Fiscal Responsibility Act of 2023 (FRA)

What changes did the Fiscal Responsibility Act of 2023 (FRA) make to NEPA?

The FRA amendments to NEPA:

• Codify that environmental impact statements should include discussion of reasonably foreseeable effects of a proposed action, reasonably foreseeable effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. (Sec. 102(2)(C); 42 U.S.C. § 4332(2)(C)).
• Clarify requirements for determining whether to prepare an environmental document and the appropriate level of NEPA review. (Sec. 106; 42 U.S.C. § 4336).
• Clarify the roles and responsibilities of lead agencies and cooperating agencies, including designation of such agencies. (Sec. 107(a); 42 U.S.C. § 4336a(a)).
• Promote development of a single environmental document. (Sec. 107(b); 42 U.S.C. § 4336a(b)).
• Set page limits and deadlines for environmental impact statements and environmental assessments. (Sec. 107(e) and (g); 42 U.S.C. § 4336a(e) and (g)).
• Direct agencies to develop procedures for how, under Federal agency supervision, project sponsors may prepare environmental assessments and environmental impact statements. (Sec. 107(f); 42 U.S.C. § 4336a(f)).
• Provide time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review. (Sec. 108; 42 U.S.C. § 4336b).
• Establish a process for Federal agencies to use another agency's categorical exclusions. (Sec. 109; 42 U.S.C. § 4336c).
• Require CEQ to conduct a study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency. (Sec. 110; 42 U.S.C. § 4336d).
• Define terms used in NEPA, including cooperating agency, environmental document, lead agency, major Federal action, participating Federal agency, programmatic environmental document, and special expertise. (Sec. 111; 42 U.S.C. § 4336e).

What is the effective date of the 2023 amendments to NEPA?

The amendments to NEPA are effective June 3, 2023.

How do the amendments apply to ongoing NEPA reviews?

Federal agencies are responsible for determining how the amendments apply to their ongoing NEPA reviews and should consider congressional intent to facilitate more efficient NEPA analysis when making this determination. Many of the provisions of the FRA codify best practices an agency may already include in its NEPA reviews, or ones an agency may integrate into an ongoing review with little or no disruption. Where implementation of a provision could lead to inefficiency in an ongoing NEPA review, agencies should engage in a fact-specific evaluation to determine the appropriate approach that considers the statutory requirements; the level of NEPA review (i.e., environmental impact statement, environmental assessment, or categorical exclusion); the stage at which the environmental review was at the time of the amendment; the expectations of any project proponents; additional resources that would be required to implement the provision; the extent of any disruption it could cause; and other legal considerations.

When do CEQ’s revisions to the NEPA regulations take effect, and how do they affect ongoing reviews and existing agency NEPA procedures? Does the effective date for the NEPA regulations change the effective date for the 2023 NEPA amendments?

CEQ’s Bipartisan Permitting Reform Implementation (BPRI) rule—which implements the Fiscal Responsibility Act amendments to NEPA and makes other changes to modernize the environmental review process by amending the CEQ regulations, 40 C.F.R. Parts 1500 through 1508—is effective on July 1, 2024. See 40 C.F.R. § 1506.12. This does not impact the effective date of the 2023 NEPA amendments which were effective on June 3, 2023. Agencies must continue to comply with the 2023 NEPA amendments.

Agencies may apply the revised regulations to ongoing activities and environmental documents begun before July 1, 2024, but are not required to do so in order to avoid disruption to or delay for ongoing reviews. As has been true for CEQ’s other recent regulatory revisions, the final rule allows agencies to choose to apply the revised regulations to ongoing reviews if they determine, for example, that doing so will improve the efficiency of the review.

An agency’s existing NEPA procedures remain in effect until the agency revises its procedures consistent with 40 CFR § 1507.3; however, agencies should read their existing procedures in concert with the final rule to ensure they are meeting the requisite requirements of both wherever possible. To the extent that there is conflict between an agency’s NEPA procedures and the CEQ regulations, the CEQ regulations generally will apply. CEQ is available to assist in addressing any such conflicts.

How do the NEPA regulations implement the page limits for environmental assessments and environmental impact statements required by 2023 NEPA amendments?

The final rule fully implements the page limits included in the 2023 NEPA amendments. Under the rule, environmental impact statements must be 150 pages or less, or 300 pages or less for proposals of extraordinary complexity. 40 C.F.R. § 1502.7. Environmental assessments must be 75 pages or less. 40 C.F.R. § 1501.5(g). The final rule defines a “page” as containing 500 words and excludes citations, explanatory maps, diagrams, graphs, tables, and other means of graphically displaying quantitative or geospatial information. 40 C.F.R. § 1508.1(bb).

Implementation of page limits will lead to environmental documents that focus on important issues, avoid excessive technical information, and are understandable to the decision maker and the public.

CEQ’s regulations highlight some approaches that agencies can use to continue to perform appropriate environmental reviews while meeting the page limits. Additionally, CEQ guidance and agencies have identified other practices that achieve these objectives. For example, agencies can:

• Use the scoping process to help identify the important issues for analysis in the environmental impact statement or environmental assessment; and develop scoping reports—which the agency appends to an environmental impact statement or environmental assessment—to help focus the analysis on important issues and explain why the agency determined to focus on certain issues and not others. See 40 C.F.R. §§ 1500.4(f), 1501.9, 1502.4.
• Create annotated outlines and establish page “budgets” that allocate a set number of pages for each section of the NEPA document.
• Use programmatic reviews to develop environmental documents of broader scope that the agency can tier to and rely on in subsequent NEPA documents, eliminating repetitive discussions. See 40 C.F.R. §§ 1500.4(h), 1501.11, and 1502.4.
• Incorporate by reference into an environmental impact statement or environmental assessment prior analyses, studies, or other information, briefly summarizing them, and either linking to such publicly available information or including it in an appendix. See 40 C.F.R. §§ 1500.4(i) and 1501.12.
• Adopt previously completed environmental documents where another agency has conducted a NEPA review on the same or similar action. See 40 C.F.R. §§ 1500.4(m) and 1506.3.
• For contractor- or consultant-prepared documents, include contract terms or specifications requiring page limits and providing contract incentives for developing concise and effective NEPA documents.
• For environmental impact statements, combine the discussion of the affected environment and environmental consequences and limit duplicative discussion of alternatives in the discussion of environmental consequences. See 40 C.F.R. §§ 1502.14–1502.16.

Agencies also must write environmental documents in plain language and should use graphics, maps, tables, and other accessible means of presenting information so that decision makers and the public can readily understand the information and make informed decisions. For example, agencies can place technical analyses, data, and other supporting material in an appendix to an environmental impact statement or environmental assessment. See 40 C.F.R. §§ 1500.4(c), 1502.8, 1502.12, 1502.19; see also Federal Plain Language Guidelines (Mar. 2011).

CEQ’s guidance on Preparing Efficient and Timely Environmental Reviews under NEPA provides additional discussion on how to develop effective and readable environmental documents that meet the page limits.

How do the regulations implement the deadlines included in the 2023 NEPA amendments for agencies to complete environmental assessments and environmental impact statements and how are they calculated?

The final rule fully implements the Fiscal Responsibility Act’s deadline requirements and requires an agency to complete an environmental assessment within one year and an environmental impact statement in two years, unless the agency extends the deadline in writing after consulting with any applicant. Agencies can only extend deadlines by the amount of time necessary to complete the environmental assessment or environmental impact statement. See 40 C.F.R. §§ 1501.10(b)(l)–(2).

The final rule provides the start and end points for calculating the deadlines for environmental impact statements and environmental assessments. Specifically, the starting points are the earlier of when:

• The agency determines that NEPA requires an environmental impact statement or environmental assessment for the proposed action;
• The agency notifies an applicant that it has received a completed application; or
• The agency issues a notice of intent for the proposed action.

40 C.F.R. § 1501.10(b)(3).

The end points are:

• For environmental assessments, the date when the agency publishes an environmental assessment, issues a notice of intent to prepare an environmental impact statement, or, where applicable, makes an environmental assessment available pursuant to an agency’s pre-decisional environmental review process.
• For environmental impact statements, the date when the Environmental Protection Agency publishes a notice of availability of the final environmental impact statement or, where applicable, when the agency makes the final environmental impact statement available pursuant to an agency’s pre-decisional administrative review process.

40 C.F.R. § 1501.10(b)(4).

How does the final rule facilitate timely decision-making processes, helping agencies meet the deadlines?

The final rule contains several provisions to improve the efficiency of the environmental review process. For example, the rule:

• Includes processes for early planning, public and governmental engagement, and interagency collaboration to identify and resolve issues early in the process. See, e.g., 40 C.F.R. §§ 1501.7–1501.9, 1502.4.
• Requires agencies to develop schedules that include the milestones needed to complete the environmental review and issue any necessary Federal authorizations. Lead agencies develop schedules in collaboration and consultation with participating agencies and applicants, and seek concurrence from participating agencies. 40 C.F.R. §§ 1501.10(a), (c).
• Codifies the practice of using mitigated FONSIs, which expand the circumstances in which an agency may prepare an EA to reach a FONSI, rather than preparing an EIS. 40 C.F.R. § 1501.6(a)(2).
• Encourages agencies to incorporate information by reference where the agency provides a brief summary of the content and its relevance to the environmental document, and indicates where the information is readily available to the public by providing citations or hyperlinks. 40 C.F.R. §§ 1500.4(i), 1501.12.
• Includes new pathways for CE development through land use plans, programmatic documents, or other equivalent planning process and decision. 40 C.F.R. § 1501.4(c).
• Details a process for an agency to adopt and use another agency’s categorical exclusion. 40 C.F.R. § 1501.4(e).
• Allows agencies to apply categorical exclusions to proposed actions where extraordinary circumstances exist as long as the agency determines that the proposed action will not in fact result in significant effects notwithstanding the existence of the extraordinary circumstance, or the agency modifies the action to avoid the potential to result in significant effects. 40 C.F.R. § 1501.4(b)(1).
• Encourages agencies to prepare programmatic environmental documents to conduct a broad or holistic evaluation of effects or policy alternatives, evaluate widely applicable measures, or avoid duplicative analysis for individual actions by first considering relevant issues at a broad or programmatic level. Agencies may then tier to programmatic documents to eliminate repetitive discussions of the same issues, analyzing site-, phase-, or stage-specific conditions and reasonably foreseeable effects and excluding from consideration issues already analyzed or decided. 40 C.F.R. §§ 1500.4(h), 1501.11.

When must agencies submit a report to Congress on missed deadlines?

Section 109(h) of NEPA requires a lead agency to annually submit a report identifying any environmental assessments and environmental impact statements with a missed deadline and explaining why the deadline was missed. Consistent with the Memorandum for Heads of Departments and Agencies on Reports to Congress on Deadlines Under NEPA, issued by CEQ on May 31, 2024, the first report is due in June 2025 and should include missed deadlines for environmental assessments. The second report is due in June 2026 and should include missed deadlines for environmental impact statements and environmental assessments. Agencies do not have to submit a report if they do not have any missed deadlines.

Consistent with section 109(g)(2) of NEPA, agencies may extend a deadline, in writing, after consulting with any applicant so long as the extension is only the amount of time necessary to complete the environmental assessment or environmental impact statement. See 40 C.F.R. §§ 1501.10(b)(l)–(2). Agencies should extend deadlines where it is appropriate to do so.

How do deadlines and reporting apply to actions initiated before the 2023 Amendments to NEPA were effective?

For purposes of the annual report, agencies cannot be expected to have implemented the deadlines established by the statute and the mechanisms for extending such deadlines until enactment of the FRA, which was June 3, 2023. Therefore, for NEPA reviews that were ongoing when the FRA was enacted, agencies should consider the starting point for measuring deadlines for purposes of the annual reports to be June 3, 2023. If agencies have ongoing NEPA reviews that require more than one year for an environmental assessment or two years for an environmental impact statement measured from the enactment of the FRA, they should take steps to extend those deadlines, in consultation with any applicant, and establish a new deadline that provides only so much additional time as is necessary to complete the environmental review as directed by the statute.

How does the final rule incorporate the roles and responsibilities of lead, joint lead, cooperating, and participating agencies included in the 2023 NEPA amendments?

The 2023 NEPA amendments require designation of a lead agency, clarify the considerations for designating, when it is appropriate, cooperating agencies and joint lead agencies, and set forth roles and responsibilities for agencies participating in the NEPA process. CEQ’s revised regulations fully incorporate these amendments.

• The final rule directs participating Federal agencies to consider the following when determining which will serve as the lead agency: (1) the magnitude of an agency’s involvement, (2) the project approval or disapproval authority, (3) the expertise of an agency concerning the actions environmental effects, (4) the duration of an agency’s involvement, and (5) the sequence of an agency’s involvement. See 42 U.S.C. § 4336a(a)(1)(A); 40 C.F.R. § 1501.7(c).
• If the participating Federal agencies cannot agree on a lead agency, there is a process for them to request that CEQ designate a lead agency. See 42 U.S.C. § 4336a(a)(5); 40 C.F.R. § 1501.7(e).
• If a lead agency is not designated, there is process for any Federal, State, Tribal, or local agency or person substantially affected by the absence of a lead agency designation to request the designation of a lead agency. See 42 U.S.C. § 4336a(a)(4); 40 C.F.R. § 1501.7(d).
• The lead agency may designate a Federal, State, Tribal, or local agency as a joint lead agency. See 42 U.S.C. 4336a(a)(1)(B); 40 C.F.R. § 1501.7(b).
• A lead agency may designate any Federal, State, Tribal, or local agency that has jurisdiction by law or special expertise with respect to any environmental issue involved in a proposal as a cooperating agency. See 40 C.F.R. §§ 1501.7 and 1501.8.
• Any Federal, State, Tribal, or local agency that is participating in an environmental review or authorization of an action is a participating agency. See 42 U.S.C. § 4336a(a)(4); 40 C.F.R. § 1508.1(cc). For example, participating agencies includes lead, joint lead, and cooperating agencies.

How does the rule incorporate Section 109 of NEPA, which allows agencies to adopt and apply another agency’s categorical exclusion?

The final rule provides a clear and simple process for an agency to adopt and apply another agency’s categorical exclusions in 40 CFR § 1501.4(e) by:

• Identifying the existing categorical exclusion(s) in another agency’s NEPA procedures that may cover the adopting agency’s proposed action or category of proposed actions.
• Consulting with the agency that established the categorical exclusion in its agency NEPA procedures (the establishing agency) to ensure the adoption is appropriate. This consultation process also helps ensure that the adopting agency is aware of and follows any process included in the establishing agency’s NEPA procedures necessary to apply the categorical exclusion.
• Providing public notification of:
  • The categorical exclusion(s) the agency is adopting;
  • The proposed action or category of proposed actions to which the agency intends to apply the adopted CE;
  • The process that the agency will use to evaluate for extraordinary circumstances; and
  • A brief description of the agencies’ consultation on the adoption, including the adopting agency’s conclusion that adoption is appropriate.
• Applying the adopted categorical exclusion to a particular proposed action or category of actions, and evaluating the proposal for extraordinary circumstances.
• Publishing documentation of each application of the adopted categorical exclusion to a specific proposed action. For example, agencies may post the documentation to their websites.

Can agencies adopt another agency’s legislative categorical exclusion?

No. Section 109 of NEPA only allows agencies to adopt and use categorical exclusions that another agency has “established” administratively, including those that Congress directs agencies to establish administratively. See 42 U.S.C. § 4336c. The statute does not authorize adoption of categorical exclusions established directly by Congress via statute.

Can an agency adopt more than one categorical exclusion in a single notification of adoption?

Yes. When an agency is adopting one or more categorial exclusions, it may publish a single notification of the adoption.

Can the adopting agency modify the categorical exclusion it is adopting?

No. Section 109 of NEPA does not authorize an adopting agency to modify another agency’s categorical exclusion. Instead, the statute directs the adopting agency to identify the action or category of actions for which it is adopting the categorical exclusion. The action or category of actions for which the agency adopts the categorical exclusion may be narrower in scope than the establishing agency’s categorical exclusion might otherwise encompass. However, the adopting agency cannot modify or change the categorial exclusion in any way.

If any agency has adopted a categorical exclusion for an action or category of actions, and later determines the categorical exclusion could apply to another, similar action or category of actions, can the agency apply the adopted categorical exclusion to those actions?

If an adopting agency later seeks to apply the adopted categorical exclusion to a different action or category of actions than those identified in the notification of adoption, the agency must follow the steps outlined above to adopt the categorical exclusion again for the different action or category of actions.

What should agencies discuss when consulting on the potential adoption of a categorical exclusion?

The consultation ensures an adopting agency will appropriately use an establishing agency’s categorical exclusion.

During the consultation, the agencies should discuss and consider:

• The types of actions to which the establishing agency applies the categorical exclusion and how these compare to the actions or categories of actions the adopting agency is contemplating. This discussion should ensure that the adopting agency’s actions or categories of actions fall within the scope of the categorical exclusion;
• Any litigation that has changed how the establishing agency interprets or applies the categorical exclusion or other public controversy surrounding the establishing agency’s use of the categorical exclusion;
• How often the establishing agency has modified a proposed action to fit the categorical exclusion or prepared an environmental assessment or environmental impact statement for a proposed action instead of relying on the categorical exclusion because of extraordinary circumstances;
• Any processes contemplated in the establishing agency’s procedures to apply the categorical exclusion, for example, such as any conditions or factors required to apply the categorical exclusion; and
• The extraordinary circumstances that the establishing agency considers in applying the categorical exclusion and how the adopting agency will review its own application of the categorical exclusion for extraordinary circumstances. The agencies should discuss whether the adopting agency will apply the establishing agency’s extraordinary circumstances exclusively or both agencies’ provisions. CEQ expects that an adopting agency generally will follow the extraordinary circumstances process set forth in the establishing agency’s NEPA procedures, but the adopting agency may decide that it also will consider the extraordinary circumstances process in its own procedures to ensure it addresses any agency-specific considerations.

What public notification is required for an agency to adopt another agency’s categorical exclusion?

An agency must provide public notification that it is adopting another agency’s categorical exclusion or categorical exclusions. The notification must:

• Identify the specific categorical exclusion or categorical exclusions that the agency is adopting,
• Identify the proposed action or category of proposed actions to which the adopting agency intends to apply the categorical exclusion,
• Describe the process the adopting agency will use to evaluate extraordinary circumstances, and
• Briefly describe consultation between the adopting and establishing agencies. CEQ recommends that the notice state and explain the adopting agency’s conclusion that the proposed use of the categorical exclusion described in the notice is appropriate.

Agencies may publish an adoption notification on their website. CEQ encourages the agencies to publish a notice through the Federal Register when they anticipate substantial public interest in the adoption.

What public notification is required for an agency to apply another agency’s categorical exclusion that it has adopted?

After an agency has adopted a categorical exclusion for a specific action or category of actions, it must document the application of the categorical exclusion to individual actions and publish such documentation. The regulations define the term “publish,” which provides discretion to the agency to choose the appropriate means of making the information available for review by interested persons, including publishing the documentation on its website. See 40 C.F.R. § 1508.1(gg).

Can an agency publish one notification both adopting another agency’s categorical exclusion and applying that categorical exclusion to a particular, discrete action or category of actions?

Yes. If an agency adopts a categorical exclusion for one action or a discrete set of specific actions, and at that time, the agency has sufficient information to consider the existence of extraordinary circumstances, the agency may prepare and publish a single notification that both adopts and applies another agency’s categorical exclusion.

Is a public comment required when an agency is adopting another agency’s categorical exclusion?

Agencies have discretion on whether to invite public comment on adopting another agency’s categorical exclusion. Individual agencies may choose to adopt standards for when they require public comment on CE adoption in their NEPA procedures.

How does the adoption process under section 109 of NEPA and 40 C.F.R. § 1501.4(e) differ from adoption of another agency’s categorical exclusion determination under 40 C.F.R. § 1506.3(d)?

Adoption under section 109 of NEPA and 40 C.F.R. § 1501.4(e) allows an agency to adopt another agency’s categorical exclusion for a particular action or category of actions, and once adopted, the adopting agency can apply that categorical exclusion to future actions that fall within the category of actions identified in its adoption notice.

Adoption under 40 C.F.R. § 1506.3(d) enables an agency to adopt another agency’s previously made determination that a categorical exclusion applies to a proposed action when the two agencies have actions that are substantially the same. Under 40 C.F.R. § 1506.3(d), an agency adopts and relies upon another agency’s specific determination that categorical exclusion applies to a particular action. The adopting agency must determine that the action covered by another agency’s categorical exclusion determination and its own proposed action are substantially the same. For example, an action might involve a permit from one agency and funding from another. In this case, the activities that will follow the agency’s permitting or funding decision are substantially the same, and the funding agency may determine it is appropriate to adopt the permitting agency’s categorical exclusion determination that applies to this common underlying activity. To adopt the categorical exclusion determination in this instance, the adopting agency must document its adoption, including the determination that its proposed action is substantially the same as the action covered by the other agency’s categorical exclusion determination and that there are no extraordinary circumstances present that require the preparation of an environmental assessment or environmental impact statement. 40 C.F.R. § 1506.3(d)(1). The adopting agency must publish its adoption determination on an agency website or otherwise make it publicly available. 40 CFR § 1506.3(d)(2).

When do the new publication requirements under CEQ’s revised regulations apply?

CEQ’s revised regulations became effective on July 1, 2024. The requirements of the regulations, including new or revised publication requirements, apply to any NEPA review initiated after this date. For NEPA reviews initiated before this date, an agency may decide whether to apply the new or revised publication requirements. To improve transparency of agency NEPA efforts, CEQ encourages publication, whenever practicable, even when not required.

What does it mean to publish a document? Where can agencies publish materials?

“Publish” and “publication” refer to methods found by the agency to efficiently and effectively make documents and information available for review by interested persons, including electronic publication. 40 C.F.R. § 1508.1(gg). Agencies must also provide websites or other information technology tools to make documents, relevant notices, and other information available for use by agencies, applicants, and interested persons. 40 C.F.R. § 1507.4(a). Agencies can publish materials on websites, in local newspapers or publications, or use other information technology tools, such as online portals and databases, listservs, email distribution, or applications, to make materials publicly available

Where CEQ’s regulations require use of a “notice,” agencies must publish the notice in the Federal Register, but may also choose to publish the notice via other mechanisms, such as those noted above, for additional transparency. Where the regulations use the word “notification” or the phrase “make publicly available,” agencies have discretion to determine the most appropriate mechanism to provide notification or make information publicly available, unless the regulations specify the information must be made available in a certain location, such as a central website.

While agencies have discretion to determine the appropriate mechanism for publishing materials, agencies must establish a centrally located website or other technology tool where the public can easily access information related to the NEPA process. Many agencies have existing, central resources for this purpose. Agencies should publish information in a manner that supports accessibility and transparency. For example, the Department of Energy (DOE) Office of NEPA Policy and Compliance’s website provides access to information on DOE NEPA rulemakings, opportunities for public comment, and the latest DOE NEPA documents. The National Oceanic and Atmospheric Administration (NOAA) recently launched a beta version of the Office of NEPA Policy and ComplianceNOAA NEPA Document Database, allowing users to access environmental assessments and environmental impact statements that NOAA is currently developing.

What are the publication requirements for the environmental impact statement (EIS) process?

There are several publication requirements associated with the different stages of development of EISs:

• Outreach and Engagement: When preparing an EIS, agencies must notify those parties who may be interested in or affected by an agency’s proposed action. As part of the scoping process, the lead agency may publish scoping information, such as a description of the proposed action, an initial list of potential effects and alternatives, maps, or other information that may help interested parties understand what the agency is proposing. Agencies also can solicit information from the public on certain questions or topics to help inform their development of the proposed action and alternatives. Agencies can publish such scoping information prior to issuing the Notice of Intent, to help inform its development. Agencies must also notify the public regarding hearings, public meetings, and other opportunities for public engagement and the availability of environmental documents. 40 C.F.R. §§ 1501.9(c) and 1502.4(b).
• Notice of Intent (NOI): Agencies must publish NOIs in the Federal Register (40 C.F.R. § 1502.4(e)) to provide notice that the agency intends to prepare an EIS. In addition, consistent with 40 C.F.R. § 1501.9, agencies may choose to use additional methods to notify the public about the Federal Register NOI publication. The NOI must include a schedule for the decision-making process as well as the other information listed in 40 C.F.R. § 1502.4(e)(1)–(10).
• Draft, Final, and Supplemental EISs: Agencies must publish draft and final EISs (40 C.F.R. § 1502.20) and must file draft and final EISs with the Environmental Protection Agency (EPA) (40 C.F.R. § 1506.9) for the EIS to appear in the EPA’s weekly Notice of Availability in the Federal Register. Agencies have discretion to also publish their own Notice of Availability in the Federal Register or via other mechanisms for publication. Agencies similarly must follow these requirements for supplemental EISs. 40 C.F.R. § 1502.9(d)(3). If an agency prepares an appendix, the agency must publish it with the EIS. 40 C.F.R. § 1502.19(a).
• Notices of Withdrawal or Cancellation: Agencies must publish a notice in the Federal Register if they decide to withdraw, cancel, or otherwise stop the analysis of a proposed action before completing a final EIS. 40 C.F.R. § 1502.4(f).
• Records of Decision (RODs): Agencies must publish a record of decision or joint record of decision, with all the requisite parts outlined in 40 C.F.R. § 1505.2.
• Adoption of Another Agency's EIS: Agencies adopting a draft or final EIS must also publish and file it in compliance with the requirements in 40 C.F.R. §§ 1506.3(b) and 1506.9.
• Schedules:: Agencies must publish schedules for completing the EIS process and any subsequent revisions to the schedule. 40 C.F.R. § 1501.10(h). Agencies must also include the schedule in the NOI.
• Public Comments:
  • Agencies must append to the draft EIS or otherwise publish all comments, or summaries thereof, received during the scoping process. 40 C.F.R § 1502.17(b).
  • When developing a final EIS, agencies must append to the final EIS or publish all substantive comments (or summaries thereof where the response has been exceptionally voluminous), received on the draft EIS and include responses to public comments. 40 C.F.R. § 1503.4(a) and (b).

What are the publication requirements related to the environmental assessment (EA) process?

While not required, agencies may choose to issue a notice of intent (NOI) when they decide to prepare EA. They also have discretion on whether to prepare and publish a draft EA. If an agency decides to publish a draft EA, the agency must invite public comment on the document, but unlike an environmental impact statement (EIS), agencies have discretion whether to publish the comments received.

Agencies must notify the public regarding hearings, public meetings, and other opportunities for public engagement and the availability of environmental documents, including EAs. 40 C.F.R. §§ 1501.9(c). Agencies must publish a final EA and either a finding of no significant impact (FONSI) or a decision to prepare an EIS, which is most commonly achieved by publishing the required NOI to prepare an EIS.

CEQ encourages agencies to publish the schedule for the preparation of EAs, including the schedule milestones listed at 40 C.F.R. § 1501.10(f).

What are the publication requirements related to application of a categorical exclusion (CE) and adoption of another agency’s CE determination?

Agencies must identify in their agency procedures when they require documentation of a determination that a CE applies to a proposed action. 40 C.F.R. § 1507.3(c)(8)(i). CEQ encourages agencies to publish such documentation.

Where an agency applies a CE even when an extraordinary circumstance exists for the particular proposed action, the agency must document its determination that the proposed action does not have the potential to result in significant effects or document its modification of the action to avoid the potential to result in significant effects. The CEQ regulations encourage the agency to publish the determination on the agency’s website or otherwise make the determination publicly available. 40 C.F.R. § 1501.4(b)(1).

When an agency’s proposed action is substantially the same as another agency’s determination that a CE applies to a particular proposed action and adopts this determination consistent with 40 C.F.R. § 1506.3(d), the adopting agency must publish its CE adoption determination on an agency website or otherwise make it publicly available.

What are the requirements for publishing monitoring and compliance plans for mitigation?

When a lead or cooperating agency prepares a monitoring and compliance plan for mitigation under 40 C.F.R. § 1505.3(c), the lead or cooperating agency must publish the plan. As appropriate, the plan should include information on how any monitoring information will be made available to the public. 40 C.F.R. § 1505.3(d).

How long must a document remain published?

Agencies may determine how long materials remain published after completion of the NEPA process. CEQ encourages agencies to retain materials as long as they remain useful to the agency and the public to facilitate future use, such as through incorporation by reference. If an agency withdraws, cancels, or otherwise ceases the consideration of a proposed action before completing the NEPA review, it may choose to leave any of the published materials online but it should indicate the action has been withdrawn, paused, or cancelled.

What other materials related to the NEPA process must an agency publish or make publicly available? What additional materials does CEQ encourage agencies to publish?

An agency must include its NEPA procedures as well as a list of environmental assessments and environmental impact statements that are either in development or complete on an agency website or via another means of publication. 40 C.F.R. § 1507.4(a).

CEQ encourages agencies to include on their websites (or another means of publication) resources that guide agency planning and provide for public engagement in agency planning processes; environmental documents; agency policy documents, orders, terminology, and explanatory materials; agency program information, plans, and planning tools; and a database searchable by geographic information, document status, document type, and project type. (40 C.F.R. § 1507.4(a)(1)–(5)).

What is scoping?

Scoping is an early and open process agencies use to determine the scope of issues for analysis, including identifying important issues and eliminating unimportant issues from further study.

During the scoping process for an environmental impact statement, agencies must conduct scoping outreach to notify persons and agencies who may be interested or affected by an agency’s proposed action (40 C.F.R § 1502.4(b)). Agencies also must invite the participation of likely affected or interested persons and any applicants, and invite the participation of likely affected Federal, State, Tribal, and local agencies and governments as cooperating or participating agencies (40 C.F.R. § 1502.4(c)). Activities carried out to conduct scoping outreach or invite participation must be consistent with the requirements for public and governmental engagement described in 40 C.F.R. § 1501.9.

When carrying out scoping activities, including activities that occur prior to the publication of the notice of intent (discussed further below), agencies should be inclusive and involve the applicant (where applicable), other agencies, and the public, to the extent possible. Scoping activities that are carried out early in the process allow the public and other agencies to provide input that the agency can use to develop the information required for inclusion in the notice of intent (40 C.F.R. § 1502.4(e)(1)–(10)). For instance, an agency can use information gathered through scoping to inform the development of potential alternatives or to identify available studies that may be useful in describing potential effects of the proposed action.

Do scoping requirements apply to both environmental impact statements and environmental assessments?

The CEQ regulations include scoping requirements for environmental impact statements; however, agencies may elect to use the scoping process for environmental assessments as well. See 40 C.F.R. §§ 1501.5(k) and 1501.9(b).

How early can scoping start?

The scoping process should begin as soon as practicable after the proposal for action is sufficiently developed for agency consideration. Agencies may integrate scoping activities with any other early planning meeting. 40 C.F.R. § 1502.4(b). As part of scoping, agencies must indicate the relationship between the timing of the preparation of environmental analysis and the agencies’ tentative planning and decision-making schedule. 40 C.F.R. § 1502.4(d)(5). Normally, the scoping process begins before an agency issues a notice of intent.

Agencies must notify the public regarding hearings, public meetings, and other opportunities for public engagement and the availability of environmental documents, including EAs. 40 C.F.R. §§ 1501.9(c). Agencies must publish a final EA and either a finding of no significant impact (FONSI) or a decision to prepare an EIS, which is most commonly achieved by publishing the required NOI to prepare an EIS.

What is the notice of intent? What activities can be done prior to the notice of intent?

One method of conducting outreach and notification during scoping is the publication of a notice of intent (NOI) in the Federal Register. While agencies must publish an NOI during the scoping process, the NOI is just one element of the overall scoping process. Scoping activities occur before the issuance of the NOI so that the agency can include the requisite information in the NOI. Examples of these activities include interactions with applicants during the pre-application period, scoping meetings with members of the public or other agencies that the agency’s proposed action may affect, and publication or notification of scoping information that is separate from the NOI. Following publication of an NOI, CEQ encourages agencies to consider whether other notification would be helpful, such as email notification of the publication. While notice in the Federal Register is one mechanism to provide notification, it may be insufficient on its own to provide notice to the interested or affected parties for many actions.

Although many activities occur during the scoping process, including prior to the publication of the NOI, the scoping process cannot prejudice the ultimate agency decision-making process by limiting the reasonable range of alternatives under consideration. (40 C.F.R. § 1506.1(c)(3)).

What is "meaningful engagement"? What does "early engagement" mean?

CEQ's NEPA regulations describe the purpose of and requirements for public and governmental engagement in the environmental review process in 40 C.F.R. § 1501.9. The purpose of public engagement is to inform the public about an agency's proposed action, allow for meaningful engagement during the NEPA process, and ensure decision makers are informed by the views of the public. CEQ uses the phrase “meaningful engagement” in the regulations (40 C.F.R. §§ 1500.2(d) and 1501.9(a)) because agencies should engage the public in a manner that enables active engagement by both the agency and the public in the agency’s decision-making process. Use of the word "meaningful" describes the overall intent of public engagement. Public engagement is not a routine, check-the-box exercise. Agencies should conduct engagement with appropriate planning and active dialogue or other interaction with interested parties in a manner that provides opportunities for all to contribute.

The regulations also require agencies to conduct, as appropriate, early engagement with likely affected or interested members of the public. 40 C.F.R. § 1501.9(c). Federal agencies should involve the public early in the NEPA process. Early engagement can help Federal agencies receive timely input on the development of the proposed action and alternatives and help build trust with affected communities that can be carried through the remainder of the environmental review process. Early engagement can also help agencies identify different types of communities that should be engaged or considered in the NEPA process, such as identifying communities with environmental justice concerns.

As part of meaningful engagement, and consistent with the public and governmental engagement responsibilities outlined in 40 C.F.R. § 1501.9, agencies should carry out public engagement—including outreach and notification methods—in a manner that is tailored to the likely affected entities and persons. This includes considering the ability of likely affected communities to access electronic media, the primary languages of affected communities, and the appropriate format for a public meeting. Technology, when used appropriately, can further improve these strategies, and the CEQ regulations provide agencies with the flexibility and encouragement to more effectively engage with interested or affected governments, communities, and people. Federal agencies have flexibility to determine what the appropriate methods are to achieve a collaborative and inclusive process that meaningfully and effectively engages communities affected by their proposed actions.

What scoping or public engagement activities can occur before the start date is determined for calculating deadlines for an environmental impact statement or environmental assessment?

Agencies may use the scoping process to inform the appropriate level of review. See 40 C.F.R. § 1501.3(b). For instance, an agency may conduct scoping and engagement activities to help identify potential effects and assess their potential significance to inform whether an environmental assessment or environmental impact statement is appropriate. In such cases, the time period used to carry out such scoping and engagement activities would typically occur prior to the identified starting points would not be included in the time period for calculating the deadline. For instance, when scoping and engagement activities are conducted before an agency has determined whether an environmental assessment or environmental impact statement is appropriate and information gathered during these activities would be used to inform the determination of the appropriate level of review, those activities would not initiate the starting period used to calculate the deadline. CEQ does not expect that typical early NEPA activities, such as initial internal agency discussions, planning meetings, surveys, initial discussions with applicants and with other Federal, State, Tribal, or local government agencies, funding requests or programming of funds, and other types of pre-proposal activities will commence the timelines in 40 C.F.R. § 1501.10(b)(3).

CEQ recommends that agencies include in their agency NEPA procedures additional information regarding the schedules they will follow or the procedures they will use to set schedules for various types of proposals. CEQ also recommends that agencies address how they will apply the three starting points listed in 40 C.F.R. § 1501.10(b)(3) (which are consistent with 42 U.S.C. § 4336a(g)(1)). This can include information about how scoping and engagement opportunities fit into the determination of the starting points.

What is the purpose of a reevaluation?

The purpose of a reevaluation is for an agency to determine whether the analysis and conclusions in an environmental assessment (EA) or environmental impact statement (EIS) are still valid. An agency may use a reevaluation to determine whether supplementation is necessary when circumstances have changed when a major Federal action is incomplete or ongoing. An agency may also reevaluate when they are adopting another agency's EA or EIS. An agency must use a reevaluation when it is relying on a programmatic environmental document, i.e., a programmatic EA or programmatic EIS, that is more than five years old (see question below for more information on programmatic environmental documents and reevaluations). An agency must include processes for reevaluating and supplementing EAs and EISs in its agency NEPA procedures, consistent with 40 C.F.R. § 1507.3(c)(10), and may elaborate on when and how it will use reevaluations in its NEPA processes.

How do the CEQ NEPA regulations address reevaluations?

CEQ’s NEPA regulations address reevaluations in three instances:

1. An agency may reevaluate an environmental assessment (EA) to determine that the agency does not need to prepare a supplemental EA and a new finding of no significant impact or an environmental impact statement (EIS) (40 C.F.R. § 1501.5(i));
2. An agency may reevaluate an EIS to determine whether the agency needs to prepare a supplemental EIS (40 C.F.R. § 1502.9(e)); and
3. An agency must reevaluate a programmatic environmental document after five years to determine whether the analysis in the programmatic environmental document and any underlying assumptions remain valid when the agency plans to rely on the analysis in a subsequent environmental document for a related action. (40 C.F.R. § 1501.11(c)(2)).

More information about each of these reevaluations is contained in the questions below.

When should an agency supplement or reevaluate an environmental assessment?

Under 40 C.F.R. § 1501.5(h), an agency should supplement an environmental assessment (EA) when a major Federal action is incomplete or ongoing, and:

1. The agency makes substantial changes to the proposed action that are relevant to environmental concerns; or
2. There are substantial new circumstances or information about the significance of the adverse effects that bear on the analysis to determine whether to prepare a finding of no significant impact (FONSI) or an environmental impact statement (EIS).

Section 1501.5(i) indicates that agencies may reevaluate an EA to determine whether the agency should prepare a supplemental EA and, if appropriate, a new FONSI, or an EIS. The agency may move forward with a supplemental EA and, if appropriate, a new FONSI, or an EIS without preparing a reevaluation if it is clear that one or both of these circumstances exist or when the agency determines that the purposes of NEPA will be furthered by doing so.

When should an agency supplement or reevaluate an environmental impact statement?

Under 40 C.F.R § 1502.9(d) an agency must prepare a supplemental draft environmental impact statement (EIS) or a supplemental final EIS when a major Federal action is incomplete or ongoing, and:

1. The agency makes substantial changes to the proposed action that are relevant to environmental concerns; or
2. There are substantial new circumstances or information about the significance of adverse effects that bear on the analysis.

The agency may prepare a reevaluation to help determine whether a supplemental EIS is required. If, following a reevaluation of an EIS, it is still unclear whether the agency needs to prepare a supplemental EIS, the agency can prepare an environmental assessment, followed by a finding of no significant impact or supplemental EIS. The agency may move forward with a supplemental EIS without preparing a reevaluation if it is clear that one or both of these circumstances exist or when the agency determines that the purposes of NEPA will be furthered by doing so.

What is a programmatic environmental document and when is the agency required to reevaluate a programmatic environmental document?

NEPA and CEQ’s NEPA regulations define a "programmatic environmental document" as an environmental impact statement or environmental assessment analyzing all or some of the environmental effects of a policy, program, plan, or group of related actions (42 U.S.C. § 4336e(11); 40 CFR § 1508.1(ee)). Agencies may prepare programmatic environmental documents to conduct a broad or holistic evaluation of effects or policy alternatives; evaluate widely applicable measures; or avoid duplicative analysis for individual actions by first considering relevant issues at a broad or programmatic level. 40 C.F.R. § 1501.11(a). For more information on when a programmatic environmental document is appropriate and the requirements associated with preparing a programmatic environmental document, see 40 C.F.R. § 1501.11.

When an agency prepares a programmatic environmental document, the agency may rely on that document in a subsequent environmental document, with no further analysis, if the programmatic environmental document remains valid.

An agency must reevaluate a programmatic environmental document if the agency wants to rely on the programmatic environmental document in a subsequent environmental document and:

1. The programmatic document is over five years old; or
2. The programmatic document is fewer than five years old, but one or both of the criteria for supplementation are met.

If a reevaluation of a programmatic environmental document results in an agency finding that the analysis in the programmatic environmental document is no longer valid, the agency cannot rely on the analysis included in that programmatic environmental document in a subsequent environmental document without additional updates or supplementation to address the document’s deficiencies.

What date is the five-year reevaluation requirement measured from for programmatic environmental documents?

The five-year period after which an agency must reevaluate a programmatic document is measured from the date the agency issued the finding of no significant impact on a programmatic environmental assessment, or a record of decision on a programmatic environmental impact statement.

How should an agency document a reevaluation?

An agency should document its reevaluation and must document its reevaluation of a programmatic environmental document that is over five years old. An agency should prepare a reevaluation consistent with its agency NEPA procedures, where applicable. Such documentation may vary depending on the extent of analysis specific to the particular circumstances of the document. For example, a reevaluation could be short memo to file documenting a minor change or a longer document with an updated analysis. The agency may make a reevaluation publicly available. An agency may seek public comment on a reevaluation where it finds it is useful to facilitate its reevaluation and decision-making process.

Should an agency include a unique identification number on a reevaluation?

While a reevaluation is not an "environmental document" for the purposes of requiring a unique identification number, CEQ recommends an agency reference the unique identification number for the environmental assessment, environmental impact statement, or programmatic environmental document that the agency is reevaluating. If, through the reevaluation process, the agency determines that a supplemental document is appropriate, the agency should follow CEQ's guidance on developing unique IDs for supplemental documents.

What is the difference between an agency-directed contractor and an applicant-directed contractor?

An agency-directed contractor is a contractor whose work is supervised and directed by the Federal agency. An agency-directed contractor is a contractor that the Federal agency either hires directly or is part of a third-party contracting arrangement. Under the third-party contracting arrangement, an applicant pays for the contractor but otherwise has no role in directing the work of the contractor during the preparation of the environmental document. Rather, the Federal agency supervises and provides direction.

An applicant-directed contractor is a contractor that is hired and supervised directly by the applicant. The Federal agency is not involved in the direction or supervision of the contractor.

What environmental documents can an agency-directed contractor prepare and what are the agency's responsibilities?

A Federal agency may authorize an agency-directed contractor to prepare an environmental document—an environmental assessment, environmental impact statement, documented categorical exclusion determination, finding of no significant impact, record of decision, or notice of intent—under the supervision and direction of the agency, following the direction provided in 40 C.FR. § 1506.5(c). The agency must prepare a disclosure statement providing that the contractor has no financial or other interest in the outcome of the action for the contractor to sign. The agency also must provide guidance to the contractor and participate in the document’s preparation. While an agency-directed contractor may prepare environmental documents, the supervising Federal agency must independently evaluate the documents; is responsible for the scope, accuracy, and contents of the documents; and must briefly document the agency’s evaluation in the environmental document. Finally, the agency must include in the document the names and qualifications of the persons preparing the documents, including both the contractor’s staff and the agency's staff responsible for conducting the independent evaluation.

What environmental documents can an applicant or applicant-directed contractor prepare?

A Federal agency may allow an applicant or applicant-directed contractor to prepare an environmental assessment or environmental impact statement. See 42 U.S.C. 4336a(f); 40 C.F.R. §§ 1506.5(b)(3), 1507.3(c)(12). However, an agency first must have procedures in place to allow an applicant or applicant-directed contractor to prepare an environmental impact statement or environmental assessment. At a minimum, the agency’s procedures must:

• Be consistent with the requirements for agencies to maintain responsibility for the accuracy, scope, and contents of environmental documents and ensure that the documents are prepared with professional and scientific integrity, using reliable data and resources;
• Be consistent with the requirement that the agency exercise independent judgement and briefly document its determination that an environmental document meets the standards under NEPA, CEQ’s NEPA regulations, and the agency’s NEPA procedures;
• Be consistent with the requirements for agency supervision of agency-directed contractors;
• Include a requirement that the agency review and approve the purpose and need and reasonable alternatives;
• Include a process for the agency to independently evaluate the applicant-prepared (including prepared by an applicant-directed contractor) environmental impact statement or environmental assessment; take responsibility for the accuracy, scope, and contents of the document; and document the agency’s evaluation in the document; and
• Include a prohibition on applicant (or applicant-directed contractor) preparation of a finding of no significant impact or record of decision.

40 C.F.R. § 1507.3(c)(12).

Can an applicant provide information for an environmental document without preparing the document itself?

Yes, the CEQ regulations have always allowed applicants to provide information that an agency may choose to use in the preparation of an environmental document. See 40 C.F.R. § 1506.5(b). Further, an agency may require an applicant to submit environmental information that the agency may use to prepare an environmental document. When an applicant submits information for agency use, the agency must independently evaluate such information. If the agency uses the applicant-provided information in an environmental document, the agency is responsible for verifying the accuracy, scope, and contents of that information.

What is the agency responsibility for environmental documents?

Regardless of who prepares an environmental document, the agency is responsible for the accuracy, scope, and content of the document. The agency also must ensure that environmental documents are prepared with professional and scientific integrity and use reliable data and resources, regardless of whether the document is prepared by the agency, by an agency-directed contractor, or by an applicant or applicant-directed contractor. 40 C.F.R. 1506.5(a). The agency should briefly document its assessment that an environmental document meets these requirements, the standards under NEPA, and the agency's NEPA procedures.

What are the requirements for engaging with Tribal Nations during the NEPA process?

CEQ's NEPA regulations require agencies to conduct public and governmental engagement, including with Tribal Nations, during the NEPA review process. 40 C.F.R. §§ 1501.1(b) and 1501.9. There are numerous reasons for agencies to engage with Tribal Nations during the NEPA process including:

• To invite Tribal governments to serve as cooperating agencies, as appropriate, and ensure that they have opportunities to engage in the environmental review process (40 C.F.R. § 1501.9(a));
• In assessing the potential significance of the effects of an agency’s proposed action, to help an agency assess the degree to which the action may adversely affect unique characteristics of the affected geographic area such as historic or cultural resources or Tribal sacred sites; may violate relevant Tribal laws or be inconsistent with Tribal policies designed for the protection of the environment; or may adversely affect rights of Tribal Nations that have been reserved through treaties, statutes, or Executive Orders (40 C.F.R. § 1501.3(d)(2)(ii), (iii), (viii));
• To help an agency incorporate into its schedule the time necessary to conduct any government-to-government consultation (40 C.F.R. § 1501.10(d)(9));
• To help an agency identify the environmentally preferable alternative(s) that would maximize environmental benefits, such as addressing disproportionate and adverse effects on communities with environmental justice concerns, and protecting, preserving, or enhancing historic, cultural, Tribal, and natural resources, including rights of Tribal Nations that have been reserved through treaties, statutes, or Executive Orders (40 C.F.R. § 1502.14(f));
• To enable the consideration of Indigenous Knowledge, where appropriate and to the extent desired by the Tribal Nation (40 C.F.R. §§ 1502.15(b), 1506.6(b));
• To help the lead agency identify possible conflicts between the proposed action and the objectives of Tribal plans, policies, and controls for the area concerned, including those addressing climate change (40 C.F.R. § 1502.16(a)(5));
• To identify opportunities for Tribal governments to participate in implementing, enforcing, and monitoring mitigation activities (40 C.F.R. § 1505.3(a)); and
• To reduce duplication between NEPA and Tribal requirements, including through use of studies, analyses, and decisions developed by Tribal agencies (40 C.F.R. § 1506.2(b)).

Engaging with Tribal Nations is essential throughout the environmental review process. CEQ's regulations specifically require agencies to undertake such engagement, as appropriate, while determining the scope of analysis of a proposed action, conducting scoping for an environmental impact statement, or preparing and revising agency NEPA procedures. See 40 C.F.R. §§ 1501.9(b), (e), 1502.4. In order to reduce duplicative efforts and facilitate an efficient NEPA process, when one or more type of Tribal engagement or consultation is warranted for a proposed action, those activities can occur at the same time.

CEQ's regulations also require a Federal agency provide for actions subject to NEPA that are planned by applicants before Federal involvement so that the agency consults, as appropriate, with Tribal, State, and local governments, along with interested persons and organizations, early in the process when their involvement is reasonably foreseeable. 40 C.F.R. § 1501.2(b)(4)(ii). The term "consult," in this context, is used as a general term to describe governmental engagement, and is distinct from the consultation required under Executive Order 13175, Coordination and Consultation with Indian Tribal Governments (Nov. 2000), Section 106 of the National Historic Preservation Act, or other forms of government-to-government consultation that are commonly referred to when using the term "consult."

What opportunities exist for Tribal governments to serve as joint lead, cooperating, or participating agencies?

A lead Federal agency may designate a Tribal agency to serve as a joint lead agency to prepare an environmental impact statement or an environmental assessment (See 42 U.S.C. 4336a(a)(1)(B); 40 C.F.R. § 1501.7(b)). When serving as a joint lead agency, the Tribal agency jointly fulfills the role of a lead agency.

Upon request by the lead Federal agency, a Tribal Nation can agree to serve as a cooperating agency if that Tribal Nation has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (40 C.F.R. §§ 1501.8(a) and 1508.1(g)). A Tribal agency may also request designation as a cooperating agency by the lead Federal agency. (40 C.F.R. § 1501.8(a)). Relevant special expertise warranting cooperating agency status may include Indigenous Knowledge. (40 C.F.R. §§ 1501.8(a)).

A Tribal Nation can serve as a participating agency if that Tribal agency is participating in an environmental review or authorization of an action. (40 C.F.R § 1508.1(cc)).

How do the requirements for engagement with Tribal Nations in the NEPA process relate to Federal agencies' obligations to consult with Tribal Nations under other authorities, including Executive Order 13175 and Section 106 of the National Historic Preservation Act?

Regular, meaningful, and robust government-to-government consultation is an important responsibility of Federal agencies. Federal agencies often coordinate their government-to-government consultation under Executive Order 13175 and their Tribal consultation under Section 106 of the National Historic Preservation Act with elements of the NEPA process, such as public and governmental engagement, scoping, and working with cooperating agencies. CEQ encourages agencies to align their consultations where such coordination is appropriate, efficient, and consistent with the expectations of the Tribal Nations involved.

At the same time, these consultation obligations are different than the requirements for agencies to engage, coordinate, and consult with Tribal Nations under NEPA and the CEQ regulations. The determination of whether an agency is required to engage in government-to-government consultation under Executive Order 13175 or to consult with Tribal Nations under Section 106 is unrelated to the determination of whether NEPA applies to a particular proposed action, or the level of NEPA review that applies. CEQ encourages agencies to refer to their agency policies and legal or Tribal affairs staff for further guidance on Tribal consultation requirements.

What are a proposal and an alternative, and are they the same?

A proposal and an alternative are different. A proposal is a proposed action at a stage when an agency has a goal, is actively preparing to make a decision on one or more alternative means of accomplishing that goal, and can meaningfully evaluate its effects. 40 C.F.R. § 1508.1(ff). An alternative is a potential means of accomplishing a proposal. An agency may have a “proposed action” that is one of the reasonable alternatives under consideration in an environmental document.

Are the requirements for alternatives the same for an environmental assessment and an environmental impact statement?

The requirements for alternatives are different for an environmental assessment (EA) and an environmental impact statement (EIS). At a minimum, CEQ’s NEPA regulations require agencies to identify and assess in an EA those alternatives required by section 102(2)(H) of NEPA, which will generally require analysis of one or more reasonable alternatives, in addition to a proposed action and a no action alternative. 40 C.F.R. § 1501.5(c)(2(ii). Section 102(2)(H) of NEPA requires agencies to study, develop, and describe appropriate alternatives to recommended courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources. 42 U.S.C. § 4332(2)(H). Where a proposed action does not involve such unresolved conflicts, at a minimum, an EA generally must assess the proposed action and no action alternative.

CEQ's NEPA regulations outline the requirements for alternatives in an EIS in 40 C.F.R. § 1502.14. The alternatives section of an EIS must identify and evaluate the proposed action, the no action alternative, and a reasonable range of reasonable alternatives. The alternatives analysis should identify the reasonably foreseeable effects of each alternative in comparative form, based on the information and analysis presented in the affected environment (40 C.F.R. § 1502.15) and the environmental consequences (40 C.F.R. § 1502.16) sections of an EIS. This analysis should rigorously explore and objectively evaluate the alternatives to sharply define the issues for the decision maker and the public, and provide a clear basis for choice among each of the alternative options.

In the alternatives section of an EIS, an agency also must briefly discuss the reasons for alternatives eliminated from detailed study; identify the agency’s preferred alternative, if it exists; identify which of the analyzed alternatives is the environmentally preferable alternative; and include an analysis of appropriate mitigation measures.

To improve the efficiency and effectiveness of an EA, an agency may apply, as appropriate, any or all of the EIS requirements related to alternatives to the EA. 40 C.F.R. § 1501.5(k).

What are reasonable alternatives and how do agencies identify them?

Reasonable alternatives are a reasonable range of alternatives that are technically and economically feasible and meet the purpose and need of the proposed action. 40 C.F.R. § 1508.1(hh).

If an alternative is not technically and economically feasible, or it does not meet the purpose and need, an agency generally can “screen” that alternative out and eliminate it from further analysis in the NEPA process. During the alternatives screening or evaluation process, an agency rigorously explores and objectively evaluates alternatives to determine which are reasonable alternatives and which the agency should eliminate from detailed study. For alternatives that an agency screens out, the agency must briefly explain in the EIS why the agency has eliminated the alternative from further analysis and consideration. 40 C.F.R. § 1502.14(a).

Does an agency need to consider every possible alternative that could achieve the agency’s goal and meet the purpose and need?

No. An agency does not have to consider every possible alternative. NEPA and CEQ's NEPA regulations do not set a minimum number of alternatives that an agency must consider. Instead, an agency only needs to consider a reasonable range of alternatives that will foster informed decision making. 40 C.F.R. § 1502.14 (a). NEPA directs an agency to consider “a reasonable range of alternatives to the proposed agency action” in an environmental impact statement, which underscores that it is not the number of alternatives that an agency considers that matters, but rather whether the alternatives analyzed accurately represent the range of options available to the agency. See 42 U.S.C. 4332(2)(C)(iii). What constitutes a reasonable range will vary depending on the proposal. Agencies have long had discretion to identify that range, and CEQ's NEPA regulations require an agency to identify and consider an appropriate range and explain why the agency considered and dismissed other alternatives so that the agency decision maker and the public have a clear understanding as to how the agency arrived at the alternatives considered in the document

What is a preferred alternative?

A preferred alternative is the alternative that would fulfill the agency's statutory mission and responsibilities, giving consideration to economic, environmental, technical, and other factors and that the agency is considering selecting in its record of decision. An agency must identify its preferred alternative or alternatives, if one or more exists, in the draft EIS and identify such alternative in the final EIS unless another law prohibits the expression of such a preference. 40 C.F.R. § 1502.14(d).

What is the no action alternative?

The no action alternative is the scenario in which the agency does not take the proposed action or a reasonable alternative. The no action alternative generally serves as the baseline against which the agency compares the proposed action and other alternatives. 40 C.F.R. § 1502.16(a). An agency must identify and analyze the no action alternative in the alternatives section of an EIS. Such analysis must include the effects of the no action alternative, including any adverse environmental effects. 40 C.F.R. §§ 1502.14(c) and 1502.16(a)(2).

Although uncommon, the no action alternative is an alternative that the agency can select. During the course of the analysis, an agency may determine it is appropriate to identify the no action alternative as its preferred alternative in the EIS. At the conclusion of the analysis, the agency also may determine it is appropriate to select the no action alternative in its record of decision. The reasons for selecting the no action alternative vary, but can include lack of funding for the proposal, the alternatives under consideration no longer meeting the purpose and need due to changed circumstances, or a change in circumstances, such as a public or city council vote, renders the proposal moot or unauthorized.

Does an agency need to consider alternatives outside of its jurisdiction when developing a range of alternatives?

When an agency determines it is necessary and appropriate to do so, an agency may consider reasonable alternatives outside of its jurisdiction as part of the range of alternatives. 40 C.F.R § 1502.14(a). However, there is no requirement that an agency must consider an alternative outside of its jurisdiction.

In some circumstances, considering one or more reasonable alternatives outside of an agency's jurisdiction can provide information that is useful to the public or decision makers about alternative approaches to a proposed action or to alternatives within the agency’s jurisdiction. For example, such alternatives may be relevant when an agency is considering a program-level decision, such as a broad multi-project proposal that includes different modes of transportation (i.e., highway, rail, or public transit options) that involves multiple agencies with different areas of jurisdiction. Such alternatives also could reflect actions that the agency could take with additional Congressional action, such as a project that the agency has begun to study but has not yet received Congressional approval or funding to undertake. In addition, information about reasonable alternatives not within the jurisdiction of the lead agency may be informative when the proposed action is an integral part of a coordinated plan to address a broad issue, such as in the transportation example above.

In each of these cases, information about alternative means of meeting the purpose and need can help inform decision makers, including Congress and other agencies, as well as the public about potential ways to achieve a particular result. CEQ anticipates that such consideration will be a relatively infrequent occurrence and notes that such alternatives would still need to be technically and economically feasible and meet the purpose and need for the proposed action, consistent with the definition of “reasonable alternatives” in 40 C.F.R. § 1508.1(hh).

What is the environmentally preferable alternative?

The environmentally preferable alternative is the alternative included in an environmental impact statement (EIS) that will best promote the national environmental policy expressed in Section 101 of NEPA by maximizing environmental benefits. 40 C.F.R. § § 1502.14(f) and 1508.1(n). In identifying the environmentally preferable alternative, agencies should consider the policy goals that Congress set out for agencies in section 101 of NEPA, 42. U.S.C. 4331. Examples of environmental benefits include addressing climate change-related effects or disproportionate and adverse effects on communities with environmental justice concerns; protecting, preserving, or enhancing historic, cultural, Tribal, and natural resources, including rights of Tribal Nations that have been reserved through treaties, statutes, or Executive Orders; or causing the least damage to the biological and physical environment. 40 C.F.R. § 1502.14(f). Agencies must identify the environmentally preferable alternative from among the alternatives identified in an EIS, which includes the proposed action, the no action alternative, and the reasonable alternatives, and may identify more than one environmentally preferable alternative.

Do agencies have to develop a new alternative to be the environmentally preferable alternative?

No. CEQ's NEPA regulations make clear that an agency identifies the environmentally preferable alternative(s) from among the alternatives included and analyzed in the environmental impact statement (EIS). 40 C.F.R. § 1502.14(f). There is no requirement for an agency to develop an environmentally preferable alternative that is in addition to the proposed action, the no action alternative, and the reasonable alternatives considered in the EIS.

What are the requirements for identifying the environmentally preferable alternative?

Agencies must identify in both the draft and final environmental impact statement (EIS) which alternative, among the alternatives considered in the EIS, is the environmentally preferable alternative. 40 C.F.R. § 1502.14(f). The environmentally preferable alternative may be the proposed action, the no action alternative, or a reasonable alternative. In addition to identifying the environmentally preferable alternative in the alternatives section of an EIS (40 C.F.R. 1502.14), an agency must also identify the environmentally preferable alternative in the summary section of the EIS (40 C.F.R. § 1502.12) and in the record of decision (40 C.F.R. § 1505.2).

How has the timing for identifying the environmentally preferable alternative changed?

The CEQ regulations now require that an agency identify the environmentally preferrable alternative in an environmental impact statement (EIS) as well as the record of decision. Prior versions of the CEQ regulations required an agency to identify the environmentally preferrable alternative only in the record of decision. Identifying the environmentally preferable alternative in the EIS provides the public and other agencies opportunity to provide public comment on the alternative.

Can the scoping process or public engagement opportunities help agencies develop alternatives?

Yes, agencies can and should use the public engagement and scoping processes (40 C.F.R. §§ 1501.9 and 1502.4) to help develop the reasonable range of alternatives. Early input from the public and interested or affected parties can help inform the development of alternatives that the agency will consider in the NEPA analysis. Information obtained through public and governmental engagement can help inform preliminary alternatives that the agency identifies in its notice of intent. See 40 C.F.R. 1502.4(e)(2). Similarly, public and governmental engagement can help an agency eliminate alternatives from detailed study. In response to information obtained through public and governmental engagement and scoping, an agency may make modifications to one or more of the alternatives under consideration, or develop and evaluate alternatives not previously given serious consideration by the agency. See 40 C.F.R. § 1503.4(a).

How should a lead agency involve any cooperating agencies in developing alternatives?

The lead agency must consult with any cooperating agency to determine the purpose and need and range of alternatives. 40 C.F.R. § 1501.7(h)(4). A cooperating agency must also elevate, as soon as practicable, any issues to the lead agency related to alternatives that could affect any agencies' ability to meet the schedule that the lead agency established for preparation of the NEPA document. 40 C.F.R. § 1501.8(b)(6).

Is an agency required to select the environmentally preferable alternative or a particular alternative?

NEPA does not require an agency to select a particular outcome, including selecting the environmentally preferable alternative. NEPA and the CEQ regulations ensure that agencies “identify, consider, and disclose to the public” pertinent environmental information before decisions are made and before actions are taken. 40 C.F.R. § 1500.1(b). NEPA does not mandate a particular outcome, and the NEPA process does not require agencies to select an alternative that will best promote the national environmental policy. Rather, the NEPA process, including the analysis of alternatives, is intended to help public officials make decisions that are based on an understanding of environmental consequences and take actions that protect, restore, and enhance the environment. 40 C.F.R. § 1500.1(c). Thus, the requirement to identify the environmentally preferable alternative is different from an agency's selection of the preferred alternative, although they can be the same. Regardless of which alternative an agency selects, the agency must explain its rationale for the selected alternative. 40 C.F.R. § 1505.2(b).

What are extraordinary circumstances?

Extraordinary circumstances are factors or circumstances where an action that would normally be categorically excluded may result in a significant effect. 40 C.F.R. § 1508.1(o). When considering whether or not it is appropriate to apply a categorical exclusion to a proposed action, an agency must evaluate the action for extraordinary circumstances. 40 C.F.R. § 1501.4(b). The evaluation for extraordinary circumstances is a critical component of the application of a categorical exclusion because it helps identify when an action is not "normal;"" that is, it does not fit within the defined category of actions because it may significantly affect the quality of the human environment. See 42 U.S.C. § 4336e(1); 40 C.F.R. § 1501.4(a).

In its NEPA implementing procedures, an agency must identify examples of extraordinary circumstances and describe how the agency will consider extraordinary circumstances when applying a categorical exclusion to a proposed action. 40 C.F.R. § 1507.3(c)(8) and (c)(8)(iii). The definition of "extraordinary circumstances" in CEQ's NEPA regulations provides examples of extraordinary circumstances that an agency may include in its procedures, such as potential substantial effects on sensitive environmental resources, potential substantial disproportionate and adverse effects on communities with environmental justice concerns, potential substantial effects associated with climate change, and potential substantial effects on historic properties or cultural resources. 40 C.F.R. § 1508.1(o). Further, notwithstanding whether a particular example is included in an agency’s procedures, any extraordinary circumstance in which a proposed action may have significant effects, requires an agency to assess whether it can still apply the categorical exclusion consistent with the process set forth 40 C.F.R. § 1501.4(b) or must prepare and environmental assessment or environmental impact statement.

CEQ's NEPA regulations outline the requirements for alternatives in an EIS in 40 C.F.R. § 1502.14. The alternatives section of an EIS must identify and evaluate the proposed action, the no action alternative, and a reasonable range of reasonable alternatives. The alternatives analysis should identify the reasonably foreseeable effects of each alternative in comparative form, based on the information and analysis presented in the affected environment (40 C.F.R. § 1502.15) and the environmental consequences (40 C.F.R. § 1502.16) sections of an EIS. This analysis should rigorously explore and objectively evaluate the alternatives to sharply define the issues for the decision maker and the public, and provide a clear basis for choice among each of the alternative options.

An agency has flexibility to identify extraordinary circumstances that are relevant to its specific actions and programs. For instance, under 36 C.F.R. § 220.6(b)(1), the U.S. Forest Service includes consideration of resource conditions in its list of extraordinary circumstances and some of these resource considerations are specific to the U.S. Forest Service's program and mission, such as U.S. Forest Service sensitive species and inventoried roadless areas or potential wilderness areas. As another example, the Federal Aviation Administration's (FAA) list of extraordinary circumstances in its implementing procedures, FAA Order 1050.1F, includes extraordinary circumstances specific to FAA's mission and program. These include a division or disruption of an established community, or a disruption of orderly, planned development, or an inconsistency with plans or goals that have been adopted by the community in which the project is located, and an increase in congestion from surface transportation by causing decrease in level of service below acceptable levels determined by the appropriate transportation agency. These agencies also list more common extraordinary circumstances, such as potential effects to floodplains, federally listed threatened or endangered species or designated habitat, and Congressionally designated areas, such as a wilderness area.

Can an agency still apply a categorical exclusion if an extraordinary circumstance exists?

If an agency determines that an extraordinary circumstance exists, there are two instances in which an agency may still apply the categorical exclusion to the proposed action, consistent with 40 C.F.R. § 1501.4(b)(1). First, the agency can still apply the categorical exclusion if the agency determines through analysis that, even with the existence of the extraordinary circumstance, the proposed action does not have the potential to result in significant effects. Second, the agency can still apply the categorical exclusion if it modifies the proposed action to avoid its potential to have a significant effect. In either instance, the agency must document its determination that there is no potential for significant effects or how the agency modified the proposed action to avoid the significant effect. CEQ encourages agencies to make these determinations publicly available, such as on their websites or through other means. 40 C.F.R. § 1501.4(b)(1).

If the agency cannot categorically exclude the proposed action because the action has the potential for significant effects, the agency must prepare an environmental assessment or environmental impact statement, as appropriate. 40 C.F.R. 1501.4(b)(2). For example, an environmental assessment may be appropriate where the agency anticipates it can make a finding of no significant impact based on mitigation. See 40 C.F.R. § 1501.6(d).

What are communities with environmental justice concerns?

CEQ's NEPA regulations define “communities with environmental justice concerns” as those communities that may not experience environmental justice (as defined in 40 C.F.R. § 1508.1(m)).

How can agencies identify communities of environmental justice concerns?

Agencies may use a screening tool or other high-quality information to identify communities with environmental justice concerns that experience environmental, health, and other burdens within the geographic boundaries of the area that the proposed action would affect and related to the effects of the action. Examples of screening tools that can help in this process include the Climate and Economic Justice Screening Tool and EJ Screen: Environmental Justice Screening and Mapping Tool. Additional examples are listed below. Other sources of high-quality information to identify communities with environmental justice concerns include reliable data or information from the public, models, social science research studies, Indigenous Knowledge, and agency or applicant past experience and knowledge working on similar actions or projects.

Public engagement and scoping are important tools in the NEPA process that can help verify the information obtained from these sources, where appropriate. Agencies also may develop procedures for the identification of such communities in their agency NEPA procedures. 40 C.F.R. § 1508.1(f).

How should an agency consider the effects that a proposed action may have on a community with environmental justice concerns?

The following steps may assist an agency in conducting an analysis of effects when the agency has identified a community or communities with environmental justice concerns that the proposed action may affect:

First, an agency should identify the effects that are likely and the geographic boundary of those effects. Consistent with longstanding NEPA practice, there may be multiple boundaries because these are driven by analysis required for each environmental effect. For example, the boundary for noise effects may be different than the boundary of effects on air quality or water quality.

Second, an agency should assess whether any of the effects that would result from the proposed action or its alternatives would result in or add to disproportionate and adverse effects on the identified community with environmental justice concerns. This includes evaluation of how impactful the added burden from the proposed action and its alternatives is to historical or already existing burdens, taking into account the cumulative impacts of multiple burdens. An agency may also compare a smaller geographic unit (e.g., a census block group) facing burdens to a larger area (e.g., a census tract, county, or State), if relevant information is available to do so.

For example, using an available screening tool, an agency identifies that the effects from a proposed action may increase exposure to diesel pollution for communities in specific census tracts that are already experiencing high levels of exposure to diesel pollution relative to existing county or State exposure levels. In this instance, an agency would describe the effect as disproportionate.

Third, an agency should explain whether there are mitigation measures (i.e., avoidance, minimization, or compensation) that could be employed to address any identified or potential disproportionate and adverse effects on communities with environmental justice concerns. If there are disproportionate and adverse effects, the agency should discuss whether there are mitigation measures that could fully or partially address the added burdens to the affected communities. See 40 C.F.R. § 1502.16. The agency should explain if it will undertake such mitigation. Additionally, where relevant and appropriate, an agency should incorporate into its decision mitigation measures that address or ameliorate significant human health and environmental effects when the selected alternative disproportionately and adversely affect one or more communities with environmental justice concerns. See 40 C.F.R.§ 1505.3(b). Where appropriate, the agency must include mitigation measures in the compliance and monitoring plan. See 40 C.F.R. § 1505.3(c).

Are there available tools with datasets and indicators that an agency can use to help inform an effects and burdens analysis in an environmental document?

There are a number of screening tools that an agency may find useful. The agency should explain in the environmental document why it selected the tool it used for an analysis. The following list provides some illustrative examples

Federal screening tools: Federal agencies have created several geospatial mapping tools, including the following that an agency may consider using in its analysis, including:

• EJ Screen
• Climate and Economic Justice Screening Tool
• Equitable Transportation Community (ETC) Explorer
• Climate Mapping for Resilience and Adaptation (CMRA)
• ATLAS Interactive Map
• EnviroAtlas
• Extreme Heat Vulnerability Mapping Tool
• Environmental Justice Index
• National Risk Index
• Community Disaster Resilience Zones
• Geospatial Data Storefront

State screening tool example: Many states now have their own state screening tools. For example::

• CalEnviroScreen
• NJ-EJ Map

Other sources of information when screening tool information is limited (i.e., U.S. Territories): A proposed action may be located in a region where the data in the available screening tools are not robust. For example, many Federal datasets do not collect information on the U.S. Territories, which limits the ability of tools like EJ Screen and the Climate and Economic Justice Screening Tool to capture the lived reality of communities in those regions. In this instance, an agency may decide to rely on another source of information, such as territory-specific datasets, to identify communities.

How should an agency organize its analysis on communities with environmental justice concerns in a NEPA document?

Historically, agencies often include a distinct section on environmental justice in environmental assessments or environmental impact statements. While, this approach may continue to be useful, an agency may also consider including its analysis of environmental-justice-related effects within the discussion of the environmental consequences on each specific resource (e.g., air, water, land) in order to reflect the fact there may be different effects and burdens for communities depending on the particular resource. For example, there may be different effects from a lengthy linear infrastructure project on communities with environmental justice concerns facing existing air pollution burdens than those facing existing water access burdens.

Can any interim actions occur prior to the completion of the NEPA process?

Consistent with 40 C.F.R. § 1506.1(a), the general rule is that no action concerning the proposal can be taken if:

• The interim action would have an adverse environmental effect; or
• The interim action would limit the choice of reasonable alternatives.

For example, prior to the completion of the NEPA process, an agency could not engage in activities related to the proposed action that would have an adverse effect on an environmental resource (such as a wetland, an endangered species, air quality, etc.) or that would preclude the agency from considering and selecting a reasonable alternative that would have been otherwise available. See 40 C.F.R. § 1502.2(f). For example, an agency could purchase long lead-time equipment if it could be used in another project (i.e., it has independent utility) and would not limit the choice of alternatives or prejudice the ultimate decision. In such cases, the agency would need to complete a separate NEPA process for procurement, such as applying a categorical exclusion. However, if the long-lead time equipment is highly customized and only needed for a specific alternative, it could not be purchased before the agency completes the NEPA process and makes its decision.

What interim actions can an agency take while a required environmental review for a program is in progress?

While an agency may never take an interim action that would limit the choice of reasonable alternatives in an ongoing NEPA process, an agency can take an interim action that may significantly affect the quality of the human environment while an environmental document for a program is still in development, if such interim action meets all three of the following criteria:

• The interim action is justified independently of the program;
• The agency completes an adequate environmental review for the interim action; and
• Taking the interim action will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program when it tends to determine subsequent development or limits alternatives in the program’s ongoing NEPA process.

40 C.F.R. §§ 1502.2(f) and 1506.1(c).

What interim actions can an agency allow an applicant take while the NEPA process is ongoing? What does an agency have to do before an applicant takes an interim action?

An applicant is not precluded from developing plans or designs or performing other activities necessary to support an application for Federal, State, Tribal, or local permits or assistance. In addition, where an agency is considering a proposed action for Federal funding, if the agency determines that the applicant's activity would not limit the agency’s choice of reasonable alternatives, the agency may authorize the applicant’s activity. Examples of these activities include:

• Acquisition of interests in land (for example, acquisition of rights-of-way or conservation easements that would apply to all action alternatives under consideration);
• Purchase of long lead-time equipment; and
• Purchase options.

When it authorizes such activity, the agency must notify the applicant that the agency retains discretion to select any reasonable alternative or the no action alternative regardless of any activity taken by the applicant prior to the conclusion of the NEPA process. Therefore, any activities an applicant undertakes prior to the completion of the NEPA process are considered "at risk"—meaning, the applicant assumes the financial or other risk that the agency could select the no action alternative following the NEPA process, e.g., not provide the Federal funding.

What must an agency do if it becomes aware that an applicant plans to take an action with adverse environmental effects or that would limit the choice of reasonable alternatives?

If an agency is considering an application from an applicant and becomes aware that an applicant is about to take an action within the agency's jurisdiction that would have an adverse environmental effect or limit the agency's choice of reasonable alternatives, then the agency must promptly notify the applicant that the agency will take appropriate action to ensure that the objectives and procedures of NEPA are achieved. 40 C.F.R. § 1506.1(b). Such appropriate action will vary by agency and type of action. For example, for Federal financial assistance actions, agencies can consider disallowing costs for all or part of the activity associated with noncompliance; suspending or terminating the Federal award in whole or in part; or withholding further Federal funds (new awards or continuation of funding) for the action. See 2 C.F.R. § 200.339.

What are some general considerations when drafting or revising agency NEPA procedures?

Keep NEPA’s purpose in mind. The NEPA process is intended to help public officials make decisions that are based on an understanding of environmental consequences and take actions that protect, restore, and enhance the environment. As agencies prepare or update their NEPA procedures, they should consider the information decision makers need to make good decisions.

Tailor agency procedures to agency decision-making processes. To ensure that the procedures reflect an agency’s decision-making process, the agency should keep in mind how that process normally unfolds. This will vary by agency. The agency should consider how the decision-making process begins at the agency; what steps the decision-making process follows; and how the process varies depending on the type of decision the agency is making. With that information, agencies can integrate the requirements of NEPA with other planning and environmental review procedures and agency practice, which will enable the agency to incorporate the requirements of NEPA throughout the agency decision-making process.

The CEQ regulations set minimum requirements. Agency procedures must conform to the CEQ regulations, but agencies can craft agency-specific provisions as needed to support the agency’s programs, address other statutory requirements, and otherwise facilitate effective and efficient NEPA reviews. For example, procedures can elaborate on the requirements to determine whether NEPA applies to a proposed action and the appropriate level of NEPA review, to provide for coordinated, consistent, predictable, and timely reviews, and can provide additional guidance on using programmatic environmental documents and incorporation by reference.

What is the process for proposing and establishing new or revised agency NEPA implementing procedures?

An agency generally follows the following process for proposing and establishing new or revised NEPA implementing procedures.

Step 1: Draft proposed agency procedures. An agency drafts its NEPA procedures, consulting with other agencies as appropriate. 40 C.F.R. § 1507.3(b)(1). CEQ's regulations encourage agencies to consult with other agencies that have similar programs to coordinate their procedures, especially for programs requesting similar information from applicants. CEQ is available to assist agencies and facilitate interagency consultation. Because agencies must publish their NEPA procedures in the Federal Register for public comment, agencies must also draft a Federal Register document providing notice and an opportunity to comment. Agencies that establish procedures by rulemaking will draft a notice of proposed rulemaking for the Federal Register.

Step 2: Consult with CEQ. The agency consults with CEQ regarding its proposed procedures, before publishing them in the Federal Register for notice and comment. 40 C.F.R. § 1507.3(b)(1). CEQ works collaboratively with agencies, striving to develop a review process and timelines that fit the needs for the review. This process may include more than one round of CEQ review to refine the agency's proposal. To facilitate CEQ's review, agencies should include in their transmittal letter a description of where the proposed procedures address each of the required elements in the CEQ regulations, which this Q&A describes below.

Step 3: Publish proposed agency procedures and accept public comments. Following consultation with CEQ, the agency makes its proposed procedures available to the public for review by publishing them in the Federal Register, and provides an opportunity for public comment. 40 C.F.R. §§ 1507.3(b)(1)–(2). CEQ encourages agencies to consider what methods of notification apart from publication in the Federal Register are appropriate, consistent with 40 C.F.R. § 1501.9. For agencies that implement their procedures by rule, the Federal Register notice will consist of a notice of proposed rulemaking.

Step 4: Revise agency procedures to address comments. The agency revises its draft procedures, as appropriate, to address substantive interagency and public comments.

Step 5: Obtain CEQ Conformity Determination. The agency submits proposed final procedures and agency responses to interagency and public comments to CEQ requesting a determination from CEQ that the procedures conform with NEPA and CEQ's regulations. The agency must receive a CEQ conformity determination letter before issuing final procedures. 40 C.F.R. § 1507.3(b)(2). CEQ will complete its review within 30 days of receipt of the proposed final regulations. Id. CEQ's conformity review may require more than one round of interaction with the agency before CEQ issues its conformity determination letter, which includes as an attachment the final version of the agency’s procedures.

Step 6: Issue and publish final agency procedures. After receiving a conformity determination letter, the agency issues its final procedures. 40 C.F.R. § 1507.3(b)(2). Once the procedures are in effect, agencies publish their NEPA procedures and ensure that they are readily available to the public.

What must an agency include in its NEPA procedures?

CEQ's regulations include provisions that an agency must include in its NEPA procedures provisions that address the following requirements.

Designating decision points. Procedures must designate major decision points from the agency’s programs and actions subject to NEPA, so that the NEPA process begins at the earliest reasonable time and aligns with the major decision points. 40 C.F.R. § 1507.3(c)(1).

Integrating environmental review into the agency’s decision-making process. Agency procedures must provide that throughout the decision-making process, each proposal is accompanied by relevant environmental documents (as defined in 40 C.F.R. § 1508.1(k)), comments, and responses so that decision makers use that information in making decisions. 40 C.F.R. § 1507.3(c)(3); see also 89 Fed. Reg. 35442, 35532 (May 1, 2024).

Combining documents. Agency procedures must require that environmental documents be combined with other agency documents (e.g., incorporate and append analyses required under other statutes such as the National Historic Preservation Act or the Endangered Species Act to an environmental assessment (EA) or environmental impact statement (EIS), or combine a notice of intent with notices required under other laws) to facilitate sound and efficient decision making and avoid duplication, where consistent with applicable statutory requirements. 40 C.F.R. § 1507.3(c)(5).

Alternatives. Require that any alternatives that the decision maker considers are encompassed in the range of alternatives discussed in the relevant environmental documents, and that the decision makers consider any additional alternatives described in the environmental documents in making its decision. 40 C.F.R. § 1507.3(c)(4).

Alternatives. Require that any alternatives that the decision maker considers are encompassed in the range of alternatives discussed in the relevant environmental documents, and that the decision makers consider any additional alternatives described in the environmental documents in making its decision. 40 C.F.R. § 1507.3(c)(4).

Records in rulemaking and adjudication. Require that relevant environmental documents, comments, and responses be part of the record in rulemaking and adjudicatory proceedings. 40 C.F.R. § 1507.3(c)(2).

Classes of actions for EISs and EAs. Identify typical classes of action that normally require EISs and EAs, including criteria for identifying such actions beyond those listed. 40 C.F.R. § 1507.3(c)(7). While not determinative for any particular action, these lists put the public on notice of the decisions agencies regularly make that require these levels of NEPA review. 89 Fed. Reg. 35442, 35533 (May 1, 2024).

Supplementation and reevaluation. Agency NEPA procedures must outline processes for reevaluating and supplementing EISs and EAs. 40 C.F.R. § 1507.3(c)(10).

Assistance to applicants before Federal involvement. If an agency has actions that involve applicants (see 40 C.F.R. § 1508.1(c)), the agency must include procedures for actions planned by applicants before the agency is involved. The procedures must designate staff or have policies available that can advise applicants on the NEPA process. The agency must also commence its NEPA process related to applicant proposals at the earliest reasonable time. 40 C.F.R. §§ 1501.2(b)(4) and 1507.3(c)(4).

Applicant preparation of EISs and EAs. Where an agency has applicants that seek its action, agency procedures can allow an applicant (including an applicant-directed contractor) to prepare EAs and EISs under agency supervision, so long as the following conditions are met: the agency reviews and approves the purpose and need and reasonable alternatives; the agency independently evaluates the applicant-prepared EA or EIS; and the applicant is prohibited from preparing findings of no significant impact or records of decision. If the applicant is a joint lead agency, these procedures would not apply. 40 C.F.R. § 1507.3(c)(12).

Publication. Identify means of publication that will efficiently and effectively make environmental documents and information available for review by interested persons, including electronic publication. 40 C.F.R. § 1508.1(gg).

Information and status reports. Explain where interested persons can get information or status reports on EISs, EAs, and other elements of the NEPA process. 40 C.F.R. § 1507.3(c)(11).

Categorical exclusions (CEs). Agencies must establish new or revised CEs in agency NEPA procedures and identify extraordinary circumstances consistent with 40 C.F.R. § 1507.3(c)(8). Proposed or revised CEs must be accompanied by adequate substantiation and approved by CEQ prior to finalizing agency procedures.

Reviewing CEs. Agency procedures must include a process for reviewing the agency's CEs at least every 10 years, which the agency may conduct on a rolling basis, starting with its oldest CEs. 40 C.F.R. § 1507.3(c)(9).

What effects require preparation of an environmental impact statement?

When a proposed action is likely to have significant effects, an agency must prepare an environmental impact statement. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.3(c)(3). CEQ's NEPA regulations define "significant effects" as adverse effects that an agency has identified as significant based on the criteria in 40 C.F.R. § 1501.3(d). 40 C.F.R. § 1508.1(mm).

If only adverse effects matter for determining significance, must an agency also consider beneficial effects?

Agencies must identify and discuss both adverse and beneficial effects when preparing an environmental impact statement. Moreover, regardless of the level of NEPA review, agencies should analyze both adverse and beneficial effects in environmental documents if they are reasonably foreseeable. 40 C.F.R. § 1508.1(i). CEQ's NEPA regulations describe how agencies should consider whether or not an effect is significant.

When an action has both beneficial and adverse effects, can the beneficial effects outweigh or cancel out adverse effects for the purposes of determining significance?

No. An agency cannot weigh the overall beneficial effects of an action against its overall adverse effects or weigh a beneficial effect of one kind against an adverse effect of another kind—i.e., whether the effect of the proposed action is net beneficial or net adverse—to determine whether the proposed action has significant effects requiring preparation of an environmental effect statement (EIS). Rather, an agency must analyze each kind of effect on an effect-by-effect basis and assess for each kind of effect whether that particular effect will have an overall adverse effect that is significant. 40 C.F.R. 1501.3(d).

For example, an agency cannot compare and determine significance by weighing adverse water effects against beneficial air effects, or adverse effects to one species against beneficial effects to another species. An agency must prepare an EIS for a proposed action with significant adverse effects even if there are some beneficial effects of the proposal. In another example, an agency may determine that a proposed action would have significant adverse effects on a species, but the agency would analyze and include enforceable mitigation that would reduce that effect such that it would not be significant. In this instance, the agency appropriately prepares an environmental assessment followed by a mitigated finding of no significant impact.

How should an agency assess the duration of an effect when considering beneficial and adverse effects?

When considering whether an adverse effect of a proposed action is significant, an agency must examine both the context of the action and the intensity of the effect. In assessing context and intensity, an agency should consider the duration of an effect (such as short-term or long-term effects). An agency may also consider the extent to which an effect is adverse at some points in time and beneficial in others. In some circumstances, an effect may be significant due to the harm during one period of time regardless of the benefit at another.

For example, in assessing the significance of a habitat restoration action's effect on a species, an agency may consider both any short-term harm to the species during implementation of the action and any benefit to the same species once the action is complete. 40 C.F.R. § 1501.3(d). Depending on the circumstances of the particular action, the agency may determine that overall, the effect to that particular species is not significant because the overall beneficial effect to the species is much greater than the short-term adverse effect. However, an agency should not use a long-term beneficial effect to outweigh a short-term adverse effect if the short-term effect is more severe than the long-term beneficial effect. An agency must prepare an environmental impact statement for proposed actions with significant adverse effects even if the adverse effects are only short-term in duration and not outweighed by short-term or long-term beneficial effects. Using the habitat example, if implementation of a habitat restoration action may extirpate that particular species from the area, then the agency could not reasonably rely on long-term habitat improvements resulting from the action to determine that the overall effect to the species is not significant.