Notice2024-30675
Emergencies and the National Environmental Policy Act Guidance
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 30, 2024
Issuing agencies
Council on Environmental Quality
Abstract
On December 18, 2024, the Council on Environmental Quality (CEQ) issued guidance in a memorandum to the heads of Federal departments and agencies (agencies) to assist agencies with compliance with the National Environmental Policy Act (NEPA) during emergencies. The CEQ regulations implementing NEPA provide for alternative arrangements during emergencies when an agency's action is likely to have significant effects and would require preparation of an environmental impact statement. This guidance also addresses compliance with NEPA when the action is unlikely to have significant effects and might require preparation of an environmental assessment or application of a categorical exclusion.
Full Text
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<title>Federal Register, Volume 89 Issue 249 (Monday, December 30, 2024)</title>
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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106448-106450]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-30675]
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COUNCIL ON ENVIRONMENTAL QUALITY
Emergencies and the National Environmental Policy Act Guidance
AGENCY: Council on Environmental Quality.
ACTION: Notice.
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SUMMARY: On December 18, 2024, the Council on Environmental Quality
(CEQ) issued guidance in a memorandum to the heads of Federal
departments and agencies (agencies) to assist agencies with compliance
with the National Environmental Policy Act (NEPA) during emergencies.
The CEQ regulations implementing NEPA provide for alternative
arrangements during emergencies when an agency's action is likely to
have significant effects and would require preparation of an
environmental impact statement. This guidance also addresses compliance
with NEPA when the action is unlikely to have significant effects and
might require preparation of an environmental assessment or application
of a categorical exclusion.
DATES: This guidance was issued on December 18, 2024.
FOR FURTHER INFORMATION CONTACT: Jomar Maldonado, Director for NEPA,
202-395-5750, <a href="/cdn-cgi/l/email-protection#b1fbdedcd0c39ffcd0ddd5dedfd0d5dee7d0cbc0c4d4cbf1d2d4c09fd4dec19fd6dec7"><span class="__cf_email__" data-cfemail="bdf7d2d0dccf93f0dcd1d9d2d3dcd9d2ebdcc7ccc8d8c7fdded8cc93d8d2cd93dad2cb">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Memorandum for Heads of Federal Departments and Agencies
FROM: Brenda Mallory, Chair
SUBJECT: Emergencies and the National Environmental Policy Act Guidance
This guidance \1\ updates and replaces previous guidance from the
Council on Environmental Quality (CEQ) on the environmental review of
proposed emergency response actions under the National Environmental
Policy Act, 42 U.S.C. 4321-4347 (NEPA).\2\ Federal departments and
agencies (agencies) should distribute this guidance as part of their
general guidance on emergency actions to agency offices that are or may
become involved in developing and taking actions in response to
emergencies.
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\1\ The contents of this guidance do not have the force and
effect of law and are not meant to bind the public in any way. This
guidance does not establish new requirements. This memorandum is
intended only to provide clarity to the public regarding existing
requirements under the law or agency policies.
\2\ This guidance replaces guidance issued by CEQ on September
14, 2020 (85 FR 60137 (Sept. 29, 2020)), September 29, 2016, May 12,
2010, and September 8, 2005. CEQ rescinds the prior guidance.
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As agencies respond to situations involving immediate threats to
human health or safety, or immediate threats to valuable natural
resources, they must consider whether there is sufficient time to
follow the procedures for environmental review established in CEQ's
National Environmental Policy Act Implementing Regulations, 40 CFR
parts 1500 through1508 (CEQ NEPA regulations),\3\ and their agency NEPA
procedures.
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\3\ See <a href="https://www.ecfr.gov/current/title-40/chapter-V/subchapter-A">https://www.ecfr.gov/current/title-40/chapter-V/subchapter-A</a>.
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CEQ established the regulation addressing alternative arrangements
in emergency circumstances in 1978 \4\ and amended it in 2020 and 2024
\5\ to clarify that it provides for alternative arrangements for
agencies to comply with section 102(2)(C) of NEPA (42 U.S.C. 4332(C)).
See 40 CFR1506.11. Alternative arrangements do not waive the
requirement to comply with NEPA. Rather, they establish an alternative
means for NEPA compliance. CEQ has approved, and agencies have applied
successfully, numerous alternative arrangements to allow a wide range
of proposed actions in emergency circumstances including natural
disasters, catastrophic wildfires, threats to species and their
habitat, economic crises, infectious disease outbreaks, potential dam
failures, and insect infestations.\6\
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\4\ 43 FR 55977 (Nov. 29, 1978).
\5\ 85 FR 43304 (July 16, 2020); 89 FR 35442 (May 1, 2024).
\6\ A synopsis of previous alternative arrangements is available
at <a href="http://www.NEPA.gov">www.NEPA.gov</a>.
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This guidance includes two attachments with step-by-step guides to
help agencies when planning for and responding to emergencies.
Attachment 1 provides agencies with a process for determining the
appropriate path forward for the NEPA environmental review of all
actions proposed in response to an emergency situation and what steps
to take depending on the appropriate level of NEPA review. Attachment 2
provides guidance for preparing a concise and focused EA for emergency
actions.
Environmental Impact Statements
The CEQ regulations, at 40 CFR 1506.11, provide for alternative
arrangements for NEPA compliance in emergency situations when the
agency proposal has the potential for significant environmental effects
and would require an environmental impact statement (EIS) if the
situation were not an emergency:
Where emergency circumstances make it necessary to take an action
with significant effects without observing the provisions of the
regulations in [40 CFR parts 1500 through 1508], the Federal agency
taking the action shall consult with the Council about alternative
arrangements for compliance with section 102(2)(C) of NEPA. Agencies
and the Council shall limit such arrangements to actions necessary to
control the immediate impacts of the emergency; other actions remain
subject to NEPA review consistent with [40 CFR parts 1500 through
1508]. Alternative arrangements do not waive the requirement to comply
with the statute, but establish an alternative means for NEPA
compliance.
Agencies develop these alternative arrangements, based on
emergency-specific facts and circumstances, during consultation with
CEQ. The alternative arrangements developed by an agency address the
actions necessary to control the immediate impacts of an emergency. The
long-term response to the emergency, including recovery actions,
remains subject to the regular NEPA process set forth in the statute
and the CEQ NEPA regulations.
Here again, alternative arrangements do not waive the requirement
to comply with the statute, but establish an alternative means for NEPA
compliance from the process set forth in the CEQ NEPA regulations.
Alternative arrangements for NEPA compliance do not satisfy or alter
other legal requirements, including other environmental legal
requirements (except as provided by other applicable statutes or
regulations); however, engaging other resource and regulatory agencies
about other environmental requirements during development and
implementation of alternative arrangements for NEPA compliance can
potentially facilitate meeting other environmental compliance
requirements. Final agency action taken pursuant to alternative
arrangements for compliance with NEPA under 40 CFR 1506.11 may be
subject to judicial review if a statute, such as the Administrative
Procedure Act, provides for such review.
[[Page 106449]]
Attachment 1 describes the factors for an agency to address when
requesting and designing alternative arrangements. Once the agency and
CEQ develop the alternative arrangements, CEQ will provide
documentation detailing the alternative arrangements and the
considerations on which they are based.
Environmental Assessments
When agencies are considering proposed actions that are not likely
to have significant effects or the significance of the effects are
unknown, the agency can prepare a concise, focused environmental
assessment (EA). Attachment 2 of this memorandum provides guidance for
preparing an EA. Some agency NEPA procedures provide processes for
preparing EAs for emergency actions,\7\ which the CEQ NEPA Regulations
encourage agencies to include in their procedures. For emergency
actions that require preparation of an EA, agencies should not delay
taking action necessary to address immediate threats to human health or
safety, or immediate threats to valuable natural resources. Agencies
should follow any agency-specific direction regarding preparation of an
EA for emergency actions, which may include preparing an EA before,
during, or after the emergency. Agencies must continue their efforts to
notify, inform, and engage with the affected public and relevant
Federal, State, Tribal, and local governments and agency
representatives of the Federal agency activities and proposed actions.
Agencies must comply with the CEQ NEPA regulatory requirements
implementing the statute for content, interagency coordination, and
public engagement to the extent practicable.\8\
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\7\ See Agency NEPA procedures, for example: Department of
Homeland Security Instruction Manual 023-01-001-01, Revision 01 at
VI-1, <a href="https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf">https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf</a>; U.S. Forest Service, 36 CFR
220.4(b), <a href="https://www.ecfr.gov/current/title-36/chapter-II/part-220/section-220.4">https://www.ecfr.gov/current/title-36/chapter-II/part-220/section-220.4</a>; and Department of the Interior, 43 CFR 46.150,
<a href="https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=2a2ce144c79da6f3e773bfa9cdf17bcf&mc=true&n=sp43.1.46.b&r=SUBPART&ty=HTML#se43.1.46_1150">https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=2a2ce144c79da6f3e773bfa9cdf17bcf&mc=true&n=sp43.1.46.b&r=SUBPART&ty=HTML#se43.1.46_1150</a>.
\8\ 40 CFR 1501.5, 1501.6, and 1501.9 (these regulations address
required content and public and governmental engagement for
preparing EAs and findings of no significant impact).
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Attachment 1
Process for Emergency Actions Under the National Environmental Policy
Act (NEPA)
This attachment provides a step-by-step process for managing the
NEPA review of all actions proposed in response to an emergency
situation, consistent with the Emergencies and the National
Environmental Policy Act Guidance. In the case of an emergency:
1. Do not delay immediate actions necessary to secure lives and
safety of citizens or to protect valuable resources. Consult with
CEQ as soon as feasible. Please coordinate any communications with
your Federal agency NEPA contacts.
2. Determine if NEPA applies and the appropriate level of NEPA
analysis:
[ssquf] Determine if a Federal agency is taking the proposed
action (e.g., city or State action does not trigger NEPA; Federal
decisions to fund city or State action may trigger NEPA, depending
on the nature of the funding arrangements) or is exempt from NEPA
(e.g., certain Federal Emergency Management Agency response actions
under the Stafford Act are statutorily excluded from NEPA;
additional information is available at <a href="https://www.fema.gov/emergency-managers/practitioners/environmental-historic/laws/nepa/statutory-exclusions">https://www.fema.gov/emergency-managers/practitioners/environmental-historic/laws/nepa/statutory-exclusions</a>).
[ssquf] If the Federal agency's proposed emergency action is not
statutorily exempt from NEPA, and the agency has a categorical
exclusion (CE) that covers the type of activity, then apply the CE
unless there are extraordinary circumstances that indicate using the
CE in this particular case is not appropriate. Agency NEPA personnel
can assist in identifying agency-specific actions that are
categorically excluded. Additionally, the agency should review CEs
established in other agencies' NEPA procedures to determine whether
there is a CE that would cover the agency's proposed emergency
action. If so, the agency may adopt and apply the CE consistent with
40 CFR 1501.4(e) and Section 109 of NEPA (42 U.S.C. 4336c).
[ssquf] If the proposed Federal agency emergency action is not
statutorily exempt from NEPA, a CE is not available, and the agency
does not expect the potential environmental effects of the proposed
response activity to be significant, then an environmental
assessment (EA) is appropriate. Where applicable, follow the
agency's emergency procedures as set forth in the agency's NEPA
implementing procedures, or prepare a focused, concise EA as
described in Attachment 2. Alternative arrangements, as outlined at
40 CFR 1506.11, do not apply because the environmental effects are
not expected to be significant. Agency NEPA personnel can assist in
identifying agency-specific actions that typically require an EA.
[ssquf] If the proposed Federal emergency action is not
statutorily exempt from NEPA, and the agency expects it would have
significant environmental effects, the agency should determine
whether an existing NEPA analysis covers the action (e.g.,
implementing pre-existing spill response plans). If so, the agency
may rely upon its existing analysis or adopt the analysis of another
agency consistent with 40 CFR 1506.3.
[ssquf] If the proposed Federal emergency action is not
statutorily exempt from NEPA, the agency expects it to have
significant environmental effects, and an existing NEPA analysis
does not cover the action, then the agency should consult with CEQ
to determine whether alternative arrangements can take the place of
an EIS. Contact CEQ to develop alternative arrangements under 40 CFR
1506.11. CEQ encourages agencies to submit inquiries via email at
<a href="/cdn-cgi/l/email-protection#026c677263426167732c676d722c656d74"><span class="__cf_email__" data-cfemail="aec0cbdecfeecdcbdf80cbc1de80c9c1d8">[email protected]</span></a>. Agencies may also contact CEQ at (202) 395-5750.
3. Factors to address when requesting and designing alternative
arrangements include the:
[ssquf] Nature and scope of the emergency;
[ssquf] Actions necessary to control the immediate impacts of
the emergency;
[ssquf] Potential adverse effects of the proposed action;
[ssquf] Components of the NEPA process that the agency can
follow and provide value to decision making (e.g., coordination with
Tribal Nations, affected agencies, and the public);
[ssquf] Duration of the emergency; and
[ssquf] Potential mitigation measures.
Attachment 2
Preparing Focused, Concise, and Timely Environmental Assessments
An agency can prepare a concise and focused EA in a short time
in those situations where:
[ssquf] There is no statutory exemption from NEPA requirements;
[ssquf] There is no CE that covers the action, or there are
extraordinary circumstances requiring the preparation of an EA or
EIS;
[ssquf] An existing NEPA analysis (EA or EIS) does not cover the
proposed action; and
[ssquf] The environmental effects of the proposed actions are
not likely to be significant.
The following outline with notations addresses the core elements
of an EA as required by 40 CFR 1501.5:
[ssquf] The purpose and need for the proposed action;
[ssquf] Alternatives, as required by NEPA section 102(2)(H);
[ssquf] The description of environmental effects of the proposed
action and the alternatives;
[ssquf] The list of agencies and persons consulted;
[ssquf] The unique identification number of the EA.
Purpose and Need for the Proposed Action
The agency should briefly describe information that
substantiates the purpose and need for the action and incorporate by
reference information that is reasonably available to the public.
For example, ``This agency is preparing to erect a temporary
emergency response facility to replace facilities disrupted or
destroyed by the [hurricane/flooding/contamination/etc.] to
facilitate rescue or relief efforts in an effort to [minimize
further adverse health conditions/restore communications/restore
power].''
The agency should briefly describe the existing conditions and
the projected future conditions of the area impacted by the action.
For example, ``The area(s) in which the temporary facility will be
located or relocated is identified in the attached map. This area
consists of [add brief description of the environmental state of the
area that will be affected by the location and operation of the
facility, focusing on those areas that are potentially sensitive.
The goal is to show that environmental effects have been considered
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and the facts found indicate no significant impact (for example,
refueling sites are not on top of aquifers, nesting areas, graves,
sacred sites, etc.). These are examples to show the utility of and
need to identify actual place-based environmental issues rather than
compiling lists of environmental resources not at issue].''
Proposed Action and Alternatives
The agency should list and briefly describe its proposed action
and reasonable alternatives that meet the purpose and need. The
agency must use its discretion to ensure the number and reasonable
range of alternatives is reasoned and not arbitrary or capricious.
The purpose and need for the proposed action and its environmental
effects should focus the alternatives. For example, the need to use
existing infrastructure necessary to support the facility is a
reasoned basis for focusing on a discrete number of alternatives.
When there is no unresolved conflict concerning alternative uses
of available resources with respect to the proposed action based on
input from interested parties, the agency can consider the proposed
action and proceed without consideration of additional alternatives.
Otherwise, the agency must identify reasonable alternatives that
meet the action's purpose and need, consistent with section
102(2)(H) of NEPA.
Environmental Effects of the Proposed Action and Alternatives
The agency must describe the environmental effects of its
proposed action and each alternative. 40 CFR 1501.5(c)(2)(iii). The
description should provide enough information to support a
determination to either prepare an EIS or a finding of no
significant impact.
The agency should focus on whether the action would
significantly affect the quality of the human environment. The
agency should follow the CEQ NEPA regulations in considering whether
the effects of a proposed action are significant. See 40 CFR
1501.3(d). Agency NEPA contacts and contacts at resource agencies
can assist in this effort.
Tailor the length of the discussion to the complexity of each
issue. Focus on those human and natural environment issues where
effects are a concern. Telephone or email discussions with State,
Tribal, and local governments and agencies and other Federal
agencies that operate in the area will help focus those issues.
The agency must discuss the effects of each alternative and may
discuss those effects together in a comparative description or
discuss each alternative separately. The agency should use the
approach that will be most effective in the time available. The
agency may contrast the effects of the proposed action and
alternatives with the current condition and expected future
condition in the absence of the action. This constitutes
consideration of a no action alternative as well as demonstrating
the need for the action.
The agency should incorporate by reference data, inventories,
other information, and analyses relied on in the EA. See 40 CFR
1501.12. CEQ encourages the use of digital references, such as
hyperlinks. This information must be reasonably available for review
by potentially interested persons. For example, include relevant
existing programmatic agreements and generally accepted best
management practices.
The agency should be clear and concise about its conclusions and
their bases.
List of Agencies and Persons Consulted
The agency must involve the public, State, Tribal, and local
governments, relevant agencies, and any applicants, to the extent
practicable in preparing EAs, and list the agencies and persons
consulted. 40 CFR 1501.5(c)(3) and 1501.5(f). For example, include
the people, offices, and agencies that the agency coordinated with
to ensure that the location of the action did not cause
unintentionally an adverse effect. Also include information about
individuals consulted to comply with substantive environmental
requirements and regulations, for example: the Clean Water Act, the
National Historic Preservation Act, and the Endangered Species Act
(ESA). Note that the ESA emergency provisions at 50 CFR 402.05 may
be applicable to the proposed action.
Authority: 42 U.S.C. 4321-4347; 42 U.S.C. 4371-4375.
Brenda Mallory,
Chair.
[FR Doc. 2024-30675 Filed 12-27-24; 8:45 am]
BILLING CODE 3325-FC-P
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