The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970. NEPA requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions. The range of actions covered by NEPA is broad and includes:
- making decisions on permit applications,
- adopting federal land management actions, and
- constructing highways and other publicly-owned facilities.
Using the NEPA process, agencies evaluate the environmental and related social and economic effects of their proposed actions. Agencies also provide opportunities for public review and comment on those evaluations.
Keszey, Levi. 2018. Permitting and Compliance Guidance for Meadow Restoration Practitioners Version 1.0. Sierra Meadows Partnership Working Paper 3: PP 1- 42.
NEPA requires federal agencies to consider the environmental impacts of proposed actions prior to making decisions. NEPA is a disclosure act, meaning that a federal agency does not have to choose the alternative with the least environmental impacts, but does need to disclose which alternative that is and why they are going to implement another more alternative with greater environmental impacts. NEPA applies whenever a proposed activity or action:
- Is proposed on federal lands,
- requires passage across federal lands,
- will be funded in part or in whole by federal money, or
- will require authorization or other type of permission from a federal agency. NEPA requires an assessment of the effects—direct, indirect and cumulative—of an agency’s proposed action on the environment.
That assessment includes effects on a wide range of resources, including air, water, cultural resources, animal and plant species and human communities as determined by surveys of these resources and the proposed actions.
NEPA established a nationwide prescribed process for federal decision that requires public involvement, scientific rationale and, where deemed necessary, mitigation measures. It requires all federal agencies to “promote efforts to prevent or eliminate damage to the environment and biosphere” (See Appendix A for NEPA Sec. 101). Specifically, all federal agencies are to prepare detailed statements assessing the environmental impact of, and all feasible alternatives to, major federal actions “significantly” affecting the environment. “Significance” as defined by the Council on Environmental Quality (CEQ) can be found in Appendix D.
Most federal agencies have developed their own NEPA procedures that supplement the CEQ NEPA regulations. These NEPA procedures vary between agencies depending on the missions and activities of the agencies. Thus, in coordinating meadow restoration projects it is important to work within the procedures of the federal agency designated to supervise the preparation of the environmental analysis. This supervising agency is called the “lead agency” and identification and establishment of the lead agency for a given project is a major first step in the compliance process.
In some cases, there may be more than one federal agency involved in the proposed action. In this situation, a lead agency must be designated to supervise the preparation of the environmental analysis, to be responsible for any necessary consolations with resource agencies and to coordinate with American Tribes and the public. Generally, the lead agency is the federal agency having jurisdiction over the project as determined by the following hierarchy: project proponent, funder, agency landowner, need for authorization or permission. Federal agencies, together with state, tribal or local agencies, may act as joint lead agencies. A federal, state, tribal or local agency having special expertise and not determined to be the Lead can act as cooperating agencies to assist in project scoping, prepare environmental analysis, or make staff support available.
Possible Paths for Compliance
Depending on the likelihood of “significant” environmental impacts, there are three possible paths for NEPA compliance: Categorical Exclusion (CE), Environmental Assessment (EA) or Environmental Impact Statement (EIS). Since meadow restoration projects by their nature generally have a net positive impact on the environment, most projects either fit a CE or require an EA. Since these are the most common for meadow restoration, they will be described in greater detail than the EIS process.
Categorical Exclusion (CE)
A Categorical Exclusion (CE) is an action that a federal agency has deemed to have minimal or no environmental effect and is thus exempt from NEPA. If the lead agency determines that the environmental effects of a proposed action are not likely to be significant, and it fits in the description of one of the agency’s CEs, you are eligible to pursue the path of a CE for NEPA compliance. Each federal agency has their own evolving set of CEs. Preparation and approval of a CE usually takes less time than an EA or EIS and is significantly less expensive. If a project is eligible for a Categorical Exclusion, the agency must also document that there are no extraordinary circumstances that would preclude compliance. Extraordinary circumstances include the presence of listed species, municipal (supply) watersheds, congressionally designated areas (such as wilderness areas), cultural or historic sites and other site-specific considerations. Even if eligible for a CE, an EA should be considered for restoration projects that create large-scale disturbance, such as pond and plug, because of the uncertainty of the level of significance of the landscape manipulation required with such a technique. Due to the distribution of meadows across the west, the United States Forest Service (USFS) will often, though not always, serve as the lead agency for NEPA. US Forest Service NEPA Web Page.
Environmental Assessment (EA)
If environmental effects are uncertain or the category of actions is not adequately addressed by an agency CE, then an EA is the appropriate compliance path. The purpose of an EA is to determine the level of significance of impacts. If environmental effects are found to be significant, an EIS is needed. If, based on the EA, environmental effects are determined to be insignificant, a Finding of No Significant Impact (FONSI) is prepared. If environmental impacts would be significant, but mitigation measures reduce impacts to less than significant, then a Mitigated FONSI may be employed. In two circumstances NEPA requires agencies to make the proposed FONSI available for a 30-day public review period: 1) If the type of proposed action hasn’t been undertaken before by the agency or 2) If the action is something that would typically require an EIS under the agency’s NEPA procedures. Following the FONSI process, the lead agency decides whether compliance was met.
Most litigation of EAs include a question of whether the impact of the Proposed Action is indeed significant, and thus an Environmental Impact Statement (EIS) – the highest level of analysis – should be completed. Significance, as defined by the CEQ, can be found in Appendix D. This can usually be avoided by early and broad stakeholder engagement and through the Public Scoping Process.
Summary of US Forest Service Environmental Assessment Process
- Enter proposed project information into the Schedule of Proposed Actions (SOPA)
- Conduct scoping analysis
- Inform participants and the public of the results of scoping
- Form interdisciplinary project team
- Write and release project initiation letter
- Develop a framework for analysis (i.e. what potential impacts will be assessed)
- Collect and interpret data
- Formulate alternatives and analyze effects
- Determine environmental impacts
- Write a Notice of Intent (NOI) to announce intent to prepare an EA.
- Finding of no significant impact (FONSI) or mitigated FONSI
- Write and distribute EA/Decision Notice
The Decision Notice outlines the findings of the EA whether a FONSI, Mitigated FONSI, or need to prepare an EIS. This document contains: project location, purpose and need for proposal, public involvement and tribal consultation, proposed action and alternatives, environmental impacts of proposed action and alternatives, mitigation measures, list of agencies and persons consulted and the EA decision.