The purpose of the National Environmental Policy Act (NEPA) is to ensure that federal agencies evaluate potential environmental impacts of a proposed action and reasonable alternatives to those actions before authorizing the action. Environmental impacts include effects on natural resources such as fish, plant, and animal species and habitat, as well as effects on the human environment, which includes human uses such as commercial and recreational fishing. NEPA provides a framework to identify and assess environmental effects and reasonable alternatives to the proposed actions. The EPA provides a detailed description of compliance requirements.
Lead Agency: The federal action agency for the proposed project will be the lead agency for the NEPA process. For grid-connected hydrokinetic projects, FERC is the lead; otherwise, COE is the lead. Other relevant agencies may be involved with reviewing documentation and ensuring NEPA compliance. The federal action agency is expected to implement alternatives and/or mitigation to avoid or minimize impacts so that the purpose and need for the proposed action is accomplished in a manner that does not result in significant environmental effects. Project proponents may refer to FERC’s Guide to Preparing Environmental Documents for a detailed description of the documentation requirements.
Review Process: The federal action agency first uses a scoping process to identify issues, concerns, and opportunities associated with a proposed project. The action agency will prepare a Scoping Document (SD) that sets out the analytical process that will be followed in preparing the NEPA document, and a preliminary identification of issues that will be addressed in the analysis. The scoping process aids in determining the depth of analysis required and the significance of issues to be addressed in the staff’s NEPA document. Ultimately, the NEPA document is used to decide whether to issue a license or exemption for a project and what conditions should be placed on the license or exemption.
Through the scoping process, the action agency determines whether (1) the proposed action is categorically excluded from detailed environmental review, or (2) the proposed activity requires a detailed environmental review and documentation that includes alternatives considered and likely environmental effects. If a categorical exclusion does not apply, then the federal agency prepares either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), depending on the quantity and complexity of the issues identified during scoping.
If substantial issues are not identified in the scoping process, agency staff will prepare an EA indicating that project is not likely to have significant effects, along with a Finding of No Significant Impact (FONSI). If substantial issues are identified, the agency will prepare an EIS.(1) In some cases, the action agency may tier its NEPA document off a prior EIS or a programmatic EIS. Additionally, the federal NEPA process may be coordinated with state environmental review processes.
Consultation: Stakeholder consultation usually involves government agencies and the public. Government agencies participate officially as either the action agency or a cooperating agency.(2) It is important that applicants consult with all relevant agencies before to preparing NEPA documentation. For example, project proponents should consult with the COE prior to preparing NEPA documentation for the FERC license application to ensure that wetlands are included in the NEPA analysis and that this information is included in the Draft EIS. By doing this, the NEPA document developed for the FERC license application may also be used in the COE review, helping to streamline efforts and potentially decrease overall process time.
The federal action agency is ultimately responsible for executing the NEPA process and for documenting its evaluation. Any federal, state, tribal, or local agency having expertise with respect to a particular environmental issue or jurisdiction may participate in the NEPA process as a cooperating agency. Cooperating agencies assist the action agency by participating in the scoping process, developing information, and preparing environmental analyses on issues with which the cooperating agency has special expertise. However, cooperating agencies are precluded from intervening in the proceeding.(3)
Members of the public and agencies that are not “cooperating agencies” can participate in the NEPA process by consulting during study development and data interpretation, providing comments on the licensing application, participating in scoping of issues, filing of recommendations and conditions, and reviewing and commenting on the draft EA or EIS. The action agency must consider all feedback received during the comment period.
Process Time: The regulations for implementing NEPA do not set a strict time frame for the process as a whole; instead, federal agencies are expected to set time limits appropriate to the individual steps in the NEPA process. An EA usually takes between two and six months and an EIS can take a year or more.
Legal Authority: National Environmental Policy Act (42 USC § 4321 et seq); 40 CFR §§1500-1508.