1. NEPA Public Review and EPA’s Mandate from Section 309 CAA
Chapter 2 Module 4
HO #s 5 & 9

2. Module Objective
LEARNING OBJECTIVE: The student will acquire a basic understanding of the NEPA reviews and how they fit within the ongoing civil works review processes.

3. Scientific Integrity
Reviews target many things: Technical Adequacy should not be one of them. To avoid such occurrence you should:
Ensure Professional Integrity of Analysis
Identify & Certify Methodologies used and include descriptions in document appendices
Reference Scientific Sources
Use Best Science
Promote Cooperating Agencies
(40 CFR § )

4. Important EPA Review Concerns
Water Quality
Air Quality
Ground Water/sole source aquifers
Wetlands
Hazardous waste issues
Environmental Justice
Cumulative Impacts

5. Circulation & Public Review
Regulatory Basis
40 CFR ”obtain comments of agencies having jurisdiction by law.”
40 CFR Ch V. NEPA Implementation Procedures FR Vol. 49. No. 247, Friday Dec 21, 1984
Appendix III; Federal & State Agency Offices for Receiving and Commenting on Other Agencies Environmental Documents.
40 CFR “duty to comment.”
FR vol. 53, Feb 3, 1988, Environmental Quality; Procedures for Implementing the National Environmental Policy Act (NEPA) 33 CFR parts 230 and 325 also known as NEPA Implementation Procedures; Appendices I, II, & III (49 FR 49750, Dec 21, 1984)
Agencies having Jurisdiction by law.
Organized by
1. Pollution
2. Energy
3. Land Use
DOD-Army Wetlands
DOI-FWS Endangered Species
4. Natural Resources Management
These are old addresses and may have changed. I know the Corps address has changed. A url for this document is in Handout #9.

6. Circulation & Requirements for Public Review
Federal Register /Vol. 76, No. 10 /Friday, January 14, 2011 Amended EIS Filing System
An EIS must be filed with the Environmental Protection Agency in Washington, DC.
EPA then places a Notice of Availability (NOA) in the Federal Register.
An EA can also be circulated. However, a NOA for an EAs is not published in the Federal Register !
Any person, organization or agency requesting a copy can review the document.
EAs are not filed with EPA!!!!
District Commanders do file permit action NEPA documents.
HQUSACE assists Districts filing NEPA documents going to Congress for authorization.
Division Commanders file all other FEIS documents.
Generally you should verify the filing of the FEIS because it can vary with the intent of the report it accompanies.

7. Public Review Time Frames
Publication of NOA starts review times
45 days for the DEIS.
30 days for the FEIS.
Minimum of 90 days from DEIS NOA to signing a ROD.
EAs typically have a 30 day public review period until FONSI is signed (see ER for specifics regarding civil works planning documents)
30 Day State & Agency Review*
*This is an Agency imposed review not NEPA
90 days for total process Concurrent review can occur if the DEIS can be circulated in 45 days then the FEIS can be reviewed within the 90 day period.
45 day review for Supplemental DEIS.
Internal reviews (Departmental State and Agency Reviews) may run concurrently with the 30 day FEIS review.
This review is separate with-in the Corps’ existing procedures.

8. NEPA/COE Process Flow Chart
Federal
Action
Issue NOI
& Conduct
Scoping
Issue
DEIS
Issue
FEIS
45 days
30 days
* S&A
Review
yes
Sign. Env
Effects?
yes
Sign. Env
Effects? no
yes
Issue
ROD
Need Env
Review?
unknown
Significance is related to many things. Controversy is applicable if impact being considered is significance. Otherwise doesn’t call for an EIS.
Issue
Draft
FONSI
Prepare EA no
30 DAYS
CATEX
Implement
Action

9. The EPA Review Process
Section 309 of the Clean Air Act, “the Administrator of EPA shall review and comment in writing” on the draft EIS.
Does not apply to EAs!
EPA provides a rating of the project’s impacts and an evaluation of the adequacy of the analysis.
33,600 EISs were reviewed from
Policy & Procedures for Review of Federal Actions (USEPA 10/3/84): Office of External Affairs, Office of Federal Activities, Washington, DC.

10. History of Section 309 CAA 1970
Publication of EPA’s review of the NEPA document for the proposed Supersonic Transport Aircraft (SST) was being held by DOT.
DOT believed NEPA had no explicit public disclosure requirements.
Senator Edmund Muskie sponsored Section 309 requiring public release of NEPA comments.

11. Rating System Lack of objections LO Environmental concerns ECEO
EU* 1 2 3*
Lack of objections
Environmental concerns
Environmental objections
Environmentally unsatisfactory
Adequate
Insufficient information
Inadequate
LO — Lack of Objection
EPA has no objections to the proposed action as described in the draft impact statement, or suggests only minor changes.
ER — Environmental Reservations
EPA has reservations concerning the environmental effects of the proposed action, and suggests further study of alternative actions, or modification of the proposal.
EU — Environmentally Unsatisfactory
EPA believes that the proposal's potential for harming the environment cannot be prevented by environmental safeguards. Therefore, EPA recommends that the acting agency consider alternative actions, or take no action at all.58
Similarly, the comments on the adequacy of the impact statement fall into three categories:
Category I — Adequate
The draft impact statement adequately sets forth the environmental impact of the proposal and the alternatives reasonably available to the proposal.
Category II — Insufficient Information
The draft impact statement does not contain sufficient information for EPA to fully assess the environmental impact of the proposal. EPA, however, makes a preliminary determination of the proposal's environmental impact, and requests the acting agency to provide additional information.
Category III — Inadequate
The draft impact statement does not adequately assess the proposals environmental impact or the reasonably available alternative courses of action. EPA requests that the impact statement by substantially revised to provide additional information and analysis.59
If a draft statement is placed in category 3, no rating will be made on the environmental impact of the proposed project because there is insufficient information on which to base such a rating. EPA headquarters retains responsibility for commenting on legislation and regulations. Commenting on other agency action, however, remains almost entirely with the ten EPA regional offices. Only when a proposal's subject matter involves more than one region, a high degree of national controversy, or an area of policy not previously considered by the agency, will central headquarters handle commenting procedures.60 If a regional office classifies a proposal "EU" or "3", EPA headquarters screens the classification to make sure that EPA is not condemning agency action without strong supporting evidence.
If draft impact statements are placed in categories ER, EU, 2, or 3, the EPA directive requires that the proposal be reviewed again at the final impact statement stage to make sure that its comments at the draft stage were assimilated and to resolve whatever shortcomings the project may still have.61 Comments at the final stage are directed solely at the project's environmental acceptability, and are not concerned with the sufficiency of information [3 ELR 50080] in the statement itself.62 Although comments on final statements are made in paragraph form and are not categorized, they correspond to categories "EU" and "ER" of "LO" at the draft stage. If EPA finds the proposals as described in the final statement to be substantively acceptable with only minor changes, the preparation of a formal comment for transmittal to the proposing agency and publication in the Federal Register is left entirely to the discretion of the EPA reviewer. This is arguably permissible because § 309(b) expressly requires only that EPA publish comments on "unsatisfactory" proposals, and says nothing with regard to publication of comments on "satisfactory" proposals. Nevertheless, the EPA reviewer is encouraged to prepare written comments whenever the originating agency has made significant modifications or improvement in the proposed action to comply with EPA's suggestions at the draft statement level. When formal comments are not prepared, the EPA § 309 review process requires that the reviewer file a memorandum at the Office of Federal Activities in EPA recording his decision and underlying rationale for approving the proposal.63 If the reviewer has environmental reservations about a proposal at the final statement stage he must prepare a comment for publication in the Federal Register summaries and transmittal to the proposing agency. The EPA Deputy Dadministrator then notifies CEQ by memorandum of its summary comments. The memorandum merely reiterates the summary comment, makes no mention of § 309(b) of the Clean Air Act, and does not constitute a formal § 309 referral to CEQ.64 If the reviewer determines that the proposal as set forth in the final statement is environmentally unsatisfactory, the reviewer's determination will be screened by the EPA Administrator. If the Administrator agrees that the proposal is unsatisfactory, he will refer the matter to CEQ under § 309(b), and a summary comment will be published in the Federal Register.
Ratings are
combined, for
example: EC-2.
*Adverse Ratings require HQ Approval 11

12. EPA’s EIS Rating System
Project
LO- No identified potential impacts requiring substantive changes to proposal.
EC- Impacts identified that must be avoided. Corrective measures may require project changes.
EU- Significant adverse impacts identified that are unsatisfactory from public health or policy standpoint. If not corrected in the FEIS, the proposal will be recommended for referral to CEQ.

13. EPA EIS’s Rating System (cont)
Document
1 – Adequate. Good to go!
2 –Insufficient Information. More information is needed or review has identified other alternatives within scope of DEIS. The additional information or analysis should be included in the FEIS.
3 – Inadequate. Seriously lacking in information or analysis to address potentially significant environmental impacts. Other alternatives outside spectrum of EIS needed. The draft EIS does not meet NEPA and/or Section 309 requirements.
Potential Referral if not corrected and reissued as a DEIS.

14. Incomplete or Unavailable Information
Relevant to Study
Reasonable Foreseeable Significant Adverse Impacts
Essential to a Reasoned Choice Among Alternatives
(40 CFR § )

15. Incomplete or Unavailable Information
IF:
Cost is exorbitant
Means are not known
THEN:
Follow 4 step process:
State information is not available
State why it is relevant
Summarize existing credible information
Make your best estimate of impacts
(40 CFR § ) (Only amendment to Guidelines)

16. Consultation follow-up of DEIS Ratings
Category
Lead Agency Pre-notification
Post-Draft EIS
Follow-up LO
EC-1, EC-2
EO-1, EO-2
None
Phone Call
Meeting
EO-3, EU-1
EU-2, EU-3
Consultation is maintained to anticipate and make early preparation for those final EISs which may be so unresponsive to EPA’s concerns that a recommendation for referral of the final EIS to CEQ will be occur.
Project Impacts Quality of Analysis
LO: Lack Objections “A” grade
EC: Environmental Concerns
EO: Environmental Objections
EU: Environmentally Unsatisfactory

17. EIS Ratings
All Agencies
Draft EISs
0.7%EU

18. Referral of an EIS
Occurs when interagency disagreement over issues of unsatisfactory environmental effects or analysis.
Issues are not resolved with the lead agency.
The disagreement is referred to CEQ.
: Total 27 referrals, 9 of which were COE
34,152 EIS filed since 2008
EPA can refer as can any other agency if they feel adequacy of EIS warrants it and issues cannot be resolved with action agency.
WHO IS CEQ?
Average 2/year except during the late 80’s when BRAC was active and then the number rose to 7 or 8.
Referrals can be made to CEQ in one of two ways.
First, under 1504 of the CEQ regulations, any federal agency or department may refer a proposed major federal action to CEQ within twenty-five days after a final EIS has been made available to the Environmental Protection Agency (“EPA”), to commenting agencies, and to the public. 40 C.F.R
A second referral route is provided by 309 of the Clean Air Act. 42 U.S.C Under 309, the EPA administrator may refer to the CEQ any proposed major federal action which he or she deems to be environmentally unsatisfactory.

19. Then What!

20. CEQ Response
Determines if submitted information supports a request for referral.
Historically, referrals discouraged if the referring agency has authority to address the environmentally unsatisfactory issue.
Publishes its findings, including a finding that the referral is not supported by submitted information.
Submits its recommendation to the Agency or the President for action.
CEQ is the arbitrator between agencies!

21. How to Avoid Referral Good Scoping effort to identify issues.
Take advantage of cooperating
agency’s expertise.
Use sound scientific analyses
and avoid taking positions not
supported by sound science
Maintain good coordination with
other interested Federal agencies.
Be sure to include the public in the process. Avoid politically inspired positions not supported by good science.

22. Why Avoid Referral
Saves time & money!
Affects agency credibility!

23. COE Document Review District Quality Control (DQC)
Managed and conducted in home District by staff not directly involved with the study.
Focus is on meeting objectives of the PMP
Agency Technical Review (ATR)
Conducted by USACE outside of home District; for Planning products, managed by PCX
Focus on Planning criteria, principles, laws etc
DQC and ATR results are included in the Draft EIS and are subject to Public/Agency Reviews
Promote Quality Decision Documents
Support Chief of Engineer Decision Process.

24. COE Document Review (cont)
Independent External Peer Review (IEPR)
Conducted by an outside eligible organization (OEO) - IRS 501(c)(3).
Legislative basis in WRDA & Information Quality Act 2001 (OMB directed to issue guidelines)
Implemented by EC
Applies to Feasibility and other Reports requiring Congressional Authorization and CAP 205 &103 projects & those w/EISs or other triggers.

25. Other Concurrent Civil Works Review Requirements
Independent External Peer Review ( cont)
Focus on Scientific Information/technical issues associated with planning for civil works projects
No Policy or agency authority review
Results are posted on district website for public review
Policy and Legal Compliance Reviews
Focus on a legally defensible document
Safety Assurance Review

26. COE Document Review (cont)
EC Civil Works Review Board March 2005
Replaces old Board of River & Harbors
Establishes the readiness of Chief’s
Report for State and Agency Review
Supported by IEPR, DQC & ATR
Chair Deputy Commanding General for Civil Works:
1. Director Civil Works Civil Works CoP
3. One RIT (not from MSC) Other CoPs
5. IEPR Representative PCX Representative

27. Old NEPA and the COE Review Process
F Rpt
CWRB
S&A Review
Chief’s Rpt
905(b)
PMP RP
FSCA
FSM
AFB
DFRpt
ASA
OMB
Civil Works Process Steps 4-12
NOA 45 D NOA 30F
NEPA
NOI
Scoping
DQC
ATR
Circular EC addresses OMB peer review requirements under the "Information Quality Act" and the Final Information Quality Bulletin for Peer Review by the Office of Management and Budget (referred to as the "OMB Peer Review Bulletin"). It also provides guidance for the implementation of both Sections 2034 and 2035 of the Water Resources Development Act (WRDA) of 2007 (Public Law (P.L.) ). Note as presented the slide illustrates an iterative process of review not unlike the planning process. LCR is not included in the EC
FYI. I noted that 209 has different info on ATR from what was in EC (ITR)(replaced with ATR). The recent guidance in 209 does not require ATR for the FSM and AFB, although 410 did require ITR at the FSM and AFB. Both require ATR/ITR for the draft and final. Appendix G still indicates that technical products submitted for the FSM should have been subjected to ATR/ITR although the concerns may not have been resolved yet. So this is confusing. I look at ATR/ITR as verifying that technical reviewers have concluded the data and analyses are correct. ATR/ITR is also supposed to address policy compliance. So when we look at products we should be verifying policy compliance and assume technical work has been checked. However, we sometimes see stuff coming in that looks like it hasn't been through DQC or ATR before getting to HQ. So I believe DQC should be done for anything leaving the district and would encourage verifying technical correctness and policy compliance at each FSM and AFB milestone even if ATR is not done.
IEPR
Web Page
LCR
RIT/OWPR PCR
Stars mark the review milestone determined by Review Plan

28. HQUSACE Smart Planning Process

29. NEPA/COE Review & Smart Planning Process
905(b)
PMP RP
FSCA
Congressional Committees
ASA
OMB
Chief’s Rpt
Milestone
Scoping
Charrette
NEPA
NOI
NOA 45 D
NOA 30 D
These milestones mark key decisions along the path to an effective and efficient study. With engagement of the Vertical Team and key HQUSACE Senior Leaders at the milestones, the PDT is assured that decisions made will not be revisited without good reason.
Alternatives Milestone – The Vertical Team and Project Delivery Team agree on the final array of alternatives and the criteria that will be used to evaluate and compare the alternatives to select the agency recommended plan. In addition, there is Vertical Team agreement that the objectives of the study are consistent with Corps authorities and priorities.
Tentatively Selected Plan Milestone – The Vertical Team and Project Delivery Team agree on the plan that will be published as the Tentatively Selected Plan for public review. Concurrent to public review, technical, policy, and legal reviews will occur.
Agency Decision Milestone – The Project Delivery Team and Vertical Team bring forward the TSP to Senior Leadership, including the Deputy Commanding General of Civil and Emergency Operations (DCG-CEO) for confirmation. With confirmation, this plan becomes the agency recommended plan that will be the focus of increased engineering and cost design / detail sufficient to complete the feasibility study report.
Final Report Milestone – The DCG-CEO approves the final report for state and agency review, convening the Civil Works Review Board at his discretion.
Chief’s Report Milestone – The Chief’s Report is developed for signature.
VT IPRs
DQ/ATR/ IEPR/OWPR
LCR
DCG-CEO/ OWPR ( ASA by invitation)
Stars mark the milestones at:

30. ER 200-2-2 EIS Time line NOI 28 Propose action TIME Variable Scoping
30-90 days
Prepare DEIS
days
HQUSACE/MSC/RIT Policy Review
30-60 DAYS
Filing of DEIS for concurrent HQ/Public Review
45 days
Incorporate Comments
days
Washington Level Review
30-60 DAYS
FEIS filed for concurrent S& A Public Review
30 days
Respond to Cmts
30 days
Chief’s Rpt to ASA
ASA Review &
Coordination with OMB
30-60 days
ROD Signed
Send Rpt to Congress
Wait for WRDA 28

31. AR EIS Time Line 29

32. Take Away Points Public Review is a required part of the process.
EPA’s review authority derives from the CAA.
Not based on the NEPA
Not part of CAA regulatory role
Good Science forms the basis for an LO rating!
Scoping helps identify relevant issues!
CEQ is the ultimate arbitrator
Agency review processes augment NEPA !
NEPA is a procedural legislation. Follow the Process!

33. Practitioners Guide to NEPA
“The NEPA Book: A Step-By-Step Guide on How to Comply with the National Environmental Policy Act"
Ronald E. Bass, Albert I. Herson, Kenneth M. Bogan
2001 (Second Edition)
Solano Press, 475 pages
$65.00
There also a lot of other reference out there to help with NEPA documents. The NEPA Book is one of the many popular references.

34. NEPA Certification Program
Duke Environmental Leadership Program
NEPA Certificate (Signed by Chair, CEQ)
Representative Courses
Implementation of the NEPA
Preparing & Documenting Environmental Impact Analysis
Accounting for Cumulative Effects in the NEPA Process
Scoping, Public Involvement and Environmental Justice
Socioeconomic Impact Analysis Under NEPA
The Law & NEPA

35. NEPA Certification Program
Utah State University National Environmental Policy Act Graduate Certificate Program
Representative Courses (12 hrs. Required)
How to Manage the NEPA Process and Write Effective NEPA Documents (2 hrs)
Clear Writing for NEPA Specialists (2 hrs)
Reviewing NEPA Documents (2 hrs)
NEPA Cumulative Impacts (1 hr)
Socioeconomic Impact Analysis (1hr)
NEPA & Climate Change (1hr)

36. NEPA Certification Program
Duke Environmental Leadership Program NEPA Certificate
Utah State University National Environmental Policy Act Graduate Certificate Program.
The Shipley Group

37. NEPA Review Check List
See Reference Files on Class Disk