NEPA and Environmental Planning : Tools, Techniques, and Approaches for Practitioners - Chapter 3 docx

TABLE 3.1 ContinuedProvisions for Promoting Efficiency in Managing the NEPA Process Environmental Review and Consultation Requirements § 1502.25 a To the fullest extent possible agencies

Provisions

Critics have sometimes charged that the National Environmental Policy Act (NEPA) is an inefficient

process Inefficiency is not indigenous to NEPA To the contrary, the root causes of any inefficiency

lie principally with the approaches used and lack of, or failure to adopt, effective tools, techniques,

and approaches for implementing NEPA’s requirements

In drafting the NEPA regulations (Regulations), the Council on Environmental Quality

(CEQ) placed considerable emphasis on providing direction and methods for promoting efficiency

(see Chapter 2) Yet, experience clearly indicates that much of this direction often goes unheeded

In the zest to prepare bullet-proof documents, insufficient attention is often given to guidance

pertaining to efficiency

This chapter presents a systematic description of CEQ requirements, which provides direction

for efficiently implementing the NEPA process Of special interest is a streamlining procedure

(interim action provision) described toward the end of this chapter, which allows some actions to

proceed in advance of completing NEPA

3.1 MANAGING, ANALYZING, AND PREPARING NEPA DOCUMENTS

Regulatory direction for streamlining NEPA is categorized in the following three tables:

Table 3.1: efficiency in managing NEPA

Table 3.2: efficiency in performing the environmental analysis

Table 3.3: efficiency in preparing environmental assessments (EAs) and environmental impact statements (EISs)

The primary source of regulatory direction on promoting efficiency is contained in sections

§ 1500.4 (reducing paperwork) and § 1500.5 (reducing delay) Inspection of Table 3.1 indicates many

of these efficiency themes recur throughout the Regulations Two of the most notable efficiency

cita-tions are to

Implement procedures to make the NEPA process more useful to decisionmakers and the public; to

reduce paperwork and the accumulation of extraneous background data; and to emphasize real

environ-mental issues and alternatives Environenviron-mental impact statements shall be concise, clear, and to the point

and shall be supported by evidence that agencies have made the necessary analysis (§ 1500.2[b])

Integrate the requirements of NEPA with other planning and environmental review procedures required by law or agency practice so that all such procedures run concurrently rather than

consecu-tively (§ 1500.2[c])

One of the most effective tools for promoting efficiency is simply to exclude a proposed action

from the requirement to prepare an EIS by

categorically excluding the action, or issuing a finding of no significant impact (FONSI) for the action

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TABLE 3.1

Provisions for Promoting Efficiency in Managing the NEPA Process

Apply NEPA Early in the Process (§ 1501.2)

(b) Concurrent circulation and review

(d) Provide for actions by non-federal applications

(d) Earliest possible time (also see § 1501.6[b][1], § 1502.5)

Reducing Delay (§ 1500.5)

(a) Integrating NEPA into early planning (§ 1501.1, § 1501.2)

(b) Inter-agency cooperation (§ 1501.6)

(c) Swift resolution of agency disputes (§ 1501.5)

(d) Early scoping of real issues (§ 1501.7)

(e) Time limits (§ 1501.1[e], § 1501.7[b][2], § 1501.8)

(f ) Early preparation (§ 1502.5)

(h) Eliminating duplication with other agency review (§ 1506.3)

( j ) Accelerated procedures for legislation (§ 1506.8)

(k) Using categorical exclusions (§ 1508.4)

(l ) Using finding of no significant impact (§ 1508.13)

NEPA Policy (§ 1500.2)

(b) Make NEPA process more useful—reduce accumulation of extraneous background data

(c) Integrate NEPA with other environmental planning and review … so that all such procedures run concurrently rather than

consecutively

Purpose of NEPA (§ 1500.1[b], [c])

(b) Concentrate on … truly significant issues … rather than amassing needless detail

(c) Better decisions—not paperwork

Reducing Paperwork (§ 1500.4)

(g) Use scoping … to identify significant issues … deemphasize insignificant issues, narrowing the scope

(§ 1501.7)

( i ) Tiering (§ 1502.4[d], § 1502.20, § 1508.28)

(k) Integrating with other environmental review (§ 1502.25)

(n) Eliminating duplication with State and local procedures … adopting environmental documents … by other agencies

(§ 1506.3)

(p) Using categorical exclusions (§ 1508.4)

(q) Using finding of no significant impact (§ 1508.13)

Purpose of Agency Planning (§ 1501.1)

(a) Integrating NEPA into early planning

(b) Cooperative consultation

(c) Swift resolution of agency disputes

(e) Time limits

Cooperating Agencies (§ 1501.6)

(a) The lead agency shall: (1) request the participation of each cooperating agency in the NEPA process at the earliest

possible time; (2) use the environmental analysis and proposals of cooperating agencies … to the maximum extent

possible …

(b) Each cooperating agency shall: (1) participate in the NEPA process at the earliest possible time …

Scoping (§ 1501.7)

(b) As part of scoping an agency may: … (2) set time limits … (3) adopt procedures to combine its environmental assessment

process with its scoping process … (4) hold an early scoping meeting which may be integrated with any other early

planning meeting the agency has.

Major Federal Actions Requiring the Preparation of an EIS (§ 1502.4)

(d) Agencies shall as appropriate employ scoping (§ 1501.7), tiering (§ 1502.20), and other methods listed at § 1500.4 and

§ 1500.5 to relate broad and narrow actions and to avoid duplication and delay.

Timing of EIS (§ 1502.5)

… as close as possible to the time the agency is developing or presented with a proposal … early enough so that it can

serve practically an important contribution to the decisionmaking process and will not be used to rationalize or justify

decisions already made.

(Continued)

TABLE 3.1 (Continued)

Provisions for Promoting Efficiency in Managing the NEPA Process

Environmental Review and Consultation Requirements (§ 1502.25)

(a) To the fullest extent possible agencies shall prepare draft environmental impact statements concurrently with and

integrated with environmental impact analysis and related surveys and studies required by the Fish and Wild Coordination

Act … and other environmental review laws and executive orders

Interim Actions While EIS is in Progress (§ 1506.1)

(a) Until an agency issues a record of decision … no action concerning the proposal shall be taken which would:

(1) Have an adverse environmental impact: or

(2) Limit the choice of reasonable alternatives.

Elimination of Duplication with State and Local Procedures (§ 1506.2)

(b) Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA

and comparable State and local requirements.

Adoption (§ 1506.3[a])

An agency may adopt a Federal draft or final environmental impact statements or portion thereof …

Coordination/Consultation

Emphasizing cooperative consultation among agencies (§ 1501.1[b])

Providing for swift and fair resolution of agency disputes (§ 1501.1[c])

Cooperating Agencies (§ 1501.6)

Environmental Review and Consultation (§ 1502.25)

Reduce duplication with State/local Procedures (§ 1506.2[b], [c])

Concurrently/Integrated

With other planning and environmental review procedures (§ 1500.2[c])

With other review and consultation requirements (§ 1500.4[k])

Integrate into early planning … to eliminate delay (§ 1501.1[a])

Integrate with other planning … to avoid delays (§ 1501.2)

Circulation and review with other planning documents (§ 1501.2[b])

Integrate with other required analysis and studies (§ 1501.7[a][6])

With environmental review laws and executive orders (§ 1502.25[a])

Integrate into State and local planning processes (§ 1506.2[d])

TABLE 3.2

Provisions for Promoting Efficiency in the Environmental Analysis

NEPA Policy (§ 1500.2)

Purpose of NEPA (§ 1500.1)

(b) Needless detail

(c) Integrate with other environmental planning and review

Reducing Paperwork (§ 1500.4)

(b) Analytic rather than encyclopedic

(g) Use scoping … to identify significant issues … deemphasize insignificant issues … narrowing the scope

(k) Integrating with other environmental review

Purpose of Agency Planning (§ 1501.1)

(a) Integrating NEPA into early planning

(d) Early stage identification of significant versus non-significant issues … narrowing the scope

Scoping (§ 1501.7)

(a)(2) Determine scope and significant issues to be analyzed in depth

(a)(3) Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior

environmental review … narrowing the discussion of these issues … to a brief presentation of why they will not have

a significant effect … or providing a reference to their coverage elsewhere

(a)(6) Identify other environmental review and consultation requirements so the lead and cooperating agencies may prepare

other required analysis and studies concurrently with, and integrated with, the environmental impact statement …

(Continued)

TABLE 3.2 (Continued)

Provisions for Promoting Efficiency in the Environmental Analysis

Purpose of EIS (§ 1502.1)

Agencies shall focus on significant environmental issues and alternatives and shall reduce paperwork and the accumulation

of extraneous background data Statements shall be concise, clear and to the point …

Environmental Review and Consultation Requirements (§ 1502.25)

… agencies shall prepare draft environmental impact statements concurrently with and integrated with environmental impact

analysis and related surveys and studies required by the Fish and Wildlife Coordination Act … and other environmental

review laws and executive orders

Implementation of EIS (§ 1502.2)

(a) Be analytic rather than encyclopedic

(b) Discuss impacts in proportion to their significance

TABLE 3.3

Provisions for Promoting Efficient Preparation of an EIS or EA

Purpose of NEPA (§ 1500.1)

(b) [eliminate] Needless detail

Reducing Paperwork (§ 1500.4)

(a) Length (§ 1502.2[c], § 1501.7[b][1], § 1502.7)

(b) Analytic rather than encyclopedic (§ 1502.2[a])

(c) Briefly discuss non-significant issues (§ 1502.2[b])

(d) Plain language (§ 1502.8)

(e) Clear format (§ 1502.10)

(f) Emphasis on portions of the EIS useful to the public and decision-makers and reducing emphasis on background material

(j) Incorporating by reference (§ 1502.21)

(l) Requiring specificity of comments (§ 1503.3)

(m) Circulating only the changes when minor (§ 1503.4[c])

(o) Combining documents (§ 1506.4)

Reducing Delay (§ 1500.5)

(i) Combining documents (§ 1506.4)

Scoping (§ 1501.7)

(a)(3) Identify and eliminate from detailed study the issues which are not significant or which have been covered by prior

environmental review … narrowing the discussion of these issues … to a brief presentation of why they will not have

a significant effect … or providing a reference to their coverage elsewhere

(b) As part of scoping an agency may: (1) set page limits.

Purpose of EIS (§ 1502.1)

Focus on significant environmental issues; Reduce paperwork; Reduce accumulation of extraneous background data; Be

concise, clear … to the point

Implementation of EIS (§ 1502.2)

(a) … be analytic rather than encyclopedic

(b) [Discuss impacts] in proportion to their significance

(c) [EISs] shall be kept concise and shall be no longer than absolutely necessary to comply with NEPA … Length should

vary first with potential environmental problems and then with project size.

Page Limits of EIS (§ 1502.7)

… shall normally be less than 150 pages and for proposals of unusual scope or complexity … less than 300 pages

Combining Documents: (§ 1506.4)

Any environmental document in compliance with NEPA may be combined with any other agency document to reduce

duplication and paperwork.

Affected Environment (§ 1502.15)

… succinctly describe the environment … no longer than is necessary … commensurate with the importance of the

impact … shall avoid useless bulk … verbose descriptions

3.1.1 I NTEGRATING NEPA WITH SEPA S AND O THER P ROCESSES

As just witnessed, integrating NEPA with other processes can be one of the most effective approaches

for streamlining NEPA For example, more than 25 American states have State Environmental

Policy Acts (SEPAs), sometimes referred to as “little NEPAs.”1 Some of these SEPAs have

environ-mental impact assessment processes similar to that of NEPA However, most of these processes are

less comprehensive and rigorous than NEPA

In a few cases, these SEPA processes have procedural or substantive mandates exceeding that

of NEPA For example, the Massachusetts SEPA requires “a finding that all feasible measures

have been taken to avoid or minimize the said impact.”2 Similarly, the New York SEPA requires a

finding that “adverse environmental effects identified in the EIS will be minimized or avoided.”3

The California Environmental Policy Act (CEQA) also has a similar mandate These three SEPAs

go beyond NEPA in their requirement to protect the environment

3.2 SPECIFIC STREAMLINING METHODS

Specific provisions and methods that have been successfully used to streamline NEPA

implementa-tion are described in the following secimplementa-tions

A common NEPA litigation complaint involves failure to consider one or more significant issues

Consequently, agencies frequently err on the side of a broader scope with a correspondingly

higher degree of detail, thereby diminishing the effectiveness of provisions promoting efficiency

Professional judgment must be exercised in balancing the goal of efficiency with that of preparing

a defensible analysis To this end, the Regulations urge practitioners to use the scoping process to

promote efficiency by narrowing the scope of the analysis:

Using the scoping process, not only to identify significant environmental issues deserving of study, but

also to deemphasize insignificant issues, narrowing the scope of the environmental impact statement

process accordingly (§ 1500.4[g])

Implement procedures to … reduce paperwork and the accumulation of extraneous background data (§ 1500.2[b])

Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question rather than amassing needless detail (§ 1500.1[b])

The Regulations further instruct agencies to

Identify and eliminate from detailed study the issues which are not significant or which have been

covered by prior environmental review, narrowing the discussion of these issues in the statement to a

brief presentation of why they will not have a significant effect on the human environment or providing

a reference to their coverage elsewhere (§ 1501.7[a][3])

To promote efficiency by minimizing paperwork, while reducing delays, the CEQ advocates the use

of tiering.4 Specifically, tiering

… helps the lead agency focus on the issues which are ripe for decision and exclude from consideration

issues already decided or not yet ripe (§ 1508.28[b])

The Regulations provide additional direction for implementing tiering:

Agencies are encouraged to tier their environmental impact statements to eliminate repetitive

discus-sions of the same issues and to focus on the actual issues ripe for decision at each level of environmental

review (§ 1502.20)

Agencies shall as appropriate employ … tiering and other methods … to relate broad and narrow actions and to avoid duplication and delay (§ 1502.4[d])

Tiering provides a particularly useful approach for implementing a phased approach to planning,

especially in programs that are large, complex and have many components Tiering is particularly

useful when it helps an agency to focus on issues “ripe for decision” and exclude from consideration

issues already decided or that are not yet ripe for decision (§ 1500.4, reducing paperwork; § 1500.5,

reducing delay) Tiering is appropriate when the sequence of documents is from (§ 1508.28[a], [b])

program, plan, or policy EIS to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis; or

EIS on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent EIS or analysis at a later stage (such as environmental mitigation) Tiering in such cases is appropriate when it helps the lead agency to focus on the issues that are ripe for decision and exclude from consideration issues already decided

or not yet ripe

For instance, a programmatic EIS could be prepared to evaluate a national wind energy program

The EIS could cover broad decisions that are ripe for decision during the early planning stages of the

pro-gram The programmatic analyses might focus on determining what course of action should be taken,

while lower-tier analyses could focus on how such a decision should specifically be implemented

The Regulations encourage use of incorporating information by reference as a means of reducing

the size of an EIS Under the Regulations, agencies are, in fact, mandated to incorporate existing

material into the EIS if this procedure reduces the length of the EIS without impacting either the

agency’s or public’s ability to review the document (§ 1506.3) This method is also appropriate for

reducing the length of EAs.5

If incorporating by reference is used, the document must cite this material and briefly

summa-rize its content Referenced material must also be reasonably available for inspection by interested

persons during the comment period; a common complaint has been that agencies fail to identify the

location where this material may be obtained by the public.6

To promote efficiency, an agency may adopt an EIS prepared for another project or by another

agency The adopting agency may decide to adopt an entire EIS or any portion of it The following

three distinct circumstances are recognized in which an agency may adopt an EIS (§ 1506.3[a]–[c]).7

These situations involve circumstances where

an adopting agency has cooperated in the preparation of an EIS with another federal agency The cooperating agency may adopt the EIS and issue a record of decision (ROD) without recirculating the EIS for scoping or comment;

A noncooperating agency undertakes an action that is already evaluated in an existing EIS

In this case, the adopting agency must demonstrate that it has reviewed the EIS and deter-mined that it appropriately evaluates the activities that will be undertaken

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The EIS may be adopted as long as its proposed action is essentially the same as that described

in the EIS The adopting agency must recirculate the EIS, but only as a final EIS If the actions

described in the EIS are different from those proposed by the adopting agency, the EIS must also

be recirculated as a draft EIS; in such cases, the agency may adopt all or a portion of the EIS by

recirculating the document as a draft and then preparing a final EIS

The CEQ has issued guidance encouraging agencies to use the adoption process for EAs as

well as EISs Agencies are responsible for ensuring that the scope and content of an existing EA

adequately covers the proposed action.8 Since EISs are generally expected to be site specific and the

significance of an impact depends on its context, the adopting agency is responsible for reviewing

and verifying that the adopted analysis adequately covers the new project or site

In practice, adoption is not widely used because even small changes or differences in the

affected environment can cause the actual impacts to significantly change Thus, it is difficult to

demonstrate that the impacts of a proposal would be essentially the same as those evaluated by an

analysis provided in an EIS for another project or area

As a means of reducing paperwork and duplication, agencies are encouraged to combine

or piggyback NEPA documents with any other agency documents (§ 1500.4[o] and § 1506.4)

Documents that are particularly amendable to piggybacking include regulatory documents, urban

impact analyses, and final decision or option documents.9

For instance, the forest service has used piggybacking to combine their NEPA documents with

the forest management plans The EIS can be used to identify the agencies’ preferred alternative,

which is detailed in the proposed management plan Neither document repeats the other The EIS

and the forest management plan cross reference each other The EIS can basically be viewed as an

independent document that incorporates the proposed action by reference.10

An EIS must be physically included in or attached to another report and may use the attached

report material as supporting information The EIS portion of the combined document, however,

must be self-supporting and capable of standing on its own right as an analytical document that

fully informs decision-makers and the public of the environmental effects and reasonable

alterna-tives; the EIS is not to be presented as an outline or short summary that has been attached to the

report

3.3 LIMITATIONS ON ACTIONS AND INTERIM ACTIONS

Over the period in which a NEPA analysis is under way, an agency may need to implement

individual projects or program element actions that fall within the scope of an ongoing analysis

Pursuing an action under such instances may constitute a violation of NEPA’s requirements cited in

Table 3.4 Fortunately, a special streamlining procedure has been established to address this

prob-lem Actions that may legitimately proceed in advance of completing the NEPA review are referred

TABLE 3.4

Requirements Limiting Actions That May Be Pursued in Advance of Completing

the NEPA Process

“NEPA procedures must insure that environmental information is available to public officials and citizens before decisions

are made and before actions are taken.” (§ 1500.1[b])

“Agencies shall not commit resources prejudicing selection of alternatives before making a final decision.” (§ 1502.2[f])

EISs will not be used for “… justifying decisions already made.” (§ 1502.2[g])

to as interim actions Interim action procedures are provided in § 1506.1 of the Regulations:

Limita-tion on AcLimita-tions During the NEPA Process.

It is recommended that an agency consider preparing a separate interim action justification

memorandum (IAJM) for individual actions that qualify for status as an interim action Such a

in § 1506.1 As a short memorandum (1–5 pages), it can be appended to later NEPA documents

prepared for the specific action

An effort should be mounted early in the NEPA process to carefully review potential actions that

may need to begin prior to the completion of the NEPA process In performing such a review, actions

should be reviewed to confirm that they actually fall within the scope of the NEPA review Actions

that do not fall within the scope of an ongoing analysis are, of course, not subject to the limitations

presented in § 1506.1 Actions that are subject to the limitations (Table 3.4) and are not eligible for

status as an interim action should be factored into project’s schedule and planning process

The Regulations draw a sharp distinction between interim action requirements applicable to a

pro-grammatic EIS versus those that pertain to the preparation of a nonpropro-grammatic EIS (§ 1506.1)

Programmatic EISs are discussed in Chapter 8 Table 3.5 specifies criteria and limitations that must

be met in pursuing interim actions within each of the aforementioned categories

The first category of limitations (project-specific) described in Table 3.5 is interpreted to apply

only to project-specific reviews

3.3.2.1 Additional Limitations

As noted in Table 3.4, the Regulations place an additional restriction on actions that supplement the

criteria cited in § 1506.1:

Agencies shall not commit resources prejudicing selection of alternatives before making a final

deci-sion (§ 1502.2[f]).

Candidates for interim action status should be reviewed for compliance with this provision, in

addition to the limitations provided in Table 3.5 This provision prevents an agency from taking any

TABLE 3.5

Criteria and Limitations That Must Be Met in Pursuing an Interim Action

A Project-Specific EIS (§ 1506.1[a])

Until an agency issues a Record of Decision (ROD), no action concerning the proposal shall be taken which would:

(1) Have an adverse environmental impact; or

(2) Limit the choice of reasonable alternatives.

B Programmatic EIS (§ 1506.1[c])

While work on a required program environmental impact statement is in progress and the action is not covered by an existing

program statement, agencies shall not undertake in the interim any major Federal action covered by the program which

may significantly affect the quality of the human environment unless such action:

(1) Is justified independently of the program;

(2) Is itself accompanied by an adequate environmental impact statement; and

(3) Will not prejudice the ultimate decision on the program Interim action prejudices the ultimate decision on the program

when it tends to determine subsequent development or limit alternatives.

justification provides evidence that the action has been screened against the criteria specified

action that commits resources to such an extent that it would bias the selection of alternatives; it

applies to any interim action, regardless of whether the action is project specific or programmatic

in nature

The Regulations do not provide specific guidance for determining precisely what constitutes “limit

the choice of reasonable alternatives” (Table 3.5) Committing resources that would prejudice

selec-tion of alternatives (§ 1502.2[f]) is a circumstance that certainly appears to trigger this criterion

The third interim action criterion pertaining to the programmatic EIS process also appears to shed

some light on this question (§ 1506.1[c]) Based on the third criterion of § 1506.1(c), an action would

appear to limit the choice of reasonable alternatives if it “tends to determine subsequent

develop-ment or limit alternatives.”

Consistent with the rule of reason, the author suggests that the following two tests be considered

in determining if a particular action limits the choice of reasonable alternatives Specifically, would

the action:

1 determine the subsequent development or direction of the proposed action?

2 commit resources that would prejudice selection of alternatives?

The reader should note that the limitations presented in § 1506.1(c) are only specifically required for

actions taken during the preparation of a required programmatic analysis This verbiage was

care-fully chosen to allow individual program actions to proceed while an agency is voluntarily preparing

(in furtherance of the NEPA process) a programmatic EIS, not specifically required under the

Regu-lations.11 The reader is cautioned to note that the precise line separating a required programmatic EIS

from one that is not required, but which is prepared voluntarily, can require a considerable degree of

professional judgment

3.3.4.1 Justified Independently of the Program

As denoted by the first subcriterion in Table 3.5 (§ 1506.1[c][1]), an agency should be prepared to

demonstrate that the need for the action exists apart from that of the program to which it is related or

supports Such justification might be demonstrated in a number of ways For example, an agency may

be required by law to implement a certain interim action such as an environmental monitoring effort,

whether the entire program is implemented or not An agency, for instance, might be able to

demon-strate that a proposed transmission line is consistent with this criterion because it could be used to

support other projects regardless of any decisions reached as a result of a programmatic EIS

3.3.4.2 Accompanied by an Adequate EIS

The second subcriterion cited in § 1506.1(c) states that to be eligible for the status as an interim action,

an activity must be reviewed within an existing EIS Strictly interpreted, this requirement leads to an

absurd dilemma with potentially sever repercussions in terms of schedule and cost because it appears

to prevent an agency from pursuing an interim action that is covered under a categorical exclusion

(CATX) or FONSI Thus, even if an interim action can be shown to have no significant impact, a

strict interpretation leads to the conclusion that it would still have to be reviewed in an EIS

The U.S Department of Energy (DOE) has adopted a more reasonable interpretation for

resolv-ing this dilemma A memorandum prepared by Dr Ziemer indicates that it is questionable that CEQ

actually intended this requirement to apply once a determination that a proposed interim action

does not require an EIS has been made (i.e., it is eligible for a FONSI or CATX).12 Even though this

criterion is specifically designated for actions requiring an EIS, it can be logically extended to the

entire NEPA process (i.e., EIS, EA, and CATX) Thus, Ziemer’s memorandum interprets CEQ’s

intent to mean that an EIS is required for those actions that are not eligible for a FONSI or CATX

In short, the second subcriterion is interpreted to mean adequate NEPA review in lieu of an

envi-ronmental impact statement

3.3.4.3 Not Prejudice the Ultimate Decision

As depicted by the third subcriterion, an agency should be prepared to demonstrate that the interim

action would not prejudice the ultimate programmatic decision by predetermining subsequent

development or limiting alternatives Such a demonstration may require balancing the size of the

interim action against the entire program, as well as considering the potential connected and related

actions that may be triggered by implementing the interim action

Conceptual design and feasibility studies are examples of actions that are generally considered to

be eligible for status as an interim action While conceptual design studies are generally deemed

permissible, proceeding into detailed design is less certain Design work beyond the conceptual

design stage often tends to be extensive and site specific, which has the effect of eliminating

alter-natives that include the use of other sites Additionally, the level of resource commitment and the

obvious advantage in project schedule relative to the other reasonable alternatives may tend to bias

the agency’s choice of alternatives in favor of the detailed design

For example, the DOE’s NEPA implementation procedures specify that, with the exception of

interim actions, the NEPA review process should normally be completed “… in advance of, and for

use in reaching, a decision to proceed with detailed design …”13

Procurement of certain types of equipment and supplies that require a long-lead time may need

to be started early in the planning process to avoid later schedule delays However, such actions may

not be eligible for interim action status if they tend to bias the choice of reasonable alternatives

The interim action provision is frequently interpreted to prohibit many site preparation

activi-ties in support of the proposed action Such activiactivi-ties tend to be prohibited because they tend to bias

a final decision in favor of proceeding with the proposed action at that site

Drilling a test boring might at first appear to be an innocuous activity, having little or no

envi-ronmental impact However, activities such as construction of vehicle trails and drilling site

prepa-ration might adversely affect archaeological and other resources Under the interim action clause,

this type of activity should be acceptable if it is first accompanied with an archaeological survey,

covered under some level of NEPA review, and if these data will be used to provide information for

the NEPA analysis.14

Actions involving award of contracts require special consideration The interim action criteria

presented in § 1506.1 may prohibit award of a final contract for a proposed action prior to completing

NEPA This is because the award of a final contract may limit the choice of reasonable alternatives

or bias a final decision in favor of proceeding with a particular cause of action However, NEPA’s

requirements do not necessarily prohibit award of a nonbinding contract that is contingent on first

completing NEPA

3.4 AGENCY MANAGEMENT AND OPERATIONAL CHANGES

Two management and operational changes that can significantly streamline an agency’s NEPA

planning process are described below