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APPENDIX C Overview of the NEPA Process Contents C-2 Introduction C-2 Purpose of NEPA C-2 NEPA Regulatory Framework C-3 NEPA Compliance Process C-7 Coordination with Addressing Water Resource Issues in Project Planning C-8 References for Appendix C C-1
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C-2 A Handbook for Addressing Water Resource Issues Affecting Airport Development Planning Introduction Appendix C provides an overview of the process for complying with the National Environ- mental Policy Act (NEPA), as it relates to both project planning and the management of poten- tial water resource issues. NEPA requires federal agencies to evaluate the environmental impacts of any proposed agency major federal action. Although airport sponsors are responsible for deciding when and where airport development is necessary, the NEPA process is triggered when an airport sponsor seeks FAA approval, which constitutes a "federal action." Examples include approval for changes to the Airport Layout Plan (ALP), for use of Airport Improvement Program (AIP) funds to implement a project, and for use of Passenger Facility Charges (PFC) funds to implement a project. Purpose of NEPA The purpose of NEPA is to "help public officials make decisions that are based on under- standing of environmental consequences and take actions to protect, restore, and enhance the environment." To meet NEPA requirements, the FAA must prepare the appropriate level of documentation to analyze the proposed actions and their impacts. To facilitate compliance with its NEPA duties, the FAA has issued guidance to comply with NEPA and the White House Council on Environmental Quality (CEQ). NEPA Regulatory Framework To aid airports in compliance with NEPA, the FAA has issued guidance in FAA Order 1050.1E, Environmental Impacts: Policies and Procedures (1), FAA Order 5050.4B, National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions (2), and the associated Environ- mental Desk Reference for Airport Actions (3). FAA Order 1050.1E and 5050.4B establish the FAA's policies and procedures for compliance with NEPA and the implementing regulations issued by the CEQ (40 C.F.R. 15001508). These Orders and regulations require a thorough and objective assessment of the proposed action, the no action alternative, and all "reasonable" alternatives that would achieve the stated purpose and need of the proposed action. Order 1050.1E provides agency-wide procedures for compliance with NEPA and implementa- tion of regulations issued by the CEQ. The Order describes three different levels of NEPA review (presented in order of least intensive analysis due to no anticipated impacts to most intensive analysis due to anticipated impacts): Categorical Exclusion (CatEx), Environmental Assessment (EA), and Environmental Impact Statement (EIS). Differences in each level and the associated coordination and documentation required are evaluated in Order 1050.1E (and discussed in Sec- tion 4 of this Appendix). The Order also includes guidance for integration of NEPA into the plan- ning process. Appendix A of Order 1050.1E identifies the environmental impact categories considered in FAA documents, including water resource issues (i.e., wetlands; floodplains; water quality; coastal zone management; plants, fish, and wildlife; and wild and scenic rivers) that need to be assessed for federal actions, and the breadth of analysis required for each category. FAA Order 5050.4B expands on Order 1050.1E with guidance specific to the implementation of NEPA for the FAA's Office of Airports (ARP), which is responsible for administering the grant-in-aid program and for overseeing planning and development at public-use airports. The Order provides detailed guidance for incorporating NEPA into ARP planning activities and spec-
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Overview of the NEPA Process C-3 ifies threshold criteria and the corresponding level of NEPA review for different environmental impact categories. Threshold criteria for water resource categories defined in Order 5050.4B are: · Water Quality. When an action would not meet water quality standards. Difficulty in obtain- ing a permit or authorization may indicate a significant impact. · Wetlands. When an action would: Adversely affect a wetland's function to protect the quality or quantity of a municipal water supply, including sole source aquifers and a potable water aquifer. Substantially alter the hydrology needed to sustain the affected wetland's values and func- tions or those of a wetland to which it is connected. Substantially reduce the ability of the affected wetland to retain floodwaters or storm water runoff, thereby threatening public health, safety or welfare. The last term includes cultural, recreational, and scientific public resources or property. Adversely affect the maintenance of natural systems supporting wildlife and fish habitat or eco- nomically important timber, food, or fiber resources of the affected or surrounding wetlands. Promote development that causes any of the above impacts. Be inconsistent with applicable state wetland strategies. · Floodplains. When notable adverse impacts on natural and beneficial floodplain values would occur. · Coastal Zone Management. None established (consider consistency with the applicable coastal zone management agency's plan or objections from the coastal zone management agency during coordination). · Fish, Wildlife, and Plants. Federally listed species: When the United States Fish and Wildlife Service (USFWS) or National Marine Fisheries Service (NMFS) determines a proposed action would likely jeop- ardize a species' continued existence or destroy or adversely affect a species' critical habitat. Non-listed species: Consider scientific literature on and information from agencies having expertise addressing the affected species. Consider project effects on population dynamics; sustainability; reproduction rates; natural and artificial mortality (aircraft strikes); and the minimum population size needed to maintain the affected population. · Wild and Scenic Rivers. None established. The FAA Environmental Desk Reference for Airport Actions summarizes applicable special pur- pose laws for convenience and quick reference; the summary helps airports comply with the environmental requirements of special purpose laws applicable to the no action alternative, the proposed action, and reasonable alternatives, and understand how these requirements are inte- grated into an NEPA document to obtain approval of a proposed action. The Desk Reference pro- vides an introduction of each environmental impact category; laws and regulatory requirements; applicability to airport development actions; permits, certification and approvals; environmen- tal analyses; determining impacts and impact significance; and EIS content. Compared to Appendix A of Order 1050.1E, the Desk Reference provides a more detailed description of water resources issues, significant impacts, and analyses and consultation required. In accordance with FAA Order 1050.1E, paragraph 405(d)(4), the relevant federal laws and statutes, Executive Orders, and other regulations related to water resources that are typically con- sidered during preparation of a NEPA document are listed in Table C1. NEPA Compliance Process Figure C1 presents a general overview of the NEPA process. Typically, airport sponsors, in consultation with the FAA's airport environmental specialist, should identify the appropriate level of environmental documentation required for a project. As shown in the exhibit, an NEPA
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C-4 A Handbook for Addressing Water Resource Issues Affecting Airport Development Planning Table C1. Laws and statutes, executive orders, and regulations typically considered in the evaluation of water resources under NEPA. Water Law/Statute, Executive Order, or Other Regulation Resource Category Federal Laws All · NEPA [Public Law (PL) 91-190, 42 United States Code (U.S.C.) 4321-4370(d), effective January 1, 1970, as last amended by PL 94-83] Federal Laws Water Quality · Clean Water Act [33 U.S.C. 1251-1387] · Safe Drinking Water Act [PL 104-182] [42 U.S.C. 300f300j] · Fish and Wildlife Coordination Act [PL 85-624] [16 U.S.C. 661-666c] State or Local Laws · State and/or municipal regulations on water quality standards · State storm water management program · State erosion and sediment control law and/or policy · State water protection permit program · Management program applicable to a particular water body Federal Laws Wetlands · Clean Water Act, Section 404 [PL 92-500, as amended by PL 95-217 and PL 100-4] [33 U.S.C. 1344] · Rivers and Harbors Act, Section 10 [33 C.F.R. 403] United States Department of Transportation Orders · Order 5660.1A: Preservation of the Nation's Wetlands Federal Laws Floodplains · National Flood Insurance Act [42 U.S.C. 4121] Executive Orders · Order 11988, Floodplain Management [42 FR 26951, May 24, 1977] United States Department of Transportation Orders · Order 5650.2: Floodplain Management and Protection State or Local Laws · State flood damage reduction act; state, county, and/or municipal floodplain management program or regulations Federal Laws Coastal Zone · Coastal Barrier Resources Act [PL 97-348] [16 U.S.C. 3501-3510] Management · Coastal Zone Management Act [PL 92-583] [16 U.S.C. 1451-1464] Executive Orders · Order 13089, Coral Reef Protection [63 FR 32701, June 16, 1998] State or Local Laws · Approved coastal zone management program Federal Laws Fish, Wildlife, · Endangered Species Act [PL 93-205] [16 U.S.C. 1531-1544] and Plants · Marine Mammal Protection Action (16 U.S.C. 1361-1421] · Related Essential Fish Habitat Requirements of the Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act [16 U.S.C. 1855(b)(2)] · Sikes Act Amendments of 1974 [PL 93-452] · Fish and Wildlife Coordination Act [PL 85-624] [16 U.S.C.661-666c] · Fish and Wildlife Conservation Act [PL 96-366] [16 U.S.C. 2901-2912] Water Law/Statute, Executive Order, or Other Regulation Resource Category Fish, Wildlife, Executive Orders and Plants · Order 13112, Invasive Species [64 FR 6183, February 8, 1999] Federal Laws Wild and · Wild and Scenic Rivers Act [PL 90-542, as amended by PL 96-487] [U.S.C. 1271- Scenic Rivers 1287] Prepared by: Ricondo & Associates, Inc., May 2010 (1).
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Overview of the NEPA Process C-5 Prepared by: Ricondo & Associates, Inc., May 2010 (4). Figure C1. NEPA process. review of a project may begin with a CatEx for eligible projects. Based on the findings of the eval- uation, a higher level of analysis may be required, leading to the preparation of an EA. Projects that either require preparation of an EIS or that produce significant unavoidable effects are then the subject of an EIS. The three levels of NEPA review are shown in Table C2 and include actions eligible for a CatEx, actions requiring an EA, and actions requiring an EIS. The graduated levels of analysis required to support the NEPA process from CatEx to EIS are tailored to the anticipated signifi- cance of a project, and the resulting documents demonstrate that FAA officials have taken "a hard look" at the environmental impacts a proposed action and its reasonable alternatives. Other agencies, the public, and other interested stakeholders may review the NEPA document to understand the scientific and technical information evaluated by FAA.
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C-6 A Handbook for Addressing Water Resource Issues Affecting Airport Development Planning Table C2. Three levels of National Environmental Policy Act Review. Funding Sponsor & Time to Complete & Level of Review Description and Example Source FAA Roles Comparative Cost Categorical Most basic level of environmental review for projects Airport Airport Sponsor Function of complexity of that would not have significant effect on the natural or Sponsor Selects Exclusion Consultant and environmental review human environment, based on FAA experience with similar actions in the past. Leads Analysis; Analysis FAA Makes Generally applicable to non-controversial projects Decision (CatEX) such as replacement of hangars. Environmental Mid-level environmental processing for projects that Airport Airport Sponsor may significantly affect effect the natural or human Sponsor Selects Assessment environment. If a significant impact is identified that Consultant and (EA) cannot be mitigated, the FAA would begin the EIS Leads Analysis; Analysis process. FAA Makes Decision (FONSI Generally applicable to projects that cannot be or Direction to categorically excluded but would not require EIS such Prepare an EIS) as acquisition of land. Environmental Highest level of environmental review for projects with Airport FAA Selects known and unavoidable significant impacts despite Sponsor Consultant and Impact implementation of mitigation measures. Leads Analysis; Analysis Statement Generally applicable to highly controversial projects FAA Makes Decision (ROD) (EIS) such as construction of a new commercial airport. Prepared by: Ricondo & Associates, Inc., August 2006 (1, 2). The following sections summarize the process typically followed for each level of NEPA documentation. Categorical Exclusion (CatEx) A Categorical Exclusion or "CatEx" typically applies to an action, identified by the agency, that does not individually or cumulatively have a significant effect on the environment. FAA guid- ance lists actions that are typically categorically excluded, which include actions that do not involve extraordinary circumstances. Example projects that are typically categorically excluded include making minor facility renovations or issuing administrative personnel procedures. In terms of process, the airport sponsor and the FAA environmental specialist will identify whether the action is categorically excluded, and if it is, they will review the action to determine whether any extraordinary circumstances are present. If the action is categorically excluded and does not involve extraordinary circumstances, the FAA can approve the project and make any needed notifications, following which, the airport sponsor may undertake the action. If the action is not categorically excluded or involves extraordinary circumstances, preparation of an EA is usually the next step. The FAA typically requests information from the sponsor to determine if extraordinary circum- stances exist. Expertise required to identify extraordinary circumstances related to water resources depends on the water resource issue under consideration (see the Fact Sheets in Appendix B). Environmental Assessment (EA) If the proposed action does not meet the criteria for a CatEx, the airport sponsor and the FAA environmental specialist would collaborate to begin the EA process. If significant impacts are iden- tified through the EA process, an EIS may be required. If no significant impacts are identified, the airport sponsor will prepare the Final EA, the FAA will issue a finding (FONSI), and the spon- sor is then able to undertake the action.
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Overview of the NEPA Process C-7 Expertise typically required to prepare portions of the EA related to water resource issues depends on the water resource issue under consideration (see the Fact Sheets in Appendix B for applicable water resource categories). Environmental Impact Statement (EIS) If the proposed action is anticipated to have a significant impact an EIS is required. Accord- ing to FAA Order 5050.4B, paragraph 903, projects such as a new airport or new air carrier run- way in a metropolitan statistical area or a major runway extension would typically trigger an EIS because of the potential for significant environmental impacts. Following the identification of need for an EIS, the FAA prepares a Notice of Intent to prepare an EIS for the proposed action and announces an opportunity for other agencies, stakeholders, and the public to participate in scoping to identify potential issues that should be considered in the EIS. Following scoping, the FAA prepares the Draft EIS. Agencies, stakeholders, and the pub- lic are provided a period for review and comment, following which the FAA prepares a Final EIS that addresses the comments received during the public review period. The FAA prepares a Notice of Availability of the Final EIS, and then, allowing opportunity for public review of the Final EIS, the FAA prepares the Record of Decision (ROD), which explains the decision maker's rationale for selecting the FAA's preferred alternative and documents any mitigation measures, monitor- ing, and enforcement actions that may be required. All project documentation, including agency, stakeholder, and public comments received, becomes part of the FAA's official Administrative Record of its decision. As defined in the ROD, the airport sponsor may undertake the action. Expertise typically required to prepare portions of the EIS related to water resource issues depends on the water resource issue under consideration (see the Fact Sheets in Appendix B for applicable water resource categories). Coordination with Addressing Water Resource Issues in Project Planning The NEPA processing of a project may be viewed by airport sponsors as a step that follows project planning. If these planning exercises do not incorporate consideration of water resource issues during the planning and decision making process, there may be a need to revisit the proj- ect planning and development of alternatives during NEPA. Some lessons learned from stake- holders on how to best incorporate consideration of water resources issues during planning and during the NEPA process include: · Often projects and their related regulatory process are unique, so issues such as public con- troversy can be difficult to anticipate during planning and at the beginning of the NEPA process. Anticipated controversy can require more careful development of the purpose of and need for a project as well as the alternatives that are considered. If potential controversy was not anticipated during planning, the need to strengthen project justification and alternatives can cause delays during the NEPA process. · Consider the sequencing of NEPA approvals and water resource permitting approvals. Get- ting permitting approvals before or during NEPA approval could save time and cost by allow- ing project construction to begin immediately after NEPA approval; however, this could result in the need to revisit the permit application if additional water issues were identified during the subsequent NEPA processing or design. · Establish relationships with regulatory agencies that manage water resources early in the plan- ning and NEPA process and maintain communication. Early and subsequent coordination
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C-8 A Handbook for Addressing Water Resource Issues Affecting Airport Development Planning allows regulatory agencies to plan for upcoming workload to help manage the process. Also, for larger programs, such as master plans, regulators can consider comprehensive water resource issues in the permitting process rather than on a piecemeal basis. · Project proponents should maintain coordination with the FAA (often the lead agency for the airport NEPA process) during coordination with other regulatory agencies to minimize the potential for regulatory delays or conflicts. Furthermore, FAA staff members are knowledge- able in water resource issues and have working relationships with regulatory agencies, which can result in a more efficient process. References for Appendix C 1. FAA Order 1050.1E, Chg 1--Environmental Impacts: Policies and Procedures. FAA, USDOT, March 2006. www.faa.gov/documentLibrary/media/order/energy_orders/1050-1E.pdf. 2. Environmental Desk Reference for Airport Actions, Office of Airports, FAA, Oct. 2007. www.faa.gov/airports/ environmental/environmental_desk_ref/media/desk_ref.pdf. 3. FAA Order 5050.4B: National Environmental Policy Act (NEPA) Implementing Instructions for Airport Projects. FAA, USDOT, July 2006. www.faa.gov/airports/resources/publications/orders/environmental_5050_4/ media/5050-4B_complete.pdf. 4. A Citizen's Guide to the NEPA, Having Your Voice Heard. Council on Environmental Quality, U.S. Executive Office of the President, Dec. 2007. ceq.hss.doe.gov/nepa/Citizens_Guide_Dec07.pdf.