TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER V--COUNCIL ON ENVIRONMENTAL QUALITY
COUNCIL ON ENVIRONMENTAL QUALITY NEPA REGULATIONS
PART 1501 - NEPA AND AGENCY PLANNING
The purposes of this part include:
(a) Integrating the NEPA process into early planning to insure appropriate
consideration of NEPA's policies and to eliminate delay.
(b) Emphasizing cooperative consultation among agencies before the environmental
impact statement is prepared rather than submission of adversary
comments on a completed document.
(c) Providing for the swift and fair resolution of lead agency disputes.
(d) Identifying at an early stage the significant environmental issues deserving
of study and deemphasizing insignificant issues, narrowing the scope
of the environmental impact statement accordingly.
(e) Providing a mechanism for putting appropriate time limits on the environmental
impact statement process.
1501.2 Apply NEPA early in the process.
Agencies shall integrate the NEPA process with other planning at the earliest
possible time to insure that planning and decisions reflect
environmental values, to avoid delays later in the process, and to head off
potential conflicts. Each agency shall:
(a) Comply with the mandate of section 102(2)(A) to "utilize a systematic,
interdisciplinary approach which will insure the integrated use of the natural
and social sciences and the environmental design arts in planning and in
decisionmaking which may have an impact on man's environment," as specified
(b) Identify environmental effects and values in adequate detail so they
can be compared to economic and technical analyses. Environmental documents
and appropriate analyses shall be circulated and reviewed at the same time
as other planning documents.
(c) Study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources as provided by section
102(2)(E) of the Act.
(d) Provide for cases where actions are planned by private applicants or
other non-Federal entities before Federal involvement so that:
(1) Policies or designated staff are available to advise potential applicants
of studies or other information foreseeably required for later
(2) The Federal agency consults early with appropriate State and local
agencies and Indian tribes and with interested private persons and
organizations when its own involvement is reasonably foreseeable.
(3) The Federal agency commences its NEPA process at the earliest possible
1501.3 When to prepare an environmental assessment.
(a) Agencies shall prepare an environmental assessment (§1508.9) when
necessary under the procedures adopted by individual agencies to supplement these regulations as described in § 1507.3. An assessment is not necessary if
the agency has decided to prepare an environmental impact statement.
(b) Agencies may prepare an environmental assessment on any action at any
time in order to assist agency planning and decisionmaking.
1501.4 Whether to prepare an environmental impact statement.
In determining whether to prepare an environmental impact statement the Federal
(a) Determine under its procedures supplementing these regulations (described
in §1507.3) whether the proposal is one which:
(1) Normally requires an environmental impact statement, or
(2) Normally does not require either an environmental impact statement
or an environmental assessment (categorical exclusion).
(b) If the proposed action is not covered by paragraph (a) of this section,
prepare an environmental assessment (§1508.9). The agency shall involve
environmental agencies, applicants, and the public, to the extent practicable,
in preparing assessments required by §1508.9(a)(1).
(c) Based on the environmental assessment make its determination whether
to prepare an environmental impact statement.
(d) Commence the scoping process (§1501.7), if the agency will prepare
an environmental impact statement.
(e) Prepare a finding of no significant impact (§1508.13), if the agency
determines on the basis of the environmental assessment not to prepare a
(1) The agency shall make the finding of no significant impact available
to the affected public as specified in §1506.6.
(2) In certain limited circumstances, which the agency may cover in its
procedures under §1507.3, the agency shall make the finding of no
impact available for public review (including State and areawide clearinghouses)
for 30 days before the agency makes its final determination
whether to prepare an environmental impact statement and before the action
may begin. The circumstances are:
(i) The proposed action is, or is closely similar to, one which normally
requires the preparation of an environmental impact statement under the
procedures adopted by the agency pursuant to § 1507.3, or
(ii) The nature of the proposed action is one without precedent.
1501.5 Lead agencies.
(a) A lead agency shall supervise the preparation of an environmental
impact statement if more than one Federal agency either:
(1) Proposes or is involved in the same action; or
(2) Is involved in a group of actions directly related to each other
because of their functional interdependence or geographical proximity.
(b) Federal, State, or local agencies, including at least one Federal
agency, may act as joint lead agencies to prepare an environmental impact
statement ( §1506.2).
(c) If an action falls within the provisions of paragraph (a) of this
section the potential lead agencies shall determine by letter or memorandum which agency shall be the lead agency and which shall be cooperating agencies.
The agencies shall resolve the lead agency question so as not to cause
delay. If there is disagreement among the agencies, the following factors
(which are listed in order of descending importance) shall determine lead
(1) Magnitude of agency's involvement.
(2) Project approval/disapproval authority.
(3) Expertise concerning the action's environmental effects.
(4) Duration of agency's involvement.
(5) Sequence of agency's involvement.
(d) Any Federal agency, or any State or local agency or private person
substantially affected by the absence of lead agency designation, may make
written request to the potential lead agencies that a lead agency be designated.
(e) If Federal agencies are unable to agree on which agency will be the
lead agency or if the procedure described in paragraph (c) of this section
not resulted within 45 days in a lead agency designation, any of the agencies
or persons concerned may file a request with the Council asking it to
determine which Federal agency shall be the lead agency.
A copy of the request shall be transmitted to each potential lead agency.
The request shall consist of:
(1) A precise description of the nature and extent of the proposed action.
(2) A detailed statement of why each potential lead agency should or should
not be the lead agency under the criteria specified in paragraph (c) of
(f) A response may be filed by any potential lead agency concerned within
20 days after a request is filed with the Council. The Council shall determine
as soon as possible but not later than 20 days after receiving the request
and all responses to it which Federal agency shall be the lead agency and
which other Federal agencies shall be cooperating agencies. [ §1501.5
amended at 44 FR 873, Jan. 3, 1979]
1501.6 Cooperating agencies.
The purpose of this section is to emphasize agency cooperation early in the
NEPA process. Upon request of the lead agency, any other Federal agency which
has jurisdiction by law shall be a cooperating agency. In addition any other
Federal agency which has special expertise with respect to any environmental
issue, which should be addressed in the statement may be a cooperating agency
upon request of the lead agency. An agency may request the lead agency to designate
it a cooperating agency.
(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
with jurisdiction by law or special expertise, to the maximum extent possible
consistent with its responsibility as lead agency.
(3) Meet with a cooperating agency at the latter's request.
(b) Each cooperating agency shall:
(1) Participate in the NEPA process at the earliest possible time.
(2) Participate in the scoping process (described below in (§1501.7).
(3) Assume on request of the lead agency responsibility for developing
information and preparing environmental analyses including portions of
environmental impact statement concerning which the cooperating agency
has special expertise.
(4) Make available staff support at the lead agency's request to enhance
the latter's interdisciplinary capability.
(5) Normally use its own funds. The lead agency shall, to the extent available
funds permit, fund those major activities or analyses it requests
from cooperating agencies. Potential lead agencies shall include such funding
requirements in their budget requests.
(c) A cooperating agency may in response to a lead agency's request for
assistance in preparing the environmental impact statement (described in
paragraph (b)(3), (4), or (5) of this section) reply that other program commitments
preclude any involvement or the degree of involvement requested in
the action that is the subject of the environmental impact statement. A copy
of this reply shall be submitted to the Council.
There shall be an early and open process for determining the scope of issues
to be addressed and for identifying the significant issues related to a
proposed action. This process shall be termed scoping. As soon as practicable
after its decision to prepare an environmental impact statement and before
the scoping process the lead agency shall publish a notice of intent ( §1508.22)
in the Federal Register except as provided in §1507.3(e).
(a) As part of the scoping process the lead agency shall:
(1) Invite the participation of affected Federal, State, and local agencies,
any affected Indian tribe, the proponent of the action, and other
interested persons (including those who might not be in accord with the
action on environmental grounds), unless there is a limited exception under §1507.3(c).
An agency may give notice in accordance with §1506.6.
(2) Determine the scope (§ 1508.25) and the significant issues to be analyzed
in depth in the environmental impact statement.
(3) Identify and eliminate from detailed study the issues which are not
significant or which have been covered by prior environmental review
( §1506.3), 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.
(4) Allocate assignments for preparation of the environmental impact statement
among the lead and cooperating agencies, with the lead agency
retaining responsibility for the statement.
(5) Indicate any public environmental assessments and other environmental
impact statements which are being or will be prepared that are related
are not part of the scope of the impact statement under consideration.
(6) Identify other environmental review and consultation requirements
so the lead and cooperating agencies may prepare other required analyses
studies concurrently with, and integrated with, the environmental impact
statement as provided in §1502.25.
(7) Indicate the relationship between the timing of the preparation of
environmental analyses and the agency's tentative planning and decisionmaking
(b) As part of the scoping process the lead agency may:
(1) Set page limits on environmental documents ( §1502.7).
(2) Set time limits ( §1501.8).
(3) Adopt procedures under §1507.3 to combine its environmental assessment
process with its scoping process.
(4) Hold an early scoping meeting or meetings which may be integrated
with any other early planning meeting the agency has. Such a scoping meeting
will often be appropriate when the impacts of a particular action are confined
to specific sites.
(c) An agency shall revise the determinations made under paragraphs (a)
and (b) of this section if substantial changes are made later in the proposed
action, or if significant new circumstances or information arise which bear
on the proposal or its impacts.
1501.8 Time limits.
Although the Council has decided that prescribed universal time limits for
the entire NEPA process are too inflexible, Federal agencies are encouraged
to set time limits appropriate to individual actions (consistent with the time
intervals required by §1506.10). When multiple agencies are involved the
reference to agency below means lead agency.
(a) The agency shall set time limits if an applicant for the proposed action
requests them: Provided, That the limits are consistent with the
purposes of NEPA and other essential considerations of national policy.
(b) The agency may:
(1) Consider the following factors in determining time limits:
(i) Potential for environmental harm.
(ii) Size of the proposed action.
(iii) State of the art of analytic techniques.
(iv) Degree of public need for the proposed action, including the consequences
(v) Number of persons and agencies affected.
(vi) Degree to which relevant information is known and if not known
the time required for obtaining it.
(vii) Degree to which the action is controversial.
(viii) Other time limits imposed on the agency by law, regulations,
or executive order.
(2) Set overall time limits or limits for each constituent part of the
NEPA process, which may include:
(i) Decision on whether to prepare an environmental impact statement
(if not already decided).
(ii) Determination of the scope of the environmental impact statement.
(iii) Preparation of the draft environmental impact statement.
(iv) Review of any comments on the draft environmental impact statement
from the public and agencies.
(v) Preparation of the final environmental impact statement.
(vi) Review of any comments on the final environmental impact statement.
(vii) Decision on the action based in part on the environmental impact
(3) Designate a person (such as the project manager or a person in the
agency's office with NEPA responsibilities) to expedite the NEPA process.
(c) State or local agencies or members of the public may request a Federal
Agency to set time limits.
May 27, 2009