Revised Council on Environmental Quality NEPA Regulations (40 CFR 1500-1508)

Focus on Categorical Exclusions

• 1970: E.O. 11514 directed CEQ to issue guidelines for preparing “statements on proposed federal actions affecting the environment”

• 1971: CEQ issued Guidelines for “Statements on Proposed Federal Actions Affecting the Environment”

• 1973: CEQ revised/re-named to Guidelines for “Preparation of Environmental Impact Statements”

Major Direction from the President’s Council on Environmental Quality Regarding NEPA Implementation

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• 1977: E.O. 11991 directed CEQ to issue regulations to implement procedural provisions of NEPA

• 1978: CEQ established new NEPA regulations at 40 CFR 1500-1508

• 1986: CEQ amended NEPA regulations to remove worst-case scenario

GAP• 2020: CEQ substantially revised NEPA

regulations for first time in 42 years

Major Direction from the President’s Council on Environmental Quality Regarding NEPA Implementation

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What did the 1978 NEPA regulations say about Categorical Exclusions?

• Use CEs to reduce paperwork (1500.4)• Use CEs to reduce delay (1500.5)• Agency NEPA procedures need to

define CE criteria and identify typical classes of action for CEs (1507.3)

• CE definition (1508.4)• CEs mentioned once under

Supplementary Information

What’s different about the 2020 NEPA regulations re: Categorical Exclusions?• 1978 definition @ §1508.4 :

“Categorical exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment… and for which, therefore, neither an environmental assessment nor an environmental impact statement is required... Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.• 2020 definition @ §1508.1(d):

Categorical exclusion means a category of actions that the agency has determined, in its agency NEPA procedures, normally do not have a significant effect on the human environment.

Continued - 2020 NEPA regulations re: Categorical Exclusions

• New §1501.4, Categorical Exclusions(a) …agencies shall identify in their agency NEPA procedures… categories of actions that normally do not have a significant effect on the human environment, and therefore do not require preparation of an environmental assessment or environmental impact statement.(b) If an agency determines that a categorical exclusion identified in its agency NEPA procedures covers a proposed action, the agency shall evaluate the action for extraordinary circumstances in which a normally excluded action may have a significant effect.

(1) If an extraordinary circumstance is present, the agency nevertheless may categorically exclude the proposed action if the agency determines that there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects.

Continued - 2020 NEPA regulations re: Categorical Exclusions

• New §1506.3, Adoption(d) Categorical exclusions. An agency may adopt another agency’s determination that a categorical exclusion applies to a proposed action if the action covered by the original categorical exclusion determination and the adopting agency’s proposed action are substantially the same. The agency shall document the adoption.

Continued - 2020 NEPA regulations re: Categorical Exclusions

• New §1507.3 language, Agency NEPA Procedures(f) Agency procedures may:

(5) Establish a process that allows the agency to use a categorical exclusion listed in another agency’s NEPA procedures after consulting with that agency to ensure the use of the categorical exclusion is appropriate. The process should ensure documentation of the consultation and identify to the public those categorical exclusions the agency may use for its proposed actions. Then, the agency may apply the categorical exclusion to its proposed actions.

Continued - 2020 NEPA regulations re: Categorical Exclusions

• New §1507.3 language, Agency NEPA Procedures

(e)(2)(ii) “…Agency NEPA procedures shall identify when documentation of a categorical exclusion determination is required.”

• Existing 23 CFR 771 language for FHWA (771.117(c)) and FTA (771.118(c))

(c) “The following actions meet the criteria for CEs in the CEQ regulations (40 CFR 1508.4) and paragraph (a) of this section and normally do not require any further NEPA approvals by…” FHWA/FTA

Conclusions?• There is still a LOT of uncertainty• Adoption could become a

stronger tool for CE projects• Regulatory language suggests

that the due diligence bar should be lowered for CEs

• A mitigated CE is possible

Comments?

Questions?

Other Points of View?