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Rural Utilities Service - NEPA Review (9-FD-h)

Information current as of 2020
A developer may need to undergo the Rural Utilities Service (RUS) National Environmental Policy Act (NEPA) Review process if the developer is receiving a loan, loan guarantee, or grant from the United States Department of Agriculture (USDA) for the construction of electric distribution, transmission, and generation facilities to entities that provide retail electric service to rural areas. The loans are distributed the RUS’s Electric Program. Loans, loan guarantees, and grants are considered to be “major federal actions,” as defined by the Council on Environmental Quality (CEQ) regulations at 40 C.F.R. § 1508.18. Consequently, RUS must comply with the National Environmental Policy Act (NEPA) before funds may be distributed. RUS has developed its own set of NEPA regulations governing NEPA procedures for its programs.

The RUS authorizes most of the loans, loan guarantees, or grants for rural electric development pursuant to the Rural Electrification Act of 1936.

Rural Utilities Service - NEPA Review Process

9-FD-h.1 to 9-FD-h.2 – Contact RUS to Determine Classification of the Project

The developer should contact RUS as soon as it decides to apply for funding that will finance the construction of transmission lines or a generation project. RUS then determines the proper environmental classification based on the project description that is submitted with the application for funding. See RUS Bulletin 1794A-603, page 3; 7 C.F.R. § 1794.31. There are five environmental classifications listed in RUS’ NEPA regulations:

The types of proposed actions that fall under each classification are listed in the cited regulations. The type of classification determines which set of procedures RUS and the developer must follow in order to comply with NEPA.

9-FD-h.3 to 9-FD-h.6 – Is the Project Categorically Excluded?

A categorical exclusion (CX) is a category of actions that, individually or cumulatively, do not have a significant effect on the environment. Federal agencies may establish CXs in accordance with their NEPA procedures. An EA or EIS may be necessary, even though the activity is covered by a CX, if extraordinary circumstances are present. See 40 C.F.R. § 1508.4.

Proposed projects that fall under one of the two RUS CX classifications may require public notice. Public notice is required for CXs when the proposed project is located in a floodplain or may affect wetlands. The developer must publish both a legal notice and a paid advertisement in at least one newspaper of general circulation within the project’s area of environmental impact and in the county in which the project is being developed. All comments received pursuant to the public notice should be forwarded to RUS. After the notice has been published, the developer must submit copies and publication dates to RUS. See RUS Bulletin 1794A-600, pages 34-35; 7 C.F.R. § 1794.13; 7 C.F.R. § 1794.32.

9-FD-h.7 to 9-FD-h.10– Is an Environmental Report Required?

Projects that fall under the CX classification listed in 7 C.F.R. § 1794.22 require the preparation of an Environmental Report (ER). ERs are prepared by the developer and submitted to RUS. The purpose of an ER is to enable RUS to “evaluate the environmental effects of a proposed categorically excluded project.” See RUS Bulletin 1794A-600, page 1. The ER must include the following:

  • Project description;
  • Need for the project;
  • Alternatives to the project;
  • Affected environment;
  • Environmental impacts;
  • Mitigation and monitoring;
  • Correspondence and other project coordination;
  • Newspaper advertisement and legal notices; and
  • Manager’s Signature.

A detailed description of each required element, as well as environmental factors that must be addressed, can be found in RUS Bulletin 1794A-600. In addition, the developer should contact relevant federal, state and local agencies and obtain any information (preferably in written form) needed for the preparation of the ER. Agency comments should be included in the ER, along with the developer’s responses to those comments. Specific instructions for agency correspondence can be found in RUS Bulletin 1794A-600, pages 30-33.

Once RUS has accepted the ER, it will prepare a CX. If an ER was not required, RUS will prepare a CX based on a description of the project. See 7 C.F.R. § 1794.32. RUS may request additional information if the description of the project is not sufficient for classification and the preparation of a CX. See 7 C.F.R. § 1794.31. Once RUS has determined that the project is categorically excluded and has completed the CX, loan or grant funds may be disbursed. See 7 C.F.R. § 1794.33.

9-FD-h.11 – Does the Project Require Scoping?

The CEQ defines scoping as “an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action.” CEQ regulations governing scoping can be found at 40 C.F.R. § 1501.7. It should be noted that although the CEQ regulations only discuss scoping as it relates to an EIS, they nonetheless apply to EAs for projects listed in 7 C.F.R. § 1794.24 by virtue of the RUS NEPA regulations.

The CEQ requires the following in an agency’s scoping process:

  • Invite participation from affected federal, state, local, and tribal organizations and interested persons.
  • Determine the scope or extent of the EIS (or EA) and the significant issues to be analyzed. Scoping is valuable in identifying connected, cumulative, and similar actions.
  • Eliminate those issues raised that are not related to potentially significant impacts or those that have been covered in other environmental documents.
  • Make assignments for preparation of the EIS (or EA) between the lead and cooperating agencies.
  • Identify any environmental documents being prepared that have relevance to, but are not part of, the scope of this EIS (or EA).
  • Identify other environmental review and consultation requirements.
  • Discuss the relationship between the timing of the preparation of the EIS (or EA) and the agency’s tentative planning and decision-making schedule.

See 40 C.F.R. § 1501.7.

Under the RUS NEPA regulations, scoping is required for projects that require an Environmental Impact Statement (EIS) and for projects that fall under the EA classification (Proposals normally requiring an EA with scoping) described in 7 C.F.R. § 1794.24. The RUS scoping process is identical for both types of classifications. RUS scoping guidance can be found in RUS Bulletin 1794A-603.

9-FD-h.12 to 9-FD-h.14 – Contact Relevant Federal, State, and Local Agencies

An EA is a concise public document that helps the agency determine whether an EIS or Finding of No Significant Impact (FONSI) is required. It should include a brief assessment of the proposed action and an analysis of the evidence relating to significant environmental impacts. It should also include an analysis of the effects of the proposed action and of the alternatives. See 40 C.F.R. § 1508.9. If RUS determines that there are no significant environmental impacts after completing the EA, a FONSI should be prepared.

Projects that require an EA but not scoping are listed in 7 C.F.R. § 1794.23. RUS and the developer must follow the same initial process as the one listed above for CXs that require an ER (9-FD-h.7 to 9-FD-h.10), except that an EA is prepared instead of a CX. The developer must prepare the ER, and it will generally serve as RUS’s EA if it is found to be adequate. See 7 C.F.R. § 1794.41. Guidance for the preparation of an ER for projects that require an EA without scoping can be found in RUS Bulletin 1794A-601.

9-FD-h.15 to 9-FD-h.19 – Publish Notice of Availability of EA

After RUS has prepared the EA, the applicant must publish both a legal notice and an advertisement in a newspaper of general circulation, indicating the EA’s availability for public review. The notice should solicit comments on the EA, and the comment period must last for at least 30 days. RUS Bulletin 1794A-601, page 35. After comments have been received, RUS determines whether the proposed project will have a significant effect on the quality of the human environment. If so, an EIS must be prepared. If not, RUS prepares a Finding of No Significant Impact (FONSI). A FONSI is a document prepared by a federal agency that briefly explains why an action will not have a significant effect on the human environment. See 40 C.F.R. § 1508.13.

The developer must publish a second notice once RUS has prepared and approved the FONSI. The second notice must inform the public of the RUS findings and of the availability of the FONSI and EA. RUS may disburse loan or grant funds at any time after the second notice has been published. See 7 C.F.R. § 1794.43 – 1794.44; RUS Bulletin 1794A-601, page 35.

9-FD-h.20 – Conduct Preliminary Meeting

If the project is classified as one requiring an EA with scoping or an EIS, RUS will set up a preliminary meeting (or meetings) between the developer, the Power Supply Division (PSD), and the Engineering and Environmental Staff (EES). The preliminary meeting allows the parties to develop an outline of the scoping process. Topics discussed at the preliminary meeting(s) include:

  • The justification of project need;
  • The request for proposals;
  • Availability of loan funds;
  • The environmental review requirements;
  • The use and role of consultants;
  • The lead and cooperating agencies;
  • Document requirements;
  • Notice requirements; and
  • Scoping meetings.

For a more detailed description of the preliminary meeting, see RUS Bulletin 1794A-603, pages 3-5.

9-FD-h.21 – Submit Planning Documents

An alternative evaluation study must be submitted to and accepted by RUS before a scoping meeting may be scheduled. The alternative evaluation study must “explain the need for the project and discuss alternative methods that may have been considered to meet that need.” See RUS Bulletin 1794A-603, page 6. In addition, a macro-corridor study must be submitted for transmission projects and a site-selection study must be submitted for generation projects prior to the initiation of scoping. For a more detailed description of each of these studies, see RUS Bulletin 1794A-603, pages 5-6.

9-FD-h.22 – Publish NOI to Prepare EA/EIS in the Federal Register and Provide Public Notice

RUS must publish a Notice of Intent (NOI) to prepare an EA or an EIS in the Federal Register as soon as a schedule has been developed for the environmental review process. In addition, the developer must publish a notice in a newspaper of general circulation based on the NOI. Other forms of notice, such as direct mailings to the public, billboard notices in libraries, public buildings and post offices, and radio or television announcements, may be necessary to ensure that the public is aware of the scoping process. In some cases, notice must be provided to low income and minority populations directly. In addition, RUS will generally notify local governments and agencies of scoping by letter and invite them to attend the agency and scoping meetings. See RUS Bulletin 1794A-603, pages 8-9; 7 C.F.R. § 1794.51.

9-FD-h.23 – Conduct On-Site Visit

RUS, the developer, and cooperating agencies should visit the preferred and alternative sites under consideration prior to the public meeting in order to:

  • Familiarize RUS and cooperating agencies with the proposed and alternative sites;
  • Identify sensitive areas; and
  • View the environmental setting surrounding the sites.

See RUS Bulletin 1794A-603, page 10.

9-FD-h.24 to 9-FD-h.27 – Hold Agency Meeting

RUS and the developer will hold two scoping meetings. The first is the agency meeting, which is optional for an EA but recommended for an EIS. The agency meeting is designed to provide interested federal and state agencies and local governments with information regarding the “description, need, and potential project locations or routing, discuss compliance and permitting requirements, and cover the range of issues to be addressed in the environmental documents.” See RUS Bulletin 1794A-603, page 7. The agency meeting does not normally include public involvement. Planning documents that have already been submitted to RUS should be made available during the meeting.

The second scoping meeting is the public meeting. The purpose of the public meeting is to:

  • Provide the public with information regarding the purpose and need for the project;
  • Provide the public with a project description;
  • Identify possible sites and/or corridor routes;
  • Discuss the scope of environmental issues to be analyzed;
  • Answer questions the public may have regarding the project and the environmental review process; and
  • Solicit public comments.

See RUS Bulletin 1794A-603, page 10.

During the public meeting, RUS and the developer’s representatives should encourage the public to provide written comments. Written comments may also be mailed or emailed to RUS after the meeting. The comment period is usually limited to 30 days. Issues and concerns derived from the comments will be addressed in the EA or EIS. See RUS Bulletin 1794A-603, pages 10-12.

After the public meeting, RUS, cooperating agencies, and the developer will prepare a scoping report. The scoping report is an informal document that addresses additional information derived from the scoping process and the public meeting that may need to be included in the EA or EIS. This includes environmental, engineering, or economic issues important to the public. Other items that may be addressed in the report include:

  • A count of the members of the public attending the meeting;
  • A discussion of comments, questions, and concerns provided by the public informally to RUS, the developer, or cooperating agencies;
  • Copies of handouts provided at the meeting; and
  • Copies of letters of invitation to, and response thereto, from any person or agency contacted in this manner.

See RUS Bulletin 1794A-603, pages 12-13.

9-FD-h.28 – Is It Clear That an EIS is Required?

The scoping process is the same for both and EA and an EIS. If, after scoping, it is clear that the project will have a significant effect on the human environment, an EIS should be prepared. If the significance of the project’s effects are not clear, an EA is used to determine whether an EIS or FONSI should be prepared.

9-FD-h.29 to 9-FD-h.35 – Environmental Report

If, after scoping, RUS determines that an EA should be prepared, the process will be identical to the one outlined in 9-FD-h.12 through 9-FD-h.19.

9-FD-h.36 to 9-FD-h.38 – Draft Environmental Impact Statement

Once scoping is complete and RUS has determined that an EIS is necessary, a draft EIS should be prepared.

A range of reasonable alternatives must be developed for and analyzed in the draft EIS. The effects of the alternatives on the environment should be analyzed and documented. The draft EIS should briefly discuss alternatives that have been eliminated and the reason for their elimination. 40 C.F.R. § 1502.14(d) requires the draft EIS include a no-action alternative. In addition, RUS should identify its preferred alternative in the draft EIS. See 40 C.F.R. § 1502.14.

The draft EIS should be prepared in accordance with the scope established by the scoping process. It should conform to the requirements for a final EIS to the greatest extent possible. The recommended CEQ format for an EIS is as follows:

  • A cover sheet;
  • A summary;
  • A Table of contents;
  • The purpose and need for action;
  • Alternatives including the proposed action;
  • The affected environment;
  • The environmental consequences;
  • A list of preparers;
  • A list of agencies, organizations, and persons to whom copies of the statement are sent;
  • An index; and
  • An appendices (if any).

See 40 C.F.R. § 1502.10.

After the draft EIS has been prepared, RUS circulates it to other agencies and the public. See 40 C.F.R. § 1502.19. RUS then submits the draft EIS to the Environmental Protection Agency (EPA), who publishes a Notice of Availability (NOA) in the Federal Register. The NOA begins the comment period for the draft EIS, which must last a minimum of 45 days.

40 C.F.R. § 1503.1 requires RUS to invite comments on the draft EIS. This may include:

  • Obtaining comments from federal agencies with special expertise;
  • Requesting comments of state and local agencies, Indian tribes, and any agency which has requested that it receive statements on actions of the kind proposed;
  • Requesting comments from the applicant; and
  • Requesting comments from the public and affirmatively soliciting comments from those persons or organizations who may be interested or affected.

9-FD-h.39 to 9-FD-h.41 – Final Environmental Impact Statement

Once the review period for the draft EIS has ended, a final EIS should be prepared. The final EIS should include responses to substantive comments. It should also include modifications to the draft EIS, if necessary. All substantive comments received on the draft EIS should be attached to the final EIS. The RUS may respond to substantive comments by:

  • Modifying alternatives including the proposed action;
  • Developing and evaluating alternatives not previously given serious consideration by the agency;
  • Supplementing, improving, or modifying its analysis;
  • Making factual corrections; and
  • Explaining why the comments do not warrant further response.

See 40 C.F.R. § 1503.4.

As with the draft EIS, the final EIS must be distributed to the public and other agencies, and it must be filed with the EPA. Once the final EIS is received, the EPA publishes a NOA in the Federal Register. The public review period for a final EIS must last a minimum 30 days.

9-FD-h.42 to 9-FD-h.43 – Record of Decision

Once the review period for the final EIS has been completed, RUS prepares a Record of Decision (ROD) in accordance with 40 C.F.R. § 1505.2. The ROD is a concise public record that documents the decision reached in the EIS regarding the proposed action. The ROD must state what the decision was, outline the deliberations taken to reach the final decision, indicate the reasons for that decision, identify all alternatives considered by RUS in reaching its decision, and state whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why not. See 40 C.F.R. § 1505.2. Separate RUS and developer NOAs are published for the ROD, and the NOAs should summarize the RUS decision. See 7 C.F.R. § 1794.63. RUS may disburse funding at any time after the ROD has been published. See 7 C.F.R. § 1794.64.

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