NEPA Implementation
Project Development and Documentation Overview
Federal Highway Administration
August 21, 1992
Table of Contents
I. FEDERAL REQUIREMENTS
II. ENVIRONMENTAL
DOCUMENTS
History
Early Coordination
Significance
Processing Options
- Environmental Impact Statements
- Categorical Exclusions
- Environmental Assessments
Mitigation and Enhancement
Reevaluation
Supplemental EIS
III. PRACTICAL APPLICATIONS
- QUESTIONS AND ANSWERS
I. FEDERAL REQUIREMENTS
A. Legislation:
Federal-Aid Highways,
Title 23, United States Code, "Highways," National Environmental Policy
Act of 1969, as amended (NEPA), plus numerous other related statutes and
orders.
B. Regulations:
"Regulations for Implementing
the Procedural Provisions of the National Environmental Policy Act" -
40 CFR Parts 1500-1508, November 29, 1978 (Council on Environmental Quality
- CEQ)
"Environmental Impact
and Related Procedures" 23 CFR 771, August 28, 1987 (FHWA)
C. Federal Highway
Administration (FHWA) Guidance:
"Guidance for Preparing
and Processing Environmental and Section 4(f) Documents" - FHWA Technical
Advisory T6640.8A, October 30, 1987
D. Other Guidance:
"Questions and Answers
about NEPA Regulations," Council on Environmental Quality (CEQ) Memorandum,
March 16, 1981
The RED BOOK - "Applying
the Section 404 Permit Process to Federal-Aid Highway Projects," FHWA
et al, September 1988
(FHWA Environmental
Guidebook (primarily an internal document) - An all-inclusive compendium
of environmental guidance information which includes the following:
"Section 4(f) Policy
Paper," October 5, 1987 as updated June 7, 1989
"Transportation Enhancement
Activities," FHWA Memorandum, April 24, 1992
"Cooperating Agencies,"
FHWA Memorandum, March 19, 1992
"Purpose and Need,"
FHWA Memorandum, September 18, 1990
II. ENVIRONMENTAL DOCUMENTS
History
The 1960's brought
about an increase in awareness and concern for the environment. In response
to this, Congress passed and signed into law, the National Environmental
Policy Act of 1969 (NEPA). This Act has three major goals that have influenced
the Federal Highway Administration (FHWA) and all Federal agencies: (1)
it sets national environmental policy; (2) it establishes a basis for
environmental impact statements (EISs); and (3) it created the CEQ. NEPA
requires that to the extent possible, policies, regulations and laws of
the Federal Government be interpreted and administered in accordance with
NEPA. It also requires Federal agencies to use an interdisciplinary approach
in planning and decisionmaking for actions that impact the environment.
(In FHWA, the interdisciplinary expertise is provided with review by the
Washington Headquarters and Regional Offices.) Finally, NEPA requires
the preparation of an EIS on all major Federal actions significantly affecting
the human environment.
NEPA calls for an
examination and consideration of impacts of the proposed action on sensitive
resources when we are considering a transportation facility. These resources
include, but are not limited to, floodplains, wetlands, endangered species,
historic and archeological sites, parklands, air quality, wildlife habitat,
etc. There also are the transportation needs that need to be fulfilled.
Because of impacts to resources and needed transportation improvements,
we use a balanced decisionmaking process that considers a range of factors
of both impacts to the resources and the transportation needs. The decision
of how to balance these factors rests with FHWA.
It is FHWA's policy
that all environmental protection and enhancement requirements, including
those set out in Section 4(f) of the Department of Transportation (DOT)
Act which protects historic sites and publicly owned public parks, recreation
areas, wildlife and waterfowl refuges, and 23 U.S.C. 109(h), which mandates
consideration of social and economic impacts to the human environment,
be completed as part of the NEPA process. Evidence of this compliance
must be contained in the appropriate documentation. Further, it is FHWA
policy that public involvement be an essential part of this process.
As noted above, NEPA
called for the creation of the Council on Environmental Quality (CEQ).
The CEQ is an office within the Executive Office of the President and
has four main functions: (1) to develop environmental policies for the
nation; (2) to monitor environmental quality; (3) to prepare an annual
environmental quality report; and (4) to monitor Federal actions.
In 1970, CEQ issued
guidelines for the preparation of environmental documents. The FHWA prepared
a policy directive in response to those guidelines as did some other Federal
agencies. For FHWA this regulation is "Environmental Impact and Related
Procedures," 23 CFR 771, effective November 28, 1987. The CEQ monitored
Federal environmental processing of all the agencies, and found that EISs
were too long with less important issues being discussed at great length,
that there ' was poor or no early coordination, and that the process led
to unnecessary delays caused by confusion over differing terminology and
procedures among Federal agencies. To remedy these problems, President
Carter issued Executive Order (EO) 11991 in May 1977. The key provision
of the EO was that CEQ could issue mandatory regulations, not just guidelines,
for implementing the provisions of NEPA consistently throughout the Federal
Government. The result was the CEQ Regulations for Implementing the Provisions
of the National Environmental Policy Act," 40 CFR Parts 1500-1508.
The principal goals
of the CEQ regulations are to reduce paperwork and delays, and to produce
better environmental decisions. The regulations focus on four key areas:
(1) early coordination; (2) completing the environmental process; (3)
uniform processing options for all agencies; and (4) faster and better
processing.
To improve early coordination,
the CEQ regulations introduced the concept of "lead agency" and "cooperating
agency." The lead agency is that Federal agency which is responsible for
the Federal action. The cooperating agencies are those with special expertise
(e.g., the Fish and Wildlife Service, the Department of the Interior)
or jurisdiction by law (e.g., the Army Corps of Engineers (COE) or the
Coast Guard (USCG) when a permit is necessary). The CEQ also instituted
a scoping process which was intended to get the lead and cooperating agencies
and other interested groups together early in the project development
process to determine the scope of the issues to be addressed, and identify
any important issues related to the proposed action. By properly using
the early coordination process, agencies could avoid conflicts later,
and could assure the full input from the various interests. Early coordination
continues to be emphasized in all transportation guidance and legislation.
In order to aid in
completing the process, CEQ introduced two specific formal decision documents:
(1) the Finding of No Significant Impact (FONSI) and (2) the Record of
Decision (ROD). These will be discussed in more detail later, but use
of these reflects CEQ's belief that the environmental document should
be a full-disclosure information document but that there still was a need
for a formal decision document.
The CEQ regulations
also established uniform processing options for all Federal agencies.
These options are the categorical exclusion (CE), the EIS, and the environmental
assessment (EA).
One key early decision
for FHWA is the type of document needed to satisfy the NEPA process and
thus advance a project. Remember, NEPA requires an EIS for major Federal
actions significantly affecting the human environment, and 23 U.S.C. 109(h)
requires consideration of adverse economic and social (as well as environmental)
impacts for Federal-aid highway projects. The key here is "significance,"
and guidelines for determining significance will be described later. For
now it is important to understand that projects with clearly identified,
significant social, economic, or environmental impacts always require
an EIS.
A second type of project
also emerges--those without significant impacts. These CE projects, under
certain circumstances, can be "categorically excluded" from having an
EIS prepared. A third grouping is those projects with uncertainty as to
whether there is a significant impact. In those cases, EAs are prepared
to determine if there will or will not be significant impacts associated
with a project. If there are no significant impacts, a Finding of No Significant
Impact (FONSI) is prepared. If the EA indicates there are significant
impacts, an EIS must be prepared.
Early Coordination
Early coordination
with other agencies and the public is an essential part of the project
development process. This coordination can help you in determining the
appropriate level of documentation and developing the project purpose
and need discussion, as well as in identifying the NEPA and permit requirements
of other agencies, the range of alternatives, impacts to resources, possible
mitigation measures, and opportunities for environmental enhancement.
When you begin early coordination, be aware of three items: (1) cooperating
agencies, (2) the memorandum of understanding-with the USCG, and (3) the
memorandum of agreement with the COE. The agreements with the USCG and
COE were developed because of the large number of permits required from
these agencies. A Section 404 permit from the COE is required for any
dredge/fill operation in waters of the United States including jurisdictional
wetlands, and the USCG requires permits for crossings of navigable waters.
The central feature of these agreements is that, if we get the COE and
USCG involved in the process early, they can adopt FHWA's NEPA documentation
to fulfill the NEPA requirements for their permit action. As one approach
towards improving interagency coordination, the Red Book emphasizes the
merging of the common elements of the NEPA and Section 404 permit processes.
The Red Book has been adopted as policy by the DOT, EPA, and COE.
The lead agency/cooperating
agency concept was introduced by CEQ to aid in early coordination and
faster and better processing. A lead agency is responsible for supervising
the preparation of the environmental documentation. Cooperating agencies
are those agencies specifically requested by the lead agency to assist
during the environmental process. CEQ's regulations require that those
Federal agencies with jurisdiction by law be requested to be cooperating
agencies for EAs and EISs. Examples include the COE where Section 404 permits
are involved, the USCG where a Section 9 permit is involved, the EPA for sole-source aquifers, and other Federal agencies
where a land transfer from that agency is needed. Also included as potential
cooperating agencies would be any other Federal agency with special expertise,
any State agency, local agency, or Indian tribe when Indian reservation
land is involved.
Cooperating agencies
should be requested as early in the process as possible. The point here
is to get these agencies involved so they have real input early rather
than later where they are merely reacting to our proposals. Either the
State or FHWA can request cooperating agencies.
If an agency with
jurisdiction by law declines a request to be a cooperating agency, notify
FHWA Headquarters, so that we can assist in resolving the problem.
A cooperating agency
does not necessarily need to perform any analysis or provide any substantive
narrative for the document, but the expectations and responsibilities
of a cooperating agency should be clearly understood. When a cooperating
agency has jurisdiction by law, that agency's role should be acknowledged
in the environmental documentation. A cooperating agency, while not necessarily
agreeing with every word in the document, should be in a position (at
the end of the process) to state that the final document fulfills its
responsibilities under NEPA.
Significance
To determine the appropriate
class of action and thereby the requisite level of documentation necessary
to comply with NEPA, it is essential to understand the term "significance."
The CEQ regulations (40 CFR 1508.27) state that two main points should
be considered in determining significance: context and intensity.
Impacts can be considered
in the context of society as a whole, the affected region, or locality.
In the case of a site-specific action, significance would usually depend
on the effects in the locale rather than in the world as a whole. Both
short- and long-term effects are relevant.
For example, filling
one acre of a one hundred-acre wetland probably could be considered not
significant, but filling one acre of a two-acre wetland may be considered,
under certain circumstances, a significant impact. The intensity is the
same, but the context is different.
Factors to consider
regarding intensity or severity of impacts include: (1) impacts that may
be both beneficial and adverse; (2) the degree to which the proposed action
affects public health or safety; (3) unique characteristics of the geographical
area; (4) the degree to which the effects on the quality of the human
environment are likely to be highly controversial; (5) the 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; (7)
whether the action is related to other actions with individually insignificant
but cumulatively significant impacts; and (8) the degree to which the
action may adversely affect resources listed in or eligible for listing
in the National Register of Historic Places; (9) the degree to which the
action may adversely affect an endangered or threatened species or its
habitat; and (10) whether the action threatens a violation of Federal,
State, or local law or requirements imposed for the protection of the
environment.
Processing Options
Environmental Impact
Statement
When the proposed
action will have a significant impact on the environment, an EIS is required.
Less than 5 percent of all FHWA projects involve EISs, but these are the
projects which require the most time and effort to complete.
As soon as a decision
has been reached to prepare an EIS, the FHWA division office should prepare
a Notice of Intent. Guidelines for preparation of these notices are given
in Technical Advisory T6640.8A. This notice which is published in the
Federal Register is a brief announcement that FHWA will be preparing an
EIS.
Scoping is a formal
coordination process, required by CEQ, which determines the scope of issues
to be addressed and identifies the significant issues related to the proposed
action. It can be done by letter, phone or formal meeting. You should
assure that it occurs early and involves both affected agencies and interested
public, and is well-documented. The scoping and Notice of Intent requirements
reflect CEQ's concern for early coordination and faster and better processing.
Technical Advisory
T6640.8A provides guidance on what should be in the EIS. It provides the
required format and the type of information that should be developed in
the EIS. A brief summary of the major EIS sections follows:
Project Purpose and
Need is one of the most important elements of project and needs to be
well-documented in the EIS. This discussion should be clear and specific,
and support the need for the project. For example, if there is a capacity
problem, it should be stated in this section and referenced in later traffic
discussions, not the other way around. Some of the common "needs" we see
in ElSs include: transportation demand, safety, legislative direction,
urban transportation plan consistency, modal interrelationships, system
linkage, and the condition of existing facility. Graphics and tables are
particularly helpful in clarifying the discussion.
The Alternatives section
describes the reasonable alternatives to achieve the project's purpose
and need, how they were selected, and provides a clear basis for choice
among the options. In developing your alternatives, you must comply with
the requirements of 23 CFR 771.111(f), which states that projects must
connect logical termini, have independent utility, and not restrict consideration
of future transportation alternatives. Also, you may have examined some
alternatives early in the process but found them to be not reasonable
for further consideration. The Alternatives section should briefly explain
why these alternatives were rejected from further study.
In the draft EIS stage,
all reasonable alternatives should be discussed at a comparable level
of detail. There is no requirement at this stage to have a "preferred"
alternative; however, if an official position has been taken on one of
the alternatives, this should be so stated in the document. Of course,
at this stage in the process, no final decision can be made.
The "no-build" alternative
must always be included. In addition to fulfilling a requirement, discussion
of this alternative can serve two purposes. First, it may be a reasonable
alternative, especially where the impacts are high and the need is relatively
minor. More often, the no-build serves as a benchmark against which the
impacts of the other alternatives can be compared. As part of this alternative,
short-term minor reconstruction, such as safety upgrading and maintenance
projects, can be considered.
Transportation System
Management must be included as an alternative or design option where applicable.
This can include high-occupancy vehicle lanes, ridesharing, signal synchronization,
and other actions. Also, where appropriate, mass transit options should
be considered.
Graphics, should show
the location of the alternatives in relation to each other and the project
area. Alternative termini points and design features, such as the number
of lanes and location of interchanges, should also be shown.
The Affected Environment
section is one area in EISs where there has been a tendency to include
too much information. These documents are for decision purposes and, as
such, descriptions should be no longer than needed to understand the area
and the impacts of the alternatives. The affected environment section
should discuss, commensurate with the importance of the impact, the existing
social, economic, and environmental setting. Also, it should identify
environmentally sensitive features. The use of graphics and/or photographs
for this purpose is especially effective.
The Environmental
Consequences section describes the impacts of the alternatives to the
affected environment and documents the methodologies used in the evaluation.
This information will be used to form a basis for the comparison of alternatives.
One problem we have seen in this section is the use of generic statements
like, "all highway construction in this area will cause erosion which
adds to sediment loading in streams." That may be true enough, but it
does not help differentiate between the alternatives or show the relative
severity of the alternatives. For example, does one alternative cross
more streams than another? Are some streams more sensitive? Also, is this
erosion severe or minor and how do we quantify the impact? Here again,
you should consider context and intensity. This section of the document
should discuss both impacts and mitigation measures. It should be remembered
that mitigation must be considered for all impacts, regardless of significance.
Additional consideration should be given to using enhancement measures
to help better fit the project into the environment.
A second area for
consideration is that of secondary and cumulative impacts. Secondary impacts
are those effects that are expected to be "caused" by the proposed action
but are later in time or are removed in distance, but are still reasonably
foreseeable. Cumulative impacts are those which result form the incremental
consequences of an action when added to other past and reasonably foreseeable
future actions.
The EIS also has a
Comments and Coordination section where the scoping process, including
the results of any meetings which may have been held and any comments
received during preliminary coordination, should be summarized.
Another section, the
List of Preparers, includes those primarily responsible for preparing
the EIS or background papers. This includes SHA personnel involved and
may include other State offices, consultants, and local people. The FHWA
division office representative should also be included. This list should
include the individual's name and qualifications including his/her expertise,
experience, and professional discipline.
Between the draft
and final EIS, the SHA and FHWA division office consider and prepare responses
to all substantive comments received on the draft EIS, including those
from the public hearing. The final EIS must identify and describe the
preferred alternative and the basis for the decision, demonstrate compliance
to the extent possible with all applicable environmental laws and Executive
Orders, provide reasonable assurance that the requirements can be met,
include copies of comments received and responses (if comments are voluminous
they may be summarized), note where the EIS was changed in response to
comments, (this change should be referenced in the response), and any
other changes or corrections.
The final EIS is usually
approved at the Regional Office level; however, prior concurrence by the
Washington Headquarters Office is required on certain types of projects
and under certain conditions (see 23 CFR 771.125(c)).
A ROD must be issued
before any project approvals (e.g. for design, right-of way acquisition,
construction) can be given on the selected course of action. The ROD may
not be issued sooner than 30 days after the approved final EIS is distributed,
nor 90 days after the Draft EIS is circulated. It should: (1) state the
basis for the decision, (2) identify all the alternatives considered and
specify the "environmentally preferable alternative," (a thorough discussion
of the "environmentally preferred alternative" can be found in CEQ's "Questions
and Answers about the NEPA Regulations," Question #6), and (3) state whether
all practicable means to avoid or minimize environmental harm from the
alternative selected have been adopted and, if not, why they were not.
Categorical Exclusions
Actions that do not
individually or cumulatively have a significant social, economic, or environmental
effect are excluded from the requirement to prepare an EA or EIS. These
actions are processed as CEs. A specific list of CEs normally not requiring
NEPA documentation is set forth in 23 CFR 771.117(c). Other projects,
pursuant to 23 CFR 771.117(d), may also qualify as CEs if appropriately
documented. There are various approaches to documenting CE determinations
where required. For minor activities, programmatic approaches can reduce
the amount of paper generated while still assuring adequate program control.
More complex projects require more information in a formal submission
from the State so that the FHWA division office can conclude that the
project will not cause a significant environmental impact.
Environmental Assessment
An EA is prepared
when there is uncertainty as to the significance of the impacts of the
project.
The CEQ suggests that
EAs should be only 10 to 15 pages in length. It is often not possible
to stay within these page limits, especially if information related compliance
with other environmental requirements is included. It is, however, instructive
to understand CEQ's philosophy on the brevity of the EA. It should discuss
in detail only those areas where there is potential for a significant
impact. Although there is no specific format requirement, the FHWA Technical
Advisory 6640.8A provides a suggested format to be used for an EA. Briefly,
the subject areas to be addressed are: project description, need, alternatives
considered, impacts, and comments and coordination.
The EA is subject
to FHWA approval before it is made available to the public as an FHWA
document. The document itself need not be circulated, but must be made
available for public inspection and comment. A notice of availability
must be sent to State and area wide clearinghouses and should be published
locally. Depending on FHWA-approved State procedures, a public hearing
may or may not be required. The availability period for an EA is usually
30 days.
If, after completing
the process, it is determined that there are no significant impacts associated
with the project, a FONSI (the agency's statement of no significant impact)
is prepared. The FONSI includes the EA modified to reflect all applicable
comments and responses to those comments. No formal circulation is required,
however, the State clearinghouse must be notified of the availability
of the FONSI, and FHWA recommends that the public be notified in local
publications. A sample of the language used for a FONSI can be found in
Technical Advisory T6640.8A (page 9).
If, at any time, a
significant impact is identified, an EIS must be prepared.
Mitigation and Enhancement
It has been FHWA's
policy that measures necessary to mitigate adverse impacts (both significant
and non-significant) be incorporated into the proposed action (23 CFR
771.105(d)). The CEQ regulations describe (40 CFR 1508.20) some of the
methods for mitigating impacts. They include: avoidance, minimizing impacts
by limiting the scope of the action, rehabilitating or restoring the affected
environment, and compensating for the impact by replacing or providing
substitute resources. Such measures would be eligible for Federal funding
if: (1) the impact for which the mitigation was proposed actually resulted
from the project and (2) the proposed mitigation represented a reasonable
public expenditure, considering, among other things, the extent to which
the proposed measures would assist in complying with a Federal statute,
Executive Order, or other Administration regulation or policy.
The Environmental
Policy Statement (the EPS was first issued in 1990 and revised in 1994) called
for an expanded interpretation of these requirements, and specifically
itemized full and objective consideration to avoidance, innovative designs
to minimize harm, and identification of opportunities to contribute to
a healthier, more attractive environment through improved mitigation and
enhancement. The only restrictions that the EPS placed on funding environmental
enhancement activities were that such activities represent a reasonable
public expenditure, be in the best overall public interest, and be reasonable
related to an eligible highway project. (Please note that the environmental
enhancement described in the EPS should not be confused with the "transportation
enhancement" provision in the ISTEA legislation, which is a 10% funding
set-aside for ten specific types of enhancement activities. That program
should be considered as one element of our overall enhancement policy.)
It is the responsibility
of FHWA and the implementing agency to assure that the mitigation and
enhancement measures committed to in the environmental document, as well
as those contained in permits, are carried out. We encourage that a summary
of mitigation/enhancement commitments be included in the FONSI or ROD
and made available to appropriate project personnel.
Reevaluation
The FHWA must assure
that the environmental documentation for the proposed action (CE, EA/FONSI,
EIS/ROD) is still valid, prior to proceeding with major project approvals
or authorizations. This is accomplished through a reevaluation, which
is an assessment of any changes which may have occurred in either the
project's concept or the affected environment, and a determination of
what effects these changes might have on the validity of the environmental
documentation. Informal consultation between FHWA and the State DOT may
be acceptable, with appropriate documentation (e.g. a note to the file).
In addition to this
requirement for all levels of environmental documentation, there is a
3- year validity period for EISs. If you have a Draft EIS, and an acceptable
Final EIS is not submitted to FHWA within 3 years from the date of the
draft EIS circulation, a written reevaluation of the Draft EIS shall be
prepared prior to submission of the Final EIS. This evaluation must demonstrate
that the information presented in the Draft EIS is an accurate analysis
of the anticipated project impacts. For projects with an approved Final
EIS, a written reevaluation is required before further approvals are given
if activities to advance the action, e.g., design, right-of-way, or construction,
have not occurred within any 3-year time period.
Supplemental EIS
If the reevaluation
process described above reveals that there have been changes which result
in significant adverse impacts not identified in the approved document,
a new EIS or a Supplemental EIS (SEIS) must be prepared and circulated.
If changes are made
to the proposed actions and it is uncertain if a Supplemental EIS is required,
appropriate environmental studies or, if necessary, an EA to assess the
impacts of such changes must be developed.
There is no required
format for a SEIS, but it must contain the reason for preparing a Supplement
and an evaluation of the changes and new impacts. Portions of the original
EIS which remain valid may be summarized. The SEIS is processed in the
same way as the original document, except that there is no requirement
for formal scoping.
III. PRACTICAL APPLICATIONS - QUESTIONS AND ANSWERS
Q. How should a project
that is on the CE list (23 CFR 771.117(d)), but has a significant impact,
be processed?
A. Any project that
has a significant impact must be processed as an EIS.
Q. If an EA indicates
that there will be a significant impact but that, with mitigation, the
impact may be reduced to less than significant levels, can a FONSI be
made rather than preparing an EIS?
A. Mitigation measures
may be relied upon to make a FONSI as long as a commitment is made to
provide all mitigation needed to reduce impacts below the level of significance,
and the mitigation is made an integral part of the original proposal.
Q. In preparing an
EA, it became obvious that there was a significant impact. Should we go
ahead with the EA before preparing a draft EIS?
A. No. As soon as
it has been determined that there is a significant impact, a Notice of
Intent should be prepared and the development of the draft EIS should
begin. Practically speaking, very few projects go from an EA to a draft
EIS, but rather the determination that there is a significant impact occurs
while the EA is being developed.
Q. A certain project
requires a Section 404 permit (or Section 9 USCG permit). Should we request
that the COE (or CG) be a cooperating agency?
A. Permitting agencies
such as the COE (or USCG) which have jurisdiction by law must be requested
to-be a cooperating agency for projects requiring an EIS. It is desirable
for them to be a cooperating agency for EA/FONSI projects. For CE projects,
early coordination should occur.
Q. What do you do
when an agency with jurisdiction by law refuses a request to be a cooperating
agency for and EIS/ROD project?
A. Notify the Washington
Headquarters (HEP-30) through normal channels. The CEQ regulations require
that CEQ be notified of such a refusal.
Q. During the circulation
of a draft EIS, someone suggested that a totally new alternative be studied.
How should such a comment be handled?
A. As with all comments
on a draft EIS, it must be considered and addressed. If the alternative
is not considered reasonable, a response discussing the rationale for
that determination should be included in the final EIS. If the alternative
is reasonable and totally new, not just a design variation of one presented
in the draft EIS, then a supplemental draft EIS discussing the alternative
must be prepared and circulated. The CEQ regulations (40 CFR 1502.14(a))
require that the EIS "rigorously explore and objectively evaluate all
reasonable alternatives." See CEQ's "Questions and Answers About NEPA
Regulations," Question #29, for further information.
Q. The FHWA was a
cooperating agency on an EIS prepared by another agency. The approved
final EIS adequately discusses all aspects of the project including some
highway work. Must FHWA do an EA or EIS to comply with NEPA in this case?
A. One advantage of
the cooperating agency concept is that the cooperating agency may adopt
another agency's environmental document to comply with NEPA. In this case,
a ROD should be prepared to document the basis for decision. The FHWA
need not recirculate the EIS. In the case of adopting another agency's
EA, a FONSI should be prepared to document the basis for the decision.
Q. What is the advantage
of getting the COE and/or the CG as a cooperating agency when a permit
is required?
A. As noted above,
those agencies with jurisdiction by law (i.e., permitting agencies) must
be requested to be cooperating agencies. The FHWA has agreements with
these agencies which state that if we coordinate with these agencies early
and include in our environmental document the information they need for
permit processing, these agencies will ordinarily accept our environmental
documentation as satisfying NEPA for processing the permit. In addition,
we have an ongoing initiative to "merge" the common elements of the NEPA
and 404 processes. This is outlined in Chapter 11 of the "Red Book."
Q. The State has
decided that it wants to implement an alternative which was adequately
evaluated and presented in the approved final EIS, but was not identified
as the preferred alternative. Must we prepare a new final EIS?
A. No. The ROD is
the decision document and, as such, can be used to describe why this alternative
has now been selected for implementation.
Q. What material should
be in an appendix rather than the body of the EIS?
A. The body
of the EIS should be a succinct statement of all the information the decision maker
and public need to make the decision. The EIS must explain or summarize
methodologies of analysis and the conclusions of those analyses. Lengthy
technical discussions of modeling methodology, baseline studies, or other
technical work should go into the appendix.
Q. How should comments
on a draft EIS be handled, especially if the project generated voluminous
comments?
A. The final EIS must
contain responses to all substantive comments on the draft EIS. These
responses may result in changes in the document, but specific answers
to each significant comment should also be included. These specific responses
may be placed in an appendix. If the comments are especially voluminous,
summaries of the comments and responses will suffice.
