```

[Federal Register Volume 77, Number 48 (Monday, March 12, 2012)]
[Rules and Regulations]
[Pages 14473-14480]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-5812]

=======================================================================
-----------------------------------------------------------------------

COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Parts 1500, 1501, 1502, 1503, 1505, 1506, 1507, and 1508

Final Guidance on Improving the Process for Preparing Efficient 
and Timely Environmental Reviews Under the National Environmental 
Policy Act

AGENCY: Council on Environmental Quality.

ACTION: Notice of availability, final guidance.

-----------------------------------------------------------------------

SUMMARY: The Council on Environmental Quality (CEQ) is issuing its 
final guidance on Improving the Process for Preparing Efficient and 
Timely Environmental Reviews under the National Environmental Policy 
Act. The National Environmental Policy Act (NEPA) and CEQ Regulations 
implementing NEPA provide numerous techniques for preparing efficient 
and timely environmental reviews. CEQ is issuing this guidance for 
Federal departments and agencies to emphasize and clarify that these 
techniques are available for all NEPA Environmental Assessments and 
Environmental Impact Statements. These techniques are consistent with a 
thorough and meaningful environmental review and agencies using these 
techniques should keep in mind the following basic principles: NEPA 
encourages straightforward and concise reviews and documentation that 
are proportionate to potential impacts and effectively convey the 
relevant considerations in a timely manner to the public and decision 
makers, while rigorously addressing the issues presented; NEPA shall be 
integrated into project planning to ensure planning and decisions 
reflect environmental considerations, avoid delays later in the 
process, and anticipate and attempt to resolve issues, rather than be 
an after-the-fact process that justifies decisions already made; NEPA 
reviews should coordinate and take appropriate advantage of existing 
documents and studies, including through adoption and incorporation by 
reference; early and well-defined scoping can assist in focusing 
environmental reviews on appropriate issues that would be meaningful to 
a decision on the proposed action; agencies are encouraged to develop 
meaningful, predictable, and expeditious timelines for environmental 
reviews; and agencies should respond to comments in proportion to the 
scope and scale of the environmental issues raised. This guidance 
applies equally to the preparation of an Environmental Assessment or an 
Environmental Impact Statement consistent with legal precedent and 
agency NEPA experience and practice. This guidance does not change or 
substitute for any law, regulations, or any other legally binding 
requirement. It does provide CEQ's interpretation of existing 
regulations promulgated under NEPA.

DATES: The guidance is effective March 12, 2012.

FOR FURTHER INFORMATION CONTACT: The Council on Environmental Quality 
(ATTN: Horst Greczmiel, Associate Director for National Environmental 
Policy Act Oversight), 722 Jackson Place NW., Washington, DC 20503. 
Telephone: (202) 395-5750.

SUPPLEMENTARY INFORMATION: Enacted in 1970, the National Environmental 
Policy Act (NEPA), 42 U.S.C. 4321-4346b, is a fundamental tool used to 
harmonize our environmental, economic, and social aspirations and is a 
cornerstone of our Nation's efforts to protect the environment. NEPA 
recognizes that many Federal activities

[[Page 14474]]

affect the environment and mandates that Federal agencies consider the 
environmental impacts of their proposed actions before deciding to 
adopt proposals or take action.\1\ Our ongoing review of the CEQ 
Regulations implementing NEPA at 40 Code of Federal Regulations Parts 
1500-1508 confirms the benefits of integrating planning and 
environmental reviews, coordinating multi-agency or multi-governmental 
reviews and approvals, and setting clear schedules for preparing EAs 
and EISs. This guidance promotes a sufficient and effective process 
that is tailored to avoid excessive burden. This guidance also reflects 
CEQ's continuing commitment to implement its Plan for Retrospective 
Review of Existing Regulations (Plan) in accordance with Executive 
Order 13563.\2\
---------------------------------------------------------------------------

    \1\ A discussion of NEPA applicability is beyond the scope of 
this guidance. For more information see CEQ, The Citizen's Guide to 
the National Environmental Policy Act, available at ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
    \2\ ``Improving Regulation and Regulatory Review,'' E.O. 13,563, 
76 FR 3821 (January 21, 2011), available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
---------------------------------------------------------------------------

    The guidance addresses numerous individual issues associated with 
the NEPA review process in a manner that meets the CEQ goals of 
promoting techniques that will modernize the use of NEPA, enabling 
agencies to more effectively and efficiently make use of the NEPA. The 
individual issues addressed include the use of concise NEPA documents 
focused on particular environmental issues, the integration of NEPA 
into preliminary parts of the planning process, and a more prevalent 
role of scoping in the development of NEPA reviews. The guidance also 
advises agencies to collaborate with other Federal, State, local, or 
Tribal agencies and representatives as well as to coordinate reviews 
and documents with other laws to allow for greater efficiency. It 
further explains the procedures to adopt other Federal agency reviews 
and to incorporate by reference information and analyses contained in 
other documents, and emphasizes the need for reasonable and 
proportionate responses to comments within the NEPA process. Finally, 
the guidance recommends agencies use appropriate time limits to promote 
efficiency. Thus, this guidance offers concrete tools for NEPA reviews 
to facilitate a more targeted, efficient, and informative analysis of 
environmental issues and impacts.
    This guidance provides CEQ's interpretation of existing regulations 
promulgated under NEPA, and does not change agencies' obligations with 
regard to NEPA and the CEQ Regulations implementing NEPA.
    The Federal Register notice announcing the draft Guidance on 
Improving the Process for Preparing Efficient and Timely Environmental 
Reviews under the National Environmental Policy Act was published on 
December 13, 2011.\3\ CEQ appreciates the thoughtful responses to its 
request for comments on the draft guidance. Commenters included private 
citizens, corporations, environmental organizations, trade 
associations, Federal agencies, and state agencies. CEQ received 61 
comments, which are available online at www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/comments. The comments that 
suggested editorial revisions and requested clarification of terms are 
addressed in the text of the final guidance. Comments that raised 
policy or substantive concerns are grouped into thematic issues and 
addressed in the following sections of this notice.
---------------------------------------------------------------------------

    \3\ National Enviromental Policy Act (NEPA) Draft Guidance, 
Improving the Process for Preparing Efficient and Timely 
Environmental Reviews under the National Environmental Policy Act, 
76 FR 77,492, Dec. 11, 2011.
---------------------------------------------------------------------------

What's New in This Guidance

    Many commenters felt that the draft guidance was merely a rehash of 
previous guidance issued by the CEQ, with no new insights or procedures 
for making the NEPA process more efficient. This guidance highlights 
and focuses on the existing provisions under the CEQ Regulations 
implementing NEPA and clarifies that they are available for the 
preparation of Environmental Assessments, as well as Environmental 
Impact Statements, so that Federal agencies can focus on specific 
techniques that provide the best use of agency resources in ensuring a 
timely, effective, and efficient NEPA review. This guidance applies 
equally to the preparation of Environmental Assessments and 
Environmental Impact Statements consistent with legal precedent and 
agencies' NEPA experience and practice. It does not create or endorse 
any new requirements or obligations that would lengthen the process.

Strength of Guidance

    Comments on the strength of the draft guidance varied widely, with 
some commenters finding that the guidance did not do enough to force 
agencies to expedite review and other commenters feared the guidance 
weakened the importance of NEPA for agency decision making. The 
guidance reinforces and clarifies what Federal agencies should do, and 
are already allowed to do, under NEPA and the CEQ's NEPA implementing 
regulations. For example, the second principle on integrating NEPA with 
planning now states that agencies ``shall'' integrate NEPA into project 
planning which reflects the direction provided in current regulations. 
When Congress enacted NEPA, it charged CEQ with interpreting the 
statute. Pursuant to its authority, over the years CEQ has issued 
guidance on a variety of topics. Today's guidance provides CEQ's 
interpretation of its already established regulations promulgated for 
NEPA implementation and does not change agencies' obligations with 
regard to those regulations.

Public Participation

    Some comments desired further emphasis on the public participation 
component of NEPA as a part of this guidance, or felt that the lack of 
public participation guidance in this document suggested that public 
participation is not viewed by the CEQ to be an integral part of the 
NEPA process. The CEQ believes that public participation is a crucial 
and integral part of NEPA, and the portions of this guidance which 
address public participation do nothing to change or deemphasize this 
fact. The focus of much of this guidance is on the review and 
implementation procedures of agencies, especially the physical writing 
of NEPA documents and internal agency review procedures which do not 
have a direct interaction with the public. Earlier CEQ guidance has 
emphasized the importance of public participation; see, for example the 
guidance for developing and using categorical exclusions available at 
http://ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.

The Final Guidance

    For reasons stated in the preamble, above, CEQ issues the following 
guidance on Improving the Process for Preparing Efficient and Timely 
Environmental Reviews under the National Environmental Policy Act. The 
final guidance is provided here and is available on the National 
Environmental Policy Act Web site (http://www.nepa.gov) at http://
ceq.hss.doe.gov/ceq_regulations/guidance.html and on the CEQ Web site 
at http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa.

[[Page 14475]]

Memorandum for Heads of Federal Departments and Agencies

FROM: NANCY H. SUTLEY, Chair, Council on Environmental Quality
SUBJECT: Improving the Process for Preparing Efficient and Timely 
Environmental Reviews Under the National Environmental Policy Act

    A wide array of tools is available to meet the goal of high 
quality, efficient, and timely environmental reviews under the National 
Environmental Policy Act (NEPA). The Council on Environmental Quality 
(CEQ) Regulations implementing NEPA contain a number of opportunities 
for achieving this goal. CEQ is issuing this guidance for Federal 
departments and agencies to emphasize and clarify those opportunities, 
fully consistent with a thorough and meaningful environmental review. 
The guidance also makes it clear that many of the provisions of the CEQ 
Regulations which specifically refer to an Environmental Impact 
Statement (EIS) provide efficiencies that can also be used to prepare 
an Environmental Assessment (EA). This guidance applies equally to the 
preparation of an EA or an EIS consistent with legal precedent and 
agency NEPA experience and practice.
    In conducting all environmental reviews pursuant to NEPA, agencies 
should use the methods set out in the CEQ Regulations and in their own 
agency NEPA implementing procedures in a way that is mindful of the 
following basic principles:
     NEPA encourages straightforward and concise reviews and 
documentation that are proportionate to potential impacts and 
effectively convey the relevant considerations to the public and 
decisionmakers in a timely manner while rigorously addressing the 
issues presented;
     NEPA shall be integrated into project planning to ensure 
planning and decisions reflect environmental considerations, avoid 
delays later in the process, and anticipate and attempt to resolve 
potential issues rather than be an after-the-fact process that 
justifies a decision already made;
     NEPA reviews should coordinate and take appropriate 
advantage of existing documents and studies, including through adoption 
and incorporation by reference;
     Early and well-defined scoping can assist in focusing 
environmental reviews on appropriate issues that would be meaningful to 
a decision;
     Agencies are encouraged to develop meaningful and 
expeditious timelines for environmental reviews; and
     Agencies should respond to comments in proportion to the 
scope and scale of the environmental issues raised.
    This guidance also reflects CEQ's continuing commitment to 
implement its Plan for Retrospective Review of Existing Regulations 
(``Plan'') in accordance with Executive Order 13563.\4\ Our ongoing 
review of the CEQ Regulations confirms the benefits of integrating 
environmental reviews into the decisionmaking process, coordinating 
multi-agency or multi-governmental reviews and approvals, and setting 
clear schedules for preparing EAs and EISs. This guidance promotes a 
sufficient and effective process that is tailored to avoid excessive 
burden. This guidance provides CEQ's interpretation of existing 
regulations promulgated under NEPA, and does not change agencies' 
obligations with regard to NEPA and the CEQ Regulations.\5\
---------------------------------------------------------------------------

    \4\ Improving Regulation and Regulatory Review, E.O. No. 13,563, 
76 Fed. Reg. 3,821 (Jan. 21, 2011), available at www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
    \5\ This guidance is not a rule or regulation, and the 
recommendations it contains may not apply to a particular situation 
based upon the individual facts and circumstances. This guidance 
does not change or substitute for any law, regulations, or any other 
legally binding requirement and is not legally enforceable. The use 
of non-mandatory terminology such as ``guidance,'' ``recommend,'' 
``may,'' ``should,'' and ``can,'' is intended to describe CEQ 
policies and recommendations. The use of mandatory terminology such 
as ``shall,'' ``must,'' and ``required'' is intended to describe 
controlling requirements under NEPA and the CEQ Regulations, but 
this document does not establish legally binding requirements in and 
of itself.
---------------------------------------------------------------------------

Introduction and Steps to Date

    CEQ was created by NEPA in 1970 and is charged with overseeing NEPA 
implementation by Federal agencies. In 1978, CEQ issued the CEQ 
Regulations implementing NEPA.\6\ From time to time, CEQ issues 
guidance for the Federal agencies, to clarify the requirements and 
applicability of various provisions of NEPA and the CEQ Regulations, 
and to ensure that those requirements can be met in a timely and 
effective fashion.\7\ These guidance documents represent CEQ's 
interpretation of NEPA, which the U.S. Supreme Court has said is 
``entitled to substantial deference.'' \8\
---------------------------------------------------------------------------

    \6\ The Council on Environmental Quality (CEQ) Regulations for 
Implementing the Procedural Provisions of the National Environmental 
Policy Act, 40 CFR parts 1500-1508 (2011) [hereinafter CEQ 
Regulations], available on www.nepa.gov at ceq.hss.doe.gov/ceq_regulations/regulations.html.
    \7\ These guidance documents are available online at 
ceq.hss.doe.gov/ceq_regulations/guidance.
    \8\ Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
---------------------------------------------------------------------------

    NEPA requires Federal agencies to consider the potential 
environmental consequences of their proposed action, and any reasonable 
alternatives, before deciding whether and in what form to take an 
action. Environmental reviews prepared under NEPA should provide a 
decisionmaker and the public with relevant and timely information, and 
the CEQ Regulations make it clear that ``NEPA's purpose is not to 
generate paperwork--even excellent paperwork--but to foster excellent 
action.'' \9\
---------------------------------------------------------------------------

    \9\ 40 CFR 1500.1(c).
---------------------------------------------------------------------------

    NEPA compliance can take three forms, a Categorical Exclusion, an 
EA, or an EIS:
     Categorical Exclusion (CE): A CE describes a category of 
actions that are expected not to have individually or cumulatively 
significant environmental impacts.\10\ Each agency's procedures for 
implementing NEPA sets out that agency's CEs, which are established 
after CEQ and public review. A proposed action within such a category 
does not require further analysis and documentation in an EA or an 
EIS.\11\ A CE can be used after determining that a proposed action 
falls within the categories of actions described in the CE and that 
there are no extraordinary circumstances indicating further 
environmental review is warranted.
---------------------------------------------------------------------------

    \10\ Categorical exclusions can also be created through 
legislation.
    \11\ 40 CFR 1508.4, 1500.5(k).
---------------------------------------------------------------------------

     Environmental Assessment (EA): When a CE is not 
appropriate and the agency has not determined whether the proposed 
action will cause significant environmental effects, then an EA is 
prepared. If, as a result of the EA, a Finding of No Significant Impact 
(FONSI) is made, then the NEPA review process is completed with the 
FONSI, including documentation of its basis in the EA; otherwise an EIS 
is prepared.\12\
---------------------------------------------------------------------------

    \12\ 40 CFR 1508.9.
---------------------------------------------------------------------------

     Environmental Impact Statement (EIS): The most intensive 
level of analysis is the EIS, which is typically reserved for the 
analysis of proposed actions that are expected to result in significant 
environmental impacts. When an EIS is prepared, the NEPA review process 
is concluded when a record of decision (ROD) is issued.\13\
---------------------------------------------------------------------------

    \13\ 40 CFR 1505.2.
---------------------------------------------------------------------------

    CEQ has been working with agencies to modernize and reinvigorate 
NEPA implementation in several ways. CEQ issued guidance on the 
development and use of Categorical Exclusions in November 2010.\14\ 
Properly developed and applied, CEs provide an efficient

[[Page 14476]]

tool to complete the NEPA environmental review process for proposals 
that normally do not require more resource-intensive EAs or EISs. The 
use of CEs can reduce paperwork and delay for proposed actions that do 
not raise the potential for significant environmental effects.\15\ In 
January 2011, CEQ provided guidance that specifically addressed the 
appropriate use of a FONSI or mitigated FONSI to conclude a NEPA review 
process relying on an EA. A mitigated FONSI is appropriate when 
mitigation is used to avoid or lessen potentially significant 
environmental effects of proposed actions that would otherwise need to 
be analyzed in an EIS.\16\ In addition, in May 2010, CEQ issued 
guidance on ensuring efficient and expeditious compliance with NEPA 
when agencies must take exigent action to protect human health or 
safety and valued resources in a timeframe that does not allow 
sufficient time for the normal NEPA process.\17\
---------------------------------------------------------------------------

    \14\ CEQ, ``Establishing, Applying, and Revising Categorical 
Exclusions under the National Environmental Policy Act'' (Nov. 23, 
2010), available at ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
    \15\ See 40 CFR 1500.4(p) (recommending categorical exclusions 
as a tool to reduce paperwork) and 1500.5(k) (recommending 
categorical exclusions as a tool to reduce delay).
    \16\ CEQ, ``Appropriate Use of Mitigation and Monitoring and 
Clarifying the Appropriate Use of Mitigated Findings of No 
Significant Impact'' (Jan. 14, 2011), available at ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
    \17\ CEQ, ``Emergencies and the National Environmental Policy 
Act,'' (May 12, 2010), available at ceq.hss.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf.
---------------------------------------------------------------------------

    In August 2011 the President called for further steps to enhance 
the efficient and effective permitting and environmental review of 
infrastructure development ``through such strategies as integrating 
planning and environmental reviews; coordinating multi-agency or multi-
governmental reviews and approvals to run concurrently; setting clear 
schedules for completing steps in the environmental review and 
permitting process; and utilizing information technologies to inform 
the public about the progress of environmental reviews as well as the 
progress of Federal permitting and review processes.'' \18\ This 
guidance sets forth straightforward means by which the CEQ Regulations 
support these strategies.
---------------------------------------------------------------------------

    \18\ Presidential Memorandum, ``Speeding Infrastructure 
Development Through More Efficient and Effective Permitting and 
Environmental Review'' (Aug. 31, 2011), available at 
www.whitehouse.gov/the-press-office/2011/08/31/presidential-memorandum-speeding-infrastructure-development-through-more.
---------------------------------------------------------------------------

1. Concise NEPA Documents
    Agencies are encouraged to concentrate on relevant environmental 
analysis in their EAs and EISs, not to produce an encyclopedia of all 
applicable information.\19\ Environmental analysis should focus on 
significant issues, discussing insignificant issues only briefly.\20\ 
Impacts should be discussed in proportion to their significance, and if 
the impacts are not deemed significant there should be only enough 
discussion to show why more study is not warranted.\21\ Scoping,\22\ 
incorporation by reference,\23\ and integration of other environmental 
analyses \24\ are additional methods that may be used to avoid 
redundant or repetitive discussion of issues.\25\
---------------------------------------------------------------------------

    \19\ 40 CFR 1500.4(b), 1502.2(b).
    \20\ 40 CFR 1502.2(c); see also 40 CFR 1502.2(a) 
(``Environmental impact statements shall be analytic rather than 
encyclopedic.'').
    \21\ 40 CFR 1502.2(b).
    \22\ 40 CFR 1500.4(g).
    \23\ 40 CFR 1500.4(j).
    \24\ 40 CFR 1500.4(k).
    \25\ See generally 40 CFR 1502.1 (EISs should be written in 
clear language so that decisionmakers and the public can understand 
them).
---------------------------------------------------------------------------

    All NEPA environmental documents, not just EISs, shall be written 
in plain language,\26\ follow a clear format, and emphasize important 
impact analyses and information necessary for those analyses rather 
than providing extensive background material. Clarity and consistency 
ensure that the substance of the agency's analysis is understood, 
avoiding unnecessary confusion or risk of litigation that could result 
from an ambiguous or opaque analysis. The CEQ Regulations indicate that 
the text of a final EIS that addresses the purpose and need, 
alternatives, affected environment, and environmental consequences 
should normally be less than 150 pages and a final EIS for proposals of 
unusual scope or complexity should normally be less than 300 pages.\27\
---------------------------------------------------------------------------

    \26\ 40 CFR 1502.8; see also www.plainlanguage.gov.
    \27\ 40 CFR 1502.7.
---------------------------------------------------------------------------

    In light of the growth of environmental requirements since the 
publication of the CEQ Regulations, and the desire to use the EIS to 
address, via integration, those requirements, it is recognized that 
there will be a range of appropriate lengths of EISs. Nevertheless, 
agencies should keep EISs as concise as possible (continuing to 
relegate to appendices the relevant studies and technical analyses used 
to support the determinations and conclusions reached in the EIS) and 
no longer than necessary to comply with NEPA and the other legal and 
regulatory requirements being addressed in the EIS, and to provide 
decision makers and the public with the information they need to assess 
the significant environmental effects of the action under review. 
Length should vary with the number, complexity and significance of 
potential environmental problems.\28\
---------------------------------------------------------------------------

    \28\ 40 CFR 1502.2(c) (EISs ``shall be kept concise and * * * 
[l]ength should vary first with potential environmental problems and 
then with project size'').
---------------------------------------------------------------------------

    Similarly, the CEQ guidance issued in 1981 indicated that 10-15 
pages is generally appropriate for EAs.\29\ This guidance must be 
balanced with the requirement to take a hard look at the impacts of the 
proposed action. As with EISs, an EA's length should vary with the 
scope and scale of potential environmental problems as well as the 
extent to which the determination of no significant impact relies on 
mitigation, rather than just with the scope and scale of the proposed 
action.\30\ The EA should be no more detailed than necessary to fulfill 
the functions and goals set out in the CEQ Regulations: (1) Briefly 
provide sufficient evidence and analysis for determining whether to 
prepare an EIS; (2) aid an agency's compliance with NEPA when no EIS is 
necessary, i.e., the EA helps to identify and analyze better 
alternatives and mitigation measures; and (3) facilitate preparation of 
an EIS when one is necessary.\31\
---------------------------------------------------------------------------

    \29\ See CEQ, ``Forty Most Asked Questions Concerning CEQ's 
National Environmental Policy Act Regulations'' (Mar. 16, 1981), 
available at ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#36 (Question 36a 
and Answer). Note that at the time of Forty-Questions memorandum CEQ 
was of the opinion that mitigated Findings of No Significant Impact 
were only appropriate if the mitigation measures were imposed by 
statute or regulation, or submitted by an applicant or agency as 
part of the original proposal. See Id. (Question 40 and Answer). CEQ 
has since published guidance accepting mitigated FONSIs as another 
means of efficiently concluding the NEPA process without producing 
an EIS. CEQ, ``Appropriate Use of Mitigation and Monitoring and 
Clarifying the Appropriate Use of Mitigated Findings of No 
Significant Impact'' (Jan. 14, 2011), available at ceq.hss.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
    \30\ See 40 CFR 1508.9 (stating the EA is ``a concise public 
document'') and 40 CFR 1502.2(c) (interpreting the conciseness 
requirement for an EIS to mean that ``[l]ength should vary first 
with potential environmental problems and then with project size'').
    \31\ 40 CFR 1508.9(a).
---------------------------------------------------------------------------

2. Early NEPA Integration in Planning
    An agency should first consider integrating the NEPA process into 
planning when it structures its internal process for developing a 
proposed policy, program, management plan, or project. Agencies must 
integrate the NEPA process into their planning at the earliest possible 
time to ensure that planning and decisions reflect environmental 
values, avoid delays later in the process, and anticipate and

[[Page 14477]]

attempt to resolve potential issues.\32\ NEPA should not become an 
after-the-fact process that justifies decisions that have already been 
made.\33\
---------------------------------------------------------------------------

    \32\ 40 CFR 1501.2.
    \33\ 40 CFR 1502.2(g).
---------------------------------------------------------------------------

    The CEQ Regulations emphasize early NEPA planning in the context of 
an EIS. The scoping process can be used before an agency issues a 
notice of intent to seek useful information on a proposal from agencies 
and the public.\34\ For example, agencies can commence the process to 
prepare an EIS during the early stages of development of a proposal, to 
ensure that the environmental analysis can be completed in time for the 
agency to consider the final EIS before making a decision on the 
proposal.\35\ Further, an agency shall prepare an EIS so that it can 
inform the decisionmaking process in a timely manner ``and will not be 
used to rationalize or justify decisions already made.'' \36\
---------------------------------------------------------------------------

    \34\ See CEQ Memorandum to Agencies, ``Forty Most Asked 
Questions Concerning CEQ's National Environmental Policy Act 
Regulations'' (Mar. 16, 1981), available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#13 (Question 13 and Answer).
    \35\ See 40 CFR 1508.23 (explaining that a proposal exists as 
soon as an agency ``has a goal and is actively preparing to make a 
decision on one or more alternative means of accomplishing that goal 
and the effects can be meaningfully evaluated'').
    \36\ 40 CFR 1502.5. For guidelines specific to different agency 
activities, see 40 CFR 1502.5(a)-(d). Misuse of the NEPA process to 
justify decisions already made is counterproductive and can result 
in litigation that could delay and ultimately prevent a proposed 
action from proceeding.
---------------------------------------------------------------------------

    To prepare efficient EAs, agencies should adhere to these same 
principles and ensure that the EA is prepared in conjunction with the 
development of the proposed action in time to inform the public and the 
decisionmaker. Agencies should review their NEPA implementing 
procedures as well as their NEPA practices to ensure that NEPA is 
integrated into overall project planning and management to the fullest 
extent possible.
    The CEQ Regulations call upon agencies to provide for situations 
where the initial planning process is in the hands of an applicant or 
other non-Federal entity.\37\ The Regulations require Federal agencies 
to address these situations in their NEPA implementing procedures.\38\ 
Consequently, agencies that have a reasonably foreseeable role in 
actions that are initially developed by private applicants or other 
non-Federal entities must plan for those situations. The NEPA 
implementing procedures for such agencies must provide access to 
designated staff or the policies that can inform applicants and other 
non-Federal entities of studies or other information foreseeably 
required for later Federal action.\39\
---------------------------------------------------------------------------

    \37\ See 40 CFR 1501.2(d) (non-Federal entities plan activities 
prior to Federal involvement that trigger NEPA requirements).
    \38\ 40 CFR 1507.3(b)(1). All agencies are required to adopt 
procedures that supplement the CEQ Regulations and provide NEPA 
implementing guidance that both provides agency personnel with 
additional, more specific direction for implementing the procedural 
provisions of NEPA and informs the public and State and local 
officials of how the CEQ Regulations will be implemented in agency 
decisionmaking. Agency procedures should therefore provide Federal 
personnel with the direction they need to implement NEPA on a day-
to-day basis. The procedures must also provide a clear and 
uncomplicated picture of what those outside the Federal government 
may do to become involved in the environmental review process under 
NEPA. See CEQ, ``Agency Implementing Procedures Under CEQ's NEPA 
Regulations'' (Jan. 19, 1979), available at ceq.hss.doe.gov/nepa/regs/exec11979.html. Some examples of agency NEPA implementing 
procedures are the Department of the Interior, ``Department Manual: 
Managing the NEPA Process--National Park Service'' (May 27, 2004), 
available at http://206.131.241.18/app_dm/act_getfiles.cfm?relnum=3622 and the Department of the Interior, 
``Departmental Manual: Managing the NEPA Process--Bureau of Land 
Management'' (May 8, 2008), available at http://elips.doi.gov/app_dm/act_getfiles.cfm?relnum=3799.
    \39\ 40 CFR 1501.2(d)(1).
---------------------------------------------------------------------------

    Advanced planning prior to Federal involvement in an action must 
also ensure that the Federal agency is able to initiate early 
consultation with appropriate Tribes, States, local agencies, and 
interested private persons and organizations when Federal involvement 
is reasonably foreseeable.\40\ For actions initiated at the request of 
a non-Federal entity, Federal agencies should begin the NEPA process 
for preparing their EA or EIS as early as possible but no later than 
upon receipt of a complete application.\41\ Federal agencies should, 
whenever possible, guide applicants to gather and develop the 
appropriate level of information and analyses in advance of submitting 
an application or other request for Federal agency action. For example, 
several agencies require an applicant to prepare and submit an 
environmental report to help prepare the NEPA analyses and 
documentation and facilitate the lead agency's independent 
environmental review of the proposal.
---------------------------------------------------------------------------

    \40\ 40 CFR 1501.2(d)(2). Agencies should be cognizant of their 
obligations under current Executive Orders 13175 (Consultation and 
Coordination with Indian Tribal Governments, Nov. 6, 2000) and 
112898 (Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations, Feb 11, 1994), available at 
ceq.hss.doe.gov/laws_and_executive_orders/executive_orders.html.
    \41\ 40 CFR 1501.2(d)(3).
---------------------------------------------------------------------------

3. Scoping
    To effectuate integrated decision making, avoid duplication, and 
focus the NEPA review, the CEQ Regulations provide for ``scoping.'' 
\42\ In scoping, the lead agency determines the issues that the EA or 
EIS will address and identifies the significant impacts related to the 
proposed action that will be considered in the analysis.\43\ To 
increase efficiency, the lead agency can solicit cooperation at the 
earliest possible time from other agencies that have jurisdiction by 
law or special expertise on any environmental issue that should be 
considered. Cooperating agencies with jurisdiction by law or special 
expertise can work with the lead agency to ensure that, whenever 
possible, one NEPA review process informs all the decisions needed to 
determine whether and, if so, how a proposed action will proceed.\44\
---------------------------------------------------------------------------

    \42\ See 40 CFR 1501.7 (``There shall be an early and open 
process for determining the scope of issues to be addressed and for 
identifying the significant issues related to a proposed action. 
This process shall be termed scoping.'').
    \43\ 40 CFR 1500.4(b), (g) and 1501.7.
    \44\ See 40 CFR 1501.6, 1508.5 (responsibilities of the lead 
agency include the requirement to request the participation of any 
other Federal agency which has jurisdiction by law). CEQ has 
released previous guidance on engaging other agencies with 
jurisdiction over permits and other approvals required for a 
proposal to proceed. CEQ, ``Cooperating Agencies in Implementing the 
Procedural Requirements of the National Environmental Policy Act'' 
(Jan. 30, 2002), available at ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html; CEQ, ``Forty Most Asked 
Questions Concerning CEQ's National Environmental Policy Act 
Regulations'' (Mar. 16, 1981), available at ceq.hss.doe.gov/nepa/regs/40/11-19.HTM#14 (Question and Answer 14).
---------------------------------------------------------------------------

    The CEQ Regulations explicitly address the role of scoping in 
preparation of an EIS. Agencies can also choose to take advantage of 
scoping whenever preparing an EA. Scoping can be particularly useful 
when an EA deals with uncertainty or controversy regarding potential 
conflicts over the use of resources or the environmental effects of the 
proposed action, or where mitigation measures are likely to play a 
large role in determining whether the impacts will be reduced to a 
level where a Finding of No Significant Impact can be made. A lead 
agency preparing an EA may use scoping to identify and eliminate from 
detailed study the issues that are not significant or that have been 
covered by prior environmental review.\45\ The scoping process provides 
a transparent way to identify significant environmental issues and to 
deemphasize insignificant issues,\46\ thereby focusing the analysis on 
the most pertinent issues and impacts.\47\ We recommend that agencies 
review their NEPA implementing procedures, as well

[[Page 14478]]

as their NEPA practices, to ensure they have the option of scoping for 
EAs.
---------------------------------------------------------------------------

    \45\ 40 CFR 1501.7(a)(3).
    \46\ 40 CFR 1500.4(g).
    \47\ See generally 40 CFR 1501.4(b) (agencies are to involve the 
public in the preparation of EAs; the manner in which they do so is 
left to the agency).
---------------------------------------------------------------------------

    The scoping process can be particularly helpful in identifying 
opportunities to coordinate reviews and related surveys and studies 
required by other laws or by executive orders. Scoping can also be used 
to begin inter- and intra-governmental coordination if it is not 
already ongoing. To accomplish these goals, the lead agency preparing 
an EA or an EIS can choose to invite the participation of affected 
Federal, State, and local agencies, any affected Indian tribe, the 
proponent of the action, and ``other interested persons (including 
those who might not be in accord with the action on environmental 
grounds).'' \48\ In addition to facilitating coordination and the 
development of required environmental reviews, scoping will help to 
identify the universe of matters that need to be addressed with 
particular care and flag issues for thorough consideration, thereby 
defusing potential conflict that, absent early attention, could arise 
later and potentially delay the timely completion of the relevant NEPA 
review and agency decision.\49\
---------------------------------------------------------------------------

    \48\ 40 CFR 1501.7(a)(1), 1501.4(b), 1506.6. Establishing 
cooperating agency status is discussed in greater detail in a CEQ 
memorandum addressed to the heads of Federal agencies, entitled 
``Cooperating Agencies in Implementing the Procedural Requirements 
of the National Environmental Policy Act.'' CEQ, ``Cooperating 
Agencies in Implementing the Procedural Requirements of the National 
Environmental Policy Act'' (Jan. 30, 2002), available at 
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
    \49\ In cases where a Federal agency uses scoping for an EA and 
subsequently determines it is necessary to conduct an EIS, the 
agency should refer to the guidance previously published by the CEQ. 
See CEQ, ``Forty Most Asked Questions Concerning CEQ's National 
Environmental Policy Act Regulations'' (Mar. 16, 1981), available at 
ceq.hss.doe.gov/nepa/regs/40/30-40.HTM#13 (Question 13 and the 
following answer state that scoping done before the assessment, and 
in aid of its preparation, cannot substitute for the normal scoping 
process after publication of the notice of intent, unless the 
earlier public notice stated clearly that this possibility was under 
consideration, and the notice of intent expressly provides that 
written comments on the scope of alternatives and impacts will still 
be considered).
---------------------------------------------------------------------------

    In sum, the scoping process provides an early opportunity to plan 
collaboration with other governments,\50\ assign responsibilities,\51\ 
and develop the planning and decisionmaking schedule.\52\ It also 
affords lead agencies the option of setting page limits for 
environmental documents and setting time limits for the steps in the 
NEPA process.\53\ Agencies may choose to use scoping whenever any of 
these techniques can provide for the more effective and efficient 
preparation of an EA.
---------------------------------------------------------------------------

    \50\ 40 CFR 1501.6, 1508.5. CEQ has published guidance 
encouraging lead agencies to establish a formal cooperating agency 
relationship with other Federal agencies as well as State, Tribal, 
and local governmental entities. CEQ, ``Cooperating Agencies in 
Implementing the Procedural Requirements of the National 
Environmental Policy Act'' (Jan. 30, 2002), available at 
ceq.hss.doe.gov/nepa/regs/cooperating/cooperatingagenciesmemorandum.html.
    \51\ See, e.g., 40 CFR 1501.7(a)(4) (a lead agency may allocate 
assignments for EIS preparation and analysis among cooperating 
agencies during scoping).
    \52\ 40 CFR 1501.7(a)(7).
    \53\ 40 CFR 1501.7(b)(1)-(2), 1501.8.
---------------------------------------------------------------------------

4. Inter-Governmental Coordination (State, Local, or Tribal 
Environmental Reviews)
    CEQ encourages Federal agencies to collaborate with Tribal, State, 
and local governments to the fullest extent possible to reduce 
duplication, unless the agencies are specifically barred from doing so 
by some other law.\54\ The CEQ Regulations explicitly provide for 
agencies to conduct joint planning processes, joint environmental 
research and studies, joint public hearings (except where otherwise 
precluded by statute), and joint environmental assessments.\55\ Federal 
agencies should explore every reasonable opportunity to integrate the 
requirements of NEPA with the external planning and environmental 
reviews required on the Federal as well as the State, Tribal, and local 
levels of government so that those reviews can run concurrently rather 
than consecutively.\56\
---------------------------------------------------------------------------

    \54\ 40 CFR 1506.2(b) (calling for collaboration ``to the 
fullest extent possible'').
    \55\ 40 CFR 1506.2(b); see also 40 CFR 1500.4(n) (encouraging 
Federal agencies to eliminate duplication with State and local 
procedures through joint preparation of documents).
    \56\ 40 CFR 1500.2(c). This point is reiterated throughout the 
CEQ Regulations.
---------------------------------------------------------------------------

    Where State law or local ordinances contain environmental impact 
analysis and documentation requirements in addition to, but not in 
conflict with, those in NEPA, the CEQ Regulations provide authority for 
producing joint EISs.\57\ In such cases, Federal agencies shall 
cooperate with the State, Tribal, and local governments to integrate 
environmental impact analysis and documentation requirements so that 
one document will suffice for complying with as many applicable 
environmental laws and requirements as practicable. Agencies should 
adhere to these same principles when preparing an EA. Federal agencies 
should seek efficiencies and avoid delay by attempting to meet 
applicable non-Federal NEPA-like requirements in conjunction with 
either an EA or an EIS wherever possible.\58\
---------------------------------------------------------------------------

    \57\ 40 CFR 1506.2(c).
    \58\ Although joint processes usually lead to greater efficiency 
and better decisionmaking, a joint process may become unwieldy and 
the result is that, for some projects, combining a State and Federal 
process is not practical.
---------------------------------------------------------------------------

    The CEQ Regulations also require that a Federal agency preparing an 
EIS better integrate the EIS into non-Federal planning processes by 
discussing and explaining any inconsistency of a proposed Federal 
action with any approved State or local plans and laws.\59\ When 
preparing an EA or EIS, if an inconsistency with any approved Tribal, 
State, or local plan or law exists, the Federal agency should describe 
the extent to which it will reconcile its proposed action with the non-
Federal plan or law.\60\
---------------------------------------------------------------------------

    \59\ 40 CFR 1506.2(d).
    \60\ 40 CFR 1506.2(d).
---------------------------------------------------------------------------

5. Coordinating Reviews and Documents Under Other Applicable Laws
    Agencies must integrate, to the fullest extent possible, their 
draft EIS with environmental impact analyses and related surveys and 
studies required by other statutes or Executive Orders.\61\ Coordinated 
and concurrent environmental reviews are appropriate whenever other 
analyses, surveys, and studies will consider the same issues and 
information as a NEPA analysis. Such coordination should be considered 
when preparing an EA as well as when preparing an EIS. Techniques 
available to agencies when coordinating a combined or a concurrent 
process include combining the scoping, requests for public comment, and 
preparation and display of responses to public comments.
---------------------------------------------------------------------------

    \61\ 40 CFR 1502.25(a). Examples provided in the Regulation are: 
The Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.); the 
National Historic Preservation Act (16 U.S.C. 470 et seq.); and the 
Endangered Species Act (16 U.S.C. 1531 et seq.).
---------------------------------------------------------------------------

    The goal should be to conduct concurrent rather than sequential 
processes whenever appropriate. In situations where one aspect of a 
project is within the particular expertise or jurisdiction of another 
agency an agency should consider whether adoption or incorporation by 
reference of materials prepared by the other agency would be more 
efficient.
    A coordinated or concurrent process may provide a better basis for 
informed decision making, or at least achieve the same result as 
separate or consecutive processes more quickly and with less potential 
for unnecessary duplication of effort. In addition to integrating the 
reviews and analyses, the CEQ Regulations allow an environmental 
document that complies with NEPA to

[[Page 14479]]

be combined with a subsequent agency document to reduce duplication and 
paperwork.\62\
---------------------------------------------------------------------------

    \62\ 40 CFR 1506.4, 1500.4(k), 1500.4(n).
---------------------------------------------------------------------------

6. Adoption
    The adoption of one Federal agency's EIS, or a portion of that EIS, 
by another Federal agency is an efficiency that the CEQ Regulations 
provide.\63\ An agency preparing an EA should similarly consider 
adopting another agency's EA or EIS when the EA or EIS, or a portion 
thereof, addresses the proposed action and meets the standards for an 
adequate analysis under NEPA, the CEQ's Regulations, and the adopting 
agency's NEPA implementing procedures.
---------------------------------------------------------------------------

    \63\ 40 CFR 1506.3.
---------------------------------------------------------------------------

    The CEQ Regulations require agencies to involve agencies, 
applicants, and the public when preparing an EA; however, they do not 
require agencies to do so by preparing a draft or final EA for public 
review or comment.\64\ If an agency's implementing NEPA procedures 
establish requirements for public review and comment when preparing an 
EA, then the agency must provide a similar process when it adopts 
another agency's EA, but may use the same efficiencies that are 
available when adopting another agency's EIS.
---------------------------------------------------------------------------

    \64\ See generally 40 CFR 1501.4(b), 1506.6 (both regulations 
direct agencies to involve the public in the preparation of EAs; 
however, the manner in which they do so is left to the agency).
---------------------------------------------------------------------------

    If the actions covered by the original EIS and the proposed action 
are substantially the same, the agency adopting the EIS is not required 
to recirculate the EIS as a draft for public review and comment. The 
same is true for the adoption of another agency's EA when the original 
and proposed actions are substantially the same. In addition, in cases 
where the adopting agency is also a cooperating agency in the 
preparation of an EIS, it may adopt the lead agency's EIS without 
recirculating the EIS as a draft or as a final EIS when, after an 
independent review, it concludes that the lead agency has adequately 
addressed the adopting agency's comments and suggestions.\65\ 
Similarly, when the adopting agency was a cooperating agency in the 
preparation of an EA, it may adopt the EA without recirculating the EA.
---------------------------------------------------------------------------

    \65\ 40 CFR 1506.3(c).
---------------------------------------------------------------------------

7. Incorporation by Reference \66\
---------------------------------------------------------------------------

    \66\ This guidance does not address tiering. Further guidance 
will be developed to address the use of broad, programmatic, 
analyses to focus future reviews and the subsequent, tiered, review 
of site- or project- specific proposed actions.
---------------------------------------------------------------------------

    Incorporation by reference is another method that provides 
efficiency and timesaving when preparing either an EA or an EIS. The 
CEQ Regulations direct agencies to incorporate by reference material 
into an EIS to reduce the size of the EIS and avoid duplicative 
effort.\67\ An agency must provide a citation that clearly identifies 
the incorporated material in an EIS and briefly describe the 
content.\68\ The brief description should identify the referenced 
materials and the entity (Federal or non-Federal) that prepared the 
materials, inform the reader of the purpose and value of those 
materials (e.g., explain how the information or analyses are relevant 
to the issues associated with the proposal under review), and synopsize 
the basis provided in those materials that support any conclusions 
being incorporated. An agency may not incorporate any material by 
reference in an EIS unless the material is reasonably available for 
inspection by potentially interested persons within the time allowed 
for comment.\69\ There are many techniques available to make the 
referenced material readily available such as: Placing the relevant 
materials in an appendix; providing a hyperlink that provides Internet 
access to the materials; and placing materials in local libraries or 
facilities accessible to the public. Agencies can, consistent with NEPA 
and the CEQ Regulations, incorporate by reference analyses and 
information from existing documents into an EA provided the material 
has been appropriately cited and described, and the materials are 
reasonably available for review by interested parties.
---------------------------------------------------------------------------

    \67\ 40 CFR 1502.21.
    \68\ 40 CFR 1502.21.
    \69\ 40 CFR 1502.21 (material based on proprietary data which is 
itself not available for review and comment cannot be incorporated 
by reference).
---------------------------------------------------------------------------

8. Expediting Responses to Comments
    Agencies should provide a reasonable and proportionate response to 
comments on a draft EIS by focusing on the environmental issues and 
information conveyed by the comments. When preparing a final EIS, if 
the draft EIS complies with NEPA, CEQ regulations, and agency 
implementing procedures, the agency may use the draft EIS as the final 
EIS under certain conditions. If changes in response to comments are 
minor and are limited to factual corrections and/or explanations of why 
the comments do not warrant further agency response, agencies may write 
them on errata sheets and attach them to the statement instead of 
rewriting the draft statement.\70\ In such cases, the agency must 
circulate and make available for public review as the final EIS only 
the comments, the responses and the changes.\71\ The comments, 
responses, and changes, as well as the draft document and a new cover 
sheet need to be filed to make the EIS final, under those 
circumstances.\72\
---------------------------------------------------------------------------

    \70\ 40 CFR 1503.4(c), 1500.4(m).
    \71\ 40 CFR 1503.4(c).
    \72\ 40 CFR 1503.4(c).
---------------------------------------------------------------------------

    Similarly, if an agency issues an EA for comment and the changes in 
response to comments are minor and limited to factual corrections and/
or explanations of why the comments do not warrant further agency 
response, then the agency may prepare a similar cover and errata sheet 
and use its draft EA as the final EA. When circulating draft EAs or 
EISs for public review and comment, we recommend agencies facilitate 
public review and comment by also publishing the EISs and EAs, and 
subsequently the comments received, on agency Web sites.
9. Clear Time Lines for NEPA Reviews
    Establishing appropriate and predictable time limits promotes the 
efficiency of the NEPA process.\73\ The CEQ Regulations recommend that 
agencies designate a person (such as a project manager or a person in 
the agency's office with NEPA responsibilities) to lead and shepherd 
the NEPA review to expedite the process.\74\ The CEQ Regulations do not 
prescribe universal time limits for the entire NEPA process; instead 
they set certain minimum time limits for the various portions of the 
NEPA process.\75\ The CEQ Regulations do encourage Federal agencies to 
set appropriate time limits for individual actions, however, and 
provide a list of factors to consider in establishing timelines.\76\ 
Those factors include: The potential for environmental harm; the size 
of the proposed action; other time limits imposed on the action by 
other statutes, regulations, or Executive Orders; the degree of public 
need for the proposed action and the consequences of delay; and the 
need for a reasonable opportunity for public review.
---------------------------------------------------------------------------

    \73\ 40 CFR 1500.5(e).
    \74\ 40 CFR 1501.8(b)(3).
    \75\ See 40 CFR 1506.10 (setting 90 day time period between EPA 
publication of the notice of availability of a draft EIS and the 
Record of Decision, 30 day time period between EPA publication of 
the notice of availability of a final EIS and the Record of 
Decision, and 45 days for comment on a draft EIS).
    \76\ CEQ encourages Federal agencies to set time limits 
consistent with the time intervals required by Sec.  1506.10. 40 CFR 
1501.8.
---------------------------------------------------------------------------

    The CEQ Regulations refer to the EIS process when describing the 
``constituent parts of the NEPA process'' to which time limits may 
apply, require agencies to set time limits at the request

[[Page 14480]]

of an applicant, and allow agencies to set time limits at the request 
of other interested parties.\77\ It is entirely consistent with the 
purposes and goals of NEPA and with the CEQ Regulations for agencies to 
consider the same factors and determine appropriate time limits for the 
various phases of the EA process when requested by applicants, Tribes, 
States, local agencies, or members of the public.
---------------------------------------------------------------------------

    \77\ 40 CFR 1501.8(b), (c).
---------------------------------------------------------------------------

Conclusion
    This guidance highlights for agencies preparing either an EA or an 
EIS the ability to employ all the methods provided in the CEQ 
regulations to prepare concise and timely NEPA reviews. Using methods 
such as integrating planning and environmental reviews and permitting, 
coordinating multi-agency or multi-governmental reviews and approvals, 
and setting schedules for completing the environmental review will 
assist agencies in preparing efficient and timely EAs and EISs 
consistent with legal precedent and agency NEPA experience and 
practice.

Nancy H. Sutley,
Chair, Council on Environmental Quality.
[FR Doc. 2012-5812 Filed 3-9-12; 8:45 am]
BILLING CODE 3225-F2-P
```