RAPID/Roadmap/9-FD-i
FERC - NEPA Review (9-FD-i)
NEPA requires federal agencies to consider the potential environmental effects of major federal actions that may significantly affect quality of the human environment before deciding whether and in what form to act. 42 U.S.C. § 4332(2)(C). Environmental reviews prepared under NEPA should provide a decisionmaker with relevant and timely information, and the Council on Environmental Quality (CEQ) regulations make it clear that “NEPA’s purpose is not to generate paperwork—even excellent paperwork—but to foster excellent action.” 40 C.F.R. §§ 1500.1(a).
Specifically, the lead federal agency, in this case FERC, must first determine whether a categorical exclusion applies, and what requisite level of detailed statement to prepare assessing the environmental impact of and alternatives to major federal actions that may significantly affect the human environment. If a categorical exclusion does not apply, FERC prepares and issues either an Environmental Assessment (EA) and/or an Environmental Impact Statement (EIS) that examines alternatives and the likely effects to the human environment from the proposed major federal action. 40 C.F.R. §§ 1500.1 – 1501.4.
Environmental documents such as and EA or EIS drafted pursuant to NEPA must abide by prescribed guidelines in 42 U.S.C. 4336a. An EA must not be longer than 75 pages, not including appendices or citations and it must be completed within one year. 42 U.S.C. 4336a. An EIS has a page limit of 150 pages, not including appendices or citations, or if it is of extraordinary complexity the limit is 300 pages, not including any appendices or citations. An EIS must be completed within two years of the start date identified in 42 U.S.C. 4336a. The deadline may be extended by the lead agency in consultation with the applicant for only so much additional time as is necessary to complete the environmental document. 42 U.S.C. 4336a (g). If the deadline is not met for either an EA or an EIS, a project sponsor may file a written petition with a court to compel the agency to act more quickly. 42 U.S.C. 4336a (g)(3).
If the developer is permitted to use the Traditional Licensing Process, then they must participate in the development of applicable environmental documents pursuant to the National Environmental Policy Act (NEPA). With the Integrated Licensing Process and the Alternative Licensing Process, NEPA review is conducted during licensing procedures. FERC is responsible for developing environmental documents in compliance with NEPA. 18 C.F.R. § 380.8.
FERC - NEPA Review Process
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9-FD-i.1 – Environmental Report
The developer must provide FERC with an Environmental Report. 18 C.F.R. § 380.3(a)(1). An environmental report means the part of the application which includes information concerning the environment, the developer’s analysis of the environmental impact of the action, or alternatives to the action required. 18 C.F.R. § 380.2(f). The developer must also provide any further information that FERC determines is necessary for compliance with FERC regulations, Council on Environmental Quality regulations, NEPA, and other federal laws. 18 C.F.R. § 380.3(a)(2).
9-FD-i.2 to 9-FD-i.3 – Is the Project or Action Categorically Excluded?
Certain actions do not require preparation of an Environmental Assessment or an Environmental Impact Statement. These actions are deemed to be ‘categorically excluded’ from NEPA requirements. Categorical Exclusion means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which FERC has found to have no such effect and for which, neither an EA nor an EIS is required 18 C.F.R. § 380.2(a). FERC may also adopt another agency’s categorical exclusions consistent with section 109 of NEPA. 42 U.S.C. 4336(a).
The following actions are categorically excluded:
- Procedural, ministerial, or internal administrative and management actions, programs, or decisions, including procurement, contracting, personnel actions, correction or clarification of filings or orders, and acceptance, rejection and dismissal of filings 18 C.F.R. § 380.4(a)(1);
- Compliance and review actions, including investigations (jurisdictional or otherwise), conferences, hearings, notices of probable violation, show cause orders, and adjustments under section 502(c) of the Natural Gas Policy Act of 1978 (NGPA) 18 C.F.R. § 380.4(a)(3);
- Information gathering, analysis, and dissemination 18 C.F.R. § 380.4(a)(5);
- Conceptual or feasibility studies 18 C.F.R. § 380.4(a)(6);
- Actions concerning the reservation and classification of United States lands as water power sites and other actions under section 24 of the Federal Power Act (18 C.F.R. § 380.4(a)(7));
- Transfers of water power project licenses and transfers of exemptions under Part I of the Federal Power Act (18 C.F.R. § 380.4(a)(8));
- Issuance of preliminary permits for water power projects under Part I of the Federal Power Act (18 C.F.R. § 380.4(a)(9));
- Approval for water power projects under Part I of the Federal Power Act, of “as built” or revised drawings or exhibits that propose no changes to project works or operations or that reflect changes that have previously been approved or required by FERC 18 C.F.R. § 380.4(a)(12);
- Surrender and amendment of preliminary permits, and surrender of water power licenses and exemptions where no project works exist or ground disturbing activity has occurred and amendments to water power licenses and exemptions that do not require ground disturbing activity or changes to project works or operation 18 C.F.R. § 380.4(a)(13);
- Exemptions for small conduit hydroelectric facilities as defined in 18 C.F.R. § 4.30(b)(30) (18 C.F.R. § 380.4(a)(14));
- Approval of changes in land rights for water power projects under Part I of the Federal Power Act if no construction or change in land use is either proposed or known by FERC to be contemplated for the land affected 18 C.F.R. § 380.4(a)(18); and
- Approval of proposals under Part I of the Federal Power Act to authorize use of water power project lands or waters for gas or electric utility distribution lines, radial (sub-transmission) lines, communications lines and cables, storm drains, sewer lines not discharging into project waters, water mains, piers, landings, boat docks, or similar structures and facilities, landscaping or embankments, bulkheads, retaining walls, or similar shoreline erosion control structures 18 C.F.R. § 380.4(a)(19).
For further categorical exclusions see: 18 C.F.R. § 380.4(a). FERC will independently evaluate environmental information supplied in an application and in comments by the public. FERC may determine that although an action normally would be categorically excluded, it should be considered a major federal action requiring an environmental document under NEPA 18 C.F.R. § 380.4(b). FERC may require an environmental report or other additional environmental information, and will prepare an environmental assessment or an environmental impact statement. 18 C.F.R. § 380.4(b)(1). Such circumstances may exist when the action may have an effect on one of the following:
- Indian lands;
- Wilderness areas;
- Wild and scenic rivers;
- Wetlands;
- Units of the National Park System, National Refuges, or National Fish Hatcheries;
- Anadromous fish or endangered species; or
- Where the environmental effects are uncertain.
9-FD-i.4 - Conduct On-Site Evaluation
If an on-site evaluation has not yet been completed, it is conducted to evaluate the potential impacts from the activity. An on-site evaluation may not be required for activities covered under casual use or categorical exclusion (CE). 40 C.F.R. § 1501.4. For more information about On-Site Evaluation see:
9-FD-i.5 – Is the Action one that Normally Requires an EIS?
Certain actions are deemed by FERC to normally require the preparation of an Environmental Impact Statement (EIS). Such actions include licenses under Part I of the Federal Power Act for the construction of any unconstructed water power projects. 18 C.F.R. § 380.6(a)(4). If FERC believes that a proposed action may not significantly affect the quality of the environment, then an Environmental Assessment (EA) will be prepared first. FERC has outlined certain actions that require an EA, including:
- Licenses under Part I of the Federal Power Act and part 4 of this chapter for construction of any water power project (with an existing dam) 18 C.F.R. § 380.5(b)(6);
- Licenses for additional project works at licensed projects under Part I of the Federal Power Act whether or not these are styled license amendments or original licenses 18 C.F.R. § 380.5(b)(8);
- Licenses under Part I of the Federal Power Act and part 4 of this chapter for transmission lines only 18 C.F.R. § 380.5(b)(9);
- Applications for new licenses under section 15 of the Federal Power Act ( 18 C.F.R. § 380.5(b)(10)); and
- Surrender of water power licenses and exemptions where project works exist or ground disturbing activity has occurred and amendments to water power licenses and exemptions that require ground disturbing activity or changes to project works or operations 18 C.F.R. § 380.5(b)(13).
Additionally, FERC may rely on analysis included in a previous programmatic environmental document (for which judicial review was available) when preparing a subsequent environmental document for related actions. The actions must be within five years of each other and there will not be additional review of that analysis, unless there has been substantial new circumstances or information about the significance of adverse effects that bear on the analysis. If more than five years has passed, then the agency must reevaluate the analysis in the programmatic environmental document and any underlying assumption to ensure reliance on the analysis remains valid. 42 U.S.C. 4336b.
9-FD-i.6 – Environmental Assessment
FERC will prepare an EA for projects that are not categorically excluded and do not normally require an EIS. An EA is required when a proposed action does not have a “reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown.” 42 U.S.C. 4336(b). An EA is conducted to determine if the action has significant environmental effects. FERC will involve environmental agencies, developers, and the public, to the extent possible, in preparing an EA 40 C.F.R. § 1501.5(e). An EA is a concise public document that serves to:
- Briefly provide sufficient evidence and analysis for determining whether to prepare an Environmental Impact Statement (EIS) or a Finding of No Significant Impact (FONSI);
- Aid FERC’s compliance with NEPA when an EIS is not necessary; and
- Facilitate preparation of an EIS when one is necessary.
18 C.F.R. § 380.2(d). EAs must include brief discussions of the need for the project, of alternatives as required by section 102(2)(E) of the National Environmental Policy Act, of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted 18 C.F.R. § 380.2(d)(3). Further, the EA shall not take longer than one year to complete. 42 U.S.C. 4336a (g). If the deadline is not met, a project sponsor may petition to a court. 42 U.S.C. 4336a (g)(3).
9-FD-i.7 to 9-FD-i.8 – Provide Public Notice of EA
FERC must provide public notice of the EA 40 C.F.R. § 1501.5(e). The public may comment on the EA, and the determination of whether an EIS is required.
9-FD-i.9 – Are Environmental Impacts Likely to be Significant?
If FERC determines that the environmental impacts are likely to be significant, then an EIS will be developed. If FERC determines that the environmental impacts are not likely to be significant, then it will prepare a FONSI.
9-FD-i.10 – Finding of No Significant Impact (FONSI)
If FERC determines based on the EA that an EIS is not necessary, then it must issue a Finding of No Significant Impact (FONSI) 40 C.F.R. § 1501.6. The FONSI must comply with the requirements outlined in 40 C.F.R. § 1501.6. A FONSI is a document briefly presenting the reason why an action will not have a significant effect on the human environment and for which an EIS will not be prepared 18 C.F.R. § 380.2(g).
9-FD-i.11 – Provide Public Notice of FONSI
FERC must provide public notice of the FONSI. 40 C.F.R. § 1501.6(a)(1).
9-FD-i.12 – Provide Notice of Intent to Prepare an EIS
After FERC determines that an EIS is necessary, they must provide public notice of their intent to prepare an EIS 40 C.F.R. § 1501.9(d). The notice of intent must briefly:
- Describe the proposed action and possible alternatives;
- Describe FERC’s proposed scoping process including whether, when, and where any scoping meeting will be held; and
- State the name and address of a person within FERC who can answer questions about the proposed action and the EIS.
9-FD-i.13 – Commence NEPA Scoping
Scoping under NEPA is 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 40 C.F.R. § 1501.9. FERC will invite the participation of affected federal, state, and local agencies, any affected Indian tribe, the developer, and other interested persons 40 C.F.R. § 1501.9. Scoping is also used to identify and eliminate from detailed study the issues which are not significant or which have been covered by previous environmental review. 40 C.F.R. § 1501.9.
9-FD-i.14 – Draft Environmental Impact Statement (EIS)
Following environmental review, FERC will develop a draft EIS if it determines that environmental impacts will likely be significant. An EIS is a detailed written statement as required by section 102(2)(C) of NEPA 42 U.S.C. § 4332(2)(C). An EIS is required when an action has a “reasonably foreseeable significant effect on the quality of human environment.” 42 U.S.C. 4336(b). An EIS prepared by FERC will include a section on the literature cited in the EIS and a staff conclusion section. The staff conclusion section will include summaries of:
- The significant environmental impacts of the proposed action;
- Any alternative to the proposed action that would have a less severe environmental impact or impacts and the action preferred by the staff;
- Any mitigation measures proposed by the developer, as well as additional mitigation measures that might be more effective;
- Any significant environmental impacts of the proposed action that cannot be mitigated; and
- References to any pending, completed, or recommended studies that might provide baseline data or additional data on the proposed action.
Further, the EIS shall not take longer than two years to complete. 42 U.S.C. 4336a (g). If the deadline is not met, a project sponsor may petition to a court. 42 U.S.C. 4336a (g)(3).
9-FD-i.15 – Provide Public Notice of Draft EIS
FERC must provide public notice of the draft EIS 40 C.F.R. § 1506.6(b).
9-FD-i.16 – Comment on Draft EIS
Any implicated federal, state, or local agencies which are authorized to develop and enforce environmental standards may comment on the draft EIS. 40 C.F.R. § 1503.1(a)(2). The public may also comment on the draft EIS. Ferc may set reasonable deadline periods by which comment must be received. 40 C.F.R. § 1503.1(b).
9-FD-i.17 – Final EIS
FERC will prepare a final EIS once comments have been received on the draft EIS. FERC must consider comments submitted on the draft EIS when preparing the final EIS. Possible responses to comments include:
- Modifying alternatives including the proposed action;
- Developing and evaluating alternatives not previously given serious consideration by FERC;
- Making factual corrections; or
- Explaining why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support FERC’s position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response.
9-FD-i.18 – Provide Public Notice of Final EIS
FERC must provide public notice of the final EIS. 40 C.F.R. § 1506.6(b).
9-FD-i.19 – Comment on Final EIS
The public and any participating agency may comment on the final EIS.
9-FD-i.20 – Record of Decision
FERC must prepare a Record of Decision stating what the decision was and identify all alternatives considered in reaching the decision. 40 C.F.R. § 1505.2(a) and (b). The Record of Decision will also 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. 40 C.F.R. § 1506.2(a)(3).
9-FD-i.21 – Provide Public Notice of Decision
FERC must provide public notice of their final decision. 40 C.F.R. § 1506.6(b).
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