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FERC - NEPA Review (9-FD-i)

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 CFR 380.8.

FERC - NEPA Review Process

9-FD-i.1 – Environmental Report

The developer must provide FERC with an Environmental Report which includes information concerning the environment, the developer’s analysis of the environmental impact of the action, or alternatives to the action required. 18 CFR 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 CFR 380.2(f).

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. 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 CFR 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 CFR 380.4(a)(3));
  • Information gathering, analysis, and dissemination (18 CFR 380.4(a)(5));
  • Conceptual or feasibility studies (18 CFR 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 CFR 380.4(a)(7);
  • Transfers of water power project licenses and transfers of exemptions under Part I of the Federal Power Act (18 CFR 380.4(a)(8));
  • Issuance of preliminary permits for water power projects under Part I of the Federal Power Act (18 CFR 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 CFR 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 CFR 380.4(a)(13));
  • Exemptions for small conduit hydroelectric facilities as defined in 18 CFR 4.30(b)(30) (18 CFR 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 CFR 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 CFR 380.4(a)(19)).

For further categorical exclusions see (18 CFR 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. FERC may require an environmental report or other additional environmental information, and will prepare an environmental assessment or an environmental impact statement. 18 CFR 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.

18 CFR 380.4(b)(2).

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 CFR 1508.4.

On-Site Evaluation: 10

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 CFR 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 CFR 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 CFR 380.5(b)(8).
  • Licenses under Part I of the Federal Power Act and part 4 of this chapter for transmission lines only; 18 CFR 380.5(b)(9).
  • Applications for new licenses under section 15 of the Federal Power Act 18 CFR 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 CFR 380.5(b)(13).

9-FD-i.6 – Environmental Assessment

An EA will be prepared for projects that are not categorically excluded and do not normally require an EIS. 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 CFR 1501.4(b). 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 CFR 380.2(d).

EAs must include brief discussions of the need for the project, of alternatives as required by section 102(2)(E) of NEPA, of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted. 18 CFR 380.2(d)(3).

9-FD-i.7 to 9-FD-i.8 – Provide Public Notice of EA

FERC must provide public notice of the EA. 40 CFR 1501.4(e)(1). 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 CFR 1501.4(e). The FONSI must comply with the requirements outlined in 40 CFR 1508.13. 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 CFR 380.2(g).

9-FD-i.11 – Provide Public Notice of FONSI

FERC must provide public notice of the FONSI. 40 CFR 1501.4(e)(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 CFR 1501.7. 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;
  • State the name and address of a person within FERC who can answer questions about the proposed action and the EIS.

40 CFR 1508.22.

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 CFR 1501.7. FERC will invite the participation of affected federal, state, and local agencies, any affected Indian tribe, the developer, and other interested persons. 40 CFR 1501.7(a)(1). 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 CFR 1501.7(a)(3).

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.

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.

18 CFR 380.7.

9-FD-i.15 – Provide Public Notice of Draft EIS

FERC must provide public notice of the draft EIS. 40 CFR 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 CFR 1503.1(a)(2). The public may also comment on the draft EIS.

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.

40 CFR 1503.4(a).

9-FD-i.18 – Provide Public Notice of Final EIS

FERC must provide public notice of the final EIS. 40 CFR 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 CFR 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 CFR 1506.2(c).

9-FD-i.21 – Provide Public Notice of Decision

FERC must provide public notice of their final decision. 40 CFR 1506.6(b).

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