RAPID/Roadmap/9 (3)
Solar Environmental Review Overview (9)
The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970. The Act establishes national environmental policy and goals for the protection, maintenance, and enhancement of the environment and provides a process for implementing these goals within the federal agencies.
A developer will be required to go through the NEPA process if the project involves a "major federal action." A major federal action is defined as “an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility.” 42 U.S.C. 4336e (10). In general, NEPA will be triggered if the project is on federal land, the project receives federal funding or support, or if a federal permit is required.
The level and scope of the NEPA review will vary depending on the nature of the project and the level of involvement of the federal government. Some actions and projects will receive a categorical exclusion while others may require a full Environmental Impact Statement (EIS). NEPA review is handled by a "lead agency." A 'lead agency" is the federal agency responsible for writing the main NEPA document(s) and coordinating with any other federal, state, or tribal agencies.
The lead agency is expected to follow the guidelines prescribed by NEPA 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).
For most projects relating to utility-scale solar projects, the lead agency will be the Bureau of Land Management (BLM), the United States Forest Service (USFS), the Department of Energy (DOE), the United States Department of Agriculture (USDA), or the United States Department of Defense (DOD).
On top of federal environmental regulation, the developer is required to comply with state environmental laws. Many states have adopted their own environmental laws and regulations.
Environmental Review Overview Process
9.1 - Does the Project Include a Major Federal Action?
For the National Environmental Policy Act (NEPA) to be triggered there must be a "major federal action" (action).
Major federal actions tend to fall within one of the following categories:
- Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency's policies which will result in or substantially alter agency programs.
- 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.
- 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.
- 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.
Major federal 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. 40 C.F.R. § 1508.1(q).
Major Federal Actions do not include:
- Agency activities or decisions with effects located entirely outside of the jurisdiction of the United States;
- Non discretionary activities or decisions made in accordance with the agency's statutory authority (i.e. ones that the agency has no choice but to make);
- Activities or decisions that do not result in final agency action under the Administrative Procedure Act or other statute that also includes a finality requirement;
- Judicial or administrative civil or criminal enforcement actions;
- Funding assistance solely in the form of general revenue sharing funds with no Federal agency control over the subsequent use of such funds;
- Non-Federal projects with minimal Federal funding or minimal Federal involvement where the agency does not exercise sufficient control and responsibility over the outcome of the project; and
- Loans, loan guarantees, or other forms of financial assistance where the Federal agency does not exercise sufficient control and responsibility over the effects of such assistance.
40 C.F.R. § 1508.1(q). 42 U.S.C. 4336e (10).
In general, NEPA will be triggered if the project is on federal land, the federal government owns the mineral estate, the project receives federal funding or support, or if a federal permit is required.
See 40 CFR 1508.1(q).
9.2 to 9.3 – Is the BLM the Lead Agency for the Major Federal Action?
Under NEPA a “lead agency” is the agency preparing NEPA documentation or is the agency that has taken primary responsibility for coordinating the NEPA process.
A “cooperating agency” means any federal, state, local, or tribal 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.
If the Bureau of Land Management (BLM) is the lead agency then the BLM will coordinate the NEPA process.
9.4 to 9.5 – Is the Department of Energy the Lead Agency for the Major Federal Action?
If the Department of Energy (DOE) is the lead agency then it will coordinate the NEPA process.
9.6 to 9.7 - Is the Department of Defense the Lead Agency for the Major Federal Action?
If the Department of Defense (DOD) is the lead agency then it will coordinate the NEPA process.
9.8 to 9.9 - Is the USFS the Lead Agency for the Major Federal Action?
If the United States Forest Service (USFS) is the lead agency then it will coordinate the NEPA process.
9.10 to 9.11 - Is the USDA the Lead Agency for the Major Federal Action?
If the United States Department of Agriculture (USDA) is the lead agency for a utility-scale solar project, then the Rural Utilities Service (RUS) will coordinate the NEPA process.
Rural Utilities Service NEPA Process:
9-FD-h
9.12 – If Necessary, Contact Other Federal Agencies for NEPA Process
If another federal agency is the lead agency for the major federal action then the developer will be required to contact that agency for its NEPA policies and procedures.
9.13 to 9.14 - Has an On-Site Evaluation Been Conducted?
The on-site evaluation process is intended to walk the developer through all of the required "environmental" considerations of a typical environmental review under NEPA.
On-Site Evaluation Process: 10
9.15 - State Environmental Process
Most states have passed state environmental laws and regulations. Some states have an all-encompassing environmental review process such as California's CEQA process, while other states consider only certain issues.
The state of Alaska has not adopted a state environmental review process.
State Environmental Review Overview:
9-CA-a
State Environmental Review Process:
9-HI-a
State Environmental Review Process:
9-ID-a
State Environmental Review Process:
9-MT-a
State Environmental Review:
9-NV-a
Contact Information
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Regulations
- National Environmental Policy Act
- 40 CFR 1508.18 - Major Federal Action
- Executive Order 13807 – Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure (One Federal Decision)
- Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807