The National Environmental Policy Act (NEPA) was signed into law in 1970 to promote efforts that prevent or eliminate damage to the environment [42 U.S. Code § 4321- 4347]. NEPA applies to all major federal actions, including awarding funds to applicants for federal assistance. NEPA requires that prior to funding, authorizing, or implementing an action, federal agencies consider the effects that their proposed action may have on the environment and the related social and economic effects. NEPA must be completed as early as possible in any given decision-making process.
NEPA is typically referred to as an “umbrella” statute because it encourages agencies to incorporate other environmental and historic preservation requirements into one analysis for a streamlined decision-making process.
What are the Types of NEPA Analysis?
Categorical Exclusions (CATEXs)
CATEXs are a category of actions which do not individually or cumulatively have a significant effect on the human environment. CATEX determinations are a type of NEPA compliance, not an exemption from NEPA. CATEX lists are developed by each federal agency through their NEPA implementing procedures and must be formally approved by the White House Council on Environmental Quality (CEQ). BJA has its own list of approved CATEXs.
If extraordinary circumstances exist and cannot be mitigated, a CATEX will not be issued. The following factors are considered when determining whether extraordinary circumstances exist, such that an activity may not be categorically excluded from further NEPA review:
- Potential for noise impacts to exceed allowable noise standards as established by federal, state, and local regulations;
- Potential for hazardous or solid waste generation to exceed management capabilities on site or otherwise threaten violation of requirements to control hazardous or toxic substances;
- Potential for air emissions that could contribute to nonattainment status under the Clean Air Act or otherwise fail to conform to an applicable State Implementation Plan;
- Whether the action is expected to have permanent or long-term impacts, such as placement of a structure that will be kept on site for long-term use;
- Whether the action is of a much greater scope or size than normally experienced for this particular action;
- Proximity to environmentally sensitive areas or resources, such as federally listed threatened or endangered species or designated critical habitat, floodplains, wetlands, religious or cultural sites, or historic properties;
- Proximity to sensitive or indigenous populations;
- Public controversy surrounding the activity;
- Potential cumulative impacts created by the activity;
- Potential to violate statutory, regulatory, or permit requirements for environmental, safety, and health at the federal, state, tribal, or local level;
- Involves the development or use of new technologies with unproven impacts;
- Involves uncertain risks or impacts;
- Establishes a precedent for future actions that are likely to have significant impacts;
- Whether other actions with potentially significant impacts are connected or otherwise dependent on the activity; and
- Whether the activity is contrary to or otherwise unaligned with existing local or state plans or zoning requirements.
Environmental Assessments (EAs)
An EA is a brief and concise analysis completed by the agency to determine if an activity will have a significant impact on the environment. If after analysis and public comment, no significant impacts are found or mitigation can avoid or minimize the impacts below the level of significance, BJA can issue a Finding Of No Significant Impact (FONSI), which allows the project to begin. This process helps to ensure that reasonable alternatives and mitigation measures have been considered and implemented where possible. However, if significant impacts are likely, BJA will issue a Notice of Intent (NOI) to prepare an Environmental Impact Statement.
Environmental Impact Statements (EISs)
An EIS is a more extensive review that analyzes and documents the impact the action and reasonable alternatives will have on the environment. Following the analysis and a mandatory 45-day public comment period, a Record of Decision (ROD) is prepared which outlines the necessary actions that must be taken by the agency and the decision as to whether or not to proceed with the proposal or one of the alternatives considered in the analysis.
NEPA Information for Applicants
NEPA recognizes that the range of federal actions that could cause environmental harm is broad, and so it applies to the majority of federal actions including policies, plans, and projects. NEPA also applies to BJA decisions on whether to fund projects, and therefore information submitted with the application will be used to start the NEPA review. Before funding can be released, NEPA review will need to be completed. Applicants are required to support BJA during the NEPA process by providing information about the proposed action, activity area, and resources that may be impacted by the proposed activity.
BJA will comply with NEPA by evaluating the environmental impacts of the action in one of three levels of analysis: categorical exclusion, environmental assessment, or environmental impact statement. After review of your project application, BJA will determine which type of NEPA analysis is appropriate for the activity.
Review your award package and especially any specific instructions for NEPA compliance.
- If BJA determines that a CATEX can be applied to your project, you may have to complete documentation in order to determine whether any extraordinary circumstances exist. If the PEA applies to your project, more information on environmental resources may be needed. BJA will let you know what is required.
- If a CATEX or the existing PEA does not apply, an EA will be required for your project. BJA will notify you of this requirement. Depending on your grant program, you may be provided with technical assistance to develop the EA or given an EA template to help develop your own EA.
- If technical assistance providers are developing the EA for your project, you will need to supply them with additional information or clarification about your project as requested.
- If technical assistance providers are not developing the EA for your project –
- BJA will provide an EA template that is intended to aid you in the process of developing the EA document.
- BJA technical assistance providers may also perform a quality review of the EA and work with you to publish the draft EA for public comment.
- When the draft EA is approved by BJA, it will be made publicly available for a minimum of a 30-day public comment period. If any public comments are submitted, respond to comments and submit the Final EA to the BJA NEPA Coordinator.
- BJA will review the final EA and, if warranted, issue a FONSI.
- If BJA determines that there will be a significant impact, an EIS will be needed. BJA will work with you to develop an EIS.
- If your project changes, subsequent to completion of NEPA compliance but prior to implementation, contact BJA.
Frequently Asked Questions
Why does NEPA apply to my project?
NEPA requires that prior to funding, authorizing, or implementing an action, federal agencies must consider the effects the proposed action may have on the environment, and the related social and economic effects. Under this legislation, agencies are required to address each project, taking into account all consequences as well as the effect of cumulative impacts on the environment. Because BJA must make a decision as to whether to fund your project, NEPA applies.
Who makes the final decision on NEPA Compliance for my project?
NEPA is a federal law that applies to decisions BJA makes about whether or not to fund a project. Therefore, the BJA NEPA Coordinator makes the final decision on the appropriate level of NEPA compliance for your project and the determination of whether compliance with the requirements of NEPA has been achieved.
What activities typically require NEPA documentation?
If a project involves any of the circumstances listed below, it is likely that NEPA documentation will be required:
- Building renovation and/or expansion activities
- New construction (such as standard construction, modular/prefabricated structures, new paved areas, and fences)
- Use of chemicals (such as for testing, evaluation, research, or training purposes)
- Use of firearms (such as for testing, evaluation, research, or training purposes)
- Miscellaneous outdoor/exterior activities (such as firing range pads and installing outdoor security cameras)
- Purchase of non-standard equipment that presents the potential for impacts or requires permitting (such as incinerators)
- Exhumation activities
- Drug disposal
What activities typically do not "trigger" the need for NEPA documentation?
- Indoor classroom training activities that do not involve the use of chemicals or firearms
- Purchase of standard equipment (such as office furniture and supplies, lab supplies, and law enforcement equipment)
- Administrative activities/services (such as counseling, mentoring, vocational rehab services, salaries, fringe benefits, travel, technical assistance, and statistical analysis)
Note that even if documentation is not typically required, the activities are still subject to NEPA and only BJA can make the determination as to what level of compliance and documentation is needed.
What happens if NEPA compliance is completed and the project changes?
If a project has completed NEPA but the scope of the project changes, a supplemental NEPA analysis may be needed. When this occurs, you must notify the BJA NEPA Coordinator and provide information on how the project scope has changed. The BJA NEPA Coordinator will determine if a supplemental NEPA analysis is needed. A supplemental NEPA analysis updates the NEPA analysis that was completed previously and eliminates the need for an entirely new NEPA analysis to be completed.
Orbin Terry, NEPA Coordinator
810 Seventh Street, NW
Washington, DC 20531