the conclusion that the matter is unsatisfactory from
the standpoint of public health or welfare or environ-
mental quality. The statement shall:
(i) -identify any material facts in controversy and
incorporate (by reference if appropriate) agreed
upon facts,
(ii) identify any existing environmental requirements
or policies which would be violated by the matter,
(iii) present the reasons the referring agency believes
the matter is environmentally unsatisfactory,
(iv) contain a finding by the agency whether the-issue
raised is one of national importance because of
the threat to national environmental-resources or
policies or for some other reason,
(v) `review the steps taken by the referring agency to
.bring its concerns to the attention of the lead
-agency at the earliest possible time, and
(vi) give the referring agency's recommendations as to
what mitigation alternatives, further study, or
=Other course of action (including abandonment of
the matter) are necessary to remedy the situation.
(d) Not later'than twenty-five (25) days after the referral to the
Council, the lead agency may deliver a response to the Council and the
referring agency. If the lead agency requests more time and gives
assurance that the matter will not go forward in the interim, the Council
may grant an extension. The response shall:
(1) Address fully the issues raised in the referral.
(2) Be supported by evidence.
(3) Give the lead agency's response to the referring
agency's recommendations.
(e) 'Not later than twenty-five (25) days after receipt of both
the referral and any response or upon being informed that there will
be no response (unless the lead agency agrees to a longer time), the
Council may take one or more of the following actions:
(1) Conclude that the process of referral and-response has
,successfully resolved the--problem.
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(2) Initiate discussions with the agencies with the objective
of mediation with referring and lead agencies.
(3) Hold public meetings or hearings to obtain additional
views and information.
(4) Determine that the issue is not one of national importance
and request the referring and lead agencies to pursue
their decision process.
(5)
Determine that the issue should be further negotiated
by the referring and lead agencies and is not appropriate
for Council consideration until one or more heads of
agencies report to the Council that the agencies' dis-
agreements are irreconcilable.
(6) Publish its findings and recommendations (including
where appropriate a finding that the submitted evidence
does not support the position of an agency).
(7) When appropriate, submit the referral and the response
together with the Council's recommendation to the
President for action.
Part 1505. NEPA and Agency Decisionmaking
Sec. 1505.1 Agency Decisionmaking Procedures
Agencies shall adopt procedures (sec. 1507.3) to ensure that
decisions are made in accordance with the policies and purposes of the
Act. Such procedures shall include but not be limited to:
(a) Implementing procedures under Sec. 102(2) to achieve the
requirements of Secs. 101 and 102(1).
(b) Designating the major decision points for the agency's principal
programs likely to have a significant effect on the human environment
and assuring that the NEPA process corresponds with them.
(c) Requiring that relevant environmental documents, comments,
and responses be part of the record in formal rulemaking or adjudicatory
proceedings.
(d) Requiring that relevant environmental documents, comments, and
responses accompany the proposal through existing agency review process
so that agency officials use the statement in making decisions.
(e) Requiring that the alternatives considered by the decision
maker are encompassed by the range of alternatives discussed in the
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relevant environmental documents and that the decisionmaker consider the
alternatives described in the environmental impact statement. If
another decision document accompanies the relevant environmental docu-
ments to the decisionmaker, agencies are encouraged to make available to
the public before the decision is made any part of that document that
relates to the comparison of alternatives.
Sec. 1505.2 Record of Decision In Those Cases Requiring Environmental
Impact Statements
At the same time of its decision (or, if appropriate, its recom-
terd tion to Congress) each agency shall prepare a concise public record
ision. The record, which may be integrated into any other record
fgfdde ^
prepared by the agency, including that required by 0MB Circular A-95,
Part I, sec. 6(c) and (d), and Part II, sec. 5(b)(4), shall state:
(a) What the decision was.
(b) If an alternative other than those designated pursuant to sec.
1502.14(e) has been selected, the reasons why other specific consider-
ations of national policy overrode those alternatives.
(c) Whether all practicable means to avoid or minimize environ-
mental harm have been adopted, and if not, why they were not. For any
mitigation adopted, a monitoring and enforcement program where applicable
shall be adopted and summarized.
Sec. 1505.3 Implementing the Decision
Agencies may provide for monitoring to assure that their decisions
are carried out and should do so in important cases. Mitigation (sec.
1505.2(c)) and other conditions established in or during the review of
the environmental impact statement and committed as part of the decision
shall be implemented by the appropriate agency. The lead agency shall:
(a) Include appropriate conditions'in grants, permits, or other
approvals.
(b) Condition funding of actions on mitigation.
(c) Upon request, inform cooperating or commenting agencies on
progress in carrying out mitigation measures proposed by any such agency
and adopted by the agency making the decision. .
(d) Upon request, make available to the public the results of
relevant monitoring.
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Part 1506. Other Requirements of NEPA
Sec. 1506.1 Limitations on Actions During NEPA Process
(a) Until an agency issues a record of decision as provided in
Sec 1505.2 (except as provided in subsection (c)), no action concerning
the proposal shall be taken which would:
(1) have an adverse environmental impact; or
(2) limit the choice of reasonable alternatives.
(b) If any agency is considering an application from a nonfederal
entity, and is aware that the applicant is planning to take an action
within the agency's jurisdiction that would meet either of the criteria
in section 1506.1(a), then the agency shall promptly notify the applicant
that the agency will take appropriate action to insure that the objectives
and procedures of NEPA are achieved.
(c) While work on a required program environmental impact state-
ment is in progress and the action is not covered by an existing
program statement, agencies shall not undertake in the interim any
major Federal action which may significantly affect the quality of the
human environment and which is covered by the program unless such
action:
(1) Is justified independently of the program; and
(2). Will not prejudice the ultimate decision on the program.
Interim action prejudices the ultimate decision on the
program when it tends to determine subsequent develop-
ment or limit alternatives; and
(3) Is itself accompanied by an-adequate environmental impact
statement.
Sec. 1506.2 Elimination of Duplication with State and Local Procedures
(a) Agencies authorized by law to cooperate with State agencies of
statewide jurisdiction pursuant to section 102(2)(D) of the Act may do
so.
(b) Agencies shall cooperate with State and local agencies to the
fullest extent possible to reduce duplication in NEPA and comparable
State and local requirements, unless they are specifically barred from
doing so by some other law. Except where an agency is proceeding in the
manner specified by subsection (a), such cooperation shall to the fullest
extent possible include:
(1) Joint planning processes.
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(2) Joint environmental research and studies.
(3) Joint public hearings (except where otherwise provided
by statute).
(4) Joint environmental assessments and joint environmental
impact statements. in such cases one or more Federal
agencies and one or more State or local agencies shall
be joint lead agencies. Where State laws or local
ordinances have environmental impact statement require-.
ments in addition to but not in conflict with those in
NEPA, Federal agencies shall cooperate in fulfilling
the requirements of those as well as Federal laws so
that one document will comply with all applicable laws.
(c) To better integrate environmental impact statements into state
or local planning processes, statements shall discuss any inconsistency
of a proposed action with any approved State or local plan and laws
(whether or not federally sanctioned).
Sec. 1506.3 Adoption
(a) An agency may adopt a Federal draft or final environmental
impact statement or portion thereof provided that the agency treats the
statement as a draft and recirculates it (except as provided below in
subsec. (b)) and provided that the statement or portions thereof meets
the standards for an adequate draft statement under these regulations.
. (b) A cooperating agency may adopt without recirculating the
environmental impact statement of a lead agency when, after an indepen-
dent review of the statement, the cooperating agency concludes that its
comments and suggestions have been satisfied.
(c) When an agency adopts a statement which is not final within
the agency that prepared it, or when the action it assesses is the
subject of a referral under Part 1504, or when the statement's adequacy
is the subject of a judicial action which is not final, the agency
shall so specify.
Sec. 1506.4 Combining Documents
Any environmental document in compliance with NEPA may be combined
with any other agency document to reduce duplication and paperwork.
Sec. 1506.5 Agency Responsibility
(a) If an agency relies on an applicant to submit initial
environmental information, the agency should assist the applicant
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by outlining the types of information required. In all cases, the
agency should make its own evaluation of the environmental issues and
take responsibility for the scope and content of environmental assess-
ments.
(b) Except as provided in sections 1506.2 and 1506.3 any environ-
mental impact statement prepared pursuant to the requirements of NEPA
shall be prepared directly by or under contract to the lead agency or
where appropriate under sec. 1501.6(b), a cooperating agency. In the
case of such contract it is the intent of these regulations that the
contractor be chosen solely by the lead agency or by the lead agency in
cooperation with cooperating agencies or where appropriate by a cooper-
ating agency to avoid any conflict of interest. Contractors shall
execute a disclosure statement prepared by the lead agency or where
appropriate the cooperating agency specifying that they have no financial
or other interest in the outcome of the project. If the document is
prepared by contract, the responsible Federal official shall furnish
guidance and participate in the preparation and shall independently
evaluate the statement prior to its approval. Nothing in this section
is intended to prohibit any agency from requesting any person to submit
information to it or any person from submitting information to any
agency.
Sec. 1506.6 Public Involvement
Agencies shall: ?_.
(a) Make diligent effort to involve the public in preparing and
implementing their NEPA procedures.
(b) Provide public notice of NEPA-related hearings, meetings, and
the availability of environmental documents by means calculated to
inform those persons-and agencies who may be interested or affected.
(1) In all cases the agency shall mail notice to those who
have requested it on an individual action.
(2) In.the case of an action with effects of national
concern such notice shall include publication in the
Federal Register and notice by mail to national
organizations with interest in the matter and may
include listing in the 102 Monitor.
(3) In the case of an action with effects primarily of
local concern the notice may include:
(1) Notice to State and local agencies pursuant to
0MB Circular A-95.
(ii) Following the affected State's public notice
procedures for comparable actions.
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(i.i) Publication in local newspapers (in papers of
general circulation rather than legal papers).
(iv) Notice through other local media.
-,(v) Notice to potentially interested community
organizations including small,business
:associations.
(vi) Publication in newsletters that may beexpected
to reach potentially interested persons.
(vii,) Direct mailing to owners and.occupants ofnearby
or affected property.
(viii)Posting of notice on and off site in the area
where the action is to be located.
(c) Hold or sponsor public hearings or public meetings whenever
appropriate. Criteria shall include whether there is:
(1) Substantial environmental controversy concerning the
proposed action or substantial interest in holding
the hearing.
;(2) A request for a hearing by another agency with
jurisdiction over the action supported by reasons
why a hearing will be helpful.
(d) Solicit appropriate information from the public.
(e) Explain in its procedures where interested persons can get
information or status reports on environmental impact statements and
other elements of the NEPA process
(f) Make environmental impact statements, the comments received,
and any underlying documents available to the public pursuant to the
provisions of the Freedom of Information Act (5 U.S.C. 552), without
regard to the exclusion of infra- or interagency memoranda where such
memoranda transmit comments of Federal agencies on the environmental
impact of the proposed action.
Sec.. 1506.7 Further Guidance
The Council may provide further guidance concerning NEPA and its
procedures including:
(a) A handbook which the Council may supplement from time
to time which shall in plain language provide guidance
and instructions concerning the application of NEPA
and these regulations.
(b) Publication of the Council's Memoranda to Heads of
Agencies.
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(c) In conjunction with the Environmei.tal Protection
Agency and the publication of the 102 Monitor,
notice of:
(i) research activities;
(ii) meetings and conferences related to NEPA; and
(iii) successful and innovative procedures used by
agencies to implement NEPA.
Sec. 1506.8 Proposals for Legislation
The NEPA process for proposals for legislation (section l508.16)
significantly affecting the quality of the human environment shall be
integrated with the legislative process of the Congress. A legislative
environmental impact statement is the detailed statement required by law
which shall accompany proposed legislation to the Congress. Prepara-
ation of a legislative environmental impact statement shall include
consultation with appropriate agencies (which may be pursuant to 0MB
Circular A-19) and conform with the requirements of these regulations
.except as follows:
(a) There need not be a scoping process.
(b) The legislative statement shall otherwise be treated in
the same manner as a draft statement except as further
specified. There need not be a final environmental
impact statement, provided that when any of the follow-
ing conditions exist both the draft and final environmental
impact statement on the legislative proposal shall be
prepared and circulated as provided by sections 1503.1
and 1506.10.
(1) A Congressional Committee with jurisdiction over the
proposal has a rule requiring both draft and final
environmental impact statements.
(2) The proposal results from a study process required by
statute (such as those required by the Wild and Scenic
Rivers Act (16 U.S.C. 1271 et seq.) and the Wilderness
Act (16 U.S.C. et seq.)).
(3) Legislative approval is sought for federal or federally
assisted construction or other projects which the agency
recommends be located at specific geographic locations.
For proposals requiring an environmental impact state-
ment for the acquisition of space by the General
Services Administration, a draft statement shall
accompany the Prospectus or the 11(b) Report of Building
or the 11(b) Report of Building Project Surveys to the
Congress, and a final statement shall be completed
before site acquisition.
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(4) The agency decides to prepare draft and final statements.
(c) Comments on the legislative statement shall be given to the
lead agency which shall forward them along with its own
responses to the Congressional committees with jurisdiciton.
(d) The Environmental Protection Agency may reduce the period for
review required by section 1506.10 to insure that comments and
responses are received by the appropriate Congressional committee
prior to hearings on the proposal.
Sec. 1506.9 Filing Requirements
Environmental impact statements together with comments and responses
all be filed with the Environmental Protection Agency, attention
fice of Federal Activities (A-104), 401 M Street S W Washin t
an L. ey
are also transmitted to commenting agencies and the public. EPA shall
deliver one copy of each statement to the Council, which shall satisfy
the requirement of availability to the President.
g -LL
.C. 20460. Statements shall be filed with EPA no earlier th I-
Sec. 1506.10 Timing of Agency Action
(a) No decision on the proposed action shall be made or recorded
under sec. 1505.2 by a Federal agency until the later of the following
dates:
(1) Ninety (90) days after publication of the notice
described in subsec. (d) for a draft environmental
impact statement.
(2) Thirty (30) days after publication of the notice
described in subset. (d) for a final environmental
impact statement.
Provided that when an agency has formally established an internal appeal
process, through which agencies or the public may take appeals and make
their views known after preparation of the final environmental impact
statement, and which provides a real opportunity to alter the decision,
an administratively reviewable decision in the proprosed action may be
made after publication of the notice described in-subsec. (d) for a
final environmental impact statement. This means that the period for
appeal and the period prescribed by subset. (a)(2) may run concurrently.
In such a case the environmental impact statement shall explain the
timing and the public's right of appeal.
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Provided further that when an agency's primary purpose is the
protection of public health and safety,the agency may, with the approval
of the Council, adopt procedures under sec. 1507.3 providing for a
finding to be published in the Federal Register that it is necessary to
waive the time requirement specified in sec. (a)(2) to preserve public
health and safety.
Provided further that when an agency's primary purpose is the
protection of public health and safety and when that agency publishes
proposed rules in the Federal Register for a period of public review
prescribed by a statute the agency administers, that time period
and the period prescribed under subsec. (a)(2) may run concurrently.
(b) If the final environmental impact statement is filed within
ninety (90) days after a draft environmental impact statement is filed
with the Environmental Protection Agency, the minimum thirty (30) day
period and the minimum ninety (90) day period may run concurrently.
(c) Subject to subsec. (e) agencies shall allow not less th;ir.
45 days for comments on draft statements.
(d) The Environmental Protection Agency shall publish a notice in
the Federal Register each week'of the environmental impact statements
filed with the Environmental Protection Agency the preceding week. The
date of publication of this notice shall be the date from which the
minimum time periods of this section shall be calculated.
(e) The lead agency may extend prescribed periods. The Environ-
mental Protection Agency may upon a showing by the lead agency of
compelling reasons of national policy reduce the prescribed periods and
may upon a showing by any other Federal agency of compelling reasons of
national policy also extend prescribed periods, but only after con-
sultation with the lead agency. (Also see sec. 1507.3(d).) If the lead
agency does not concur, the matter shall be referred to CEQ for resolution.
When the Environmental Protection Agency reduces or extends any period
of time it shall notify the Council.
Sec. 1506.11 Emergencies
Where emergency circumstances make it necessary to take an action
with significant environmental impact without observing the provisions
of these regulations, the Federal agency proposing 'to-take the action
should consult with the Council about alternative arrangements. Agencies
and the Council will limit such waivers to actions necessary to control
the immediate impacts of the emergency. Other actions remain subject to
NEPA review.
Sec. 1506.12 Effective Date
The effective date of these regulations is eight months after their
final publication in the Federal Register.
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(a) These regulations shall apply to the fullest extent practicable
to ongoing activies and environmental documents begun before the effective
date. These regulations do not apply to an environmental impact statement
if the draft statemetn was filed before the effective date of these
regulations. No completed environmental documents need be redone by
reason of these regulations. Until these regulations are applicable,
the Council's guidelines published in the Federal Register of August 1,
1973, shall continue to be applicable. In cases where these regulations
are applicable the guidelines are superseded. However, nothing shall
prevent an agency from proceeding under these regulations at an earlier
time.
(b) NEPA shall continue to be applicable to actions begun before
January 1, 1970, to the fullest extent possible.
Part 1507. Agency Compliance
Sec'. 1507.1 Compliance
All-ageri-ces of the Federal Government shall comply with these
regulations. It is the intent of these regulations to allow each agency
flexibility in adapting its implementing procedures authorized by
section 1507.3 to the requirements of other appl:i.r.abl_e laws.
Sec. 1507.2 Agency Capability to Comply
Each agency shall be capable (in terms of personnel and other
resources)of" complying with the requirements enumerated below. Such
compliance may include use of other's resources, but the using agency
shall itself have sufficient capability, at minimum, to evaluate what
others do for it. Agencies shall:
(a) Fulfill the requirements of Sec. 102(2)(A) of the Act to
utilize a systematic, interdisciplinary approach which will insure the
'integrated use of the natural and social sciences and the environmental
design arts in planning and in decisionmaking which may have an impact
on the-human environment. Agencies shall designate a person to be
responsible for overall review of agency NEPA compliance.
(b) Identify methods and procedures required by Sec. 102(2)(B) to
insure that presently unquantified environmental amenities and values
may be given appropriate consideration.
(c) Prepare adequate environmental impact statements pursuant to
Sec. 102(2)(C) and comment on statements in the areas where the agency
has ju.risdiciton by law or special expertise or is authorized to develop
and enforce environmental standards.
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(d) Study, develop, and describe alternatives to recommended
courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources. This requirement of
Sec. 102(2)(E) extends to all such proposals, not just the more limited
scope of Sec. 102(2)(C)(iii) where the discussion of alternatives is
confined to impact statements.
(e) Comply with the requirements of Sec. 102(2)(H) that the agency
initiate and utilize ecological information in the planning and development
of resource-oriented projects.
(f) Fulfill the requirements of sections 102(2)(F), 102(2)(c), and
102(2)(I), of the Act and of Executive Order 11514, Protection and
Enhancement of Environmental Quality, Sec. 2.
Sec. 1507.3 Agency Procedures
(a) Not later than eight months after publication of these regu-
lations as finally adopted in the Federal Register, or five months after
the establishment of an agency, whichever shall come later, each agency
shall as necessary adopt procedures to supplement these regulations.
When the agency is a department major subunits are encouraged (with the
consent of the department) to adopt their own procedures. Such procedures
shall not paraphrase these regulations. They shall confine themselves
to,implementing procedures. Each agency shall consult with the Council
while developing its procedures and before spublishing them in the
Federal Register-for comment. The procedures shall be adopted only
after an opportunity for public review and after review by the Council
for conformity with the Act and these regulations. The Council shall
complete its review within 30 days. Once in effect they shall be filed
with the Council and made readily available to the public. Agencies are
encouraged to publish explanatory guidance for these regulations and
their own procedures. Agencies shall continue to review their policies
and procedures and to revise them as necessary to ensure full compliance
with the purposes and provisions of the Act.
(b) Agency procedures shall comply with these regulations except
where compliance would be inconsistent with statutory requirements and
shall include:
(1) Those procedures required by Sections 1501.2(d) 1502.9(c)(3),
1503.1(c), 1505.1, 1506.6(e), and 1508.4.
(2) Specific criteria for and identification of those typical
classes of action:
(i) Which normally do require environmental impact
statements.
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(ii) Which normally do not require either an environ-
mental impact statement or an environmental
assessment (categorical exclusions (section 1508.4)).
(iii) Which normally require environmental assessments.
but not necessarily environmental. impact statements.
(c) Agency procedures. may include specific criteria for providing
limited exceptions to the provisions of these regulations for proposed
actions that are specifically authorized under criteria established by
an Executive Order or statute to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified
pursuant to such Executive Order or statute. Environmental assessments
and environmental impact statements which address classified proposals
may be safeguarded and restricted from public dissemination in accordance
with agencies' own regulations applicable to classified information. These
documents may be organized so that classified protions can be included
as annexes, in order that the unclassified portions can be made available
to the public.
(d) Agency procedures may provide for periods of time other than
those presented in sec. 1506.10 when necessary to comply with other
specific statutory requirements.
Part 1508. Terminology and Index
Sec. 1508.1 Terminology
The terminology of this part shall be uniform throughout the
Federal Government.
"Act" means the National Environmental Policy Act, as amended (42
U.S.C. 4321, et seq.) which is also referred to as."NEPA."
Sec. 1508.3. Affecting
"Affecting" means will or may have an effect on.
Sec. 1508..4 Categorical Exclusion
"Categorical Exclusion" means a category of actions which do not
individually or cumulatively have a significant effect on the human
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enviornment and which have been found to have no such effect in pro-
cedures adopted by a Federal agency in implementation of these regu-
lations (section 1507.3) and for which, therefore, neither an environmental
assessment nor an environmental impact is needed. Any such procedures
shall provide for extraordinary circumstances in which a normally excluded
action may have a significant environmental effect.
Sec. 1508.5 Cooperating Agency
"Cooperating Agency" means any Federal agency other'than a lead
agency which has jurisdiction by law or special expertise with respect
to any environmental impact involved in a proposal (or a reasonable
alternative) for legislation or other major Federal action significantly
affecting the quality of the human environment. The selection and
responsibilities of a cooperating agency are described in sec. 1501.6.
A State or local agency of similar qualifications or, when the effects
are on a reservation, an Indian Tribe may by agreement with the lead
agency become a cooperating agency.
Sec. 1508.6 Council
"Council" means the Council on Environmental Quality established by
Title II of the Act.
Sec. 1508.7 Cumulative Impact
"Cumulative impact" is the impact on the environment which results
from the incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions regardless of what
agency (Federal or non-Federal) or person undertakes such other action's.
Cumulative impacts can result from individually minor but collectively
significant actions taking place over a period of time.
Sec. 1508.8 Effects
"Effects" include:
(a) Direct effects, which are caused by the action and occur
at the same time and place. _
(b) Indirect effects, which are caused by the. action and'are later
in time or farther removed in distance, but are still reasonably fore-
seeable. Indirect effects may include growth inducing effects and other
effects related to induced changes in the pattern of land use, population
density or growth rate, and related effects on air and water and other
natural systems, including ecosystems.
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 n&n
gc%vseS c?r i gp?R ~%05ugj/d12inCCrift9PPRg%~7ak1Wjq%17s~%00 -7mous
Effects includes ecological (such as the effects on natural resources
and on the components, structures, and functioning of affected eco-
systems), economic, social, or health, whether direct, indirect, or
cumulative. Effects may also include those resulting from actions which
may have both beneficial and detrimental effects, even if on balance the
agency believes that the effect will be beneficial..
Sec. 1508.9 Environmental Assessment
"Environmental Assessment"
(a) Means a public document for which a Federal agency
is respeonsible that serves to:
(1) Briefly provide sufficient evidence and analysis for
determining whether to prepare an environmental
impact statement or a finding of no significant impact.
(2) Aid an agency's compliance with the Act when no environ-
mental impact statement is necessary.
(3) Facilitate preparation of such a statement when one is
necessary.
(b) Shall. include brief discussions of the need for the proposal,
of alternatives as required by Sec. 102(2)(E), of the environmental
impacts of the proposed action and alternatives, and a listing of
agencies and persons consulted. Most environmental assessments do
not exceed several pages in length.
Sec. 1508.10 Environmental Document
"Environmental Document" includes the documents specified in secs.
1508.9, 1508.11, 1508.13 and 1508.21.
Sec. 1508.11 Environmental Impact Statement
"Environmental Impact Statement" means a detailed written statement
as required by Sec. 102(2)(C) of the Act.
Sec. 1508.12 Federal Agency
"Federal agency" means all agencies fo the Federal Government. It
does not mean the Congress, the Judiciary, or the President, including
the performance of staff functions for the President in his Executive
Office.
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Sec. 1508.13 Finding of No Significant Impact
"Finding of No Significant Impact" means a document by a Federal
agency briefly presenting the reasons why an action, not otherwise
excluded (section 1508.4), will not have a significant effect on the
human environment and for which an environmental impact statement there-
fore will not be prepared. It shall include the environmental assessment
or a summary of it and shall note any other environmental documents
related to it (section 1501.7(a)(5)).
Sec. 1508.14 Human Environment
"Human Environment" shall be interpreted comprehensively to include
the natural and physical environment and the interaction of people with
that environment. (See the definition of "effects" (sec. 1508.8).)
This means that exclusively economic or social effects are not intended
by themselves to require preparation of an environmental impact state-
ment. When an environmental impact statement is prepared and economic
or social and natural or physical environmental effects are interrelated,.
then the environmental impact statement will discuss all of these
effects on the human environment.
Sec. 1508.15 Lead Agency
"Lead Agency" means the agency or agencies which have prepared or
have taken primary responsibility to prepare the environmental impact
statement..
Sec. 1508.16 Legislation
"Legislation" includes a bill or legislative proposal to Congress
developed by or with the significant cooperation and support of a
Federal agency, but does not include requests for appropriations.*
The test for significant cooperation is whether the proposal is in fact
predominantly that of the agency rather than another source. Drafting
does not by itself constitute significant cooperation. Proposals for
legislation include requests for ratification of treaties. Only the
agency which has primary responsibility for the subject matter involved
will prepare a legislative environmental impact statement.
Sec. 1508.17 Major Federal Action
"Major Federal action" includes actions with effects that may be
major and which are potentially subject to Federal control and respon-
sibility. Major reinforces but does not have a meaning independent of
* The Council in consultation with 0MB had been prepared to propose
this wording and sec. 1508.12 for comment. Thereafter Sierra Club
v. Andrus (D.C. Cir. No. 75-1871',. May 15, 1978) was decided. We
would appreciate comment on the implications of that case for these
provisions.
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significantly (section 1508.25). Actions include the circumstance where
the responsible officials fail to act and that failure to act is reviewable
by courts or administrative tribunals under the Administrative Procedure
Act or other applicable law as agency action. If a Federal program is
delegated or otherwise transferred to State or local government, unless
Congress intended otherwise, the Federal agency shall continue to be
responsible for compliance with the Act and shall insure the preparation
of environmental impact statements if they would be required but for the
delegation or transfer. If the Federal agency may legally require the
State or local agency to follow an environmental impact statement process,
as a condition of the delegation or transfer, it shall-do so. If not,
the Federal agency shall prepare the statements (except as provided in
sec. 1506.5).
(a) Actions include new and continuing activities, including
projects and programs entirely or partly financed, assisted, conducted,
regulated, or approved by federal agencies; new or revised agency rules,
regulations, plans, policies, or procedures; and legislative proposals
(section 1506.8, 1508.16). Actions do not include funding assistance
solely in the form of general revenue sharing funds, distributed under
the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et
seq., with no Federal agency control over the subsequent use of such
funds. Actions do not include bringing civil or criminal enforcement
actions.
(b) Federal actions tend to fall within one of the following
categories:
(1) Adoption of official policy, such as rules, regulations,
and interpretations adopted pursuant to the Administrative
Procedure Act, 5 U.S.G. 551 e't seq.; treaties and inter-
national conventions or agreements; formal documents
establishing an agency's policies which will result in
or substantially alter agency programs.
(2) Adoption of formal plans, such as official documents prepared
or approved by federal agencies which guide or prescribe
alternative uses of federal resources, upon which future
agency actions will be based.
(3)
Adoption of programs, such as a group of concerted actions
to implement a specific policy or plan; systematic and
connected agency decisions allocating agency resources
to implement a specific statutory program or executive
directive.
(4) Approval of specific projects, such as construction or
management activities located in a defined geographic
area. Projects include actions approved by permit or
other regulatory decision as well as federal and federally
assisted activities.
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Sec. 1508.18 Matter
"Matter" includes for purposes of Part 1504:
(a) With respect to the Environmental Protection Agency, any
proposed legislation, project, action or regulation as those terms are
used in Section 309(a) of the Clean Air Act (42 U.S.C. 7609).
(b) With respect to all other agencies, any proposed major federal
action to which Section 102(2)(C) of NEPA applies.
Sec. 1508.19 Mitigation
"Mitigation" includes:
(a) Avoiding the impact altogether by not taking a certain
action or parts of an action.
(b) Minimizing impacts by limiting the degree or magnitude of the
action .and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring
the impacted environment.
(d) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
(e) Compensating for the impact by replacing or providing sub-
stitute resources or environments.
Sec. 1508.20 NEPA Process
"NEPA process" means-all measures necessary for compliance with the
requirements of Section 2 and Title I of NEPA.
Sec. 1508.21 Notice of Intent
"Notice of,Intent" means a notice that an environmental impact
.statement will be prepared and considered. The notice shall briefly:
(a) Describe the proposed action and possible alternatives.
(b) Describe the agency's proposed scoping process including
whether, when, and where any scoping meeting will be held.
(c) State the name and address of a person within the agency
who can answer questions about the proposed action and the environmental
impact statement.
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IWO
Sec. 1508.22 Proposal
"Proposal" refers to that stage in the development of an action
when, an agency subject to the Act has a goal and is actively considering
one or more alternative means of accomplishing that goal and the
effects can be meaningfully evaluated. Preparation of an environmental
impact statement on a proposal should be timed (sec. 1502.5) so that
the. final statement may be completed in time for the statement to be
included in any recommendation or report on the proposal. A proposal
may exist in fact as well as by agency declaration that one exists.
Sec. 1508..23 Referring Agency
"Referring agency" means the federal agency which has referred any
matter to the Council after a determination that the matter is unsatis-
factory from the standpoint of public health or welfare or environmental
quality.
Sec. 1508.2.4 Scope
Scope consists of the range of actions, alternatives, and impacts
to be considered in an environmental impact statement. The scope of
an individual statement may depend on its relationships to other state-
ments (secs. 1502.20 and 1508.26). In scoping environmental impact
statements agencies shall consider 3 types of actions, 3 types of
alternatives, and 3 types of impacts. They include:
(a) Actions.(other than unconnected single actions) which may be:
(1) Connected actions, which means that they are closely related
and therefore should be discussed in the same impact state-
ment. Actions are connected if they:
(i) Automatically trigger other actions which may require
environmental impact statements.
(ii) Cannot or will not proceed unless other actions are
taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend
on the larger action for their justification.
(2) Cumulative actions, which when viewed with other proposed
actions have cumulatively significant impacts and should
therefore be discussed in the same impact statement.
(3) Similar actions, which when viewed with other reasonably
foreseeable or proposed agency actions, have similarities
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that provide a basis for evaluating their environmental
consequences together, such as common timing or geography.
An agency may wish to analyze these actions in the same
impact statement. It should do so when the best way to
assess adequately the combined impacts of similar actions or
reasonable alternatives to such actions is to treat them in
a single impact statement.
(b) Alternatives, which include:
(1)
(2)
(3)
No action alternative.
Other reasonable courses of actions.
Mitigation measures (not in the proposed action).
(c) Impacts, which may be:
(1) Direct.
(2) Indirect.
(3) Cumulative.
Sec. 1508.25 Significantly
"Significantly" as used in NEPA requires considerations of both
context and intensity:
(a) Context. This means that the significance of an action must
be analyzed in several contexts such as society as a whole (global,
national), the affected region, the affected interests, and the locality.
Significant varies with the setting of the proposed action. For instance,
in the case of a site-specific action, significance would usually depend
upon the effects in the locale rather than in the world as a whole. Both
short- and long-term effects are relevant.
(b) Intensity. This refers to the severity of impact. Responsible
officials must bear in mind that more than one agency may make decisions
about partial aspects of a major action. The following should be con-
sidered in evaluating intensity:
(1) Impacts that may be.both beneficial and adverse. A sig-
nificant effect may exist even if the Federal agency believes
that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health
or safety.
(3) Unique characteristics of the geographic area such as proximity
to historic sites, park lands, prime farm lands, wetlands,
wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human
environment are likely to be highly controversial.
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(~) e degree to which the possible effects on the human environment
are highly uncertain or involve unique or unknown risks.
(6') The degree to which the action may establish a precedent for
future actions with significant effects or represents a decision
in principle about a future consideration.
01) Whether the action is related to other actions with indi-
vidually insignificant but cumulatively significant impacts.
Significance exists if it is reasonable to anticipate a cumulatively
significant impact on the environment. Significance cannot be
avoided by terming an action temporary or by breaking it down
into small component parts.
(8) Whether the action may have a significant adverse effect on an
area or site listed in or eligible for listing in the National
Register of Historic Places or may cause loss or destruction
of significant scientific, cultural, or historical resources.
(9) Whether the action may have a significant adverse effect on
the habitat or an endangered or threatened. species that has
.been determined to be critical under the Endangered Species
Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or
local law or requirements imposed for the protection of the
environment.
Sec.. 1508.26 Tiering
"'Tiering" refers to the coverage of general matters in broader
environmental impact statements (such as national program or policy
-statements) with subsequent narrower statements or environmental
analyses (such as regional or basinwide program statements or ultimately
site-specific statements) incorporating by reference the general dis-
cussions and concentrating solely on the issues specific to the statement
.subsequently prepared. Tiering is appropriate when the sequence of
statements or analyses is:
(a) From a program, plan, or policy environmental impact statement
to a program, plan, or policy statement or analysis of lesser scope
or to a site-specific statement or analysis.
(b`) From an environmental impact statement on a specific action at
an early stage (such as need and site selection) to a supplement (which
is preferred) or a subsequent statement or analysis at a later stage
(such as design detail and environmental mitigation). Tiering in such
cases is appropriate when it helps the lead agency to focus on the issues
which are ripe for decision and exclude from consideration issues already
decided or not yet ripe.
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Index
Act
Action
Action-forcing
Adoption
Affected Environment
Affecting
Agency Authority
Agency Capability
Agency Compliance
Agency Procedures
Agency Responsibility
Alternatives
Appendices
Apply NEPA Early in Process
Categorical Exclusion
Circulating of Environmental Impact Statement
Classified Information
Clean Air Act
Combining Documents
Commenting
Consultation Requirement
Context
Cooperating Agency
Cost-Benefit
Council on Environmental Quality
Cover Sheet
Cumulative Sheet
Dec isionmaking
Decision Points
Dependent
Draft Environmental Impact Statement
Early Application of NEPA
Economic Effects
Effective Date
Effects
Emergencies
1508.2
1508.17, 1508.24
1500.1, 1502.1
1500.4(n), 1500.5(h),
1502.10(g), 1502.16
1502.3, 1508.3
1500.6
1501.2(a), 1507.2
1507.1
1505.1, 1507.3
1506.5
1501.2(c), 1502.2, 1502.10(e),
1502.14, 1505.1(e), 1507.2(d),
1508.24(b)
1502.10(k), 1502.18
1501.2
1500.4(p), 1500.5(k), 1501.4(a),
1507.3(b), 1508.4
1502.19, 1506.3
1507.3(c)
1504.1, 1508.18(a)
1500.4(o), 1500.5(i), 1506.4
1502.19, 1503.1, 1503.2,
1503.3, 1503.4, 1506.6(f)
1500.4(k), 1500.5(g),
1501.7(a)(6), 1502.25
1508.25(a)
1500.5(b), 1501.1(b), 1501.5(c),
1501.5(f), 1501.6, 1503.1(a)(1),
1503.2, 1506.3(b), 1508.5
1502.23
1501.5(e), 1501.5(f),
1502.9(c)(4), 1504.1, 1504.2,
1504.3, 1506.9, 1506.11,
1507.3, 1508.6, 1508.23
1502.10(a), 1502.11
1508.7, 1508.24(a), 1508.24(c)
1505.1, 1506.1
1505.1(b)
1508.24(a)
1502.9(a)
1501.2
1508.8
1506.12
1502.15, 1508.8
1506.11
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rgy 1502 1 (el
Environmental Consequences
Environmental Consultation Requirements
Environmental Documents
Environmental Impact Statement
Environmental Protection Agency
Environmental Review Requirements
Expediter
Federal Agency
Filing
Final Environmental Impact Statement
Finding of No Significant Impact
Fish and Wildlife Coordination Act
Format for Environmental Impact Statement
Freedom 'o-f Information Act.
-Further Guidance
'Generic
General Services
Geographic
Graphics
.Handbook
Administration
Human Environment
Impacts
Implementing the' Decision
Incomplete or Unavailable Information
Incorporation by Reference
Index
Indian Tribes
Intensity
Interdisciplinary
Interim Actions
Joint Lead Agency
Judicial Review
Preparation
iDUi.s, LDU1.4(b),.1501.4(c),
1506.2(b)(4), 1508.9, 1508.10
1502.10(f), 1502.15
1500.4(k), 1500.5(g),
1501.7(a)(6), 1502.25
1508.10
1500.4, 1501.4(c), 1501.7,
1.502.1, 1502.2, 1502.3, 1502.4,
1502.5., 1502.6, 1502.7, 1502.8,
1502.9, 1502.10, 1502.11,
1502.12, 1502.13, 1502.14,
1502.15, 1502.16, 1502.17,
1502.18, 1502.19, 1502.20,
1502.21, 1502.22, 1502.23,
1502.24, 1502.25, 1506.2(b)(4),
1506.3, 1506.8, 1508.11
1502.11(f), 1504.1, 1504.3,
1506.7(c), 1506.8(b)(4),
1506.8(d), 1506.9, 1506.10,
1508.18(a)
1500.4(k), 1500.5(g),
1501.7(a)(6), 1508.25
1501.8(b)(2)
1508.12
1506.9
1502.9 (b) ,
1500.4(q),
1501.4(e),
1502.25
1502.10
1506.6(f)
1506.7
1503.1, 1503.4(b)
1500.5(1),
1508.13
1502.4(c)(2)
1506.8(b) (3)
1502.4(c)(1)
1502.8
1506.7(a)
1502.3, 1508.14
1.508.8, 1508.24(c)
1505.3
1502:.22
1500.4(j), 1502.21
1502.10(j)
1501.6, 1501.7(a)(1)
1508.25(b)
1502.6, 1502.17
1506.1
1501.5(b)
1500.3
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Lead Agency
Legislation
Limitation on Action During NEPA Process
List of Preparers
Local or State
Major Federal Action
Mandate
Matter
Methodology
Mitigation
Monitoring
National Historic Preservation Act
National Register of Historical Places
Natural or Depletable Resource Requirements
Need for Action
NEPA Process
Non-Federal Sponsor
Notice of Intent
0MB Circular A-19
0MB Circular A-95
102 Monitor
Ongoing Activities
Page Limits
Planning
Policy
Program Environmental Impact Statement
Programs
Projects
Proposal
Proposed Action
Public Health and Welfare
Public Involvement
Purpose
Purpose of Action
Record of Decision
Referrals
1500.5(c), 1501.1(c),
1501.5, 1501.6, 1501.7,
1501.8, 1504.3, 1506.2(b)(4),
1506.10(e),.1508.15
1500.5(j), 1502.3, 1506.8,
1508.16, 1508.17(a)
1506.1
1502.10(h), 1502.17
1500.4(n), 1500.5(h),
1501.2(d)(2), 1501.5(b),
1501.5(d), 1501.6,
1501.7(a)(1), 1501.8(c),
1502.15(c), 1503.1(a)(2),
1506.2(b), 1506.6(b)(3),
1508.5, 1508.17
1502.3, 1508.17
1500.3
1504.1, 1504.2, 1504.3,
1508.18
1502.24
1502.14(g), 1502.15(f),
1505.2(c), 1505.3, 1508.19
1505.2(c), 1505.3
1502.25
1508.25(b)(8)
1502.15(f)
1502.10(d), 1502.13
1508.20
1501.2(d)
1501.7, 1508.21
1506.8
1505.2, 1506.6(b)(3)(i)
1506.6(b)(2), 1506.7(c)
1506.12
1500.4(a), 1501.7(b), 1502.7
1500.5(a), 1501.2(b),
1502.4(a), 1503.5, 1506.3,
1508.17
1500.2, 1502.4(b), 1508.17(a)
1500.4(1), 1502.4, 1502.20,
1508.17
1502.4, 1508.17(b)
1508.17
1502.4, 1502.5, 1506.8,
1508.22
1502.10(e), 1502.14
1504.1
1501.4(e), 1503.1(a)(3),
1506.6
1500.1, 1501.1, 1502.1, 1504.1
1502.10(d), 1502.13
1505.2, 1506.1
1504.1, 1504.2, 1504.3,
1506.3(c)
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Referring Agency
Response to ,Comments
Scientific .ccu racy
Scope
z Scopirlg
Significantly
Similar
.Sn11 Business Associations
Social Effects
Specificity of Cgnents
State.,and Local
'tate and ,Local Fiscal . Assistance Aka
Summary
Supplements to E;nvironmen,tal :Impact State ieu.ts
";Table. of Contents
,Technological ::,Pe elopmerxt
,Terminology
Tiering
:,iT4e :Limits
diming
'1~rea, ties
,When to Prepare an Envi;ronmeAta1 ".Iv pAct
?S_tatement
Wild and Scenic Rivers A,qt
Wilderness Act
Writing
:1504.1, 1504.2, 1504.3
:1503.4
.1.50.2.24
,'1502.4(a)., 1502.9(a)., 1508.24
:15.00.4(b), :1501..1(d) , 1501.4(d),
-1501.7, 1502.9(a), 1506.8(a)
.15.02.3, 1508.25
J-508.24
:1506 .:6;(b). (3) (v)
_:1508.8
":.1500.4(1)_, 1503.3
;1500.4(n), 1500.5(h),
.15.01.;2(d)(2), 1501.5(b).,
2.501.5(d)", 1501.7(a) (1) ,
x501,8 (c)., 1502.15(c),
'2503.1(a)(2), 1506.2(b),
1506.6(b)(3), 1508.5, 1508.17
1508.17(a)
:1.500.4(h), 1.502.10(b), 1502.12
150-2.9(c)
:15:02.10 (c)
2502.4(c) (3)
,1508...1
-15-00-4(i), 1502.4(d), 1502.20,
-1508..26
-.15-00,5(e),, 1501.1,(e),
:1501.7(b)(2), 1501.8
15:02.4, 1502.1-5, 1506.10
:1:50.8".16
1501.3
!1506-8(b) (2)
1506..8 (b) (2:)
:1150:2..,8
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 Approved For Release 2005/07/12 : CIA-RDP85-00759R000100170001-7
SPECIAL ENVIRONMENTAL ASSESSMENT
OF REGULATIONS PROPOSED UNDER
EXECUTIVE ORDER 11991 TO IMPLEMENT
THE PROCEDURAL PROVISIONS OF
THE NATIONAL ENVIRONMENTAL POLICY ACT
Prepared by
The Council on Environmental Quality
Executive Office of the President
May 1978
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N
Table of Contents
A. The National Environmental Policy Act .................. 1
B. Problems With The Existing Process ..................... 2
C. The President's Executive Order ........................ 4
D. The Council's Decisionmaking To Date. .................... 5
II. ALTERNATIVES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL
POLICY ACT ................................................. 6
A. "No Action" Alternatives 7
Alternative #1: Rescind The Executive Order and
Abandon The Effort To Reform The NEPA Process ......... 7
Alternative #2: Rescind The Executive Order But
Revise The Existing Guidelines ........................ 7
Alternative #3: Republish The Guidelines Without
Change As Regulations ................................. 8
B. Alternative Concepts For Regulations ................... 8
Alternative #1: Direct Agenies To Issue Regulations
Implementing Section 102(2) of NEPA ................... 8
Alternative #2: Issue One Set Of. Comprehensive
Regulations For All Agencies ........ .................. 9
Alternative #3: The Current Proposal: Issue
"Umbrella" Regulations Establishing Broad Procedural
Requirements For A Standard NEPA Process. Agencies
Adopt Implementing Procedures Which Specify How. These
Requirements Will Be Fulfilled For Each Of Their
Actions and Programs .................................. 9
Alternative #4: Include "Subject Matter" Guidance In
The Regulations ...................................... 10
C. Alternative Frameworks For The NEPA Process ........... 10
Alternative #1: Retain the Existing Process, Without
Change, As Reflected in the Council's Current Imple-
menting Guidelines For The Preparation Of Environ-
mental Impact Statements .............................. 10
Alternative #2: Mandate A Briefing Style EIS ........ 12
Alternative #3: Reform The Process, As Reflected in
The Draft Regulations ................................ 13
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Alternative #4: Prescribe A Single EIS .............. 15
Alternative #5: Implement a Multi-Stage EIS Process . 16
D. Alternative Provisions For Improving.The NEPA
Process ............................................... 17
1.
Improving Environmental Decisionmaking
18
(i)
Provisions For Emphasizing Real Alterna-
tives and Their Impacts ...................
18
(ii)
The Environmental Assessment
20
(iii)
The Scoping Process ...............
20
(iv)
The Record of Decision ........... ...
.
21
(v)
Provisions For Ensuring More Analytic,.
Accurate and Objective Environmental Impact
Statements ................................ 21
(a) List of Preparers ................... . 21
(b) Agency Responsibility For Environ-
mental Impact Statements .............. 22
(c) Methodologies ...................... 22
(d) Interdisciplinary Analysis ............ 23
(e) The Summary of an EIS .................. 23
(vi) Mitigation and Monitoring 23
2. Reducing Paperwork ............................... 24
(i) Page Limits . ?.. 24
(ii) Abbreviated Discussion of Less Important
Issues and Material . 24
(iii) Circulation of Summary in Lieu of EIS ..... 25
(iv) Consolidation of Environmental Analysis ... 25
(v) Standard, More Concise Format ..............25
(vi) Tiering and Combining Documents ........... 25
(vii) Incorporation By Reference 26
(viii)Adoption of Environmental Impact State-
ments ...................................... 26
2. Reducing Duplication and Delay ................... 27
(i) Cooperating Agencies ................ 27
(ii) Resolution of Lead Agency Disputes ........ 28
(iii) Joint Federal-State Preparation of Envi-
mental Impact Statements ??.? 28
(iv) Integrating Environmental Analysis With
Planning and Decisionmaking ............... 29
(v) Time Limits ................... ?.. . ... 29
(vi) Legislative Environmental Impact State-
ment ...... .......... 30
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1. INTRODUCTION
A. The National Environmental Policy Act
The National Environmental Policy Act was enacted by the Congress in
1969. As President Carter noted in his Environmental Message last year,
"[i]n the seven years since its passage, it has had a dramatic --
and beneficial -- influence on the way new projects are planned." These
changes have occurred under procedures established by the Council on
Environmental Quality in its Guidelines on the Preparation of Environ-
mental Impact Statements and agency regulations implementing NEPA.
Section 102(2) of NEPA requires, among other things, that Federal
agencies prepare and consider environmental impact statements on pro-
posals for legislation and other major Federal actions significantly
affecting the quality of the human environment. An environmental impact
statement must thoroughly assess the environmental effects of each such
proposal and alternatives to the proposal, including alternative measures
for avoiding or mitigating any adverse environmental effects. While an
EIS must be prepared on important activities in the private sector which
require some form of approval by a Federal agency, NEPA does not impose
direct obligations on those outside the Federal government.
By requiring the responsible Federal official to consider an environmental
impact statement, NEPA improves the chances that environmental factors
will influence the course of agency action and lead to decisions which
enhance environmental quality and avoid, minimize or reduce environmental
harm. When considered, environmental analyses and impact statements
reduce the risk that the potential adverse effects of Federal activities
will be arbitrarily discounted or simply ignored.
Before an environmental impact statement is issued in final form, a
draft of the document must undergo review and comment by Federal, State
and local agencies, interested members of the public and others. The
final.statement must respond to the comments which are made on the draft
or otherwise incorporate the comments into its analysis.
The review and comment period provides those interested in a proposal
with the opportunity to supply additional environmental information and.
analysis for the EIS and thereby reduces the possibility that important
data or materials will be overlooked. It also provides those with
varied backgrounds, expertise and perspectives a chance to scrutinize an
agency's analysis of environmental issues. This review is designed to
uncover flaws in an agency's analysis so that the necessary corrections
may be made. It also generates suggestions for improving the agency's
proposal and recommendations on alternative courses of action that may
preserve and enhance environmental quality.
In addition, the NEPA process gives interested citizens a chance to
advise the Federal government of the extent to which they value the
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.quality of their environment. With a clearer understanding of the
public's perspective on such matters, Federal officials stand in a
better position to strike a balance in their decisionmaking which
reflects the broader public interest in Federal activities affecting the
environment.
Finally, Section 102(2) of NEPA contains other specific "action-forcing"
provisions for use in conjunction with Section 10.2(2)(C) to ensure that
environmental factors and alternatives are carefully weighed from the
early phases of agency planning through the final stages of its decision-
making and project implementation. Agencies are mandated diligently to
design and pursue policies and programs which apprise the Federal government
of the environmental implications of its actions before they are taken,
whether they be large or small, worldwide or local, long or short term.
.The United States General Accounting Office has stated that
"When EIS preparation is integrated with and completed
during project planning, it helps ensure that environ-
mental amenities and values are given appropriate
consideration along with the economic and technical
factors in planning and decisionmaking."
According to the Commission on Federal Paperwork,
"The impact of NEPA -- and the EIS -- on all levels of
? government has been significant, particularly in terms
of increased public involvement in Federal agency
decisionmaking."
And Will.i.am Rodgers has noted that NEPA is "the Sherman Act of environ-
mental law" which "strengthens the hand of Congress in overseeing agency
actions with adverse environmental effects."
Finally, Fred Anderson, a noted authority on the subject, has stated
that
"The National Environmental Policy Act of 1969 unites
a carefully worded statement of,national environmental
policy with a statutory plan of action to implement that
policy throughout Federal Government. In this role,
NEPA has begun to bring about fundamental reform on all
levels of the federal decision-making process.. After
four years (the law was signed on New Year's Day, 1970),
the Act still has far to go in achieving its ambitious
goals. Yet the progress that it undeniably has made
constitutes a giant stride toward revitalization of the
bureaucratic processes that have for so long neglected
environmental values."
B. Problems With The Existing Process
While NEPA has been a positive influence on Federal decisionmaking,
several important problems have developed under this statute. First,
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while tree ouncil has issued and periodically revised Guidelines for
implementing the EIS process, the status of these Guidelines remains
unclear. The Council believes and some courts have agreed that the
Guidelines establish non-discretionary standards for agency decision-
making. However, some agencies view them as advisory only and do not
recognize an obligation to comply with the Guidelines in their decision-
making. Second, before it was amended Section 3(h) of Executive Order
11514 confined the Guidelines to Section 102(2)(C), the impact statement
requirement.
As a result of both of these factors there is no uniform, government-
wide approach to implementing NEPA, and varying agency practices have
evolved under the statute. This in turn has produced inconsistent and
untimely Federal actions and generally impeded coordination of the
Federal effort to implement NEPA. It has also caused uncertainty and
confusion among those outside of the Federal government seeking a role
in the EIS process and diminished their ability to contribute relevant
information and make informed comments on an agency's analysis. It has
caused the private applicant the bewilderment of being confronted with
many different means of implementing the same Federal law.
Third, many environmental impact statements contain technical evalu-
ations which are difficult for the laymen to decipher. Such documents
are more likely to be put on the shelf as reference material than
carefully read by the final decisionmaker. Highly technical analyses
are also difficult for outside groups to comprehend and comment upon.
Fourth, the preparation of environmental impact statements has tended to
become an end in itself rather. than a means to better decisionmaking.
Section 102(2)(C)'s requirement of a "detailed statement" is the most
clearly defined, firmly established standard under NEPA, and the Council's
existing Guidelines center on the preparation of this document. It was
only natural that members of the public seeking a role in the process,
and courts faced with the task of interpreting this law, should focus on
the EIS. In the meantime, however, NEPA's other important requirements
for agency planning and decisionmaking have not received sufficient
attention.
Fifth, some agencies adopt the "kitchen-sink" approach to discussing
virtually all environmental issues raised by a project rather than
concentrating on the most significant ones. This effort often results
in large accumulations of materials that are difficult to assimilate
both by members of the public attempting to evaluate a_project and by
Federal officials required to consider environmental factors in their
planning and decisionmaking. Such documents are less useful to their
readers than ones which focus on what is really significant.
Sixth, depending largely on the mission which they are charged by
statute to perform, agencies have differing perspectives on the weight
which should be accorded environmental factors in Federal decision-
making. Disagreements among agencies over the environmental accepta-
bility of proposed actions have increased. There has been no formal
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means for resolving such disputes. The result has been that many inter-
agency disagreements take far too long to settle or simply drag on
indefinitely without final resolution. In other cases, agencies have
undertaken harmful projects without attempting to accommodate environ-
mental concerns raised by other Federal departments.
Finally, when taken together, these deficiencies have contributed to a
broader and more general problem under the statute. Federal agencies
implementing NEPA have generated excess paperwork, produced unnecessary
delays and duplicated their efforts under the statute. As a result,
scarce Federal resources have been unproductively spent and private
applicants needlessly inconvenienced., Equally important, public con-
fidence in the process has been undermined.
C. The President's Executive Order
The deficiencies in the existing process are largely administrative in
nature and do not result from defects in the statute. This fact was
noted by diverse interests including Members of Congress during
public hearings held by the Council in June, 1977. The Council on
.Environmental Quality was created by the Congress to oversee the imple-
mentation of NEPA and to resolve administrative issues of this sort. On
March 5, 1970, for example, President Nixon issued Executive Order 11514
directing the Council to issue guidelines to Federal agencies for the
preparation of environmental impact statements. In similar fashion, on
Mqy 24, 1977 President Carter issued Executive Order 11991 amending
Sections 2(g) and 3(h) of the earlier Order and directing the Council to
issue binding regulations to Federal agencies for the implementation of
Section 102(2) of the Act. The President's Executive Order provided
that the regulations
"will be designed to make the environmental impact state-
ment process more useful to decisionmakers and the public;
and to reduce paperwork and the accumulation of extraneous
background data, in order to emphasize the need to focus
on real environmental issues and alternatives. They will.
require impact statements to be concise, clear, and to the
point, and supported by evidence that agencies have made
the necessary environmental analyses. [They shall include]
procedures (1) for the early preparation-of environmental
impact statements and (2) for the referral to the Council
of conflicts between agencies concerning the implemen-
tation of the National Environmental Policy Act of 1969,
as amended, for the Council's recommendation as to their
prompt resolution."
By directing that the regulations be binding, the President sought to
clarify the status of the Council's guidance on NEPA and to provide for
a single set of uniform regulations to be followed by all Federal
agencies. A significant result should be improved agency decisionmaking
regarding environmental issues. When all agencies follow the same
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regulations it should make it easier for them to work alongside one
another in preparing and considering environmental impact statements
under NEPA. Uniform regulations will also provide the public and State
and local governments with a clearer understanding of how the Federal
government functions under NEPA, and make it'easier for private citizens
to acquire the information they need to participate in the NEPA process.
The confusion that exists within the private sector, among both business
and individual citizens, which was created by different agencies applying
the same law differently with different terminology and different pro-
cedures, will be greatly reduced.
Similarly, by extending the coverage of the regulations to all of the
requirements in Section 102(2), instead of limiting them to the environ-
mental impact statement, the President sought to achieve a better balance
in the implementation of NEPA. The regulations should place renewed
emphasis on what happens both before and after an EIS is prepared and
focus attention on the extent to which environmental analyses actually
contribute to environmental quality. The EIS will assume its appropriate
role, not as an end in itself, but as a step in the NEPA process that
begins with planning, goes through assessment and the statement to a
decision, and ends with follow-up on that decision.
D. The Council's Decisionmaking To Date
The Council has tentatively decided that the objectives of the Executive
Order can best be acheived by retaining the existing framework for the
NEPA process, by clarifying and improving current procedures, by elimi-
nating unnecessary requirements and by adopting the best elements of
current agency NEPA practices. The Council's staff has developed draft
regulations which are designed to produce better and more environmen-
tally sensitive decisions, reduce paperwork and reduce duplication and
delay in the NEPA process. The principal provisions in these draft
regulations and alternatives to these provisions are discussed below at
pps. 6-30.
During the course of its deliberations, the Council solicited oral and
written testimony from all segments of the interested public. Federal,
State and local agencies were also contacted. This process of consul-
tation produced many responsible and creative suggestions' for improving
the NEPA process. Many of these alternatives remain under active con-
sideration. No participant at the public hearings-suggested that NEPA
be amended. Virtually all of the participants believed that NEPA provides
benefits but that some administrative reforms were needed.
In weighing these alternatives, the principal objective was to determine
which of them was most likely to produce Federal decisions which avoided,
minimized, or reduced adverse environmental effects. The goal was to
improve agency decisionmaking by ensuring full and adequate consideration
of environmental factors throughout the planning and decisionmaking
process. The expected result is improved agency decisionmaking and a
stronger Federal effort to preserve and enhance environmental quality.
There were, of course, limitations on this effort.
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First, the draft regulations developed by the Council and the alternatives
considered in its deliberations would establish a process for the con-
sideration of environmental factors in agency planning and decisionmaking.
The procedures themselves would not require that any particular decision
be reached based on these factors. In other words, the draft regulations
and their alternatives would not establish substantive criteria for
agency decisionmaking or otherwise address the importance which should
be assigned environmental factors in evaluating major proposals. Nor
would they constrain an agency's discretion in weighing all relevant
factors before a final decision was reached. How the balance was struck
for any particular project would depend both on NEPA's mandate and the
mandate. of other applicable laws, and the presence of other important
factors such as budgetary constraints, technical limitations, economic
criteria, competing considerations of national policy and political
realities.
The regulations are designed to improve the chances that environmental
considerations will influence the course of agency action and lead to
decisions which preserve and enhance environmental quality, and avoid,
minimize, and reduce environmental harm. In view of NEPA's salutary
affect on Federal decisionmaking in the past, the Council is confident
that the draft regulations would contribute appreciably to a better
environment. Since the actual outcomes and impacts of all subsequent
agency decisions under the regulations cannot be forseen and measured,
however, the specific environmental implications of future Federal
actions are too speculative to identify and evaluate in the context of
the Council's current deliberations.
Moreover, the regulations do not concern any particular environmental.
media. Nor are they tied to a specific geographical area or environmental
setting. They apply generally to Federal actions affecting the quality
of the human environment. No specific environmental issue or problem is
singled out for special consideration or action under the regulations.
In these circumstances, the Council's decisionmaking has focused largely
on th4 factors, pro and con, bearing on the effectiveness of alternatives
at the agency level. The alternatives were assessed in terms of their
probable contribution to improved planning and decisionmaking under
NEPA. The chief countervailing factors were the administrative resources --
.time, manpower, and money -- required to implement each alternative.
These considerations are discussed for each of the alternatives analyzed
below.
II. ALTERNATIVES FOR IMPLEMENTING
THE NATIONAL ENVIRONMENTAL POLICY ACT
This section describes alternatives for implementing NEPA, assesses the
factors, pro and con, bearing on their probable effectiveness at the
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agency level, and discusses their significant administrative costs, if
any. Alternatives are analyzed at four levels: "no action" alternatives;
alternative concepts for regulations; alternative frameworks for the
NEPA process; and alternative regulations for improving the existing
process.
Alternative #1: Rescind The Executive Order and Abandon The Effort.
To Reform The NEPA Process
Analysis:
A return to the status quo would eliminate the possibility that Federal
agencies would be required to change existing procedures or otherwise
commit resources to improving the NEPA process in order to correct the
deficiencies identified in the Executive Order.
As the entity principally responsible for assessing the implementation
of NEPA, it is incumbent upon the Council to address the deficiencies in
the NEPA process by the most effective means available. Nothing has
happened since the President issued Executive Order 11991 which suggests
that these deficiencies are any less significant now. On the contrary,
the overwhelming consensus among those testifying at the public hearings,
those responding to the NEPA questionnaire, and Federal agencies subject
to NEPA is that the effort to reform the NEPA process is timely, much
needed and should go forward.
Alternative #2: Rescind The Executive Order But Revise The Existing
Guidelines
Under this alternative, the Council would modify its existing Gudielines
in an effort to reform the NEPA process.
There are significant limitations on what can be achieved through regulatory
reform. Regulations cannot assure good writing or guarantee wise decision-
making. The Council has revised its Guidelines in the past and Federal
agencies are accustomed to this practice.
Before it was amended, Section 3(h) of Executive Order 11514 limited the
scope of the Guidelines to the EIS requirement of Section 102(2)(C). In
the absence of this change, the Council would not be authorized to
implement the other procedural provisions of NEPA. In addition, the
status of the Guidelines would remain unclear even after they were
revised, and Federal agencies could continue to follow varying procedures
under NEPA. Thus, the Council's ability to address the problems which
have developed under NEPA would be significantly limited under this
approach.
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Alternative #3: Republish The Guidelines Without Change As Regulations
Analysis:
Under this alternative, the Council would convert its Guidelines to
regulations, without changing their text. Agencies would in turn adopt
implementing procedures which were consistent with the Council's regu-
lations.
This alternative would preserve a process that was familiar and rou-
tinely followed by many Federal agencies, and require compliance from
those agencies which have not previously adhered to the Guidelines.
However, it would not address all of the problems which have arisen
under NEPA or otherwise attempt to bring about needed change in Federal
decisionmaking under the statute. Further, since the Guidelines are
confined to Section 102(2)(C) of NEPA, this alternative would fail to
meet the President's directive to implement the procedural provisions of
NEPA and would perpetuate the emphasis on the preparation of an EIS
rather than placing the document in perspective as a part of the planning
and decisionmaking process.
B. Alternative Concepts For Regulations
Alternative #1: Direct Agencies To Issue Regulations Implementing
Section 102(2) of NEPA
Description:
Under this alternative, the Council would direct all Federal agencies to
develop and issue their own regulations implementing Section 102(2).
The Council could identify the issues and problems which agencies should
address in their regulations and review and approve each set. However,
the responsibility for preparing and revising regulations would reside
in the first instance with each agency, and each agency would have its
own separate set of NEPA regulations.
Analysis:
The Council's regulations under this alternative would be short. They
would afford agencies great latitude in tailoring the requirements of
NEPA to the specific circumstances of their planning and decisionmaking.
This alternative would result in close to one hundred sets of agency
regulations based on as many independent interpretations of NEPA. In
view of the statute's broad standards and their susceptibility to
varying interpretations, it would be difficult for the Council to
determine whether an agency's proposed regulations were consistent with
the law and would improve the NEPA process as required by the Executive
Order. Where applicants were required to obtain approvals from more
than one agency, their projects would be reviewed under separate and
potentially inconsistent sets of NEPA procedures. Varying agency practices
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would make it more difficult to coordinate Federal decisionmaking under
NEPA. There would be no single set of regulations which could be used
by citizens and state and local officials to understand and participate
in the NEPA process.
Alternative #2: Issue One Set Of Comprehensive Regulations
For All Agencies
Description:
Under this alternative, the Council would issue comprehensive and
detailed regulations which specified precisely how Section 102(2) should
be applied to each agency program and activity. For example, rather
than providing that scoping shall occur "[a]s soon as practicable" after
a decision to prepare an EIS as the draft regulations do, regulations
issued under this approach would indicate the precise point in time when
scoping would occur for EISs prepared under every agency program and
activity. Agencies would not issue separate implementing procedures and
would not exercise discretion in tailoring the requirements of Section
102(2) to the unique features of their decisionmaking process.
Analysis:
The goal of this alternative would be a single, uniform, government-wide
set of regulations containing detailed guidance on how Section 102(2)
should be applied to all agency programs and activities. There are
literally thousands of Federal agency actions subject to Section 102(2)
of NEPA. Individual agency decisionmaking procedures are complex and
diverse. Regulations which specified precisely how Section 102(2) shall
be incorporated in all of them would of necessity be long and complicated
and require frequent revision. To develop comprehensive regulations of
this sort, the Council would be required to undertake a major new effort
to familiarize itself with the ever-changing details of planning and
decisionmaking in each Federal agency.
Alternative #3: The Current Proposal: Issue "Umbrella" Regulations
Establishing Broad Procedural Requirements For A
Standard NEPA Process. Agencies Adopt Implementing
Procedures Which Specify How These Requirements Will
Be Fulfilled For Each Of Their Actions And Programs
Description:
Under this alternative, the Council would promulgate an "umbrella" set
of standards for implementing NEPA across the government. Individual
agencies would be responsible for tailoring these standards to their
planning and decisionmaking through the mechanism of implementing pro-
cedures. The Council could retain authority to review and approve each
agency's implementing procedures.
Analysis:
This alternative would produce a single, relatively simple and uniform
set of regulations for all Federal agencies and thereby promote
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intergovernmental coordination and improve public understanding of the
process. By confining the regulations to the broader considerations of
implementing NEPA, this alternative would allow more technical issues to
be resolved by those at the agency level with background and experience
in the details of their own planning and decisionmaking procedures.
This alternative represents a position between alternatives 1 and 2.
Alternative #4: Include "Subject Matter" Guidance In The Regulations
Description:
Under this alternative, which is a variation on Alternative #3, the
regulations would identify specific types rather than generic categories
of impacts which must be assessed under NEPA. In addition, the regu-
lations would define the point at which environmental impacts acquired
"significance" and triggered the EIS requirement (e.g. environment is
significantly affected when 20% of an ecological community is disturbed
or 10 acres of farmland are lost).
Analysis:
The purpose of this approach would be to reduce the uncertainty sur-
rounding the term "significance" andto provide further specific guidance
on the precise types of impacts which must be assessed in an EIS.
There are many environmental impacts which must be examined under NEPA.
Whether these impacts are significant depends largely on the setting in
which they occur. Many new types of impacts are discovered each year.
Man's ability to measure and evaluate these impacts is constantly improving
and notions of "significance" are therefore evolving. Even assuming
such "subject matter" guidance could be given at a particular point in
time, it would soon be out of date in view of the rapid growth of knowledge
.in this field. To the extent that such guidance can be given, it is
more appropriate for agencies to do it in their implementing procedures
and selection of categorical exemptions.
As noted, the Council has tentatively decided to reform the NEPA process
within the existing framework. This proposed course of action was
selected from several alternatives which are discussed below.
Alternative #1: Retain The Existing Process, Without Change, As
Reflected in the Council's Current Implementing
Guidelines For The Preparation Of Environmental
Impact Statements
Description:
The existing process provides for environmental assessment and early
public notice of proposed Federal actions under diverse procedures which
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are left largely to the agency's discretion. Where the proposed action
may significantly affect the quality of the human environment, the
agency is required to prepare a draft environmental impact statement
which thoroughly evaluates the environmental impacts of proposals and
alternatives, including alternative measures for avoiding or mitigating
any adverse environmental effects. Agencies provide early public notice
of their decisions to prepare an EIS. Usually they provide similar
notice for decisions not to prepare an EIS.
The draft environmental statement is circulated to other government
agencies and members of the public for their review and'comment. A
final statement is then prepared incorporating the comments made on the
draft statement together with the agency's written response to those
comments.
Following issuance of the final statement, the agency is required to
wait for a specified period of time prior to making a final decision on
the proposed action. Prior to the decision, under Section 309 of the
Clean Air Act, the Environmental Protection Agency may refer proposed
actions it finds environmentally unsatisfactory to the Council which
will seek to resolve significant environmental issues associated with
the proposal. In conjunction with their own program requirements and
0MB Circular A-19, agencies inform applicants and interested persons of
their final decisions on a proposal, and in some cases, provide for
administrative appeals before their decision is implemented. Under
flexible procedures adopted at their discretion, some agencies monitor
the implementation of measures established to mitigate the adverse
effects of Federal actions, and take steps to see that they are enforced.
Agencies are authorized to hold public hearings or meetings at any
appropriate stage in the existing process from the early assessment and
notice through the final decision and its implementation.
Analysis:
Pros:
The existing process provides a formal framework through which agencies
incorporate environmental impact analysis and exploration of alternatives
into their planning and decisionmaking functions. It also accords the
public a firmly established role in environmental decisionmaking.
The existing process enhances intergovernmental coordination among
Federal, State, regional and local agencies with concurrent jurisdiction
over or mutual interests in proposed actions. Through review and comment
on draft statements, governmental entities at all levels have improved
their decisions by exchanging information and expertise, cooperating in
planning and decisionmaking and identifying and resolving environmental
issues and problems.
The existing process has been in place for approximately eight years.
Some Federal agencies routinely follow this process to review the
environmental consequences of significant proposals.
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Cons:
The existing process is not uniformly followed by all Federal agencies.
Inconsistent agency practices and terminology are an obstacle to co-
ordinating Federal efforts to implement NEPA in some cases.
Agency responsibilities in certain key areas are not clearly under-
stood. In recent years, agency officials and members of the public have
requested further guidance on what these responsibilities are and how
they can best be met under NEPA.
The existing process tends to focus on the preparation of the environ-
mental impact statement as an end in itself, rather than as one aspect
of overall agency planning and decisionmaking. It does not place
sufficient emphasis on weighing environmental factors in the early
stages of agency planning and the latter stages of agency decision-
making. Environmental analysis has become a highly technical and
specialized field.
These factors have contributed to a trend toward large, unwieldy and
technical documents under the existing process.
Alternative #2: Mandate A Briefing Style EIS
Description:
Under this alternative, the only change made in the existing process
would involve the length and character of the environmental impact
statement. The environmental impact statement would normally be less
than 50 pages in length, would be directed largely to an analysis of
alternatives, and would be tailored to the needs of the primary Federal
decisionmaker in the style of a briefing document that underscored
salient factors and issues. Background information and analysis relied
upon by those preparing the EIS would be assembled in a supporting
document that would be available for review upon request or, at the
agency's discretion, circulated as an appendix to the EIS. The brief-
ing style EIS would cross-reference these source materials.
Analysis:
A briefing style EIS would be shorter and more focused on alternatives
and key issues. It would take less time to read and would underscore
the crucial factors which should be weighed in choosing among alterna-
tive proposals. As such, the document would be more valuable to primary
decisionmakers than a longer, more detailed analysis.
Cons:
The strict limitations on its length would constrain-the range and depth
of analysis contained in a briefing style EIS and make the document more
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conclusory in nature. The underpinnings of the agency's reasoning and
the basis for its conclusions would be less apparent from the face of
the document. It would be necessary to go beyond the contents of the
briefing style EIS and to review the materials assembled in the support-
ing document in order to evaluate the quality of the agency's analysis.
The supporting document could become a repository for lengthy and
unanalyzed materials that would be difficult to use for this purpose..
Alternative #3: Reform The Process, As Reflected in The Draft
Regulations
Description:
This alternative would reform the existing process by clarifying and
improving current procedures, by eliminating unnecessary requirements
and by adopting the best elements of current agency NEPA practices.
An agency would be authorized to exclude whole categories of minor
actions from NEPA reviews where it found that such actions would not
significantly affect the'quality of the human environment. An early
environmental assessment of proposed Federal actions would be required,
rather than recommended, wherever the agency determined that an action
may have significant effects on the human environment. The assessment
would include an analysis of alternatives and other factors to be weighed
in the initial planning stages, regardless of whether an EIS was ultimately
prepared. The public notice for proposed Federal actions would be
standardized.
This alternative would establish a scoping process by which the affected
parties could develop a consensus on the scope and coverage of environ-
mental analysis and identify those issues which should receive extensive
treatment in an EIS and those which should not. Time limits for the
completion of the EIS process or any portion thereof could also be set
during the scoping process.
The reform proposal would provide. further, more specific guidance on the
contents and format of a draft environmental impact statement and
recommend page limitations -- less. than 150 pages for ordinary proposals,
less than 300 pages for proposals of unusual scope or complexity -- that
would normally apply to EISs. Agencies would be directed to place
greater emphasis on analyzing the alternatives facing Federal decision-
makers and to identify both the environmentally preferable alternative
or alternatives and the alternative or alternatives which they are
inclined to select. Material now responsible for much of the bulk in
current EISs, particularly the descriptions of the existing setting,
would be cut drastically. Discussions of subsections (i), (ii), (iv),
and (v) of Section 102(2)(C) would be in one section. Environmental
impact statements would focus analysis and discussion on those factors,
issues and information necessary to understand the analysis of altern-
atives.
The reform proposal would strengthen the review and comment process by
requiring, rather than recommending, that agencies with jurisdiction by
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law or special expertise comment on draft environmental impact state-
ments. It would also broaden and formalize the pre-decision referral
process by authorizing all agencies (rather than just EPA) to refer
proposals they find environmentally unacceptable to the Council and by
establishing procedures and time limits for implementing this process.
The Council has used this system under informal guidance to agencies for
eight months. It has worked well.
The reform proposal would require a written "record of decision" on
agency actions for which an EIS had been prepared. This brief document
would explain the agency's choice of alternatives, and the measures that
would be taken to minimize environmental harm. Where an environmentally
preferable alternative was not selected by the agency, the agency would
be required concisely to identify those factors which led to its rejection.
The agency would be required to monitor the steps taken to minimize
environmental harm, and, upon request, to report to the public on their
implementation.
The reform proposal would provide for the expedited resolution of lead
agency disputes by the Council. It would also provide for the designation
of "cooperating agencies" to assume responsibility for portions of the
EIS within their special competence and to share their expertise with
the lead agency. Under the proposal, Federal, State, and local agencies
could cooperate in the joint preparation of a single EIS, rather than
prepare several such documents. In every case, a Federal agency would
be required to ensure that private parties retained to assist in the
preparation of an EIS had no conflict of interest which could compromise
the objectivity of their analysis.
The reform proposal would establish distinct procedures for preparing
EISs on legislative proposals. In the ordinary case, a single statement
would accompany the proposal to Congress and be circulated for review
and comment to Federal, State and local agencies and the public. No
revised statement containing public comments and responses would be
required.
Analysis:
The reform proposal is designed to place the preparation of environ-
mental documents in the context of a larger process that spans the early
stages of planning Federal actions through their final implementation.
It is intended to ensure that environmental factors are actually considered
alongside economic and technical ones each step of the way. It represents
a shift in emphasis away from the preparation of environmental documents
for their own sake and toward the quality of the environmental decisions
themselves.
The reform proposal would facilitate public involvement at key stages of
environmental planning-and decisionmaking. It would make agencies
explain their actions significantly affecting the environment by requiring
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a written explanation of their decision. Agencies would be required,
upon request, to issue public reports on the effectiveness of the measures
taken to minimize environmental harm. These requirements are designed
to insure that. the NEPA process is in fact used by Federal officials so
that their decisions reflect the benefits of the law and the process.
The reform proposal would strengthen cooperation among government agencies
by encouraging the joint preparation of environmental documents as well
as the coordination of analyses. By providing for the timely involvement
of all interested government agencies in the preparation of an EIS, the
reform proposal would enable them to develop an early consensus on what
the document should and should not contain and avoid disagreements, and
possible delays,in the latter stages of the process.
While this proposal would make certain reforms in some aspects of agency
planning and decisionmaking, it would not involve major departures from
the existing process. It would clarify agency responsibilities at
certain critical stages, establish procedures for avoiding the dupli-
cation of environmental analyses, and direct agencies to prepare shorter,
more analytic environmental impact statements that focused on the real
choices facing Federal decisionmakers and the significant environmental
consequences of each.
Cons:
.Complying with the more formal, structured process envisioned by the
reform proposal could require Federal agencies to devote additional
resources to complying with NEPA, at least while the new regulations
were being first implemented. Sometimes brevity is more difficult than
wordiness. At a minimum, agencies would be required to modify their
current practices in prescribed ways.
The detailed guidance incorporated in the reform proposal could constrain
agencies from adopting creative approaches to NEPA compliance or using
innovative methodologies for their environmental analysis. By establish-
ing fixed requirements and reducing the diversity that now characterizes
the process, the reform proposal could make it more difficult for agencies
to integrate NEPA with their more fluid planning and decisionmaking
functions.
Alternative #4: Prescribe A Single EIS
Description:
Under this alternative, a single environmental impact statement would
take the place of the draft and final statements prepared under the
existing process. The single EIS would be prepared at the same stage
that the draft EIS is prepared under current procedures. Instead of
preparing a final statement following the period for review and comment,
the agency would publish and circulate a compilation of all comments
received on.the EIS and its written responses to the comments as part of
the decision document. Rather than waiting 30 days between the filing of
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a final statement and issuing a record of decision, as required by the
reform proposal, the agency would be required to wait 30 days between
the record of decision and project implementation. This period would
give other agencies and the public an opportunity to learn about and
raise any final concerns regarding the decision. Otherwise, the pro-
cedures would be similar to those comprising the reform proposal.
Analysis:
Pros:
This alternative eliminates the paperwork and time involved in preparing
a final environmental impact statement. It would allow the agency to
concentrate its efforts on a response to the comments and the ultimate
decision itself. The single EIS proposal would simplify the NEPA process
somewhat and could make it easier to combine with other agency decisionmaking
functions. The fact that comments on the single EIS would be compiled
and published as a separate volume could enhance their role in the final
stages of agency decisionmaking.
Cons:
This alternative would dispense with a single, comprehensive and inte-
grated final document which incorporated comments received on the agency's
environmental analysis and reflected the agency's responses to those
comments. The single-EIS proposal would make it more difficult to
assess how such comments and the responses thereto altered an agency's
analysis and its decision and place the burden on. those involved in the
process to make this determination for themselves. This alternative
would represent a departure from the existing process and require important
adjustments in current agency practices.
Alternative 4/5: Implement A Multi-Stage EIS Process
Description:
This alternative would provide for a staged analysis of a proposed
action's feasibility and design. Each stage would be confined to
discrete issues and provide the agency with the basis for deciding
whether the proposal should be considered further or not. The feasi-
bility of the proposed action would be initially evaluated in a "prospectus"
that included, among other things, an inventory of resources that might
be affected by the proposed action. Based on the_prospectus, the agency
would determine whether to proceed with a more sophisticated in-depth
feasibility analysis in the form of a "preliminary assessment" of the
proposal.
Alternative designs for feasible projects would be evaluated in a
"detailed assessment." This document would analyze the specific environ-
mental impacts of alternative designs and identify the alternative which
would be least harmful to the environment.
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Once a design was selected, a "detailed action plan" would explore
alternative measures to minimize its adverse environmental effects, and
set forth a program for monitoring the effectiveness of these measures.
Following each stage of this process, the agency's analyses would be
subject to public review and comment.
Analysis:
Pros:
By providing for an independent and early analysis of a?proposal's
feasibility, this alternative would enable agencies to identify and
reject unwise projects before public or private resources were spent
pursuing them. In the case of a private project, an applicant could
approach an agency with the outlines of a proposal, rather than an
elaborate and full-scale application, and request an analysis of its
feasibility. Significant front-end planning expenditures would not be
lost if the project was deemed infeasible at this early stage.
In the case of private projects, the feasibility analyses prepared under
this alternative would involve agency personnel in the early stages of
the applicant's planning process and facilitate a cooperative approach
to the project in the event it went forward. The multi-stage EIS process
would afford the public an opportunity to comment separately on the
feasibility and design of every proposal.
Cons:
The multi-stage EIS is geared primarily to the analysis of construction
projects and would be difficult to implement in the context of Federal
programs and policies where the feasibility-design distinction has
little relevance. By formally bifurcating the analysis of a proposal's
feasibility and design, this alternative could make it more difficult to
determine whether and to what extent considerations of design affect the
proposal's overall feasibility. Where Federal personnel became involved
in the early stages of an.applicant's planning process under this
alternative, their objectivity in subsequent stages of agency decision-
making could be jeopardized by an on-going, close working relationship
with private parties promoting the project. The multi-stage EIS repre-
sents a major departure from the existing process and would require a
fundamental change in the Federal government's approach to NEPA if
universally mandated.
D. Alternative Provisions For Improving The NEPA Process
Under Executive Order 11991, regulations implementing Section 102(2) of
NEPA must be designed to accomplish three primary goals: First, the
regulations should be designed to improve environmental decisionmaking
by making the EIS process more useful to decisionmakers and the public,
by emphasizing the need to focus on real environmental issues and
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alternatives and by ensuring that agencies have conducted the necessary
environmental analyses to support their decisions. Second, the regu-
lations should reduce paperwork by discouraging the accumulation of
extraneous background data and directing that impact statements be
clear, concise and to the point. Finally, the regulations should reduce
delays and duplication under NEPA by providing for the early preparation
of environmental impact statements, prompt resolution of interagency
disagreements, and better coordination among Federal, State and local
agencies involved in the EIS process.
As noted, the Council has te+.itatively determined to pursue these objectives
through reforms in the existing NEPA process. This section of the memorandum
will describe the provisions in the draft regulations which are designed
to achieve these goals. Where alternative approaches were considered
the memorandum will analyze why the draft provisions emerged as the
preferred choice. The analysis will discuss how the draft provisions
and alternatives affect existing decisionmaking procedures, factors
which may bear on their effectiveness, and their significant administrative
costs, if any.
1. Improving Environmental Decisionmaking.
The following discussion analyzes the provisions in the draft regulations
which are designed to improve environmental decisionmaking, and alterna-
tives.
(1) Provisions For Emphasizing Real Alternatives and Their
Impacts
The draft regulations define the term "proposal" as the stage in the
development of an action when an agency is "actively considering one or
more alternative means" of accomplishing an identified goal. Section
1508.22. By focusing attention on alternatives, this provision is
intended to ensure that alternatives will be fully considered in the
early critical phases of agency planning and to set the stage for a
genuine assessment of real choices facing Federal decisionmakers through-
out the NEPA process.
Section 1508.9(b) of the draft regulations requires that alternatives be
evaluated in an environmental assessment regardless of whether an EIS is
ultimately prepared. The regulations also designate "alternatives" as
one aspect of a statement's proper scope and thereby ensure that this
issue will receive early attention in the scoping process if an EIS is
required. Section 1508.24(b)
The draft regulations provide that an EIS must encompass the range of
alternatives which a decisionmaker ultimately considers. Sections
1505.1(f), 1502.2(e). Another approach would have required an EIS to
cover each specific alternative (rather than the range of alternatives).
Where numerous variables are present, there may be a large number of
alternative combinations and mixes of these variables. So long as the
range of variables and possible combinations are considered, there is no
need specifically to identify and assess every conceivable alternative.
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The regulations provide for a separate section of the EIS directed to a
comparative analysis of alternatives. Section 1502.14. Another approach
would have combined this analysis with the discussion of environmental
impacts. However, a combined format would lengthen this portion of the
document and make it more difficult to present a succinct comparison of
the primary environmental advantages and disadvantages of each alternative.
Section 1502.14(b) of the draft regulations requires that agencies
discuss each alternative in detail and notes that this discussion pro-
vides the basis for the evaluation of their comparative merits. An
earlier version of this section requiring "substantially-equal treatment"
for each alternative was rejected as too inflexible. Alternatives may
differ in size, complexity and degree of environmental impact, and there
is no compelling reason why substantially the same number of pages must
be devoted to each alternative.
Section 1502.14(e) of the draft regulations requires agencies to identify
the environmentally preferable alternative or alternatives and the
reasons for identifying them. If the alternative identified is for no
action, this section would require the agency to identify the alternative
other than no action that is environmentally preferable and the reasons
for identifying it.
In some circumstances, the no action alternative may be unrealistic.
Requiring the agency to identify the second most preferred alternative
in such cases would focus attention on the potentially more realistic
choices available to the agency. It would also bring the debate over
which actions would most preserve and enhance environmental quality out
into the open among agency planners and decisionmakers. On the other
hand, this approach may confer the mantle of "environmental preferability"
on an alternative which involves the potential for serious harm to the
environment.
Section 1502.14(f) requires an agency to identify its preferred alterna-
tive or alternatives in the draft statement. Another approach would
defer identification of the agency's perferred alternative until the
final statement or not require it at all. Where an agency commits
itself to a preferred alternative in the early stage of the process,
there is a risk that it will not keep an open mind to other options in
the latter phases-of its decisionmaking. On the other hand, unless the
preferred alternative is disclosed in the draft statement, members of
the public and others will not necessarily accord adequate consideration
to and analysis of it during the period for review and-comment.
Thought was also given to requiring the identification of a single
preferred alternative, rather than allowing the identification of two or
more. When more than one alternative is identified public scrutiny is
diffused. However, identifying a preferred alternative is not feasible
where agencies have yet to settle on a preferred course of action at the
draft stage. In such circumstances, agencies should be encouraged to
keep an open mind as the NEPA process runs its course, rather than be
compelled prematurely to express a preference for a particular course of
action.
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Where the environmentally preferable alternative is not adopted, Section
1505.2 requires the agency to explain the reasons why other specific
considerations of national policy overrode that alternative in a written
record of decision. This requirement is designed to ensure that agencies
give serious consideration to such alternatives and publicly explain why
they chose not to adopt them. Further, the requirement is intended to
help insure that the NEPA process is integrated into the agency's
.decisionmaking process and that the agency's decisions do in fact reflect
the contribution and insights of NEPA's requirements.
(ii) The Environmental Assessment
Section 1501.4 requires the preparation of an environmental assessment
for all proposals which may possibly have significant affects on the
environment. The assessment is intended to provide the agency with the
information it needs to determine whether an EIS on the proposal is
required. At the same time, its analysis of alternatives and their
impacts is designed to enhance agency decisionmaking even if no further
analysis is performed.
Another approach requiring an assessment for all actions, including
those which clearly would not significantly affect the environment, was
rejected as too great an administrative burden. There are literally
thousands of such actions undertaken each year which are not now subject
to the assessment process. The authorization for categorical exclusions
should make clear an agency's ability to decide what actions will not
need assessments or statements.
(iii) The Scoping Process
Section 1501.7 of the draft regulations establishes a formal mechanism
whereby agencies, in consultation with affected parties, can identify
the significant issues which must be discussed in detail in an EIS (as
well as those that do not require detailed study) and allocate respon-
sibilities for preparation of the document. This section provides that
a scoping meeting is to be held when practicable.
An alternative approach would have simply encouraged (rather than
required) agencies to undertake scoping. This approach would have
provided agencies with additional flexibility in this area but probably
would have produced inconsistent agency practices and failed to ensure
that the benefits of scoping were widely realized in Federal decision-
making.
Another approach would have required scoping meetings in every case
where an EIS was prepared. This approach could result in unnecessary
administrative burdens where the important environmental issues were
already clearly identified, the responsibility for preparing the document
was not in question and alternative means were available for involving
affected parties regarding scoping issues.
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(iv) The Record of Decision
Section 1505.2 of the draft regulations requires agencies to produce a
concise public document explaining their decision where an environmental
impact statement has been prepared. The record of decision is intended
to disclose an agency's logic in reaching decisions having significant
environmental impacts. In addition, it should further integrate the
NEPA process with the agency's decisionmaking process, thereby insuring
that the benefits of.the EIS process are more likely to be realized.
An alternative approach would have required a record of decision for all
agency actions affecting the environment, not just those for which an
EIS was prepared. Preparing a record of decision for thousands of
actions which fall within NEPA's purview but do not significantly affect
the quality of the human environment would represent a substantial
additional administrative burden for agencies.
As proposed in the draft regulations, the record of decision would,
where appropriate, identify the reasons why other specific consider-
ations of national policy overrode the environmentally preferable
alternative or alternatives. Section 1505.2(b). Another approach would
have required the agency simply to identify the factors which it considered
in reaching its decision without explaining how they were weighed against
the environment. This approach would accord agencies more latitude in
explaining their decisions but would probably not produce as analytical
an explanation or one geared to the purposes of the Act.
The record of decision would be available to the public upon request
under the Freedom of Information Act and other federal laws. The sug-
gestion that it be formally circulated to all interested parties was
rejected as an unnecessary administrative burden. Similarly, since an
agency is already required to wait for a specified period following the
issuance of a final statement before implementing its decision, a second
waiting period following the issuance of a record of decision was deemed
unnecessary. Finally, a suggestion that any documents used by the
agency in making its final decision be appended to the record of decision
was rejected. Such documents could otherwise be available upon request..
Appending them to the record of decision could substantially lengthen
this document and make it less useful for those seeking a succinct
explanation of agency action.
(v) Provisions For Ensuring More Analytic,-Accurate and
Objective Environmental Impact Statements
(a) List of Preparers
Section 1502.17 of the draft regulations requires an EIS to identify and
briefly describe the qualifications of those persons primarily respon-
sible for preparing it. The basic objective of this provision is to
improve the quality of EISs, to aid in implementing Section 102(2)(A)
and to enhance the professional role of impact statement preparers by
providing that their contributions, especially in background studies, be
attributed and thereby made a part of the literature'of their disciplines.
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An alternative approach would have required the EIS to identify a single
principal author for each section of the EIS. This approach was deemed
infeasible since many EISs are prepared by teams of agency personnel
without any single individual assuming primary responsibility for entire
sections of the document. Nor would it be practical to identify the
authors of individual pages or paragraphs in the EIS.
Another alternative would have required that agency offices rather than
personnel be identified. This approach would decrease recognition of
personal performance and responsibility and thereby reduce the incentive
that Section 1502.17 provides for improving the quality of EISs.
(b) Agency Responsibility For Environmental Impact Statements
Section 1506.5 of the draft regulations provides that every environ-
mental impact statement shall be prepared directly by or under contract
to a Federal agency. While Federal agencies would also be required to
take responsibility for the scope and content of environmental assess-
ments, the actual preparation of these documents could be performed by
non-Federal agencies or private organizations or applicants. Before a
contractor could prepare an EIS or any part thereof it would be required
to execute a disclosure statement prepared by a Federal agency which
specified that it had no financial or other interest in the outcome of
the project.
There were two primary alternatives to this draft provision. One
.alternative would have permitted the preparation of EISs by non-Federal
agencies or organizations not under contract so long as the Federal
agency retained ultimate responsibility for their scope and content.
This approach would divorce the preparation of-the EIS from Federal
agency planning and decisionmaking. .Moreover, the experience of the
Council. has been that EISs prepared by such applicants may be self-
serving.
A second alternative would require Federal agencies to prepare all
environmental documents and prohibit contracting for these purposes. A
variation of this alternative would require Federal agencies to prepare
specified portions of environmental documents such as the alternatives
section of an EIS without outside assistance. The difficulty with both
approaches is that Federal agencies frequently do not possess the
expertise necessary to analyze adequately every issue raised by a
proposal and must use other agencies or private organizations to provide
the necessary analytical expertise so that the agency can adequately
consider and weigh the alternatives in making its decision.
(c) Methodologies
Section 1502.24 of the draft regulations requires agencies to identify
the methodologies used in preparing the analyses contained in environ-
mental impact statements. A requirement that methodologies be explained
as well as identified was rejected on the grounds that it would lengthen
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the EIS and impose an additional burden on those who prepared it without
contributing materially to the overall usefulness of the document.
(d) Interdisciplinary Analysis
Section 1502.6 of the draft regulations provides that environmental
impact statements shall be prepared using an interdisciplinary approach
which will insure the integrated use of the natural and social sciences
and the environmental design arts. Section 1507.2 of the draft regu-
lations provides that each agency shall be capable (in terms of personnel
and other resources) of complying with the provisions of Section 102(2)
of NEPA and other requirements and shall designate a person to be respon-
sible for overall review of an agency's NEPA compliance.
In the alternative, the regulations could have specified the disciplines
required to analyze particular kinds of environmental issues and required
agencies to establish interdisciplinary teams comprised of personnel
with prescribed backgrounds. However, agency personnel can effectively
make such arrangements after weighing. all relevant factors on a case-by-
case basis.
(e) The Summary of an EIS
Section 1502.12 of the draft regulations provides that every EIS shall
have a summary which stresses the major conclusions and describes areas
of controversy and critical issues discussed by the agency. Section 1502.19
provides that in prescribed circumstances the summary may be circulated.
in lieu of a draft or final EIS to all interested parties except those
requesting the entire EIS, those commenting on the final EIS, government
agencies with jurisdiction by law or special expertise with respect to
environmental issues-addressed in the EIS, and certain others.
An alternative provision allowing the circulation of the summary to all
parties in every case would reduce the amount of paper initially circu-
lated but significantly limit public access to the complete document
and make public review and comment less meaningful. A second alterna-
tive of merging the summary with the comparison of alternatives would
have provided for the presentation of basic decisional information in
a single document. However, the benefits gained from having an inde-
pendent summary would be lost, including the possibility of circulating
only the summary in specified circumstances.
(vi) Mitigation and Monitoring
Section 1505.3 of the draft regulations requires Federal agencies to
provide for the implementation of mitigation measures adopted during the
EIS process. It also authorizes agencies to monitor the results of
mitigation efforts and encourages them to do so in important cases.
Because every case does not involve significant environmental impacts,
requiring monitoring of mitigation measures in every case was considered
not necessary and unduly burdensome.
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2. Reducing Paperwork.
This section analyzes the provisions in the draft regulations and
alternative methods for reducing paperwork.
(i) Page Limits
Section 1502.7 of the draft regulations provides that final environ-
mental impact statements shall normally be less than 150 pages long and,
for proposals of unusual scope or complexity, shall normally be less
than 300 pages. Other sections of the draft regulations establish page
limits for the cover sheet ("shall not exceed one page") and the summary
(will normally be less than 15 pages long). Section 1508.9 provides
that an environmental assessment normally would not exceed several pages
in length.
In the alternative, the regulations could have established mandatory
page limits that would apply in every case rather than limits which were
"normally" applicable. This would ensure that the length of EISs would
be reduced to the fixed page limit. However, NEPA requires a thorough
evaluation of alternatives and significant environmental impacts for an
immense variety of major Federal actions. A more flexible approach was
adopted in the regulations to ensure that this fundamental goal was not
jeopardized by arbitrary or unrealistic limitations on length.
A second alternative would have simply encouraged agencies to prepare
.shorter documents in accordance with general criteria for determining an
appropriate length. We considered that suggesting generally applicable
maximum lengths would be more effective in reducing the length of EISs.
A final alternative would have created an incentive for preparing shorter
documents by linking the length of an EIS to the amount of time allocated
for public review and comment. This alternative would provide members
of the public additional time to evaluate longer and more complicated
documents. Agencies seeking to expedite completion of the NEPA process
would have an incentive to avoid longer EISs because longer public
comment and review periods would follow. For many Federal actions the
usual duration of the public review and comment period is not a signifi-
cant portion of total project time and agencies would not view the
prospect of longer public review periods as a strong disincentive to
longer documents. And a longer comment period would probably not add
appreciably to the time required to complete the entire NEPA process.
(ii) Abbreviated Discussion of Less Important Issues and Material
Several sections of the draft regulations stress generally the impor-
tance of summarizing, consolidating or simply referencing less important
issues and materials in the EIS. See e.g. Section 1502.2(b). The
distinction between what is important and what is not depends on the
circumstances of each proposal. The regulations leave the implemen-
tation of these limitations to the agency.
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(iii) Circulation of Summary in Lieu of EIS
As discussed above, where an EIS is unusually long Section 1502.19
permits, with certain exceptions, a summary to be circulated in lieu of
the entire document. Persons and organizations requesting an EIS,
Federal agencies with jurisdiction by law or special expertise with
respect to the proposal and certain others would be entitled to a copy
of the entire EIS. In the alternative, the regulations could have
allowed circulation of the summary to everyone without exception. But
this approach would significantly limit public access to the EIS.
(iv) Consolidation of Environmental Analysis
Section 1502.15 of the draft regulations provides for a consolidated
discussion of those elements of an environmental impact statement
required by Sections 102(2)(C)(i), (ii), (iv), and (v) of NEPA. This
section also requires a discussion of the environmental impacts of the
alternatives. Section 1502.16 of the draft regulations provides for a
succinct description of the affected environment. The regulations
indicate that these analyses will form the analytic and scientific basis
for comparing alternatives as required by Section 1502.14.
The chief alternative. to this approach is to preserve the status quo.
Each element of an EIS required by Section 102(2)(C) would be inde-
pendently discussed in a separate section. This approach was rejected
.because four of the elements required by Section 102(2)(C) can be
succinctly treated in a consolidated discussion. Moreover, by orienting
these analyses to the comparison of alternatives, the draft regulations
provide direction for eliminating or reducing the treatment of less
important materials and issues.
) Standard, More Concise Format
Section 1502.10 of the draft regulations provides a recommended format
for EISs, which includes an index, unless there is a compelling reason
to organize the material differently. Section 1502.18 limits the
materials which could be included in an appendix to those which were
prepared in connection with an EIS,, as distinguished from those which
are incorporated by reference. Taken together, these provisions are
designed to reduce bulk in EISs and make the documents easier to use.
These requirements could be left entirely up to the discretion of
individual agencies. This approach might forfeit the benefits of a
standard, more concise format which would cause at most only modest
administrative burdens.
(vi) Tiering and Combining Documents
Section 1502.20 encourages agencies to "tier" their environmental impact
statements to eliminate repetitive discussions of the same issues and to
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focus on the actual issues ripe for decision at each level of environ-
mental review. This practice is generally followed by most agencies and
the draft regulations provide further impetus for its use. The primary
alternative to this section would be to require rather than to encourage
that tiering be used for every action. However, tiering requires that
fine lines be drawn between various stages of agency planning and
decisionmaking. Whether a tiered analysis makes sense in a particular
case depends on the dimensions of the proposal involved and the pro-
cedures by which it will be evaluated. A mandatory requirement for
tiering would not account for circumstances where it was unwise, counter-
productive or simply impractical.
Section 1506.4 provides that environmental documents prepared under NEPA
may be combined with other agency documents to reduce duplication and
paperwork. An alternative regulation requiring that this be done in
every case, or at least for resource management plans, was rejected as
too inflexible. Agency personnel are in a better position to determine
when combining documents is practical and serves to reduce duplication
and paperwork.
(vii) Incorporation By Reference
Section 1502.21 provides that agencies shall incorporate material into
an EIS by reference where it will reduce the length of the document
without impeding agency and public review of the action. The incor-
porated material must be cited and briefly described in the EIS. No
material may be incorporated by reference unless it is reasonably
available for inspection by those participating in the NEPA process.
An alternative approach would have provided for unlimited incorporation
by reference without regard to whether referenced materials were reason-
ably available for public inspection. The requirement of availability
was adopted to ensure that important materials relied upon by the agency
were subject to public scrutiny and could be used to evaluate the
quality of the agency's analysis.
(viii) Adoption of Environmental Impact Statements
Section 1506.3 of the draft regulations authorizes agencies to adopt a
Federal final or draft environmental impact statement or portions thereof
provided that the adopted statement shall be treated and recirculated as
a draft EIS and provided further that it meets the standards for an
adequate draft statement under NEPA.
An alternative approach would have allowed the adoption of environmental
assessments as well as EISs. It was determined, however, that Federal
agencies should be more directly responsible for the initial hard look
at a proposal in an environmental assessment. Under the draft regu-
lations, an assessment normally would not exceed several pages in length.
The potential for duplication of effort for assessments would not there-
fore be great.
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A second alternative approach to adoption would have allowed Federal
agencies to adopt environmental documents prepared by state or local
agencies under other laws and regulations and treat them as draft state-
ments. The standards for preparing such documents at the state level
differ substantially from one jurisdiction to the next.
A final alternative would have established criteria for determining an
EIS's eligibility for adoption; e.g., does it cover all alternatives to
the agency's proposal; has it undergone public review and comment, etc.?
As a draft, however, the adopted EIS would be subject to the standards
of the NEPA process. The draft's treatment of alternatives and the
quality of its analysis would be subjected to review and comment before
a final statement was prepared.
3. Reducing Duplication and Delay.
This section of the memorandum discusses provisions in the draft regu-
lations and alternative approaches for reducing duplication and delay.
(i) Cooperating Agencies
Section 1501.6 of the draft regulations provides for the designation of
cooperating agencies to assist the lead agency, upon request, in preparing
EISs by sharing expertise and assuming responsibility for environmental
analyses within their special competence. While the lead agency would
have primary responsibility for the EIS, cooperating agencies would be
required to become involved at the earliest possible time and play a
supporting role throughout the NEPA process. This arrangement is
intended to provide a foundation.for smooth working relationships among
Federal agencies concerned with the proposal, to facilitate cooperation
in preparing EISs, to avoid disagreements over the process in the
latter stages of Federal decisionmaking, and to foster harmony in Federal
programs and policies. A cooperating agency may adopt an EIS of a lead
agency when the lead agency has satisfied the comments and suggestions
of the cooperating agency. Section 1506.3(b).
Under the draft regulations, the only Federal agencies required to be
cooperating agencies are those which have jurisdiction by law over the
proposal. Other agencies may decline to assume this status. An alterna-
tive approach would have authorized lead agencies to designate agencies
with special expertise as cooperating agencies even though they had no
jurisdiction by law over the proposal. With this authority, lead
agencies could require the cooperation of Federall resource management
and pollution control agencies in practically every case. Agencies such
as the Environmental Protection Agency, the Fish and Wildlife Service,
the United States Geological Survey and others with special expertise in
environmental matters could be required to assume a disproportionate
share of the responsibility for preparing EISs on proposals that would
otherwise be of little concern or interest to them.
A second alternative would require (rather than authorize) the lead
agency to designate agencies with jurisdiction by law over the proposal
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as cooperating agencies. This alternative compels cooperation from
other agencies even if the lead agency felt it was not needed.
A final alternative would simply encourage agencies to cooperate in the
early stages of the NEPA process but require them to comment on EISs
within their jurisdiction. Something stronger than encouragement was
considered necessary to achieve the level of cooperation necessary to
reduce duplication and delay in the NEPA process that occurs under
existing procedures.
(ii) Resolution of Lead Agency Disputes
Section 1501.5 establishes criteria and procedures for the designation
of a lead agency where this matter cannot be resolved informally among
the agencies potentially responsible for assuming this role. The
criteria are ranked in order of importance. Section 1501.5(c). The
Council would be required to resolve lead agency disputes within specified
time frames. The draft regulation is designed to expedite resolution of
such disputes when they arise.
One variation on the draft regulation would be to establish but not rank
criteria for designating lead agencies. This is the approach taken in
the existing Guidelines and it allows more discretion in making these
determinations. Ranked criteria are more mechanical, easier to apply
and promote the resolution of many potential disputes without the need
for a formal appeal to the Council. They were included in Section 1501.5
for this reason.
Another alternative would create an intermediate appellate body such as
the Environmental Protection Agency or the Chairman of a Federal Regional
Council to pass on lead agency disputes in the first instance. This
alternative would add a layer to the appellate process and serve to
complicate the resolution of what should ordinarily be a relatively
simple issue.
(iii) Joint Federal-State Preparation of Environmental Impact
Statements
Sections 1501.5(b) and 1506.2 authorize the designation of state agencies
as joint lead agencies and the joint preparation of environmental impact
statements. More generally, these provisions stress the importance of
cooperation in environmental matters at all levels of government.
An alternative approach would require the Council to certify which State
environmental review procedures were equivalent to those required by
NEPA and authorize Federal agencies to defer to documents prepared under
a certified state program. However, NEPA does not authorize such a
procedure. Moreover, there would be an immense drain on the Council's
resources to evaluate state environmental laws, let alone monitor the
quality of their implementation.
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A second approach would be to draft model state legislation which would
allow state agencies to make use of Federal EISs in their decisionmaking.
The Council is also pursuing this approach in cooperation with the
Council of State Governments.
A third alternative would mandate joint federal-state preparation of
EISs. Federal agencies have no authority to require the cooperation of
state agencies in this area.
(iv) Integrating Environmental Analysis With Planning and
Dec isionmaking
Section 1501.2 requires Federal agencies to identify environmental
effects and values in such detail as is required to compare them with
economic and technical considerations in agency planning and decision-
making. This section also requires environmental documents and analyses
to be circulated and reviewed at the same time as other planning docu-
ments. By requiring the environmental component of an agency's planning
to run concurrently with other elements in the process, this section is
intended to reduce or eliminate the delay that could result from a two-
step or bifurcated analysis. It is also designed to disclose environ-
mental issues in the early stages of a proposal's formulation when, if
conflicts occur, they are easier to resolve and.to further the imple-
mentation of other sections of NEPA, especially Section 102(2)(B).
,One variation on this approach would have specifically tied each stage
of the NEPA process to precise points in agency decisionmaking to ensure
that integration of the two processes actually occurred. This approach
was rejected as not providing agencies with sufficient flexibility to
meld NEPA with their own procedures in the manner which best serves
their decisionmaking purposes. A second variation requiring that environ-
mental documents contain precisely the same amount of detail and be
circulated to the same officials as other planning documents was similarly
rejected as unduly constraining Federal agency decisionmaking.
(v) Time Limits
Section 1501.8 would establish criteria for setting time limits for the
completion of the NEPA process or constituent parts of the process. Upon
request from a private applicant, the lead agency would be required to
set time limits provided that they are consistent with the purposes of
NEPA and other essential considerations of national policy.
The primary alternative would be to fix precise time limits for com-
pleting the NEPA process for all agency actions. In view of the
diversity of agency decisionmaking procedures, and the variety of
factors which bear on the time required to analyze Federal actions,
fixed time limits would be unworkable. This was the consensus among
members of the public, private organizations and Federal agencies
commenting on this suggestion.
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(vi) Legislative Environmental Impact Statement
Section 1506.8 of the draft regulations would provide for the prepar-
ation of legislative environmental impact statements on proposals for
legislation significantly affecting the quality of the human environment.
Except in prescribed circumstances, a single statement would be trans-
mitted to the Congress with the legislative proposal and circulated for,
review and comment to Federal, State and, localagencies,ahd the public.'
No revised EIS would be required.
An alternative approach would require that a final EIS he prepared in
every case. Congress may request Federal agencies to provide it with
any additional. environmental information it needs. Administration
proposals will be considered alongside other proposals introduced by
members of Congress and the firm product, if any, may be substantially
different from the proposal transmitted by the Federal agency. Congress
may hold hearings on legislative proposals and invite testimony on all
aspects of proposed legislation including its environmental impacts. Thus,
it seemed overly burdensome to devote resources 'to the preparation of a
final statement in every case.
A second alternative approach would be to require legislative statements
on all comments and testimony transmitted to the Congress. As a prac-
tical matter, this could substantially interfere with the ability of the
Executive Branch to communicate with the Congress. Congress and the
.Executive Branch are constantly interacting in a fluid policymaking
process. Strict procedural requirements are simply not practical in
this context. If the Congress determines that environmental analyses
are required for its deliberations the Executive Branch would, upon
request, ordinarily provide them.
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INSTRUCTION NO. LI 45-16
LI 45-16 LOGISTICS
Revised 22 January 1974
SUBJECT: Procedures for Implementing Section 102(2)(C) of the
National Environmental Policy Act
1. PURPOSE
This Logistics Instruction prescribes procedures for implementing Section
102(2)(C) of the National Environmental Policy Act of 1969 (Public Law
91-190), hereinafter referred to as the Act, with regard to:
a. The design, construction, alteration, operation, and use of public
buildings and sites.
b. The lease, purchase, or operation of other facilities or properties.
c. The operation or use of property, equipment, vehicles, and other
moans of transportation.
2. BACKGROUND
a. Section 10'(2)(C) of the Act directs all Federal agencies to identify
and develop methods and procedures which will ensure that environmen-
tal amenities and values are given appropriate consideration in deci-
sioranaking, along with economic and technical considerations, and to
prepare a detailed statement on major Federal actions that signifi-
cantly affect the quality of the human environment. Executive Order
11514 of 5 March 1970, "Protection and Enhancement of Environmental
Quality," implements the purpose and policy of this Act, and "Guide-
lines," implementing its provisions, have been issued by the Council
on Environmental Quality.
b. The Act does not prohibit projects which are determined to have ad-
verse impact but only insists that the environmental statements
address each of these impacts and consider possible alternatives.
3. RESPONSIBLI: OFFICIALS
a. The Director of Logistics has been designated the Responsible Official,.
referred to in Section 102(2)(C) of the Act, who shall:
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INSTRUCTION NO. LI 45-16
LI 45-16 LOGISTICS
Revised 22 January 1974
(1)
Determine if proposed Agency actions require environmental
impact statements.
(2) Ensure the fullest practicable provision of timely public
information relative to Agency plans for actions of the type
described in paragraph 1 which will impact on the human envi-
ronment, and he shall obtain views of interested parties
before committing final administrative action:
b. The Chief, Real Estate and Construction Division, will assist the
Director of Logistics, as required, including the following:
(1)
Provide technical competence for assessment studies of proposed
projects and actions.
(2) Develop environmental impact statements when they are deemed
necessary.
(3)
Maintain a list oil actions for which environmental statc:,,ents
are being prepared, revising the list as proposed actions are
added or dropped.
(4) Report revision of the list to the Council on Environmental
Quality quarterly, along with any negative determinations.
c. Independent Operating Officials shall review proposed projects with
the Director of Logistics at the earliest possible stage of the pro-
posal.
4. DEFINITION OF TER LS
In the context of this Instruction, the.followtiwing terms ere defined as,
stated below:
a. Determination - a foniia.l decision by the Director of Logistics that
an environmental statement is to he prepared for a proposed action.
A neative determination is a decision that preparation of a state-
0 is not merited.
b. Environmental Assessment Study - an organized investigation of a
proposed Agency action undertaken to evaluate the significance of
the impact that the action may have on the environment.
c. Envirorvnental Assessment - a written analysis describing environ-
mental impacts of Agency actions which is submitted to the Director
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INSTRUCTION NO. LI 45-16
LI 45-16 LOGISTICS
Revised 22 January 1974
of Logistics to ass st dote rmi.nation decisions. Information required
in the assessment shall parallel the contents required in an environ-
mental impact statement - see paragraph 6.
d. Environmental Impact Statement - a report prepared by the Agency
which identifies and analyzes in detail the environmental impact of
an Agency action.. Statements are to be prepared in draft and final
forms. See paragraph 6 for detailed listing of required contents.
5. IN'TE?LN'AI, REVIEW OF PROPOSED AGENCY ACTIONS AND DETERMINATIONS
a. For each proposed action or project. of a type listed in paragraph 1,
an assessment shall be made as early as possible, before a final
determination is made, as to the significance of and the controver-
si.al.ity of the action aloiy with its probable environmental impact.
b. if the p eliminary assessment indicates a potential for impact in
the categories of pollution (air an(,' water) , land use, and use of
ci?erl r resources. further detailed studies shall be conducted to
such a point that will allow a clear determination or negative deter-
mination to be mod .
c. Projects or actions for which environmental impact statements would
normally be made include the following:
(1) Construction of new facilities and the legislative requests
for appropriation for new construction.
(2) Acquisition or disposal of real property, by lease, assignment,
purchase, or otherwise, the operation ,of which, by the process
involved, {dversely affects the environment..
O Actions that would force displacement of people or relocation
of ennplcyces naturally affecting population density. Facility
relocations within the Washington metropolitan area shall be
examined relative to policies of the National Capital Planning
Commission.
(4) Major renovations of existing Agency facilities that alter the
basic fimct ion-, of space in excess of 10,000 gross square feet.
d. Basis For Determination:
(1) "Major Federal Actions" shall be construed to include Agency
actions viewed against the cumulative impact of related actions
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INSTRUCTION NO. LI 45-16
LI 45-16 LOGISTICS
Revised 2.' January 1974
.by other agencies in the project area. If there is potential
that the environment may be significantly affected, a state-
ment is to be prepared.
(2) Agency actions likely to be controversial should be covered
by an environmental statement in'al.l cases.
6. CON7 T OF ENVIRONMENTAL STATENEN71"S
a. The following points are to be covered in draft: and final environ-
mental impact statements:
(1) Describe the proposed action and its purpose.
(2) Describe the existing environment to be affected, supplemented
with maps, photos, charts, and other graphic media commensurate
with the extent of the impact and with amount of information
required at the particular level of decisioiumaking.
(3) State relationship of proposed action to land use plans, pol-
icies, and controls for the affected area.
(4) Describe the probable impact on the environment in both posi-
tive and negative aspects. Include primary and secondary
consequences which cannot be avoided such as pollution, urban
congestion, and threats to environmental goals.
(5) State alternatives to the proposed action and illustrate
desirability relative to the recommended course of action pro-
posed. Discuss alternative measures to compensate for losses
to wildlife and alternative design approaches that significantly
affect consumption of energy or other resources.
(6) Discuss the relationship between local, short-term use and the
maintenance and enhancement of long-term productivity of man's
environment.
(7) Identify any irreversible and irretrievable commitments of
resources should the action be implemented. This requires
identification of the extent to which the action would curtail
the range of heneficial use of the emrironment and affect his-
toric features to be preserved.
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INSTRUCTION NO. LI 45-16
LI 45-16 LOGISTICS
Revised 22 January 1974
(8) Indicate other interests and considerations of Federal policy
which are thought to offset the proposed action's adverse
effects.
(9) Where appropriate, discuss problems and objections raised by
other Federal, state, and local agencies and by the public
during the, review process.
b. Each environmental statement shall be prepared in accordance with
the precept of Section 102(2)(C) of the Act that all agencies
utilize a systematic interdisciplinary approach which will ensure
the integrated use of the natural and social sciences in concert
with environmental design arts in planning and decisionmaking which
may have impact on man's environment. The preparation process in-
volves circulation of statements to other Federal agencies for
review and coninent, dissemination of information to the public,
publishing statements in the Federal Rei;ister and the submitting
of statements to the Council on Fnvironmmcntal Quality as required
by the Council guidelines.
c. Each draft and final statement shall be accompanied by a summary in
the format stipu.ated in Appendix T. of the Council on -Environmental
Gi.iality guidelines dated 1 August 1973.
7. REVIEW OF I;r'IRONII1;NTAL STATE-tEN'TS BY FEERAI,, STATE, A.'~T) LOCAL
GENCIIS :~..\`D M THE PUBLIC
a. To meet statutory requlcements of making environmental statements
available to the President, draft statements and final statements,
together 14ri.th the substance of all cononents, shall be sent to the
Council on Environmental Quality as soon as they are prepared.
Transmit statements to the Council in 10 copies. Simultaneously,
copies being sent to other agencies for review and comment should
he issued.
b. The Council will publish weekly in the Federal Register lists of
statements received for public revi.e.~. lute o pu71ications of
such lists shall he the date, from I,hich minimum periods for review
and advance availability are calculated.
c. Draft . nvi.roiimcntal statcmrcnt.s should he ci_rculated for review to
Federal and state agencies with relevant expertise. Refer to Appen-
dices IT, III, and TV of the Cotuicil on Environmental Quality guide-
lines dated 1 August 1973 For a listing of such agenci.es..
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INSTRUCTION NO. LI 45-16
LI 45-16 LOGISTICS
Revised 22 Ja uary 1974
d. Draft environmental statements should be submitted in all cases to
the Environmental Protection Agency for review and written comment
e. Public review of environmental impact statements shall be accom-
plished by making draft and final statements available to the public
free of charge or at no more than actual cost of reproduction. The
intent to prepare environmental impact statements, the holding of
public hearings, and the availability of draft and final statements
shall be announced by public notices in local news media serving
the geographical area wherein the environmental impact is being
assessed. Such public notices shall be timely and contain suffi-
cient information about the action contemplated and its possible
impact, so the public can determine whether it should seek access
to the impact statement. The notices shall also inform the public
how it may gain access to, or obtain, copies of the statement.
1`7ren requesting review and comment from entities external. to the
Agency, project managers shall establish an appropriate time period
based on the complexity of the statement but not less than 45 days
from the date of publication of the statement in the Federal Register.
Requests for extensions of time by reviewing bodies up to 1S Jays
should be honored.
g. Final environmental statements shall be published and circulated to
all organizations and individuals that made substantive comments on
the draft statement. In all cases, copies shall be sent to the
Environmental Protection Agency.
8. ADMINISTRATIVE.. ACTIONS RI LvTIVF. TO REVIEWS OF %tN IRON:vIER'fAL STATEvftii'S
a. To the maximum extent possible, execution of actions and projects of
the types identified in paragraphs It and Sc shall not start sooner
than 90 days after a draft statement has been furnished the Council,
circulated for comment, and made available to the public.
b. Similarly, execution of proposed actions and projects shall not start
sooner than 30 days after a final statement has been made available
to the Council, commenting agencies, and the public.
c. The final statement with its appended continents shall accompany the
proposal through the existing review processes internal to the Agency
prior to execution.
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INSTRUCTION NO. LI 45-16
LI 45-16 LOGISTICS
Revised 22 January 1974
a. Preliminary Agency review process:
(1) RECD/OL review of proposed action for assessment relative to
the Act and the necessity for preparation of an environmental
impact statement.
(2) Director of Logistics determination to prepare an environmental
impact statement.
(3) Publish the intent to prepare an environmental impact statement,
or report to the Council on environmental Quality a negative
determination in case of an action that normally requires an
environmental impact statement.
b. Environmental impact statement process:
(1) Prepare draft environmental impact statement.
(2) Issue draft to the Council on Environmental Quality, commenting
agencies, and make available to the public. Publish availa-
bility of the draft in the Federal Register and by public
notices in appropriate loca'Tnews. media.
(3) After 45 days minimtm-m, collect comments and revise the draft,
as required.
(4) Issue final text of the environmental statement with convents
on the draft to the Council on Environmental Quality and com-
menting parties. Publish availability of the final environmen-
tal impact statement in the Federal Register and by public
notices in appropriate local news me icTTa. e
(5) After 45 days minimuUm, collect the final. comments and conduct
an intenial Agency review.
c. Final Agency review:
(1) The environmental impact. statement, with relevant comments,
shall accompany the proposal during review.
AftIINISTRATIVE - INTERNAL USE ONLY
Approved For Release 2005/07/12 : CIA-RDP85-00759R000100170001-7
 Approved Folelease 2005/07/12: CIA-RDP85-0075000100170001-7
ADMINISTRATIVE I STERNAL USE ONLY
INSTRUCTION NO. LI 45-16
LI 45-16 LOGISTICS
Revised 22 January 1974
(2) Modify the proposal, as required, to satisfy environmental
impact statement reviews.
(3)
Authorize the project for execution.
l.?.< 1 r .
Director of Logistics
ADMINISTRAT1\T. IT'1I'Il' AL USE ONLY
Approved For Release 2005/07/12 : CIA-RDP85-00759R000100170001-7