RAPIDRegulatory and Permitting Information Desktop Toolkit

# Federal Department of Energy- NEPA (9-FD-e)

Whenever the Department of Energy (DOE) considers funding, licensing, or permitting a project the National Environmental Policy Act (NEPA) may be triggered. If the DOE exercises control over the implementation of the action such that the effect can be meaningfully evaluated, NEPA analysis is required.

The National Environmental Policy Act of 1969 requires Federal agencies to consider the potential environmental consequences of their proposed action, and any reasonable alternatives, before deciding whether and in what form to take an action. Environmental reviews prepared under NEPA should provide a decision maker 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.”

Complying with NEPA can take these forms:

1. a Categorical Exclusion;
2. an Environmental Assessment (EA) with a Finding of No Significant Impact (FONSI); or
3. an Environmental Impact Statement (EIS).
The DOE's NEPA process is described and controlled by 10 CFR § 1021.

## 9-FD-e.1 - Consult with DOE Regarding Level and Scope of Review

The developer should consult with the DOE as early as possible in the planning process to obtain guidance with respect to the appropriate level and scope of any studies or environmental information that DOE may require to be submitted as part of, or in support of, the application. 10 CFR 1021.215.

## 9-FD-e.2 - Does DOE Determine that an EIS is Necessary?

Following an initial consultation with the developer, the DOE may determine that an EIS must be prepared for the project without need for further examination. 10 CFR 1021.300.

## 9-FD-e.3 - Conduct On-Site Evaluation

The agency will determine whether an on-site evaluation is required. An on-site evaluation may not be required for activities covered under casual use or categorical exclusion.

If an On-Site Evaluation has not yet been completed, it is conducted to evaluate the potential impacts from the activity.

If an On-Site Evaluation has been completed, the Agency will evaluate the significance of impacts from proposed activity.

## 9-FD-e.4 – Conduct Environmental Studies

The developer may be required to hire an Environmental Consultant or Engineer to complete the environmental studies requested by the DOE.

## 9-FD-e.5 – Notify DOE of Other Local, State, or Federal Environmental Reviews

The DOE requires a developer notify DOE as early as possible of other federal, state, regional, local, or tribal actions required for project completion to allow the DOE to coordinate the federal environmental review, and fulfill the requirements of 40 CFR 1506.2 regarding elimination of duplication with state and local procedures.

## 9-FD-e.6 – Does the Proposed Activity Fall Under a Categorical Exclusion?

A Categorical Exclusion is a category of actions that is expected not to have individually or cumulatively significant environmental impacts. Each agency’s procedures for implementing NEPA sets out that agency’s Categorical Exclusions, which are established after CEQ and public review. A proposed action within such a category is excluded from further analysis and documentation in an Environmental Assessment or an Environmental Impact Statement. A Categorical Exclusion can be concluded with a determination that a proposed action falls within one of the categories of actions and there are no extraordinary circumstances indicating further environmental review is warranted. Properly developed and applied, Categorical Exclusions provide an efficient tool to complete the NEPA environmental review process for proposals that normally do not require more resource-intensive EAs or EISs. The use of Categorical Exclusions can reduce paperwork and delay for proposed actions that do not raise the potential for significant environmental effects.

The DOE list its Categorical Exclusions under appendix A and B of 10 CFR 1021.

## 9-FD-e.7 to 9-FD-e.9 – Does the Proposed Activity Include Extraordinary Circumstances?

The application of a Categorical Exclusion can be limited by extraordinary circumstances. Extraordinary circumstances are factors or circumstances in which a normally excluded action may have a significant environmental effect that then requires further analysis in an EA or EIS. When evaluating whether to apply a Categorical Exclusion to a proposed activity, an agency must consider the specific circumstances associated with the activity and may not end its review based solely on the determination that the activity fits within the description of a Categorical Exclusion; rather, the agency must also consider whether there are extraordinary circumstances that would warrant further NEPA review. Example of extraordinary circumstances - the potential effects on a protected species, species habitat, or historic properties listed in the National Register of Historic Places.

If the DOE determines there is an extraordinary circumstance an EA or in some circumstances an EIS will be required.

If no extraordinary circumstances are found the DOE will issue a Decision Memo/Categorical Exclusion and the developer can continue with the permitting process.

## 9-FD-e.10 – Is the Proposed Activity Categorized for an EA or is the Activity Uncategorized?

If the DOE does not issue a categorical exclusion then an EA will likely be required.

The DOE will prepare an EA for a proposed DOE action that is described in appendix C of 10 CFR 1021. In addition, the DOE will prepare an EA for an action that is not classified by the DOE in 10 CFR 1021 (except if the DOE decides to complete an EIS for the unclassified action).

If an action is classified in appendix D of 10 CFR 1021 an EIS will be required. An EIS may also be required after the DOE completes an EA.

## 9-FD-e.11 - Begin Environmental Assessment Process

If the DOE requires an EA the developer should coordinate with the DOE early in the process.

## 9-FD-e.12 to 9-FD-e.14 - Will the DOE Write the Environmental Assessment?

At the DOE’s option, a developer may prepare an EA in accordance with 40 CFR 1506.5(b).

If the developer prepares the EA it will likely be required to hire an Environmental Consultant or Engineer to draft the EA.

## 9-FD-e.15 – Environmental Assessment

An Environmental Assessment (EA) is appropriate for projects that are not categorically excluded and not normally subject to an Environmental Impact Statement (EIS). An EA is conducted to determine if the action has significant environmental effects. If the action does have significant effects, an EIS must be prepared. If there is no significant effect, a Finding of No Significant Impact (FONSI) is prepared instead.

The term “significant” has specific meaning in the context of NEPA. The CEQ regulations explain in 40 CFR 1508.27:

‘Significantly’ as used in the NEPA requires considerations of both context and intensity:

Context
This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, for a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short-term and long-term effects are relevant.
Intensity
This refers to the severity of effect. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. (40 CFR 1508.27).

An EA is typically shorter than an EIS, with fewer opportunities for public comment or involvement, and has fewer procedural requirements, generally requiring less time to prepare than an EIS. CEQ suggests that an EA should be between 10 – 15 pages. CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 36a. However, EAs are typically longer- up to 150 pages.

## 9-FD-e.16 – Notify Host State or Tribe of the EA

The DOE requires that the host state or if on a reservation, tribe, be notified of any EA prepared by the agency.

In addition, the DOE will notify affected parties including the developer and any local, state, or federal agencies involved. 10 CFR 1021.301(c).

## 9-FD-e.17 – Comment on Environmental Assessment

The DOE must allow the host state or host tribe to a project the opportunity to comment on an EA before the DOE’s approval and final action on the EA.

Unless waived by the state or tribe, the comment period must last between 14 and 30 days, determined at the DOE’s discretion.

Other affected parties will also have the ability to comment during this period. 10 CFR 1021.301(d).

## 9-FD-e.18 to 9-FD-e.20 - Does the DOE make a Finding of No Significant Impact or Require an EIS?

The DOE will either make a Finding of No Significant Impact or require an Environmental Impact Statement. 10 CFR 1021.322.

Finding of No Significant Impact (FONSI)

The FONSI explains the reasons why an action will not have a significant effect on the human environment and thus why an EIS will not be required. It must succinctly state the reasons for deciding that the action will have no significant environmental effects 40 CFR 1508.13; CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 37a. The FONSI need only provide a basis for the conclusion that the selected alternative(s) will have no significant effect. Alternatives that are not selected but may have significant effects do not trigger the preparation of an EIS nor do they have to be described in the FONSI. There are two situations when a FONSI is prepared:

• EA analysis shows that the action would have no significant effects.
• EA analysis shows that the action would have no significant effects beyond those already analyzed in an EIS to which the EA is tiered, provided that the significant effects in question were fully analyzed in the EIS.

The DOE issues FONSIs. The developer is required to comply with any limitation or conditions in the FONSI.

## 9-FD-e.21 – Begin Environmental Impact Statement (EIS) Process

If the DOE requires an EIS the developer should coordinate with the DOE early in the process.

## 9-FD-e.22 – Publish Notice of Intent (NOI) and Notify Host State or Tribe

The DOE will publish a Notice of Intent (NOI) in the Federal Register; this will begin the EIS process. The DOE will also notify the host state or host tribe of the EIS.

The DOE will also notify affected parties including the developer and any local, state, or federal agencies involved. 10 CFR 1021.301(c).

## 9-FD-e.23 – Public Scoping Notice and Comment Period

The publication of the NOI in the Federal Register starts the public scoping process. The public comment period is a minimum of 30 days.

The intent of scoping is to focus the analysis on significant issues and reasonable alternatives, to eliminate extraneous discussion, and to reduce the length of the EIS.

The CEQ regulations at 40 CFR 1501.7 require the following in an agency’s scoping process:

• Invite participation from affected federal, state, local, and tribal organizations and interested persons.
• Determine the scope or extent of the EIS and the significant issues to be analyzed. Scoping is valuable in identifying connected, cumulative, and similar actions.
• Eliminate those issues raised that are not related to potentially significant impacts or those that have been covered in other environmental documents.
• Make assignments for preparation of the EIS between the lead and cooperating agencies.
• Identify any environmental documents being prepared that have relevance to, but are not part of, the scope of this EIS.
• Identify other environmental review and consultation requirements.
• Discuss the relationship between the timing of the preparation of the EIS and the agency’s tentative planning and decision-making schedule.

## 9-FD-e.24 – Hold Public Scoping Hearing

The DOE will hold at least one public scoping hearing as part of the public Scoping process for an EIS. The date of the hearing is usually part of the NOI. 10 CFR 1021.311(d).

## 9-FD-e.25 – Draft Environmental Impact Study

The DOE will draft an Environmental Impact Study.

The CEQ regulations require EIS documents to be “concise, clear, and to the point.” 40 CFR 1500.2(b); 40 CFR 1502.4. Analyses must “focus on significant environmental issues and alternatives” and be useful to the decision-maker and the public. 40 CFR 1500.1. Discussions of impacts are to be proportionate to their significance. 40 CFR 1502.2(b). Similarly, the description of the affected environment is to be no longer than is necessary to understand the effects of the alternatives. 40 CFR 1502.15. “Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.” 40 CFR 1500.1.

## 9-FD-e.26 – Issue Notice by Publishing Draft EIS in the Federal Register

Public notice is issued when the Environmental Protection Agency (EPA) publishes a Notice of Availability of the DOE’s draft EIS in the Federal Register.

## 9-FD-e.27 - Public Notice and Comment Period on Draft EIS

The public review and comment period for DOE draft EISs is a minimum of 45 days. 10 CFR 1021.313(a)

## 9-FD-e.28 – Hold Public Hearing

The DOE will hold at least one public hearing on DOE draft EISs. 10 CFR 1021.313(b)

## 9-FD-e.29 to 9-FD-e.30 – Final Environmental Impact Statement

Following the public comment period and public hearing on the draft EIS, the DOE will prepare a final EIS. 10 CFR 1021.313(c).

The DOE will appropriately publicize the final EIS and publish a Record of Decision (ROD) in the Federal Register.

## 9-FD-e.31 - Follow EIS and Continue Permitting Project

The developer is required to abide by any limitations or conditions in the EIS. In addition, the DOE at its discretion and within its scope of authority may select an appropriate form and method for monitoring EIS compliance. The public may also assist with actual EIS monitoring through public-private partnership programs.