Chapter 14 - § 14.4 • THE NEPA OBLIGATION

• Jurisdiction: Colorado

§ 14.4 • THE NEPA OBLIGATION

If NEPA is triggered, a federal agency — or anyone interested in identifying the agency's NEPA obligation — must go through a three-tier analysis.⁷⁷ A flowchart at Exhibit 14A depicts that analysis in summary form.

First, the agency should ask whether the action is subject to a categorical exclusion. A categorical exclusion means that the agency has previously determined that a given category of actions is exempt from the requirement to prepare an EIS because the actions do not individually or cumulatively have a significant effect on the environment.⁷⁸

Second, if the action is not categorically excluded, the agency must prepare an EA, unless the agency has previously determined by regulation that the action normally requires preparation of an EIS.⁷⁹ The EA provides a concise analysis to determine whether the proposed action will produce significant environmental effects. If so, the agency must prepare an EIS. If not, the agency prepares a finding of no significant impact (FONSI) after preparing the EA.⁸⁰

Third, if there may be a significant impact on the human environment, the agency must prepare an EIS.⁸¹ After preparing the EIS, the agency must prepare a record of decision, the provisions of which are enforceable.⁸²

§ 14.4.1—Categorical Exclusion

A categorical exclusion is a determination by an agency that a category of actions does not individually or cumulatively have a significant effect on the human environment and that such actions are, therefore, exempt from the requirement to prepare an EIS.⁸³ The determination must be made in accordance with the agency's procedures, and those procedures may be adopted only after consultation with the CEQ.⁸⁴ A categorically excluded action may nonetheless require full NEPA analysis — preparation of either an EA or EIS — if there are "extraordinary circumstances," such as when the excluded action may cause significant environmental impacts.⁸⁵

Categorical exclusions may be identified by consulting an agency's regulations, policies, manuals, and other materials.⁸⁶ If a given action is subject to a categorical exclusion, the agency fulfills its NEPA obligations by documenting that the proposed action is categorically excluded from NEPA in accordance with the procedures set forth in the exclusion. An agency's decision to rely upon a categorical exclusion will be set aside only if the decision is arbitrary and capricious.⁸⁷

§ 14.4.2—Environmental Assessment

If no categorical exclusion applies to a proposed action, and if the agency's regulations do not require preparation of an EIS, an agency must prepare an EA. (Of course, an agency is not required to prepare an EA if it elects to prepare an EIS.) An EA is a concise document that briefly provides the evidence and analysis for determining whether a proposed action may have a significant effect on the environment.⁸⁸ If the EA establishes that the agency's action may have a significant effect upon the environment, an EIS must be prepared, even if it is uncertain if that effect will, in fact, occur.⁸⁹ The EA must include brief discussions of the purpose and need for the proposal, of alternatives, and of the environmental impacts, and a listing of the persons and agencies consulted.⁹⁰

The purpose of preparing the EA is to determine whether the proposed action — including as mitigated by conditions imposed by the proponent or the agency — may have a significant effect on the environment.⁹¹ If not, the agency documents its finding in a FONSI. The...