Signed into law on January 1, 1970, the National Environmental Policy Act (NEPA) (42 USC 4321) was the first major environmental law in the United States. This important statute established a national environmental policy and required federal agencies to undertake an assessment of the environmental effects of their proposed actions prior to making decisions. Regulations promulgated by the Council on Environmental Quality (CEQ) (40 CFR Parts 1500 - 1508) implement the procedural provisions of NEPA, and each federal agency has its own set of regulations to implement the CEQ's NEPA regulations.
The extent of the environmental assessment necessary during a NEPA review varies based on the significance of the potential impacts associated with a project. For wind projects that are not located on federal lands, comprehensive environmental reviews most often occur as part of state or local permitting processes rather than as part of a federal agency NEPA review (Section 4.2 and Section 4.3). Wind projects in the western part of the United States encounter comprehensive NEPA reviews more often than in the eastern part due to the greater amount of federal lands available for development. Although federal reviews for wind projects generally consist of consultations or permits that do not require the preparation of lengthy environmental assessment documents, activities that might trigger a comprehensive NEPA review include:
For wind projects that are not located on federal lands, comprehensive environmental reviews most often occur as part of state or local permitting processes rather than as part of a federal agency NEPA review.
The Bureau of Land Management (BLM) developed a Programmatic Environmental Impact Statement to evaluate issues associated with wind energy development on western public lands administered by the BLM, including Alaska. The Final EIS was released and approved in 2005.
• granting rights to use federally managed land
• required federal permits or approvals, such as
■ U.S. Fish and Wildlife Service Incidental Take Permit
■ individual permit from the U.S. Army Corps of Engineers pursuant to Section 404 of the Clean Water Act for discharge of fill or dredged materials into waters of the United States (including federal wetlands)
■ permit under Section 10 of the Rivers and Harbors Act for work in navigable waters of the United States
• accessing federally-owned transmission lines
• receipt of federal grant monies or other federal funds
For the purposes of NEPA review, federal agency actions are divided into the three categories listed below. When performing NEPA review, the agency must determine which of the following categories applies:
1. Categorical Exclusion: Each agency is permitted to adopt a list of Categorical Exclusions (CX) which are types of actions that individually or cumulatively do not have significant effects on the environment. For example, the use of a CX for the issuance of short-term right-of-way authorizations by the Bureau of Land Management may be applicable to some wind energy site testing and monitoring locations. Unless extraordinary circumstances exist, an agency can proceed with an action that is a listed CX without further NEPA review.
Federal agency actions under NEPA review are divided into three categories:
2. Environmental Assessment. The vast majority of actions fall within the category requiring an Environmental Assessment (EA). An EA is a concise public document that provides sufficient evidence and analysis to assist the agency in determining whether to prepare an Environmental Impact Statement (EIS) for a proposed action, and to comply with NEPA when no EIS is required. Developers can increase their chances of remaining in the EA category by minimizing project impacts and/or including mitigation measures in the initial proposal.
After performing an EA, if an agency determines that the action would not significantly affect the environment, it prepares a Finding of No Significant Impact (FONSI). A FONSI is a brief document that presents why an agency has determined that no EIS is required for a particular action. The FONSI includes the EA or a summary and references to related documents. The agency is required to make the FONSI available to the public, but unless certain circumstances are triggered, the agency is generally not required to make the FONSI available for a 30-day public review.
3. Environmental Impact Statement: If the agency determines that the action would have a significant effect on the quality of the human environment, the agency must prepare an EIS. Agency regulations or guidelines may specify those actions that typically would require an EIS. Alternatively, an agency may prepare an EA to determine whether an EIS is necessary.
If an agency determines that an EIS is required, it must prepare a Notice of Intent (NOI), publish the NOI in the Federal Register, and commence the scoping process.
1) Categorical Exclusion
2) Environmental Assessment
3) Environmental Impact Statement
The following flowchart provides a step-by-step account of the NEPA process.
In general, an agency may not take any project-related action (such as issuing a permit) while the EIS is pending. During this interim period, applicants can develop plans or designs, or undertake other work to support an application, such as conduct meteorological, environmental, cultural, and engineering studies. Although the federal agency is responsible for preparing an EA and/or EIS, applicants usually provide the agency with supporting studies and documentation.
NEPA requires that its mandates be met with a minimum of delay and duplication with other state and federal agencies. The CEQ regulations strongly urge state and local agencies and the relevant federal agencies to cooperate with one another to reduce duplication between NEPA and comparable state and local requirements. Such cooperation should include joint planning processes, environmental research and studies, public hearings, and the preparation of joint EISs under NEPA and state environmental impact laws (see "Little-NEPAs" discussion in Section 4.2.3), so that one document will satisfy both federal and state requirements.
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