Negotiating the NEPA Maze: It Really Is Rocket Science

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Negotiating the NEPA Maze It Really Is Rocket
Science
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Contents

1. NEPA Process Overview Who, What, Where, When,
   and Why?
2. NEPA Documentation An Interactive Look
3. Helpful Resources

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NEPA Process Overview

• Who, What, Where, When, and Why?

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What is NEPA?

• National Environmental Policy Act (NEPA) is our
  basic national charter for protection of the
  environment
• Two basic objectives
• Provide full disclosure and consider consequences
  of proposed Federal actions
• Ensure that environmental information is
  available to Agency decision makers and the
  public before decisions are made

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What Does NEPA Require?

• Federal Agencies must
• Consider environmental values in planning before
  action is taken
• Consider alternatives to proposed action
• Incorporate environmental considerations with
  technical and economic factors into decisions
• Make environmental information available to
  public
• Prepare thorough and clear statements to assess
  environmental impacts

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Why Does NEPA Apply to Licensing Actions?

• Licensing launches, reentries, and launch and
  reentry sites is considered a Federal action and
  is therefore subject to the requirements of NEPA
• AST is responsible for analyzing environmental
  impacts associated with licensed launches
• ASTs responsibilities under NEPA are outlined
  in FAA Order 1050.1D

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How Does NEPA Affect Licensing Process?

• Environmental determination, i.e., Finding of No
  Significant Impact (FONSI) or Record of
  Decision (ROD) must be made before license can
  be issued
• Changes to operations that impact the
  environment must be evaluated in separate
  documentation
• NEPA process can be used to document compliance
  with other statutory and international
  requirements
• No action can be taken (e.g., start
  construction) until ROD or FONSI is issued

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Who Prepares NEPA Documentation?

• Federal agency undertaking program, project,
  plan, regulation, or licensing/ permitting
  activity is responsible
• Agencies may use contractors to prepare
  environmental documentation however, document
  is submitted by the Agency to the Environmental
  Protection Agency (EPA)

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What Types of NEPA Documentation Exist?

• Categorical Exclusion - action that normally
  does not, individually or cumulatively, have
  significant impact on quality of the human
  environment
• Environmental Assessment (EA) - analysis of
  proposed action and reasonable alternatives
  (including no action) that could result in
  preparation of Environmental Impact Statement
  (EIS) or FONSI
• FONSI - outcome of EA that documents no
  significant impact requiring the preparation of
  an EIS

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What Types of NEPA Documentation Exist
(continued)?

• EIS - detailed analysis of environmental
  consequences of proposed action and reasonable
  alternatives (including no action), cumulative
  impacts, and mitigation actions
• ROD - concise summary of EIS, alternative
  selected and reasons for selection

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What are ASTs Responsibilities under NEPA?

• Assist license applicant in identifying
  potentially significant impacts
• Review environmental information submitted by
  applicant
• Prepare NEPA documentation, conduct scoping,
  coordination, and public review
• Respond to public comments received during the
  comment period
• Issue environmental determination

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What Steps Should Applicant Take?

• Early in the process the applicant should
• Consult AST on level and scope of environmental
  documentation needed
• Conduct preliminary studies to determine impact
  of proposed action and identify reasonable
  alternatives
• Submit applications for all permits or approvals
• Notify AST of other Federal, Tribal, regional,
  state or local requirements that may apply
• Notify AST of private citizens and groups
  interested in proposed action
• Contact ASTs environmental specialists
• for guidance

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When Should NEPA be Initiated?

• Early in planning process - before decisions are
  made and actions are taken
• Prevents prematurely limiting choice of
  reasonable alternatives
• Early application of NEPA may prevent
  subsequent schedule slips
• Applicant should contact AST early in process to
  initiate NEPA review

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NEPA Documentation

• An Interactive Look

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Proposed Action
No Further Documentation2
Yes
Categorical Exclusion1
Environmental Assessment
Known Significant Impact
No Significant Impact3
Finding of No Significant Impact
Yes
Proceed with Project
Notice of Intent
1 If no extraordinary circumstances 2
FAA may document categorical exclusions 3 Or
mitigated below level of significance 4
Publication of FEIS in Federal Register for
minimum 30 day public review
Scoping Process
NEPA Process
Draft Environmental Impact Statement
EPAs Notice of Availability
Public Review (45 days minimum)
Public Hearing
Final Environmental Impact Statement
EPAs Notice of Availability4
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Minimum 30 day waiting period
Record of Decision
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Other NEPA Topics of Interest
Tiering
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Proposed Action and Alternatives

• Describes range of alternatives including
  proposed action and no action
• Reasonable alternatives may include but are not
  limited to
• Launch facility locations,
• Configuration of the launch facility,
• Extent of launch facility operations,
• Types of launch vehicles, and
• Range of launch trajectories

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Developing Proposed Action and Alternatives

• To assist applicants in identifying proposed
  action and alternatives, consider the following
  questions
• Where is your preferred site?
• Have you identified alternative sites?
• What is your proposed launch manifest?
• Have you considered using a different number of
  flights?
• Have you identified a preferred configuration for
  the site?
• Have you considered any alternative site
  configurations?

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Developing Proposed Action and Alternatives
(continued)

• Have you identified a preferred family or class
  of vehicle(s)?
• Have you identified an alternative family or
  class of vehicle(s)?
• Have you identified a preferred trajectory for
  launch(es)?
• Have you identified an alternative trajectory for
  launch(es)?
• Answering these questions helps define the
  proposed action

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Categorical Exclusion

• Written for actions which in the agencys
  experience do not individually or cumulatively
  have a significant impact on the environment and
  do not require preparation of an EA or EIS
• Actions that are routine
• Normally excluded actions may require more
  extensive review if potential exists for public
  controversy
• ASTs categorical exclusions are listed in FAA
  Order 1050.1D

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Environmental Assessment (EA)

• Defined as concise document that
• Provides analysis to determine if EIS is
  necessary
• Serves as the Agencys compliance with NEPA when
  EIS is not necessary
• Facilitates preparation of EIS when necessary
• Addresses environmental effects that are not
  anticipated to cause significant impacts when no
  categorical exclusion exists
• Evaluates actions that have potential effects
  that can be mitigated to less than significant
  levels

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EA Continued

• Less detailed than an EIS but must address
  similar elements including
• Description of proposed action
• Purpose and need for action
• Alternatives including no action
• Description of affected environment
• Consequences of proposed action and alternatives
• Cumulative and long-term environmental effects
• Degree of controversy
• Mitigation measures (if appropriate)

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EA Continued

• Determines whether there will be significant
  impacts from the proposed action
• EA process ends in Finding of No Significant
  Impact (action may proceed) or preparation of
  EIS
• EA process generally takes 6-12 months, but
  depending on complexity can take much longer

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Finding of No Significant Impact (FONSI)

• Decision document which follows completion of
  an EA and states Agencys determination of no
  significant impact
• Subject to 30-day review and comment by public
  if proposed action is
• An issue of national concern
• Similar to actions which require an EIS
• An unprecedented action

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Notice of Intent (NOI)

• FAA publishes NOI after making decision to
  prepare EIS
• Initiates public scoping and EIS process
• Invites comments on scope of EIS
• Includes date, time, and location of any planned
  public scoping meetings
• Identifies lead agency and any cooperating
  agencies

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Lead Agency Responsibility

• Responsible for facts, opinions, and judgments
  upon which final environmental determination is
  based
• Performs independent review of information
  provided by applicant
• Approves contractor for EIS process and develops
  third party contracting mechanism see 40 CFR
  1506.5(c) and FAA Order 1050.1D paragraph 52

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Cooperating Agency Responsibility

• Participate in the NEPA process at the request
  of the lead agency
• Participate in the scoping process
• Assume responsibility for preparing portions of
  NEPA analysis at the lead agencys request
• Provide staff and funding to participate in the
  NEPA process

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Scoping Process

• If an EIS is required, scoping is conducted to
• Solicit public opinion and opinions of other
  agencies
• Determine potentially significant impacts to be
  analyzed in detail
• Identify and eliminate from study non-significant
  issues
• Allocate assignments for preparing EIS among
  participating agencies
• Identify environmental review and consultation
  requirements
• Develop a schedule for preparing EIS

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Environmental Impact Statement (EIS)

• Prepared when a proposed action may result in
  significant impacts
• Should be analytical and concise with a level of
  analysis commensurate with the potential for
  impact
• EIS process generally takes 12-18 months but can
  take much longer if controversial issues or
  complex analysis are involved

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EIS Continued

• An EIS should contain
• Cover sheet
• Summary
• Table of contents
• Purpose of and need for action
• Alternatives including proposed action
• Affected environment
• Environmental consequences
• List of preparers
• List of agencies, organizations, and persons to
  whom copies of document are sent (Distribution
  List)
• Index
• Appendices

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Cover Sheet, Summary, Table of Contents

• Cover sheet summarizes proposed action, agency
  point of contact, abstract, and date by which
  comments must be received
• Summary summarizes EIS analysis stressing
  conclusions and areas of controversy
• Table of contents lists sections of document,
  figures, and tables

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Purpose of and Need for Action

• Outlines the purpose and need which FAA is
  addressing by proposing alternatives and
  proposed action
• Defines parameters for a reasonable range of
  alternatives
• Forms framework for remainder of document
  including evaluation of alternatives

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Alternatives Including Proposed Action

• Describes range of alternatives including
  proposed action and no action
• This section should
• Define the issues
• Inform the public
• Provide basis for choice among options,
• Explore and evaluate alternatives
• Discuss reasons why some alternatives were
  eliminated from further study

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Affected Environment

• Baseline description of proposed site and
  alternative sites
• Considers issues including
• Air quality - Water quality
• Land use - Noise
• Biological resources - Geology/soils
• Cultural resources - Health/safety
• Socioeconomic issues - Airspace
• Environmental justice

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Environmental Consequences

• Analyzes impacts resulting from development and
  operation of launch site and launch activities
• Addresses resources and issues discussed in the
  affected environment section
• Evaluates direct and indirect, cumulative, and
  beneficial impacts
• Mitigation measures must also be considered

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Mitigation Measures

• Means by which adverse project impacts can be
  diminished or eliminated
• Steps in mitigation planning
• Identify impacts and determine which can be
  eliminated or reduced
• Select mitigation measures based on consultation
  with agencies and affected parties
• Implement mitigation measures
• Monitor and report on effectiveness of measures

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List of Preparers and Distribution List

• List of Preparers list of names and
  qualifications of persons who were primarily
  responsible for preparing the EIS
• Distribution List list of persons or agencies
  to whom copies of the document were provided

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Index and Appendices

• Index Should have a level of detail sufficient
  to focus on topics of interest
• Appendix items may include
• Material prepared in connection with EIS
• Material to substantiate analysis in EIS
• Analysis relevant to facilitate decision making

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Draft EIS

• Circulate Draft EIS and provide copies to
  cooperating agencies and Federal, state, or
  local agencies authorized to enforce
  environmental standards
• Request comments from agencies
• Address, consider, and include or summarize
  comments in the Final EIS

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Notice of Availability (NOA)

• Draft and Final EISs must be filed with EPAs
  Office of Federal Activities
• EPA files NOAs in Federal Register weekly
• EPAs filing starts public review period for
  Draft EIS and waiting period for Final EIS
• No decision can be made until 90 days after
  publication of NOA for Draft EIS or until 30
  days after publication of NOA for Final EIS

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Public Review

• Comments are solicited from
• Federal agencies with jurisdiction
• Appropriate state and local agencies
• Potentially affected Indian tribes
• Any agency that requested copies of document
• Applicant
• Public
• Interested public organizations

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Public Hearing Procedures

• AST sponsors public meetings or hearings when
  appropriate or required by statute
• Criteria for meetings include
• Substantial environmental controversy over
  proposed action or interest in holding meeting
• Request for hearing by another agency with
  jurisdiction over action
• Hearing held no earlier than 15 days after
  draft is released

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Final EIS

• Must consider comments both individually and
  cumulatively
• Responses to comments raised during public
  review must be included in the Final EIS
• Comments may be received on the Final EIS

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Record of Decision (ROD)

• Public record of a decision indicating final
  approval of a proposed action
• Identifies all alternatives considered by
  Agency
• States whether means to minimize environmental
  harm were adopted

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What Happens Next?

• Following release of ROD, 30-day waiting/cooling
  off period starts before action can proceed
• Agency open to possible legal action
• Applicants for AST license must still meet other
  requirements to obtain license

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Supplemental NEPA Documentation

• Prepare supplements to draft or final EISs if
  substantive changes are made to the proposed
  action
• Prepare, approve, circulate, and file in the
  same manner as draft or final EISs but scoping
  is not required

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Tiering

• Agencies are encouraged to tier to eliminate
  repetitive discussions of issues
• After Programmatic or other broad EIS has been
  prepared subsequent EA or EIS only needs to
  summarize issues previously discussed

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Written Reevaluation

• AST exercises judgment to determine when this is
  appropriate
• May be appropriate when
• Proposed action conforms to plans or projects for
  which prior EISs or FONSIs have been filed
• Data and analyses in previous EISs or FONSIs are
  substantially valid
• All conditions and requirements of prior approval
  have been or will be met in the current action

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Environmental Monitoring

• FAA may require environmental monitoring as part
  of the license
• Monitoring may include pre- and post-launch
  observation for species of concern, surface
  water sampling, vegetation surveys, and other
  actions as appropriate

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Helpful Resources
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Guidelines Document

• Aids applicants in understanding FAAs policies
  and procedures
• Guidelines are intended to be used in
  conjunction with FAA Order 1050.1D, NEPA, and
  other environmental laws

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Programmatic EIS

• Programmatic EIS for Licensing Launches
• Addresses environmental impacts of licensing
  launches and two alternatives
• Three categories of impacts considered
• Atmospheric
• Noise
• Other environmental effects
• Considers possible mitigation measures

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Other Environmental Regulations

• Many environmental regulations and executive
  orders may apply to actions
• E.O. 12114 - Environmental Effects Abroad of
  Major Federal Actions
• Endangered Species Act
• Federal Coastal Zone Management Act
• Marine Mammal Protection Act
• Clean Air Act
• E.O. 11990 - Protection of Wetlands
• National Historic Preservation Act
• For a more extensive list refer to Appendix E of
  the Guidelines Document

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AST Staff

• For more information or to discuss a particular
  proposed project please contact
• Michon Washington [phone]Michon.Washingto
  n_at_FAA.gov
• Doug Graham(202) 267-8568Doug.Graham_at_FAA.gov
• Visit ASTs Website http//ast.faa.gov