AASHTO PH02-2016 AASHTO Practitioner's Handbook - Responding to Comments on an Environmental Impact Statement (Revision 2).pdf

1、AASHTO PRACTITIONERS HANDBOOK RESPONDING TO COMMENTS ON AN ENVIRONMENTAL IMPACT STATEMENT This Handbook provides information for developing responses to com- ments on an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). It also covers the issues associated with

2、 responding to comments on an Environmental Assessment (EA). Issues covered in this Handbook include: Preparing for the comment period Inviting comments on a Draft EIS Reviewing and categorizing comments Developing responses to comments Checking responses for accuracy and responsiveness Formats for

3、presenting comments and responses Responding to comments on a Final EIS Responding to comments on an EA Responding to comments raising legal issues Deciding whether to prepare a supplemental NEP A document The Practitioner s Handbooks are produced by the Center f o r Environmental Excellence by AASH

4、TO. The Handbooks provide practical advice on a range of environmental issues that arise during the planning, development, and operation of transportation projects. The Handbooks are primarily intended for use by project managers and others who are responsible for coordinating compliance with a wide

5、 range of regulatory requirements. With their needs in mind, each Handbook includes: key issues to consider; a background briefing; practical tips for achieving compliance; and a list of reference materials. In addition, key regulations, guidance materials, and sample documents for each Handbook are

6、 posted on the Center s web site at http:/environment.transportation.org American Association of State Highway and T ransportation Officials Center for Environmental Excellence by AASHT O 02 August 2016Copyright 2016, Center for Environmental Excellence by AASHT O (American Association of State High

7、way and T ranspor- tation Officials). All Rights Reserved. This book, or parts thereof, may not be reproduced in any form without written permis- sion of the publisher. Printed in the United States of America. This material is based upon work supported by the Federal Highway Administration under Coo

8、perative Agreement No. DTFH61-07-H-00019. Any opinions, findings, and conclusions or recommendations expressed in this publication are those of the Author(s) and do not necessarily reflect the view of the Federal Highway Administration. 2016 by the Center for Environmental Excellence by AASHTO. All

9、rights reserved. Duplication is a violation of applicable law.Responding to Comments on an Environmental Impact Statement 1 1In this Handbook, any references to the “Federal lead agency” include a state acting in the role of the Federal lead agency pursuant to a NEP A assignment program under 23 USC

10、 326 or 327. 2All highway , transit, and multimodal projects for which an EIS is prepare d must follow the environmental review process defined in 23 USC 139. Railroad projects requiring an EIS must comply with Section 139 “to the greatest extent feasible.” See 23 USC 139(b); 49 USC 24201(a). Overvi

11、ew This Handbook provides recommendations for reviewing and responding to comments on an environmental impact statement (EIS) for a transportation project in accordance with the National Environmental Policy Act (NEPA). It also provides advice on responding to comments on an environmental assessment

12、 (EA). Comments on an EIS typically are received from Federal and state regulatory agencies, local governments, stakeholder groups, and individuals. Comments may identify potential gaps or inconsistencies in the EIS; raise concerns about the fairness of the study process; point to specific regulator

13、y requirements that must be considered; or raise other concerns about compliance with NEP A or other laws. And, of course, many comments also present strong opinions for or against the project. For controversial projects, the most numerous comments are often those submitted by individuals or groups

14、who oppose the project. Giving all of the comments proper consideration requires a careful, well-organized effort by the project team. This effort typically involves drafting responses to hundreds or even thousands of individual comments. In addition, it is often necessary to make changes to the EIS

15、 itself and, in some cases, it is even necessary to prepare a supplemental EIS in order to respond adequately to the issues raised in the comments. This Handbook is intended to provide an overall framework for undertaking these important tasks. Topics covered in this Handbook include: Preparing for

16、the comment period Inviting comments on a Draft EIS Reviewing and categorizing comments Developing responses to comments Checking responses for accuracy and responsiveness Formats for presenting comments and responses Responding to comments on a Final EIS Responding to comments on an EA Responding t

17、o comments that raise legal issues Deciding whether to prepare a supplemental NEP A document Background Briefing This section briefly summarizes key requirements and guidance regarding Federal agencies obligation to respond to com- ments on NEPA documents for transportation projects. 1In addition to

18、 summarizing requirements in the Council on Environmen- tal Quality (CEQ) regulations, this section addresses the requirements of 23 USC 139, which applies to certain projects ap- proved by Federal Highway Administration (FHW A), Federal T ransit Administration (FT A), and Federal Railroad Administr

19、ation (FRA). 2This section also briefly addresses public comment and agency review requirements under other laws, such as Section 404 of the Clean W ater Act and Section 4(f) of the U.S. Department of T ransportation (U.S. DOT) Act. 2016 by the Center for Environmental Excellence by AASHTO. All righ

20、ts reserved. Duplication is a violation of applicable law.2 Responding to Comments on an Environmental Impact Statement Requirement for Draft EIS Comment Period. The CEQ regulations require a Federal agency preparing an EIS to provide an opportunity for comment on the Draft EIS and respond to those

21、comments in the Final EIS. The CEQ regulations state that the comment period for the Draft EIS normally should be at least 45 days. 3Section 139 also sets an upper limit: the comment peri- od must be no more than 60 days, unless (1) the lead agency, project sponsor, and all participating agencies ag

22、ree on a longer period, or (2) the comment period is extended by the lead agency for good cause. Notice of Availability in the Federal Register. The official time period for comments on a Draft EIS runs from the date of publication of a Notice of A vailability for the Draft EIS in the Federal Regist

23、er . The U.S. Environmental Protection Agency (EP A) will not submit the notice to the Federal Register until the NEP A document has been filed with the EP A and has been made available to other interested agencies and the public. Once the EPA submits the notice, there is a time lag of several days

24、before the notice is actually published. Therefore, the NEPA document often is available to other agencies and the public for several days, and sometimes a full week, before the official beginning of the comment period. Agencies Duty to Comment. The CEQ regulations require all agencies with jurisdic

25、tion by law or special expertise to provide comments on a Draft EIS on issues within their jurisdiction, expertise, or authority . 4The regulations also require cooperating agencies, when commenting on a Draft EIS, to specify any additional information they need to fulfill other requirements, includ

26、- ing Federal permits or other approvals; if the cooperating agency expresses objections to the project, it must specify mitigation measures that would allow the project to be approved. 5Echoing the CEQ regulations, Section 139 requires all participating agencies to provide comments on areas within

27、their special expertise or jurisdiction. 6Responding to “Substantive” Comments. The CEQ recommends that agencies respond to all “substantive” comments on a Draft EIS.” 7The term “substantive” has not been defined by CEQ, nor has it been defined by FHW A, FT A, or FRA in their regu- lations or guidan

28、ce. Dictionaries define this term to mean “having practical importance, value, or effect” or “involving matters of major or practical importance to all concerned.” 8In a NEPA context, this term generally has been interpreted to include a com- ment that addresses some specific aspect of the project o

29、r the NEP A document, rather than simply expressing a preference for or against the project. For example, two Federal agencies outside U.S. DOT have defined it as follows: BLM: “Substantive comments do one or more of the following: question, with reasonable basis, the accuracy of information in the

30、EIS or EA; question, with reasonable basis, the adequacy of, methodology for, or assumptions used for the environmental analysis; present new information relevant to the analysis; present reasonable alternatives other than those analyzed in the EIS or EA; cause changes or revisions in one or more of

31、 the alternatives.” 9 Forest Service: “Comments are considered substantive when they are within the scope of the proposal, are specific to the proposal, have a direct relationship to the proposal, and include supporting reasons for the responsible official to consider .” 10 The CEQ regulations also

32、require that all substantive comments be attached to the Final EIS, except that summaries may be attached if the substantive comments are “exceptionally voluminous.” 11 Summary Responses. When the comments are especially voluminous, the CEQ regulations allow for similar comments to be grouped togeth

33、er or summarized and addressed in a single response. 12Level of Detail in Responses. The CEQ recommends that agencies provide “a reasonable and proportionate response” to comments. 13 For example, the CEQ notes that a brief response is appropriate if a commenter simply asserts that the agency s meth

34、odology was inadequate, but a more thorough response should be provided if the commenter supports its comment with specific reasons why the commenter believes the methodology to have been inadequate. 14 Issuing a Combined Final EIS and ROD. For transportation projects subject to 23 USC 139, the Fina

35、l EIS and ROD are 340 CFR 1506.10(c). The 45-day period is determined based on calenda r days (including weekends), not business days. 440 CFR 1503.2. 540 CFR 1503.3(c), 1503.3(d). 623 USC 139(d)(9). 7CEQ, “Forty Most Asked Questions Concerning CEQ s NEP A Regulatio ns” (March 16, 1981), Question 14

36、d; see also 40 CFR 1503.4(b). 8See http:/ and http:/www.merriam- 9Bureau of Land Management, NEPA Handbook (Jan. 2008), p. 66. 1036 CFR 219.62. 1140 CFR 1503.4(b). 1240 CFR 1503.4(a); CEQ, “Forty Most Asked Questions Concerning CEQ s NEP A Regulations” (March 16, 1981), Questions 25a, 29a. 13CEQ, “I

37、mproving the Process for Preparing Efficient and T imely Environmental Reviews under NEP A” (March 6, 2012), p. 13. 14CEQ, “Forty Most Asked Questions Concerning CEQ s NEP A Regulations” (March 16, 1981), Question 29a. 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. D

38、uplication is a violation of applicable law.Responding to Comments on an Environmental Impact Statement 3 required to be issued as a single document unless the lead agency makes a determination that issuing a combined document is impracticable. 15Under U.S. DOT guidance, one of the issues to conside

39、r in making this practicability determination is the de- gree of controversy surrounding the project. 16For example, the opportunity to review comments submitted after the Final EIS may be helpful in resolving concerns and/or more thoroughly documenting the agencys consideration of opposing viewpoin

40、ts prior to reaching its decision. Inviting and Responding to Comments on a Final EIS. When the Final EIS and ROD are not issued as a single document, there must be at least a 30-day waiting period between the Final EIS and ROD. While the lead agency is not required to invite comments during this pe

41、riod, the agency has the discretion to request comments and to set a deadline for those comments; if no deadline is established, comments can be submitted on the Final EIS at any time prior to the ROD. 17One reason to set a deadline for submitting Final EIS comments is to provide a clear cut-off dat

42、e by which any such comments must be submitted. Under 23 USC 139, a comment period on a Final EIS must be no more than 30 days, unless the lead agency , project sponsor , and all participating agencies agree on a different comment period, or the comment period is extended by the lead agency “for goo

43、d cause.” 18Inviting and Responding to Comments on an EA. The CEQ regulations do not require a comment period on an EA, but the FHW A/FT A regulations in 23 CFR 771 do require that an EA be made available for a minimum of 30 days before a FONSI is issued. 19In addition, FHW A and FT A are allowed to

44、 use the environmental review process in 23 USC 139 for a proj- ect involving an EA. Under that process, the comment deadline for any document other than a Draft EIS must be no more than 30 days, unless (1) a different deadline is established by agreement of the lead agency , the project sponsor , a

45、nd all participat- ing agencies or (2) the deadline is extended by the lead agency for good cause. Thus, if the Section 139 process is followed for an EA, the comment period on the EA will normally be 30 days. Synchronizing NEPA Comment Periods with Comment Periods under Other Laws. Comment periods

46、in the NEP A pro- cess can overlap with comment periods required under other Federal, state, or local laws. For example, the Section 4(f) regula- tions require a 45-day period for the U.S. Department of the Interior to review a draft Section 4(f) evaluation. This Section 4(f) comment period often oc

47、curs in parallel with the Draft EIS comment period. The Section 404 permitting process also includes a comment period, normally between 15 and 30 days. If the project sponsor is able to submit the Section 404 permit application before publication of the Draft EIS, the U.S. Army Corps of Engineers ca

48、n issue its public notice so that the comment period on the permit application runs in parallel with the comment period on the Draft EIS. Key Issues to Consider Preparing for the Comment Period What work that can be done in advance of the comment period to facilitate the development of responses? Wh

49、at technology will be used to compile comments and responses and make them available to members of the project team? Who will be directly responsible for drafting responses? What review process will be used to ensure that responses are accurate and complete? Does the Federal lead agency have any special preferences or requirements regarding the review process, response format, level of detail, etc.? Is there a need for legal counsel review