Rural County Representatives of California Board of Directors Meeting Wednesday, January 15, 2020 – 9:00 a.m. 1215 K Street, Suite 1650 – Board Room Sacramento, CA 95814

MINUTES

Call to Order, Determination of Quorum and Self Introductions Chair, Supervisor Daron McDaniel, Merced County, called the meeting to order at 9:05 a.m. A quorum was determined at that time. Those present: Supervisor County David Griffith Alpine Brian Oneto Amador Doug Teeter Butte Jack Garamendi Calaveras Denise Carter Colusa Gerry Hemmingsen Del Norte Lori Parlin El Dorado Rex Bohn Humboldt Michael Kelley Imperial Matt Kingsley Inyo E.J. Crandell Lake Aaron Albaugh Lassen David Rogers Madera Kevin Cann Mariposa Carre Brown Mendocino Daron McDaniel Merced Geri Byrne Modoc Stacy Corless Mono Chris Lopez Monterey Diane Dillon Napa Dan Miller Nevada Jim Holmes Placer Anthony Botelho San Benito Les Baugh Shasta Lee Adams Sierra Michael Kobseff Siskiyou Mat Conant Sutter Bob Williams Tehama Jeremy Brown Trinity Kuyler Crocker Tulare Sherri Brennan Tuolumne Gary Sandy Yolo Randy Fletcher Yuba Absent John Viegas Glenn Kevin Goss Plumas Lynn Compton San Luis Obispo Lynda Hopkins Sonoma

Others in Attendance Supervisor Terry Woodrow, Alpine County Supervisor Miles Menetrey, Mariposa County Supervisor Ned Coe, Modoc County Supervisor Bobbi Chadwick, Trinity County Jim Brown, Merced County Assembly Member Adam Gray Ed Horton, Placer County Water Agency Crystal Crawford, Ygrene Energy Fund Thomas Coverick, KeyBanc Capital Markets Harrison Pardini, Office of Assembly Member Adam Gray Jamme Yang, Yuba County

Staff in Attendance Greg Norton, President and CEO Lisa McCargar, Chief Financial Officer/Chief Operating Officer Craig Ferguson, Senior Vice President Paul A. Smith, Senior Vice President Governmental Affairs Justin Caporusso, Vice President External Affairs Mary-Ann Warmerdam, Senior Legislative Advocate John Kennedy, Legislative Advocate Tracy Rhine, Legislative Advocate Staci Heaton, Senior Regulatory Affairs Advocate Arthur Wylene, General Counsel Barbara Hayes, Chief Economic Development Officer Maggie Chui, Senior Governmental Affairs Coordinator Leigh Kammerich, Regulatory Affairs Specialist Sarah Bolnik, Economic Development Specialist Milena De Melo, Controller

Pledge of Allegiance

2020 Officers Swearing-In Immediate Past Chair Matt Kingsley, Inyo County, introduced Assembly Member Adam Gray (D-Merced). Assembly Member Gray conducted the swearing-in of the 2020 Officers:

2020 Chair Supervisor Daron McDaniel, Merced County 2020 First Vice Chair Supervisor Stacy Corless, Mono County 2020 Second Vice Chair Supervisor Dan Miller, Nevada County 2020 Immediate Past Chair Supervisor Matt Kingsley, Inyo County

RCRC Outgoing Chair Remarks Immediate Past Chair, Supervisor Matt Kingsley, Inyo County, thanked fellow supervisors and RCRC staff for placing their trust in him to represent RCRC in 2019. Supervisor Kingsley provided a brief summary of accomplishments and achievements during his tenure as Chair of the RCRC Board of Directors.

Greg Norton, President and CEO, presented Supervisor Kingsley with a gift as a token of appreciation.

RCRC Incoming Chair Remarks Chair, Supervisor Daron McDaniel, Merced County, provided a brief overview of goals for 2020, and expressed his enthusiasm to serve as RCRC’s 2020 Chair.

Approval of Minutes – December 11, 2019 Chair, Daron McDaniel, Merced County, called for approval of the minutes from the December 11, 2019 Board of Directors Meeting.

Supervisor Diane Dillon, Napa County, motioned to approve the minutes from the December 11, 2019 Board of Directors Meeting. Supervisor Michael Kobseff, Siskiyou County, seconded the motion. Motion passed with all Supervisors present voting “Aye,” except as follows:

Abstaining: Supervisor Brian Oneto, Amador County; Supervisor Michael Kelley, Imperial County; Supervisor David Rogers, Madera County; Supervisor Chris Lopez, Monterey County; Supervisor Les Baugh, Shasta County

Member County Concerns and Issues Supervisor Rex Bohn, Humboldt County, shared his concern regarding homelessness in Humboldt County. While there are state grants available to alleviate the problem, it is difficult for rural counties to access due to staff and resources constraints.

Supervisor Michael Kobseff, Siskiyou County, voiced his concern about Siskiyou County’s hospitals facing a surge of patients with criminal psychiatric disorders and bed shortage issues that are placing undue burden on Siskiyou County’s hospitals.

Supervisor Les Baugh, Shasta County, thanked RCRC for sponsoring Shasta County’s economic development summit.

Supervisor Baugh also shared his concern regarding homelessness as it relates to the possibility of homeless camps occupying the state fairgrounds in the City of Anderson.

Lastly, Supervisor Baugh spoke to his understanding that the California Air Resources Board desires to phase-out small gas-powered equipment in the state. Supervisor Brian Oneto, Amador County, noted that the Amador County Board of Supervisors recently reviewed a resolution that was adopted by the Tuolumne County Board of Supervisors to address the imminent threat of disaster due to severe and persistent fire danger.

Supervisor Oneto also requested RCRC staff to review opportunities to engage on the Trump Administration’s efforts to modernize the National Environmental Policy Act.

Supervisor Chris Lopez, Monterey County, shared his concerns about funding reductions to the First 5 program in Monterey County and the University of California’s 4-H Development Program.

Supervisor Sherri Brennan, Tuolumne County, shared that the Tuolumne County Board of Supervisors adopted a resolution which proclaimed a local state of emergency due to severe and persistent fire danger. The Tuolumne County Board of Supervisors are also working with neighboring counties on a joint resolution to address fire dangers.

Supervisor David Rogers, Madera County, spoke about a recent incident in Madera County where a group of aggressive individuals filmed people in various places, and later distributed the video on the internet for public consumption.

Supervisor Lee Adams, Sierra County, shared that there will be a meeting with the California Department of Forestry and Fire Protection Chief Thom Porter, and invited interested supervisors to join the meeting that will take place in February.

Supervisor Randy Fletcher, Yuba County, thanked the Tuolumne County Board of Supervisors for taking action to adopt a state of emergency due to severe and persistent fire danger, and also for organizing a coalition of neighboring counties to address pervasive fire threats.

Supervisor Dan Miller, Nevada County, shared that Nevada County experienced an officer involved shooting incident with a pretrial release felon that did not end well.

Supervisor Miller also shared his concern regarding commercial businesses experiencing insurance nonrenewals.

Supervisor Daron McDaniel, Merced County, shared that Merced County will implement a pilot program that would add approximately 120-150 beds within 6-7 months in facilities for those that are homeless.

Public Comments None. President's Report Greg Norton informed the RCRC Board of Directors on RCRC’s recent and upcoming sponsorships, including the Center for Economic Development’s 2020 Economic Forecast, the Cohesive Strategies Evening Reception, the California Forestry Association’s Annual Meeting, and the Central Sierra Broadband Conference.

Mr. Norton provided a brief update on recent attendance to conferences and meetings by RCRC staff. RCRC staff also visited RCRC member counties, including Butte, El Dorado, and Shasta, and others in recent weeks.

Mr. Norton announced three organizational promotions, effective January 1, 2020:

 Lisa McCargar, Chief Financial Officer/Chief Operating Officer  Craig Ferguson, Senior Vice President  Paul A. Smith, Senior Vice President Governmental Affairs

The promotions continue the focused effort of ongoing cross-over understanding and communication to best serve RCRC and its affiliate organizations.

RCRC Resolution 20-01: RCRC Board Travel Policy - ACTION Lisa McCargar, Chief Financial Officer/Chief Operating Officer, provided an overview of the proposed revisions to Resolution 20-01, Travel Expense Policy for RCRC Delegates and Alternates.

Ms. McCargar discussed proposed changes, including the proposed per-night maximum lodging expense increase from $135 to $140 per night. In addition, based on the Internal Revenue Service’s 2020 set rate for reimbursement of mileage for personally-owned vehicles, the standard mileage rate has been updated to $0.575, down from $0.58 in 2019.

Ms. McCargar announced that Milena De Melo, Controller, will be the new point person for reviewing and processing the Delegate Expense Claim forms.

Recommendation It was recommended that the RCRC Board of Directors review and approve the proposed Board Travel Expense Policy, Resolution 20-01.

Supervisor Rex Bohn, Humboldt County, motioned to approve the RCRC Resolution 20-01: RCRC Board Travel Policy. Supervisor Michael Kobseff, Siskiyou County, seconded the motion. Motion passed with all Supervisors present voting “Aye.”

RCRC Resolution 20-02: Board of Directors Code of Conduct Paul A. Smith, Senior Vice President Governmental Affairs, provided an overview of the proposed revisions to Resolution 20-02, RCRC Board Code of Conduct. Mr. Smith explained that the Code of Conduct is approved annually at the first RCRC Board of Directors meeting of the year.

Staff Recommendation Staff recommended that the RCRC Board of Directors review and approve RCRC Resolution 20-02: Board of Directors Code of Conduct.

Supervisor Michael Kobseff, Siskiyou County, motioned to approve the RCRC Resolution 20-02: Board of Directors Code of Conduct. Supervisor Jim Holmes, Placer County, seconded the motion. Motion passed with all Supervisors present voting “Aye.”

RCRC 2020 Investment Policy Renewal Lisa McCargar provided an overview of the 2020 Investment Policy Renewal. The Investment Committee made significant revisions to the policy to provide more current language as recognized by industry standards. Ms. McCargar explained that while the text was updated and ordering of paragraphs within the document changed, there were no policy changes made to the authorized or suitable investments in which RCRC may invest. In addition, revisions within the “Authorized and Suitable Investments” section reflect better descriptions of investments.

Staff Recommendation It was recommended that the RCRC Board of Directors review and approve the draft RCRC 2020 Investment Policy.

Supervisor Rex Bohn, Humboldt County, motioned to approve the RCRC 2020 Investment Policy Renewal. Supervisor Gerry Hemmingsen, Del Norte County, seconded the motion. Motion passed with all Supervisors present voting “Aye.

Overview of the State Budget Paul A. Smith provided a brief overview of the Governor’s 2020-21 proposed Budget, which was released on January 10, 2020. Mr. Smith requested supervisors to review the letter RCRC staff penned to Governor Newsom that outlined California’s rural counties’ 2020-21 State Budget priorities. The letter was sent to the Governor before the January 10th release of the proposed Budget.

Staci Heaton, Senior Regulatory Affairs Advocate, highlighted the following: the proposed Cap-and-Trade Expenditure Plan which includes allocations to forest health programs and others; the creation of the Climate Catalyst Fund which provides low-interest loans to the private market for climate-related technologies and infrastructure; the continued commitment to address emergency preparedness and response; and, assistance to help local governments improve their resiliency to Public Safety Power Shutoff events. Mary-Ann Warmerdam, Senior Legislative Advocate, highlighted the following: the inclusion of State Payment in Lieu of Taxes allocation to local governments; allocations to the University of California, Division of Agriculture and Natural Resources, including the proposed Fresno-Merced Food Innovation Corridor; funding to support local implementation of the Sustainable Groundwater Management Act; and, the proposed climate resilience bond for the November 2020 ballot.

Tracy Rhine, Legislative Advocate, highlighted the following: the In-Home Supportive Services program; efforts to update the Mental Health Services Act; the ongoing efforts to spur housing production; and, efforts to confront the homelessness crisis. Ms. Rhine provided an overview of Governor Newsom’s Executive Order, which explored siting affordable housing on excess state land.

Consideration of 2020 RCRC Sponsored Legislation Paul A. Smith discussed two 2020 Legislative Session proposals for potential RCRC sponsorship/co-sponsorship. The two legislative items addressed include: the interstate cannabis-export, which would allow the Governor to enter into compacts with other states to allow cannabis/cannabis products to move across state lines; and, Alcohol Beverage Control licenses in Mariposa County, which would increase the amount of on-sale alcoholic beverage licenses available. The RCRC Board of Directors discussed at length the pros and cons of the two proposals as it pertains to RCRC member counties.

Staff Recommendation RCRC staff recommended the RCRC Board of Directors approve the sponsoring/co- sponsoring of the above-mentioned legislative proposals.

Supervisor Rex Bohn, Humboldt County, motioned to approve the interstate cannabis-export proposal. Supervisor Stacy Corless, Mono County, seconded the motion. Motion passed with the following roll call vote taken:

“Aye”: Supervisor David Griffith, Alpine County; Supervisor Doug Teeter, Butte County; Supervisor Jack Garamendi, Calaveras County; Supervisor Denise Carter, Colusa County; Supervisor Gerry Hemmingsen, Del Norte County; Supervisor Lori Parlin, El Dorado County; Supervisor Rex Bohn, Humboldt County; Supervisor Michael Kelley, Imperial County; Supervisor Matt Kingsley, Inyo County; Supervisor E.J Crandell, Lake County; Supervisor Kevin Cann, Mariposa County; Supervisor Carre Brown, Mendocino County; Supervisor Daron McDaniel, Merced County; Supervisor Stacy Corless, Mono County; Supervisor Jim Holmes, Placer County; Supervisor Anthony Botelho, San Benito County; Supervisor Lee Adams, Sierra County “No”: Supervisor Brian Oneto, Amador County; Supervisor Aaron Albaugh, Lassen County; Supervisor David Rogers, Madera County; Supervisor Geri Byrne, Modoc County; Supervisor Diane Dillon, Napa County; Supervisor Dan Miller, Nevada County; Supervisor Les Baugh, Shasta County; Supervisor Michael Kobseff, Siskiyou County; Supervisor Mat Conant, Sutter County; Supervisor Bob Williams, Tehama County; Supervisor Kuyler Crocker, Tulare County; Supervisor Sherri Brennan, Tuolumne County; Supervisor Randy Fletcher, Yuba County

Supervisor Jeremy Brown, Trinity County, abstained. Supervisor Chris Lopez, Monterey County, and Supervisor Gary Sandy, Yolo County, absent.

Supervisor Doug Teeter, Butte County, motioned to approve the Alcohol Beverage Control licenses in Mariposa County proposal. Supervisor Diane Dillon, Napa County, seconded the motion. Motion passed with all Supervisors present voting “Aye.”

Adoption of RCRC’s 2020 Policy Principles Paul A. Smith provided an overview of the proposed RCRC 2020 Policy Principles, and explained that the December 2019 RCRC Board Packet contained the draft RCRC 2020 Policy Principles.

RCRC staff received recommended changes from a handful of RCRC member counties. The edits and amendments recommended by RCRC member counties and staff was presented in the January 2020 RCRC Board Packet.

Recommendation Supervisor Diane Dillon, Napa County, requested the following text be incorporated under the Public Safety Power Shutoff (PSPS) section of the 2020 Policy Principles: “RCRC supports legislation and regulatory decision making to ensure consistent statewide direction to utilities on communication and notification of PSPS events.” Supervisor Diane Dillon, Napa County, motioned to incorporate the PSPS verbiage to the 2020 Policy Principles. Supervisor Jim Holmes, Placer County, seconded the motion. Motion passed with all Supervisors present voting “Aye.”

RCRC staff recommended that the RCRC Board of Directors approve the 2020 Policy Principles, as amended.

Supervisor Michael Kobseff, Siskiyou County, motioned to approve the 2020 Policy Principles, as amended. Supervisor Jim Holmes, Placer County, seconded the motion. Motion passed with all Supervisors present voting “Aye.” Forest Management and Wildfire Update Staci Heaton provided an update on several efforts to address California's persistent wildfire events, including: the dispute between the California Insurance Commissioner Ricardo Lara and the Fair Access to Insurance Requirements (FAIR) Plan that would require the FAIR Plan to offer a comprehensive policy; Governor Newsom’s Executive Order which prohibits price gouging for recovering communities; and, the release of the final California Vegetation Treatment Program Environmental Impact Report.

Federal Issues Update Paul A. Smith encouraged supervisors to review the memo for updates on issues at the federal level that are of importance to RCRC member counties, including a two-year reauthorization of the Secure Rural Schools and continued funding of the Federal Payments In Lieu of Taxes program, appropriations for FY 2020, cannabis and hemp banking, rural broadband and telecommunications, disaster relief, State and Local Tax Cap, United States–Mexico–Canada Agreement, and infrastructure.

State Legislation Paul A. Smith explained that the California Legislature recently reconvened for the 2020 Legislative Session. Given this is the second year of the 2019-20 Legislative Session, policy committees are considering “two-year” bills left over from 2019. These bills must be passed out of their house of origin by January 31, 2020. Mr. Smith noted that a number of legislative items will require further review after the bill introduction deadline on February 21, 2020.

Mr. Smith reported on the following:  Assembly Bill 315 (C. Garcia), would have placed burdensome restrictions and reporting requirements on municipal advocacy organizations such as RCRC. Fortunately, Assembly Member Garcia withdrew AB 315 from being heard in the Assembly Local Government Committee.

Staci Heaton reported on the following:  Assembly Bill 19 (Waldron), the RCRC-sponsored bill which allocates funds to local agencies specifically for purchasing equipment to clear brush and other fire- prone materials from around local roads. Ms. Heaton recently testified before the Assembly Natural Resources Committee in support.

John Kennedy, Legislative Advocate, reported on the following:  Assembly Bill 1907 (Santiago), the recently-introduced bill which would exempt from environmental review under the California Environmental Quality Act certain activities approved by or carried out by a public agency in advance of providing emergency shelters, supportive housing, or affordable housing.  Senate Bill 372 (Wieckowski), the Beverage Container Recycling Act of 2020, which, among other provisions, requires beverage container distributors of beverage containers to form a stewardship organization. SB 372 awaits consideration in the Senate Environmental Quality Committee. California Public Utilities Commission Wildfire Proceedings Update Staci Heaton, John Kennedy, and Leigh Kammerich, Regulatory Affairs Specialist, provided an overview of three proceedings undertaken by the California Public Utilities Commission (CPUC), including how utilities undertake wildfire hazard mitigation, de- energization of power lines to prevent high-severity wildfires, and the Self-Generation Incentive Program (SGIP).

RCRC recently filed comments pertaining to the Wildfire Mitigations Plan (WMP) and new processes. RCRC supports the annual auditing of WMP’s that the maturity model currently contemplates, but expressed concern with the uncertain future of public participation guarantees.

In addition, RCRC recently filed comments on de-energization, particularly on Pacific Gas and Electric’s after-action reports, and requested more scrutiny of these events by the CPUC, as well as better insight from the utility on these reports.

Lastly, RCRC recently moved for party status, and submitted comments on SGIP. RCRC made comments in support of the Proposed Decision, but also requested that county elections offices be included as a non-residential critical resiliency need to access program funding. RCRC understands the benefits of energy storage technology to improve resilience during de-energization, but knows it cannot be the sole method used to achieve local resiliency. RCRC will continue to advocate for a broad suite of solutions for resilient communities and customers.

Industrial Hemp Regulations Paul A. Smith, Arthur Wylene, General Counsel, and Leigh Kammerich provided an overview of the Industrial Hemp Cultivation, Abatement and Enforcement Regulations currently proposed by the California Department of Food and Agriculture (CDFA).

The state and federal regulators issued rulemaking for commercial industrial hemp production, testing, and enforcement. In mid-October 2019 CDFA released proposed regulations. RCRC has submitted comments explaining that CDFA should make specific revisions to the state regulations in order to address discrepancies.

In late-October 2019, the USDA imposed an Interim Final Rule for hemp production under federal law, including guidelines for approval of state plans. RCRC will be preparing comments for the USDA.

Mr. Smith thanked San Benito County and Shasta County’s Agriculture Commissioners for their assistance. The RCRC Board of Directors discussed the regulations as it pertains to their respective counties.

California Air Resources Board Advanced Clean Trucks Regulations Staci Heaton provided an overview of the California Air Resources Board (CARB) establishing sales requirements on truck manufacturers and reporting requirements for fleet operators of light/medium duty and heavier trucks. Ms. Heaton discussed the negative impacts the regulations would have on RCRC member counties should these regulations go into effect, including a reduction of used vehicles from urban areas, which would significantly shrink the pool of available used vehicles in the future for rural communications; and, that all municipal fleets would be required to comply with the reporting requirements regardless of size or location. The reporting requirements are onerous, and likely signify further regulatory restrictions on fleet makeup and purchases in the future.

While RCRC did not file formal comments, RCRC did send a letter to CARB outlining concerns with both the proposal and CARB’s lack of outreach to local governments.

Water Issues Update Mary-Ann Warmerdam, Senior Legislative Advocate, provided a brief update on issues involving California water policy. Ms. Warmerdam spoke on the Water Resiliency Initiative Portfolio, which would help shape the roadmap for meeting future water needs of the state. RCRC is reviewing the document and will be submitting comments, which are due by February 7, 2020. Ms. Warmerdam also spoke briefly about the general obligation bonds to fund resources programs, and the Safe and Affordable Drinking Water Fund.

Sustainable Groundwater Management Act Update Mary-Ann Warmerdam reminded the RCRC Board of Directors of the impending deadline for the implementation of the Sustainable Ground Water Management Act (SGMA). For those basins/sub-basins designated as critically over-drafted, the Groundwater Sustainability Plans are due to the Department of Water Resources by January 31, 2020. For basins designated as high- or medium-priority, plans are due on January 31, 2022. Ms. Warmerdam explained that RCRC staff will continue to engage in the implementation of SGMA to ensure the concerns of RCRC member counties are addressed.

Adjournment Chair, Supervisor Daron McDaniel, Merced County, adjourned the RCRC Board of Directors Meeting at 1:55 p.m.

To: RCRC Board of Directors From: Greg Norton, President & CEO Date: March 3, 2020 Re: RCRC Revised Pay Rate Schedule - ACTION

Summary Annually, RCRC is required to approve a pay rate schedule for all positions that participate in CalPERS. The most recent pay rate schedule was approved by the RCRC Executive Committee and the RCRC Board of Directors in conjunction with the approval of the 2020 annual budget.

Issue Since approval of the current pay rate schedule, promotions occurred. The attached pay rate schedule has been revised to reflect revised positions and pay rates.

At their February Executive Committee meeting, the RCRC Executive Committee approved the revised pay rate schedule and agreed to forward such a recommendation for the RCRC Board of Directors to consider.

Recommendation It is recommended that the RCRC Board of Directors approve the revised pay rate schedule.

Attachment(s)  Pay Schedule (Track Changes)  Pay Schedule (Clean)

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG

Rural County Representatives of California Pay Schedule 2020

Payrate Payrate Position/Title Minimum Maximum Time Base

President/CEO $250,000 $510,000 Annual Senior Vice President $200,000 $400,000 Annual Vice President $150,000 $355,000 Annual Chief Operating Officer/Chief Financial Officer $150,000 $400,000310,000 Annual Chief Economic Development Officer $135,000 $275,000 Annual General Counsel $120,000 $250,000 Annual Senior Legislative/Regulatory Advocate $120,000 $250,000 Annual Economic Development Project Manager $120,000 $250,000 Annual Legislative Advocate $ 90,000 $200,000 Annual Regulatory Affairs Advocate $ 90,000 $192,937 Annual Controller $ 90,000 180,000 Annual Program Manager $ 90,000 $180,000 Annual Director of Data Management $ 85,000 $180,000 Annual IT Director $ 75,000 $160,000 Annual Director of Operations $ 70,000 $155,000 Annual Economic Development Officer $ 60,000 $148,525 Annual Economic Development Specialist $ 60,000 $120,000 Annual Marketing Director $ 70,000 $129,650 Annual External Affairs Coordinator $ 60,000 $110,250 Annual Senior Governmental Affairs Coordinator $ 60,000 $110,250 Annual Regulatory Affairs Specialist $ 55,000 $90,000 Annual Assistant Controller $ 50,000 $110,250 Annual Financial Analyst $ 50,000 $ 100,000 Annual Program Administrator/Trainer $ 50,000 $100,000 Annual Client Relations Representative $ 16.00 $ 39.00 Hourly Office Coordinator $ 18.00 $ 30.00 Hourly Office Assistant/Receptionist $ 16.00 $ 27.50 Hourly

Rural County Representatives of California Pay Schedule 2020

Payrate Payrate Position/Title Minimum Maximum Time Base

President/CEO $250,000 $510,000 Annual Senior Vice President $200,000 $400,000 Annual Vice President $150,000 $355,000 Annual Chief Operating Officer/Chief Financial Officer $150,000 $400,000 Annual Chief Economic Development Officer $135,000 $275,000 Annual General Counsel $120,000 $250,000 Annual Senior Legislative/Regulatory Advocate $120,000 $250,000 Annual Economic Development Project Manager $120,000 $250,000 Annual Legislative Advocate $ 90,000 $200,000 Annual Regulatory Affairs Advocate $ 90,000 $192,937 Annual Controller $ 90,000 180,000 Annual Program Manager $ 90,000 $180,000 Annual Director of Data Management $ 85,000 $180,000 Annual IT Director $ 75,000 $160,000 Annual Director of Operations $ 70,000 $155,000 Annual Economic Development Officer $ 60,000 $148,525 Annual Economic Development Specialist $ 60,000 $120,000 Annual Marketing Director $ 70,000 $129,650 Annual External Affairs Coordinator $ 60,000 $110,250 Annual Senior Governmental Affairs Coordinator $ 60,000 $110,250 Annual Regulatory Affairs Specialist $ 55,000 $90,000 Annual Assistant Controller $ 50,000 $110,250 Annual Financial Analyst $ 50,000 $ 100,000 Annual Program Administrator/Trainer $ 50,000 $100,000 Annual Client Relations Representative $ 16.00 $ 39.00 Hourly Office Coordinator $ 18.00 $ 30.00 Hourly Office Assistant/Receptionist $ 16.00 $ 27.50 Hourly

To: RCRC Board of Directors From: Leigh Kammerich, Regulatory Affairs Specialist Paul A. Smith, Senior Vice President Governmental Affairs Date: March 3, 2020 Re: Assembly Bill 1236 Electric Vehicle Charging Compliance

Summary This memo provides context for the RCRC Board of Director’s discussion from our guest speaker, Tyson Eckerle. Mr. Eckerle is the Deputy Director of the Zero Emission Vehicle (ZEV) Infrastructure Unit within the Governor’s Office of Business and Economic Development (GO-Biz).

Background Assembly Bill 1236 (Chiu; 2015) mandated all municipalities to streamline electric vehicle charging station permits in order to expedite the availability of electric vehicle (EV) charging stations. Cities and counties with a population of less than 200,000 were required to adopt such an ordinance by September 30, 2017. All other cities and counties were required to have such ordinances in place by September 30, 2016. In addition to adopting an ordinance, local jurisdictions are required to publish a “Plug-In Electric Vehicle Infrastructure Permitting Checklist.” The intent of AB 1236 was to encourage EV charging station infrastructure and minimize the costs associated with their installation.

Under an Executive Order issued by Governor Brown in 2018, California has established a goal of having 5 million ZEVs by 2030, necessitating the ambitious targets of having 200 hydrogen fueling stations and 250,000 plug-in electric chargers by 2025 to support 1.5 million ZEVs. The GO-Biz ZEV unit works to achieve California’s climate, air quality, and clean energy goals by addressing barriers in the deployment of the fueling infrastructure needed to power these vehicles.

Transportation is the largest source of Greenhouse Gas Emissions (GHG) in California. In September 2019, the United States Environmental Protection Agency (EPA) accused California of systematically failing to comply with pollution reduction measures under the Clean Air Act. The EPA threatened to withhold federal funding for California’s highway projects unless a State Implementation Plan for California’s 35 local air districts was submitted. Since then, in January 2020 the EPA has announced California has made “great progress” toward compliance by reducing the decades-long backlog of State Implementation Plans by the California Air Resources Board (CARB).

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG Issue Since AB 1236 went into effect, few cities and counties have taken action to adopt a model ordinance for a streamlined EV charging permitting process, including urbanized areas. Approximately seven RCRC member counties have taken steps to comply with AB 1236, including Butte, Calaveras, Humboldt, Monterey, Napa, Nevada, San Luis Obispo, Sonoma, Tuolumne, and Yolo Counties.

GO-Biz has been tracking AB 1236 compliance and assembled an Electric Vehicle Charging Station Permitting Guidebook, in addition to a mapping tool that provides clarity and implementation guidance on streamlining requirements, such as best practices, for local jurisdictions. California Building Officials (CALBO) have also created toolkits that include templates for these model ordinances as well as sample permitting checklists. To access these toolkits, please visit https://www.calbo.org/post/electric-vehicle-charging.

Due to the lack of compliance with AB 1236’s requirements, Electrify America is sponsoring legislation this year to further expedite permitting applications for EV charging stations. AB 2168 would deem EV charging applications approved 15 business days after submittal to a city or county if the building official has not made a finding that the installation of EV charging infrastructure would not have an adverse impact upon public health and safety. AB 2168 would apply to all local jurisdictions, including those that have complied with AB 1236’s streamlined permitting process. AB 2168 would go into effect immediately if signed into law by the Governor. RCRC is opposed to AB 2168 and will be fully engaged on this issue in the Legislature.

Lastly, pursuant to Senate Bill 498 (Skinner; 2017) CARB is compiling a report to the Legislature on programs that affect the adoption of light-, medium-, and heavy-duty ZEVs and will identify policy recommendations in the near future for lawmakers. Similarly, as reported in the January 2020 RCRC Board of Directors meeting, CARB is also poised to take future action on Advanced Clean Truck (ACT) surveys and procurement mandates for public and private fleets. Such actions would require a robust specialty fueling and EV charging infrastructure across California to support these vehicles.

Staff Recommendation Information only. For questions or guidance on AB 1236 compliance, please contact [email protected].

Attachment  AB 1236 (Chiu) of 2015  AB 1236 Compliance Status (as of March 3, 2020)  CALBO AB 1236 Sample Model Ordinance for Small Jurisdictions  CALBO AB 1236 Sample Permitting Checklist for Small Jurisdictions  AB 2168 (McCarty, Chiu and Reyes) Assembly Bill No. 1236

CHAPTER 598

An act to add Section 65850.7 to the Government Code, relating to local ordinances.

[Approved by Governor October 8, 2015. Filed with Secretary of State October 8, 2015.]

legislative counsel’s digest AB 1236, Chiu. Local ordinances: electric vehicle charging stations. The Planning and Zoning Law, among other things, requires the legislative body of each county and city to adopt a general plan for the physical development of the county or city and authorizes the adoption and administration of zoning laws, ordinances, rules, and regulations by counties and cities. Existing law, the Electric Vehicle Charging Stations Open Access Act, prohibits the charging of a subscription fee on persons desiring to use an electric vehicle charging station, as de®ned, and prohibits a requirement for persons to obtain membership in any club, association, or organization as a condition of using the station, except as speci®ed. The bill would require a city, county, or city and county to approve an application for the installation of electric vehicle charging stations, as de®ned, through the issuance of speci®ed permits unless the city or county makes speci®ed written ®ndings based upon substantial evidence in the record that the proposed installation would have a speci®c, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the speci®c, adverse impact. The bill would provide for appeal of that decision to the planning commission, as speci®ed. The bill would provide that the implementation of consistent statewide standards to achieve the timely and cost-effective installation of electric vehicle charging stations is a matter of statewide concern. The bill would require electric vehicle charging stations to meet speci®ed standards. The bill would require a city, county, or city and county with a population of 200,000 or more residents to adopt an ordinance, by September 30, 2016, that creates an expedited and streamlined permitting process for electric vehicle charging stations, as speci®ed. The bill would require a city, county, or city and county with a population of less than 200,000 residents to adopt this ordinance by September 30, 2017. The bill would authorize the city, county, or city and county, in developing the ordinance, to refer to guidelines contained in a speci®ed guidebook. The bill would also authorize the adoption of an ordinance that modi®es the checklists and standards found in the guidebook due to unique conditions. By increasing the duties of local of®cials, this bill would create a state-mandated local program.

92

Ch. 598 Ð 2 Ð

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a speci®ed reason.

The people of the State of California do enact as follows:

SECTION 1. Section 65850.7 is added to the Government Code, to read: 65850.7. (a) The Legislature ®nds and declares all of the following: (1) The implementation of consistent statewide standards to achieve the timely and cost-effective installation of electric vehicle charging stations is not a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution, but is instead a matter of statewide concern. (2) It is the intent of the Legislature that local agencies not adopt ordinances that create unreasonable barriers to the installation of electric vehicle charging stations and not unreasonably restrict the ability of homeowners and agricultural and business concerns to install electric vehicle charging stations. (3) It is the policy of the state to promote and encourage the use of electric vehicle charging stations and to limit obstacles to their use. (4) It is the intent of the Legislature that local agencies comply not only with the language of this section, but also the legislative intent to encourage the installation of electric vehicle charging stations by removing obstacles to, and minimizing costs of, permitting for charging stations so long as the action does not supersede the building of®cial's authority to identify and address higher priority life-safety situations. (b) A city, county, or city and county shall administratively approve an application to install electric vehicle charging stations through the issuance of a building permit or similar nondiscretionary permit. Review of the application to install an electric vehicle charging station shall be limited to the building of®cial's review of whether it meets all health and safety requirements of local, state, and federal law. The requirements of local law shall be limited to those standards and regulations necessary to ensure that the electric vehicle charging station will not have a speci®c, adverse impact upon the public health or safety. However, if the building of®cial of the city, county, or city and county makes a ®nding, based on substantial evidence, that the electric vehicle charging station could have a speci®c, adverse impact upon the public health or safety, the city, county, or city and county may require the applicant to apply for a use permit. (c) A city, county, or city and county may not deny an application for a use permit to install an electric vehicle charging station unless it makes written ®ndings based upon substantial evidence in the record that the proposed installation would have a speci®c, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the speci®c, adverse impact. The ®ndings shall include the basis

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Ð 3 Ð Ch. 598 for the rejection of potential feasible alternatives of preventing the adverse impact. (d) The decision of the building of®cial pursuant to subdivisions (b) and (c) may be appealed to the planning commission of the city, county, or city and county. (e) Any conditions imposed on an application to install an electric vehicle charging station shall be designed to mitigate the speci®c, adverse impact upon the public health or safety at the lowest cost possible. (f) (1) An electric vehicle charging station shall meet applicable health and safety standards and requirements imposed by state and local permitting authorities. (2) An electric vehicle charging station shall meet all applicable safety and performance standards established by the California Electrical Code, the Society of Automotive Engineers, the National Electrical Manufacturers Association, and accredited testing laboratories such as Underwriters Laboratories and, where applicable, rules of the Public Utilities Commission regarding safety and reliability. (g) (1) On or before September 30, 2016, every city, county, or city and county with a population of 200,000 or more residents, and, on or before September 30, 2017, every city, county, or city and county with a population of less than 200,000 residents, shall, in consultation with the local ®re department or district and the utility director, if the city, county, or city and county operates a utility, adopt an ordinance, consistent with the goals and intent of this section, that creates an expedited, streamlined permitting process for electric vehicle charging stations. In developing an expedited permitting process, the city, county, or city and county shall adopt a checklist of all requirements with which electric vehicle charging stations shall comply to be eligible for expedited review. An application that satis®es the information requirements in the checklist, as determined by the city, county, or city and county, shall be deemed complete. Upon con®rmation by the city, county, or city and county of the application and supporting documents being complete and meeting the requirements of the checklist, and consistent with the ordinance, a city, county, or city and county shall, consistent with subdivision (b), approve the application and issue all required permits or authorizations. However, the city, county, or city and county may establish a process to prioritize competing applications for expedited permits. Upon receipt of an incomplete application, a city, county, or city and county shall issue a written correction notice detailing all de®ciencies in the application and any additional information required to be eligible for expedited permit issuance. An application submitted to a city, county, or city and county that owns and operates an electric utility shall demonstrate compliance with the utility's interconnection policies prior to approval. (2) The checklist and required permitting documentation shall be published on a publicly accessible Internet Web site, if the city, county, or city and county has an Internet Web site, and the city, county, or city and county shall allow for electronic submittal of a permit application and associated documentation, and shall authorize the electronic signature on

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Ch. 598 Ð 4 Ð all forms, applications, and other documentation in lieu of a wet signature by an applicant. In developing the ordinance, the city, county, or city and county may refer to the recommendations contained in the most current version of the ªPlug-In Electric Vehicle Infrastructure Permitting Checklistº of the ªZero-Emission Vehicles in California: Community Readiness Guidebookº published by the Of®ce of Planning and Research. A city, county, or city and county may adopt an ordinance that modi®es the checklists and standards found in the guidebook due to unique climactic, geological, seismological, or topographical conditions. If a city, county, or city and county determines that it is unable to authorize the acceptance of an electronic signature on all forms, applications, and other documents in lieu of a wet signature by an applicant, the city, county, or city and county shall state, in the ordinance required under this subdivision, the reasons for its inability to accept electronic signatures and acceptance of an electronic signature shall not be required. (h) A city, county, or city and county shall not condition approval for any electric vehicle charging station permit on the approval of an electric vehicle charging station by an association, as that term is de®ned in Section 4080 of the Civil Code. (i) The following de®nitions shall apply to this section: (1) ªA feasible method to satisfactorily mitigate or avoid the speci®c, adverse impactº includes, but is not limited to, any cost-effective method, condition, or mitigation imposed by a city, county, or city and county on another similarly situated application in a prior successful application for a permit. (2) ªElectronic submittalº means the utilization of one or more of the following: (A) Email. (B) The Internet. (C) Facsimile. (3) ªElectric vehicle charging stationº or ªcharging stationº means any level of electric vehicle supply equipment station that is designed and built in compliance with Article 625 of the California Electrical Code, as it reads on the effective date of this section, and delivers electricity from a source outside an electric vehicle into a plug-in electric vehicle. (4) ªSpeci®c, adverse impactº means a signi®cant, quanti®able, direct, and unavoidable impact, based on objective, identi®ed, and written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments suf®cient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.

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Status Permit Streamlining - Cities Ordinance or Municipal Code Section AHJ Type County

Red Adelanto No Ordin. City San Bernardino Green Agoura Hills 8207. - Expedited Review of Electric Vehicle City Los Angeles Charging Station Permits. Red Alameda (City) No Ordin. City Alameda Red Albany No Ordin. City Alameda Red Alhambra No Ordin. City Los Angeles Yellow Aliso Viejo Chapter 13.10 City Orange ELECTRIC VEHICLE CHARGING STATION PERMIT EXPEDITING Red Alturas No Ordin. City Modoc Red Amador City No Ordin. City Amador Yellow American Canyon 16.02.090 Amend Section 107.1.2 Electric City Napa vehicle charging stations. Yellow Anaheim Title 15: Chapter 15.05: ELECTRIC VEHICLE City Orange CHARGING STATIONS Red Anderson No Ordin. City Shasta Red Angels Camp (or Angels No Ordin. City Calaveras City) Yellow Antioch TITLE 8: CHAPTER 21: ELECTRIC VEHICLE City Contra Costa CHARGING STATIONS EXPEDITED PERMITTING Yellow Apple Valley 8.39.030 - Expedited permitting process City San Bernardino Red Arcadia No Ordin. City Los Angeles Red Arcata No Ordin. City Humboldt Green Arroyo Grande 15.04.032 - Electric vehicle charging stations City San Luis Obispo Red Artesia No Ordin. / Building department EVCS permit City Los Angeles review is organized through the county (LA County Contract City) Red Arvin No Ordin. City Kern Yellow Atascadero 8-5.104 Electric vehicle charging stations City San Luis Obispo Yellow Atherton Chapter 15.64 ELECTRIC VEHICLE CHARGING City San Mateo STATIONS REVIEW PROCESS Yellow Atwater 15.04.015 - Electric vehicle charging stations City Merced Yellow Auburn TITLE XV: LAND USE - 164 ELECTRIC VEHICLE CityCHARGING STATIONPlacer Red Avalon No Ordin. City Los Angeles Red Avenal No Ordin. City Kings Green Azusa Sec. 14-12. - Expedited, streamlined permitting City Los Angeles process for electric vehicle stations.

Yellow Bakersfield Chapter 15.58 ELECTRIC VEHICLE CHARGING City Kern STATIONS AND EXPEDITED BUILDING PERMIT PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Red Baldwin Park No Ordin. City Los Angeles Yellow Banning 15.12.110 - Expedited electric vehicle charging City Riverside station permitting. Red Barstow No Ordin City San Bernardino Green Beaumont Chapter 15.48 - ELECTRIC VEHICLE City Riverside CHARGING STATION STREAMLINED PERMITTING PROCESS Red Bell No Ordin. City Los Angeles Red Bell Gardens No Ordin. City Los Angeles Red Bellflower Chapter 15.72 PERMIT PROCESS FOR City Los Angeles ELECTRIC VEHICLE CHARGING STATIONS Yellow Belmont DIVISION 9. - EXPEDITED PERMITTING City San Mateo PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Red Belvedere No Ordin. City Marin Yellow Benicia Chapter 15.39 - STREAMLINED PERMITTING City Solano FOR (EV) ELECTRIC VEHICLE CHARGING STATIONS Green Berkeley Chapter 19.15 City Alameda EXPEDITED ELECTRIC VEHICLE CHARGING STATION PERMITTING Yellow Beverly Hills 9-1-120: Expedited Permitting Process For City Los Angeles Electric Vehicle Charging Stations Red Big Bear Lake No Ordin. City San Bernardino Red Biggs No Ordin. City Butte Yellow Bishop 15.14.040. - Permit application processing. City Inyo Red Blue Lake No Ordin. City Humboldt Red Blythe No Ordin. City Riverside Yellow Bradbury CHAPTER 14. - ELECTRIC VEHICLE City Los Angeles CHARGING STATIONS Red Brawley No Ordin. City Imperial Yellow Brea CHAPTER 14.08: ELECTRIC VEHICLE City Orange CHARGING STATIONS Green Brentwood Chapter 15.14 ELECTRIC VEHICLE CHARGING City Contra Costa STATIONS Red Brisbane No Ordin. City San Mateo Red Buellton No Ordin. City Santa Barbara Red Buena Park No Ordin. City Orange Green Burbank 9-1-5-80.97: ELECTRIC VEHICLE CHARGING City Los Angeles STATION EXPEDITED REVIEW PROCESS:

Yellow Burlingame 18.07.140 Permit process for electric vehicle chargingCity stations. San Mateo Green Calabasas Article X. - Expedited Permitting Process For City Los Angeles Small Residential Rooftop Solar Energy Systems and Electrical Vehicle Charging Stations

Red Calexico No Ordin. City Imperial Red California City No Ordin. City Kern Yellow Calimesa Chapter 15.100 EXPEDITED ELECTRIC City Riverside VEHICLE CHARGING STATION PERMITTING

Red Calipatria No Ordin. City Imperial Green Calistoga ORDINANCE NO. 743 (waiting on posting City Napa information online) Green Camarillo 16.55.020 - Implementation of expedited City Ventura permitting process. Yellow Campbell No Ordin. but city has checklist City Santa Clara Red Canyon Lake TITLE 9: 9.26. ELECTRIC VEHICLE CHARGING STATIONSCity Riverside Red Capitola No Ordin. City Santa Cruz Red Carlsbad City has passed electric vehicle ordinance, but it City San Diego does not focus on permit streamlining or AB 1236 Red Carmel-by-the-Sea No Ordin. City Monterey Red Carpinteria No Ordin. City Santa Barbara Yellow Carson No Ordin City Los Angeles Red Cathedral City No Ordin. City Riverside Red Ceres No Ordin. City Stanislaus Yellow Cerritos Chapter 15.12.060 Electric vehicle charging City Los Angeles stations Red Chico No Ordin City Butte Yellow Chino Chapter 15.30 - EXPEDITED PERMITTING City San Bernardino PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS (EVCS) Yellow Chino Hills 15.17.030 - Expedited permitting process. City San Bernardino Red Chowchilla No Ordin. City Madera Yellow Chula Vista 15.29.030 Electric vehicle charging stations City San Diego Yellow Citrus Heights ARTICLE XVIII. - ELECTRIC VEHICLE City Sacramento CHARGING STATION PERMITS Yellow Claremont Chapter 15.54 ELECTRIC VEHICLE CHARGING City Los Angeles SYSTEMS EXPEDITED, STREAMLINED PERMITTING PROCESS: 060 Permit review requirements Green Clayton Chapter 15.96 - ELECTRIC VEHICLE City Contra Costa CHARGING STATIONS Yellow Clearlake 18-4.11 Electric Vehicle Charging Systems. City Lake Yellow Cloverdale Chapter 15.39 City Sonoma EXPEDITED STREAMLINED PERMITTING PROCESS FOR ELECTRIC VEHICLE CHARGING STATION Green Clovis Chapter 8.18 ELECTRIC VEHICLE CHARGING City Fresno STATIONS Red Coachella No Ordin. City Riverside Yellow Coalinga CHAPTER 16. - EXPEDITED ELECTRIC City Fresno VEHICLE CHARGING STATION PERMITTING

Red Colfax No Ordin. City Placer Yellow Colma Chapter 6.06 Electric Vehicle Charging Station City San Mateo

Red Colton No Ordin. City San Bernardino Yellow Colusa ARTICLE XII. - Electric Vehicle Charging Station City Colusa Permitting Process Red Commerce No Ordin. City Los Angeles Red Compton No Ordin. City Los Angeles Green Concord Chapter 15.120 ELECTRIC VEHICLE City Contra Costa CHARGING SYSTEMS Red Corcoran No Ordin. City Kings Red Corning No Ordin. City Tehama Yellow Corona CHAPTER 15.66 City Riverside Red Coronado No Ordin. City San Diego Red Corte Madera No Ordin. City Marin Yellow Costa Mesa Ordin. No 17- 13 Electric Vehicle Charging City Orange Station Yellow Cotati Chapter 14.38 STREAMLINED PERMITTING City Sonoma PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Yellow Covina Chapter 14.04.211 Expedited permitting process City Los Angeles for electric vehicle charging stations..

Red Crescent City No Ordin. City Del Norte Red Cudahy No Ordin. City Los Angeles Green Culver City CHAPTER 15.14: ELECTRIC VEHICLE City Los Angeles CHARGING STATIONS Yellow Cupertino No ordinance City Santa Clara Yellow Cypress Chapter 5: ARTICLE XII. ELECTRIC VEHICLE City Orange CHARGING STATION PERMITS Red Daly City No Ordin. City San Mateo Yellow Dana Point Chapter 8.33 EXPEDITED ELECTRIC VEHICLE City Orange CHARGING STATION PERMITTING

Green Danville 10-17 ELECTRIC VEHICLE CHARGING STATIONS.City Contra Costa Green Davis Article 8.23 ELECTRIC VEHICLE CHARGING STATIONSCity REVIEW PROCESSYolo Green Del Mar Chapter 23.22 - ELECTRIC VEHICLE City San Diego CHARGING STATIONS Red Del Rey Oaks No Ordin. City Monterey Red Delano No Ordin. City Kern Yellow Desert Hot Springs Chapter 15.34 ELECTRIC VEHICLE CHARGING City Riverside STATION STREAMLINED PERMITTING PROCESS Red Diamond Bar No Ordin. City Los Angeles Red Dinuba No Ordin. City Tulare Red Dixon No Ordin. City Solano Red Dorris No Ordin. City Siskiyou Red Dos Palos No Ordin. City Merced Red Downey No Ordin. City Los Angeles Yellow Duarte 16.04.100 - Electric vehicle charging stations City Los Angeles Yellow Dublin Chapter 7.97 City Alameda STREAMLINED PERMITTING PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS

Red Dunsmuir No Ordin. City Siskiyou Red East Palo Alto No Ordin. City San Mateo Red Eastvale No Ordin. City Riverside Yellow El Cajon Chapter 15.92 EXPEDITED PROCESSING OF City San Diego PERMITTING FOR SMALL ROOFTOP SOLAR, ELECTRIC VEHICLE CHARGING STATIONS, AND ADVANCED ENERGY STORAGE SYSTEMS

Red El Centro No Ordin. City Imperial Yellow El Cerrito Chapter 16.14 - ELECTRIC VEHICLE City Contra Costa CHARGING STATIONS Red El Monte No Ordin. City Los Angeles Yellow El Segundo Title 13: Chapter 21 PERMIT PROCESS FOR City Los Angeles ELECTRIC VEHICLE CHARGING STATIONS

Yellow Elk Grove PERMIT PROCESS FOR ELECTRIC VEHICLE City Sacramento CHARGING Green Emeryville CHAPTER 25 ELECTRIC VEHICLE CHARGING City Alameda STATIONS Red Encinitas No Ordin. City San Diego Red Escalon No Ordin. City San Joaquin Green Escondido Sec. 33-1124. Electric vehicle charging stations. City San Diego

Red Etna No Ordin. City Siskiyou Red Eureka No Ordin. City Humboldt Red Exeter No Ordin. City Tulare Yellow Fairfax 15.04.065 ELECTRIC VEHICLE CHARGING City Marin STATIONS. Yellow Fairfield 5.1.2 Expedited building permit process for City Solano electric vehicle charging stations Red Farmersville No Ordin. City Tulare Red Ferndale No Ordin. City Humboldt Red Fillmore No Ordin. City Ventura Red Firebaugh No Ordin. City Fresno Green Folsom Chapter 14.35 ELECTRIC VEHICLE CHARGING City Sacramento STATIONS Green Fontana Chapter 5: ARTICLE XXI. - ELECTRIC VEHICLE City San Bernardino CHARGING STATION SYSTEMS Red Fort Bragg No Ordin City Mendocino Gray Fort Jones Cant Access Municipal Code City Siskiyou Red Fortuna No Ordin City Humboldt Green Foster City Chapter 15.46 ELECTRIC VEHICLE CHARGING City San Mateo STATIONS Yellow Fountain Valley Chapter 18.30 ELECTRIC VEHICLE CHARGING City Orange STATIONS Red Fowler No Ordin. City Fresno Green Fremont Chapter 15.64 PERMIT PROCESS FOR City Alameda ELECTRIC VEHICLE CHARGING STATIONS Green Fresno SEC. 11-113. - ELECTRIC VEHICLE City Fresno CHARGING STATIONS REVIEW PROCESS. Red Fullerton No Ordin. City Orange Red Galt No Ordin. City Sacramento Red Garden Grove No Ordin. City Orange Red Gardena No Ordin. or no materials online City Los Angeles Green Gilroy 6.58 Electric vehicle charging station expedited City Santa Clara permitting. Yellow Glendale (starts on Pg. 7) CBC Section 105.3.1.1 City Los Angeles Yellow Glendora Chapter 19.16 Electric Vehicle Charging Station City Los Angeles ELECTRIC VEHICLE CHARGING STATION SYSTEMS Red Goleta No Ordin. or no materials online City Santa Barbara Red Gonzales No Ordin. City Monterey Yellow Grand Terrace Chapter 15.26 - ELECTRIC VEHICLE City San Bernardino CHARGING STATION STREAMLINED PERMITTING PROCESS Yellow Grass Valley Chapter 15.12 - ELECTRIC VEHICLE City Nevada CHARGING STATION PERMITTING PROCESS

Red Greenfield No Ordin. City Monterey Yellow Gridley City of Gridley Building Inspections Services are City Butte performed by the Butte County Department of Development Services Building Division. The grade for the city is the same as the county.

Green Grover Beach ARTICLE VIII - BUILDING REGULATIONS. Sec. City San Luis Obispo 8115. Electrical Vehicle Charging Stations Review Process. Red Guadalupe No Ordin. (has EV Ordin defining EVCS) City Santa Barbara Red Gustine No Ordin. City Merced Yellow Half Moon Bay 14.70 Expedited Permit Process for Electric City San Mateo Vehicle Charging Stations Red Hanford No Ordin. City Kings Red Hawaiian Gardens No Ordin. City Los Angeles Red Hawthorne No Ordin. City Los Angeles Yellow Hayward 105.3.1.2 Expedited Electric Vehicle Charging City Alameda Station Permitting. Green Healdsburg Chapter 15.19 PERMITTING PROCESS FOR City Sonoma ELECTRIC VEHICLE CHARGING SYSTEMS Green Hemet Chapter 14: ARTICLE XIII. - EXPEDITED City Riverside PERMIT PROCESS FOR ELECTRIC VEHICLE CHARGING SYSTEMS Red Hercules No Ordin. City Contra Costa Red Hermosa Beach No Ordin. City Los Angeles Red Hesperia No Ordin. City San Bernardino Yellow Hidden Hills Chapter 5: ARTICLE L. - ELECTRICAL City Los Angeles VEHICLE CHARGING STATIONS Green Highland Chapter 15.82 Expedited Review of Electric City San Bernardino Vehicle Charging Stations Red Hillsborough No Ordin. City San Mateo Red Hollister No Ordin. City San Benito Red Holtville No Ordin. City Imperial Green Hughson Chapter 15.18 ELECTRIC VEHICLE CHARGING City Stanislaus STATIONS Green Huntington Beach Chapter 17.62 expedited Electric Vehicle City Orange Charging Station Permitting Red Huntington Park No Ordin. City Los Angeles Red Huron No Ordin. City Fresno Red Imperial No Ordin. City Imperial Red Imperial Beach No Ordin. City San Diego Red Indian Wells No Ordin. City Riverside Red Indio No Ordin. City Riverside Yellow Industry No Ordin. City Los Angeles Red Inglewood No Ordin. City Los Angeles Red Ione No Ordin. City Amador Yellow Irvine Sec. 5-9-402. - Residential Code (check in With City Orange City if pass actual AB 1236 Ordin.) Yellow Irwindale No Ordin. City Los Angeles Red Isleton No Ordin. City Sacramento Red Jackson No Ordin City Amador Yellow Jurupa Valley Sec. 8.05.080. - Expedited building permit City Riverside process for electric vehicle charging stations. Yellow Kerman Chapter 17.98 EXPEDITED PERMIT PROCESS City Fresno FOR ELECTRICAL VEHICLE CHARGING STATIONS Yellow King City Chapter 12.18 ELECTRIC VEHICLE CHARGING City Monterey STATION PERMITS Red Kingsburg No Ordin. City Fresno Yellow La Cañada Flintridge ARTICLE 85 ELECTRIC VEHICLE CHARGING City Los Angeles STATIONS /City’s EVCS permit review is organized through the county. The grade for this city is the same as the county. Yellow La Habra Chapter 15.67 Electric Vehicle Charging Stations City Orange

Red La Habra Heights No Ordin. City Los Angeles Red La Mesa No Ordin. City San Diego Yellow La Mirada No Ordin. City Los Angeles Red La Palma No Ordin. City Orange Red La Puente No Ordin. City Los Angeles Red La Quinta No Ordin. City Riverside Red La Verne No Ordin. City Los Angeles Red Lafayette No Ordin. City Contra Costa Red Laguna Beach No Ordin City Orange Green Laguna Hills Chapter 10-72 Electric Charging Vehicle Permits City Orange

Yellow Laguna Niguel ARTICLE 12. - ELECTRIC VEHICLE City Orange CHARGING STATIONS PERMIT Yellow Laguna Woods CHAPTER 10.34. - ELECTRIC VEHICLE CHARGINGCity STATIONS Orange Yellow Lake Elsinore Chapter 15.76 Electric Vehicle Charging Stations City Riverside

Red Lake Forest No Ordin. City Orange Red Lakeport No Ordin. City Lake Yellow Lakewood No Ordin. City Los Angeles Yellow Lancaster Chapter 15.46 - ELECTRIC VEHICLE City Los Angeles CHARGING STATIONS Green Larkspur Chapter 15.55 City Marin ELECTRIC VEHICLE CHARGING STATIONS Red Lathrop No Ordin. City San Joaquin Yellow Lawndale No Ordin. City Los Angeles Red Lemon Grove No Ordin City San Diego Red Lemoore No Ordin. City Kings Red Lincoln No Ordin. City Placer Red Lindsay No Ordin. City Tulare Red Live Oak No Ordin. City Sutter Green Livermore Chapter 15.38 City Alameda ELECTRIC VEHICLE CHARGING STATIONS EXPEDITED PERMITTING Yellow Livingston Title 4. Chapter 9 ELECTRIC VEHICLE City Merced CHARGING STATION PERMITS Green Lodi Chapter 15.15 - ELECTRIC VEHICLE City San Joaquin CHARGING STATION STREAMLINED PERMITTING PROCESS Yellow Loma Linda Chapter 15.62- ELECTRIC VEHICLE City San Bernardino CHARGING SYSTEMS EXPEDITED, STREAMLINED PERMITTING PROCESS Yellow Lomita No Ordin. City Los Angeles Yellow Lompoc Chapter 15.76 ELECTRIC VEHICLE CHARGING City Santa Barbara STATION STREAMLINED PERMITTING PROCESS Yellow Long Beach CHAPTER 18.76 - EXPEDITED AND City Los Angeles STREAMLINED PERMITTING PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS

Red Loomis No Ordin. City Placer Green Los Alamitos CHAPTER 15.14 PERMIT PROCESS FOR City Orange ELECTRIC VEHICLE CHARGING STATIONS Red Los Altos No Ordin. City Santa Clara Red Los Altos Hills No Ordin. City Santa Clara Yellow Los Angeles No ordinance, but city has a checklist. City Los Angeles Red Los Banos No Ordin. City Merced Green Los Gatos ARTICLE XVI. - PERMITTING PROCESS FOR City Santa Clara ELECTRIC VEHICLE CHARGING STATIONS

Gray Loyalton Cant Access Municipal Code City Sierra Red Lynwood No Ordin. City Los Angeles Red Madera No Ordin. City Madera Yellow Malibu Chapter 15.36 PERMITTING FOR ELECTRIC City Los Angeles VEHICLE CHARGING STATIONS Red Mammoth Lakes No Ordin City Mono Red Manhattan Beach No Ordin. City Los Angeles Gray Manteca Cant Access Municipal Code City San Joaquin Gray Maricopa Cant Access Municipal Code City Kern Yellow Marina Chapter 15.39 City Monterey EXPEDITED PERMIT PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Red Martinez No Ordin City Contra Costa Red Marysville No Ordin City Yuba Red Maywood No Ordin. City Los Angeles Red McFarland No Ordin. City Kern Red Mendota No Ordin. City Fresno Red Menifee No Ordin. City Riverside Green Menlo Park Chapter 12.24 PERMIT PROCESS FOR City San Mateo ELECTRIC VEHICLE CHARGING STATIONS Red Merced No Ordin. City Merced Red Mill Valley No Ordin City Marin Red Millbrae No Ordin City San Mateo Yellow Milpitas Ord. No 65.146 City Santa Clara Red Mission Viejo No Ordin. City Orange Green Modesto Title 9: Article 19. - Electric Vehicle Charging City Stanislaus Stations Yellow Monrovia 15.56 Electric Vehicle Charging Station City Los Angeles Red Montague No Ordin City Siskiyou Green Montclair Chapter 10.20.040 ELECTRIC VEHICLE City San Bernardino CHARGING SYSTEMS EXPEDITED. STREAMLINED PERMITTING PROCESS Yellow Monte Sereno City has no ordinance but has EVCS permitting City Santa Clara checklist Red Montebello No Ordin. City Los Angeles Yellow Monterey Sec. 9-93. Expedited building permit process for City Monterey electric vehicle charging stations. Red Monterey Park No Ordin. City Los Angeles Green Moorpark Chapter 15.21 SMALL RESIDENTIAL City Ventura ROOFTOP SOLAR ENERGY SYSTEMS AND ELECTRIC VEHICLE CHARGING STATIONS

Red Moraga No Ordin City Contra Costa Yellow Moreno Valley CHAPTER 8.42 ELECTRIC VEHICLE City Riverside CHARGING STATION REVIEW PROCESS Green Morgan Hill Chapter 15.37 - ELECTRIC VEHICLE City Santa Clara CHARGING STATION PERMITTING Red Morro Bay No Ordin City San Luis Obispo Red Mount Shasta No Ordin City Siskiyou Red Mountain View No Ordin City Santa Clara Red Murrieta No Ordin. City Riverside Red Napa No Ordin. City Napa Green National City Chapter 15.82 - EXPEDITED PERMIT City San Diego PROCESSING FOR ELECTRIC VEHICLE CHARGING STATIONS Red Needles No Ordin. City San Bernardino Yellow Nevada City Chapter 12.25 - ELECTRIC VEHICLE City Nevada CHARGING STATION PERMITTING PROCESS

Red Newark No Ordin City Alameda Yellow Newman Chapter 4.24 City Stanislaus ELECTRIC VEHICLE CHARGING STATION PERMITTING PROCEDURES Yellow Newport Beach CHAPTER 15.19 ELECTRIC VEHICLE City Orange CHARGING STATIONS Red Norco No Ordin. City Riverside Red Norwalk No Ordin. City Los Angeles Red Novato No Ordin. City Marin Red Oakdale No Ordin. City Stanislaus Green Oakland Oakland developed a comprehensive online City Alameda resource that meets all of the AB 1236 criteria but has not passed an AB 1236 ordinance. Based on stakeholder feedback, Oakland has exceeded the intent of AB 1236 in practice. Yellow Oakley CHAPTER 16 ELECTRIC VEHICLE CHARGING City Contra Costa STATIONS Yellow Oceanside Sec. 6.100. - Electrical charging stations. City San Diego Green Ojai Title 9 BUILDING REGULATIONS - Chapter 16 City Ventura ELECTRIC VEHICLE CHARGING STATIONS

Red Ontario Chapter 9 ELECTRIC VEHICLE CHARGING STATIONSCity San Bernardino Red Orange No Ordinance City Orange Red Orange Cove No Ordin. City Fresno Red Orinda No Ordin City Contra Costa Red Orland No Ordin. City Glenn Red Oroville No Ordin. City Butte Green Oxnard ORDINANCE NO. 2909 City Ventura Yellow Pacific Grove Chapter 18.46 VEHICLE CHARGING STATIONS City Monterey

Yellow Pacifica Sec. 8-7.04. - Amendments: Section 8-7.04 City San Mateo ("Streamlined permitting process for electric vehicle charging systems"). Yellow Palm Desert CHAPTER 15.36 ELECTRIC VEHICLE City Riverside CHARGING STATIONS Yellow Palm Springs No Ordinance. City has policy memo, checklist City Riverside and guidelines online. Yellow Palmdale Chapter 10.08 ELECTRIC VEHICLE PARKING City Los Angeles AND CHARGING Yellow Palo Alto City has no ordinance but has EVCS permitting City Santa Clara checklist. Yellow Palos Verdes Estates CHAPTER 15.20 ELECTRIC VEHICLE City Los Angeles CHARGING STATIONS Red Paradise No Ordin. City Butte Red Paramount No Ordin. City Los Angeles Red Parlier No Ordin. City Fresno Red Pasadena Surprisingly no Ordinance City Los Angeles Green Paso Robles CHAPTER 17.25 - ELECTRIC VEHICLE City San Luis Obispo CHARGING STATIONS Yellow Patterson Chapter 15.60 ELECTRIC VEHICLE CHARGING City Stanislaus STATION PERMITTING PROCEDURES

Red Perris No Ordin. City Riverside Red Petaluma No Ordin. City Sonoma Yellow Pico Rivera Chapter 15.54 ELECTRIC VEHICLE CHARGING City Los Angeles STATIONS Green Piedmont ARTICLE VI. EXPEDITED PERMITTING FOR City Alameda ELECTRIC VEHICLE CHARGING SYSTEMS Yellow Pinole Chapter 15.58 ELECTRIC VEHICLE CHARGING City Contra Costa STATION PERMITS Green Pismo Beach 15.12.020 Electric vehicle charging stations. City San Luis Obispo Yellow Pittsburg 15.16.070 Expedited electric vehicle charging City Contra Costa station permitting. Red Placentia No Ordin. City Orange Red Placerville No Ordin. City El Dorado Red Pleasant Hill No Ordin. City Contra Costa Yellow Pleasanton Chapter 20.70 EXPEDITED PERMITTING City Alameda PROCESS FOR CLEAN ENERGY SYSTEMS

Red Plymouth No Ordin. City Amador Red Point Arena No Ordin. City Mendocino Red Pomona No Ordin. City Los Angeles Red Port Hueneme No Ordin. City Ventura Red Porterville No Ordin. City Tulare Red Portola No Ordin. City Plumas Yellow Portola Valley CHAPTER 15.22 - ELECTRIC VEHICLE City San Mateo CHARGING SYSTEMS Red Poway No Ordin. City San Diego Yellow Rancho Cordova Chapter 16.09 City Sacramento EXPEDITED PERMIT PROCESS FOR ELECTIC VEHICLE CHARGING STATIONS Yellow Rancho Cucamonga Chapter 15.38 EXPEDITED PERMITTING FOR City San Bernardino ELECTRIC VEHICLE CHARGING STATIONS

Red Rancho Mirage No Ordin. City Riverside Red Rancho Palos Verdes No Ordin. City Los Angeles Yellow Rancho Santa Margarita Chapter 10.10 - Electric Vehicle Charging Station City Orange Permits Gray Red Bluff Cant Access Municipal Code City Tehama Red Redding No Ordin. City Shasta Green Redlands Chapter 15.58 ELECTRIC VEHICLE CHARGING City San Bernardino SYSTEMS Red Redondo Beach No Ordin. City Los Angeles Green Redwood City Ordinance No 2471 City San Mateo Red Reedley No Ordin. City Fresno Red Rialto No Ordin. City San Bernardino Green Richmond Chapter 6.49 - PERMIT PROCESS FOR City Contra Costa ELECTRIC VEHICLE CHARGING STATIONS Red Ridgecrest No Ordin. City Kern Yellow Rio Dell Chapter 15.25 ELECTRICAL VEHICLE City Humboldt CHARGING STATION REVIEW PROCESS Red Rio Vista No Ordin. City Solano Red Ripon No Ordin. City San Joaquin Red Riverbank No Ordin. City Stanislaus Green Riverside Chapter 16.23 - ELECTRIC VEHICLE City Riverside CHARGING STATION STREAMLINED PERMITTING PROCESS Red Rocklin No Ordin. City Placer Green Rohnert Park Chapter 15.34 - ELECTRIC VEHICLE City Sonoma CHARGING STATIONS REVIEW PROCESS Yellow Rolling Hills No Ordin. City Los Angeles Yellow Rolling Hills Estates No Ordinance City Los Angeles Red Rosemead No Ordinance City Los Angeles Green Roseville Chapter 16.36 ELECTRIC VEHICLE CHARGING City Placer STATIONS PERMITTING PROCESS

Yellow Ross Chapter 15.48 - EXPEDITED BUILDING City Marin PERMIT PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Green Sacramento 15.08.190 Expedited building permit process for City Sacramento electric vehicle charging stations. Yellow St. Helena City has no AB 1236 ordinance but has EVCS City Napa checklists. Yellow Salinas City has no AB 1236 ordinance but has EVCS City Monterey checklists. Red San Anselmo No Ordin City Marin Red San Bernardino No Ordin. City San Bernardino Yellow San Bruno Chapter 11.38 EXPEDITED STREAMLINED City San Mateo ELECTRIC VEHICLE CHARGING STATION PERMITTING PROCESS Red San Carlos No Ordin. City San Mateo Red San Clemente No Ordin. City Orange Yellow San Diego Chapter 14, §141.0419 Electric Vehicle Charging City San Diego Stations (Pg. 26) Yellow San Dimas Chapter 15.08 EXPEDITED PERMITTING City Los Angeles PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS (EVCS) and Chapter 18.170 ELECTRIC VEHICLE CHARGING STATIONS Red San Fernando No Ordin City Los Angeles Yellow San Francisco ORDINANCE NO. 003-19 City San Francisco Red San Gabriel No Ordin. City Los Angeles Red San Jacinto No Ordin. City Riverside Red San Joaquin No Ordin. City Fresno Green San Jose Chapter 17.88 - ELECTRIC VEHICLE City Santa Clara CHARGING STATIONS AND EXPEDITED BUILDING PERMIT PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Yellow San Juan Bautista Chapter 10-8 City San Benito EXPEDITED PERMIT PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Green San Juan Capistrano Section 8: CHAPTER 19. ELECTRIC VEHICLE City Orange CHARGING SYSTEMS EXPEDITED, STREAMLINED PERMITTING PROCESS

Yellow San Leandro ARTICLE 15. ELECTRIC VEHICLE CHARGING City Alameda STATION PERMITS Yellow San Luis Obispo Chapter 15.15 EXPEDITED PERMIT PROCESS City San Luis Obispo FOR ELECTRIC VEHICLE CHARGING STATIONS Red San Marcos No Ordinance City San Diego Yellow San Marino 25.01.07: EXPEDITED ELECTRIC VEHICLE City Los Angeles CHARGING STATION PERMITTING: Green San Mateo Chapter 23.44 ELECTRIC VEHICLE CHARGING City San Mateo STATIONS Yellow San Pablo Chapter 15.63 PERMIT PROCESS FOR SMALL City Contra Costa RESIDENTIAL ROOFTOP SOLAR SYSTEMS (Code section also includes electric vehicle charging stations) Yellow San Rafael Chapter 12.25 - EXPEDITED PERMITTING City Marin PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Green San Ramon DIVISION C9 - ELECTRIC VEHICLE City Contra Costa CHARGING SYSTEMS Red Sand City No Ordin. City Monterey Red Sanger No Ordin. City Fresno Yellow Santa Ana Chapter 8: ARTICLE XVII. - ELECTRIC City Orange VEHICLE CHARGING STATIONS Green Santa Barbara Chapter 22.93 ELECTRIC VEHICLE CHARGING STATIONCity PERMIT EXPEDITINGSanta Barbara or Ordinance: 5818 Yellow Santa Clara Chapter 15.39 EXPEDITED PERMITTING City Santa Clara PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Yellow Santa Clarita Ord. 17-11 § 1, 9/12/17 Chapter 25.04 City Los Angeles Red Santa Cruz No Ordinance City Santa Cruz Yellow Santa Fe Springs No Ordin. City’s EVCS permit review is organized City Los Angeles through the county. The grade for this city is the same as the county. Green Santa Maria CHAPTER 9-19 ELECTRIC VEHICLE City Santa Barbara CHARGING STATIONS Yellow Santa Monica 8.08.230 Expedited electric vehicle charging City Los Angeles station permitting. Yellow Santa Paula CHAPTER 16.77: ELECTRIC VEHICLE City Ventura CHARGING SYSTEMS Red Santa Rosa No Ordin. City Sonoma Red Santee No Ordin. City San Diego Yellow Saratoga 16-75.080 - Expedited permit process for electric City Santa Clara vehicle charging stations. Red Sausalito No Ordin City Marin Red Scotts Valley No Ordin City Santa Cruz Red Seal Beach No Ordin. City Orange Red Seaside No Ordin. City Monterey Green Sebastopol Chapter 15.120 EXPEDITED, STREAMLINED City Sonoma PERMITTING PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Red Selma No Ordin. City Fresno Red Shafter No Ordin. City Kern Yellow Shasta Lake Chapter 15.02 - PROCESS FOR STATE- City Shasta MANDATED BUILDING PERMIT EXPEDITING

Yellow Sierra Madre Ord. 1395 / Chapter 15.62 - ELECTRIC City Los Angeles VEHICLE CHARGING STATIONS Red Signal Hill No Ordin. City Los Angeles Red Simi Valley No Ordin. City Ventura Yellow Solana Beach Chapter 15.54 ELECTRIC VEHICLE CHARGING City San Diego SYSTEMS Red Soledad No Ordin. City Monterey Yellow Solvang 10-4-2: ELECTRIC VEHICLE CHARGING City Santa Barbara STATIONS Green Sonoma Chapter 14.29 EXPEDITED PERMITTING City Sonoma PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Green Sonora Ordinance No 840 City Tuolumne Red South El Monte No Ordin. City Los Angeles Red South Gate No Ordin. City Los Angeles Red South Lake Tahoe No Ordin. City El Dorado Red South Pasadena No Ordin. City Los Angeles Yellow South San Francisco Chapter 15.64 PERMIT PROCESS FOR City San Mateo ELECTRIC VEHICLE CHARGING STATION Yellow Stanton Title 16, Chapter 16.38 Expedited Streamlined City Orange Permitting Process for EVCS Red Stockton No Ordin. City San Joaquin Red Suisun City No Ordin. City Solano Yellow Sunnyvale Chapter 16.70. EXPEDITED PERMIT PROCESS City Santa Clara FOR ELECTRIC VEHICLE CHARGING STATIONS Red Susanville No Ordinance City Lassen Red Sutter Creek No Ordinance City Amador Red Taft No Ordin. City Kern Red Tehachapi No Ordin. City Kern Red Tehama No. Ordinance City Tehama Yellow Temecula Title 15, Chapter 15.24 EVCS Streamlined City Riverside Permitting Process Red Temple City No Ordin. City Los Angeles Yellow Thousand Oaks Sec. 8-1.26. Electric Vehicle Charging Stations. City Ventura

Green Tiburon Article V. - Expedited Permit Process for Electric City Marin Vehicle Charging Stations Red Torrance No Ordin. City Los Angeles Yellow Tracy Chapter 9.68 - Electric Vehicle Charging Stations City San Joaquin

Red Trinidad no ordinance City Humboldt Yellow Truckee Section 15.02.090 Expedited Permitting Process City Nevada for Electric Vehicle Charging Systems

Red Tulare No Ordinance City Tulare Red Tulelake No Ordinance City Siskiyou Yellow Turlock Chapter 8-12 City Stanislaus ELECTRIC VEHICLE CHARGING STATION PERMITTING Revised 9/17 Green Tustin Ord. No. 1476, Sec. 2, 8-1-17 City Orange Yellow Twentynine Palms Ord. 280 City San Bernardino Red Ukiah No Ordin. City Mendocino Yellow Union City Chapter 15.88 EXPEDITED STREAMLINED City Alameda PERMITTING PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Red Upland No Ordin. City San Bernardino Red Vacaville No Ordin. City Solano Red Vallejo No Ordin. City Solano Yellow Ventura ORDINANCE NO. 2017- 013 City Ventura Yellow Vernon Sec. 24.112 Ord. No. 1246, 4 City Los Angeles Yellow Victorville Sec. 16-5.20.030: - Expedited permitting process City San Bernardino

Red Villa Park No Ordin. City Orange Yellow Visalia Chapter 15.90 City Tulare ELECTRIC VEHICLE CHARGING STATIONS Yellow Vista Ordinance No. 2017 City San Diego Red Walnut No Ordin. City Los Angeles Green Walnut Creek 9-0.5.309 Expedited Permitting Process for City Contra Costa Electric Vehicle Charging Stations Red Wasco No Ordinance. City Kern Yellow Waterford 15.04.110 Electric vehicle charging station City Stanislaus permitting. Yellow Watsonville 8-1.105.2 Electric vehicle charging station City Santa Cruz expedited permitting. Red Weed No Ordin. City Siskiyou Yellow West Covina Chapter 7: ARTICLE XVIII. - PERMIT PROCESS City Los Angeles FOR ELECTRIC VEHICLE CHARGING STATIONS Green West Hollywood ORDINANCE NO. 18- 1028 City Los Angeles Yellow West Sacramento (Residential and commercial included in City Yolo documents and handouts section) Ordinance 17- 16 Yellow Westlake Village 8.2.015 - Electric Vehicle Charging Station City Los Angeles Permits. Red Westminster No Ordin. City Orange Red Westmorland No Ordinance City Imperial Red Wheatland No Ordin. City Yuba Yellow Whittier Chapter 15.38 - EXPEDITING PERMITTING City Los Angeles PROCESSING FOR ELECTRICAL VEHICLE CHARGING SYSTEMS Yellow Wildomar Chapter 15.109 EXPEDITED, STREAMLINED City Riverside PERMITTING PROCESS FOR ELECTRIC VEHICLE CHARGING SYSTEMS Red Williams No Ordinance City Colusa Red Willits No Ordinance City Mendocino Red Willows No Ordinance City Glenn Yellow Windsor ORDINANCE NO. 2017-317 - under Title VII, City Sonoma Chapter 6 of Municipal Code Red Winters No Ordinance City Yolo Red Woodlake No Ordinance City Tulare Red Woodland No Ordin. City Yolo Yellow Woodside Chapter 150. ARTICLE V. - STREAMLINED City San Mateo PERMITTING PROCESS FOR ELECTRIC VEHICLE CHARGING STATIONS Red Yorba Linda No Ordin. City Orange Yellow Yountville Chapter 15.43 ELECTRIC VEHICLE CHARGING City Napa STATIONS Red Yreka No Ordinance City Siskiyou Yellow Yuba CIty Ordinance No. 001-18 City Sutter Yellow Yucaipa Chapter 15.04.150 EXPEDITED ELECTRIC City San Bernardino VEHICLE CHARGING STATIONS PERMITTING

Green Yucca Valley Ordinance No. 270 City San Bernardino Permit Streamlining - Counties Green Alameda (County) 15.08.228 - CBC Ch. 4 Special Detailed County Alameda (County) Requirements Based on Use and Occupancy, Section 490, Electric Vehicle Charging Stations

Red Alpine No Ordin. County Alpine Red Amador No Ordin. County Amador Yellow Butte County Article VIII. - Electric Vehicle Charging Stations County Butte County

Yellow Chapter 15.11 - ELECTRIC VEHICLE County Calaveras CHARGING STATIONS Calaveras Red Colusa No Ordin. County Colusa Green Contra Costa Ordinance No. 2019-39 County Contra Costa Red Del Norte No Ordin. County Del Norte Red El Dorado No Ordin. County El Dorado Red Fresno No Ordin. County Fresno Red Glenn No Ordin. County Glenn Yellow Title VIII. Division 4. CHAPTER 3 EXPEDITED, County STREAMLINED PERMITTING PROCESS FOR ELECTRIC VEHICLES AND ELECTRIC VEHICLE CHARGING STATIONS (EVCS) Humboldt Humboldt Red Imperial No Ordin. County Imperial Red Inyo No Ordin. County Inyo Green Kern County (Checklist included under Plan Checklists) County Kern County Chapter 17.58 - EXPEDITED ELECTRICAL VEHICLE CHARGING STATION PERMITTING

Red Kings No Ordin. County Kings Red Lake No Ordin. County Lake Red Lassen No Ordin. County Lassen Yellow Title 27: ARTICLE 85 - ELECTRIC VEHICLE County Los Angeles CHARGING STATIONS Los Angeles Red Madera No Ordin. County Madera Red Marin No Ordin. County Marin Red Mariposa No Ordin. County Mariposa Red Mendocino No Ordin. County Mendocino Red Merced No Ordin. County Merced Red Modoc No Ordin. County Modoc Red Mono No Ordin. County Mono Yellow Chapter 18.18 - EXPEDITED PERMITTING County PROCESS FOR ELECTRIC VEHICLE Monterey CHARGING STATIONS Monterey Yellow Chapter 15.15 - ELECTRIC VEHICLE County Napa CHARGING STATIONS GUIDELINES Napa Yellow Title 3,Chapter V, ARTICLE 14 ELECTRIC County VEHICLE CHARGING STATION PERMITTING Nevada PROCESS Nevada Yellow Sec. 7-1-25. Section 120. ELECTRICAL County Orange CHARGING STATIONS Orange Red Placer No Ordin. No materials online County Placer Red Plumas No Ordin. No materials online County Plumas Yellow Ordinance No. 931 / Chapter 16.23 - ELECTRIC County VEHICLE CHARGING STATION Riverside STREAMLINED PERMITTING PROCESS Riverside Green Chapter 16.30 ELECTRIC VEHICLE CHARGING County Sacramento STATIONS Sacramento Red San Benito No Ordin. No materials online County San Benito Yellow CHAPTER 17: ELECTRIC VEHICLE CHARGING County San Bernardino STATIONS San Bernardino Green Criteria not addressed in the ordinance has been County specified in the checklist. (Page 12) SEC. 91.1.105.3.1.2. STREAMLINED PROCESSING OF ELECTRIC VEHICLE CHARGE STATION San Diego PERMITS. San Diego Yellow San Francisco SEE CITY INFO IN CELL 379 County San Francisco Red San Joaquin No ordinance.No materials online. County San Joaquin Green San Luis Obispo 19.09.016 - Expedited permitting for electric vehicleCounty charging stations. San Luis Obispo Red San Mateo No Ordin. No materials online County San Mateo Yellow Article XVII. - Expedited Permitting Procedures County For Electric Vehicle Charging Station Review Santa Barbara Santa Barbara Green CHAPTER V. - STREAMLINED PERMITTING County FOR ELECTRIC VEHICLE CHARGING Santa Clara STATIONS Santa Clara Red Santa Cruz No ordinance. No AB 1236 checklist County Santa Cruz Red No ordinance. No checklist or materials online. County Shasta Shasta Red Sierra No ordinance. No checklist. County Sierra Red Siskiyou No ordinance, no checklist. County Siskiyou Green Solano 6.3-26 Electric vehicle charging stations County Solano Green Sonoma Chapter 7D5 - Electric Vehicle Charging Station PermittingCounty Process Sonoma Red Stanislaus No ordinance, no checklist County Stanislaus Red Sutter No ordinance, no checklist County Sutter Red Tehama No ordinance, no checklist County Tehama Red Trinity No ordinance, no checklist County Trinity Red Tulare No ordinance, no checklist County Tulare Yellow (Starts on page 4)15.04.065 Building permits for County Tuolumne electric vehicle charging stations Tuolumne Yellow Article 6: 8176-9.6 - Streamlined permit process County Ventura for electric vehicle charging stations. Ventura Yellow Yolo No ordinance County Yolo Red Yuba No ordinance, no checklist County Yuba AB 1236 Sample Ordinance Template - Technical for Small Jurisdictions

ORDINANCE NUMBER ____

AN ORDINANCE OF THE CITY COUNCIL / COUNTY BOARD OF SUPERVISORS OF THE CITY OF ______/ COUNTY OF ______SETTING FORTH PROCEDURES FOR EXPEDITING PERMITTING PROCESSING FOR ELECTRIC VEHICLE CHARGING SYSTEMS

WHEREAS, the State of California and the City of ______/ County of

______has consistently promoted and encouraged the use of fuel-efficient electric vehicles; and

WHEREAS, the State of California recent adopted Assembly Bill 1236, which requires local agencies to adopt an ordinance that creates an expedited and streamlined permitting process for electric vehicle charging systems; and

WHEREAS, creation of an expedited, streamlined permitting process for electric vehicle charging stations would facilitate convenient charging of electric vehicles and help reduce the City’s / County’s reliance on environmentally damaging fossil fuels. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ______/

COUNTY BOARD OF SUPERVISORS OF THE COUNTY OF ______DOES

ORDAIN AS FOLLOWS:

MUNICIPAL CODE / COUNTY CODE CHAPTER ______

SECTION 1. PURPOSE

The purpose of this Chapter is to promote and encourage the use of electric vehicles by creating an expedited, streamlined permitting process for electric vehicle charging stations while promoting public health and safety and preventing specific adverse impacts in the installation and use of such charging stations. This Chapter is also purposed to comply with California Government Code Section 65850.7.

SECTION 2. DEFINITIONS

(a) “Electric vehicle charging station” or “charging station” means any level of electric vehicle supply equipment station that is designed and built in compliance with

Article 625 of the California Electrical Code, as it reads on the effective date of this

Chapter, and delivers electricity from a source outside an electric vehicle into a plug-in electric vehicle.

(b) “Specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, and written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

(c) “Electronic submittal” means the utilization of one or more of the following:

a. Electronic mail or email. b. The internet.

c. Facsimile.

SECTION 3. EXPEDITED PERMITTING PROCESS

Consistent with Government Code Section 65850.7, the Building Official shall implement an expedited, streamlined permitting process for electric vehicle charging stations, and adopt a checklist of all requirements with which electric vehicle charging stations shall comply with in order to be eligible for expedited review. The expedited, streamlined permitting process and checklist may refer to the recommendations contained in the most current version of the “Plug-In Electric Vehicle Infrastructure Permitting Checklist” of the “Zero-Emission Vehicles in California: Community Readiness Guidebook” as published by the Governor’s Office of Planning and Research. The City’s / County’s adopted checklist shall be published on the City’s / County’s website.

SECTION 4. PERMIT APPLICATION PROCESSING

(a) Prior to submitting an application for processing, the applicant shall verify that the installation of an electric vehicle charging station will not have specific, adverse impact to public health and safety and building occupants. Verification by the applicant includes but is not limited to: electrical system capacity and loads; electrical system wiring, bonding and overcurrent protection; building infrastructure affected by charging station equipment and associated conduits; areas of charging station equipment and vehicle parking.

(b) A permit application that satisfies the information requirements in the

City’s / County’s adopted checklist shall be deemed complete and be promptly processed. Upon confirmation by the Building Official that the permit application and supporting documents meets the requirements of the City / County adopted checklist, and is consistent with all applicable laws and health and safety standards, the Building

Official shall, consistent with Government Code Section 65850.7, approve the application and issue all necessary permits. Such approval does not authorize an applicant to energize or utilize the electric vehicle charging station until approval is granted by the City / County. If the Building Official determines that the permit application is incomplete, he or she shall issue a written correction notice to the applicant, detailing all deficiencies in the application and any additional information required to be eligible for expedited permit issuance.

(c) Consistent with Government Code Section 65850.7, the Building Official shall allow for electronic submittal of permit applications covered by this Ordinance and associated supporting documentations. In accepting such permit applications, the

Building Official shall also accept electronic signatures on all forms, applications, and other documentation in lieu of a wet signature by any applicant.

SECTION 5. TECHNICAL REVIEW

(a) It is the intent of this Ordinance to encourage the installation of electric vehicle charging stations by removing obstacles to permitting for charging stations so long as the action does not supersede the Building Official’s authority to address higher priority life-safety situations. If the Building Official makes a finding based on substantial evidence that the electric vehicle charging station could have a specific adverse impact upon the public health or safety, as defined in this Chapter, the City /

County may require the applicant to apply for a use permit.

(b) In the technical review of a charging station, consistent with Government

Code Section 65850.7, the Building Official shall not condition the approval for any electric vehicle charging station permit on the approval of such a system by an association, as that term is defined by Civil Code Section 4080.

SECTION 6. ELECTRIC VEHICLE CHARGING STATION INSTALLATION

REQUIREMENTS

(a) Electric vehicle charging station equipment shall meet the requirements of the California Electrical Code, the Society of Automotive Engineers, the National

Electrical Manufacturers Association, and accredited testing laboratories such as

Underwriters Laboratories, and rules of the Public Utilities Commission or a Municipal

Electric Utility Company regarding safety and reliability.

(b) Installation of electric vehicle charging stations and associated wiring, bonding, disconnecting means and overcurrent protective devices shall meet the requirements of Article 625 and all applicable provisions of the California Electrical

Code.

(c) Installation of electric vehicle charging stations shall be incorporated into the load calculations of all new or existing electrical services and shall meet the requirements of the California Electrical Code. Electric vehicle charging equipment shall be considered a continuous load.

(d) Anchorage of either floor-mounted or wall-mounted electric vehicle charging stations shall meet the requirements of the California Building or Residential

Code as applicable per occupancy, and the provisions of the manufacturer’s installation instructions. Mounting of charging stations shall not adversely affect building elements.

SECTION 7. Any provision of the City of ______Municipal Code / County of ______County Code or appendices thereto, inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, are hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance.

SECTION 8. If any section, subsection, sentence, clause, or phrase of this

Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council / County Board of Supervisors hereby declares that it would have passed this Ordinance, and each and every Section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.

SECTION 9. The Mayor shall sign and the City / County Clerk shall attest to the passage of this Ordinance. The City / County Clerk shall cause this Ordinance, or a summary thereof to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective on September 30, 2016.

APPROVED AS TO FORM:

______

NAME City Attorney / County Counsel CITY OR COUNTY OF ______RESIDENTIAL AND NON-RESIDENTIAL CHECKLIST FOR PERMITTING ELECTRIC VEHICLES AND ELECTRIC VEHICLE SERVICE EQUIPMENT (EVSE) (Replace with City or County logo)

Please complete the following information related to permitting and installation of Electric Vehicle Service Equipment (EVSE) as a supplement to the application for a building permit. This checklist contains the technical aspects of EVSE installations and is intended to help expedite permitting and use for electric vehicle charging.

Upon this checklist being deemed complete, a permit shall be issued to the applicant. However, if it is determined that the installation might have a specific adverse impact on public health or safety, additional verification will be required before a permit can be issued.

This checklist substantially follows the “Plug-In Electric Vehicle Infrastructure Permitting Checklist” contained in the Governor’s Office of Planning and Research “Zero Emission Vehicles in California: Community Readiness Guidebook” and is purposed to augment the guidebook’s checklist. Job Address: Permit No.

☐Single-Family ☐Multi-Family (Apartment) ☐Multi-Family (Condominium) ☐Commercial (Single Business) ☐Commercial (Multi- Businesses) ☐Mixed-Use ☐Public Right-of-Way

Location and Number of EVSE to be Installed:

Garage ______Parking Level(s) _____ Parking Lot _____ Street Curb _____

Description of Work:

Applicant Name: Applicant Phone & email:

Contractor Name: License Number & Type:

Contractor Phone & email:

Owner Name:

Owner Phone & email:

EVSE Charging Level: ☐Level 1 (120V) ☐Level 2 (240V) ☐Level 3 (480V)

Maximum Rating (Nameplate) of EV Service Equipment = ______kW

Manufacturer of EVSE: Voltage EVSE = ______V ______

Mounting of EVSE: ☐Wall Mount ☐Pole Pedestal Mount ☐Other ______

System Voltage: ☐120/240V, 1ϕ, 3W ☐120/208V, 3ϕ, 4W ☐120/240V, 3ϕ, 4W ☐277/480V, 3ϕ, 4W ☐Other ______

Rating of Existing Main Electrical Service Equipment = ______Amperes

Rating of Panel Supplying EVSE (if not directly from Main Service) = ______Amps

Rating of Circuit for EVSE: ______Amps / ______Poles

AIC Rating of EVSE Circuit Breaker (if not Single Family, 400A) = ______A.I.C. (or verify with Inspector in field) Specify Either Connected, Calculated or Documented Demand Load of Existing Panel:

 Connected Load of Existing Panel Supplying EVSE = ______Amps

 Calculated Load of Existing Panel Supplying EVSE = ______Amps

 Demand Load of Existing Panel or Service Supplying EVSE = ______Amps (Provide Demand Load Reading from Electric Utility)

Total Load (Existing plus EVSE Load) = ______Amps

For Single Family Dwellings, if Existing Load is not known by any of the above methods, then the Calculated Load may be estimated using the “Single-Family Residential Permitting Application Example” in the Governor’s Office of Planning and Research “Zero Emission Vehicles in California: Community Readiness Guidebook” https://www.opr.ca.gov

EVSE Rating ______Amps x 1.25 = ______Amps = Minimum Ampacity of EVSE Conductor = # ______AWG

For Single-Family: Size of Existing Service Conductors = # ______AWG or kcmil - or - : Size of Existing Feeder Conductor Supplying EVSE Panel = # ______AWG or kcmil (or Verify with Inspector in field)

I hereby acknowledge that the information presented is a true and correct representation of existing conditions at the job site and that any causes for concern as to life-safety verifications may require further substantiation of information.

Signature of Permit Applicant: ______Date: ______09-30-2016 california legislature—2019–20 regular session

ASSEMBLY BILL No. 2168

Introduced by Assembly Members McCarty, Chiu, and Reyes (Principal coauthor: Assembly Member Kalra) (Coauthors: Assembly Members Cooley and Ting) (Coauthors: Senators Beall, Lena Gonzalez, and Wieckowski)

February 11, 2020

An act to add Section 65850.75 to the Government Code, relating to zoning, and declaring the urgency thereof, to take effect immediately.

legislative counsel’s digest AB 2168, as introduced, McCarty. Planning and zoning: electric vehicle charging stations: permit application: approval. Existing law requires a city, county, or city and county to administratively approve an application to install an electric vehicle charging station through the issuance of a building permit or similar nondiscretionary permit subject to a limited review by the building of®cial of that city, county, or city and county. Existing law allows the building of®cial to require the applicant to apply for a use permit if the of®cial ®nds that the station could have a speci®c, adverse impact upon the public health or safety, and prohibits the city, county, or city and county from denying the application for a use permit to install an electric vehicle charging station unless it makes written ®ndings that the proposed installation would have a speci®c, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the speci®c, adverse impact. Existing law requires every city, county, and city and county to create an expedited, streamlined permitting process for electric vehicle charging stations and to adopt a checklist pursuant to which an applicant

99

AB 2168 Ð 2 Ð

that satis®es the information requirements shall be deemed complete and therefore eligible for expedited review. This bill would require an application to install an electric vehicle charging station to be deemed complete if, 5 business days after the application was submitted, the city, county, or city and county has not deemed the application to be incomplete, as speci®ed. The bill would require an application to install an electric vehicle charging station to be deemed approved if, 15 business days after the application was submitted, the city, county, or city and county has not approved the application through the issuance of a building permit or similar nondiscretionary permit, and the building of®cial has not made ®ndings that the proposed installation could have an adverse impact, as described above, and required the applicant to apply for a use permit. This bill would declare that it is to take effect immediately as an urgency statute. 2 Vote: ⁄3. Appropriation: no. Fiscal committee: no.​ State-mandated local program: no.​

The people of the State of California do enact as follows:

line 1 SECTION 1. Section 65850.75 is added to the Government line 2 Code, to read: line 3 65850.75. (a) The Legislature ®nds and declares both of the line 4 following: line 5 (1) An electric vehicle charging station has a signi®cant line 6 economic impact in California and is not a municipal affair, as the line 7 term is used in Section 5 of Article XI of the California line 8 Constitution, but is instead a matter of statewide concern. line 9 (2) Table 3 of the Governor's Of®ce of Business and Economic line 10 Development (GO-Biz) Electric Vehicle Charging Station line 11 Permitting Guidebook, published July 2019, recommends best line 12 practices for electric vehicle supply equipment permitting that line 13 would establish a 15-day timeline and satisfy the intent of line 14 Assembly Bill 1236 (Chapter 598 of the Statutes of 2015). line 15 (b) An application to install an electric vehicle charging station line 16 submitted to the building of®cial of a city, county, or city and line 17 county shall be deemed complete if ®ve business days after the line 18 application was submitted, the city, county, or city and county has line 19 not, consistent with the checklist created by the city, county, or

99

Ð 3 Ð AB 2168

line 1 city and county pursuant to subdivision (g) of Section 65850.7, line 2 deemed the application to be incomplete. line 3 (c) An application to install an electric vehicle charging station line 4 submitted to a city, county, or city and county shall be deemed line 5 approved if 15 business days after the application was submitted line 6 both of the following are met: line 7 (1) The city, county, or city and county has not administratively line 8 approved the application through the issuance of a building permit line 9 or similar nondiscretionary permit pursuant to subdivision (b) of line 10 Section 65850.7. line 11 (2) The building of®cial of the city, county, or city and county line 12 has not made ®ndings based upon substantial evidence that the line 13 proposed installation could have a speci®c, adverse impact upon line 14 the public health or safety and required the applicant to apply for line 15 a use permit pursuant to subdivision (b) of Section 65850.7. line 16 SEC. 2. This act is an urgency statute necessary for the line 17 immediate preservation of the public peace, health, or safety within line 18 the meaning of Article IV of the California Constitution and shall line 19 go into immediate effect. The facts constituting the necessity are: line 20 In order to achieve the goals of Executive Order No. B-48-18, line 21 signed by Governor Edmund G. Brown, Jr. on January 26, 2018, line 22 which provides for the target of 5,000,000 zero-emissions vehicles line 23 (ZEVs) in California by 2030, and 250,000 ZEV charging stations, line 24 including 10,000 direct current fast charge stations by 2025, it is line 25 necessary for this act to take effect immediately.

O

99

To: RCRC Board of Directors From: Paul A. Smith, Senior Vice President Governmental Affairs Governmental Affairs Staff Date: March 3, 2020 Re: Consideration of 2020 RCRC Sponsored Legislation - ACTION

Summary This memo provides the RCRC Board of Directors with three legislative proposals that RCRC could sponsor for the 2020 Legislative Session. RCRC staff is recommending the RCRC Board of Directors endorse staff to sponsor these proposals.

Background On January 6, 2020, the California Legislature reconvened for the 2020 Legislative Session. Furthermore, February 21, 2020 was the last day to introduce bills for the Legislative Sessions; however, there are a number of ways to navigate around the bill introduction deadline rule.

At the January RCRC Board of Directors meeting, the RCRC Board of Directors approved two legislative proposals for sponsorship/co-sponsorship regarding: 1) interstate cannabis-export; and 2) alcoholic beverage licenses in Mariposa County, which is now Assembly Bill 2459 (Bigelow & Borgeas).

Also, in light of RCRC’s long-standing attempts to secure additional state funding for solid waste management, RCRC has joined with Los Angeles County and the California State Association of Counties to co-sponsor Assembly Bill 2612 (Maienschein). AB 2612 continuously appropriates $200 million annually from Cap-and-Trade Auction Revenues, with $100 million allocated to in-state solid waste recycling projects and $100 million allocated to in-state organic waste recycling projects. $50 million of the organic waste allocation is dedicated to local agencies for organic waste management and implementation. $10 million of the solid waste allocation shall be made available to cities and counties for beverage container recycling and litter cleanup activities.

Issue RCRC staff is reviewing a large number of legislative items for the 2020 Legislative Session. In that review, RCRC has identified additional legislative items for the RCRC Board of Directors to consider with respect to sponsorship. It is likely there may be additional measures that staff may ask the RCRC Board of Directors to consider for formal sponsorship in April.

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG The items for potential sponsorship currently include the following topics:

Public Safety Power Shutoff (PSPS) Price Gouging Protections RCRC has been working closely with Assembly Member Freddie Rodriguez (D- Pomona) on Assembly Bill 1936, which would apply existing anti-price gouging protections to PSPS events. While the current version of AB 1936 is overly-broad in scope and duration, RCRC staff has been working with the author’s office to ensure it protects goods and services that are not currently covered by the existing price-gouging statute, but which are necessary to mitigate or avoid the impacts of PSPS events.

Local Flexibility for Organic Waste Management In light of the burdens that the California Department of Resources Recycling and Recovery’s (CalRecycle) Senate Bill 1383 organic waste regulations are expected to impose on local governments, RCRC staff has been working on a legislative proposal to provide much-needed flexibility for small and rural jurisdictions. Senator Brian Dahle (R-Bieber) agreed to introduce Senate Bill 1191 for RCRC. The current version of SB 1191 requires CalRecycle to consider whether a jurisdiction made good faith efforts to implement its organic waste reduction program and other factors before imposing a compliance order or penalties on that jurisdiction for failure to meet SB 1383 organic waste requirements. This is modeled after similar “good faith” provisions that apply to the state’s solid waste management programs. Amendments that will be incorporated into the bill will additionally: 1) exempt residential customers and small generators from food waste separation and recovery requirements where nearby bear populations may pose public safety issues for those activities; and 2) allow rural jurisdictions and low population counties to temporarily implement an alternative organic waste management program in place of implementing SB 1383 regulatory requirements.

Mitigating PSPS Impacts on Elections Assembly Bill 2539, which is being authored by Assembly Member Frank Bigelow (R- Madera), would require electrical corporations that implement PSPS events in the two weeks prior to an election or in the month following an election to work with local elections officials to determine whether they will be able to carry out their elections duties. The electrical corporation would be required to provide assistance to impacted elections officials to ensure that the PSPS event will not adversely affect their ability to conduct the election and tabulate and communicate results as required by law.

Staff Recommendation RCRC staff recommends the RCRC Board of Directors approve sponsoring the above- mentioned legislative proposals. RCRC staff will update the RCRC Board of Directors on all measures which RCRC is co-sponsoring/sponsoring at upcoming RCRC Board of Directors meetings.

Attachments  Copy of Assembly Bill 1936 and proposed amendment language  Copy of Senate Bill 1191 and proposed amendment language  Copy of Assembly Bill 2539  Copy of Assembly Bill 2459  Copy of Assembly Bill 2612

SB 1191 (Dahle) Language

Amend PRC 42652. The Legislature finds and declares all of the following: (a) The organic disposal reduction targets are essential to achieving the statewide recycling goal identified in Section 41780.01. (b) Achieving organic waste disposal reduction targets requires significant investment, including state resources, to develop organics recycling capacity. (c) More robust state and local funding mechanisms are needed to support the expansion of organics recycling capacity.

Amend PRC 42652.5. (a) The department, in consultation with the State Air Resources Board, shall adopt regulations to achieve the organic waste reduction goals for 2020 and 2025 established in Section 39730.6 of the Health and Safety Code. The regulations shall comply with all of the following: (1) May require local jurisdictions to impose requirements on generators or other relevant entities within their jurisdiction and may authorize local jurisdictions to impose penalties on generators for noncompliance. (2) Shall include requirements intended to meet the goal that not less than 20 percent of edible food that is currently disposed of is recovered for human consumption by 2025. (3) Shall not establish a numeric organic waste disposal limit for individual landfills. (4) May include different levels of requirements for local jurisdictions and phased timelines based upon their progress in meeting the organic waste reduction goals for 2020 and 2025 established in Section 39730.6 of the Health and Safety Code. The department shall base its determination of progress on relevant factors, including, but not limited to, reviews conducted pursuant to Section 41825, the amount of organic waste disposed compared to the 2014 level, per capita disposal rates, the review required by Section 42653, and other relevant information provided by a jurisdiction. (5) May include penalties to be imposed by the department for noncompliance. If penalties are included, they shall not exceed the amount authorized pursuant to Section 41850. (6) Shall take effect on or after January 1, 2022, except the imposition of penalties pursuant to paragraph (1) shall not take effect until two years after the effective date of the regulations. (b) A local jurisdiction may charge and collect fees to recover the local jurisdiction’s costs incurred in complying with the regulations adopted pursuant to this section. (c)(1) Upon request by a jurisdiction, the Department shall issue a waiver from requirements to separate and recover food waste and food-soiled paper for all or part of a jurisdiction where there are or could be public safety issues associated with food waste collection as a result of nearby bear populations. Residential and small commercial generators within an area with a waiver pursuant to this subdivision may deposit food waste and food-soiled paper in a disposal container. (2) A jurisdiction requesting a waiver shall provide to the Department information about nearby bear populations and the number of generators that will be included in the waiver. (3) Nothing in this subdivision exempts a jurisdiction from obligations to provide collection services for other types of organic wastes. SB 1191 (Dahle) Language

Add Public Resources Code Section 42652.6 (a) Recognizing the economic and logistical challenges of organic waste recycling in rural counties with low population densities and counties with low populations, this section establishes a temporary alternative compliance pathway for rural and low population counties and rural jurisdictions rural and low population counties to provide organic waste management programs. This section is intended to incentivize rural communities and low population counties to implement robust organic waste programs that minimize organic waste being landfilled while providing additional flexibility to achieve those objectives. Jurisdictions that comply with the requirements of this article shall be relieved of compliance with all other requirements imposed by this Chapter and associated implementing regulations. The opportunity for a jurisdiction to utilize this alternative compliance pathway shall be as follows: (1) January 1, 2028 for counties with populations of at least 70,000 but less than 250,000. (2) January 1, 2035 for rural counties with populations less than 70,000 and rural jurisdictions, as defined in Section 42649.8. (3) Jurisdictions listed in subparagraphs (1) and (2) may apply to the department to extend the compliance date by 3 years upon submittal of a request to CalRecycle with an explanation of efforts undertaken and explanations of barriers that require additional time for compliance. (b) If a jurisdiction elects to implement an alternative organic waste management program it shall do all of the following: (1) Implement the CALGreen Building Standards and the Model Water Efficient Landscape Ordinance. (2) Form an Edible Food Recovery Task Force which may include representatives from the social services department, environmental health department, food banks, businesses, non-governmental organizations, churches, and other organizations. An Edible Food Recovery Task Force shall develop a plan to meet a goal that not less than 20 percent of edible food that is currently disposed of in the jurisdiction is recovered for human consumption by 2025. (3) Two of the following: a. Form a feed recovery for animals collaboration to increase the diversion of organic materials for animal feed. Such a collaboration may include, but is not limited to, representatives from various interest groups such as the Department of Agriculture, UC Extension Farm Advisor, Cattlemen’s Association, agricultural associations, Future Farmers of America, and 4H. A collaboration shall report its actions and progress to the jurisdiction. b. Form a backyard and community composting collaboration to increase the use of small-scale composting in order to reduce organic waste, including food waste. A collaboration may include, but is not limited to, representatives from solid waste management organizations, the Department of Agriculture, UC Extension Farm Advisor, Master Gardeners, Future Farmers of America, and schools. A collaboration shall report its actions and progress to the jurisdiction. c. Form a regional collaboration with other jurisdictions to explore shared opportunities for new regional organic waste facilities and markets. The SB 1191 (Dahle) Language

collaboration shall be responsible to report its actions and progress to the participating jurisdictions. (4) Develop and provide green waste collection opportunities commensurate with the jurisdiction’s needs and capabilities. (5) Conduct public education and outreach for the adopted programs which may include: Methods for the prevention of organic waste generation, recycling organic waste on- site, sending organic waste to community composting, and any other available organic waste programs; Information regarding the methane reduction benefits of reducing the disposal of organic waste; Information related to the public health and safety and environmental impacts associated with the disposal of organic waste; and, Information regarding programs for the donation of edible food. (c) A jurisdiction that chooses to implement an alternative organic waste management program shall notify the Department of that decision by January 1, 2022. The notification shall include the following information: (1) The name of the jurisdiction. (2) Date the jurisdiction will implement the alternative organic waste management program. (3) Contact information for the jurisdiction, including the name, address and telephone number of the representative of the jurisdiction with primary responsibility for ensuring compliance with this article. (4) The location within the jurisdiction where all records required by this chapter are maintained. (5) A statement by the representative of the jurisdiction with primary responsibility for ensuring compliance with this article, under penalty of perjury, that all information contained in the notification is true and correct to the best of their knowledge and belief.

Add Public Resources Code Section 42652.7 In determining whether or not to issue a compliance order, impose any penalties, or in determining the amount of any penalties imposed under this Chapter, the Department shall: (a) Consider whether the jurisdiction has made a good faith effort to implement its organic waste reduction program. For purposes of this section, “good faith effort” means all reasonable and feasible efforts by a jurisdiction to implement this Chapter, and shall consider: (1) Natural disasters. (2) Budgetary constraints. (3) Work stoppages. (4) Failure of federal, state, and other local agencies located within the jurisdiction to implement organic waste reduction and recycling programs. (5) The availability of markets for collected organic waste recyclables. (6) The extent to which the jurisdiction has taken steps that are under its control to remove barriers to siting and expanding organic waste recycling facilities. SB 1191 (Dahle) Language

(7) The extent to which the jurisdiction has implemented additional organic waste reduction, recycling, and composting activities. (8) The extent to which the jurisdiction has implemented additional organic waste reduction, recycling, and composting activities. (9) Median household income of the jurisdiction. (b) Consider whether the following factors affected the jurisdiction’s ability to implement its organic waste reduction program or otherwise comply with the requirements of this Chapter. (1) Whether an exceptional growth rate may have affected compliance (2) Whether the jurisdiction has a large tourist or seasonal population (3) Whether an emergency, disaster, or loss of electricity affected the jurisdiction (4) Other information presented by the jurisdiction that may provide reasonable justification.

california legislature—2019–20 regular session

ASSEMBLY BILL No. 2459

Introduced by Assembly Member Bigelow (Coauthor: Senator Borgeas)

February 19, 2020

An act to add Section 23826.15 to the Business and Professions Code, relating to alcoholic beverages.

legislative counsel’s digest AB 2459, as introduced, Bigelow. Alcoholic beverage licenses: County of Mariposa Existing law, the Alcoholic Beverage Control Act, which is administered by the Department of Alcoholic Beverage Control, regulates the application, issuance, and suspension of alcoholic beverage licenses. Existing law generally prescribes the number of on-sale general licenses that the department may issue based on the population of the county in which the licensed premises are located, as provided. Existing law supplements these licenses by authorizing the department to issue additional on-sale general licenses in speci®ed counties to bona ®de public eating places based on seating capacity. This bill would authorize the department to issue up to 10 additional new original on-sale general licenses for bona ®de public eating places in the County of Mariposa that have a seating capacity for 50 or more diners. The bill would authorize the Board of Supervisors of the County of Mariposa to determine the number of licenses to be issued under this section in a given year, as provided. The bill would specify that a person holding a valid on-sale general license for seasonal business is not prohibited from applying for licenses to be issued pursuant to this authorization. The bill would prohibit transferring the new licenses out

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of the county or to a premises that does not qualify under these provisions. This bill would make legislative ®ndings and declarations as to the necessity of a special statute for the County of Mariposa. Vote: majority. Appropriation: no. Fiscal committee: yes.​ State-mandated local program: no.​

The people of the State of California do enact as follows:

line 1 SECTION 1. Section 23826.15 is added to the Business and line 2 Professions Code, to read: line 3 23826.15. (a) Notwithstanding any other provision of this line 4 chapter, in the County of Mariposa, the department may issue no line 5 more than a total of 10 additional new original on-sale general line 6 licenses for bona ®de public eating places. To qualify for a license line 7 under this section, the premises upon which a bona ®de public line 8 eating place is operated shall have a seating capacity for 50 or line 9 more diners. line 10 (b) The Board of Supervisors of the County of Mariposa, by line 11 resolution, may specify the maximum number of licenses to be line 12 issued under this section in any year. Such a resolution shall be line 13 effective for one year and shall be adopted and submitted to the line 14 department no later than July 1 of the year to which the resolution line 15 applies. The department shall not issue licenses under this section line 16 in excess of the maximum number speci®ed by the resolution. In line 17 the event that the board of supervisors fails to submit a resolution line 18 under this subdivision by July 1 of any year, the department may line 19 issue any licenses that have not been issued under this section line 20 during that year. line 21 (c) In issuing the licenses provided for in this section, the line 22 department shall follow the procedure set forth in Section 23961. line 23 (d) This chapter does not prohibit a person that currently holds line 24 a valid on-sale general license for seasonal business from applying line 25 for an original on-sale general license pursuant to this section. line 26 (e) A license issued under this section shall not be transferred line 27 from one county to another, nor shall it be transferred to any line 28 premises not qualifying under this section. line 29 SEC. 2. The Legislature ®nds and declares that a special statute line 30 is necessary and that a general statute cannot be made applicable line 31 within the meaning of Section 16 of Article IV of the California

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california legislature—2019–20 regular session

ASSEMBLY BILL No. 2612

Introduced by Assembly Member Maienschein

February 20, 2020

An act to amend Section 39719 of the Health and Safety Code, relating to greenhouse gases, and making an appropriation therefor.

legislative counsel’s digest AB 2612, as introduced, Maienschein. Greenhouse Gas Reduction Fund: recycling: appropriation. The California Global Warming Solutions Act of 2006 designates the State Air Resources Board as the state agency charged with monitoring and regulating sources of emissions of greenhouse gases. The act authorizes the state board to include use of market-based compliance mechanisms. Existing law requires all moneys, except for ®nes and penalties, collected by the state board as part of a market-based compliance mechanism to be deposited in the Greenhouse Gas Reduction Fund and to be available upon appropriation. Existing law continuously appropriates 35% of the annual proceeds of the fund for transit, affordable housing, and sustainable communities programs, 25% of the annual proceeds of the fund for certain components of a speci®ed high-speed rail project, and 5% of the annual proceeds of the fund, up to the sum of $130,000,000 annually, until June 20, 2030, for transfer to the Safe and Affordable Drinking Water Fund. This bill, beginning in the 2020±21 ®scal year, would continuously appropriate $100,000,000 from the fund annually to the Department of Resources Recycling and Recovery for in-state organic waste recycling projects that reduce greenhouse gas emissions and achieve certain organic waste disposal goals, as speci®ed. The bill, beginning in the

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2020±21 ®scal year, would also continuously appropriate $100,000,000 from the fund annually to the department for in-state recycling projects that reduce greenhouse gas emissions and help achieve a speci®ed state policy relating to solid waste, as speci®ed. 2 Vote: ⁄3. Appropriation: yes. Fiscal committee: yes.​ State-mandated local program: no.​

The people of the State of California do enact as follows:

line 1 SECTION 1. (a) The Legislature ®nds and declares all of the line 2 following: line 3 (1) It is the policy goal of the state that not less than 75 percent line 4 of solid waste generated be source reduced, recycled, or composted line 5 by the year 2020. However, the state's recycling rate has dropped line 6 from 50 percent in 2007 to 44 percent in 2017. line 7 (2) Exacerbating this challenge, beginning in 2018, the China line 8 National Sword policy further restricted the export and sale of line 9 recycled commodities, setting much stricter standards on line 10 contamination and banning the sale of bales of mixed commodities, line 11 like mixed-paper and mixed-plastics commodities, resulting in a line 12 2018 statewide recycling rate of 40 percent, a rate California has line 13 been far above since the year 2000. line 14 (3) The state is facing a recycling crisis, with high rates of line 15 contamination of collected recycled materials. To regain any value line 16 from the millions of tons of collected materials, recycling facilities line 17 must expand and upgrade their operations, resulting in higher line 18 processing costs to recover a lower volume of clean material that line 19 ultimately has a lower resale value, despite meeting a higher line 20 standard. At the same time, recycling facilities spend more moneys line 21 to receive lower revenue for recyclable commodities, and more line 22 material is being land®lled instead of recycled. This is directly line 23 related to the closure of nearly 1,000 recycling centers in the state line 24 since 2013, with more closures expected. line 25 (4) Organic waste is the state's largest source of methane and line 26 black carbon emissions, which are two of the most damaging line 27 climate pollutants and also harm respiratory and cardiovascular line 28 health. line 29 (5) Recycling organic waste is a priority for the state, which led line 30 the state to establish aggressive targets to reduce organic waste line 31 disposal in land®lls and methane emissions produced from organic

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line 1 waste. However, California lacks suf®cient infrastructure to meet line 2 those targets. The Department of Resources Recycling and line 3 Recovery (CalRecycle) estimates that the total cost to implement line 4 the statewide organic waste regulations established pursuant to line 5 Chapter 395 of the Statutes of 2016 is approximately $40 billion. line 6 (6) These recent developments clearly demonstrate an immense line 7 gap between private sector investment and our signi®cant need line 8 for in-state infrastructure to collect, transfer, process, clean, and line 9 sell both recyclable commodities and materials that are now line 10 considered organic waste. Tens of billions of dollars are needed line 11 to place our state on a trajectory to meet our aggressive, but line 12 critically needed, climate, environmental, quality of life, and health line 13 and safety goals. line 14 (7) Many new proven technologies can address these major line 15 challenges, and the Legislative Analyst's Of®ce has consistently line 16 reported, most recently in 2016, that funding for recycling and line 17 organic waste management is the most cost-effective method for line 18 reducing greenhouse gas emissionsÐas low as $4 per ton of line 19 greenhouse gas emissions reducedÐwhile having the co-bene®ts line 20 of reducing other air pollutants and short lived climate pollutants, line 21 creating green jobs, and causing other improvements. line 22 (8) Developing local infrastructure and domestic markets for line 23 recycled materials bene®ts the environment and the state's line 24 economy and is critical due to the loss of access to foreign markets. line 25 Successfully achieving California's ambitious recycling and climate line 26 change goals requires partnerships and commitments from the line 27 state, local governments, the waste and recycling industry, and line 28 recycling and organic waste project developers. This bill provides line 29 critically needed seed funding to offset economic forces that create line 30 strong headwinds against such partnerships and commitments. line 31 (b) It is the intent of the Legislature that this bill do all of the line 32 following: line 33 (1) Improve California's statewide recycling infrastructure to line 34 achieve the state's greenhouse gas emission and solid and organic line 35 waste reduction goals established by Chapter 395 of the Statutes line 36 of 2016, Chapter 727 of the Statutes of 2014, and Chapter 476 of line 37 the Statutes of 2011. line 38 (2) Improve existing, and create new, solid and organic waste line 39 recycling infrastructure to enable the state to better and more line 40 effectively manage, reuse, and recycle its waste stream in state

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line 1 and to create additional jobs in the solid waste, recycling, and line 2 manufacturing sectors. line 3 (3) Assist local governments in implementing their solid and line 4 organic waste programs to achieve the state's greenhouse gas line 5 emission and solid and organic waste reduction goals. line 6 SEC. 2. Section 39719 of the Health and Safety Code is line 7 amended to read: line 8 39719. (a) The Legislature shall appropriate the annual line 9 proceeds of the fund for the purpose of reducing greenhouse gas line 10 emissions in this state in accordance with the requirements of line 11 Section 39712. line 12 (b) To carry out a portion of the requirements of subdivision line 13 (a), the annual proceeds of the fund are continuously appropriated line 14 for the following: line 15 (1) Beginning in the 2015±16 ®scal year, and notwithstanding line 16 Section 13340 of the Government Code, 35 percent of the annual line 17 proceeds of the fund are continuously appropriated, without regard line 18 to ®scal years, for transit, affordable housing, and sustainable line 19 communities programs as follows: line 20 (A) Ten percent of the annual proceeds of the fund is hereby line 21 continuously appropriated to the Transportation Agency for the line 22 Transit and Intercity Rail Capital Program created by Part 2 line 23 (commencing with Section 75220) of Division 44 of the Public line 24 Resources Code. line 25 (B) Five percent of the annual proceeds of the fund is hereby line 26 continuously appropriated to the Low Carbon Transit Operations line 27 Program created by Part 3 (commencing with Section 75230) of line 28 Division 44 of the Public Resources Code. Moneys shall be line 29 allocated by the Controller, according to requirements of the line 30 program, and pursuant to the distribution formula in subdivision line 31 (b) or (c) of Section 99312 of, and Sections 99313 and 99314 of, line 32 the Public Utilities Code. line 33 (C) Twenty percent of the annual proceeds of the fund is hereby line 34 continuously appropriated to the Strategic Growth Council for the line 35 Affordable Housing and Sustainable Communities Program created line 36 by Part 1 (commencing with Section 75200) of Division 44 of the line 37 Public Resources Code. Of the amount appropriated in this line 38 subparagraph, no less than 10 percent of the annual proceeds of line 39 the fund shall be expended for affordable housing, consistent with line 40 the provisions of that program.

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line 1 (2) Beginning in the 2015±16 ®scal year, notwithstanding line 2 Section 13340 of the Government Code, 25 percent of the annual line 3 proceeds of the fund is hereby continuously appropriated to the line 4 High-Speed Rail Authority for the following components of the line 5 initial operating segment and Phase I Blended System as described line 6 in the 2012 business plan adopted pursuant to Section 185033 of line 7 the Public Utilities Code: line 8 (A) Acquisition and construction costs of the project. line 9 (B) Environmental review and design costs of the project. line 10 (C) Other capital costs of the project. line 11 (D) Repayment of any loans made to the authority to fund the line 12 project. line 13 (3) (A) Beginning in the 2020±21 ®scal year, and until June line 14 30, 2030, 5 percent of the annual proceeds of the fund, up to the line 15 sum of one hundred thirty million dollars ($130,000,000), is hereby line 16 annually transferred to the Safe and Affordable Drinking Water line 17 Fund established pursuant to Section 116766 for the purposes of line 18 Chapter 4.6 (commencing with Section 116765) of Part 12 of line 19 Division 104. line 20 (B) Moneys transferred under this paragraph shall be used for line 21 the purpose of facilitating the achievement of reductions of line 22 greenhouse gas emissions in this state in accordance with the line 23 requirements of Section 39712 or to improve climate change line 24 adaptation and resiliency of disadvantaged communities or line 25 low-income households or communities, consistent with Division line 26 25.5 (commencing with Section 38500). For purposes of the line 27 moneys transferred under this paragraph, a state agency may also line 28 comply with the requirements of paragraphs (2) and (3) of line 29 subdivision (a) of Section 16428.9 of the Government Code by line 30 describing how each proposed expenditure will improve climate line 31 change adaptation and resiliency of disadvantaged communities line 32 or low-income households or communities. line 33 (4) (A) Beginning in the 2020±21 ®scal year, notwithstanding line 34 Section 13340 of the Government Code, one hundred million line 35 dollars ($100,000,000) is hereby continuously appropriated from line 36 the fund, without regard to ®scal years, to the Department of line 37 Resources Recycling and Recovery for in-state organic waste line 38 recycling projects that reduce greenhouse gas emissions and line 39 achieve the organic waste disposal goals established in Section line 40 39730.6.

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line 1 (B) Fifty percent of the funds appropriated pursuant to this line 2 paragraph shall be used to provide ®nancial assistance for in-state line 3 organic waste processing and recycling activities, which may line 4 include, but are not limited to, the construction of new, or the line 5 modi®cation or expansion of existing, facilities and to support the line 6 in-state processing, reuse, and recycling of organic waste, line 7 including, through the production or application of compost, the line 8 production of soil amendments, in-vessel digestion, food waste line 9 prevention, and edible food recovery. line 10 (C) Fifty percent of the funds appropriated pursuant to this line 11 paragraph shall be allocated by the Department of Resources line 12 Recycling and Recovery to local agencies as grants for activities line 13 directly related to organic waste management and implementation line 14 of Chapter 13.1 (commencing with Section 42652) of Part 3 of line 15 Division 30 of the Public Resources Code. line 16 (5) (A) Beginning in the 2020±21 ®scal year, notwithstanding line 17 Section 13340 of the Government Code, one hundred million line 18 dollars ($100,000,000) is hereby continuously appropriated from line 19 the fund, without regard to ®scal years, to the Department of line 20 Resources Recycling and Recovery for in-state recycling projects line 21 that reduce greenhouse gas emissions and help achieve the state's line 22 policy goal that not less than 75 percent of solid waste generated line 23 be source reduced, recycled, or composted by the year 2020, and line 24 annually thereafter, pursuant to Section 41780.01 of the Public line 25 Resources Code. line 26 (B) Projects eligible for ®nancial assistance pursuant to this line 27 paragraph include, but are not limited to, recycling market line 28 development projects, development of recycling infrastructure to line 29 improve the recovery and quality of recyclable products, line 30 construction of new, or the modi®cation or expansion of existing, line 31 facilities that process recycled feedstock that is intended to be line 32 reused in the production of another product or that use recycled line 33 feedstock to produce another product, and the procurement and line 34 installation of equipment or development and implementation of line 35 new processes to improve the quality of material collected in line 36 curbside or neighborhood recycling programs. line 37 (C) Of the funds appropriated pursuant to this paragraph, ten line 38 million dollars ($10,000,000) shall be made available as grants line 39 to cities and counties for beverage container recycling and litter line 40 cleanup activities.

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line 1 (c) In determining the amount of annual proceeds of the fund line 2 for purposes of the calculation in subdivision (b), the funds subject line 3 to Section 39719.1 shall not be included. line 4 (d) For purposes of this section, both of the following de®nitions line 5 apply: line 6 (1) ªFinancial assistanceº includes, but is not limited to, grants, line 7 incentive payments, low-interest loans, loan loss reserves, interest line 8 rate reductions, loan guarantees, or other credit enhancements. line 9 (2) ªLocal agencyº means a city, county, city and county, line 10 district, or other local governmental agency that provides solid line 11 waste handling services.

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To: RCRC Board of Directors From: Staci Heaton, Senior Regulatory Affairs Advocate Date: March 3, 2020 Re: Proposals Impacting the Homeowners Insurance Market - Assembly Bill 2167 (Daly) - ACTION

Summary A number of legislative proposals have been recently introduced to increase insurance accessibility and affordability for homeowners living in high fire risk areas throughout the state. This memo provides information on one of those proposals for Board consideration – Assembly Bill 2167.

Background Proposition 103, passed by voters in November 1988, requires approval of insurance rate increases by the California Insurance Commissioner for most insurance policy types, including residential coverage. The measure approved an intervention process that allows for consumer participation in the administrative process of setting insurance rates, permitting consumer “intervenors” to recover advocacy expenses under certain circumstances. The measure also contained a provision allowing the public to force a public hearing for any insurer that requests a rate-increase of 7 percent or more. The result is that insurance rates have been kept at a low level since the measure’s passage, with insurers requesting rate increases of 6.9 percent to avoid the public hearing process.

As a result of the Proposition 103 rate increase process, insurers have maintained that their rates have been artificially suppressed by various elected Insurance Commissioners and the California Department of Insurance (CDI). Factually, California’s 2017 average homeowners policy premium ranked 32nd in the nation at $1,008, with other states facing high rates of disasters such as Louisiana, Florida, Texas and Colorado ranking in the top 10 (hurricane-prone Louisiana was atop the list at $1,968). In concert with the annual increase in insurance losses from catastrophic wildfires over the last decade, the insurance industry continues to non-renew policies in California’s high fire hazard severity zones to help mitigate potential future losses, with some insurers withdrawing from those areas altogether.

Issue In order to address both insurer losses from catastrophic wildfire and non-renewals in high wildfire risk areas, Assembly Member Tom Daly (D-Santa Ana) has introduced

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG Assembly Bill 2167. It should be noted that Assembly Member Daly currently serves as the Chair of the Assembly Insurance Committee. AB 2167 is also co-authored by Assembly Member Ken Cooley (D-Rancho Cordova) and includes a number of components designed to work together to enable insurers to increase rates statewide to recover their losses at a more efficient rate while requiring them to offer policies in a greater percentage of high fire risk areas. AB 2167 includes the following:

 Establishes the Insurance Market Action Plan (IMAP) program. Residential policies in a given county can qualify for IMAP protection if residential policies issued by the California FAIR Plan in that county constitute 3 percent or more of all policies in effect.  Allows an insurer to submit an IMAP, which includes a request for rate increases that are actuarially sound and subject to the approval of the Commissioner. The IMAP must also contain a plan for maintaining the insurer’s solvency and avoiding overconcentration in a given area, as well as parcel-level and community-based mitigation requirements. A rate requested in an IMAP must be based on a complex catastrophe model.  Requires insurers who receive IMAP approval to offer new and renewal residential policies in a set of IMAP counties until they reach a market penetration rate that is no lower than 85 percent of their statewide market penetration rate.  Gives rate reviews under the IMAP process an expedited review not exceeding 120, thus changing certain provisions in Proposition 103.  The Office of Planning and Research will issue a report of the effectiveness of the IMAP program by January 1, 2023.

The idea behind the IMAP is to allow insurers to obtain statewide rate increases beyond a mere 6.9 percent, while still maintaining full policy premiums that are much lower than the FAIR Plan’s fire insurance-only policies, allowing insurers to recover losses and encouraging them to remain in California. The IMAP would also hold insurers to offer policies in the highest fire risk areas of the state where homeowners are having the most trouble obtaining coverage, eliminating the current trend of non-renewals. All residential policyholders in California would ultimately see an increase in their premiums, but ideally the IMAP would increase accessibility and affordability for those homeowners in the most fire prone areas.

Related Legislation Senator Susan Rubio (D-Los Angeles), Chair of the Senate Insurance Committee, also introduced Senate Bill 1359 to require CDI to convene a working group to examine the actuarial soundness of current residential property insurance rates.

Staff Recommendation RCRC staff recommends the Board of Directors have the Ad Hoc Advisory Committee on Homeowner’s Insurance consider and advise RCRC regarding a position on AB 2167.

Attachments  Copy of Assembly Bill 2167 california legislature—2019–20 regular session

ASSEMBLY BILL No. 2167

Introduced by Assembly Members Daly and Cooley

February 11, 2020

An act to add Chapter 12 (commencing with Section 10109) to Part 1 of Division 2 of the Insurance Code, relating to insurance.

legislative counsel’s digest AB 2167, as introduced, Daly. Insurance market action plan. The Insurance Rate Reduction and Reform Act of 1988, an initiative measure enacted by Proposition 103, as approved by the voters at the November 8, 1988, statewide general election, prohibits speci®ed insurance rates from being approved or remaining in effect that are excessive, inadequate, unfairly discriminatory, or otherwise in violation of the act. The act requires an insurer that wishes to change a rate to ®le a complete rate application with the Insurance Commissioner and deems the application approved 60 days after public notice of the application unless certain events occur, including that a consumer requests a hearing, or the commissioner determines to hold a hearing. The act requires hearings to be conducted pursuant to speci®ed provisions of law governing administrative hearings. Existing law authorizes the provisions of Proposition 103 to be amended by a statute that furthers the purposes of the act and is enacted by the Legislature 2 with a ¤3 vote. Under existing law, the California FAIR Plan Association is a joint reinsurance association in which all insurers licensed to write basic property insurance participate in administering a program for the equitable apportionment of basic property insurance for persons who are unable to obtain that coverage through normal channels.

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This bill would establish the Insurance Market Action Plan (IMAP) program under which residential property insurance policies in a county may qualify for IMAP protection if residential property insurance policies issued by the FAIR Plan constitute 3% or more of all policies issued and in force in that county. The bill would authorize an insurer to submit an IMAP ®ling to the department and would require the IMAP to include a request for adequate rates, a plan for maintaining solvency of the insurer, and mitigation requirements. The bill would also require an insurer to commit in the IMAP to offer new and renewal residential property insurance policies in a set of IMAP counties until the insurer achieves a market penetration rate in those IMAP counties that is no lower than 85% of its statewide market penetration rate. The bill would require an insurer that submits an IMAP ®ling to receive an expedited review of its rate ®ling, not to exceed 120 days, if the insurer uses an actuarial assumption for trend and loss development that is at the midpoint or less of rate impacts, or ®les for a rate increase based solely on increased reinsurance costs, and does not otherwise change any other aspect of its rate ®ling from its previous department approved rate. The bill would require the Of®ce of Planning and Research, on or before, January 1, 2023, to issue a report outlining the effectiveness of the IMAP program. By providing for an expedited review and approval of residential property insurance rates, the bill would amend Proposition 103 and thus 2 require a ¤3 vote. 2 Vote: ⁄3. Appropriation: no. Fiscal committee: yes.​ State-mandated local program: no.​

The people of the State of California do enact as follows:

line 1 SECTION 1. The Legislature ®nds and declares all of the line 2 following: line 3 (a) Climate change has created a new reality in California. line 4 Fifteen of the 20 most destructive wild®res in the state's history line 5 have occurred since 2000 and 10 of the most destructive ®res have line 6 occurred since 2015. line 7 (b) Fire season in California has changed. In the western United line 8 States, the length of the ®re season is over 80 days longer than it line 9 was in the 1970s. According to research from the University of line 10 California, Los Angeles, residents may no longer expect ®re season line 11 to end in September. Instead, the onset of seasonal rain can be

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line 1 delayed into October or even November. These longer periods line 2 without rain, combined with the well-known, heavy wind patterns line 3 of autumn, have created increased likelihood of uncontrollable, line 4 severe ®res that endanger life and property. The Camp Fire in line 5 Paradise is an example of a ®re that started after the end of the line 6 traditional ®re season. line 7 (c) The impact of catastrophic ®res is multifaceted. While the line 8 governmental costs of ®re response and suppression are signi®cant, line 9 research from Headwaters Economics indicates those costs are line 10 less than 10 percent of the total costs. Combined with suppression line 11 expenses, other short-term costs, including evacuation and aid line 12 relief, road stabilization, and home and property loss only represent line 13 35 percent of the total wild®re-related costs. Longer term costs, line 14 including loss of property value, tax revenue, and business revenue, line 15 as well as landscape rehabilitation, infrastructure repair, loss of line 16 ecosystem services, and human casualties represent the remaining line 17 65 percent. line 18 (d) Residential property insurance provides essential ®nancial line 19 security for California residents for both short-term and long-term line 20 costs. Insurance supports temporary needs for housing and line 21 transportation for ®re victims, intermediate needs for debris and line 22 hazardous materials removal from ®re-affected properties, and line 23 long-term rebuilding of structures and replacement of personal line 24 property. There is no governmental program that provides similar line 25 comprehensive assistance for California residents and it is, line 26 therefore, vital for the State of California to ensure the existence line 27 of a vibrant residential property insurance marketplace capable of line 28 serving all communities. line 29 (e) Strains in the residential property insurance system are line 30 becoming evident. As the Senate Committee on Insurance noted line 31 in its 2019 informational hearing on homeowners' insurance line 32 availability and affordability, California policyholders have line 33 ªenjoyed a long spell of low insurance ratesº but ªclimate change, line 34 drought, population movement, and other factors may be changing line 35 the fundamental nature of the homeowners' insurance market.º line 36 Analysis of countrywide data from the National Association of line 37 Insurance Commissioners indicates that average homeowners' line 38 insurance rates in California rank 32nd in the country and, when line 39 adjusted for differences in regional costs, rank 49th in the country,

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line 1 at less than one-half the cost for insurance in states exposed to line 2 other natural disasters, including hurricanes. line 3 (f) As part of a similar 2019 investigation of the homeowners' line 4 insurance market, the Assembly Committee on Insurance noted line 5 the acceleration of losses in this environment of relatively low line 6 rates, ®nding that a ªstudy of the homeowners' insurance market line 7 released in 2018 as part of California's Fourth Climate Change line 8 Assessment found that insured losses through 2017 wiped out the line 9 entire underwriting pro®t insurers earned since 2000. The 2018 line 10 ®res continued with another round of enormous losses.º The line 11 committee cautioned against a legislative response that ªincreases line 12 the likelihood of any policy change to generate unintended line 13 consequencesº and guarding against the great risk that regulating line 14 some, but not all, of the important aspects of insurance could line 15 ªsigni®cantly disrupt a homeowners' insurance market that is line 16 effectively serving a great majority of California homeowners.º line 17 (g) The ®nal report of the Governor's Commission on line 18 Catastrophic Wild®re Cost and Recovery attempted to reconcile line 19 the various competing interests associated with insurance line 20 availability, risk selection, and pricing. The commission noted that line 21 ªwhile insurance is still largely available, it will become line 22 increasingly unavailable and/or unaffordable for many in the line 23 wildland urban interface in California.º In attempting to harmonize line 24 the various competing interests for California, the commission line 25 recommended preserving risk-based insurance pricing, while line 26 avoiding cross-subsidies of high-risk areas by low-risk areas, as line 27 well as developing incentives for parcel and community level loss line 28 mitigation efforts. line 29 (h) Based upon this extensive investigation in both the legislative line 30 and executive branches, the Legislature has determined that a state line 31 policy response is required to solve several issues simultaneously, line 32 including, all of the following: line 33 (1) Ensuring insurance rates are adequate to avoid insurer line 34 insolvencies and to permit insurers to operate in the state's highest line 35 risk areas, while imposing restrictions on rates above actuarially line 36 justi®ed levels. line 37 (2) Reducing the number of residents that are required to rely line 38 upon the California FAIR Plan, which the State of California line 39 created to provide a market of last resort but which is a catastrophic

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line 1 insurance pool at rate levels far higher than the regular insurance line 2 market. line 3 (3) Incentivizing insurers to seek cost-based rates in exchange line 4 for assurances that they will serve high-risk communities at levels line 5 similar to their statewide presence. line 6 (4) Developing systems of accountability for individual and line 7 community-based loss mitigation efforts. line 8 (i) To the extent that a court may ®nd that this legislation line 9 amends the Insurance Rate Reduction and Reform Act of 1988, line 10 an initiative measure, enacted by Proposition 103, as approved by line 11 the voters at the November 8, 1988, statewide general election, line 12 the Legislature has determined that this act furthers the purpose line 13 of Proposition 103 because the primary goal of this act is to line 14 increase statewide availability of insurance using risk-based pricing line 15 subject to the prior approval of the Insurance Commissioner, and line 16 seeks to prevent unfair discrimination in pricing or unjusti®ed line 17 regional subsidies in high ®re-risk areas. line 18 SEC. 2. Chapter 12 (commencing with Section 10109) is added line 19 to Part 1 of Division 2 of the Insurance Code, to read: line 20 line 21 Chapter 12. Insurance Market Action Plan line 22 line 23 10109. (a) The Insurance Market Action Plan (IMAP) program line 24 is hereby established. line 25 (b) (1) Residential property insurance policies in a county may line 26 qualify for insurance market action plan (IMAP) protection if line 27 residential property insurance policies issued by the California line 28 FAIR Plan constitute 3 percent or more of all policies issued and line 29 in force in the county, as annually calculated by the department line 30 and the Department of Finance. line 31 (2) A county that meets the requirements of paragraph (1) shall line 32 be designated by the department as an IMAP county. line 33 (c) If the IMAP process implemented by this chapter results in line 34 eliminating the eligibility of all counties from being quali®ed under line 35 subdivision (b), an insurer may continue to make IMAP ®lings line 36 pursuant to this chapter. line 37 10109.1 (a) An insurer may submit an IMAP ®ling to the line 38 department, which shall include all of the following: line 39 (1) A request for adequate rates, as described in Section 10109.3.

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line 1 (2) A plan for maintaining the insurer's solvency as policy count line 2 grows in IMAP counties, taking into account, among other things, line 3 risks related to overconcentration in high-risk communities. line4 (3) Parcel-level and community-based mitigation and line 5 veri®cation requirements, as described in Section 10109.2. line 6 (b) (1) An insurer shall commit in the IMAP to offer new and line 7 renewal residential property insurance policies in a set of IMAP line 8 counties until the insurer achieves a market penetration rate in line 9 those IMAP counties that is no lower than 85 percent of its line 10 statewide market penetration rate. The IMAP commitment shall line 11 be calculated based on the insurer's residential property insurance line 12 policy count across the entire designated set of IMAP counties, line 13 but need not be met in each county individually. line 14 (2) Notwithstanding paragraph (1), an insurer shall monitor and line 15 avoid overconcentration in any one particular area within an IMAP line 16 county or across a particular IMAP county in order to prevent a line 17 catastrophic loss that could impair its solvency. line 18 10109.2. An IMAP ®ling shall set forth the mitigation standards line 19 required in order for counties to qualify for IMAP protection, line 20 including all of the following: line 21 (a) Objective standards for parcel-level mitigation, along with line 22 procedures for verifying that the mitigation actually occurred, line 23 including any required governmental or third-party certi®cations. line 24 (b) Requirements for community certi®cations, if any, including line 25 designation as a Firewise USA site by the National Fire Protection line 26 Association. line 27 10109.3. (a) A rate proposed as part of an IMAP ®ling shall line 28 not be excessive, inadequate, or unfairly discriminatory, and shall line 29 be actuarially sound so that premiums are adequate to cover line 30 expected losses, expenses, and taxes, and shall re¯ect investment line 31 income of the insurer. line 32 (b) A rate requested as part of an IMAP ®ling shall be subject line 33 to the prior approval of the commissioner. line 34 10109.4. A rate requested as part of an IMAP ®ling may be line 35 based on a complex catastrophe model, as follows: line 36 (a) The complex catastrophe model shall be based on the best line 37 available scienti®c information for assessing the risk of catastrophic line 38 wild®re frequency, severity, and loss. line 39 (b) The projected losses derived from the catastrophe model line 40 shall meet all applicable statutory standards.

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line 1 (c) The complex catastrophe model shall consider both line 2 parcel-level mitigation and regional mitigation. line 3 10109.5. (a) An insurer that submits an IMAP ®ling pursuant line 4 to this chapter shall receive an expedited review of its rate ®ling line 5 if either of the following conditions are met: line 6 (1) The insurer uses an actuarial assumption for trend and loss line 7 development that is at the midpoint or less of rate impacts, and line 8 does not otherwise change any other aspect of its rate ®ling from line 9 its previous department approved rate. line 10 (2) The insurer ®les for a rate increase based solely on increased line 11 reinsurance costs, subject to the requirements of Section 10109.6, line 12 and does not otherwise change any other aspect of its rate ®ling line 13 from its previous department approved rate. line 14 (b) The time period for the expedited rate review shall not line 15 exceed 120 days, and the department shall not request that the line 16 insurer waive the 120-day requirement. line 17 (c) If the department does not approve the ®ling within the 120 line 18 days, the IMAP ®ling is automatically withdrawn and the insurer line 19 may continue with its previously approved rate and the insurer line 20 retains the ability to select risks without meeting the requirements line 21 of subdivision (b) of Section 10109.1. line 22 (d) Notwithstanding subdivision (c), if an insurer submits an line 23 IMAP ®ling to amend a rate level approved in a previous IMAP line 24 ®ling, and the department does not approve the ®ling within the line 25 120 days, the insurer's IMAP commitments, including the line 26 commitments required by subdivision (b) of Section 10109.1, shall line 27 be suspended until the department and the insurer reach agreement line 28 on the ®ling. line 29 10109.6. If a rate requested as part of an IMAP ®ling includes line 30 the net costs of reinsurance, including internal or external line 31 reinsurance, the reinsurance agreement shall be entered into in line 32 good faith in an arm's length transaction and at fair market value line 33 for the coverage provided. The reinsurance shall meet the line 34 department's statement credit requirements. line 35 10109.7. If an insurer submits an IMAP ®ling pursuant to this line 36 chapter and the department or an intervener objects to an issue line 37 other than the rate calculation, then the expedited IMAP rate ®ling line 38 shall be processed separately from the contested issue so that the line 39 contested issue does not delay the expedited rate ®ling. If, based line 40 on the contested issue, the department orders a nonconsensual

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line 1 change to the IMAP, the insurer's IMAP requirements shall be line 2 suspended until the department and the insurer agree upon revised line 3 terms for the IMAP. line 4 10109.8. On or before January 1, 2023, the Of®ce of Planning line 5 and Research shall issue a report outlining the effectiveness of the line 6 IMAP program that includes, but is not limited to, all of the line 7 following: line 8 (a) An analysis of whether the IMAP program achieved average line 9 admitted market rates lower than the California FAIR Plan plus line 10 difference in condition policies. line 11 (b) An analysis of the overall progress of the IMAP program line 12 towards achieving market penetration goals in IMAP counties. line 13 This data shall be reported in aggregate. line 14 (c) Recommendations for continued improvements to the IMAP line 15 program.

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To: RCRC Board of Directors From: Staci Heaton, Senior Regulatory Affairs Advocate Date: March 3, 2020 Re: Proposals Impacting the Homeowners Insurance Market - Assembly Bill 2367 (Gonzalez) - ACTION

Summary A number of legislative proposals have been recently introduced to increase insurance accessibility and affordability for homeowners living in high fire risk areas throughout the state. This memo provides information on one of those proposals for Board consideration – Assembly Bill 2367.

Background Since 2010, the number of residential insurance policy nonrenewals has increased dramatically in high wildfire risk areas. The most recent data released by the California Department of Insurance (CDI) shows a 249 percent increase in renewal complaints from 2010 to 2016 and a 217 percent increase in premium complaints in that same time period in areas of high wildfire risk. RCRC member counties and RCRC staff receive consistent complaints and information that rural homeowners are having difficulty maintaining insurance coverage and are having to resort to the California FAIR Plan for fire-only insurance policies at a much higher premium. While counties, RCRC and the state have attempted to work with the insurance industry to come up with programs offering discounts for home hardening and community fire prevention measures, little progress has been made on a program that satisfies all parties.

Issue In order to immediately address residential nonrenewals in high wildfire risk areas, California Insurance Commissioner Ricardo Lara has sponsored Assembly Bill 2367, authored by Assembly Member Lorena Gonzalez (D-San Diego), mandating that insurers in California offer residential insurance policies to an applicant that meets certain home-hardening and community fire resilience criteria. AB 2367 includes the following provisions:

 Requires admitted insurers that offer residential policy insurance in California to, at minimum, offer its most common coverage to an applicant if they meet certain standards for a fire-hardened home and reside within a defined fire-hardened community.

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG  Only applies to existing structures and would not apply to any new homes built within the wildland-urban interface in order to discourage development in those areas.  Establishes the Wildfire Resilience Task Force consisting of a designee from CDI, the Office of Emergency Services, and the Office of the State Fire Marshal. The Task Force will establish the standards for a fire-hardened home and fire- hardened community.  Grants the Commissioner additional authority to establish regulations to require insurers to offer a discount program to incentivize wildfire mitigation actions by homeowners as part of their insurance premiums. The Commissioner may also grant exemptions based on overconcentration of risk in a particular region or if a residence has significant wildfire risk exposure.

The intent of AB 2367 is ultimately to mandate insurance policies in high wildfire risk areas for those homeowners that are acting in good faith with regards to fire mitigation efforts. The bill does not address recovery of losses by insurers nor does it acknowledge state mandates on local governments to meet housing requirements.

A spate of bills that are similar or related to AB 2367 were also introduced to try to resolve the residential policy nonrenewal issue. Those bills include the following:

 Assembly Bill 3012 (Wood)— Requires admitted insurers to offer policies in very high fire hazard severity zones until the insurer reaches a market participation rate that is no lower than their statewide market participation rate.  Assembly Bill 3258 (Levine)— When fully written, it is likely to require an insurer to take community wildfire protection measures into account when setting residential insurance premiums.  Senate Bill 1199 (McGuire)— Establishes the Commission on Home Hardening to certify a 3-tiered level of wildfire mitigation and requires insurers to offer residential coverage and discounts based on those mitigation tiers. Prohibits insurers from denying coverage to a home in a Firewise community.

Staff Recommendation RCRC staff recommends the Board of Directors have the Ad Hoc Advisory Committee on Homeowner’s Insurance consider and advise RCRC regarding a position on AB 2367.

Attachments  Copy of Assembly Bill 2367 (Gonzalez) california legislature—2019–20 regular session

ASSEMBLY BILL No. 2367

Introduced by Assembly Members Gonzalez and Limón

February 18, 2020

An act to add Section 2063 to, and to add Article 9 (commencing with Section 13575) to Chapter 2 of Division 3 of, the Insurance Code, relating to insurance.

legislative counsel’s digest AB 2367, as introduced, Gonzalez. Residential property insurance: wild®re resilience. Existing law generally regulates classes of insurance, including residential ®re and property insurance. Existing law de®nes the measure of indemnity for a loss under a property insurance policy. Existing law requires a person who controls a building or structure in, upon, or adjoining a speci®ed wild®re-prone area to, among other things, maintain 100 feet of defensible space around the structure. This bill would create the Wild®re Resilience Task Force, which would include the Insurance Commissioner, the Director of the Of®ce of Emergency Services, and the State Fire Marshal, or their designees. The bill would require the task force to establish minimum standards for ®re-hardened homes and communities, and would authorize the commissioner to promulgate regulations to implement speci®ed exceptions to those standards. The bill would require an admitted insurer that offers or sells residential property insurance to, at a minimum, offer or sell the existing residential property insurance coverage it most commonly offers or sells to an applicant or insured who owns a residence that has an estimated replacement cost consistent with the insurer's underwriting guidelines, meets the minimum standards

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established by the task force, and was built before those standards were established. Vote: majority. Appropriation: no. Fiscal committee: yes.​ State-mandated local program: no.​

The people of the State of California do enact as follows:

line 1 SECTION 1. Section 2063 is added to the Insurance Code, to line 2 read: line 3 2063. An admitted insurer that offers or sells residential line 4 property insurance in this state shall, at a minimum, offer or sell line 5 the existing residential property insurance coverage it most line 6 commonly offers or sells to an applicant or insured if all of the line 7 following requirements are met: line 8 (a) The applicant or insured owns a residence with an estimated line 9 replacement cost that is consistent with the insurer's underwriting line 10 guidelines. line 11 (b) The residence meets the minimum standards for a line 12 ®re-hardened home established pursuant to Section 13576. line 13 (c) The residence is within a community that meets the minimum line 14 standards for a ®re-hardened community established pursuant to line 15 Section 13576. line 16 (d) The residence was built before the development of the line 17 standards established pursuant to Section 13576. line 18 SEC. 2. Article 9 (commencing with Section 13575) is added line 19 to Chapter 2 of Division 3 of the Insurance Code, to read: line 20 line 21 Article 9. Wild®re Resilience Task Force line 22 line 23 13575. (a) The Wild®re Resilience Task Force is hereby line 24 created. line 25 (b) The task force membership shall include all of the following: line 26 (1) The commissioner or the commissioner's designee. line 27 (2) The Director of the Of®ce of Emergency Services or the line 28 director's designee. line 29 (3) The State Fire Marshal or the State Fire Marshal's designee. line 30 13576. The task force, in consultation with the Department of line 31 Forestry and Fire Protection and the Of®ce of Planning and line 32 Research, shall establish both of the following:

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line 1 (a) The minimum standards a dwelling shall meet to qualify as line 2 a ®re-hardened home. line 3 (b) The minimum standards a community shall meet to qualify line 4 as a ®re-hardened community. line 5 13577. (a) The commissioner may promulgate regulations to line 6 require insurers to incentivize wild®re mitigation actions by line 7 homeowners as part of insurance premiums. line 8 (b) The commissioner may promulgate regulations to implement line 9 this article, including regulations to implement exceptions to the line 10 standards established pursuant to Section 13576 based on any of line 11 the following: line 12 (1) If an insurer determines it has an overconcentration of risk line 13 in a particular region and provides the reasoning for the line 14 determination to the commissioner for consideration. line 15 (2) If the commissioner determines, based on wild®re risk line 16 factors, that a residence is exposed to such an extreme wild®re line 17 risk that it severely undermines the impact of home hardening and line 18 community hardening efforts. line 19 (3) If underwriting reasons, unrelated to the risk of wild®re loss, line 20 that an insurer applies generally to all properties to determine line 21 eligibility for coverage will be affected.

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To: RCRC Board of Directors From: RCRC Officers Date: March 3, 2020 Re: NACo Legislative Conference and Federal Advocacy Update

Summary This memo provides a brief summary of the RCRC Officers and Board Members’ trip to Washington, D.C. in conjunction with the National Association of Counties (NACo) Legislative Conference that took place February 29 - March 4, 2020.

Background Each year, NACo hosts a Legislative Conference (Conference) in the nation’s capital. The initial days of the Conference contain meetings which focus on specific public policy areas. The latter part of the Conference allows for attendees to hold meetings on Capitol Hill and with other officials in the federal government.

Traditionally, RCRC Officers have utilized the last three days of the Conference to meet with key Congressional members and staff, as well as representatives from a variety of federal agencies. Since 2019, RCRC Officers utilized the first three days ahead of the Conference to meet with key personnel and staff.

Issue This year, RCRC Chair Daron McDaniel (Merced), RCRC First Vice Chair Stacy Corless (Mono), RCRC Immediate Past Chair Matt Kingsley (Inyo), RCRC’s NACo Western Interstate Region Representatives Kevin Cann (Mariposa) and Lee Adams (Sierra), and Supervisor Michael Kobseff (Siskiyou County) traveled to Washington, D.C. on behalf of RCRC.

RCRC Officers held meetings with key personnel and staff, including the U.S. Forest Service Chief Vicki Christiansen. RCRC Officer also heard from a number of political analysts on the upcoming election contests that are occurring throughout the nation.

Staff Recommendation Information only. RCRC Officers, Board Members, and RCRC staff will provide an oral report on the various federal meetings during the March RCRC Board Meeting.

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG

To: RCRC Board of Directors From: Mary-Ann Warmerdam, Senior Legislative Affairs Advocate Leigh Kammerich, Regulatory Affairs Specialist Date: March 3, 2020 Re: Fair Allocation Rulemaking

Summary The California Department of Food and Agriculture (CDFA) has initiated long-awaited rulemaking to distribute a share (three-quarters of 1 percent) of the state’s portion of sales and use tax revenues from transactions made at fairgrounds to Fair Boards to support the operations and maintenance of fairgrounds.

Background Under Assembly Bill 1499 (Gray; 2017), fairs—and their lessees—must comply with specific working conditions for non-management employees in order to be qualified to receive “Fair Allocation Funding,” including meal breaks and eight-hour work days with overtime pay for excess hours worked. Assembly Bill 635 (Bigelow; 2019) clarified these non-management employees were exempt from specified working conditions if they are covered by a collective bargaining agreement.

Prior to 2009-10, fairs received state support primarily from horse race wagering proceeds. In 2009, the state supplanted horse race wagering with General Fund support. The 2011-12 State Budget eliminated the $32 million General Fund for the support of fairs. Subsequent State Budget Packages did not replace the funding for fairs until the 2015-16 State Budget Package, which provided a modest $3.1 million to improve the financial situation of smaller fairs.

AB 1499, which RCRC fully supported, was a significant step in assuring the long-term viability of the network of fairs and fairgrounds. In 2019-20, the California Department of Tax and Fee Administration (CDTFA) reported that $18.637 million has been collected and distributed to the Fairs and Exposition Fund. However, until CDFA adopts rules on how to allocate these revenues, these monies will not be distributed to qualified fairs and fairgrounds.

Issue Fairs serve a critical role in rural communities and operational money is needed to ensure fairs and fairgrounds are not on the brink of elimination and/or insolvency. Fairgrounds can serve as evacuation centers for displaced residents and large animals as well as

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG serving as staging areas for public safety command centers during emergencies such as wildfires.

In late November 2019, CDFA initiated rulemaking to implement AB 1499 by outlining the process to ensure compliance with the required working conditions in order to receive funding. Any fair may be eligible to receive these allocations, including the 52 district agricultural associations, 22 county fairs, two citrus fairs and the California Exposition and State Fair (Cal Expo).

Unfortunately, CDFA has not provided any insight on how much revenue could be allocated individually to qualified fairs, nor has CDFA received a five-year estimate of these funds from CDTFA to predict and strategically plan the dispersion of these dollars. RCRC has requested the bulk of this money go toward general operational support, including deferred maintenance which would satisfy the legislative intent of AB 1499. According to the Governor’s Proposed January Budget, CDFA has availed themselves to $1.1 million in administrative oversight of these funds, which again remain dormant in the Fair and Exposition Fund until this rulemaking is final.

To accommodate additional public input, CDFA has extended the deadline to submit written comments on this rulemaking to March 16, 2020.

Staff Recommendation Information only. RCRC remains actively engaged with CDFA and stakeholders to ensure these funds be made available expeditiously for general operational support, deferred maintenance, and infrastructure.

Attachments  RCRC Comment Letter to CDFA on Fair Allocation Rulemaking  CDFA Notice, Written Comment Extension  RCRC Support Letter for Assembly Bill 1499

January 15, 2020

Mr. John Quiroz Fairs and Expositions Branch Chief California Department of Food and Agriculture 1220 N Street Sacramento, CA 95814

Transmittal Via E-mail: [email protected]

RE: Fair Allocation Rulemaking, 45-Day Public Comment Period Chapter 3, Division 7, Title 3 of the California Code of Regulations

Dear Mr. Quiroz:

On behalf of the Rural County Representatives of California (RCRC), we offer comments on and appreciation for the long-awaited “Allocation to Fairs of Sales and Use Tax Revenue Rulemaking,” implementing Assembly Bill 1499 by Assembly Member Adam Gray (Chapter 798, 2017), as well as Assembly Bill 635 by Assembly Member Frank Bigelow (Chapter 353, 2019). RCRC is an association of thirty-seven rural California counties, and the RCRC Board of Directors is comprised of an elected supervisor from each of those member counties.

RCRC believes fairs and fairgrounds are an integral asset to many of our counties and supported the revenue stream provided by AB 1499. AB 1499 was a significant step forward in the long-term viability for the operations and maintenance of fairgrounds. Operational money is needed to ensure fairs and fairgrounds, particularly in rural areas, are not on the brink of elimination and can serve not only community events, but also serve as evacuation centers and public safety command centers during catastrophic wildfires and other emergencies. Fairgrounds have a multitude of beneficial uses including use as for community heating or cooling centers during extreme weather events.

The Initial Statement of Reasons is correct in its assertion that smaller fairs are often located in remote areas, areas most vulnerable to catastrophic events or natural disasters with limited flexibility to address its infrastructure needs. For example, capital improvements are needed to house livestock under current best management standards during emergency evacuations. Fairgrounds are a prime staging area during disasters and often times the only location to house large animals. Also, it is crucial that fairground

1215 K Street, Suite 1650, Sacramento, CA 95814 | www.rcrcnet.org | 916.447.4806 | Fax: 916.448.3154

ALPINE AMADOR BUTTE CALAVERAS COLUSA DEL NORTE EL DORADO GLENN HUMBOLDT IMPERIAL INYO LAKE LASSEN MADERA MARIPOSA MENDOCINO MERCED MODOC MONO MONTEREY NAPA NEVADA PLACER PLUMAS SAN BENITO SAN LUIS OBISPO SHASTA SIERRA SISKIYOU SONOMA SUTTER TEHAMA TRINITY TULARE TUOLUMNE YOLO YUBA Mr. John Quiroz Fair Allocation Rulemaking January 15, 2020 Page 2 facilities be given the tools and ability to transition over the long-term so their beneficial uses be reimagined over time to meet the needs of communities.

Although we are disappointed with the multi-year delay in initiating this rulemaking to get these much-needed dollars out the door, we appreciate the open dialogue with the California Department of Food and Agriculture (CDFA) during the informal rulemaking process. RCRC was able to participate in one of the three public workshops to discuss the draft language. Overall, we believe this 45-Day Public Comment Draft reflects a broad consensus of stakeholder feedback.

Specifically, we appreciate that these proposed regulations would include all fairs, including the few that are county-owned, to be eligible for this revenue and allocation. CDFA has accomplished this by eliminating draft language defining a “lease” as real property owned by the state.

Unfortunately, the CDFA has not provided any insight about how these monies will ultimately be allocated to fairs. Can each fair expect a minimum amount or percentage of the revenue collected in a given year? Will larger funding allocations be available to fairs with the greatest operational needs? Will disaster-prone areas be prioritized for capital improvement project grants? We strongly recommend that CDFA minimize impacts on small fairs that are in dire need of operational support by fulfilling the design of AB 1499. CDFA must consider and prioritize fairs with the greatest operational support needs by allocating these funds to qualified fairs in disaster prone areas, and/or to those that lack economies of scale to support the overall financial health of the fairgrounds.

Further, CDFA should clarify Section 7021.1 regarding qualified fair status. For instance, it is unclear if, once qualified fair status is granted, qualified status remains in effect until denied or terminated. We support the fair Board needing to petition—via the process specified under this section—one time to become qualified rather than in regular intervals. The fair Board, therefore, may be well-served to know if this process is a one- time occurrence, or if it must be done annually, for example. Not only should the process to become a qualified fair be streamlined, but the issuance of these funds to fair Boards should also be as efficient as possible and occur in regular intervals.

We support that Section 7022 regarding allocations and use of funds affirms the intent of the Legislature that these funds primarily be used for fairs with limited sources of revenue and for general operational support. Again, RCRC believes CDFA should prioritize the bulk of these funds to go toward general operational support, including deferred maintenance. As such, Section 7022, subdivision (d) is, therefore, redundant and may contradict Section 7022, subdivision (a) which provides funding to qualified fairs for general operational support.

Mr. John Quiroz Fair Allocation Rulemaking January 15, 2020 Page 3

Lastly, to the extent that the CDFA wishes to create priority projects for these funding allocations in the future, CDFA must prioritize strengthening broadband access and infrastructure at rural fairgrounds. Rural communities have been left behind to equitably participate in the 21st Century economy. Broadband deployment across all areas of the state is one of the most critically missing infrastructure components that can add significant costs to rural communities and put life and safety at risk. Without high- speed broadband, residents may not receive life-saving emergency notifications, and they may experience a reduction in healthcare access, public services, and/or educational opportunities. Adding broadband capabilities for rural fairgrounds is a step forward to close the gap and bridge the urban/rural divide.

Thank you for your consideration of our comments. If you should have any questions or concerns, please do not hesitate to contact me at [email protected] or (916) 447-4806.

Sincerely,

MARY-ANN WARMERDAM Senior Legislative Affairs Advocate

cc: Kathy Diaz, California Department of Food and Agriculture The Honorable Adam Gray, Member of the State Assembly The Honorable Frank Bigelow, Member of the State Assembly The Honorable Robert Rivas, Member of the State Assembly Member The Honorable Joaquin Arambula, Member of the State Assembly Member The Honorable Tom Daly, Member of the State Assembly Member The Honorable Susan Eggman, Member of the State Assembly Member The Honorable Devon Mathis, Member of the State Assembly Member The Honorable Kevin McCarty, Member of the State Assembly Member The Honorable Brian Dahle, Member of the State Senate The Honorable Anna Caballero, Member of the State Senate The Honorable Steven Bradford, Member of the State Senate The Honorable Bill Dodd, Member of the State Senate The Honorable Cathleen Galgiani, Member of the State Senate The Honorable Jim Nielsen, Member of the State Senate The Honorable Richard Pan, Member of the State Senate Louie A. Brown, Jr., Western Fairs Association Joshua Eddy, Executive Director, California State Board of Food and Agriculture Don J. Cameron, President, California State Board of Food and Agriculture Rachelle Arizmendi, California State Board of Food and Agriculture

Mr. John Quiroz Fair Allocation Rulemaking January 15, 2020 Page 4

Ashley Boren, California State Board of Food and Agriculture Donald Bransford, California State Board of Food and Agriculture Nancy Casady, California State Board of Food and Agriculture Helene Dillard, California State Board of Food and Agriculture Mike Gallo, California State Board of Food and Agriculture Crystal Hayling, California State Board of Food and Agriculture Eric Holst, California State Board of Food and Agriculture Jeff Huckaby, California State Board of Food and Agriculture Bryce Lundberg, California State Board of Food and Agriculture Martha Montoya, California State Board of Food and Agriculture Joy Sterling, California State Board of Food and Agriculture Andrew J. Thulin, California State Board of Food and Agriculture Christopher Valadez, California State Board of Food and Agriculture

CALIFORNIA DEPARTMENT OF FOOD & AGRICULTURE Koren Ross, Secretory

January 31, 2020

To Manager of California state-designated fairs, trade associations and organizations affiliated with the fairs industry, and the public in general:

Subject: Standard Extension of Public Comment Period for the Proposed Regulations to Adopt Allocation Procedures for Revenue Generated from Sales and Use Tax at State-Designated Fairs

In order to allow for additional time for input the Department is extending the public comment period for another 45 days. The new comment period will run from February 1, 2020 to 11 :59 PM on March 16, 2020. This extension does not impact the timetable previously communicated to the industry.

On November 29, 2019, the California Department of Food and Agriculture (Department) published a notice in the California Regulatory Notice Register (Notice File #22019-1119- 05) proposing to adopt regulations for allocation procedures for revenue generated from sales and use tax at state-designated fairs. Publication of the initial notice initiated a 45-day public comment period that ended after 11 :59 PM on January 15, 2020; a public hearing to gather input about the proposal was also conducted by the Department on 1/15/2020.

Duly authorized representatives of California's state-designated fairs, trade associations and organizations affiliated with the fairs industry, and the public in general are invited to submit written input relevant to the proposed action. All input received during the initial comment period is already part of the record and will be considered during the rulemaking process; accordingly, it does not need to be resubmitted to the Department.

Written comments will be accepted until 11:59 PM on March 16, 2020. Comments may be sent via email to either John Quiroz [email protected]) or Kathy Diaz-Cretu ([email protected]), or by mail at 1220 N Street, Sacramento, CA 95814. Comment letters postmarked or otherwise received after the date/time above will not be considered. Please identify any comments you submit with the subject line "Fair Allocation Rulemaking".

After the closing of the comment period the Department may adopt the proposed regulations as presented in the proposal submitted on 11 /29/19 to the Office of Administrative Law, may make non-substantial changes, or may propose substantial changes based on the input received. The materials related to the rulemaking process are attached; they can also be found at the following link: https://www.cdfa.ca.gov/mkt/regulations.html

Sinerelya~

s ~irector of Marketing Services

Notice of Proposed Rulemaking Text of Proposed Regulations Initial Statement of Reasons

Division of Marketing Services • 1220 N Street • Sacramento, California 95814-5603 State of California Telephone: 916.900-5011 • www.cdfa.ca.gov/mkt Gavin Newsom , Governor

September 18, 2017

The Honorable Edmund G. Brown, Jr. Governor, State of California State Capitol, First Floor Sacramento, CA 95814

RE: Assembly Bill 1499 (Gray) – REQUEST FOR SIGNATURE

Dear Governor Brown:

On behalf of the Rural County Representatives of California (RCRC), I respectfully request your signature on Assembly Bill 1499. AB 1499, authored by Assembly Member Adam Gray, would dedicate an amount equal to a small portion of the State’s share of sales and use tax collected from transactions at fairgrounds to support the network of fairs. RCRC is an association of thirty-five rural California counties, and the RCRC Board of Directors is comprised of elected supervisors from those member counties.

The health and viability of each county’s local fair and fairgrounds – whether state-owned/operated or county-owned - is a high priority of our member counties. These fairs and fairgrounds are an integral asset to many counties throughout the State, particularly in rural California. The property is utilized throughout the year for numerous community events and livestock activities. Additionally, these properties are utilized by the California Department of Forestry and Fire Protection (CAL FIRE) and others as an evacuation center and public safety command center during catastrophic wildfires and other emergencies.

Prior to the most recent fiscal years, state fairs received approximately $30 million in financial assistance from the State – either proceeds from horse race wagering or State General Fund support. Due to the lack of funding in recent years, many fairs and fairgrounds – particularly in rural areas - are on the brink of elimination. While the 2017-18 State Budget maintains this ongoing commitment of $2.6 million for the support of local fairs, RCRC believes additional monies are needed.

AB 1499 would be a significant step in assuring the long-term viability of the networks of fairs and the fairgrounds. Many of the fairgrounds that serve such a critical role for the State and local community in which they are located remain in jeopardy

The Honorable Edmund G. Brown, Jr. Assembly Bill 1499 September 18, 2017 Page 2 without a sustainable source of funding. As your Administration conducts a variety of fiscal analyses of AB 1499, we would encourage a review of costs that CAL FIRE and other state disaster-related agencies would incur if they no longer have access to fairground facilities – a scenario that is extremely plausible if further funding is not provided. AB 1499 provides another critical link for the operations and maintenance of the fairgrounds.

Again, RCRC respectfully requests your signature on AB 1499.

Sincerely,

PAUL A. SMITH Vice President Governmental Affairs

cc: The Honorable Adam Gray, Member of the State Assembly Ms. Karen Ross, Secretary, California Department of Food & Agriculture Mr. Ken Pimlott, Director, CAL FIRE

To: RCRC Board of Directors From: Staci Heaton, Senior Regulatory Affairs Advocate Date: March 3, 2020 Re: Environmental Services Joint Powers Authority Update

Summary The following is a summary of the Rural Counties’ Environmental Services Joint Powers Authority’s (ESJPA) recent activities. Highlights include the legislative and regulatory activities that impact RCRC member county solid waste departments.

ESJPA Board Meeting The next ESJPA Board of Directors meeting will be Thursday, March 12, 2020 at the RCRC Board Room at 9:00 a.m. All Supervisors are invited to attend. The agenda anticipates a presentation from HF&F Consultants on behalf of CalRecycle on implementation tools for the Senate Bill 1383 Short-Lived Climate Pollutant regulations, a discussion of the California Air Resources Board’s Advanced Clean Truck Rule, AB 901 Recycling and Disposal Reporting System requirements, and regulatory proposals on photovoltaic modules impacts on recycling markets in addition to other legislative and regulatory updates.

ESJPA Activities ESJPA staff continues to actively participate and report to its members on various waste related topics. Some of the current topics include: proposed organics regulations, proposed disposal reporting requirements, implementation of mandatory commercial organics diversion, and various legislative proposals. ESJPA staff continues to provide technical assistance to individual counties on a variety of issues.

California Department of Resources Recycling and Recovery (CalRecycle) Senate Bill 1383 Short-Lived Climate Pollutants Regulations CalRecycle is expected to release the final version of the SB 1383 regulations in early March. Currently, CalRecycle staff is visiting county Boards of Supervisors to present on the regulations and what implementation looks like in the long term. ESJPA staff has attended several of these presentations and will continue to assist members on the implementation of the regulations.

The final rule and additional information will be available on CalRecycle’s website here: https://www.calrecycle.ca.gov/laws/rulemaking/slcp

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG Recycling and Disposal Reporting System CalRecycle has adopted a new reporting system for solid waste facilities that provided the disposal numbers upon which jurisdiction diversion compliance is based. The program was effective July 1st and CalRecycle is addressing implementation issues with this reporting system. ESJPA Staff participate in these discussions and respond to Member questions on these requirements.

Pharmaceutical and Sharps Waste Stewardship Regulations ESJPA provided comments on the proposed regulations that will provide industry stewardship sponsored collection of home-generated sharps and pharmaceuticals throughout California.

California Air Resources Board (CARB) Advanced Clean Truck Rule CARB has proposed the Advanced Clean Truck Rule (ACT), which currently would place reporting requirements on all municipal fleets of vehicles of 8500 GVWR and greater or municipal entities that contract with such fleets. The reporting results will be used to develop future regulations to help move California to a zero emission vehicle fleet statewide.

Grant Update Used Oil Payment Program Work continues to improve the used oil program infrastructure in Alpine, Colusa, and Mariposa Counties. ESJPA Staff assisted with the used oil education booth at the Colusa County Farm Show in February. Preparations are underway to assist with the used oil public education efforts at the Mariposa County Fair. ESJPA Staff is working on addressing used oil contamination at a Mariposa County collection site. The ESJPA was granted used oil funding for the next cycle.

Tire Amnesty Grant The ESJPA continues to implement this grant for five ESJPA member counties (Colusa, Inyo, Mariposa, Sierra, and Tuolumne) that are ongoing grant recipients through this program. Tire amnesty events are continuing to be scheduled until the grant ends September 30, 2021. Tire amnesty events are scheduled for Colusa and Sierra Counties in March 2020.

Staff Recommendation RCRC staff will continue to follow development and engage in issues pertaining to solid waste. To: Members of the RCRC Board of Directors From: Staci Heaton, Senior Regulatory Affairs Advocate Date: March 3, 2020 Re: Federal National Environmental Policy Act Rulemaking

Summary The Council on Environmental Quality is in the process of updating the regulations implementing the procedural provisions of the National Environmental Policy Act. This memo provides an update on the progress of the rulemaking, as well as RCRC's involvement and advocacy efforts.

Background In August 2017, President Donald Trump issued Executive Order (EO) 13807 titled, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure.” Part of the EO was directed at NEPA, requiring the Council on Environmental Quality (CEQ) to develop a list of actions to start modernizing the federal environmental review process. In response, CEQ issued an Advance Notice of Proposed Rulemaking in 2018 requesting public comment on how CEQ could ensure a more efficient, consistent NEPA process. Those comments were compiled, and in response CEQ issued an official rulemaking entitled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” (Update) on January 10, 2020 for a 60-day comment period.

Issue The Update proposes a number of changes to NEPA that could impact local governments. Most notably, the Update proposes to standardize the qualifications for cooperating agency status to eliminate variance between federal agencies and regions within each agency. The Update also proposes to require agencies to meet with cooperating agencies upon request, and includes provisions for enhanced input from local, state and tribal governments that are impacted by a specific project, including mandating federal agencies to solicit comments from impacted counties. Finally, the Update streamlines the NEPA process by imposing page limits and deadlines for submitting responses to environmental impact statements and environmental assessments to shorten the total duration of a NEPA process.

RCRC has some concerns that the rulemaking could interfere with the recent rulemaking undertaken by the USDA Forest Service (USFS) to allow additional categorical exclusions (CEs) for projects on National Forest system lands. The CEQ

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG rulemaking sets up a clarifying process for establishing CEs under NEPA, which will go into effect after the USFS rule is established and is not necessarily consistent. Various environmental groups looking to challenge the USFS rulemaking are already looking at using the CEQ proposal to help delay implementation of the USFS rule on the grounds that the two are in conflict. RCRC filed comments offering both support for many of the Update’s provision, but urging CEQ to include language in its rule ensuring that the two proposals are harmonious so as not to cause delays in the USFS proposal.

Staff Recommendation RCRC will continue to update the RCRC Board of Directors on the status of the proposed Update, as well as how it interacts with the USFS rulemaking.

Attachments  RCRC Comment Letter to the Council on Environmental Quality, Dated February 25, 2020  Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act

February 25, 2020

Mr. Edward A. Boling Assistant Director Council on Environmental Quality 730 Jackson Place NW Washington, DC 20503

RE: Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, Docket ID: CEQ-2019-0003

Dear Mr. Boling:

On behalf of the Rural County Representatives of California (RCRC), we would like to offer our comments on the Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA), as proposed in Docket ID CEQ-2019-0003. RCRC is an association of thirty-seven rural California counties, and the RCRC Board of Directors is comprised of elected supervisors from those member counties.

The federal government has an important role in California, with nearly 46 percent of our state’s 100 million plus acres managed by federal agencies. A full one-fifth of California’s land mass is managed by the USDA Forest Service (USFS), and the balance is under the umbrella of some combination of the Bureau of Land Management (BLM), National Park Service (NPS), and various other federal agencies. The vast majority of those federal lands reside in RCRC member counties, and it is imperative that federal land managers work as closely with both local governments and the state as partners in projects implemented on those lands to ensure the maximum ecological, economic, and environmental benefits for all parties involved.

RCRC supports revisions to NEPA that seek to standardize the qualifications for cooperating agency status. Oftentimes the way cooperating agency status is employed varies between agencies and even between regions within a same agency, which makes it difficult for rural counties to allot resources to projects on federal lands. We support the revised definition of “cooperating agency” to encourage more robust involvement by local governments earlier in the NEPA process. This includes the provisions allowing cooperating agencies to participate in planning the schedules for NEPA analyses, which will maximize local expertise of the landscape and allow for a more efficient process all

1215 K Street, Suite 1650, Sacramento, CA 95814 | www.rcrcnet.org | 916.447.4806 | Fax: 916.448.3154

ALPINE AMADOR BUTTE CALAVERAS COLUSA DEL NORTE EL DORADO GLENN HUMBOLDT IMPERIAL INYO LAKE LASSEN MADERA MARIPOSA MENDOCINO MERCED MODOC MONO MONTEREY NAPA NEVADA PLACER PLUMAS SAN BENITO SAN LUIS OBISPO SHASTA SIERRA SISKIYOU SONOMA SUTTER TEHAMA TRINITY TULARE TUOLUMNE YOLO YUBA Mr. Edward A. Boling National Environmental Policy Act Docket ID: CEQ-2019-0003 February 25, 2020 Page 2 around. RCRC also supports the early resolution provision when a federal agency denies a lead agency’s request for cooperating agency status. Early resolution to such disputes will give clarity to the NEPA process and allow for projects to move along more smoothly.

In 2012, RCRC spearheaded a memorandum of agreement (MOA) with the USFS that included meetings at the request of counties whenever there was an issue that needed to be resolved during a planning process. We are pleased to see a similar provision in the proposed update requiring lead agencies to meet with cooperating agencies upon request. The similar provision in the MOA successfully fostered an open line of communication between many counties and USFS national forests that had not previously existed, allowing them to discuss their differences and work out solutions without resorting to legal challenges or other means. This can only be beneficial for all agencies involved, particularly as federal agencies utilize local, state and tribal expertise more in the process of data collection and analysis during the NEPA process.

RCRC strongly supports the provisions in the update that streamline the environmental assessments (EAs) and environmental impact statements (EISs). Imposing page limitations and deadlines for submittal will ensure a reasonable timeframe for responses to proposed projects without unnecessarily dragging them out over long periods of time. This also allows local governments to allocate the proper resources to the NEPA process without overburdening staff, particularly in rural California where budgetary concerns always loom large when faced with responding to large-scale federal projects under NEPA. RCRC supports provisions requiring federal agencies to formally solicit comments from impacted county governments as well, which will ensure that counties are informed whenever a project is implemented in their jurisdiction.

Finally, RCRC supports the use of categorical exclusions (CEs) under NEPA to address critical ecological threats such as wildfire. As such, RCRC strongly recommends that the final version of the update include language clarifying that this proposed update is not in conflict with the recent proposed categorical exclusion revisions by the USFS (Docket ID: FS-2019-0010-0001). RCRC strongly supports the use of categorical exclusions by the USFS to expedite critical forest management and fuels treatment projects on national forest system lands to help prevent future catastrophic wildfire activity from starting on federal lands. Despite coordinated efforts to mitigate the impacts of wildfire, much work still needs to be done throughout the California to bring our forest lands to a healthy, resilient, wildfire-resistant condition. For example, the 2018 Ferguson Fire was the largest wildfire ever on the Sierra National Forest, burning more than 96,000 acres, killing two and encroaching Yosemite National Park largely due to dead and dying trees that have yet to be removed and thinned in the area. Portions of the Carr Fire, the Mendocino Complex Fire and the Camp Fire also occurred on national forest system lands, combining for the most devastating wildfire season in California’s history. It is imperative that this rulemaking does not conflict or delay the work the USFS is trying to accomplish with its rulemaking.

Mr. Edward A. Boling National Environmental Policy Act Docket ID: CEQ-2019-0003 February 25, 2020 Page 3

RCRC looks forward to our continued efforts with the various federal land managers working within California to help improve the overall health of California’s national lands. If you should have any questions or would like to discuss our comments further, please do not hesitate to contact me at [email protected] or (916) 447-4806.

Sincerely,

STACI HEATON Senior Regulatory Affairs Advocate

cc: Members of the RCRC Board of Directors

1684 Federal Register / Vol. 85, No. 7 / Friday, January 10, 2020 / Proposed Rules

COUNCIL ON ENVIRONMENTAL Instructions: All submissions received 5. Alternatives (§ 1502.14) QUALITY must include the agency name and 6. Affected Environment and docket number for this rulemaking. All Environmental Consequences 40 CFR Parts 1500, 1501, 1502, 1503, comments received will be posted (§§ 1502.15 and 1502.16) 1504, 1505, 1507, and 1508 7. Submitted Alternatives, Information, without change to https:// and Analyses (§§ 1502.17 and 1502.18) [CEQ–2019–0003] www.regulations.gov, including any 8. Other Proposed Changes to Part 1502 personal information provided. Do not E. Proposed Revisions To Commenting on RIN 0331–AA03 submit electronically any information Environmental Impact Statements (Part you consider to be private, Confidential 1503) Update to the Regulations Business Information (CBI), or other F. Proposed Revisions to Pre-Decisional Implementing the Procedural information whose disclosure is Referrals to the Council of Proposed Provisions of the National restricted by statute. Federal Actions Determined To Be Environmental Policy Act Environmentally Unsatisfactory (Part Docket: For access to the docket to 1504) AGENCY: Council on Environmental read background documents or G. Proposed Revisions to NEPA and Quality. comments received, go to https:// Agency Decision Making (Part 1505) ACTION: Notice of proposed rulemaking. www.regulations.gov. H. Proposed Revisions to Other FOR FURTHER INFORMATION CONTACT: Requirements of NEPA (Part 1506) SUMMARY: In this action, the Council on Edward A. Boling, Associate Director for I. Proposed Revisions to Agency Environmental Quality (CEQ) is Compliance (Part 1507) the National Environmental Policy Act, proposing to update its regulations for J. Proposed Revisions to Definitions (Part or Viktoria Z. Seale, Chief of Staff and implementing the procedural provisions 1508) General Counsel, 202–395–5750, NEPA- of the National Environmental Policy K. CEQ Guidance Documents [email protected]. L. Additional Issues on Which CEQ Invites Act (NEPA). CEQ has not SUPPLEMENTARY INFORMATION: Comment comprehensively updated its III. Rulemaking Analyses and Notices regulations since their promulgation in Table of Contents A. Executive Order 12866, Regulatory 1978, more than four decades ago. This Planning and Review; Executive Order proposed rule would modernize and I. Background A. National Environmental Policy Act 13563, Improving Regulation and clarify the regulations to facilitate more (NEPA) Regulatory Review; and Executive Order efficient, effective, and timely NEPA B. Council on Environmental Quality 13771, Reducing Regulation and reviews by Federal agencies in (CEQ) Regulations, Guidance, and Controlling Regulatory Costs connection with proposals for agency Reports B. Regulatory Flexibility Act and Executive action. The proposed amendments 1. Regulatory History Order 13272, Proper Consideration of would advance the original goals of the 2. CEQ Guidance and Reports Small Entities in Agency Rulemaking C. National Environmental Policy Act CEQ regulations to reduce paperwork 3. Environmental Impact Statement (EIS) Timelines and Page Count Reports D. Executive Order 13132, Federalism and delays, and promote better E. Executive Order 13175, Consultation decisions consistent with the national C. Judicial Review of Agency NEPA Compliance and Coordination With Indian Tribal environmental policy set forth in D. Statutory Developments Governments section 101 of NEPA. If finalized, the E. Presidential Directives F. Executive Order 12898, Federal Actions proposed rule would comprehensively F. 2018 Advance Notice of Proposed To Address Environmental Justice in update and substantially revise the 1978 Rulemaking Requesting Public Comment Minority Populations and Low-Income regulations. CEQ invites comments on on CEQ’s NEPA Regulations Populations the proposed revisions. II. Summary of Proposed Rule G. Executive Order 13211, Actions Concerning Regulations That DATES: CEQ must receive comments by A. Proposed Changes Throughout Parts 1500–1508 Significantly Affect Energy Supply, March 10, 2020. CEQ will hold public B. Proposed Revisions To Update the Distribution, or Use hearings on the following dates: Purpose, Policy, and Mandate (Part 1500) H. Executive Order 12988, Civil Justice 1. February 11, 2020, U.S. C. Proposed Revisions to NEPA and Reform Environmental Protection Agency Agency Planning (Part 1501) I. Unfunded Mandate Reform Act Region 8, 1595 Wynkoop Street, Denver, 1. NEPA Threshold Applicability Analysis J. Paperwork Reduction Act CO. (§ 1501.1) I. Background 2. February 25, 2020, U.S. Department 2. Apply NEPA Early in the Process of the Interior, Yates Auditorium, 1849 (§ 1501.2) The National Environmental Policy C Street NW, Washington, DC. 3. Determine the Appropriate Level of Act of 1969, 42 U.S.C. 4321 et seq., All attendees or speakers must NEPA Review (§ 1501.3) (NEPA) was signed into law by register in advance. Details concerning 4. Categorical Exclusions (CEs) (§ 1501.4) President Nixon on January 1, 1970. The 5. Environmental Assessments (EAs) Council on Environmental Quality the hearings and information on (§ 1501.5) additional outreach may be found at 6. Findings of No Significant Impact (CEQ) initially issued guidelines for www.nepa.gov and (FONSIs) (§ 1501.6) implementing NEPA in 1970, revised www.whitehouse.gov/ceq. 7. Lead and Cooperating Agencies those guidelines in 1973, and ADDRESSES: You may submit comments, (§§ 1501.7 and 1501.8) subsequently promulgated its NEPA identified by docket number CEQ– 8. Scoping (§ 1501.9) implementing regulations in 1978. The 2019–0003, by any of the following 9. Time Limits (§ 1501.10) original goals of those regulations were methods: 10. Tiering and Incorporation by Reference to reduce paperwork and delays, and D Federal eRulemaking Portal: (§§ 1501.11 and 1501.12) promote better decisions consistent with D. Proposed Revisions to Environmental https://www.regulations.gov. Follow the Impact Statements (EISs) (Part 1502) the national environmental policy instructions for submitting comments. 1. Page Limits (§ 1502.7) established by the Act. D Fax: 202–456–6546. 2. Draft, Final and Supplemental Since their promulgation, however, D Mail: Council on Environmental Statements (§ 1502.9) there has been a need for clarification of Quality, 730 Jackson Place NW, 3. EIS Format (§§ 1502.10 and 1502.11) the regulations, and CEQ has issued Washington, DC 20503. 4. Purpose and Need (§ 1502.13) over 30 guidance documents to assist

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Federal agencies in complying with the public, and to advance the original B. Council on Environmental Quality NEPA and the CEQ regulations. Courts goals of the CEQ regulations to reduce (CEQ) Regulations, Guidance, and also have issued numerous decisions paperwork and delays and to promote Reports addressing appropriate implementation better decisions consistent with the 1. Regulatory History and interpretation of NEPA and the CEQ national environmental policy set forth regulations, resulting in a large body of in section 101 of NEPA. In 1970, President Nixon issued case law. Additionally, Presidential Executive Order (E.O.) 11514, titled directives have been issued and A. National Environmental Policy Act ‘‘Protection and Enhancement of legislation has been enacted to reduce (NEPA) Environmental Quality,’’ which directed delays and expedite the implementation CEQ to ‘‘[i]ssue guidelines to Federal of NEPA and the CEQ regulations, Congress enacted NEPA to establish a agencies for the preparation of detailed including for certain types of national policy for the environment, statements on proposals for legislation infrastructure projects. Notwithstanding provide for the establishment of CEQ, and other Federal actions affecting the the issuance of guidance, Presidential and for other purposes. Section 101 of environment, as required by section directives, and legislation, NEPA sets forth a national policy ‘‘to 102(2)(C) of the Act.’’ 1 CEQ issued these implementation of NEPA and the CEQ use all practicable means and measures, guidelines in April of 1970 and revised regulations can be challenging, and the including financial and technical them in 1973.2 process can be lengthy, costly, and assistance, in a manner calculated to In 1977, President Carter issued E.O. complex. In some cases, the NEPA foster and promote the general welfare, 11991, titled ‘‘Relating to Protection and process and related litigation has to create and maintain conditions under Enhancement of Environmental slowed or prevented the development of which man and nature can exist in Quality.’’ 3 E.O. 11991 amended section new infrastructure and other projects productive harmony, and fulfill the 3(h) of E.O. 11514, directing CEQ to that required Federal permits or social, economic, and other ‘‘[i]ssue regulations to Federal agencies approvals. requirements of present and future for the implementation of the The background section below generations of Americans.’’ 42 U.S.C. procedural provisions of [NEPA] . . . to summarizes NEPA, the CEQ regulations, 4331(a). Section 102 of NEPA make the environmental impact and developments since CEQ issued establishes procedural requirements, statement process more useful to those regulations. Specifically, section applying that national policy to decision[ ]makers and the public; and to I.A provides a brief summary of the reduce paperwork and the accumulation proposals for major Federal actions NEPA statute. Section I.B describes the of extraneous background data, in order significantly affecting the quality of the history of CEQ’s regulations to emphasize the need to focus on real implementing NEPA and provides an human environment by requiring environmental issues and alternatives,’’ overview of CEQ’s numerous guidance Federal agencies to prepare a detailed and to ‘‘require [environmental] impact documents and reports issued statement on: (1) The environmental statements to be concise, clear, and to subsequent to the regulations. Section impact of the proposed action; (2) any the point, and supported by evidence I.C discusses the role of the courts in adverse effects that cannot be avoided; that agencies have made the necessary interpreting NEPA. Section I.D provides (3) alternatives to the proposed action; environmental analyses.’’ E.O. 11991 a brief overview of Congress’s efforts, (4) the relationship between local short- also amended section 2 of E.O. 11514, and section I.E describes the initiatives term uses of man’s environment and the requiring agency compliance with the of multiple administrations to reduce maintenance and enhancement of long- regulations issued by CEQ. delays and improve implementation of term productivity; and (5) any In 1978, CEQ promulgated its NEPA. Finally, section I.F provides the irreversible and irretrievable ‘‘Regulations for Implementing the background on this rulemaking, commitments of resources that would be Procedural Provisions of the National including the advance notice of involved in the proposed action. 42 Environmental Policy Act,’’ 40 CFR proposed rulemaking (ANPRM). U.S.C. 4332(2)(C). NEPA also parts 1500–1508 (‘‘CEQ regulations’’ or In section II, CEQ provides a summary established CEQ as an agency within the ‘‘NEPA regulations’’), ‘‘[t]o reduce of the proposed rule, which, if finalized, paperwork, to reduce delays, and at the would comprehensively update and Executive Office of the President to administer Federal agency same time to produce better decisions substantially revise CEQ’s current [that] further the national policy to regulations. This proposed rule would implementation of NEPA. 42 U.S.C. 4342, 4344; see also Dep’t of Transp. v. protect and enhance the quality of the modernize and clarify the CEQ 4 Pub. Citizen, 541 U.S. 752, 757 (2004). human environment.’’ The Supreme regulations to facilitate more efficient, Court has afforded the CEQ regulations effective, and timely NEPA reviews by NEPA does not mandate particular ‘‘substantial deference.’’ Robertson v. Federal agencies by simplifying results or substantive outcomes. Rather, Methow Valley Citizens Council, 490 regulatory requirements, codifying NEPA requires Federal agencies to U.S. 332, 374 (1989) (citing Andrus v. certain guidance and case law relevant consider environmental impacts of Sierra Club, 442 U.S. 347, 358 (1979)); to these proposed regulations, revising proposed actions as part of agencies’ see also Pub. Citizen, 541 U.S. at 757 the regulations to reflect current decision-making processes. (‘‘The [CEQ], established by NEPA with technologies and agency practices, Additionally, NEPA does not include a authority to issue regulations eliminating obsolete provisions, and private right of action and specifies no improving the format and readability of remedies. Challenges to agency action 1 35 FR 4247 (Mar. 7, 1970), § 3(h). the regulations. CEQ’s proposed alleging non-compliance with NEPA 2 See 35 FR 7391 (May 12, 1970) (interim revisions include provisions intended to guidelines); 36 FR 7724 (Apr. 23, 1971) (final promote timely submission of relevant procedures are brought under the guidelines); 38 FR 10856 (May 2, 1973) (proposed information to ensure consideration of Administrative Procedure Act (APA). 5 revisions to guidelines); 38 FR 20550 (Aug. 1, 1973) such information by agencies. CEQ’s U.S.C. 551 et seq. Accordingly, NEPA (revised guidelines). cases proceed as APA cases. 3 42 FR 26967 (May 25, 1977). proposed revisions also are intended to 4 43 FR 55978 (Nov. 29, 1978); see also 44 FR 873 provide greater clarity for Federal (Jan. 3, 1979) (technical corrections), and 43 FR agencies, States, Tribes, localities, and 25230 (June 9, 1978) (proposed rule).

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interpreting it, has promulgated adverse effects.6 CEQ found that the Study of Its Effectiveness After Twenty- regulations to guide [F]ederal agencies new 40 CFR 1502.22 ‘‘will generate five Years.’’ 12 In that report, CEQ in determining what actions are subject information and discussion on those acknowledged that NEPA has ensured to that statutory requirement.’’ (citing 40 consequences of greatest concern to the that agencies adequately analyze the CFR 1500.3)); United States v. Mead public and of greatest relevance to the potential environmental consequences Corp., 533 U.S. 218, 227–30 (2001) agency’s decision,’’ 7 rather than of their actions and bring the public into (properly promulgated agency distorting the decision-making process the decision-making processes of interpretative regulations addressing by overemphasizing highly speculative Federal agencies. However, CEQ also 8 ambiguities or gaps in a statute qualify harms. The Supreme Court found this identified matters of concern to for Chevron deference); Nat’l Cable & reasoning to be a well-considered basis participants in the study, including Telecomm. Ass’n v. Brand X Internet for the change, and that the new concerns with overly lengthy Servs., 545 U.S. 967, 980–81 (2005) regulation was entitled to substantial documents that may not enhance or (applying Chevron deference to Federal deference. Methow Valley, 490 U.S. at improve decision making,13 and Communications Commission 356. concerns that agencies may seek to regulations). The CEQ regulations direct Federal The Supreme Court has held that agencies to adopt their own ‘‘ ‘litigation-proof’ documents, NEPA is a procedural statute that serves implementing procedures to increasing costs and time but not 14 the twin aims of ensuring that agencies supplement the NEPA regulations. 40 necessarily quality.’’ The report consider the significant environmental CFR 1507.3. Under this regulation, further stated that ‘‘[o]ther matters of consequences of their proposed actions agencies across the Federal Government concern to participants in the Study and inform the public about their have developed such procedures.9 were the length of NEPA processes, the decision making. Balt. Gas & Elec. Co. extensive detail of NEPA analyses, and 2. CEQ Guidance and Reports v. Nat. Res. Def. Council, Inc., 462 U.S. the sometimes confusing overlay of 87, 97 (1983) (citing Vt. Yankee Nuclear Over the past four decades, numerous other laws and regulations.’’ 15 The Power Corp. v. Nat. Res. Def. Council, questions have been raised regarding participants in the study identified five Inc., 435 U.S. 519, 553 (1978); appropriate implementation of NEPA elements of the NEPA process’ Weinberger v. Catholic Action of Haw./ and the CEQ regulations. Soon after the collaborative framework (strategic Peace Educ. Project, 454 U.S. 139, 143 issuance of the CEQ regulations and in planning, public information and input, (1981)). Furthermore, in describing the response to CEQ’s review of NEPA interagency coordination, role of NEPA in agencies’ decision- implementation and feedback from interdisciplinary place-based decision making processes, the Supreme Court Federal, State, and local officials, making, and science-based flexible has stated, ‘‘Congress in enacting NEPA, including NEPA practitioners, CEQ management) as critical to effective and however, did not require agencies to issued the ‘‘Forty Most Asked Questions efficient NEPA implementation. Concerning CEQ’s National elevate environmental concerns over In 2002, the Chairman of CEQ other appropriate considerations.’’ 5 Balt. Environmental Policy Act 10 established a NEPA task force, Gas & Elec. Co., 462 U.S. at 97 (citing Regulations’’ in 1981 (‘‘Forty Questions’’). This guidance covered a composed of Federal agency officials, to Strycker’s Bay Neighborhood Council v. examine NEPA implementation by Karlen, 444 U.S. 223, 227 (1980) (per wide range of topics including alternatives, coordination among focusing on (1) technology and curiam)). Instead, NEPA requires information management and security; agencies to analyze the environmental applicants, lead and cooperating agencies, and integration of NEPA (2) Federal and intergovernmental consequences before taking a major collaboration; (3) programmatic analyses Federal action. Id. (citing Kleppe v. documents with analysis for other and tiering; (4) adaptive management Sierra Club, 427 U.S. 390, 410 n.21 environmental statutes. In addition, and monitoring; (5) categorical (1976)). The Supreme Court has CEQ has periodically examined the exclusions (CEs); and (6) environmental recognized that agencies have limited effectiveness of the NEPA process and assessments (EAs). In 2003, the task time and resources and that ‘‘[t]he scope issued a number of reports on NEPA force issued a report 16 of the agency’s inquiries must remain implementation. In some instances, recommending manageable if NEPA’s goal of ‘[insuring] these reports led to additional guidance. actions to improve and modernize the a fully informed and well-considered These documents have been intended to provide guidance and clarifications with 12 decision,’ . . . is to be accomplished.’’ https://ceq.doe.gov/docs/ceq-publications/ respect to various aspects of the nepa25fn.pdf. Metro. Edison Co. v. People Against implementation of NEPA and the 13 Id. at iii. Nuclear Energy, 460 U.S. 766, 776 14 definitions in the CEQ regulations, and Id. (1983) (quoting Vt. Yankee, 435 U.S. at 15 to increase the efficiency and Id. In the 50 years since the passage of NEPA, 558). Congress has amended or enacted a number of other effectiveness of the environmental environmental laws that may also apply to CEQ has substantively amended its 11 NEPA regulations only once, at 40 CFR review process. proposed Federal agency actions, such as the In January 1997, CEQ issued ‘‘The Endangered Species Act, the Clean Water Act, the 1502.22, to replace the ‘‘worst case’’ National Environmental Policy Act: A Clean Air Act, and other substantive statutes. See analysis requirement with a provision discussion infra section I.D. Consistent with 40 CFR 1502.25, longstanding agency practice has been to for the consideration of incomplete or 6 51 FR 15618 (Apr. 25, 1986). use the NEPA process as the umbrella procedural unavailable information regarding 7 50 FR 32234, 32237 (Aug. 9, 1985). statute, integrating compliance with these laws into reasonably foreseeable significant 8 51 FR 15618, 15620 (Apr. 25, 1986). the NEPA review and discussing them in the NEPA 9 A list of agency NEPA procedures is available document. However, this practice sometimes leads 5 Section 101 of NEPA provides that it is the at https://ceq.doe.gov/laws-regulations/agency_ to confusion as to whether analysis is done to Federal Government’s policy ‘‘to use all practicable implementing_procedures.html. comply with NEPA or another, potentially means and measures . . . to create and maintain 10 46 FR 18026 (Mar. 23, 1981), https:// substantive, environmental law. conditions under which man and natures can exist www.energy.gov/nepa/downloads/forty-most-asked- 16 See The NEPA Task Force Report to the in productive harmony, and fulfill the social, questions-concerning-ceqs-national-environmental- Council on Environmental Quality, Modernizing economic, and other requirements of present and policy-act. NEPA Implementation (Sept. 2003) (‘‘NEPA Task future generations of Americans.’’ 42 U.S.C. 4331(a) 11 See https://ceq.doe.gov/guidance/ Force Report’’), https://ceq.doe.gov/docs/ceq- (emphasis added). guidance.html. publications/report/finalreport.pdf.

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NEPA process, leading to additional environmental justice,25 and other Project Delivery Program,30 and for the guidance documents and handbooks. topics.26 Secretary of Housing and Urban Over the past 4 decades, CEQ has Despite CEQ guidance and regulations Development (HUD) regarding the issued over 30 documents to provide providing for concise, timely applicability of the OFD policy to guidance and clarifications to assist documents, the documentation and entities assuming HUD environmental Federal agencies to more efficiently and 31 timelines for completing environmental review responsibilities. effectively implement NEPA. CEQ has issued guidance on such topics as CEs,17 reviews can be very lengthy, and the 3. Environmental Impact Statement EAs, mitigation, and findings of no process can be complex and costly. In (EIS) Timelines and Page Count Reports significant impact (FONSIs),18 2018, CEQ and the Office of CEQ also has conducted reviews and emergencies,19 programmatic NEPA Management and Budget (OMB) issued prepared reports on the length of time reviews,20 timely environmental a memorandum titled ‘‘One Federal it takes for agencies to prepare EISs and reviews,21 collaboration and conflict Decision Framework for the the length of these documents. These resolution,22 purpose and need,23 Environmental Review and reviews found that the process for effects,24 lead and cooperating agencies, Authorization Process for Major preparing EISs is taking much longer Infrastructure Projects under E.O. than CEQ advised, and that the 17 See Council on Environmental Quality, Final 13807’’ (‘‘OFD Framework documents are far longer than the CEQ Guidance for Federal Departments and Agencies on Guidance’’).27 CEQ and OMB issued this regulations and guidance recommended. Establishing, Applying, and Revising Categorical guidance pursuant to E.O. 13807, titled In December 2018, CEQ issued a report Exclusions under the National Environmental Policy Act, 75 FR 75628 (Dec. 6, 2010) (‘‘CE ‘‘Establishing Discipline and compiling information relating to the Guidance’’), https://ceq.doe.gov/docs/ceq- Accountability in the Environmental timelines for preparing EISs during the regulations-and-guidance/NEPA_CE_Guidance_ Review and Permitting Process for period of 2010–2017. While CEQ’s Forty Nov232010.pdf (clarifies the rules for establishing, 28 Questions states that the time for an EIS, applying, and revising CEs, including methods for Infrastructure Projects,’’ to improve substantiating CEs and the process to establish new agency coordination for infrastructure even for a complex project, should not CEs in agency NEPA procedures). projects requiring an environmental exceed 1 year,32 CEQ found that, across 18 See Final Guidance for Federal Departments impact statement (EIS) and permits or the Federal Government, the average and Agencies on the Appropriate Use of Mitigation time for completion of an EIS and and Monitoring and Clarifying Appropriate Use of other authorizations from multiple Mitigated Findings of No Significant Impact, 76 FR agencies and to improve the timeliness issuance of a ROD was over 4.5 years 3843 (Jan. 21, 2011) (‘‘Mitigation Guidance’’), of the environmental review process. and the median was 3.6 years.33 One https://ceq.doe.gov/docs/ceq-regulations-and- See E.O. 13807, infra I.D. Consistent quarter of the EISs took less than 2.2 guidance/Mitigation_and_Monitoring_Guidance_ years, and one quarter of the EISs took 14Jan2011.pdf (explains the requirements of NEPA with the OFD Framework Guidance, and the NEPA regulations on establishing, supra note 27, Federal agencies signed more than 6 years. As reflected in that report, the period implementing, and monitoring mitigation a memorandum of understanding commitments identified and analyzed in EAs, from publication of a notice of intent committing to implement the One environmental impact statements (EISs), and (NOI) to prepare an EIS to the notice of adopted in decision documents). Federal Decision (OFD) policy for major availability of the draft EIS took, on 19 See Emergencies and the National infrastructure projects, including by average, 58 percent of the total time, Environmental Policy Act (‘‘Emergencies committing to establishing a joint Guidance’’), https://ceq.doe.gov/docs/nepa- while preparing the final EIS, including practice/Emergencies_and_NEPA.pdf. schedule for such projects, preparation addressing comments received on the 20 See Effective Use of Programmatic NEPA of a single EIS and joint record of draft EIS, took, on average, 32 percent Reviews (Dec. 18, 2014) (‘‘Programmatics decision (ROD), elevation of delays and of the total time. The period from the Guidance’’), https://ceq.doe.gov/docs/ceq- dispute resolution, and setting a goal of regulations-and-guidance/Effective_Use_of_ final EIS to publication of the ROD took, Programmatic_NEPA_Reviews_Final_Dec2014_ completing environmental reviews for on average, 10 percent of the total time. searchable.pdf. such projects within 2 years.29 This report recognized that EIS 21 See Final Guidance on Improving the Process Subsequently, CEQ and OMB issued timelines vary widely, and many factors for Preparing Efficient and Timely Environmental guidance for the Secretary of Reviews Under the National Environmental Policy may influence the timing of the Act, 77 FR 14473 (Mar. 12, 2012) (‘‘Timely Transportation regarding the document, including variations in the Environmental Reviews Guidance’’), https:// applicability of the OFD policy to States scope and complexity of the actions, ceq.doe.gov/docs/ceq-regulations-and-guidance/ under the Surface Transportation variations in the extent of work done Improving_NEPA_Efficiencies_06Mar2012.pdf (clarifies and emphasizes tools in the NEPA prior to issuance of the NOI, and regulations for preparing efficient and timely 25 See Environmental Justice: Guidance under the suspension of EIS activities due to environmental reviews for both EAs and EISs). National Environmental Policy Act (Dec. 10, 1997), external factors. 22 See Memorandum on Environmental Conflict https://ceq.doe.gov/docs/ceq-regulations-and- Additionally, in July 2019, CEQ guidance/regs/ej/justice.pdf. Resolution (Nov. 28, 2005), as expanded by issued a report on the length, by page Memorandum on Environmental Collaboration and 26 See, e.g., Forty Questions, supra note 10; NEPA Conflict Resolution (Sept. 7, 2012), https:// and NHPA: Handbook for Integrating NEPA and ceq.doe.gov/nepa-practice/environmental- Section 106 Reviews, https://ceq.doe.gov/ 30 Guidance on the Applicability of E.O. 13807 to collaboration-and-conflict-resolution.html publications/nepa-handbooks.html (clarifies and States with NEPA Assignment Authority Under the (supports constructive and timely approaches to emphasizes tools in the NEPA regulations for Surface Transportation Project Delivery Program resolve conflicts over the use, conservation, and preparing efficient and timely environmental (Feb. 26, 2019), https://www.whitehouse.gov/wp- restoration of the environment, natural resources, reviews for both EAs and EISs); A Citizen’s Guide content/uploads/2017/11/20190226OMB- and public lands, including under NEPA). to the NEPA: Having Your Voice Heard, https:// CEQ327.pdf. _ _ _ 23 See Letter from the Hon. James L. ceq.doe.gov/get-involved/citizens guide to 31 Guidance on the Applicability of E.O. 13807 to Connaughton, Chairman, Council on Environmental nepa.html. Responsible Entities Assuming Department of Quality, to the Hon. Norman Y. Mineta, Secretary, 27 M–18–13 (Mar. 20, 2018), https:// Housing and Urban Development Environmental Department of Transportation (May 12, 2003) www.whitehouse.gov/wp-content/uploads/2018/04/ Review Responsibilities, M–19–20 (June 28, 2019), (‘‘Connaughton Letter’’), https://ceq.doe.gov/docs/ M-18-13.pdf. https://www.whitehouse.gov/wp-content/uploads/ ceq-regulations-and-guidance/CEQ–DOT_ 28 82 FR 40463 (Aug. 24, 2017). 2019/06/M–19–20.pdf. PurposeNeed_May-2013.pdf. 29 See Memorandum of Understanding 32 Question 35, Forty Questions, supra note 10. 24 See Considering Cumulative Effects Under the Implementing One Federal Decision under 33 See Council on Environmental Quality, National Environmental Policy Act (Jan. 1997), Executive Order 13807 (2018), https:// Environmental Impact Statement Timelines (2010– https://ceq.doe.gov/publications/cumulative_ www.whitehouse.gov/wp-content/uploads/2018/04/ 2017), (Dec. 14, 2018), https://ceq.doe.gov/nepa- effects.html. MOU-One-Federal-Decision-m-18–13-Part-2–1.pdf. practice/eis-timelines.html.

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count, of EISs (excluding appendices) appellate courts issue approximately National Historic Preservation Act is finalized during the period of 2013– 100 to 140 decisions each year typically integrated into the NEPA 2017. While the CEQ regulations interpreting NEPA. The Supreme Court review.36 NEPA has served as the include recommended page limits for has construed NEPA and the CEQ umbrella procedural statute, integrating the text of final EISs of normally less regulations in light of a ‘‘rule of reason,’’ these laws into NEPA reviews and than 150 pages, or normally less than which ensures that agencies determine discussing them in NEPA documents. 300 pages for proposals of ‘‘unusual whether and to what extent to prepare Over the past two decades and scope or complexity,’’ 40 CFR 1502.7, an EIS based on the usefulness of multiple administrations, Congress has CEQ found that many EISs are information to the decision-making also undertaken efforts to facilitate more significantly longer. In particular, CEQ process. See Marsh v. Or. Nat. Res. efficient environmental reviews by found that across all Federal agencies, Council, 490 U.S. 360, 373–74 (1989). Federal agencies, and has enacted a draft EISs averaged 586 pages in total, ‘‘Although [NEPA] procedures are number of statutes aimed at improving with a median document length of 403 almost certain to affect the agency’s the implementation of NEPA, including pages.34 One quarter of the draft EISs substantive decision, it is now well in the context of infrastructure projects. were 288 pages or shorter, and one settled that NEPA itself does not In particular, Congress enacted quarter were 630 pages or longer. For mandate particular results, but simply legislation to improve coordination final EISs, the mean document length prescribes the necessary process.’’ among agencies, integrate NEPA with was 669 pages, and the median Methow Valley, 490 U.S. at 350; Pub. other environmental reviews, and bring document length was 445 pages. One Citizen, 541 U.S. at 756–57 (‘‘NEPA more transparency to the NEPA process. quarter of the final EISs were 299 pages imposes only procedural requirements In 2005, Congress enacted 23 U.S.C. or shorter, and one quarter were 729 on [F]ederal agencies with a particular 139, ‘‘Efficient environmental reviews pages or longer. On average, the change focus on requiring agencies to undertake for project decisionmaking,’’ a in document length from draft EIS to analyses of the environmental impact of streamlined environmental review final EIS was an additional 83 pages or their proposals and actions.’’ (citing process for highway, transit, and a 14 percent increase. Methow Valley, 490 U.S. at 349–50)). multimodal transportation projects (the With respect to final EISs, CEQ found The extensive body of case law ‘‘section 139 process’’), in the Safe, that approximately 7 percent were 150 interpreting NEPA and the current CEQ Accountable, Flexible, Efficient pages or shorter, and 25 percent were regulations drives much of agencies’ Transportation Equity Act: A Legacy for 300 pages or shorter. Similar to the modern day practice. A challenge for Users (SAFETEA–LU), Public Law 109– conclusions of its EIS timelines study, agencies is that courts have interpreted 59, section 6002(a), 119 Stat. 1144, CEQ noted that a number of factors may key terms and requirements differently, 1857. Congress amended section 139 influence the length of EISs, including adding to the complexity of with additional provisions designed to improve the NEPA process in the 2012 variation in scope and complexity of the environmental reviews. As discussed Moving Ahead for Progress in the 21st decisions that the EIS is designed to below, the proposed regulations would Century Act (MAP–21), Public Law inform, the degree to which NEPA codify longstanding case law in some 112–141, sections 1305–1309, 126 Stat. documentation is used to document instances, and, in other instances, 405, and the 2015 Fixing America’s compliance with other statutes, and clarify the meaning of the regulations Surface Transportation (FAST) Act, considerations relating to potential legal where there is a lack of uniformity in Public Law 114–94, section 1304, 129 challenges. Moreover, variation in EIS judicial interpretation of NEPA and the Stat. 1312, 1378. Section 139 provides length may reflect differences in CEQ regulations. for an environmental review process management, oversight, and contracting D. Statutory Developments that is based on the NEPA regulations practices among agencies that could and codifies many aspects of the Following enactment of NEPA in 1970 result in longer documents. regulations, including provisions and over the past four decades, Congress While there can be many factors relating to lead and cooperating has amended or enacted a large number affecting the timelines and length of agencies, concurrent environmental of substantive environmental statutes. EISs, CEQ has concluded that revisions reviews in a single NEPA document, These have included significant to the CEQ regulations to advance more coordination on the development of the amendments to the Clean Water Act and timely reviews and reduce unnecessary purpose and need statement and Clean Air Act, establishment of new paperwork are warranted. CEQ has reasonable alternatives, and adoption of Federal land management standards and determined that improvements to environmental documents. Further, planning processes for National forests, agency processes, such as improved section 139 provides for referral to CEQ coordination in the development of public lands, and coastal zones, and for issue resolution, similar to part 1504 EISs, can achieve more useful and statutory requirements to conserve fish, 35 of the NEPA regulations, and allows for timely documents to support agency wildlife, and plant species. the use of errata sheets, consistent with decision making. Additionally, the consideration of the 40 CFR 1503.4(c).37 effects on historic properties under the C. Judicial Review of Agency NEPA Compliance 36 Similar to NEPA, section 106 (54 U.S.C. 35 See, e.g., the Clean Air Act, 42 U.S.C. 7401– 306108) of the National Historic Preservation Act is Over the past 50 years, Federal courts 7671q; Clean Water Act, 33 U.S.C. 1251–1388; a procedural statute. Coastal Zone Management Act, 16 U.S.C. 1451– 37 have issued an extensive body of case To facilitate the NEPA process for 1466; Federal Land Policy and Management Act, 43 transportation projects subject to section 139, the law interpreting NEPA and the CEQ U.S.C. 1701–1787; Forest and Rangeland Renewable statute specifically calls for development of a regulations. The Supreme Court has Resources Planning Act of 1974, 16 U.S.C. 1600– coordination plan, including development of a directly addressed NEPA in 17 1614; Magnuson-Stevens Fishery Conservation and schedule, and publicly tracking the implementation Management Act, 16 U.S.C. 1801–1884; Endangered of that schedule through use of the Permitting decisions, and the U.S. district and Species Act, 16 U.S.C. 1531–1544; Oil Pollution Act Dashboard. In addition, the section 139 process of 1990, 33 U.S.C. 2701–2762; Surface Mining provides for ‘‘participating’’ agencies, which are 34 See Council on Environmental Quality, Length Control and Reclamation Act of 1977, 30 U.S.C. any agencies invited to participate in the of Environmental Impact Statements (2013–2017), 1201, 1202, and 1211; and Comprehensive environmental review process. Section 139 also (July 22, 2019), https://ceq.doe.gov/nepa-practice/ Environmental Response, Compensation, and requires, to the maximum extent practicable, eis-length.html. Liability Act, 42 U.S.C. 9601–9675. issuance of a combined final EIS and ROD.

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When Congress enacted section 2045 addresses interagency coordination on or reconstruct roads, highways, or of the Water Resources Development key aspects of the NEPA process bridges damaged by emergencies), 1316 Act of 2007, Public Law 110–114, 121 including scoping (40 CFR 1501.7), (projects within the operational right-of- Stat. 1041, 1103, it created a similar identification of the range of reasonable way), and 1317 (projects with limited environmental review provision for alternatives for study in an EIS (40 CFR Federal assistance); FAA Modernization water resources development projects 1502.14), and the public comment and Reform Act of 2012, Public Law by the U.S. Army Corps of Engineers. 33 process (40 CFR part 1503). 112–95, 213(c), 126 Stat. 11, 46 U.S.C. 2348.38 This project acceleration To ensure a timely NEPA process so (navigation performance and area provision also requires a coordinated that important infrastructure projects navigation procedures); and Omnibus environmental review process, provides can move forward, Congress has also Appropriations Act, 2009, Public Law for dispute resolution, and codifies established shorter statutes of 111–8, 423, 123 Stat. 524, 748 (Lake aspects of the NEPA regulations such as limitations for challenges to certain Tahoe Basin Management Unit lead and cooperating agencies, types of projects. SAFETEA–LU created hazardous fuel reduction projects). concurrent environmental reviews, and a 180-day statute of limitations for Further, in the context of emergency the establishment of CEs. Section highway or public transportation capital response, Congress has directed the use 2348(o) also directs the Corps to consult projects, which MAP–21 later reduced or development of alternative with CEQ on the development of to 150 days. 23 U.S.C. 139(l). The Water arrangements in accordance with 40 guidance for implementing this Resources Reform and Development Act CFR 1506.11 for reconstruction of provision. of 2014 established a three-year statute transportation facilities damaged in an Most recently, in 2015 Congress of limitations for judicial review of any emergency (FAST Act, Pub. L. 114–94, enacted Title 41 of the FAST Act permits, licenses, or other approvals for 1432, 129 Stat. 1429) and for projects by (FAST–41), to provide for a more water resources development project the Departments of the Interior and efficient environmental review and studies. 33 U.S.C. 2348(k). Most recently Commerce to address invasive species permitting process for ‘‘covered in FAST–41, Congress established a (Water Infrastructure Improvements for projects.’’ See Public Law 114–94, two-year statute of limitations for the Nation Act, Pub. L. 114–322, § 41001–41014, 129 Stat. 1312, 1741 (42 covered projects. 42 U.S.C. 4370m–6. 4010(e)(3), 130 Stat. 1628, 1877). In U.S.C. 4370m—4370m–12). These are There are a number of additional 2013, Congress also enacted section 429 projects that require Federal instances where Congress has enacted of the Robert T. Stafford Disaster Relief environmental review under NEPA, are legislation to facilitate more timely and Emergency Assistance Act expected to exceed $200 million, and environmental reviews. For example, (‘‘Stafford Act’’), 42 U.S.C. 5189g, which involve the construction of similar to the provisions described directed the President, in consultation infrastructure for certain energy above, there are other statutes where with CEQ and the Advisory Council on production, electricity transmission, Congress has called for a coordinated Historic Preservation, to ‘‘establish an water resource projects, broadband, and concurrent environmental review. expedited and unified interagency pipelines, manufacturing, and other See, e.g., 33 U.S.C. 408(b) (concurrent review process to ensure compliance sectors. Id. FAST–41 codified certain review for river and harbor permits); 49 with environmental and historic roles and responsibilities required by U.S.C. 40128 (coordination on requirements under Federal law relating the NEPA regulations. In particular, environmental reviews for air tour to disaster recovery projects, in order to FAST–41 imports the concepts of lead management plans for national parks); expedite the recovery process, and cooperating agencies, and the 49 U.S.C. 47171 (expedited and consistent with applicable law.’’ Sandy different levels of NEPA analysis—EISs, coordinated environmental review Recovery Improvement Act of 2013, EAs, and CEs. Consistent with 40 CFR process for airport capacity Public Law 113–2, 1106, 127 Stat. 4, 45. 1501.5(e) through (f), CEQ is required to enhancement projects). This unified Federal environmental and resolve any dispute over designation of Additionally, Congress has historic preservation review (UFR) a facilitating or lead agency for a established or directed agencies to process is a framework for coordinating covered project. 42 U.S.C. 4370m– establish CEs to facilitate NEPA Federal agency environmental and 2(a)(6)(B). Section 4370m–4 codified compliance. See, e.g., 16 U.S.C. 6554(d) historic preservation reviews for several requirements from the CEQ (applied silvicultural assessment and disaster recovery projects associated regulations, including the requirement research treatments); 16 U.S.C. 6591d with Presidentially declared disasters for concurrent environmental reviews, (hazardous fuels reduction projects to under the Stafford Act. The goal of the which is consistent with 40 CFR carry out forest restoration treatments); UFR process is to enhance the ability of 1500.2(c), 1501.7(a)(6) and 1502.25(a), 16 U.S.C. 6591e (vegetation the Federal environmental review and and the tools of adoption, incorporation management activity in greater sage- authorization processes to inform and by reference, supplementation, and use grouse or mule deer habitat); 33 U.S.C. expedite disaster recovery decisions for of State documents, consistent with 40 2349 (actions to repair, reconstruct, or grant applicants and other potential CFR 1506.3, 1502.21, 1502.9(c) and rehabilitate water resources projects in beneficiaries of disaster assistance by 1506.2.39 Finally, 42 U.S.C. 4370m–4 response to emergencies); 42 U.S.C. improving coordination and consistency 15942 (certain activities for the purpose across Federal agencies, and assisting 38 Congress significantly revised this provision in of exploration or development of oil or agencies in better leveraging their the Water Resources Reform and Development Act gas); 43 U.S.C. 1772(c)(5) (development resources and tools.40 of 2014, Public Law 113–121, 1005(a)(1), 128 Stat. and approval of vegetation management, These statutes demonstrate that 1193, 1199. facility inspection, and operation and 39 Congress has recognized that the For covered projects, section 4370m–4 maintenance plans); MAP–21, Public authorizes lead agencies to adopt or incorporate by reference existing environmental analyses and Law 112–141, § 1315 (actions to repair 40 See generally Memorandum of Understanding documentation prepared under State laws and Establishing the Unified Federal Environmental and procedures if the analyses and documentation meet process that permitted public participation and Historic Preservation Review Process for Disaster certain requirements. 42 U.S.C. 4370m–4(b)(1)(A)(i). consideration of environmental consequences, Recovery Projects (July 29, 2014), https:// This provision also requires that the lead agency, alternatives, and other required analyses that are www.fema.gov/unified-federal-environmental-and- in consultation with CEQ, determine that the substantially equivalent to what a Federal agency historic-preservation-review-presidentially- analyses and documentation were prepared using a would have prepared pursuant to NEPA. Id. declared-disasters.

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environmental review process can be Infrastructure Deployment,’’ 44 decisions; (2) ensure that multi-agency made more efficient and effective, established an interagency working environmental reviews and including for infrastructure projects. group to, among other things, avoid authorization decisions are conducted Congress also has identified specific duplicative reviews and coordinate in a manner that is concurrent, process improvements that can review processes to advance broadband synchronized, timely, and efficient; (3) accelerate environmental reviews, deployment. provide for use of prior Federal, State, including improved interagency A 2013 Presidential Memorandum Tribal, and local environmental studies, coordination, concurrent reviews, and titled ‘‘Modernizing Federal analysis, and decisions; and (4) ensure increased transparency. Infrastructure Review and Permitting that agencies apply NEPA in a manner Regulations, Policies, and that reduces unnecessary burdens and E. Presidential Directives Procedures’’ 45 directed the Steering delays, including by using CEQ’s Over the past two decades and Committee established by E.O. 13604 to authority to interpret NEPA to simplify multiple administrations, Presidents work with agencies, OMB, and CEQ to and accelerate the NEPA review also have recognized the need to ‘‘modernize Federal infrastructure process. In response to E.O. 13807, CEQ improve the environmental review review and permitting regulations, published an initial list of actions and process to make it more timely and policies, and procedures to significantly stated its intent to review its existing efficient, and have directed agencies, reduce the aggregate time required by NEPA regulations in order to identify through Executive Orders and the Federal Government to make potential revisions to update and clarify Presidential memoranda, to undertake decisions in the review and permitting these regulations.47 of infrastructure projects, while various initiatives to address these F. 2018 Advance Notice of Proposed issues. In 2002, President Bush issued improving environmental and community outcomes’’ and develop a Rulemaking Requesting Public E.O. 13274, titled ‘‘Environmental Comment on CEQ’s NEPA Regulations Stewardship and Transportation plan to achieve this goal. Among other Consistent with E.O. 13807 and CEQ’s Infrastructure Project Reviews,’’ 41 things, the memorandum directed that initial list of actions, and given the which stated that the development and the plan create process efficiencies, length of time since CEQ issued its implementation of transportation including additional use of concurrent regulations, on June 20, 2018, CEQ infrastructure projects in an efficient and integrated reviews; expand published an advance notice of and environmentally sound manner is coordination with State, Tribal, and proposed rulemaking (ANPRM) titled essential, and directed agencies to local governments; and expand the use of information technology tools. CEQ ‘‘Update to the Regulations for conduct environmental reviews for and OMB led the effort to develop a Implementing the Procedural Provisions transportation projects in a timely comprehensive plan to modernize the of the National Environmental Policy manner. environmental review and permitting Act.’’ 48 The ANPRM requested public In 2011, President Obama’s process while improving environmental comments on how CEQ could ensure a memorandum titled ‘‘Speeding and community outcomes, including more efficient, timely, and effective Infrastructure Development through budget proposals for funding and new NEPA process consistent with the Act’s More Efficient and Effective Permitting authorities. Following the development national environmental policy and and Environmental Review’’ 42 directed of the plan, CEQ continued to work with provided for a 30-day comment period. certain agencies to identify up to three agencies to improve the permitting In response to comments, CEQ extended high-priority infrastructure projects for process, including through expanded the comment period 31 additional days expedited environmental review and collection of timeframe metrics on the to August 20, 2018.49 permitting decisions to be tracked Permitting Dashboard. In late 2015, The ANPRM requested comment on publicly on a ‘‘centralized, online tool.’’ these ongoing efforts were superseded potential revisions to update and clarify This requirement led to the creation of by the enactment of FAST–41, which the NEPA regulations, and included a what is now the Permitting Dashboard, codified the use of the Permitting list of questions on specific aspects of www.permits.performance.gov. Dashboard, established the Federal the regulations. For example, with In 2012, E.O. 13604, titled ‘‘Improving Permitting Improvement Steering respect to the NEPA process, the Performance of Federal Permitting and Council (Permitting Council), and ANPRM asked whether there are Review of Infrastructure Projects,’’ 43 established other requirements for provisions that CEQ could revise to established an interagency Steering managing the environmental review and ensure more efficient environmental Committee on Federal Infrastructure permitting process for covered reviews and authorization decisions, Permitting and Review Process infrastructure projects. such as facilitating agency use of Improvement (‘‘Steering Committee’’) to On August 15, 2017, President Trump existing environmental studies, analyses facilitate improvements in Federal issued E.O. 13807 titled, ‘‘Establishing and decisions, as well as improving permitting and review processes for Discipline and Accountability in the interagency coordination. The ANPRM infrastructure projects. The E.O. Environmental Review and Permitting also requested comments on the scope directed the Steering Committee to Process for Infrastructure.’’ 46 Section of NEPA reviews, including whether develop a plan ‘‘to significantly reduce 5(e)(i) directed CEQ to develop an initial CEQ should revise, clarify, or add the aggregate time required to make list of actions to enhance and modernize definitions. The ANPRM also asked Federal permitting and review decisions the Federal environmental review and whether additional revisions relating to on infrastructure projects while authorization process, including issuing environmental documentation issued improving outcomes for communities such regulations as CEQ deems pursuant to NEPA, including CEs, EAs, and the environment.’’ Similarly, E.O. necessary to: (1) Ensure optimal EISs, and other documents, would be 13616, titled ‘‘Accelerating Broadband interagency coordination of appropriate. Finally, the ANPRM environmental review and authorization requested general comments, including 41 67 FR 59449 (Sept. 23, 2002). 42 https://www.govinfo.gov/content/pkg/DCPD- 44 77 FR 36903 (June 20, 2012). 47 82 FR 43226 (Sept. 14, 2017). 201100601/pdf/DCPD-201100601.pdf. 45 78 FR 30733 (May 22, 2013). 48 83 FR 28591 (June 20, 2018). 43 77 FR 18887 (Mar. 28, 2012). 46 82 FR 40463 (Aug. 24, 2017). 49 83 FR 32071 (July 11, 2018).

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whether there were obsolete provisions makers regarding the significant CEQ further proposes a number of that CEQ could update to reflect new potential environmental effects of revisions to promote more efficient and technologies or make the process more proposed major Federal actions and the timely environmental reviews, efficient, or that CEQ could revise to public of the environmental issues in including revisions to promote reduce unnecessary burdens or delays. the pending decision-making process. interagency coordination by amending In response to the ANPRM, CEQ CEQ also proposes revisions to ensure sections of parts 1501, 1506, and 1507 received over 12,500 comments, which that the regulations reflect changes in relating to lead, cooperating agencies, are available for public review.50 These technology, increase public timing of agency action, scoping, and included comments from a wide range participation in the process, and agency NEPA procedures. CEQ proposes of stakeholders, including States, Tribes, facilitate the use of existing studies, additional revisions to promote a more localities, environmental organizations, analyses and environmental documents efficient and timely NEPA process by trade associations, NEPA practitioners, prepared by States, Tribes, and local amending parts 1501, 1506, and 1507 and interested members of the public. governments. relating to applying NEPA early in the While some commenters opposed any CEQ also proposes revisions to its process, scoping, tiering, adoption, use updates to the current regulations, other regulations consistent with the One of current technologies, and avoiding commenters urged CEQ to consider Federal Decision policy (‘‘OFD policy’’) duplication of State, Tribal, and local potential revisions. While the established by E.O. 13807 for multi- environmental reviews; revisions to approaches to the update of the NEPA agency review and related permitting parts 1501 and 1502 to provide for regulations varied, most of the and other authorization decisions. The presumptive time and page limits; and substantive comments supported some E.O. specifically instructed CEQ to take revisions to clarify the definitions by degree of updating of the current steps to ensure optimal interagency amending part 1508. regulations. Many noted that overly coordination, including through a CEQ also includes provisions to lengthy documents and the time concurrent, synchronized, timely, and promote informed decision making and required for the NEPA process remain efficient process for environmental to inform the public about the decision- real and legitimate concerns despite the reviews and authorization decisions. In making process. In parts 1500, 1501, NEPA regulations’ explicit direction response to the ANPRM, CEQ received 1502, and 1503, CEQ proposes with respect to reducing paperwork and many suggestions to codify key aspects amendments to ensure agencies solicit delays. In general, numerous of the OFD policy in the NEPA and consider relevant information early commenters requested that CEQ regulations, including by providing in the development of the draft EIS. In consider revisions to modernize its greater specificity on the roles and particular, CEQ proposes to direct regulations, reduce unnecessary responsibilities of lead and cooperating agencies in the notice of intent (NOI) to burdens and costs, and make the NEPA agencies. Commenters also suggested request public comment on potential process more efficient, effective, and that the regulations require agencies to alternatives and impacts, and timely. Discussion of comments is establish and adhere to timetables for identification of any relevant provided in more detail in section II the completion of reviews, another key information and analyses concerning below. element of the OFD policy. In response impacts affecting the quality of the to these comments and to promote human environment. Additionally, CEQ II. Summary of Proposed Rule interagency coordination and more proposes to direct agencies to include a In this proposed rule, CEQ would timely and efficient reviews, CEQ new section in the draft and final EIS revise and modernize its NEPA proposes to codify and make generally summarizing all alternatives, regulations to facilitate more efficient, applicable a number of key elements information, and analyses submitted by effective, and timely NEPA reviews by from expedited procedures and the OFD the public and to request comment on Federal agencies. The proposed updates policy, including development by the the completeness of the summary and clarifications to its regulations are lead agency of a joint schedule, included in the draft EIS. based on CEQ’s record evaluating the procedures to elevate delays or disputes, CEQ further proposes to make implementation of its NEPA regulations preparation of a single EIS and joint revisions to part 1503 to ensure that and on comments provided in response ROD to the extent practicable, and a comments are timely submitted on the to the ANPRM. The proposed updates two-year goal for completion of draft EIS and on the completeness of the and clarifications seek to advance the environmental reviews. Consistent with summary of information submitted by stated objectives of the current section 104 of NEPA (42 U.S.C. 4334), the public, and that comments are as regulations, as adopted in 1978, ‘‘[t]o codification of these policies will not specific as possible. Additionally, CEQ reduce paperwork, to reduce delays, and limit or affect the authority or legal proposes a provision in § 1502.18 to at the same time to produce better responsibilities of agencies under other require that, based on the summary of decisions [that] further the national statutory mandates that may be covered the alternatives, information, and policy to protect and enhance the by joint schedules, and CEQ proposes analyses section, the decision maker for quality of the human environment.’’ 51 language to that effect in § 1500.6.52 the lead agency certify that the agency CEQ specifically proposes various CEQ also proposes revisions to clarify has considered such information. This revisions to align the regulations with the process and documentation required will advance the purposes of the the text of the NEPA statute, including for complying with NEPA by amending directive in E.O. 11991 to ensure that revisions to reflect the procedural part 1501 to add sections on threshold EISs are supported by evidence that nature of section 102(2) of NEPA. CEQ considerations and determining the agencies have made the necessary also proposes revisions to ensure that appropriate level of review; add a environmental analyses. See E.O. 11991, environmental documents prepared section on CEs; and revise sections on § 1 amending E.O. 11514, § 3(h). Upon pursuant to NEPA are concise and serve EAs, FONSIs, and EISs in part 1502. certification, the proposed provisions in their purpose of informing decision §§ 1500.3 and 1502.18 would establish a 52 In the preamble, CEQ uses the section symbol conclusive presumption that the agency (§ ) to refer to the proposed regulations as set forth 50 has considered such information. In See https://www.regulations.gov, docket no. in this NPRM and 40 CFR to refer to the current CEQ–2018–0001. CEQ regulations as set forth in 40 CFR parts 1500– conjunction with the certification 51 43 FR 55978 (Nov. 29, 1978). 1508. requirement, this presumption is

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consistent with the longstanding rule to ensure consultation with Tribal make ‘‘publish’’ a defined term that presumption of regularity that entities and to reflect existing NEPA provides agencies with the flexibility to government officials have properly practice to coordinate or consult with make environmental review and discharged their official duties. See U.S. affected Tribal governments and information available to the public by Postal Serv. v. Gregory, 534 U.S. 1, 10 agencies, as necessary and appropriate electronic means not available at the (2001) (‘‘[W]e note that a presumption of for a proposed action. This proposed time of promulgation of the CEQ regularity attaches to the actions of change is also in response to comments regulations in 1978. Historically, the government agencies.’’ (citing United on the ANPRM supporting expansion of practice of circulation included mailing States v. Chem. Found., Inc., 272 U.S. 1, the recognition of the sovereign rights, of hard copies or providing electronic 14–15 (1926)). This is also consistent interests, and expertise of Tribes. CEQ copies on disks or CDs. While it may be with case law upholding regulatory proposes to eliminate the provisions in necessary to provide a hard copy or presumptions. See, e.g., Allentown the current regulations that limit Tribal Mack Sales & Serv. v. Nat’l Labor interest to reservations. See proposed copy on physical media in limited Relations Bd., 522 U.S. 359 (1998); Fed. §§ 1501.8(a), 1502.16(a)(5), circumstances, agencies now provide Commc’ns Comm’n v. Schreiber, 381 1503.1(a)(2)(ii), and 1506.6(b)(3)(ii). The most documents in an electronic format U.S. 279 (1965). proposed changes are consistent with by posting them online and using email Finally, CEQ proposes changes to and in support of government-to- or other electronic forms of make the regulations easier to government consultation pursuant to communication to notify interested or understand and apply. This includes E.O. 13175, titled ‘‘Consultation and affected parties. This change would help proposed revisions to simplify and Coordination With Indian Tribal reduce paperwork and delays, and clarify key definitions in § 1508.1. CEQ Governments.’’ 53 modernize the NEPA process to be more also proposes certain changes to move CEQ proposes several changes for accessible to the public. CEQ proposes and consolidate operative language from consistent use of certain terms. In these changes in proposed §§ 1500.4(o), the definitions to the relevant regulatory particular, CEQ proposes to change 1501.2(b)(2), 1502.9, 1502.20, 1502.21, provisions, while leaving the ‘‘entitlements’’ to the defined term 1503.4(c), 1506.3, and 1506.8(c)(2). definitional language in the definitions ‘‘authorizations’’ throughout the section. In the existing regulations, proposed regulation and added CEQ proposes to change the term provisions on certain topics are ‘‘authorizations’’ where appropriate to ‘‘possible’’ to ‘‘practicable’’ in proposed scattered throughout, making it reflect the mandate in E.O. 13807 for §§ 1501.7(h)(1) and (2), 1501.9(b)(1), unnecessarily difficult to navigate the better integration and coordination of 1502.5, 1502.9(b), 1504.2, and 1506.2(b) requirements. In some cases, the NEPA authorization decisions and related and (c). ‘‘Practicable’’ is the more regulations address topics in multiple environmental reviews. CEQ proposes commonly used term in regulations to sections and sometimes multiple parts. conforming edits to add or change convey the ability for something to be CEQ proposes to revise the regulations ‘‘entitlements’’ to ‘‘authorizations’’ in done, considering the cost, including to consolidate provisions and reduce proposed §§ 1501.2(a), 1501.7(i), time required, technical and economic duplication. Such consolidation, 1501.9(d)(4) and (f)(4), 1502.13, feasibility, and the purpose and need for reordering, or reorganizing also would 1502.25(b), 1503.3(d), 1506.2, and the agency action. Similarly, CEQ proposes promote greater clarity and ease of use. definitions of authorization and to change ‘‘no later than immediately’’ participating agency in § 1508.1(c) and A. Proposed Changes Throughout Parts to ‘‘as soon as practicable’’ in (w). 1500–1508 § 1502.5(b). Finally, CEQ proposes to CEQ proposes to use the term refer to the procedures required in CEQ proposes several revisions ‘‘decision maker’’ to refer to an § 1507.3 using the term ‘‘agency NEPA throughout parts 1500–1508 to provide individual responsible for making procedures’’ throughout. consistency, improve clarity, and decisions on agency actions and to correct grammatical errors. CEQ define the term ‘‘senior agency official’’ CEQ proposes to eliminate obsolete proposes to make certain grammatical to refer to an individual with references and provisions in several corrections in the regulations where it responsibilities for NEPA compliance. sections of the CEQ regulations. In proposes other changes to the Under the proposed rule, the senior particular, CEQ proposes to remove regulations to achieve the goals of this agency official would be an official of references to the 102 Monitor in 40 CFR rulemaking, or where CEQ determined assistant secretary rank or higher who is 1506.6(b)(2) and 1506.7(c) because the the changes are necessary for the reader responsible for agency compliance. The publication no longer exists, and OMB to understand fully the meaning of the responsibilities of this position in the Circular A–95, which was revoked sentence. CEQ proposes to revise proposed regulations would be pursuant to section 7 of E.O. 12372 (47 sentences from passive voice to active consistent with the responsibilities of FR 30959, July 16, 1982), including the voice where it is helpful to identify the senior agency officials in E.O. 13807 to requirement to use State and area-wide responsible parties. CEQ also proposes whom anticipated missed or extended clearinghouses in 40 CFR 1501.4(e)(2), to replace the word ‘‘insure’’ with permitting timetable milestones are 1503.1(a)(2)(iii), 1505.2, and ‘‘ensure,’’ consistent with modern elevated. The proposed regulations 1506.6(b)(3)(i). usage. Finally, CEQ proposes to add would set forth a variety of paragraph letters or numbers to certain responsibilities for senior agency Finally, CEQ proposes changes to introductory paragraphs where it would officials, such as approval to exceed citations and authorities. CEQ would improve clarity. CEQ invites comment page or time limits. See proposed update the authorities sections for each on whether it should make these types §§ 1501.5(e), 1501.7(d), 1501.8(b)(6) and part to correct the format. CEQ also of changes throughout the rule or if (c), 1501.10, 1502.7, and 1507.2. proposes to remove cross-references to there are additional specific instances CEQ proposes to replace ‘‘circulate’’ the sections of part 1508, ‘‘Definitions,’’ where CEQ should make these types of or ‘‘circulation’’ with ‘‘publish’’ or and to update or insert new cross- changes. ‘‘publication’’ throughout the rule and references throughout the rule to reflect CEQ proposes to add ‘‘Tribal’’ to the revised or new sections. phrase ‘‘State and local’’ throughout the 53 65 FR 67249 (Nov. 9, 2000).

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B. Proposed Revisions To Update the consider, detailed information provided by law or for agency Purpose, Policy, and Mandate (Part concerning significant environmental efficiency. CEQ intends that this 1500) impacts; it also guarantees that the provision will prevent agencies from In part 1500, CEQ proposes several relevant information will be made designing additional procedures that revisions to update the policy and available to the larger audience that may will result in increased costs or delays. CEQ proposes to add a new mandate sections of the regulations to also play a role in both the decision[- § 1500.3(b), ‘‘Exhaustion,’’ which would reflect statutory, judicial, policy, and ]making process and the provide that agencies must request other developments since the CEQ implementation of that decision.’’ comments on potential alternatives and regulations were issued in 1978. Methow Valley, 490 U.S. at 349 (citing CEQ specifically proposes to retitle Balt. Gas & Elec. Co., 462 U.S. at 97; impacts and identification of any and revise § 1500.1, ‘‘Purpose and Weinberger, 454 U.S. at 143); see also relevant information, studies, or Policy’’ to align this section with the Winter v. Nat. Res. Def. Council, Inc., analyses of any kind concerning impacts affecting the quality of the human statutory text of NEPA and certain case 555 U.S. 7, 23 (2008); Pub. Citizen, 541 environment in the notice of intent to law and reflect the procedural U.S. at 756–58. CEQ proposes to revise § 1500.1(b) to prepare an EIS. It would provide that requirements of section 102(2) (42 describe the regulations that follow comments on draft EISs and any U.S.C. 4332(2)). In particular, the consistent with the proposed revisions. information on environmental impacts proposed revisions would provide that In particular, CEQ proposes to revise or alternatives to a proposed action NEPA is a procedural statute intended this paragraph to reflect that the must be timely submitted to ensure to ensure Federal agencies consider the regulations include direction to Federal informed decision making by Federal environmental impacts of their actions agencies to determine what actions are agencies. CEQ further proposes to in the decision-making process. The subject to NEPA’s procedural provide that comments not timely raised Supreme Court has made clear that requirements and the level of NEPA and information not provided shall be NEPA is a procedural statute that does review, where applicable. The proposed deemed unexhausted and forfeited. This not mandate particular results; ‘‘[r]ather, revisions also reflect that the regulations reinforces that parties may not raise NEPA imposes only procedural are intended to ensure that relevant claims based on issues they did not requirements on [F]ederal agencies with environmental information is identified raise during the public comment period. a particular focus on requiring agencies and considered early in the process in It also would provide that agencies to undertake analyses of the order to ensure informed decision must include in the EIS a summary of environmental impact of their proposals making by Federal agencies. The comments received, and any objections and actions.’’ Pub. Citizen, 541 U.S. at proposed revisions reflect that, to that summary must be submitted 756–57 (citing Methow Valley, 490 U.S. consistent with E.O. 13807 and the within 30 days of the publication of the at 349–50); see also Vt. Yankee, 435 U.S. purposes of the regulations as originally notice of availability of the final EIS. at 558 (‘‘NEPA does set forth significant promulgated in 1978, the regulations are Based on the summary, the decision substantive goals for the Nation, but its intended to reduce unnecessary burdens maker must certify in the record of mandate to the agencies is essentially and delays. These proposed revisions decision that the agency has considered procedural.’’). are supported by many comments all of the alternatives, information, and CEQ proposes to revise § 1500.1(a) to submitted in response to the ANPRM analyses submitted by public summarize section 101 of the Act (42 requesting revisions to promote more commenters. U.S.C. 4331). CEQ further proposes to efficient and timely reviews under In addition, CEQ proposes to add a revise § 1500.1(a) to reflect that section NEPA. These proposed amendments new § 1500.3(c), ‘‘Actions regarding 102(2) establishes the procedural emphasize that the policy of integrating NEPA compliance,’’ to reflect the requirements to carry out the policy NEPA with other environmental reviews development of case law since the stated in section 101. Additionally, CEQ is to promote concurrent and timely promulgation of the CEQ regulations. proposes to revise § 1500.1(a) to reflect, reviews and decision making consistent Specifically, CEQ proposes to revise the consistent with the case law, that the with statutes, Executive Orders, and sentence regarding timing of judicial purpose and function of NEPA is CEQ guidance. See, e.g., 42 U.S.C. review to strike references to the filing satisfied if Federal agencies have 5189g; 23 U.S.C. 139; 42 U.S.C. 4370m of an EIS or FONSI and replace it with considered relevant environmental et seq.; E.O. 13604; E.O. 13807; the issuance of a signed ROD or the information, that the public has been Mitigation Guidance, supra note 18, and taking of another final agency action. informed regarding the decision-making Timely Environmental Reviews Under the APA, judicial review does not process, and that NEPA does not Guidance, supra note 21. Finally, CEQ occur until an agency has taken final mandate particular results or proposes to strike § 1500.2, ‘‘Policy,’’ agency action. Bennett v. Spear, 520 substantive outcomes. These proposed which is duplicative of subsequent U.S. 154, 177–78 (1997) (the action must revisions would revise paragraph (a) in sections of the regulations, in order to mark the consummation of the agency’s § 1500.1 to replace the vague reference simplify the regulations and eliminate decision-making process—it must not be to ‘‘action-forcing’’ provisions ensuring redundancy and repetition. of a merely tentative or interlocutory that Federal agencies act ‘‘according to CEQ proposes to make a number of nature—and the action must be one by the letter and spirit of the Act’’ with a revisions and additions, to § 1500.3, which rights or obligations have been more specific reference to the ‘‘NEPA compliance,’’ and to provide determined or from which legal consideration of environmental impacts paragraph headings to improve consequences will flow (citations of their actions in agency decisions. readability. CEQ proposes to amend the omitted)). Because NEPA’s procedural These changes would codify the discussion of paragraph (a), ‘‘Mandate,’’ requirements apply to proposals for Supreme Court’s interpretation of to clarify that agency NEPA procedures agency action, judicial review should section 102 as serving NEPA’s ‘‘action- to implement the CEQ regulations, as not occur until the agency has forcing’’ purpose in two important provided for in § 1507.3, shall not completed its decision-making process. respects: Section 102 ‘‘ensures that the impose additional procedures or Final agency action for judicial review agency, in reaching its decision, will requirements beyond those set forth in purposes is not necessarily when the have available, and will carefully the CEQ regulations except as otherwise agency publishes the final EIS, issues a

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FONSI, or makes the determination to circumstances, agencies may impose private rights of action by regulation; categorically exclude an action; bond and security requirements or other ‘‘[l]ike substantive [F]ederal law itself, however, an agency may designate any conditions. See, e.g., 5 U.S.C. 301,54 as private rights of action to enforce of these as its final agency action. CEQ a prerequisite to staying their decisions, [F]ederal law must be created by also proposes to strike vague language as courts do under Fed. R. App. P. 18 Congress.’’ Alexander v. Sandoval, 532 and to clarify that an agency can remedy and other rules.55 See Fed. R. App. P. U.S. 275, 286 (2001). CEQ also proposes harm from the failure to comply with 18(b); Fed. R. App. P. 8(a)(2)(E); Fed. R. to state that any actions to review, NEPA by complying with the Act as Civ. P. 65(c); Fed. R. Civ. P. 62(b); Fed. enjoin, stay, or alter an agency decision interpreted in these regulations. R. Civ. P. 62(d). CEQ invites comment on the basis of an alleged NEPA The CEQ regulations create no on whether there are disclosure or other violation be raised as soon as presumption that violation of NEPA is transparency requirements that should practicable to avoid or minimize any a basis for injunctive relief or for a be required when agencies establish costs to agencies, applicants, or any finding of irreparable harm. As the bond or security requirements or other affected third parties. As reflected in Supreme Court has held, the irreparable conditions. comments received in response to the harm requirement, as a prerequisite to In addition to the authority provided ANPRM, delays have the potential to the issuance of preliminary or by 5 U.S.C. 705 and by agencies’ various result in substantial costs. permanent injunctive relief, is neither organic statutes, agency stays of their CEQ also proposes to state that minor, eliminated nor diminished in NEPA decisions and appropriate conditions on non-substantive errors that have no cases. A showing of a NEPA violation such stays may further the purposes of effect on agency decision making shall alone does not warrant injunctive relief NEPA, which provides that all Federal be considered harmless and shall not and does not satisfy the irreparable agencies shall identify and develop invalidate an agency action. This would harm requirement. See Monsanto Co. v. methods and procedures, in replace and update 40 CFR 1500.3, Geertson Seed Farms, 561 U.S. 139, 157 consultation with CEQ, to ensure that which provides that trivial violations (2010) (‘‘[T]he statements quoted above environmental amenities and values are should not give rise to an independent [from prior Ninth Circuit cases] appear given appropriate consideration in cause of action. Invalidating actions due to presume that an injunction is the decision making along with economic to minor errors does not advance the proper remedy for a NEPA violation and technical considerations. 42 U.S.C. goals of the statute and adds delays and except in unusual circumstances. No 4332(B). Agency procedures that allow costs. such thumb on the scales is for agencies to stay their decisions, Finally, CEQ proposes to add a new warranted.’’); Winter, 555 U.S. at 21–22, including appropriate conditions on § 1500.3(e), ‘‘Severability,’’ to address 31–33; see also Amoco Prod. Co. v. Vill. stays, can contribute to an orderly the possibility that this rule, or portions of Gambell, 480 U.S. 531, 544–545 process whereby judicial review of of this rule, may be challenged in (1987) (rejecting proposition that agency decisions may occur, furthering litigation. It is CEQ’s intent that the irreparable damage is presumed when NEPA’s mandate to agencies to develop individual sections of this rule be an agency fails to evaluate thoroughly methods and procedures to ensure the severable from each other, and that if the environmental impact of a proposed appropriate consideration of any sections or portions of the action). Moreover, a showing of environmental, economic, and technical regulations are stayed or invalidated, irreparable harm in a NEPA case does factors in agency decision making. CEQ the validity of the remainder of the not entitle a litigant to an injunction or invites comment on how agencies can sections shall not be affected and shall a stay. See Winter, 555 U.S. at 20 (‘‘A structure their processes to ensure continue to be operative. plaintiff seeking a preliminary appropriate consideration of these CEQ proposes to reorder the injunction must establish that he is factors. likely to succeed on the merits, that he paragraphs in § 1500.4, ‘‘Reducing CEQ proposes to add a new paperwork,’’ and § 1500.5, ‘‘Reducing is likely to suffer irreparable harm in the § 1500.3(d), ‘‘Remedies.’’ CEQ proposes absence of preliminary relief, that the delay,’’ for a more logical ordering, to state explicitly that harm from the consistent with the three levels of NEPA balance of equities tips in his favor, and failure to comply with NEPA can be that an injunction is in the public review. Finally, CEQ proposes edits to remedied by compliance with NEPA’s § 1500.4 and § 1500.5 for consistency interest.’’) (emphasis added); Geertson procedural requirements, and that Seed Farms, 561 U.S. at 157 (‘‘The with proposed edits to the cross- CEQ’s regulations do not create a cause referenced sections. traditional four-factor test applies when of action for violation of NEPA. The a plaintiff seeks a permanent injunction Finally, as noted above, CEQ proposes statute does not create any such cause to add a savings clause to § 1500.6, to remedy a NEPA violation. . . . An of action, and agencies may not create injunction should issue only if the ‘‘Agency authority,’’ to clarify that the CEQ regulations do not limit an traditional four-factor test is satisfied.’’). 54 5 U.S.C. 301, titled ‘‘Department regulations,’’ CEQ proposes to clarify that NEPA is known as the housekeeping statute and permits agency’s other authorities or legal and the APA allow agencies the the head of a Department to promulgate regulations responsibilities. This clarification is flexibility to structure their decision- ‘‘for the government of his department, the conduct consistent with section 104 of NEPA (42 making processes to allow opportunities of its employees, the distribution and performance U.S.C. 4334) and the current of its business, and the custody, use, and for affected parties to seek a stay of an preservation of its records, papers, and property.’’ regulations, but acknowledges the agency’s final decision from the agency The purpose of this statute is ‘‘simply a grant of possibility of different statutory pending judicial review of the decision. authority to [an] agency to regulate its own affairs’’ authorities that may set forth different Such stays are authorized by the APA, through ‘‘what the APA terms ‘rules of agency requirements, such as timeframes. organization, procedure or practice’ as opposed to are expressly contemplated by Fed. R. ‘substantive rules.’ ’’ Chrysler Corp. v. Brown, 441 CEQ invites comment on the App. P. 18, and are analogous in key U.S. 281, 309–10 (1979). proposed changes to part 1500, respects to stays of district court 55 CEQ notes that there is no ‘‘NEPA exception’’ particularly proposed § 1500.3 and judgments available under Fed. R. Civ. that exempts litigants bringing NEPA claims from whether CEQ should include any otherwise applicable bond or security requirements P. 62(b) and (d). See 5 U.S.C. 705; see or other appropriate conditions, and that some additional changes or provisions to also Fed. R. App. P. 18(a)(1) and courts have imposed substantial bond requirements advance timely resolution of disputes 18(a)(2)(A). In appropriate in NEPA cases. related to NEPA compliance to ensure a

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timely and predictable process, and the NEPA process, based on the context actions that normally do not have avoidance of litigation. of the particular proposed action and significant effects by using CEs or, for governed by the rule of reason, so that actions that are not likely to have C. Proposed Revisions to NEPA and the NEPA analysis meaningfully significant effects, by preparing an EA. Agency Planning (Part 1501) informs the agency’s decision. The Through the use of CEs and EAs, CEQ proposes significant changes to appropriate time to begin the NEPA agencies then can focus their limited part 1501. CEQ proposes to replace the process is dependent on when the resources on those actions that are likely current 40 CFR 1501.1, ‘‘Purpose,’’ agency has sufficient information and to have significant effects and require because it is unnecessary and how it can most effectively integrate the the ‘‘detailed statement,’’ or EIS, duplicative, with a new section to NEPA review into the agency’s decision- required by NEPA. address threshold considerations. CEQ making process. Further, some have While the existing CEQ regulations proposes to add additional sections to viewed this provision as a legally provide for these three levels of NEPA address the level of NEPA review and enforceable standard, rather than an review, they do not clearly set out the CEs. CEQ further proposes to opportunity for agencies to integrate decisional framework by which agencies consolidate and clarify provisions on NEPA into their decision-making should assess their proposed actions EAs and FONSIs, and relocate from part programs and processes. CEQ’s view is and select the appropriate level of 1502 the provisions on tiering and that agencies should have discretion review. To provide this direction and incorporation by reference. CEQ also with respect to timing, consistent with clarity, the proposed rule would add proposes to set presumptive time limits its regulatory provisions for deferring two additional sections to part 1501, for the completion of NEPA reviews, NEPA analysis to appropriate points in renumber the remaining sections, and and clarify the roles of lead and the decision-making process. See 40 retitle two sections. The proposed cooperating agencies to further the OFD CFR 1508.28. This proposed § 1501.3, ‘‘Determine the appropriate policy and encourage more efficient and amendment is consistent with CEQ level of NEPA review,’’ would describe timely NEPA reviews. guidance that agencies should the three levels of NEPA review and the basis upon which an agency makes a 1. NEPA Threshold Applicability ‘‘concentrate on relevant environmental determination regarding the appropriate Analysis (§ 1501.1) analysis’’ in their EISs rather than ‘‘produc[ing] an encyclopedia of all level of review for a proposed action. Since the enactment of NEPA, courts applicable information.’’ Timely While this section would supplement have examined the applicability of Environmental Reviews Guidance, the existing regulations, these concepts NEPA based on a variety of supra note 21; see also 40 CFR 1500.4(b) exist in the current 40 CFR 1501.4 considerations. For example, courts and 1502.2(a). Therefore, CEQ proposes (whether to prepare an EIS), 1508.4 have found that NEPA is inapplicable these changes to clarify that agencies (CEs), and 1508.9 (EAs). where an agency is carrying out a non- have discretion to structure their NEPA Additionally, paragraph (b) would discretionary duty or obligation, where processes in accordance with the rule of address the consideration of an agency’s statutory obligations clearly reason. CEQ also proposes to change significance, which is central to or fundamentally conflict with NEPA ‘‘possible’’ to ‘‘reasonable’’ in paragraph determining the appropriate level of compliance, where Congress has (b)(4)(iii) and ‘‘shall’’ to ‘‘should’’ in the review. CEQ proposes to move and established requirements under another introductory paragraph of § 1502.5 for simplify the operative language from 40 statute that displaces NEPA compliance, consistency. CFR 1508.27, ‘‘Significantly.’’ CEQ and where environmental review and CEQ also proposes to amend proposes to change ‘‘context’’ to public participation procedures under § 1501.2(b)(2) to clarify that agencies ‘‘potentially affected environment’’ and another statute are functionally should consider economic and technical ‘‘intensity’’ to ‘‘degree’’ to provide equivalent to those required by NEPA. analyses along with environmental greater clarity as to what agencies CEQ proposes a new § 1501.1, ‘‘NEPA effects. Finally, CEQ proposes to amend should consider in assessing potential threshold applicability analysis,’’ to paragraph (b)(4)(ii) to change ‘‘agencies’’ significant effects. CEQ did not include provide a series of considerations to to ‘‘governments’’ consistent with and a consideration regarding controversy assist agencies in a threshold analysis in support of government-to-government (40 CFR 1508.27(b)(4)) because this has for determining whether NEPA applies. consultation pursuant to E.O. 13175 56 been interpreted to mean scientific CEQ also proposes related changes in and E.O. 13132, ‘‘Federalism.’’ 57 For controversy. Additionally, CEQ did not § 1507.3(c) to provide that agencies may consistency, CEQ also proposes include a consideration regarding the identify actions that are not subject to revisions to §§ 1501.9(b) and reference in 40 CFR 1508.27(b)(7) to NEPA in their agency NEPA procedures. 1503.1(a)(2)(ii). ‘‘[s]ignificance cannot be avoided by Paragraph (b) of § 1501.1 would clarify terming an action temporary or by that agencies can also make this 3. Determine the Appropriate Level of breaking it down into small component determination on a case-by-case basis. NEPA Review (§ 1501.3) parts’’ because this is addressed in the NEPA requires a ‘‘detailed statement’’ criteria for scope in § 1501.9(e) and 2. Apply NEPA Early in the Process for ‘‘major Federal actions significantly § 1502.4(a), which would provide that (§ 1501.2) affecting the quality of the human agencies evaluate in a single EIS CEQ proposes to amend the environment.’’ 42 U.S.C. 4332(2)(C). To proposals or parts of proposals that are introductory paragraph of § 1501.2, determine whether an action requires related closely enough to be, in effect, ‘‘Apply NEPA early in the process,’’ to such a detailed statement, the CEQ a single course of action. change ‘‘shall’’ to ‘‘should’’ and regulations provide three levels of 4. Categorical Exclusions (CEs) ‘‘possible’’ to ‘‘reasonable.’’ Agencies review for Federal agencies to assess (§ 1501.4) need the discretion to structure the proposals for agency action. timing of their NEPA processes to align Specifically, the CEQ regulations allow Under the CEQ regulations, agencies with their decision-making processes, agencies to review expeditiously those can categorically exclude actions from consistent with their statutory detailed review where the agency has authorities. Agencies need flexibility to 56 Supra note 53. found in its agency NEPA procedures determine the appropriate time to start 57 64 FR 43255 (Aug. 10, 1999). that the action normally would not have

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significant effects. Over the past 4 governed by the terms of the specific 5. Environmental Assessments (EAs) decades, Federal agencies have statute and statutory interpretation of (§ 1501.5) developed and documented more than the agency charged with the Under the current CEQ regulations, 58 2,000 CEs. CEQ estimates that each implementation of the statute. when an agency has not categorically year, Federal agencies apply CEs to Paragraph (b) of proposed § 1501.4 excluded a proposed action, the agency approximately 100,000 Federal agency would set forth the requirement for can prepare an EA to document its actions that typically require little or no effects analysis. If the analysis in the EA 59 consideration of extraordinary documentation. While CEs are the demonstrates that the action’s effects most common level of NEPA review, circumstances once an agency determines that a CE covers a proposed would not be significant, the agency CEQ has only addressed CE documents its reasoning in a FONSI, development and implementation in action, consistent with the current requirement in 40 CFR 1508.4. Finally, which completes the NEPA process; one comprehensive guidance document, otherwise, the agency uses the EA to paragraph (b)(1) would provide that, see CE Guidance, supra note 17, and help prepare an EIS. See 40 CFR 1508.9 when extraordinary circumstances are does not address CEs in detail in its and 1508.13. CEQ estimates that Federal current regulations. present, agencies may consider whether agencies prepare approximately 10,000 In response to the ANPRM, many mitigating circumstances, such as the EAs each year.61 commenters requested that CEQ update design of the proposed action to avoid The current CEQ regulations address the NEPA regulations to provide more effects that create extraordinary the requirements for EAs in a few detailed direction on the application of circumstances, are sufficient to allow provisions, and, in response to the CEs. To provide greater clarity, CEQ the proposed action to be categorically ANPRM, some commenters requested proposes to add a new section on CEs. excluded. The change would clarify that that the regulations provide more The proposed § 1501.4, ‘‘Categorical the mere presence of extraordinary detailed direction related to EAs. exclusions,’’ would address in more circumstances does not preclude the Currently, 40 CFR 1508.9 defines an EA detail the process by which an agency application of a CE. Rather, the agency as a ‘‘concise public document’’ that considers whether a proposed action is may consider whether there is a close agencies may use to comply with NEPA categorically excluded under NEPA. causal relationship between a proposed and determine whether to prepare an This proposed provision is consistent EIS or a FONSI. This section also sets with the definition of categorical action and the potential effect on the conditions identified as extraordinary forth the basic requirements for an EA’s exclusion in 40 CFR 1508.4, which is a contents. Current 40 CFR 1501.4(b) category of actions that the agency has circumstances, and if such a relationship exists, the potential effect provides the public involvement found normally do not have a requirements for EAs. These essential of a proposed action on these significant effect and listed in its agency requirements of an EA would remain conditions. Accordingly, the agency NEPA procedures. under the proposed regulations, but The proposed CE section would could modify the proposed action to CEQ proposes to consolidate them into provide additional clarity on the process avoid the extraordinary circumstances a single section to improve readability. that agencies follow in applying a CE. In so that the action fits in the categorical Under the current regulations, the particular, paragraph (a) would provide exclusion. While this reflects current format for an EA is flexible and that agencies identify CEs in their NEPA practice for some agencies,60 this responsive to agency decision-making procedures, consistent with the revision would assist agencies as they needs and the circumstances of the requirement to establish CEs in agency consider whether to categorically particular proposal for agency action. NEPA procedures currently set forth in exclude an action that would otherwise The proposed CEQ regulations would 40 CFR 1507.3(b)(2)(ii). The proposed be considered in an EA and FONSI. continue to provide that an EA may be regulations would move the prepared by and with other agencies, requirement that agency NEPA CEQ invites comment on these proposed revisions and on whether applicants, and the public. Modern procedures provide for extraordinary information technology can help there are any other aspects of CEs that circumstances from the current 40 CFR facilitate this collaborative EA 1508.4 to the proposed § 1507.3(d)(2)(ii) CEQ should address in its regulations. preparation, allowing the agency to to consolidate all the requirements for Specifically, CEQ invites comment on make a coordinated but independent establishing CEs in that regulation, whether it should establish government- evaluation of the environmental issues while providing in the proposed wide CEs in its regulations to address and assume responsibility for the scope § 1501.4 the procedure for evaluation of routine administrative activities, for and content of the EA. a proposed action for extraordinary example, internal orders or directives CEQ proposes to revise paragraph (a) circumstances. The definition of regarding agency operations, of proposed § 1501.5 (current 40 CFR categorical exclusion only applies to procurement of office supplies and 1501.3) to clarify that an agency must those CEs created by an administrative travel, and rulemakings to establish prepare an EA when necessary to determination in its agency NEPA administrative processes such as those determine whether a proposed action procedures and does not apply to established under the Freedom of would have a significant effect or the ‘‘legislative categorical exclusions’’ Information Act or Privacy Act. significance of the effects is unknown, created by Congress, which are Alternatively, CEQ invites comment on unless a CE applies to the proposed whether and how CEQ should revise the action or the agency decides to prepare 58 See Council on Environmental Quality, List of an EIS. CEQ proposes to move the Federal Agency Categorical Exclusions (Dec. 14, definition of major Federal action to 2018), https://ceq.doe.gov/nepa-practice/ exclude these categories from the operative language relating to an EA categorical-exclusions.html. definition, and if so, suggestions on how 59 See, e.g., Council on Environmental Quality, 61 See, e.g., Council on Environmental Quality, The Eleventh and Final Report on the National it should be addressed. Fourth Report on Cooperating Agencies in Environmental Policy Act Status and Progress for Implementing the Procedural Requirements of the American Recovery and Reinvestment Act of 2009 National Environmental Policy Act, Attachment A Activities and Projects (Nov. 2, 2011), https:// 60 See, e.g., Forest Service categorical exclusions, (Oct. 4, 2016), https://ceq.doe.gov/docs/ceq-reports/ ceq.doe.gov/docs/ceq-reports/nov2011/CEQ_ARRA_ 36 CFR 220.6(b)(2) and surface transportation Attachment-A-Fourth-Cooperating-Agency-Report_ NEPA_Report_Nov_2011.pdf. categorical exclusions, 23 CFR 771.116–771.118. Oct2016.pdf.

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from the definition of EAs currently in ‘‘agencies, applicants, and the public’’ should have clear and concise 40 CFR 1508.9 to a new paragraph (c). involved in preparing the EA to conclusions and may incorporate by Under the proposed CEQ regulations, document agency compliance with the reference data, survey results, requirements for documenting the requirement to ‘‘involve environmental inventories, and other information that proposed action and alternatives in an agencies, applicants, and the public, to support these conclusions, so long as EA would continue to be more limited the extent practicable, in preparing this information is reasonably available than EIS requirements. Under the assessments.’’ 40 CFR 1501.4(b); see to the public. existing and proposed regulations, an also 1508.9(b). This may include The proposed presumptive page limit agency must briefly describe the need incorporation by reference to the for EAs will promote more readable for the proposed action. Agencies can records related to compliance with other documents, but also provide agencies do this by briefly describing the existing environmental laws such as the flexibility to prepare longer documents, conditions, projected future conditions, National Historic Preservation Act, where necessary, to support the and statutory obligations and authorities Clean Water Act, Endangered Species agency’s analysis. The proposed that may relate to the proposed agency Act, or Clean Air Act. presumptive page limit is consistent action with cross-references to CEQ proposes to move the public with CEQ’s guidance on EAs, which supporting documents. The proposed involvement requirements for EAs from advises agencies to avoid preparing CEQ regulations would continue to the current 40 CFR 1501.4(b) to lengthy EAs except in unusual cases require agencies to describe briefly the proposed § 1501.5(d) and change where a proposal is so complex that a proposed action and any alternatives it ‘‘environmental’’ to ‘‘relevant’’ agencies concise document cannot meet the goals is considering that would meet the need to include all agencies that may of an EA and where it is extremely of the proposed agency action. For contribute information that is relevant difficult to determine whether the actions to protect or restore the to the development of an EA. Consistent proposal could cause significant effects. environment, without unresolved with the current CEQ regulations, the Question 36a and 36b, Forty Questions, conflicts concerning alternative uses of proposed rule would not specifically supra note 10. available resources, CEQ expects require publication of a draft EA for CEQ believes that page limits will agencies to examine a narrower range of public review and comment. The encourage agencies to identify the alternatives to the proposed action. proposed CEQ regulations would relevant issues, focus on significant When the project may have significant continue to require that agencies environmental impacts, and prepare impacts, the agency should consider reasonably involve relevant agencies, concise readable documents that will reasonable alternatives that would avoid the applicant, and the public prior to inform decision makers as well as the those impacts or otherwise mitigate completion of the EA, so that they may public. Voluminous, unfocused those impacts to less than significant provide meaningful input on those environmental documents do not levels. subject areas that the agency must advance the goals of informed decision An agency does not need to include consider in preparing the EA. See also making or protection of the a detailed discussion of each alternative 40 CFR 1506.6(b) and 1508.9(a). environment. in an EA, nor does it need to include Depending on the circumstances, the CEQ proposes conforming edits to any detailed discussion of alternatives agency could provide adequate § 1500.4(c) to broaden the paragraph to that it eliminated from study. While information through public meetings or include EAs by changing agencies have discretion to include by a detailed scoping notice, for ‘‘environmental impact statements’’ to more information in their EAs than is example. There is no single correct ‘‘environmental documents’’ and required to determine whether to approach for public involvement. changing ‘‘setting’’ to ‘‘meeting’’ since prepare an EIS or a FONSI, they should Rather, agencies should consider the page limits would be required for both carefully consider their reasons and circumstances and have discretion to EAs and EISs. CEQ invites comment on have a clear rationale for doing so. conduct public involvement tailored to the appropriate presumptive page limit Agencies should focus on analyzing the interested public, to available means for EAs, the means of managing their material effects and alternatives, rather of communications to reach the level of detail, and their role in agency than marginal details that may interested and affected parties, and to decision making. unnecessarily delay the environmental the particular circumstances of each CEQ proposes a new paragraph (f) to review process. proposed action. clarify that agencies may also apply Under both the current and proposed Paragraph (e) would establish a certain provisions in part 1502 regulations, an agency must describe the presumptive 75-page limit for EAs, but regarding incomplete or unavailable environmental impacts of its proposed allow a senior agency official to approve information, methodology and scientific action and alternatives, providing a longer length and establish a new page accuracy, and coordination of enough information to support a limit in writing. While CEQ has stated environmental review and consultation determination to prepare either a FONSI in Question 36a of the Forty Questions, requirements to EAs. CEQ also proposes or an EIS. The EA should focus on supra note 10, that EAs should be to add EAs to § 1501.11, ‘‘Tiering,’’ to whether the proposed action (including approximately 10 to 15 pages, in codify current agency practice of using mitigation) would ‘‘significantly’’ affect practice, such assessments are often EAs where the effects of a proposed the quality of the human environment longer to address compliance with other agency action are not likely to be and tailor the length of the discussion applicable laws, and to document the significant. These include program to the relevant effects. The agency may effects of mitigation to support a FONSI. decisions that may facilitate later site- contrast the impacts of the proposed To achieve the presumptive 75-page specific EISs as well as the typical use action and alternatives with the current limit, agencies should write all NEPA of EAs as a second-tier document tiered and expected future conditions of the environmental documents in plain from an EIS. affected environment in the absence of language, follow a clear format, and In addition to the new § 1501.5, CEQ the action, which constitutes emphasize important impact analyses proposes to add EAs to other sections of consideration of a no-action alternative. and relevant information necessary for the regulations to codify existing agency Under both the current and proposed those analyses, rather than providing practice where it would make the NEPA regulations, an agency should list the extensive background material. An EA process more efficient and effective. As

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discussed in section II.C.9, CEQ also EA or a summary from the definition of worked to establish a more proposes to make a presumptive time FONSI (currently 40 CFR 1508.13) to a synchronized procedure for multi- limit applicable to EAs in § 1501.10. new paragraph (b). Additionally, CEQ agency NEPA reviews and related Further, for some agencies, it is a proposes the addition of a new authorizations, including through the common practice to have lead and paragraph (c) to address mitigation. development of expedited procedures cooperating agencies coordinate in the Specifically, where mitigation is such as the section 139 process and preparation of EAs where more than one required under another statute or where FAST–41. agency may have an action on a an agency is issuing a mitigated FONSI, CEQ proposes a number of proposal; therefore, CEQ also proposes it would require the agency to include modifications to § 1501.7, ‘‘Lead to add EAs to §§ 1501.7 and 1501.8. the legal basis for any mitigation agencies,’’ (current 40 CFR 1501.5), and CEQ invites comment on these adopted.62 Additionally, it would codify § 1501.8, ‘‘Cooperating agencies,’’ proposed revisions and on whether the practice of mitigated FONSIs, (current 40 CFR 1501.6), to improve there are any other aspects of EAs that consistent with CEQ’s Mitigation interagency coordination, make CEQ should address in its regulations. Guidance, by requiring agencies to development of NEPA documents more efficient, and facilitate implementation 6. Findings of No Significant Impact document mitigation, including of the OFD policy. CEQ intends these (FONSIs) (§ 1501.6) enforceable mitigation requirements or commitments that will be undertaken to modifications to improve the efficiency When an agency determines in its EA avoid significant impacts.63 When and outcomes of the NEPA process— that an EIS is not required, it typically preparing an EA, many agencies including cost reduction, improved prepares a FONSI. The FONSI reflects develop, consider, and commit to relationships, and better outcomes that that the agency has engaged in the mitigation measures to avoid, minimize, avoid litigation—by promoting necessary review of environmental rectify, reduce, or compensate for environmental collaboration.64 These impacts under NEPA. The FONSI shows potentially significant adverse modifications are consistent with that the agency examined the relevant environmental impacts that would Questions 14a and 14c of the Forty data and explained the agency findings otherwise require preparation of an EIS. Questions, supra note 10. CEQ proposes by providing a rational connection An agency can commit to mitigation to apply §§ 1501.7 and 1501.8 to EAs as between the facts presented in the EA measures for a mitigated FONSI when it well as EISs consistent with agency and the conclusions drawn in the can ensure that the mitigation will be practice. Consistent with the OFD finding. Any finding should clearly performed, when the agency expects policy to ensure coordinated and timely identify the facts found and the that resources will be available, and reviews, CEQ also proposes to add a conclusions drawn by the agency based when the agency has sufficient legal § 1501.7(g) to require that Federal on those facts. agencies evaluate proposals involving In response to the ANPRM, CEQ authorities to ensure implementation of the proposed mitigation measures. This multiple Federal agencies in a single EIS received comments requesting that CEQ 65 codification of CEQ guidance is not and issue a joint ROD or single EA update its regulations to consolidate and and joint FONSI when practicable. CEQ provide more detailed direction relating intended to create a different standard for analysis of mitigation for a further proposes to move language from to FONSIs. CEQ proposes to consolidate the current cooperating agency the operative language of 40 CFR ‘‘mitigated FONSI,’’ but to provide clarity regarding the use of FONSIs. provision, 40 CFR 1501.6(a), that 1508.13, ‘‘Finding of no significant addresses the lead agency’s impact,’’ with 40 CFR 1501.4, ‘‘Whether 7. Lead and Cooperating Agencies responsibilities with respect to to prepare an environmental impact (§§ 1501.7 and 1501.8) cooperating agencies to proposed statement,’’ in the proposed § 1501.6, In response to the ANPRM, CEQ paragraph (h) in § 1501.7 so that all of ‘‘Findings of no significant impact.’’ received comments requesting that CEQ the lead agency’s responsibilities are in CEQ proposes to strike paragraph (a) as update its regulations to clarify the roles a single section. CEQ also proposes to these requirements are addressed in of lead and cooperating agencies. The clarify in paragraph (h)(4) that the lead § 1507.3(d)(2). As noted above, 1978 CEQ regulations created the roles agency is responsible for determining paragraph (b) would move to the of lead agency and cooperating agencies the purpose and need and alternatives proposed § 1501.5, ‘‘Environmental for NEPA reviews, which are critical for in consultation with any cooperating assessments.’’ This proposed EA section actions, such as non-Federal projects, agencies.66 also addresses paragraph (c), so CEQ requiring the approval or authorization proposes to strike it from the proposed of multiple agencies. Agencies need to 64 See, e.g., Federal Forum on Environmental Collaboration and Conflict Resolution, FONSI section. Similarly, CEQ proposes coordinate and synchronize their NEPA to strike paragraph (d) because this Environmental Collaboration and Conflict processes to ensure an efficient Resolution (ECCR): Enhancing Agency Efficiency requirement is addressed in § 1501.9, environmental review that does not and Making Government Accountable to the People ‘‘Scoping’’ (current 40 CFR 1501.7). cause delays. In recent years, Congress (May 2, 2018), https://ceq.doe.gov/docs/nepa- CEQ proposes to make the current 40 practice/ECCR_Benefits_Recommendations_Report_ and several administrations have CFR 1501.4(e) the new § 1501.6(a), and %205-02-018.pdf. 65 revise the language to clarify that an A ‘‘single ROD,’’ as used in E.O. 13807, is the 62 As discussed in sections I.B.1 and II.B, NEPA same as a ‘‘joint ROD,’’ which is a ROD addressing agency must prepare a FONSI when it is a procedural statute and does not require all Federal agency actions covered in the single EIS determines that a proposed action will adoption of mitigation. However, agencies may and necessary for a proposed project. 40 CFR not have significant effects based on the consider mitigation measures that would avoid, 1508.25(a)(3). The regulations would provide analysis in the EA. CEQ would revise minimize, rectify, reduce, or compensate for flexibility for circumstances where a joint ROD is potentially significant adverse environmental impracticable. Examples include the statutory proposed paragraph (a)(2) to clarify that impacts and may require mitigation pursuant to directive to issue a combined final EIS and ROD for the circumstances listed in paragraph (i) substantive statutes. transportation actions and the Federal Energy and (ii) are the situations where the 63 The Mitigation Guidance, supra note 18, Regulatory Commission’s adjudicatory process. agency must make a FONSI available for amended and supplemented the Forty Questions, 66 See OFD Framework Guidance, supra note 27, supra note 10, specifically withdrawing Question § VIII.A.5 (‘‘The lead agency is responsible for public review. 39 insofar as it suggests that mitigation measures developing the Purpose and Need, identifying the CEQ proposes to move the substantive developed during scoping or in an EA ‘‘[do] not range of alternatives to be analyzed, identifying the requirement that a FONSI include the obviate the need for an EIS.’’ preferred alternative and determining whether to

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Proposed § 1501.7(i) and (j) and agencies should not unduly delay 3 months, and in many cases § 1501.8(b)(6) and (7) also would require publication of the NOI. substantially less as part of the normal development and adherence to a CEQ also proposes to consolidate all analysis and approval process for the schedule for the environmental review the requirements for the NOI and the action.’’ and any authorizations required for a scoping process into the same section, Based on agency experience with the proposed action, and resolution of reorganize it to discuss the scoping implementation of the regulations, CEQ disputes and other issues that may process in chronological order, and add is proposing in § 1501.10, ‘‘Time cause delays in the schedule. These paragraph headings to improve clarity. limits,’’ (current 40 CFR 1501.8) to add proposed provisions are consistent with CEQ proposes to add ‘‘likely’’ to a new paragraph (b) to establish a current practices at agencies that have proposed paragraph (b) to capture the presumptive time limit for EAs of 1 year adopted elevation procedures pursuant reality that at the scoping stage, agencies and a presumptive time limit for EISs of to various statutes and guidance, may not know the identities of all 2 years. CEQ further proposes to provide including 23 U.S.C. 139, FAST–41, and affected parties and that one of the that a senior agency official may E.O. 13807. purposes of scoping is to identify approve in writing a longer time period. Proposed paragraph (a) of § 1501.8 affected parties. Paragraph (c) would These paragraphs would also define the would clarify that lead agencies may provide agencies additional flexibility start and end dates of the time period invite State, Tribal, and local agencies to in how to reach interested or affected consistent with E.O. 13807. Consistent serve as cooperating agencies by parties in the scoping process. with CEQ and OMB guidance, agencies changing ‘‘Federal agency’’ to ‘‘agency,’’ Paragraph (d) would provide a list of should begin scoping and development and moving the operative language from what agencies must include in an NOI of a schedule for timely completion of the definition of cooperating agency (40 to standardize NOI format and achieve an EIS prior to issuing an NOI and CFR 1508.5). Non-Federal agencies greater consistency across agencies. This commit to cooperate, communicate, should participate in the environmental will provide the public with more share information, and resolve conflicts review process to ensure early transparency and ensure that agencies that could prevent meeting collaboration on proposed actions conduct the scoping process in a milestones.67 CEQ recognizes that where such entities have jurisdiction by manner that facilitates implementation agency capacity, including those of law or special expertise. Paragraph (a) of the OFD policy for multi-agency cooperating and participating agencies, would also codify current practice to actions, including by proactively may affect timing, and that agencies allow a Federal agency to appeal to CEQ soliciting comments on alternatives, should schedule and prioritize their a lead agency’s denial of a request to impacts, and relevant information to resources accordingly to ensure effective serve as cooperating agency. Resolving better inform agency decision making. environmental analyses and public disputes among agencies early in the CEQ proposes to move the criteria for involvement. Further, agencies have process furthers the OFD policy and the determining scope from the definition of flexibility in the management of their goal of more efficient and timely NEPA scope, 40 CFR 1508.25, to paragraph (e) internal processes to set shorter time reviews. Finally, CEQ proposes edits and to strike the paragraph on limits and to define the precise start and throughout § 1501.8 to provide further ‘‘cumulative actions’’ for consistency end times for measuring the completion clarity. with the proposed revisions to the time of an EA. Therefore, CEQ proposes definition of ‘‘effects’’ discussed below. to retain paragraph (c) regarding factors 8. Scoping (§ 1501.9) CEQ also proposes to use the term in determining time limits, but revise In response to the ANPRM, CEQ ‘‘most effective’’ rather than ‘‘best’’ in paragraph (c)(6) for clarity and strike received comments requesting that CEQ § 1501.9(e)(1)(ii) for clarity. paragraph (c)(7) because it overlaps with update its regulations related to scoping, numerous other factors. including comments requesting that 9. Time Limits (§ 1501.10) CEQ also proposes conforming edits agencies have greater flexibility in how In response to the ANPRM, CEQ to § 1500.5(g) to change ‘‘setting’’ to to conduct scoping. Rather than received many comments on the lengthy ‘‘meeting’’ time limits and add requiring publication of a NOI as a timelines and costs of environmental ‘‘environmental assessment.’’ CEQ precondition to the scoping process, reviews, and many suggestions for more invites comment on these sections, CEQ proposes to modify the current 40 meaningful time limits for the including on the proposed presumptive CFR 1501.7, ‘‘Scoping,’’ in the proposed completion of the NEPA process. timeframes for EAs and EISs, the § 1501.9 so that agencies can begin the Accordingly, and to promote timely provisions for management of time scoping process as soon as the proposed reviews, CEQ proposes to establish limits, and whether the regulations action is sufficiently developed for presumptive time limits for EAs and should specify shorter timeframes. meaningful agency consideration. Some EISs consistent with E.O. 13807 and agencies refer to this as pre-scoping prior CEQ guidance. In Question 35 of 10. Tiering and Incorporation by under the existing regulations to capture the Forty Questions, supra note 10, CEQ Reference (§§ 1501.11 and 1501.12) scoping work done before publication of stated its expectation that ‘‘even large CEQ proposes to move 40 CFR the NOI. Rather than tying the start of complex energy projects would require 1502.21, ‘‘Tiering,’’ and 40 CFR 1502.22, scoping to the agency’s decision to only about 12 months for the ‘‘Incorporation by reference,’’ to publish an NOI to prepare an EIS, the completion of the entire EIS process’’ proposed new §§ 1501.11 and 1501.12, timing and content of the NOI would and that, for most major actions, ‘‘this respectively, because these provisions instead become an important step in the period is well within the planning time are generally applicable. Specifically, scoping process itself, thereby obviating that is needed in any event, apart from CEQ proposes a number of revisions in the artificial distinction between NEPA.’’ CEQ also recognized that ‘‘some § 1501.11 and other paragraphs to scoping and pre-scoping. However, projects will entail difficult long-term clarify when agencies can use existing planning and/or the acquisition of develop the preferred alternative to a higher level certain data which of necessity will 67 See OFD Framework Guidance, supra note 27 of detail.’’); Connaughton Letter, supra note 23 require more time for the preparation of (‘‘[w]hile the actual schedule for any given project (‘‘[J]oint lead or cooperating agencies should afford may vary based upon the circumstances of the substantial deference to the [ ] agency’s articulation the EIS.’’ Id. Finally, Question 35 stated project and applicable law, agencies should of purpose and need.’’) that an EA ‘‘should take no more than endeavor to meet the two-year goal . . . .’’).

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studies and environmental analyses in and to inform the public about the 2. Draft, Final and Supplemental the NEPA process and when agencies decision-making process. The proposed Statements (§ 1502.9) would need to supplement such studies regulations continue to encourage CEQ proposes to include sub- and analyses. These revisions include application of NEPA early in the process headings in § 1502.9, ‘‘Draft, final, and updates to the provisions on and early engagement with applicants supplemental statements,’’ to improve programmatic reviews (§ 1502.4(d)) and for non-Federal projects (proposed readability. CEQ proposes edits to tiering (§ 1501.11) to make clear, among § 1502.5(b)). paragraph (b) for clarity, replacing other things, that site-specific analyses 1. Page Limits (§ 1502.7) ‘‘revised draft’’ with ‘‘supplemental need not be conducted prior to an draft.’’ irretrievable commitment of resources, CEQ also received many comments which in most cases will not be until In response to the ANPRM, CEQ received many comments on the length, requesting clarification regarding when the decision at the site-specific stage. supplemental statements are required. CEQ also proposes to move the complexity, and readability of environmental documents, and many CEQ proposes revisions to § 1502.9(d)(1) operative language from the definition to clarify that agencies need to update of tiering in 40 CFR 1508.28 to suggestions for more meaningful page limits. The core purpose of page limits environmental documents when there is § 1501.11(b). new information or a change in the In addition, CEQ proposes from the original regulations remains— proposed action only if a major Federal consistency edits to change ‘‘broad’’ and documents must be a reasonable length action remains to occur and other ‘‘program’’ to ‘‘programmatic’’ in in a readable format so that it is requirements are met. This proposed §§ 1500.4(k), 1502.4(b), (c), and (d), and practicable for the decision maker to revision is consistent with Supreme 1506.1(c). Further revisions to read and understand the document in a Court case law holding that a § 1502.4(b), including eliminating reasonable period of time. Therefore, supplemental EIS is required only ‘‘[i]f reference to programmatic EISs that ‘‘are CEQ proposes to reinforce the page there remains ‘major Federal actio[n]’ to sometimes required,’’ are intended to limits for EISs set forth in § 1502.7, occur, and if the new information is focus the provision on the discretionary while allowing a senior agency official use of programmatic EISs in support of sufficient to show that the remaining to approve a statement exceeding 300 action will ‘affec[t] the quality of the clearly defined decision-making pages when it is useful to the decision- purposes. As CEQ stated in its 2014 human environment’ in a significant making process. As captured in CEQ’s manner or to a significant extent not guidance, programmatic NEPA reviews report on the length of final EISs, these ‘‘should result in clearer and more already considered . . . .’’ Marsh, 490 documents average over 600 pages. See U.S. at 374 (quoting 42 U.S.C. transparent decision[ ]making, as well as Length of Environmental Impact provide a better defined and more 4332(2)(C)); see also Norton v. S. Utah Statements, supra note 34. While the expeditious path toward decisions on Wilderness All., 542 U.S. 55, 73 (2004). length of an EIS will vary based on the proposed actions.’’ 68 Other statutes or For example, supplementation might be regulations define circumstances under complexity and significance of the triggered after an agency executes a which a programmatic EIS is required. proposed action and environmental grant agreement but before construction See, e.g., National Forest Management effects the EIS considers, every EIS must is complete because the agency has yet Act, 16 U.S.C. 1604(g). Finally, CEQ be bounded by the practical limits of the to provide all of the funds under that proposes a consistency edit in decision maker’s ability to consider grant agreement. On the other hand, § 1502.4(c)(3) to revise the mandatory detailed information. CEQ proposes this when an agency issues a final rule language to be discretionary since the change to ensure that agencies develop establishing a regulatory scheme, there regulations do not require programmatic EISs focused on significant effects and is no remaining action to occur, and EISs. on the information useful to the therefore supplementation is not decision makers and the public to more required. If there is no further agency D. Proposed Revisions to Environmental successfully implement NEPA. action after the agency’s decision, Impact Statements (EISs) (Part 1502) supplementation does not apply CEQ intends for senior agency The most extensive level of NEPA because the Federal agency action is officials to take responsibility for the analysis is an EIS, which is the complete. S. Utah Wilderness All., 542 quantity, quality, and timelines of ‘‘detailed statement’’ required under U.S. at 73 (‘‘although the ‘[a]pproval of environmental analyses developed in section 102(2)(C) of NEPA. When an a [land use plan]’ is a ‘major Federal agency prepares an EIS, it typically support of the decisions of their action’ requiring an EIS . . . that action issues a ROD at the conclusion of the agencies. Therefore, the senior agency is completed when the plan is NEPA review. 40 CFR 1505.2. Based on official approving an EA or EIS in approved.... There is no ongoing the Environmental Protection Agency excess of the page limits should ensure ‘major Federal action’ that could require (EPA) weekly Notices of Availability that the final environmental document supplementation (though BLM is published in the Federal Register meets the informational needs of the required to perform additional NEPA between 2010 and 2018, Federal agency’s decision maker. For example, analyses if a plan is amended or revised agencies published approximately 170 the agency decision makers may have . . . .)’’) (emphasis in original). final EISs per year. CEQ proposes to varying levels of capacity to consider In order to determine whether a update the format, page length, and the information presented in the supplemental analysis is required, a timeline to complete EISs to better environmental document. In ensuring new paragraph (c)(4) would provide that achieve the purposes of NEPA. CEQ also that the agency provides the resources an agency may document its proposes several changes to streamline, necessary to implement NEPA, in determination of whether a provide flexibility, and improve the accordance with 40 CFR 1507.2, senior supplemental analysis is required preparation of EISs. CEQ includes agency officials should ensure that consistent with its agency NEPA provisions in part 1502 to promote agency staff have the resources and procedures or may, although it is not informed decision making by agencies competencies necessary to produce required, do so in an EA. This provision timely, concise, and effective would codify the existing practice of 68 Programmatics Guidance, supra note 20, at 7. environmental documents. several Federal agencies, such as the

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Department of Transportation’s not tracking the costs of NEPA analyses, statement at this stage can prevent reevaluation provided for highway, as well as the many comments CEQ problems later that may delay transit, and railroad projects (23 CFR received from stakeholders regarding completion of the NEPA process.’’ Id. 771.129); the Bureau of Land the costs associated with development The lead agency is responsible for Management’s Determination of NEPA of NEPA analyses.70 Including such developing the purpose and need, and Adequacy (Department of the Interior costs on the cover sheet would also be cooperating agencies should give Departmental Manual, Part 516, Chapter consistent with current OMB direction deference to the lead agency and 11, § 11.6); and the U.S. Army Corps of to Federal agencies to track costs of identify any substantive concerns early Engineers’ Supplemental Information environmental reviews and in the process to ensure swift resolution. Report (section 13(d) of Engineering authorizations for major infrastructure See OFD Framework Guidance, Regulation 200–2–2). projects pursuant to E.O. 13807 and § VIII.A.5 and XII, supra note 27, and Connaughton Letter, supra note 23. 3. EIS Format (§§ 1502.10 and 1502.11) would provide the public with additional information regarding EIS- Consistent with CEQ guidance and in CEQ proposes to revise § 1502.10, level NEPA documents. response to comments, CEQ proposes to ‘‘Recommended format,’’ to provide revise § 1502.13, ‘‘Purpose and need,’’ to agencies with more flexibility in 4. Purpose and Need (§ 1502.13) clarify that the statement should focus formatting an EIS given that most EISs CEQ received a number of comments on the purpose and need for the are prepared and distributed in response to the ANPRM proposed action. In particular, CEQ electronically. Specifically, CEQ recommending that CEQ better define proposes to strike ‘‘to which the agency proposes to eliminate the requirement to the requirements for purpose and need is responding in proposing the have a list of agencies, organizations statements. The current CEQ regulations alternatives including’’ to focus on the and persons to whom copies of the EIS require that an EIS ‘‘briefly specify the proposed action. CEQ further proposes, are sent since EISs are published online, underlying purpose and need to which as discussed below, to address the and an index, as this is no longer the agency is responding in proposing relationship between the proposed necessary when most documents are the alternatives including the proposed action and alternatives in the definition produced in an electronically searchable action.’’ 40 CFR 1502.13. of reasonable alternatives and other format. This section would also allow The focus of the purpose and need sections that refer to alternatives. agencies to use a different format so that statement is the purpose and need for Additionally, CEQ proposes to add a they may customize EISs to address the the proposed action, and agencies sentence to clarify that when an agency particular proposed action and better should develop it based on is responsible for reviewing applications integrate environmental considerations consideration of the relevant statutory for authorizations, the agency shall base into agency decision-making processes. authority for the proposed action. The the purpose and need on the applicant’s CEQ proposes to amend § 1502.11, purpose and need statement also goals and the agency’s statutory ‘‘Cover,’’ to remove the reference to a provides the framework in which authority. This addition is consistent ‘‘sheet’’ since agencies prepare EISs ‘‘reasonable alternatives’’ to the with the proposed definition of electronically. CEQ also proposes to add proposed action will be identified. CEQ reasonable alternatives, which must a requirement to include the estimated has advised that this discussion of meet the goals of the applicant, where cost of preparing the EIS to the cover in purpose and need should be concise applicable. new paragraph (g) to provide (typically one or two paragraphs long) 5. Alternatives (§ 1502.14) transparency to the public on the costs and that the lead agency is responsible CEQ also received many comments of EIS-level NEPA reviews. To track for its definition. See Connaughton costs, agencies must prepare an estimate requesting clarification regarding Letter, supra note 23 (‘‘Thoughtful ‘‘alternatives’’ under the regulations. of environmental review costs, resolution of the purpose and need including costs of the agency’s full-time This section of an EIS should describe statement at the beginning of the the proposed action and alternatives in equivalent (FTE) personnel hours, process will contribute to a rational contractor costs, and other direct costs comparative form, including their environmental review process and save environmental impacts, such that the related to the environmental review of considerable delay and frustration later 69 decision maker and the public can the proposed action. For integrated in the decision[-]making process.’’). ‘‘In documents where an agency is understand the basis for choice. situations involving two or more However, as explained in § 1502.16 and preparing a document pursuant to agencies that have a decision to make multiple environmental statutory reinforced by Question 7 of the Forty for the same proposed action and Questions, supra note 10, this section of requirements, it may indicate that the responsibility to comply with NEPA or estimate reflects costs associated with the EIS should not duplicate the a similar statute, it is prudent to jointly affected environment and NEPA compliance as well as develop a purpose and need statement compliance with other environmental environmental consequences sections, that can be utilized by both agencies. An and agencies have flexibility to combine review and authorization requirements. agreed-upon purpose and need Agencies can develop methodologies for these three sections in a manner that clearly sets forth the basis for decision preparing these cost estimates in their 70 In a 2014 report, the U.S. Government implementing procedures. Accountability Office found that Federal agencies making. CEQ proposes a few changes to This amendment will address the do not routinely track data on the cost of § 1502.14, ‘‘Alternatives including the concerns raised by the U.S. Government completing NEPA analyses, and that the cost can proposed action,’’ to provide further vary considerably, depending on the complexity clarity on the scope of the alternatives Accountability Office that agencies are and scope of the project. U.S. Gov’t Accountability Office, GAO–14–370, NATIONAL analysis in an EIS. CEQ proposes 69 See, e.g., U.S. Department of the Interior, ENVIRONMENTAL POLICY ACT: Little changes to § 1502.14 to simplify and Reporting Costs Associated with Developing Information Exists on NEPA Analyses (Apr. 15, clarify the language, and align it with Environmental Impact Statements (July 23, 2018), 2014), https://www.gao.gov/products/GAO-14-370. the format of the related provisions of https://www.doi.gov/sites/doi.gov/files/uploads/ The report referenced the 2003 CEQ task force dep_sec_memo_07232018_-_reporting_costs_ analysis referenced above which estimated that a part 1502. associated_w_developing_environmental_impact_ typical EIS costs from $250,000 to $2 million. See In paragraph (a), CEQ proposes to statements.pdf. NEPA Task Force Report, supra note 16, at p. 65. delete ‘‘all’’ before ‘‘reasonable

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alternatives’’ and insert afterward ‘‘to reanalyze alternatives previously of three alternatives including the no the proposed action.’’ NEPA itself rejected, particularly when an earlier action alternative). provides no specific guidance analysis of numerous reasonable 6. Affected Environment and concerning the range of alternatives an alternatives was incorporated into the Environmental Consequences agency must consider for each proposal. final analysis and the agency has (§§ 1502.15 and 1502.16) Section 102(2)(C), provides only that an considered and responded to public agency should prepare a detailed comment favoring other alternatives. CEQ proposes in § 1502.15, ‘‘Affected statement addressing, among other For consistency with this change, environment,’’ to explicitly allow for things, ‘‘alternatives to the proposed CEQ proposes to strike ‘‘the’’ before combining of affected environment and action.’’ 42 U.S.C. 4332(2)(C). Section ‘‘reasonable alternatives’’ in § 1502.1, environmental consequences sections to 102(2)(E) requires only that agencies and amend § 1502.16, ‘‘Environmental adopt what has become a common ‘‘study, develop, and describe consequences,’’ to clarify in proposed practice in some agencies. This revision appropriate alternatives to paragraph (a)(1) that the discussion would ensure that the description of the recommended courses of action.’’ 42 must include the environmental impacts affected environment is focused on U.S.C. 4332(2)(E) Implementing this of the ‘‘proposed action and reasonable those aspects of the environment that limited statutory direction, CEQ has alternatives.’’ are affected by the proposed action. In advised that ‘‘[w]hen there are In response to CEQ’s ANPRM, some proposed paragraph (a)(1) of § 1502.16, potentially a very large number of commenters urged that the regulations ‘‘Environmental consequences,’’ CEQ alternatives, only a reasonable number should not require agencies to account proposes to consolidate into one of examples, covering the full spectrum for impacts over which the agency has paragraph the requirement to include a of alternatives, must be analyzed and no control, including those resulting discussion of the effects of the proposed compared in the EIS.’’ Question 1b, from alternatives outside its action and reasonable alternatives. The Forty Questions, supra note 10. jurisdiction. CEQ proposes to strike combined discussion should focus on It is CEQ’s view that NEPA’s policy paragraph (c) of 40 CFR 1502.14 as a those effects that are reasonably goals are satisfied when an agency requirement for all EISs because it is not foreseeable and have a close causal analyzes reasonable alternatives, and efficient or reasonable to require relationship to the proposed action, that an EIS need not include every agencies to develop detailed analyses consistent with the proposed revised available alternative where the relating to alternatives outside the definition of effects addressed in consideration of a spectrum of jurisdiction of the lead agency. This § 1508.1(g). To align with the statute, alternatives allows for the selection of change is consistent with proposed CEQ also proposes to add a new any alternative within that spectrum. § 1501.1(a)(2). Further, the proposed § 1502.16(a)(10) to provide that The reasonableness of the analysis of definition of ‘‘reasonable alternatives’’ discussion of environmental alternatives in a final EIS is resolved not would preclude alternatives outside the consequences should include, where by any particular number of alternatives agency’s jurisdiction because they applicable, economic and technical considered, but by the nature of the would not be technically feasible due to considerations consistent with section underlying agency action. The the agency’s lack of statutory authority 102(2)(B) of NEPA. discussion of environmental effects of to implement that alternative. However, Further, CEQ proposes to move the alternatives need not be exhaustive, but an agency may discuss reasonable operative language that addresses when must provide information sufficient to alternatives not within their jurisdiction agencies need to consider economic and permit a reasoned choice of alternatives when necessary for the agency’s social effects in EISs from the definition for the agency to evaluate available decision-making process such as when of human environment in 40 CFR reasonable alternatives, 40 CFR preparing an EIS to address legislative 1508.14 to proposed § 1502.16(b). CEQ 1502.14(a), including significant EIS requirements pursuant to § 1506.8 also proposes to amend the language for alternatives that are called to its and to specific Congressional directives. clarity, explain that the agency makes attention by other agencies, See section II.H, infra, for further the determination of when organizations, communities, or a discussion. consideration of economic and social member of the public. Analysis of A concern raised by many effects are interrelated with natural or alternatives also may serve purposes commenters is that agencies have physical environmental effects at which other than NEPA compliance, such as limited resources and that it is point the agency should give evaluation of the least environmentally important that agencies use those appropriate consideration to those damaging practicable alternative for the resources effectively. Analyzing a large effects, and strike ‘‘all of’’ as discharge of dredged or fill material number of alternatives, particularly unnecessary. under section 404(b)(1) of the Clean where it is clear that only a few 7. Submitted Alternatives, Information, Water Act, 33 U.S.C. 1344(b)(1). alternatives would be economically and The number of alternatives that is technically feasible and realistically and Analyses (§§ 1502.17 and 1502.18) appropriate for an agency to consider implemented by the applicant, can To ensure agencies have considered will vary. For some actions, such as divert limited agency resources. CEQ all alternatives, information, and where the Federal agency’s authority to invites comment on whether the analyses submitted by the public, consider alternatives is limited by regulations should establish a including State, Tribal, and local statute, the range of alternatives may be presumptive maximum number of governments as well as individuals and limited to the proposed action and the alternatives for evaluation of a proposed organizations, CEQ is proposing to add no action alternative. For actions where action, or alternatively for certain a requirement in § 1502.17 to include a the Federal authority to consider a range categories of proposed actions. CEQ new section in draft and final EISs. This of alternatives is broad, the final EIS seeks comment on (1) specific categories section, called the ‘‘Submitted itself should consider a broader range of of actions, if any, that should be alternatives, information and analyses’’ reasonable alternatives. However, a identified for the presumption or for section, would include a summary of all process of narrowing alternatives is in exceptions to the presumption; and (2) alternatives, information, and analyses accord with NEPA’s ‘‘rule of reason’’ what the presumptive number of submitted by the public for and common sense—agencies need not alternatives should be (e.g., a maximum consideration by the lead and

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cooperating agencies in both the draft whether the ‘‘overall costs’’ of obtaining information and to structure public and final EISs. In developing the incomplete of unavailable information participation for greater efficiency and summary, agencies may refer to other warrants further definition to address inclusion of interested persons. CEQ relevant sections of the draft or final whether certain costs are or are not proposes to revise § 1503.1, ‘‘Inviting EIS, or to appendices. ‘‘unreasonable.’’ comments and requesting information To improve the scoping process, CEQ A proposed revision to § 1502.24, and analyses,’’ in proposed paragraph proposes revisions to ensure agencies ‘‘Methodology and scientific accuracy,’’ (a)(2)(v) to give agencies flexibility in solicit and consider relevant would clarify that agencies should use the public involvement process to information early in the development of reliable existing information and solicit comments ‘‘in a manner designed the draft EIS. As discussed above, CEQ resources and are not required to to inform’’ parties interested or affected proposes to direct agencies to include a undertake new scientific and technical ‘‘by the proposed action.’’ CEQ also request for identification of alternatives, research to inform their analyses. The proposes a new paragraph (a)(3) that information, and analyses in the notice phrase ‘‘new scientific and technical requires agencies to specifically invite of intent (§ 1501.9(d)(7)) and require research’’ is intended to distinguish comment on the completeness of the agencies to summarize all relevant separate and additional research that submitted alternatives, information and alternatives, information, and analyses extends beyond existing scientific and analyses section (§ 1502.17). Because submitted by public commenters in the technical information available in the interested parties have an affirmative draft and final EIS. CEQ also proposes public record or in publicly available duty to comment during the public in § 1502.18, ‘‘Certification of academic or professional sources. This review period in order for the agency to alternatives, information, and analyses phrase is consistent with the consider their positions, see Vt. Yankee, section,’’ that, based on the alternatives, requirement in § 1502.22 to obtain 435 U.S. at 553, proposed paragraph (c) information, and analyses section incomplete or unavailable information would require agencies to provide for required under § 1502.17, the decision regarding significant adverse effects if commenting using electronic means maker for the lead agency certify that the means of obtaining the information while ensuring accessibility to those the agency has considered such is known and the cost to the decision- who may not have such access to ensure information and include the making process is not unreasonable. adequate notice and opportunity to certification in the ROD under Agencies should use their experience comment. § 1505.2(d). In addition, CEQ proposes a and expertise to determine what CEQ also proposes a revision to conclusive presumption that the agency scientific and technical information is § 1503.2, ‘‘Duty to comment,’’ to clarify has considered information summarized needed to inform their analyses and that when a cooperating agency with in that section because, where agencies decision making. CEQ also proposes to jurisdiction by law specifies measures it have followed the process outlined revise § 1502.24 to allow agencies to considers necessary for a regulatory above, and identified and described draw on any source of information (such approval, it should cite its applicable information submitted by the public, it as remote sensing and statistical statutory authority to ensure this is reasonable to presume the agency has modeling) that the agency finds reliable information is made known to the lead considered such information. and useful to the decision-making agency. Further, CEQ proposes to revise 8. Other Proposed Changes to Part 1502 process. These changes would promote the use of reliable data, including paragraph (a) of § 1503.3, ‘‘Specificity of CEQ proposes to eliminate the option information gathered using current comments and information,’’ to explain to circulate the summary of an EIS in technologies. Finally, CEQ proposes to that the purposes of comments is to § 1502.21, ‘‘Publication of the revise § 1502.25, ‘‘Environmental review promote informed decision making and environmental impact statement,’’ given and consultation requirements,’’ to further clarify that comments should the change from circulation to clarify that agencies must, to the fullest provide sufficient detail for the agency publication and the reality that most extent possible, integrate their NEPA to consider the comment in its decision- EISs are produced electronically. CEQ analysis with all other applicable making process. See Pub. Citizen, 541 proposes to strike the word ‘‘always’’ Federal environmental review laws and U.S. at 764; Vt. Yankee, 435 U.S. at 553 from § 1502.22(a) as unnecessarily Executive Orders in furtherance of the (while ‘‘NEPA places upon an agency limiting and eliminate 40 CFR OFD policy and to make the the obligation to consider every 1502.22(c) addressing the applicability environmental review process more significant aspect of the environmental of the 1986 amendments to 40 CFR efficient.72 impact of a proposed action, it is still 1502.22, ‘‘Incomplete or unavailable incumbent upon [parties] who wish to information,’’ because this paragraph is E. Proposed Revisions To Commenting participate to structure their obsolete. CEQ reiterates, as it stated in on Environmental Impact Statements participation so that it is meaningful, so the promulgation of this regulation, that (Part 1503) that it alerts the agency to the [parties’] the term ‘‘overall cost’’ as used in CEQ proposes to modernize part 1503 position . . . .’’). CEQ also proposes § 1502.22 includes ‘‘financial costs and given the existence of current that comments should explain why the other costs such as costs in terms of technologies not available at the time of issue raised is significant to the time (delay) and personnel.’’ 71 CEQ also the 1978 regulations. In particular, the consideration of potential proposes in paragraphs (b) and (c) to proposed regulations would encourage environmental impacts and alternatives replace the term ‘‘exorbitant’’ with agencies to use the current methods of to the proposed action, as well as ‘‘unreasonable’’ because ‘‘unreasonable’’ electronic communication both to economic and employment impacts, and is more consistent with CEQ’s original publish important environmental other impacts affecting the quality of the description of ‘‘overall cost’’ environment. See Vt. Yankee, 435 U.S. considerations, the common 72 The Permitting Council has compiled a list of at 553 (‘‘[Comments] must be significant understanding of the term, and how the environmental laws and Executive Orders that may enough to step over a threshold terminology has been interpreted in apply to a proposed action. See Federal requirement of materiality before any Environmental Review and Authorization practice. CEQ invites comment on Inventory, https://www.permits.performance.gov/ lack of agency response or consideration tools/federal-environmental-review-and- becomes a concern. The comment 71 51 FR at 15622 (Apr. 25, 1986). authorization-inventory. cannot merely state that a particular

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mistake was made . . . ; it must show comment on certain proposed actions of revise the language to provide why the mistake was of possible other Federal agencies and to make additional clarity on what activities are significance in the results . . . .’’ those comments public. Where allowable during the NEPA process. (quoting Portland Cement Assn. v. appropriate, EPA may exercise its Specifically, CEQ proposes to eliminate Ruckelshaus, 486 F.2d 375, 394 (1973), authority under section 309(b) of the reference to a specific agency in cert. denied sub nom. Portland Cement Clean Air Act and refer the matter to paragraph (d), and provide in paragraph Corp. v. Administrator, EPA, 417 U.S. CEQ. CEQ’s regulations addressing this (b) that this section does not preclude 921 (1974))). CEQ also proposes a new referral process are set forth in part certain activities by an applicant to § 1503.3(b) to emphasize that comments 1504. support an application of Federal, State, on the submitted alternatives, CEQ proposes edits to part 1504, ‘‘Pre- Tribal or local permits or assistance. As information and analyses section should decisional Referrals to the Council of an example of activities an applicant identify any additional alternatives, Proposed Federal Actions Determined to may undertake, CEQ proposes to add information or analyses not included in be Environmentally Unsatisfactory,’’ to ‘‘acquisition of interests in land,’’ which the draft EIS, and should be as specific improve clarity and to add EAs. Though would include acquisitions of rights-of- as possible. infrequent, CEQ has received referrals way and conservation easements. CEQ Finally, section 102(2)(C) of NEPA on EAs and proposes to capture this invites comment on whether it should requires that agencies obtain views of practice in the regulations. make any additional changes to Federal agencies with jurisdiction by CEQ proposes additional revisions to § 1506.1, including whether there are law or expertise with respect to any ensure a more timely and efficient circumstances under which an agency environmental impact, and also directs process. Consistent with the statute, may authorize irreversible and that agencies make copies of the CEQ proposes to add economic and irretrievable commitments of resources. environmental impact statement and the technical considerations to paragraph A revision to § 1506.2, ‘‘Elimination comments and views of appropriate (g) of § 1504.2, ‘‘Criteria for referrals.’’ In of duplication with State, Tribal, and Federal, State, and local agencies § 1504.3, ‘‘Procedure for referrals and local procedures,’’ would acknowledge available to the President, CEQ and the response,’’ CEQ proposes changes to the increasing number of State, Tribal, public. 42 U.S.C. 4332(2)(C). Part 1503 simplify and modernize the process. and local governments conducting of the CEQ regulations include CEQ also proposes a minor revision to NEPA reviews pursuant to assignment provisions relating to inviting and the title of part 1504, striking from Federal agencies. See, e.g., 23 responding to comments. In practice, ‘‘Predecision’’ and inserting ‘‘Pre- U.S.C. 327, 25 U.S.C. 4115 and 5389(a). the processing of comments can require decisional.’’ The revision in paragraph (a) would substantial time and resources. CEQ clarify that Federal agencies are G. Proposed Revisions to NEPA and proposes to amend § 1503.4, ‘‘Response authorized to cooperate with such State, Agency Decision Making (Part 1505) to comments,’’ to simplify and clarify in Tribal, and local agencies and must do paragraph (a) that agencies are required CEQ proposes minor edits to part so to reduce duplication under to consider substantive comments 1505 for clarity. CEQ proposes to move paragraph (b). CEQ proposes to add timely submitted during the public 40 CFR 1505.1, ‘‘Agency examples to paragraph (b) to encourage comment period. CEQ also proposes to decisionmaking procedures,’’ to use of prior reviews and decisions. CEQ clarify that an agency may respond to § 1507.3(b), as discussed further below. proposes to modify paragraph (c) to give comments individually or collectively. CEQ proposes to clarify in the agencies flexibility to determine Consistent with this revision, CEQ introductory paragraph of § 1505.2, whether to cooperate in fulfilling State, proposes additionally to clarify that in ‘‘Record of decision in cases requiring Tribal, or local EIS or similar the final EIS, agencies may respond by environmental impact statements,’’ in requirements. Finally, CEQ proposes to a variety of means, and to strike the cases requiring EISs, that agencies must clarify in paragraph (d) that NEPA does detailed language in paragraph (a)(5) ‘‘timely publish’’ their RODs. This not require reconciliation of relating to comments that do not paragraph also would clarify that inconsistencies between the proposed warrant further agency response. ‘‘joint’’ RODs by two or more Federal action and State, Tribal or local plans or CEQ also proposes to clarify in agencies are permitted; this change is laws, although the EIS should discuss paragraph (b) that agencies must append also consistent with the OFD policy and the inconsistencies. These revisions comment responses to EISs rather than E.O. 13807. Finally, CEQ proposes edits would promote efficiency and reduce including them in the body of the EIS, in paragraph (c) to change from passive duplication between Federal and State, or otherwise publish them. Under to active voice for clarity. Tribal, and local requirements. Other current practice, some agencies include commenters noted that this provision these comment responses in the EISs H. Proposed Revisions to Other continues to serve an important role themselves, which can contribute to Requirements of NEPA (Part 1506) given the increased numbers of non- excessive length. See Length of CEQ proposes a number of edits to Federal agencies assuming NEPA Environmental Impact Statements, part 1506 to improve the NEPA process responsibilities from a Federal agency. supra note 34. These changes would not to make it more efficient and flexible, Consistent with current practice by preclude an agency from summarizing especially where actions involve third- many agencies, the proposed regulations or discussing specific comments in the party applicants. CEQ also proposes would expand § 1506.3, ‘‘Adoption,’’ to EIS as well. several edits for clarity. expressly cover EAs as well as EISs. In particular, CEQ proposes to add CEQ also proposes edits throughout to F. Proposed Revisions to Pre-Decisional FONSIs to paragraph (a) of § 1506.1, clarify the process for documenting Referrals to the Council of Proposed ‘‘Limitations on actions during NEPA adoption and the subsequent decision. Federal Actions Determined To Be process,’’ to clarify existing practice and Finally, paragraph (f) would allow an Environmentally Unsatisfactory (Part judicial determinations that the agency to adopt another agency’s 1504) limitation on actions applies when an determination to apply a CE to a Section 309 of the Clean Air Act (42 agency is preparing an EA as well as an proposed action if the adopting agency’s U.S.C. 7609) requires the Environmental EIS. CEQ proposes to consolidate proposed action is substantially the Protection Agency (EPA) to review and paragraph (d) with paragraph (b) and same action. To allow agencies to use

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one another’s CEs more generally, CEQ electronic methods for actions occurring pursuant to other statutory requirements also proposes revisions to § 1507.3(e)(5), in whole or in part in areas without or Executive Orders that meet the which would allow agencies to establish high-speed internet access, such as rural requirements of NEPA. a process in their NEPA procedures to locations. CEQ also proposes to amend For some rulemakings, agencies adopt another agency’s CE. paragraph (f), which requires that EISs, conduct a regulatory impact analysis CEQ also proposes to amend § 1506.4, comments received, and any underlying (RIA), pursuant to E.O. 12866, ‘‘Combining documents,’’ to encourage documents be made available to the ‘‘Regulatory Planning and Review,’’ 73 agencies ‘‘to the fullest extent public pursuant to the Freedom of that assesses regulatory impacts to air practicable’’ to combine their Information Act (FOIA) by updating the and water quality, ecosystems, and environmental documents with other reference to FOIA, which has been animal habitat, among other agency documents to reduce duplication amended numerous times since the environmental factors. E.O. 12866, and paperwork. For example, the U.S. enactment of NEPA, mostly recently by § 6(a)(3)(C)(i)–(ii). An RIA, alone or in Forest Service routinely combines EISs the FOIA Improvement Act of 2016, combination with other documents, may with forest management plans, and Public Law 114–185. Further, CEQ serve the purposes of the EIS if (1) there agencies may use their NEPA proposes to strike the remaining text to are substantive and procedural documents to satisfy compliance with align paragraph (f) with the text of standards that ensure full and adequate section 106 of the National Historic section 102(2)(C) of NEPA, including consideration of environmental issues; Preservation Act under 36 CFR 800.8. with regard to fees. CEQ also proposes (2) there is public participation before a In response to the ANPRM, to update and modernize § 1506.7, final alternative is selected; and (3) a commenters urged CEQ to allow greater ‘‘Further guidance,’’ to state that CEQ purpose of the review that the agency is flexibility for the project sponsor may provide further guidance conducting is to examine environmental (including private entities) to participate concerning NEPA and its procedures issues. CEQ proposes § 1506.9 to in the preparation of the NEPA consistent with applicable Executive promote efficiency and reduce documents under the supervision of the Orders. duplication in the assessment of lead agency. An update to § 1506.5, CEQ proposes to consolidate the regulatory proposals. ‘‘Agency responsibility for legislative EIS requirements from the The analyses must address the environmental documents,’’ would give definition of legislation in the current detailed statement requirements agencies more flexibility with respect to 40 CFR 1508.17 into § 1506.8, specified in section 102(2)(C) of NEPA. the preparation of environmental ‘‘Proposals for legislation,’’ and revise More specifically, when those analyses documents while continuing to require the provision for clarity. Agencies address environmental effects, agencies to independently evaluate and prepare legislative EISs for Congress alternatives, the relationship between take responsibility for those documents. when they are proposing specific short-term uses and long-term Applicants and contractors would be actions such as a legislative proposal for productivity, and any irreversible able to assume a greater role in the withdrawal of public lands for commitments of resources, these contributing information and material to military use. See, e.g., Nevada Test and analyses may serve as functional the preparation of environmental Training Range Military Land equivalents for an EIS. Further, these documents, subject to the supervision of Withdrawal Legislative Environmental analyses must balance a clear and the agency. However, agencies would Impact Statement, Environmental express environmental protection remain responsible for taking reasonable Impact Statements; Notice of purpose with any other variables under steps to ensure the accuracy of Availability, 83 FR 54105 (Oct. 26, consideration, such as economic needs. information prepared by applicants and 2018). Finally, that balance must anticipate the contractors. If a contractor or applicant CEQ also invites comment on whether advantages and disadvantages of the prepares the document, paragraph (c)(1) the legislative EIS requirement should preparation of a separate EIS. would require the decision-making be eliminated or modified because the CEQ invites comments on additional agency official to provide guidance, President proposes legislation, and analyses agencies are already participate in the preparation, therefore it is inconsistent with the conducting that, in whole or when independently evaluate the statement, Recommendations Clause of the U.S. aggregated, can serve as the functional and take responsibility for its content. Constitution, which provides the equivalent of the EIS. Aspects of the These changes are intended to improve President shall recommend for E.O. 12866 cost benefit analysis may communication between proponents of Congress’ consideration ‘‘such naturally overlap with aspects of the a proposal for agency action and the [m]easures as he shall judge necessary EIS. officials tasked with evaluating the and expedient . . . .’’ U.S. Constitution, CEQ also proposes to update effects of the action and reasonable Art. II, § 3. The President is not a § 1506.10, ‘‘Filing requirements,’’ to alternatives, to improve the quality of Federal agency, 40 CFR 1508.12, and the remove the obsolete process for filing NEPA documents and efficiency of the proposal of legislation by the President paper copies of EISs with EPA and NEPA process. is not an agency action. Franklin v. EPA’s delivery of a copy to CEQ, and CEQ also proposes to update § 1506.6, Mass., 505 U.S. 788, 800–01 (1992). instead provide for electronic filing, ‘‘Public involvement,’’ to give agencies CEQ also proposes to add a new consistent with EPA’s procedures. This greater flexibility to design and § 1506.9, ‘‘Proposals for regulations,’’ to proposed change would provide customize public involvement to best address the analyses required for flexibility to adapt as EPA changes its meet the specific circumstances of their rulemakings. This section would clarify processes. proposed actions. Proposed revisions to that analyses prepared pursuant to other A proposed clause in paragraph (b) paragraph (b)(2) would clarify that statutory or Executive Order would acknowledge the statutory agencies may notify any organizations requirements may serve as the requirement of some agencies to issue a that have requested regular notice. functional equivalent of the EIS and be combined final EIS and ROD. See 23 Proposed paragraph (b)(3)(x) would sufficient to comply with NEPA. CEQ U.S.C. 139(n)(2) and 49 U.S.C. 304a(b). provide for notice through electronic proposes in § 1507.3(b)(6) to allow Proposed paragraph (c) addresses when media, but clarify that agencies may not agencies to identify in their agency limit public notification to solely NEPA procedures documents prepared 73 58 FR 51735 (Oct. 4, 1993).

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agencies may make an exception to the senior agency official responsible for NEPA procedures, as necessary, to current rules set forth in paragraph (b) coordination, communication, and implement the CEQ regulations. CEQ on timing for issuing a ROD. compliance with NEPA, including also proposes to eliminate the Over the last 40 years, CEQ has resolving implementation issues and limitations on paraphrasing the CEQ developed significant experience with representing the agency analysis of the regulations. Agency NEPA procedures NEPA in the context of emergencies and effects of agency actions on the human should set forth the process by which disaster recoveries. Actions following environment in agency decision-making agencies will comply with NEPA and Hurricanes Katrina, Harvey, and processes. The proposed § 1507.2(a) the CEQ regulations in the context of Michael, as well as catastrophic would make the senior agency official their particular programs and processes. wildfires, have given CEQ the responsible for addressing disputes In addition, CEQ proposes to clarify that opportunity to explore a variety of among lead and cooperating agencies except as otherwise provided by law or circumstances where alternative and enforcing page and time limits. The for agency efficiency, agency NEPA arrangements for complying with NEPA senior agency official would be procedures shall not impose additional are necessary. CEQ proposes to amend responsible for ensuring all procedures or requirements beyond § 1506.12, ‘‘Emergencies,’’ to clarify that environmental documents—even those set forth in the CEQ regulations. alternative arrangements are still meant exceptionally lengthy ones—are CEQ proposes to subdivide paragraph to comply with section 102(2)(C)’s provided to Federal agency decision (a) into subparagraphs (1) and (2) for requirement for a ‘‘detailed statement.’’ makers in a timely, readable, and useful additional clarity because each of these This amendment is consistent with format. CEQ also proposes to clarify in is an independent requirement. CEQ CEQ’s longstanding position that it has the introductory paragraph that in proposes to eliminate the no authority to exempt Federal agencies NEPA compliance an agency may use recommendation to agencies to issue from compliance with NEPA, but that the ‘‘the resources of other agencies, explanatory guidance and the CEQ can appropriately provide for applicants, and other participants in the requirement to review their policies and exceptions to specific requirements of NEPA process,’’ for which the agency procedures because the responsibility to CEQ’s regulations implementing the should account. CEQ proposes to amend revise procedures would be addressed procedural provisions of NEPA to paragraph (c) to emphasize agency in paragraph (a). address extraordinary circumstances cooperation, which would include Consistent with the proposed edits to that are not addressed by agency commenting. Finally, CEQ proposes to § 1500.1, CEQ proposes to revise implementing procedures previously add references to E.O. 11991, which paragraph (b) to clarify that agencies approved by CEQ. See Emergencies amended E.O. 11514, and E.O. 13807 in should ensure decisions are made in Guidance, supra note 19. CEQ maintains paragraph (f) to codify agencies’ accordance with the Act’s procedural a public description of all pending and responsibility to comply with the Order. requirements and policy of integrating completed alternative arrangements on In developing their procedures, NEPA with other environmental reviews its website.74 agencies should strive to identify and to promote efficient and timely decision Finally, CEQ proposes to modify apply efficiencies, such as use of making. CEQ proposes a new paragraph § 1506.13, ‘‘Effective date,’’ to clarify applicable CEs, adoption of prior NEPA (b)(6) to encourage agencies to set forth that this regulation would apply to all analyses, and incorporation by reference in their NEPA procedures requirements NEPA processes begun after the to prior relevant Federal, State, Tribal, to combine their NEPA documents with effective date, but agencies have the and local analyses, wherever other agency documents, especially discretion to apply it to ongoing practicable. To facilitate effective and where the same or similar analyses are reviews. CEQ also proposes to remove efficient procedures, CEQ proposes to required for compliance with other the 1979 effective date of the current consolidate all of the requirements for requirements. Many agencies implement regulations and the reference to the agency NEPA procedures in § 1507.3 statutes that call for consideration of 1973 guidance in the current paragraph and add a new § 1507.4 to provide the alternatives to the agency proposal, (a) and strike the current paragraph (b) means of publishing information on including the no action alternative, the regarding actions begun before January ongoing NEPA reviews and agency effects of the agencies’ proposal and 1, 1970 because they are obsolete. records relating to NEPA reviews. This alternatives, and public involvement. includes moving the provisions in Agencies can use their NEPA I. Proposed Revisions to Agency § 1505.1, ‘‘Agency decision making procedures to align compliance with Compliance (Part 1507) procedures,’’ to proposed § 1507.3(b); NEPA and these other statutory CEQ proposes modifications to part moving the requirement to provide for authorities, including provisions for 1507, which addresses agency extraordinary circumstances currently page and time limits that integrate compliance with NEPA. The proposed in 40 CFR 1508.4 to proposed NEPA’s goals for informed decision changes would consolidate provisions § 1507.3(d)(2)(ii); moving the making with agencies’ specific statutory relating to agency procedures from requirement to adopt procedures for requirements. This approach is elsewhere in the CEQ regulations, and introducing a supplement into the consistent with some agency practice, add a new section to address the agency’s administrative record from 40 but more agencies could use it to dissemination of information about CFR 1502.9(d)(3) to proposed achieve greater efficiency and reduce agency NEPA programs. A proposed § 1507.3(d)(3); and moving the unnecessary duplication. See, e.g., 36 change to § 1507.1, ‘‘Compliance,’’ allowance to combine the agency’s EA CFR part 220 (U.S. Forest Service NEPA would strike the second sentence for process with its scoping process from 40 procedures). consistency with changes to the CFR 1501.7(b)(3) to proposed Under the proposed § 1507.3(b)(6), provisions for agency NEPA procedures § 1507.3(e)(4). agencies may document any agency at § 1507.3. A proposed change to CEQ also proposes several revisions to determination that compliance with the paragraph (a) of § 1507.2, ‘‘Agency § 1507.3. Revised paragraph (a) would environmental review requirements of capability to comply,’’ would make the provide agencies the later of 1 year after other statutes or Executive Orders serves publication of the final rule or 9 months as the functional equivalent of NEPA 74 https://ceq.doe.gov/nepa-practice/alternative_ after the establishment of an agency to compliance by identifying that (1) there arrangements.html. develop or revise proposed agency are substantive and procedural

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standards that ensure full and adequate regulations should include to ensure the move the operative language included consideration of environmental issues; appropriate application of an agency’s throughout the definitions sections to (2) there is public participation before a CE to another agency’s action. the relevant substantive sections of the final alternative is selected; and (3) a Finally, the proposed § 1507.4, regulations. purpose of the review that the agency is ‘‘Agency NEPA program information,’’ New definition of ‘‘authorization.’’ conducting is to examine environmental would require agencies in their NEPA CEQ proposes to define the term issues. While the courts have found that implementing procedures to provide for ‘‘authorization’’ to refer to the types of EPA need not conduct NEPA analyses a website or other means of publishing activities that might be required for under a number of statutes that are certain information on ongoing NEPA permitting a proposed action, in ‘‘functionally equivalent,’’ including the reviews and maintaining and permitting particular infrastructure projects. This Clean Air Act, the Ocean Dumping Act, public access to agency records relating definition is consistent with the the Federal Insecticide, Fungicide, and to NEPA reviews. This provision would definition included in FAST–41 and Rodenticide Act, the Resource promote transparency and efficiency in E.O. 13807. Conservation and Recovery Act, and the the NEPA process, and improve Clarifying the meaning of ‘‘categorical Comprehensive Environmental interagency coordination by ensuring exclusion.’’ CEQ proposes to revise the Response, Compensation, and Liability that information is more readily definition of categorical exclusion by Act, CEQ proposes that the concept of available to other agencies and the inserting ‘‘normally’’ to clarify that there functional equivalency be extended to public. may be situations where an action may other agencies that conduct analyses to Opportunities exist for agencies to have significant effects on account of examine environmental issues. combine existing geospatial data, extraordinary circumstances. CEQ also Furthermore, CEQ proposes to add a including remotely sensed images, and proposes to strike ‘‘individually or new paragraph (c), which would analyses to streamline environmental cumulatively’’ for consistency with the provide that agencies may identify review and better coordinate proposed revisions to the definition of actions that are not subject to NEPA in development of environmental ‘‘effects’’ discussed below. CEQ their agency NEPA procedures, documents for multi-agency projects, proposes conforming edits in including (1) non-major Federal actions; consistent with the OFD policy. One §§ 1500.4(a) and 1500.5(a). As noted in (2) non-discretionary actions, in whole option involves creating a single NEPA section II.I, CEQ proposes to move the or in part; (3) actions expressly exempt application that facilitates consolidation requirement to provide for extraordinary from NEPA under another statute; (4) of existing datasets and can run several circumstances in agency procedures to actions for which compliance with relevant geographic information system § 1507.3(d)(2)(ii). Clarifying the meaning of NEPA would clearly and fundamentally (GIS) analyses to help standardize the ‘‘cooperating agency.’’ CEQ proposes to conflict with the requirements of production of robust analytical results. amend the definition of cooperating another statute; and (5) actions for This application could have a public- agency to make clear that a State, Tribal, which compliance with NEPA would be facing component modeled along the or local agency may be a cooperating inconsistent with Congressional intent lines of EPA’s NEPAssist,75 which due to the requirements of another agency when the lead agency agrees, would aid prospective project sponsors and to move the corresponding statute. These changes would conform with site selection and project design to the new § 1501.1, ‘‘NEPA threshold operative language to proposed and increase public transparency. The § 1501.8(a). applicability analysis,’’ section, which application could link to the Permitting provides five considerations in Clarifying the meaning of ‘‘effects.’’ Dashboard to help facilitate project determining whether NEPA applies to a Many commenters have urged CEQ to tracking and flexibilities under proposed action. refine the definition of effects. CEQ proposes to amend paragraph §§ 1506.5 and 1506.6. CEQ invites Commenters raised concerns that the (d)(2)(ii) to require agencies to identify comment on this proposal, including current definition creates confusion, in their procedures when comment on whether additional and that the terms ‘‘indirect’’ and documentation of a CE determination is regulatory changes could help facilitate ‘‘cumulative’’ have been interpreted required. CEQ proposes to add language streamlined GIS analysis to help expansively resulting in excessive to paragraph (e)(3) to codify existing agencies comply with NEPA. documentation about speculative effects agency practice to publish notices when J. Proposed Revisions to Definitions and leading to frequent litigation. it pauses an EIS or withdraws an NOI. (Part 1508) Commenters also have raised concerns Finally, CEQ proposes to add a new that this has expanded the scope of CEQ proposes significant revisions to paragraph (e)(5) that would allow NEPA analysis without serving NEPA’s agencies to establish a process in their part 1508. CEQ proposes to clarify the purpose of informed decision making. agency NEPA procedures whereby the definitions of a number of key NEPA Commenters stressed that the focus of agency may apply a CE listed in another terms in order to reduce ambiguity, both the effects analysis should be on those agency’s NEPA procedures. Such through modification of existing effects that are reasonably foreseeable, procedure would set forth the process definitions and the addition of new related to the proposed action under by which the agency would consult definitions. CEQ also proposes to consideration, and subject to the with the agency that listed the CE in its eliminate individual section numbers agency’s jurisdiction and control. NEPA procedures to ensure that the for each term in favor of an alphabetical Commenters also noted that NEPA application of the CE is consistent with list of defined terms in the revised practitioners often struggle with the originating agency’s intent and § 1508.1. CEQ proposes conforming describing cumulative impacts despite practice. edits to remove citations to the specific numerous publications on the topic. CEQ invites comment on whether it definition sections throughout the While NEPA refers to environmental should specifically allow an agency to proposed rule. Finally, CEQ proposes to impacts and environmental effects, it apply a categorical exclusion does not subdivide the terms into direct, 75 https://nepassisttool.epa.gov/nepassist/ established in another agency’s NEPA nepamap.aspx. See also the Marine Cadastre, which indirect, or cumulative. To address procedures to its proposed action. CEQ provides consolidated GIS information for offshore commenters’ concerns and reduce invites comment on any process its actions, https://marinecadastre.gov/. confusion and unnecessary litigation,

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CEQ proposes to make amendments to the decision maker’s consideration can Clarifying the meaning of ‘‘Federal simplify the definition of effects by lead to encyclopedic documents that agency.’’ CEQ proposes to amend the consolidating the definition into a single include information that is irrelevant or definition of ‘‘Federal agency’’ to paragraph and striking the specific inconsequential to the decision-making broaden it to include States, Tribes, and references to direct, indirect, and process. Instead, agencies should focus units of local government to the extent cumulative effects. their efforts on analyzing effects that are that they have assumed NEPA In particular, CEQ proposes to amend most likely to be potentially significant responsibilities from a Federal agency the definition of effects to provide and be effects that would occur as a pursuant to statute. Since the issuance clarity on the bounds of effects result of the agency’s decision. Agencies of the CEQ regulations, Congress has consistent with the Supreme Court’s are not expected to conduct exhaustive authorized assumption of NEPA holding in Department of research on identifying and categorizing responsibilities in other contexts Transportation v. Public Citizen, 541 actions beyond the agency’s control. besides the Housing and Community U.S. at 767–68. Under the proposed With this proposed change and the Development Act of 1974. See, e.g., definition, effects must be reasonably proposed elimination of the definition Surface Transportation Project Delivery foreseeable and have a reasonably close of cumulative impacts, it is CEQ’s intent Program, 23 U.S.C. 327. This change causal relationship to the proposed to focus agencies on analysis of effects would acknowledge these programs and action or alternatives; a ‘‘but for’’ causal that are reasonably foreseeable and have help clarify roles and responsibilities. relationship is insufficient to make an a reasonably close causal relationship to Clarifying the meaning of ‘‘human agency responsible for a particular effect the proposed action. environment.’’ CEQ proposes to change under NEPA. This close causal To further assist agencies in their ‘‘people’’ to ‘‘present and future relationship is analogous to proximate assessment of significant effects, CEQ generations of Americans’’ consistent cause in tort law. Id. at 767; see also also proposes to clarify that effects with section 101(a) of NEPA. Metro. Edison Co., 460 U.S. at 774 should not be considered significant if Clarifying the meaning of ‘‘lead (interpreting section 102 of NEPA to they are remote in time, geographically agency.’’ CEQ proposes to amend the require ‘‘a reasonably close causal remote, or the result of a lengthy causal definition of lead agency to clarify that relationship between a change in the chain. See, e.g., Pub. Citizen, 541 U.S. this term includes joint lead agencies, physical environment and the effect at at 767–68 (‘‘In particular, ‘courts must which are an acceptable practice. issue’’ and stating that ‘‘[t]his look to the underlying policies or Clarifying the meaning of requirement is like the familiar doctrine legislative intent in order to draw a ‘‘legislation.’’ CEQ proposes to move the of proximate cause from tort law.’’). manageable line between those causal operative language to § 1506.8 and strike CEQ seeks comment on whether to changes that may make an actor the example of treaties, because, as include in the definition of effects the responsible for an effect and those that noted in section II.H, the President is concept that the close causal do not.’ ’’ (quoting Metro. Edison Co., not a Federal agency, and therefore a relationship is ‘‘analogous to proximate 460 U.S. at 774 n.7)); Metro. Edison Co., request for ratification of a treaty would cause in tort law,’’ and if so, how CEQ 460 U.S. at 774 (noting effects may not not be subject to NEPA. could provide additional clarity fall within section 102 of NEPA because Clarifying the meaning of ‘‘major regarding the meaning of this phrase. ‘‘the causal chain is too attenuated’’). To Federal action.’’ CEQ received many CEQ proposes to strike the definition reinforce CEQ’s proposed simplified comments requesting clarification of the of cumulative impacts and strike the definition of effects, CEQ proposes to definition of major Federal action. For terms ‘‘direct’’ and ‘‘indirect’’ in order consolidate paragraphs (a), (b), and (d) example, CEQ received comments to focus agency time and resources on of 40 CFR 1502.16, ‘‘Environmental proposing that non-Federal projects considering whether an effect is caused consequences,’’ into a new should not be considered major Federal by the proposed action rather than on § 1502.16(a)(1). actions based on a very minor Federal categorizing the type of effect. CEQ’s Further, CEQ proposes to codify a key role. Commenters also recommended proposed revisions to simplify the holding of Public Citizen relating to the that CEQ clarify the definition to definition are intended to focus agencies definition of effects to make clear that exclude decisions where agencies do on consideration of effects that are effects do not include effects that the not have discretion to consider and reasonably foreseeable and have a agency has no authority to prevent or potentially modify their actions based reasonably close causal relationship to would happen even without the agency on the environmental review. the proposed action. In practice, action, because they would not have a CEQ proposes to amend the first substantial resources have been devoted sufficiently close causal connection to sentence of the definition to clarify that to categorizing effects as direct, indirect, the proposed action. This clarification an action meets the definition if it is and cumulative, which, as noted above, will help agencies better understand subject to Federal control and are not terms referenced in the NEPA what effects they need to analyze and responsibility, and it has effects that statute. discuss, helping to reduce delays and may be significant. CEQ proposes to In addition, CEQ proposes a change in paperwork with unnecessary analyses. replace ‘‘major’’ effects with position to state that analysis of CEQ invites comment on the ‘‘significant’’ in this sentence to align cumulative effects, as defined in CEQ’s proposed revisions to the definition of with the NEPA statute. current regulations, is not required effects, including whether CEQ should CEQ proposes to strike the second under NEPA. While CEQ has issued affirmatively state that consideration of sentence of the definition, which detailed guidance on considering indirect effects is not required. provides ‘‘Major reinforces but does not cumulative effects, categorizing and Clarifying the meaning of have a meaning independent of determining the geographic and ‘‘environmental assessment.’’ CEQ significantly.’’ This is a change in temporal scope of such effects has been proposes to revise the definition of position as compared to CEQ’s earlier difficult and can divert agencies from environmental assessment, describing interpretation of NEPA. In the statute, focusing their time and resources on the the purpose for the document and Congress refers to ‘‘major Federal most significant effects. Excessively moving all of the operative language actions significantly affecting the lengthy documentation that does not from the definition to proposed quality of the human environment.’’ 42 focus on the most meaningful issues for § 1501.5. U.S.C. 4332(2)(C). Under the current

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interpretation, however, the word CEQ also proposes to strike the third problem.’’ 77 Commenters should ‘‘major’’ is rendered virtually sentence of the definition, which provide any relevant data that may meaningless. includes a failure to act in the definition assist in identifying such categories of CEQ proposes to strike the sentence of a major Federal action, and exclude activities. Finally, as noted in the because all words of a statute must be activities that do not result in final discussion of § 1501.4, CEQ invites given meaning consistent with agency action under the APA. NEPA comment on whether and how to longstanding principles of statutory applies when agencies are considering a exclude certain categories of actions interpretation. See, e.g., Bennett, 520 proposal for decision. In the common to all Federal agencies from the U.S. at 173 (‘‘It is the ‘ ‘‘cardinal circumstance described in this sentence, definition. principle of statutory construction’’ . . . there is no proposed action and CEQ also proposes to insert [that] it is our duty ‘‘to give effect, if therefore no alternatives that the agency ‘‘implementation of’’ before ‘‘treaties’’ in possible, to every clause and word of a may consider. S. Utah Wilderness All., paragraph (b)(1) to clarify that the major statute’’ . . . rather than to emasculate 542 U.S. at 70–73. Federal action is not the treaty itself, but an entire section.’ ’’ (quoting United CEQ also proposes to strike the rather an agency’s action to implement States v. Menasche, 348 U.S. 528, 538 specific reference to the State and Local that treaty. Further, CEQ proposes to (1955))). The legislative history of NEPA Fiscal Assistance Act of 1972 from strike ‘‘guide’’ from paragraph (b)(2) also reflects that Congress used the term paragraph (a). The proposed revisions to because guidance is non-binding. CEQ also invites comment on whether ‘‘major’’ independently of the definition clarify that general the regulations should clarify that NEPA ‘‘significantly,’’ and provided that, for revenue sharing funds would not meet does not apply extraterritorially, major actions, agencies should make a the definition of major Federal action. In consistent with Kiobel v. Royal Dutch determination as to whether the particular, CEQ proposes to exclude as Petroleum Co., 569 U.S. 108, 115–16 proposal would have a significant non-major Federal actions the farm (2013), in light of the ordinary environmental impact. Specifically, the ownership and operating loan presumption against extraterritorial Senate Report for the National guarantees provided by the Farm application when a statute does not Environmental Policy Act of 1969 states, Service Agency (FSA) of the U.S. clearly indicate that extraterritorial ‘‘Each agency which proposes any major Department of Agriculture pursuant to 7 U.S.C. 1925 and 1941 through 1949, and application is intended by Congress. actions, such as project proposals, Clarifying the meaning of the business loan guarantee programs of proposals for new legislation, ‘‘mitigation.’’ CEQ proposes to amend the Small Business Administration regulations, policy statements, or the definition of ‘‘mitigation’’ to define (SBA), 15 U.S.C. 636(a), 636(m), and 695 expansion or revision of ongoing the term and clarify that NEPA does not through 697f. Under the farm ownership programs, shall make a determination require adoption of any particular and operating loan programs, FSA does as to whether the proposal would have mitigation measure, consistent with not control the bank, or the borrower; a significant effect upon the quality of Methow Valley, 490 U.S. at 352–53. In the agency does not control the the human environment.’’ S. Rep. No. Methow Valley, the Supreme Court held 91–296, at 20 (1969) (emphasis subsequent use of such funds and does that NEPA and the CEQ regulations added).76 Moreover, over the past four not operate any facilities. In the event of require ‘‘that mitigation be discussed in decades, in a number of cases, courts a default, properties are sold, and FSA sufficient detail to ensure that have determined that NEPA does not never takes physical possession of, environmental consequences have been require the preparation of an EIS for operates, or manages any facility. SBA’s fairly evaluated,’’ but do not establish ‘‘a actions with minimal Federal business loan programs operate in substantive requirement that a complete involvement or funding. Under this similar fashion. Further, under those mitigation plan be actually formulated proposed definition, these would be programs no Federal funds are and adopted’’ before the agency can non-major Federal actions. expended unless there is a default by make its decision. Id. at 352. To clarify that these activities are non- the borrower paying the loan. CEQ also proposes to amend the major Federal actions, CEQ proposes to CEQ invites comment on whether it definition of ‘‘mitigation’’ to make clear add two sentences to the definition to should make any further changes to this that mitigation must have a nexus to the make clear that this term does not paragraph, including changing ‘‘partly’’ effects of the proposed action, is limited include non-Federal projects with to ‘‘predominantly’’ for consistency to those actions that have an effect on minimal Federal funding or minimal with the edits to the introductory the environment, and does not include Federal involvement such that the paragraph regarding ‘‘minimal Federal actions that do not have an effect on the agency cannot control the outcome on funding.’’ CEQ also invites comment environment. This would make the the project. In such circumstances, there whether there should be a threshold NEPA process more effective by is no practical reason for an agency to (percentage or dollar figure) for clarifying that mitigation measures must conduct a NEPA analysis because the ‘‘minimal Federal funding,’’ and if so, actually be designed to mitigate the agency could not influence the outcome what would be an appropriate threshold effects of the proposed action. This of its action to address the effects of the and the basis for such a threshold. CEQ amended definition is consistent with project. For example, this might include also invites comment on whether any CEQ’s Mitigation Guidance, supra note a very small percentage of Federal types of financial instruments, 18. funding provided only to help design an including loans and loan guarantees, Under that guidance, if an agency infrastructure project that is otherwise should be considered non-major Federal believes that the proposed action will funded through private or local funds. actions and the basis for such exclusion. provide net environmental benefits This change would help to reduce costs Additionally, as a general matter, CEQ through use of compensatory mitigation, and delays by more clearly defining the invites comment on whether the the agency should incorporate by kinds of actions that are appropriately definition of ‘‘major Federal action’’ within the scope of NEPA. should be further revised to exclude 77 See Daniel R. Mandelker et al., NEPA Law and other per se categories of activities or to Litigation, § 8:20 (2d ed. 2019) (‘‘This problem is sometimes called the ‘small handle’ problem 76 https://ceq.doe.gov/docs/laws-regulations/ further address what NEPA analysts because [F]ederal action may be only be a ‘small Senate-Report-on-NEPA.pdf. have called ‘‘the small handle handle’ on a non[-F]ederal project.’’).

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reference the documents that strike the operative language regarding ordinary person standard—that is what demonstrate that the proposed timing of an EIS because it is already a person of ordinary prudence would mitigation will be new or in addition to addressed in § 1502.5. consider in reaching a decision. actions that would occur under the no- New definition of ‘‘publish/ New definition of ‘‘senior agency action alternative, and the financial, publication.’’ CEQ proposes to define official.’’ As discussed in section II.A, legal, and management commitments for this term to provide agencies with the the proposed definition of ‘‘senior the mitigation. Use of well-established flexibility to make environmental agency official’’ would provide for mitigation banks and similar reviews and information available to the agency officials that are responsible for compensatory mitigation legal public by electronic means. The 1978 the agency’s NEPA compliance. structures should provide the necessary regulations predate personal computers Striking the definition of substantiation for the agency’s findings and a wide range of technologies now ‘‘significantly.’’ Because the entire on the effectiveness (nexus to effects of used by agencies such as GIS mapping definition of significantly is operative the action, proportionality, and tools and social media. To address language, CEQ proposes to strike this durability) of the mitigation. Other environmental justice concerns and definition and discuss significance in actions may be effectively mitigated ensure that the affected public is not § 1501.4(b), as described above. through use of environmental excluded from the NEPA process due to Clarifying the meaning of ‘‘tiering.’’ management systems that provide a a lack of resources (often referred to as CEQ would amend the definition of structure of procedures and policies to the ‘‘digital divide’’), the definition ‘‘tiering’’ to make clear that agencies systematically identify, evaluate, and retains a provision for printed may use EAs at the programmatic stage manage environmental impacts of an environmental documents where as well as the subsequent stages. This action during its implementation.78 necessary for effective public would clarify that agencies have Clarifying the meaning of ‘‘notice of participation. flexibility in structuring programmatic intent.’’ CEQ proposes to revise the New definition of ‘‘reasonable NEPA reviews and associated tiering. definition of ‘‘notice of intent’’ to alternative.’’ Several commenters asked CEQ would move the operative language remove the operative requirements for CEQ to include a new definition of regarding tiering from 40 CFR 1508.28 the NOI and add the word ‘‘public’’ to ‘‘reasonable alternatives’’ in the to proposed § 1501.11(b). clarify that the NOI is a public notice. regulations with emphasis on how New definition of ‘‘page.’’ A new technical and economic feasibility K. CEQ Guidance Documents definition of ‘‘page’’ would provide a should be evaluated. CEQ proposes a This proposed rule, if adopted as a word count (500 words) for a more new definition of ‘‘reasonable final rule, would supersede any standard functional definition of ‘‘page’’ alternative’’ that would provide that previous CEQ NEPA guidance. If CEQ for page count and other NEPA reasonable alternatives must be finalizes the proposed rule, CEQ purposes. This would update NEPA for technically and economically feasible anticipates withdrawing all of the CEQ modern electronic publishing and and meet the purpose and need of the NEPA guidance that is currently in internet formatting, in which the proposed action. See, e.g., Vt. Yankee, effect and issuing new guidance as number of words per page can vary 435 U.S. at 551 (‘‘alternatives must be consistent with Presidential directives. widely depending on format. It would bounded by some notion of feasibility’’). L. Additional Issues on Which CEQ also ensure some uniformity in CEQ also proposes to define reasonable Invites Comment document length while allowing alternatives as ‘‘a reasonable range of unrestricted use of the graphic display alternatives’’ to codify Questions 1a and Based on comments received and of quantitative information, tables, 1b in the Forty Questions, supra note CEQ’s experience in implementing photos, maps, and other geographic 10. Agencies are not required to give NEPA, the final rule may include information that can provide a much detailed consideration to alternatives amendments to any provisions in parts more effective means of conveying that are unlikely to be implemented 1500 to 1508 of the CEQ regulations. information about environmental because they are infeasible, ineffective, CEQ invites comments recommending, effects. This change supports the or inconsistent with the purpose and opposing, or providing feedback on original CEQ page limits as a means of need for agency action. specific changes to any provisions in ensuring that environmental documents Finally, CEQ proposes to clarify that parts 1500 to 1508 of the CEQ are readable and useful to decision a reasonable alternative must also regulations, including revising or makers. consider the goals of the applicant when adopting as regulations existing CEQ New definition of ‘‘participating the agency’s action involves a non- guidance or handbooks. agency.’’ As discussed above, CEQ Federal entity. These changes would Further, CEQ received comments proposes to add the concept of a help reduce paperwork and delays by requesting that the regulations address participating agency to the CEQ helping to clarify the range of analysis of greenhouse gas emissions regulations. CEQ proposes to define alternatives that agencies must consider. and potential climate change impacts. participating agency consistent with the Where the agency action is in response CEQ has proposed guidance titled definition in FAST–41 and 23 U.S.C. to an application for permit or other ‘‘Draft National Environmental Policy 139. CEQ proposes to add participating authorization, the agency should Act Guidance on Consideration of agencies to § 1501.7(i) regarding the consider the applicant’s goals based on Greenhouse Gas Emissions’’ 79 to schedule and replace the term the agency’s statutory authorization to address how NEPA analyses should ‘‘commenting’’ agencies with act, as well as in other congressional address greenhouse gas (GHG) ‘‘participating’’ agencies throughout. directives, in defining the proposed emissions. CEQ does not consider it Clarifying the meaning of ‘‘proposal.’’ action’s purpose and need. appropriate to address a single category CEQ proposes clarifying edits and to New definition of ‘‘reasonably of impacts in the regulations. If CEQ foreseeable.’’ CEQ received comment finalizes this proposal, CEQ would 78 See Council on Environmental Quality, requesting that the regulations provide a review the draft GHG guidance for Aligning National Environmental Policy Act definition of ‘‘reasonably foreseeable.’’ Processes with Environmental Management potential revisions consistent with the Systems (April 2007), https://ceq.doe.gov/docs/ceq- CEQ proposes to define ‘‘reasonably publications/NEPA_EMS_Guide_final_Apr2007.pdf. foreseeable’’ consistent with the 79 84 FR 30097 (June 26, 2019).

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regulations. However, CEQ invites C. National Environmental Policy Act policy that has Tribal implications, the comments on whether it should codify This proposed rule, if finalized, proposal does, in part, respond to Tribal any aspects of its proposed GHG would assist agencies in fulfilling their government comments supporting guidance in the regulation, and if so, responsibilities under NEPA, but would expansion of the recognition of the how CEQ should address them in the not make any final determination of sovereign rights, interests, and expertise regulations. what level of NEPA analysis is required of Tribes in the NEPA process and CEQ If proposed changes to the CEQ for particular actions. The CEQ regulations implementing NEPA. regulations provided in comments on regulations do not require agencies to In its ANPRM, CEQ included a the ANPRM, or on the proposed GHG prepare a NEPA analysis before specific question regarding the guidance, are not reflected in this establishing or updating agency representation of Tribal governments in proposal, and the commenter would like procedures for implementing NEPA. the NEPA process. See ANPRM to advance those proposals in comments While CEQ prepared environmental Question 18 (‘‘Are there ways in which to the NPRM, CEQ requests that the assessments for its promulgation of the the role of [T]ribal governments in the commenter specifically identify and CEQ regulations in 1978 and its NEPA process should be clarified in reference to the prior comment. amendments to 40 CFR 1502.22 in 1986, CEQ’s NEPA regulations, and if so, in the development of this proposed how?’’). More generally, CEQ’s ANPRM Finally, CEQ invites comment on rule, CEQ has determined that the sought the views of Tribal governments whether to update references to proposed rule would not have a and others on regulatory revisions that ‘‘Council’’ in the regulation to ‘‘CEQ’’ significant effect on the environment CEQ could propose to improve Tribal throughout the rule. because it would not authorize any participation in Federal NEPA III. Rulemaking Analyses and Notices activity or commit resources to a project processes. See ANPRM Question 2 that may affect the environment. (‘‘Should CEQ’s NEPA regulations be A. Executive Order 12866, Regulatory Therefore, CEQ does not intend to revised to make the NEPA process more Planning and Review; Executive Order conduct a NEPA analysis of this efficient by better facilitating agency use 13563, Improving Regulation and proposed rule for the same reason that of environmental studies, analysis, and Regulatory Review; and Executive Order CEQ does not require any Federal decisions conducted in earlier Federal, 13771, Reducing Regulation and agency to conduct NEPA analysis for the State, Tribal or local environmental Controlling Regulatory Costs development of agency procedures for reviews or authorization decisions, and the implementation of NEPA and the if so, how?’’). As discussed section II.A, This proposed rule is a significant CEQ regulations. CEQ now proposes to amend its regulatory action that was submitted to regulations to further support the Office of Management and Budget D. Executive Order 13132, Federalism coordination with Tribal governments (OMB) for review. The docket for this E.O. 13132 requires agencies to and agencies and analysis of a proposed rulemaking documents any changes develop an accountable process to action’s potential effects on Tribal made in response to OMB ensure meaningful and timely input by lands, resources, or areas of historic recommendations as required by section State and local officials in the significance as an important part of 6 of E.O. 12866. development of regulatory policies that Federal agency decision making. In have federalism implications.81 Policies addition to these proposed revisions of B. Regulatory Flexibility Act and that have federalism implications the CEQ Regulations, CEQ is inviting Executive Order 13272, Proper include regulations that have substantial comment on other CEQ guidance that Consideration of Small Entities in direct effects on the States, on the warrants codification. See, e.g., CEQ Agency Rulemaking relationship between the national Memorandum titled ‘‘Designation of government and the States, or on the The Regulatory Flexibility Act, as Non-Federal Agencies to be Cooperating distribution of power and amended, (RFA), 5 U.S.C. 601 et seq., Agencies in Implementing the responsibilities among the various and E.O. 13272 80 require agencies to Procedural Requirements of the levels of government. CEQ does not assess the impacts of proposed and final National Environmental Policy Act’’ 83 anticipate that this proposed rule has rules on small entities. Under the RFA, (July 28, 1999) encouraging more active small entities include small businesses, federalism implications because it applies to Federal agencies, not States. solicitation of Tribal entities for small organizations, and small participation as cooperating agencies in governmental jurisdictions. An agency E. Executive Order 13175, Consultation NEPA documents. must prepare an Initial Regulatory and Coordination With Indian Tribal Flexibility Analysis (IRFA) unless it Governments F. Executive Order 12898, Federal Actions To Address Environmental determines and certifies that a proposed E.O. 13175 requires agencies to have rule, if promulgated, would not have a Justice in Minority Populations and a process to ensure meaningful and Low-Income Populations significant economic impact on a timely input by Tribal officials in the substantial number of small entities. development of policies that have Tribal E.O. 12898 requires agencies to make The proposed rule would not directly implications.82 Such policies include achieving environmental justice part of regulate small entities. Rather, the regulations that have substantial direct its mission by identifying and proposed rule applies to Federal effects on one or more Indian Tribes, on addressing, as appropriate, agencies and sets forth the process for the relationship between the Federal disproportionately high and adverse their compliance with NEPA. Government and Indian Tribes, or on human health or environmental effects Accordingly, CEQ hereby certifies that the distribution of power and of its programs, policies, and activities the proposed rule, if promulgated, will responsibilities between the Federal on minority populations and low- not have a significant economic impact Government and Indian Tribes. While income populations.84 CEQ has on a substantial number of small the proposed rule is not a regulatory entities. 83 https://ceq.doe.gov/docs/ceq-regulations-and- 81 64 FR 43255 (Aug. 10, 1999). guidance/regs/ceqcoop.pdf. 80 67 FR 53461 (Aug. 16, 2002). 82 65 FR 67249 (Nov. 9, 2000). 84 59 FR 7629 (Feb. 16, 1994).

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analyzed this proposed rule and any unfunded mandate, or otherwise human environment. The purpose and determined that it would not cause have any effect on small governments function of NEPA is satisfied if Federal disproportionately high and adverse subject to the requirements of 2 U.S.C. agencies have considered relevant human health or environmental effects 1531–1538. environmental information and the on minority populations and low- public has been informed regarding the J. Paperwork Reduction Act income populations. This rule would set decision making process. NEPA does forth implementing regulations for This proposed rule does not impose not mandate particular results or NEPA; it is in the agency any new information collection burden substantive outcomes. NEPA’s purpose implementation of NEPA when that would require additional review or is not to generate paperwork or conducting reviews of proposed agency approval by OMB under the Paperwork litigation, but to provide for informed actions where consideration of Reduction Act (PRA), 44 U.S.C. 3501 et decision making and foster excellent environmental justice effects typically seq. action. occurs. List of Subjects in 40 CFR Parts 1500 (b) The regulations in parts 1500 through 1508 implement section 102(2) G. Executive Order 13211, Actions Through 1508 of NEPA. They provide direction to Concerning Regulations That Administrative practice and Federal agencies to determine what Significantly Affect Energy Supply, procedure; Environmental impact actions are subject to NEPA’s procedural Distribution, or Use statements; Environmental protection; requirements and the level of NEPA Agencies must prepare a Statement of Natural resources. review where applicable. These Energy Effects for significant energy Dated: December 23, 2019. regulations are intended to ensure that 85 actions under E.O. 13211. This Mary B. Neumayr, relevant environmental information is proposed rule is not a ‘‘significant Chairman. identified and considered early in the energy action’’ because it is not likely to process in order to ensure informed have a significant adverse effect on the For the reasons discussed in the decision making by Federal agencies. supply, distribution, or use of energy. preamble, the Council on The regulations are also intended to Environmental Quality proposes to ensure that Federal agencies conduct H. Executive Order 12988, Civil Justice amend parts 1500 through 1508 in title Reform environmental reviews in a coordinated, 40 of the Code of Federal Regulations to consistent, predictable and timely 86 Under section 3(a) E.O. 12988, read as follows: manner, and to reduce unnecessary agencies must review their proposed ■ 1. Revise part 1500 to read as follows: burdens and delays. Finally, the regulations to eliminate drafting errors regulations promote concurrent and ambiguities, draft them to minimize PART 1500—PURPOSE AND POLICY environmental reviews to ensure timely litigation, and provide a clear legal and efficient decision making. standard for affected conduct. Section Sec. 1500.1 Purpose and policy. § 1500.2 [Reserved] 3(b) provides a list of specific issues for 1500.2 [Reserved] review to conduct the reviews required 1500.3 NEPA compliance. § 1500.3 NEPA compliance. by section 3(a). CEQ has conducted this 1500.4 Reducing paperwork. (a) Mandate. Parts 1500 through 1508 review and determined that this 1500.5 Reducing delay. proposed rule complies with the 1500.6 Agency authority. of this title are applicable to and requirements of E.O. 12988. binding on all Federal agencies for Authority: 42 U.S.C. 4321–4347; 42 U.S.C. implementing the procedural provisions I. Unfunded Mandate Reform Act 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 of the National Environmental Policy FR 4247, Mar. 7, 1970, as amended by E.O. Section 201 of the Unfunded 11991, 42 FR 26967, May 25, 1977; and E.O. Act of 1969, as amended (Pub. L. 91– Mandates Reform Act of 1995 (2 U.S.C. 13807, 82 FR 40463, Aug. 24, 2017. 190, 42 U.S.C. 4321 et seq.) (NEPA or 1531) requires Federal agencies to assess the Act), except where compliance the effects of their regulatory actions on § 1500.1 Purpose and policy. would be inconsistent with other State, local, and Tribal governments, (a) The National Environmental statutory requirements. These and the private sector to the extent that Policy Act (NEPA) is a procedural regulations are issued pursuant to such regulations incorporate statute intended to ensure Federal NEPA; the Environmental Quality requirements specifically set forth in agencies consider the environmental Improvement Act of 1970, as amended law. Before promulgating a rule that impacts of their actions in the decision- (Pub. L. 91–224, 42 U.S.C. 4371 et seq.); may result in the expenditure by a State, making process. Section 101 of NEPA section 309 of the Clean Air Act, as local, or Tribal government, in the establishes the national environmental amended (42 U.S.C. 7609); Executive aggregate, or by the private sector of policy of the Federal Government to use Order 11514, Protection and $100 million, adjusted annually for all practicable means and measures to Enhancement of Environmental Quality inflation, in any 1 year, an agency must foster and promote the general welfare, (March 5, 1970), as amended by prepare a written statement that assesses create and maintain conditions under Executive Order 11991, Relating to the the effects on State, local, and Tribal which man and nature can exist in Protection and Enhancement of governments and the private sector. 2 productive harmony, and fulfill the Environmental Quality (May 24, 1977); U.S.C. 1532. This proposed rule applies social, economic, and other and Executive Order 13807, Establishing to Federal agencies and would not result requirements of present and future Discipline and Accountability in the in expenditures of $100 million or more generations of Americans. Section Environmental Review and Permitting for State, local, and Tribal governments, 102(2) of NEPA establishes the Process for Infrastructure Projects in the aggregate, or the private sector in procedural requirements to carry out the (August 15, 2017). These regulations any 1 year. This action also does not policy stated in section 101 of NEPA. In apply to the whole of section 102(2) of impose any enforceable duty, contain particular, it requires Federal agencies NEPA. The provisions of the Act and of to provide a detailed statement on these regulations must be read together 85 66 FR 28355 (May 22, 2001). proposals for major Federal actions as a whole to comply with the law. 86 61 FR 4729 (Feb. 7, 1996). significantly affecting the quality of the Agency NEPA procedures to implement

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these regulations shall not impose such stays, consistent with 5 U.S.C. 705. (f) Writing environmental impact additional procedures or requirements Such mechanisms may include the statements in plain language (§ 1502.8). beyond those set forth in these imposition of an appropriate bond (g) Following a clear format for regulations, except as otherwise requirement or other security environmental impact statements provided by law or for agency requirement as a condition for a stay. (§ 1502.10). efficiency. (d) Remedies. Harm from the failure (h) Emphasizing the portions of the (b) Exhaustion. (1) To ensure to comply with NEPA can be remedied environmental impact statement that are informed decision making and reduce by compliance with NEPA’s procedural useful to decision makers and the public delays, agencies shall include a request requirements as interpreted in the (§§ 1502.14 and 1502.15) and reducing for comments on potential alternatives regulations in parts 1500 through 1508. emphasis on background material and impacts, and identification of any These regulations create no (§ 1502.16). relevant information, studies, or presumption that violation of NEPA is (i) Using the scoping process, not only analyses of any kind concerning impacts a basis for injunctive relief or for a to identify significant environmental affecting the quality of the human finding of irreparable harm. These issues deserving of study, but also to environment in the notice of intent to regulations do not create a cause of deemphasize insignificant issues, prepare an environmental impact action or right of action for violation of narrowing the scope of the statement (§ 1501.9). NEPA, which contains no such cause of environmental impact statement process (2) The environmental impact action or right of action. It is the accordingly (§ 1501.9). statement shall include a summary of Council’s intention that any actions to (j) Summarizing the environmental the comments received, including all review, enjoin, stay, or alter an agency impact statement (§ 1502.12). alternatives, information, and analyses decision on the basis of an alleged (k) Using programmatic, policy, or submitted by public commenters for NEPA violation be raised as soon as plan environmental impact statements consideration by the lead and practicable to avoid or minimize any and tiering from statements of broad cooperating agencies in developing the costs to agencies, applicants, or any scope to those of narrower scope, to environmental impact statement affected third parties. It is also the eliminate repetitive discussions of the (§ 1502.17). Council’s intention that minor, non- same issues (§§ 1502.4 and 1501.11). (3) For consideration by the lead and substantive errors that have no effect on (l) Incorporating by reference cooperating agencies, comments must agency decision making shall be (§ 1501.12). be submitted within the comment considered harmless and shall not (m) Integrating NEPA requirements periods provided and shall be as with other environmental review and specific as possible (§§ 1503.1 and invalidate an agency action. (e) Severability. The sections of parts consultation requirements (§ 1502.25). 1503.3). Comments or objections not (n) Requiring comments to be as submitted shall be deemed unexhausted 1501 through 1508 are separate and severable from one another. If any specific as possible (§ 1503.3). and forfeited. Any objections to the (o) Attaching and publishing only section or portion therein is stayed or submitted alternatives, information, and changes to the draft environmental determined to be invalid, or the analyses section (§ 1502.17) shall be impact statement, rather than rewriting applicability of any section to any submitted within 30 days of the notice and publishing the entire statement person or entity is held invalid, it is the of availability of the final environmental when changes are minor (§ 1503.4(c)). Council’s intention that the validity of impact statement. (p) Eliminating duplication with the remainder of those parts shall not be (4) Based on the summary of the State, Tribal, and local procedures, by affected, with the remaining sections to submitted alternatives, information, and providing for joint preparation of continue in effect. analyses section, the decision maker for environmental documents where the lead agency shall certify in the § 1500.4 Reducing paperwork. practicable (§ 1506.2), and with other record of decision that the agency Federal procedures, by providing that considered all of the alternatives, Agencies shall reduce excessive paperwork by: an agency may adopt appropriate information, and analyses submitted by environmental documents prepared by public commenters for consideration by (a) Using categorical exclusions to define categories of actions which do another agency (§ 1506.3). the lead and cooperating agencies in (q) Combining environmental developing the environmental impact not have a significant effect on the human environment and which are documents with other documents statement (§ 1502.18). (§ 1506.4). (c) Actions regarding NEPA therefore exempt from requirements to compliance. It is the Council’s intention prepare an environmental impact § 1500.5 Reducing delay. that judicial review of agency statement (§ 1501.4). Agencies shall reduce delay by: compliance with the regulations in parts (b) Using a finding of no significant (a) Using categorical exclusions to 1500 through 1508 not occur before an impact when an action not otherwise define categories of actions which do agency has issued the record of decision excluded will not have a significant not have a significant effect on the or taken other final agency action. Any effect on the human environment and is human environment (§ 1501.4) and allegation of noncompliance with NEPA therefore exempt from requirements to which are therefore exempt from and these regulations should be prepare an environmental impact requirements to prepare an resolved as expeditiously as possible. statement (§ 1501.6). environmental impact statement. Agencies may structure their decision (c) Reducing the length of (b) Using a finding of no significant making to allow private parties to seek environmental documents by means impact when an action not otherwise agency stays of final agency decisions such as meeting appropriate page limits excluded will not have a significant pending administrative or judicial (§§ 1501.5(e) and 1502.7). effect on the human environment review of those decisions. Consistent (d) Preparing analytic and concise (§ 1501.6) and is therefore exempt from with their organic statutes, agencies may environmental impact statements requirements to prepare an structure their procedures to provide for (§ 1502.2). environmental impact statement. efficient mechanisms for seeking, (e) Discussing only briefly issues (c) Integrating the NEPA process into granting and imposing conditions on other than significant ones (§ 1502.2(b)). early planning (§ 1501.2).

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(d) Engaging in interagency 1501.2 Apply NEPA early in the process. (2) Identify environmental effects and cooperation before the environmental 1501.3 Determine the appropriate level of values in adequate detail so they can be assessment or environmental impact NEPA review. appropriately considered along with statement is prepared, rather than 1501.4 Categorical exclusions. economic and technical analyses. 1501.5 Environmental assessments. submission of comments on a 1501.6 Findings of no significant impact. Agencies shall review and publish completed document (§ 1501.8). 1501.7 Lead agencies. environmental documents and (e) Ensuring the swift and fair 1501.8 Cooperating agencies. appropriate analyses at the same time as resolution of lead agency disputes 1501.9 Scoping. other planning documents. (§ 1501.7). 1501.10 Time limits. (3) Study, develop, and describe (f) Using the scoping process for an 1501.11 Tiering. appropriate alternatives to early identification of what are and 1501.12 Incorporation by reference. recommended courses of action in any what are not the real issues (§ 1501.9). Authority: 42 U.S.C. 4321–4347; 42 U.S.C. proposal which involves unresolved (g) Meeting appropriate time limits for 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 conflicts concerning alternative uses of the environmental assessment and FR 4247, Mar. 7, 1970, as amended by E.O. available resources as provided by environmental impact statement 11991, 42 FR 26967, May 25, 1977; and E.O. section 102(2)(E) of NEPA. processes (§ 1501.10). 13807, 82 FR 40463, Aug. 24, 2017. (4) Provide for cases where actions (h) Preparing environmental impact § 1501.1 NEPA threshold applicability that are subject to NEPA are planned by statements early in the process analysis. private applicants or other non-Federal (§ 1502.5). entities before Federal involvement so (a) In assessing whether NEPA (i) Integrating NEPA requirements that: applies, Federal agencies should with other environmental review and (i) Policies or designated staff are determine: consultation requirements (§ 1502.25). available to advise potential applicants (1) Whether the proposed action is a (j) Eliminating duplication with State, of studies or other information major Federal action. Tribal, and local procedures by (2) Whether the proposed action, in foreseeably required for later Federal providing for joint preparation of whole or in part, is a non-discretionary action. environmental documents where (ii) The Federal agency consults early action for which the agency lacks practicable (§ 1506.2) and with other with appropriate State, Tribal, and local authority to consider environmental Federal procedures by providing that governments and with interested private effects as part of its decision-making agencies may jointly prepare or adopt persons and organizations when its own process. involvement is reasonably foreseeable. appropriate environmental documents (3) Whether the proposed action is an (iii) The Federal agency commences prepared by another agency (§ 1506.3). action for which compliance with NEPA (k) Combining environmental its NEPA process at the earliest would clearly and fundamentally documents with other documents reasonable time. conflict with the requirements of (§ 1506.4). another statute. § 1501.3 Determine the appropriate level of (l) Using accelerated procedures for (4) Whether the proposed action is an NEPA review. proposals for legislation (§ 1506.8). action for which compliance with NEPA (a) In assessing the appropriate level § 1500.6 Agency authority. would be inconsistent with of NEPA review, Federal agencies Each agency shall interpret the Congressional intent due to the should determine whether the proposed provisions of the Act as a supplement to requirements of another statute. action: its existing authority and as a mandate (5) Whether the proposed action is an (1) Normally does not have significant to view policies and missions in the action for which the agency has effects and is categorically excluded light of the Act’s national environmental determined that other analyses or (§ 1501.4); objectives. Agencies shall review their processes under other statutes serve the (2) Is not likely to have significant policies, procedures, and regulations function of agency compliance with effects or the significance of the effects accordingly and revise them as NEPA. is unknown and is therefore appropriate necessary to ensure full compliance (b) Federal agencies may make these for an environmental assessment with the purposes and provisions of the determinations in their agency NEPA (§ 1501.5); or (3) Is likely to have significant effects Act as interpreted by the regulations in procedures (§ 1507.3(c)) or on an and is therefore appropriate for an parts 1500 through 1508. The phrase ‘‘to individual basis. environmental impact statement (part the fullest extent possible’’ in section § 1501.2 Apply NEPA early in the process. 1502). 102 of NEPA means that each agency of (a) Agencies should integrate the (b) In considering whether the effects the Federal Government shall comply NEPA process with other planning and of the proposed action are significant, with that section unless existing law authorization processes at the earliest agencies shall analyze the potentially applicable to the agency’s operations reasonable time to ensure that agencies affected environment and degree of the expressly prohibits or makes consider environmental impacts in their effects of the action. compliance impossible. Nothing planning and decisions, to avoid delays (1) In considering the potentially contained in the regulations in parts later in the process, and to head off affected environment, agencies may 1500 through 1508 is intended or potential conflicts. consider, as appropriate, the affected should be construed to limit an agency’s (b) Each agency shall: area (national, regional, or local). other authorities or legal (1) Comply with the mandate of Significance varies with the setting of responsibilities. section 102(2)(A) of NEPA to ‘‘utilize a the proposed action. For instance, in the ■ 2. Revise part 1501 to read as follows: systematic, interdisciplinary approach case of a site-specific action, which will [e]nsure the integrated use of significance would usually depend PART 1501—NEPA AND AGENCY the natural and social sciences and the upon the effects in the locale rather than PLANNING environmental design arts in planning in the Nation as a whole. Both short- Sec. and in decision making which may have and long-term effects are relevant. 1501.1 NEPA threshold applicability an impact on man’s environment,’’ as (2) In considering the degree of the analysis. specified by § 1507.2. effects, agencies should consider the

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following, as appropriate to the specific the extent practicable in preparing statement or environmental assessment action: environmental assessments. if more than one Federal agency either: (i) Effects may be both beneficial and (e) The text of an environmental (1) Proposes or is involved in the adverse. assessment shall be no more than 75 same action; or (ii) Effects on public health and pages, not including appendices, unless (2) Is involved in a group of actions safety. a senior agency official approves in directly related to each other because of (iii) Effects that would violate Federal, writing an assessment to exceed 75 their functional interdependence or State, Tribal, or local law protecting the pages and establishes a new page limit. geographical proximity. environment. (f) Agencies may apply the following (b) Federal, State, Tribal, or local provisions to environmental agencies, including at least one Federal § 1501.4 Categorical exclusions. assessments: agency, may act as joint lead agencies to (a) For efficiency, agencies identify in (1) Section 1502.22 Incomplete or prepare an environmental impact their agency NEPA procedures unavailable information; statement or environmental assessment (§ 1507.3(d)(2)(ii)) categories of actions (2) Section 1502.24 Methodology and (§ 1506.2). that normally do not have a significant scientific accuracy; and (c) If an action falls within the effect on the human environment, and (3) Section 1502.25 Environmental provisions of paragraph (a) of this therefore do not require preparation of review and consultation requirements. section, the potential lead agencies shall an environmental assessment or § 1501.6 Findings of no significant impact. determine, by letter or memorandum, environmental impact statement. which agency shall be the lead agency (b) If an agency determines that a (a) An agency shall prepare a finding and which shall be cooperating proposed action is covered by a of no significant impact if the agency agencies. The agencies shall resolve the categorical exclusion identified in its determines, based on the environmental lead agency question so as not to cause agency NEPA procedures, the agency assessment, not to prepare an delay. If there is disagreement among shall evaluate the action for environmental impact statement the agencies, the following factors extraordinary circumstances in which a because the proposed action is not normally excluded action may have a likely to have significant effects. (which are listed in order of descending significant effect. (1) The agency shall make the finding importance) shall determine lead agency (1) If extraordinary circumstances are of no significant impact available to the designation: present for a proposed action, the affected public as specified in § 1506.6. (1) Magnitude of agency’s agency should consider whether (2) In the following circumstances, the involvement. mitigating circumstances or other agency shall make the finding of no (2) Project approval/disapproval conditions are sufficient to avoid significant impact available for public authority. (3) Expertise concerning the action’s significant effects and therefore review for 30 days before the agency environmental effects. categorically exclude the proposed makes its final determination whether to (4) Duration of agency’s involvement. action. prepare an environmental impact statement and before the action may (5) Sequence of agency’s involvement. (2) If the proposed action cannot be (d) Any Federal agency, or any State, begin: categorically excluded, the agency shall Tribal, or local agency or private person prepare an environmental assessment or (i) The proposed action is, or is substantially affected by the absence of environmental impact statement. closely similar to, one which normally requires the preparation of an lead agency designation, may make a § 1501.5 Environmental assessments. environmental impact statement under written request to the senior agency (a) An agency shall prepare an the procedures adopted by the agency officials of the potential lead agencies environmental assessment for a pursuant to § 1507.3, or that a lead agency be designated. proposed action that is not likely to (ii) The nature of the proposed action (e) If Federal agencies are unable to have significant effects or when the is one without precedent. agree on which agency will be the lead significance of the effects is unknown (b) The finding of no significant agency or if the procedure described in unless the agency finds that a impact shall include the environmental paragraph (c) of this section has not categorical exclusion (§ 1501.4) is assessment or incorporate it by resulted within 45 days in a lead agency applicable or has decided to prepare an reference and shall note any other designation, any of the agencies or environmental impact statement. environmental documents related to it persons concerned may file a request (b) An agency may prepare an (§ 1501.9(f)(3)). If the assessment is with the Council asking it to determine environmental assessment on any action included, the finding need not repeat which Federal agency shall be the lead in order to assist agency planning and any of the discussion in the assessment agency. A copy of the request shall be decision making. but may incorporate it by reference. transmitted to each potential lead (c) An environmental assessment (c) The finding of no significant agency. The request shall consist of: shall: impact shall state the means of and (1) A precise description of the nature (1) Briefly provide sufficient evidence authority for any mitigation that the and extent of the proposed action. and analysis for determining whether to agency has adopted, and any applicable (2) A detailed statement of why each prepare an environmental impact monitoring or enforcement provisions. If potential lead agency should or should statement or a finding of no significant the agency finds no significant impacts not be the lead agency under the criteria impact; and based on mitigation, the mitigated specified in paragraph (c) of this (2) Briefly discuss the purpose and finding of no significant impact shall section. need for the proposed action, state any enforceable mitigation (f) A response may be filed by any alternatives as required by section requirements or commitments that will potential lead agency concerned within 102(2)(E) of NEPA, the environmental be undertaken to avoid significant 20 days after a request is filed with the impacts of the proposed action and impacts. Council. The Council shall determine as alternatives, and a listing of agencies soon as possible but not later than 20 and persons consulted. § 1501.7 Lead agencies. days after receiving the request and all (d) Agencies shall involve relevant (a) A lead agency shall supervise the responses to it which Federal agency agencies, applicants, and the public, to preparation of an environmental impact shall be the lead agency and which

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other Federal agencies shall be agency to designate it a cooperating Scoping may include appropriate pre- cooperating agencies. agency, and a Federal agency may application procedures or work (g) To the extent practicable, if a appeal a denial of its request to the conducted prior to publication of the proposal will require action by more Council, in accordance with § 1501.7(e). notice of intent. than one Federal agency and the lead (b) Each cooperating agency shall: (b) Invite cooperating and agency determines that it requires (1) Participate in the NEPA process at participating agencies. As part of the preparation of an environmental impact the earliest practicable time. scoping process, the lead agency shall statement, the lead and cooperating (2) Participate in the scoping process invite the participation of likely affected agencies shall evaluate the proposal in (described in § 1501.9). Federal, State, Tribal, and local agencies a single environmental impact statement (3) Assume, on request of the lead and governments, the proponent of the and issue a joint record of decision. To agency, responsibility for developing action, and other likely affected or the extent practicable, if the lead agency information and preparing interested persons (including those who determines that the proposed action environmental analyses, including might not be in accord with the action should be evaluated in an portions of the environmental impact on environmental grounds), unless there environmental assessment, the lead and statement or environmental assessment is a limited exception under § 1507.3(e). cooperating agencies should evaluate concerning which the cooperating (c) Scoping outreach. As part of the the proposal in a single environmental agency has special expertise. scoping process the lead agency may assessment and, where appropriate, (4) Make available staff support at the hold a scoping meeting or meetings, issue a joint finding of no significant lead agency’s request to enhance the publish scoping information, or use impact. latter’s interdisciplinary capability. other means to communicate with those (h) With respect to cooperating (5) Normally use its own funds. To persons or agencies who may be agencies, the lead agency shall: the extent available funds permit, the interested or affected, which the agency (1) Request the participation of each lead agency shall fund those major may integrate with any other early cooperating agency in the NEPA process activities or analyses it requests from planning meeting. Such a scoping at the earliest practicable time. cooperating agencies. Potential lead meeting will often be appropriate when (2) Use the environmental analysis agencies shall include such funding the impacts of a particular action are and proposals of cooperating agencies requirements in their budget requests. confined to specific sites. with jurisdiction by law or special (6) Consult with the lead agency in (d) Notice of intent. As soon as expertise, to the maximum extent developing the schedule (§ 1501.7(i)), practicable after determining that a practicable, consistent with its meet the schedule, and elevate, as soon proposal is sufficiently developed to responsibility as lead agency. as practicable, to the senior agency allow for meaningful public comment (3) Meet with a cooperating agency at official of the lead agency relating to and requires an environmental impact the latter’s request. purpose and need, alternatives or any statement, the lead agency shall publish (4) Determine the purpose and need, other issues any issues that may affect a notice of intent to prepare an and alternatives in consultation with that agency’s ability to meet the environmental impact statement in the any cooperating agency. schedule. Federal Register, except as provided in (i) The lead agency shall develop a (7) Meet the lead agency’s schedule § 1507.3(e)(3). An agency may publish schedule, setting milestones for all for providing comments and limit its notice in accordance with § 1506.6. The environmental reviews and comments to those matters for which it notice shall include, as appropriate: authorizations required for has jurisdiction by law or special (1) The purpose and need for the implementation of the action, in expertise with respect to any proposed action; consultation with any applicant and all environmental issue consistent with (2) A preliminary description of the joint lead, cooperating, and § 1503.2. proposed action and alternatives to be participating agencies, as soon as (c) In response to a lead agency’s considered; practicable. request for assistance in preparing the (3) A brief summary of expected (j) If the lead agency anticipates that environmental documents (described in impacts; a milestone will be missed, it shall paragraph (b)(3), (4), or (5) of this (4) Anticipated permits and other notify appropriate officials at the section), a cooperating agency may reply authorizations; responsible agencies. The responsible that other program commitments (5) A schedule for the decision- agencies shall elevate, as soon as preclude any involvement or the degree making process; practicable, to the appropriate officials of involvement requested in the action (6) A description of the public of the responsible agencies, the issue for that is the subject of the environmental scoping process, including any scoping timely resolution. impact statement or environmental meeting(s); assessment. The cooperating agency (7) A request for comments on § 1501.8 Cooperating agencies. shall submit a copy of this reply to the potential alternatives and impacts, and (a) The purpose of this section is to Council and the senior agency official of identification of any relevant emphasize agency cooperation early in the lead agency. information, studies, or analyses of any the NEPA process. Any Federal agency kind concerning impacts affecting the with jurisdiction by law shall be a § 1501.9 Scoping. quality of the human environment cooperating agency upon request of the (a) Generally. Agencies shall use an (§§ 1503.1 and 1503.3); and lead agency. In addition, any other early and open process to determine the (8) Contact information for a person Federal agency with special expertise scope of issues for analysis in an within the agency who can answer with respect to any environmental issue environmental impact statement, questions about the proposed action and may be a cooperating agency upon including identifying the significant the environmental impact statement. request of the lead agency. A State, issues and eliminating from further (e) Determination of scope. As part of Tribal, or local agency of similar study non-significant issues. Scoping the scoping process, the lead agency qualifications may, by agreement with may begin as soon as practicable after shall determine the scope and the the lead agency, become a cooperating the proposal for action is sufficiently significant issues to be analyzed in agency. An agency may request the lead developed for agency consideration. depth in the environmental impact

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statement. To determine the scope of the environmental impact statement as (2) Determination of the scope of the environmental impact statements, provided in § 1502.25. environmental impact statement. agencies shall consider: (5) Indicate the relationship between (3) Preparation of the draft (1) Actions (other than unconnected the timing of the preparation of environmental impact statement. single actions) that may be: environmental analyses and the (4) Review of any comments on the (i) Connected actions, which means agencies’ tentative planning and draft environmental impact statement that they are closely related and decision-making schedule. from the public and agencies. therefore should be discussed in the (g) Revisions. An agency shall revise (5) Preparation of the final same impact statement. Actions are the determinations made under environmental impact statement. connected if they: paragraphs (b), (c), (e), and (f) of this (6) Review of any comments on the (A) Automatically trigger other section if substantial changes are made final environmental impact statement. actions that may require environmental later in the proposed action, or if (7) Decision on the action based in impact statements; significant new circumstances or part on the environmental impact (B) Cannot or will not proceed unless information arise which bear on the statement. other actions are taken previously or proposal or its impacts. (e) The agency may designate a person simultaneously; or (such as the project manager or a person (C) Are interdependent parts of a § 1501.10 Time limits. in the agency’s office with NEPA larger action and depend on the larger (a) To ensure that agencies conduct responsibilities) to expedite the NEPA action for their justification. NEPA reviews as efficiently and process. (ii) Similar actions, which when expeditiously as practicable, Federal (f) State, Tribal, or local agencies or viewed with other reasonably agencies should set time limits members of the public may request a foreseeable or proposed agency actions, appropriate to individual actions or Federal agency to set time limits. have similarities that provide a basis for types of actions (consistent with the evaluating their environmental time intervals required by § 1506.11). § 1501.11 Tiering. consequences together, such as common When multiple agencies are involved (a) Agencies are encouraged to tier timing or geography. An agency may the reference to agency below means their environmental impact statements wish to analyze these actions in the lead agency. and environmental assessments where it same impact statement. It should do so (b) To ensure timely decision making, would eliminate repetitive discussions when the most effective way to assess agencies shall complete: of the same issues, focus on the actual (1) Environmental assessments within adequately the combined impacts of issues ripe for decision, and exclude 1 year unless a senior agency official of similar actions or reasonable from consideration issues already the lead agency approves a longer alternatives to such actions is to treat decided or not yet ripe at each level of period in writing and establishes a new them in a single impact statement. environmental review. Whenever an (2) Alternatives, which include the no time limit. One year is measured from agency has prepared an environmental action alternative; other reasonable the date of decision to prepare an impact statement or environmental environmental assessment to the courses of action; and mitigation assessment for a program or policy and publication of a final environmental measures (not in the proposed action). then prepares a subsequent statement or (3) Impacts. assessment. environmental assessment on an action (f) Additional scoping responsibilities. (2) Environmental impact statements included within the entire program or As part of the scoping process, the lead within 2 years unless a senior agency policy (such as a project- or site-specific agency shall: official of the lead agency approves a action), the subsequent statement or (1) Identify and eliminate from longer period in writing and establishes environmental assessment need only detailed study the issues which are not a new time limit. Two years is measured summarize the issues discussed in the significant or which have been covered from the date of the issuance of the broader statement and incorporate by prior environmental review notice of intent to the date a record of discussions from the broader statement (§ 1506.3), narrowing the discussion of decision is signed. by reference and shall concentrate on (c) The senior agency official may these issues in the statement to a brief the issues specific to the subsequent consider the following factors in presentation of why they will not have action. The subsequent document shall determining time limits: a significant effect on the human state where the earlier document is (1) Potential for environmental harm. environment or providing a reference to (2) Size of the proposed action. available. Tiering may also be their coverage elsewhere. (3) State of the art of analytic appropriate for different stages of (2) Allocate assignments for techniques. actions. preparation of the environmental impact (4) Degree of public need for the (b) Tiering is appropriate when the statement among the lead and proposed action, including the sequence from an environmental impact cooperating agencies, with the lead consequences of delay. statement or environmental assessment agency retaining responsibility for the (5) Number of persons and agencies is: statement. affected. (1) From a programmatic, plan, or (3) Indicate any public environmental (6) Availability of relevant policy environmental impact statement assessments and other environmental information. or environmental assessment to a impact statements which are being or (7) Other time limits imposed on the program, plan, or policy statement or will be prepared that are related to but agency by law, regulations, or Executive assessment of lesser or narrower scope are not part of the scope of the impact order. or to a site-specific statement or statement under consideration. (d) The senior agency official may set assessment. (4) Identify other environmental overall time limits or limits for each (2) From an environmental impact review, authorization, and consultation constituent part of the NEPA process, statement or environmental assessment requirements so the lead and which may include: on a specific action at an early stage cooperating agencies may prepare other (1) Decision on whether to prepare an (such as need and site selection) to a required analyses and studies environmental impact statement (if not supplement (which is preferred) or a concurrently with, and integrated with, already decided). subsequent statement or assessment at a

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later stage (such as environmental § 1502.1 Environmental impact statement agency recommendation or report on mitigation). Tiering in such cases is purpose. proposals for legislation and other major appropriate when it helps the lead The primary purpose of an Federal actions significantly affecting agency to focus on the issues that are environmental impact statement the quality of the human environment. ripe for decision and exclude from prepared pursuant to 102(2)(c) is to consideration issues already decided or ensure agencies consider the § 1502.4 Major Federal actions requiring the preparation of environmental impact not yet ripe. environmental impacts of their actions statements. in decision making. It shall provide full § 1501.12 Incorporation by reference. and fair discussion of significant (a) Agencies shall define the proposal Agencies shall incorporate material environmental impacts and shall inform that is the subject of an environmental into environmental documents by decision makers and the public of impact statement based on the statutory reference when the effect will be to cut reasonable alternatives which would authorities for the proposed action. down on bulk without impeding agency avoid or minimize adverse impacts or Agencies shall use the criteria for scope and public review of the action. The enhance the quality of the human (§ 1501.9) to determine which incorporated material shall be cited in environment. Agencies shall focus on proposal(s) shall be the subject of a the document and its content briefly significant environmental issues and particular statement. Agencies shall described. No material may be alternatives and shall reduce paperwork evaluate in a single environmental incorporated by reference unless it is and the accumulation of extraneous impact statement proposals or parts of reasonably available for inspection by background data. Statements shall be proposals that are related to each other potentially interested persons within concise, clear, and to the point, and closely enough to be, in effect, a single the time allowed for comment. Material shall be supported by evidence that the course of action. (b) Environmental impact statements based on proprietary data which is itself agency has made the necessary may be prepared for programmatic not available for review and comment environmental analyses. An Federal actions such as the adoption of shall not be incorporated by reference. environmental impact statement is a ■ new agency programs. Agencies shall 3. Revise part 1502 to read as follows: document that informs. Federal agency prepare statements on programmatic decision making. PART 1502—ENVIRONMENTAL actions so that they are relevant to the IMPACT STATEMENT § 1502.2 Implementation. program decision and time them to coincide with meaningful points in Sec. (a) Environmental impact statements shall not be encyclopedic. agency planning and decision making. 1502.1 Environmental impact statement (c) When preparing statements on purpose. (b) Impacts shall be discussed in 1502.2 Implementation. proportion to their significance. There programmatic actions (including 1502.3 Statutory requirements for shall be only brief discussion of other proposals by more than one agency), statements. than significant issues. As in a finding agencies may find it useful to evaluate 1502.4 Major Federal actions requiring the of no significant impact, there should be the proposal(s) in one of the following preparation of environmental impact only enough discussion to show why ways: statements. more study is not warranted. (1) Geographically, including actions 1502.5 Timing. (c) Environmental impact statements occurring in the same general location, 1502.6 Interdisciplinary preparation. such as body of water, region, or 1502.7 Page limits. shall be analytic, concise, and no longer than necessary to comply with NEPA metropolitan area. 1502.8 Writing. (2) Generically, including actions 1502.9 Draft, final, and supplemental and with the regulations in parts 1500 statements. through 1508. Length should be which have relevant similarities, such 1502.10 Recommended format. proportional to potential environmental as common timing, impacts, 1502.11 Cover. effects and project size. alternatives, methods of 1502.12 Summary. (d) Environmental impact statements implementation, media, or subject 1502.13 Purpose and need. shall state how alternatives considered matter. 1502.14 Alternatives including the in it and decisions based on it will or (3) By stage of technological proposed action. will not achieve the requirements of development including Federal or 1502.15 Affected environment. federally assisted research, development 1502.16 Environmental consequences. sections 101 and 102(1) of NEPA and other environmental laws and policies. or demonstration programs for new 1502.17 Summary of submitted technologies which, if applied, could alternatives, information, and analyses. (e) The range of alternatives discussed 1502.18 Certification of submitted in environmental impact statements significantly affect the quality of the alternatives, information, and analyses shall encompass those to be considered human environment. Statements on section. by the ultimate agency decision maker. such programs should be available 1502.19 List of preparers. (f) Agencies shall not commit before the program has reached a stage 1502.20 Appendix. resources prejudicing selection of of investment or commitment to 1502.21 Publication of the environmental alternatives before making a final implementation likely to determine impact statement. subsequent development or restrict later 1502.22 Incomplete or unavailable decision (§ 1506.1). (g) Environmental impact statements alternatives. information. (d) Agencies shall as appropriate 1502.23 Cost-benefit analysis. shall serve as the means of assessing the 1502.24 Methodology and scientific environmental impact of proposed employ scoping (§ 1501.9), tiering accuracy. agency actions, rather than justifying (§ 1501.11), and other methods listed in 1502.25 Environmental review and decisions already made. §§ 1500.4 and 1500.5 to relate consultation requirements. programmatic and narrow actions and to § 1502.3 Statutory requirements for avoid duplication and delay. Agencies Authority: 42 U.S.C. 4321–4347; 42 U.S.C. statements. 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 may tier their environmental analyses to FR 4247, Mar. 7, 1970, as amended by E.O. As required by section 102(2)(C) of defer detailed analysis of environmental 11991, 42 FR 26967, May 25, 1977; and E.O. NEPA, environmental impact statements impacts of specific program elements 13807, 82 FR 40463, Aug. 24, 2017. are to be included in every Federal until such program elements are ripe for

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decisions that would involve an approves in writing a statement to environmental concerns and bearing on irreversible or irretrievable commitment exceed 300 pages and establishes a new the proposed action or its impacts. of resources. page limit. (2) May also prepare supplements when the agency determines that the § 1502.5 Timing. § 1502.8 Writing. purposes of the Act will be furthered by An agency should commence Environmental impact statements doing so. preparation of an environmental impact shall be written in plain language and (3) Shall prepare, publish, and file a statement as close as practicable to the may use appropriate graphics so that supplement to a statement in the same time the agency is developing or is decision makers and the public can fashion (exclusive of scoping) as a draft presented with a proposal so that readily understand them. Agencies and final statement unless alternative preparation can be completed in time should employ writers of clear prose or procedures are approved by the Council. for the final statement to be included in editors to write, review, or edit (4) May find that changes to the any recommendation or report on the statements, which will be based upon proposed action or new circumstances proposal. The statement shall be the analysis and supporting data from or information relevant to prepared early enough so that it can the natural and social sciences and the environmental concerns are not serve practically as an important environmental design arts. significant and therefore do not require contribution to the decision-making a supplement. The agency should process and will not be used to § 1502.9 Draft, final, and supplemental statements. document the finding consistent with its rationalize or justify decisions already agency NEPA procedures (§ 1507.3), or, (a) Generally. Except for proposals for made (§§ 1501.2 and 1502.2). For if necessary, in a finding of no legislation as provided in § 1506.8 instance: significant impact supported by an environmental impact statements shall (a) For projects directly undertaken by environmental assessment. Federal agencies the environmental be prepared in two stages and, where impact statement shall be prepared at necessary, shall be supplemented as § 1502.10 Recommended format. the feasibility analysis (go-no go) stage provided in paragraph (d)(1) of this (a) Agencies shall use a format for and may be supplemented at a later section. environmental impact statements which stage if necessary. (b) Draft environmental impact will encourage good analysis and clear (b) For applications to the agency, statements. Draft environmental impact presentation of the alternatives appropriate environmental assessments statements shall be prepared in including the proposed action. Agencies or statements shall be commenced as accordance with the scope decided should use the following standard soon as practicable after the application upon in the scoping process. The lead format for environmental impact is received. Federal agencies should agency shall work with the cooperating statements unless the agency determines work with potential applicants and agencies and shall obtain comments as that there is a more effective format for applicable State, Tribal, and local required in part 1503 of this chapter. communication: agencies prior to receipt of the The draft statement must meet, to the (1) Cover. application. fullest extent practicable, the (2) Summary. (c) For adjudication, the final requirements established for final (3) Table of contents. environmental impact statement shall statements in section 102(2)(C) of NEPA. (4) Purpose of and need for action. normally precede the final staff If a draft statement is so inadequate as (5) Alternatives including proposed recommendation and that portion of the to preclude meaningful analysis, the action (sections 102(2)(C)(iii) and public hearing related to the impact agency shall prepare and publish a 102(2)(E) of NEPA). study. In appropriate circumstances the supplemental draft of the appropriate (6) Affected environment and statement may follow preliminary portion. The agency shall discuss at environmental consequences (especially hearings designed to gather information appropriate points in the draft statement sections 102(2)(C)(i), (ii), (iv), and (v) of for use in the statements. all major points of view on the NEPA). (d) For informal rulemaking the draft environmental impacts of the (7) Submitted, alternatives, environmental impact statement shall alternatives including the proposed information, and analyses. normally accompany the proposed rule. action. (8) List of preparers. (c) Final environmental impact (9) Appendices (if any). § 1502.6 Interdisciplinary preparation. statements. Final environmental impact (b) If an agency uses a different Environmental impact statements statements shall address comments as format, it shall include paragraphs (a), shall be prepared using an required in part 1503 of this chapter. (b), (c), (d), (e), (f), (g) and (h) of this interdisciplinary approach which will The agency shall discuss at appropriate section, as further described in ensure the integrated use of the natural points in the final statement any §§ 1502.11 through 1502.20, in any and social sciences and the responsible opposing view which was appropriate format. environmental design arts (section not adequately discussed in the draft 102(2)(A) of NEPA). The disciplines of statement and shall indicate the § 1502.11 Cover. the preparers shall be appropriate to the agency’s response to the issues raised. The cover shall not exceed one page scope and issues identified in the (d) Supplemental environmental and include: scoping process (§ 1501.9). impact statements. Agencies: (a) A list of the responsible agencies, (1) Shall prepare supplements to including the lead agency and any § 1502.7 Page limits. either draft or final environmental cooperating agencies. The text of final environmental impact statements if a major Federal (b) The title of the proposed action impact statements (e.g., paragraphs action remains to occur, and: that is the subject of the statement (and, (a)(4) through (6) of § 1502.10) shall be (i) The agency makes substantial if appropriate, the titles of related 150 pages or fewer and, for proposals of changes in the proposed action that are cooperating agency actions), together unusual scope or complexity, shall be relevant to environmental concerns; or with the State(s) and county(ies) (or 300 pages or fewer unless a senior (ii) There are significant new other jurisdiction, if applicable) where agency official of the lead agency circumstances or information relevant to the action is located.

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(c) The name, address, and telephone (e) Include appropriate mitigation (8) Urban quality, historic and number of the person at the agency who measures not already included in the cultural resources, and the design of the can supply further information. proposed action or alternatives. built environment, including the reuse (d) A designation of the statement as and conservation potential of various § 1502.15 Affected environment. a draft, final, or draft or final alternatives and mitigation measures. supplement. The environmental impact statement (9) Means to mitigate adverse (e) A one-paragraph abstract of the shall succinctly describe the environmental impacts (if not fully statement. environment of the area(s) to be affected covered under § 1502.14(e)). or created by the alternatives under (10) Where applicable, economic and (f) The date by which comments must consideration. The description may be technical considerations, including the be received (computed in cooperation combined with evaluation of the economic benefits of the proposed with EPA under § 1506.11). environmental consequences (§ 1502.16) action. (g) The estimated total cost of and shall be no longer than is necessary (b) Economic or social effects by preparing the environmental impact to understand the effects of the themselves do not require preparation of statement, including the costs of agency alternatives. Data and analyses in a an environmental impact statement. full-time equivalent (FTE) personnel statement shall be commensurate with However, when the agency determines hours, contractor costs, and other direct the importance of the impact, with less that economic or social and natural or costs. important material summarized, physical environmental effects are § 1502.12 Summary. consolidated, or simply referenced. interrelated, then the environmental Agencies shall avoid useless bulk in impact statement will discuss and give Each environmental impact statement statements and shall concentrate effort appropriate consideration to these shall contain a summary which and attention on important issues. effects on the human environment. adequately and accurately summarizes Verbose descriptions of the affected the statement. The summary shall stress § 1502.17 Summary of submitted environment are themselves no measure the major conclusions, areas of disputed alternatives, information, and analyses. of the adequacy of an environmental issues raised by agencies and the The environmental impact statement impact statement. public), and the issues to be resolved shall include a summary of all (including the choice among § 1502.16 Environmental consequences. alternatives, information, and analyses alternatives). The summary will (a) This section forms the scientific submitted by public commenters for normally not exceed 15 pages. and analytic basis for the comparisons consideration by the lead and cooperating agencies in developing the § 1502.13 Purpose and need. under § 1502.14. It shall consolidate the discussions of those elements required environmental impact statement. The statement shall briefly specify the by sections 102(2)(C)(i), (ii), (iv), and (v) Consistent with § 1503.1(a)(3), the lead underlying purpose and need for the of NEPA which are within the scope of agency shall invite comment on the proposed action. When an agency’s the statement and as much of section completeness of the summary in the statutory duty is to review an 102(2)(C)(iii) of NEPA as is necessary to draft environmental impact statement. application for authorization, the agency support the comparisons. This section § 1502.18 Certification of submitted shall base the purpose and need on the should not duplicate discussions in alternatives, information, and analyses goals of the applicant and the agency’s § 1502.14. The discussion shall include: section. authority. (1) The environmental impacts of the Based on the summary of the § 1502.14 Alternatives including the proposed action and reasonable submitted alternatives, information, and proposed action. alternatives to the proposed action and analyses section, the decision maker for This section should present the their significance. The comparison of the lead agency shall certify in the environmental impacts of the proposed the proposed action and reasonable record of decision that the agency has action and the alternatives in alternatives shall be based on this considered all of the alternatives, comparative form based on the discussion of the impacts. information, and analyses submitted by (2) Any adverse environmental effects information and analysis presented in public commenters for consideration by which cannot be avoided should the the sections on the Affected the lead and cooperating agencies in proposal be implemented. Environment (§ 1502.15) and the developing the environmental impact (3) The relationship between short- Environmental Consequences statement. Agency environmental term uses of man’s environment and the (§ 1502.16). In this section, agencies impact statements certified in maintenance and enhancement of long- shall: accordance with this section are entitled term productivity. to a conclusive presumption that the (a) Evaluate reasonable alternatives to (4) Any irreversible or irretrievable agency has considered the information the proposed action, and for alternatives commitments of resources which would included in the submitted alternatives, which were eliminated from detailed be involved in the proposal should it be information, and analyses section. study, briefly discuss the reasons for implemented. their having been eliminated. (5) Possible conflicts between the § 1502.19 List of preparers. (b) Discuss each alternative proposed action and the objectives of The environmental impact statement considered in detail including the Federal, regional, State, Tribal, and local shall list the names, together with their proposed action so that reviewers may land use plans, policies and controls for qualifications (expertise, experience, evaluate their comparative merits. the area concerned. (§ 1506.2(d)) professional disciplines), of the persons (c) Include the no action alternative. (6) Energy requirements and who were primarily responsible for (d) Identify the agency’s preferred conservation potential of various preparing the environmental impact alternative or alternatives, if one or alternatives and mitigation measures. statement or significant background more exists, in the draft statement and (7) Natural or depletable resource papers, including basic components of identify such alternative in the final requirements and conservation potential the statement (§§ 1502.6 and 1502.8). statement unless another law prohibits of various alternatives and mitigation Where possible the persons who are the expression of such a preference. measures. responsible for a particular analysis,

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including analyses in background it are not known, the agency shall Agencies may make use of any reliable papers, shall be identified. Normally the include within the environmental data sources, such as remotely gathered list will not exceed two pages. impact statement: information or statistical models. They (1) A statement that such information shall identify any methodologies used § 1502.20 Appendix. is incomplete or unavailable; and shall make explicit reference to the If an agency prepares an appendix, it (2) A statement of the relevance of the scientific and other sources relied upon shall be published with the incomplete or unavailable information for conclusions in the statement. An environmental impact statement and to evaluating reasonably foreseeable agency may place discussion of shall consist of material: significant adverse impacts on the methodology in an appendix. (a) Prepared in connection with an human environment; environmental impact statement (as (3) A summary of existing credible § 1502.25 Environmental review and distinct from material which is not so scientific evidence which is relevant to consultation requirements. prepared and which is incorporated by evaluating the reasonably foreseeable (a) To the fullest extent possible, reference (§ 1501.12)). significant adverse impacts on the agencies shall prepare draft (b) Substantiating any analysis human environment; and environmental impact statements fundamental to the impact statement. (4) The agency’s evaluation of such concurrent and integrated with (c) Relevant to the decision to be impacts based upon theoretical environmental impact analyses and made. approaches or research methods related surveys and studies required by generally accepted in the scientific all other Federal environmental review § 1502.21 Publication of the environmental community. laws and Executive orders applicable to impact statement. (d) For the purposes of this section, the proposed action, including the Fish Agencies shall publish the entire draft ‘‘reasonably foreseeable’’ includes and Wildlife Coordination Act (16 and final environmental impact impacts which have catastrophic U.S.C. 661 et seq.), the National Historic statements and unchanged statements as consequences, even if their probability Preservation Act of 1966 (16 U.S.C. 470 provided in § 1503.4(c). The agency of occurrence is low, provided that the et seq.), and the Endangered Species Act shall transmit the entire statement analysis of the impacts is supported by of 1973 (16 U.S.C. 1531 et seq.). electronically (or in paper copy, if so credible scientific evidence, is not based (b) The draft environmental impact requested due to economic or other on pure conjecture, and is within the statement shall list all Federal permits, hardship) to: rule of reason. licenses, and other authorizations which (a) Any Federal agency which has must be obtained in implementing the jurisdiction by law or special expertise § 1502.23 Cost-benefit analysis. proposal. If it is uncertain whether a with respect to any environmental If a cost-benefit analysis relevant to Federal permit, license, or other impact involved and any appropriate the choice among environmentally authorization is necessary, the draft Federal, State, Tribal, or local agency different alternatives is being environmental impact statement shall so authorized to develop and enforce considered for the proposed action, it indicate. environmental standards. shall be incorporated by reference or ■ 4. Revise part 1503 to read as follows: (b) The applicant, if any. appended to the statement as an aid in (c) Any person, organization, or evaluating the environmental PART 1503—COMMENTING ON agency requesting the entire consequences. To assess the adequacy of ENVIRONMENTAL IMPACT environmental impact statement. compliance with section 102(2)(B) of STATEMENTS (d) In the case of a final NEPA the statement shall, when a cost- environmental impact statement any benefit analysis is prepared, discuss the Sec. 1503.1 Inviting comments and requesting person, organization, or agency which relationship between that analysis and information and analyses. submitted substantive comments on the any analyses of unquantified 1503.2 Duty to comment. draft. environmental impacts, values, and 1503.3 Specificity of comments and amenities. For purposes of complying information. § 1502.22 Incomplete or unavailable with the Act, the weighing of the merits 1503.4 Response to comments. information. and drawbacks of the various (a) When an agency is evaluating Authority: 42 U.S.C. 4321–4347; 42 U.S.C. alternatives need not be displayed in a 4371–4375; 42 U.S.C. 7609; and E.O. 11514, reasonably foreseeable significant monetary cost-benefit analysis and 35 FR 4247, Mar. 7, 1970, as amended by adverse effects on the human should not be when there are important E.O. 11991, 42 FR 26967, May 25, 1977. environment in an environmental qualitative considerations. In any event, impact statement and there is an environmental impact statement § 1503.1 Inviting comments and requesting information and analyses. incomplete or unavailable information, should at least indicate those the agency shall make clear that such considerations, including factors not (a) After preparing a draft information is lacking. related to environmental quality, which environmental impact statement and (b) If the incomplete information are likely to be relevant and important before preparing a final environmental relevant to reasonably foreseeable to a decision. impact statement the agency shall: significant adverse impacts is essential (1) Obtain the comments of any to a reasoned choice among alternatives § 1502.24 Methodology and scientific Federal agency which has jurisdiction and the overall costs of obtaining it are accuracy. by law or special expertise with respect not unreasonable, the agency shall Agencies shall ensure the professional to any environmental impact involved include the information in the integrity, including scientific integrity, or which is authorized to develop and environmental impact statement. of the discussions and analyses in enforce environmental standards. (c) If the information relevant to environmental documents. Agencies (2) Request the comments of: reasonably foreseeable significant shall make use of reliable existing data (i) Appropriate State, Tribal, and local adverse impacts cannot be obtained and resources and are not required to agencies which are authorized to because the overall costs of obtaining it undertake new scientific and technical develop and enforce environmental are unreasonable or the means to obtain research to inform their analyses. standards;

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(ii) State, Tribal, or local governments page number of the draft environmental thereof where the response has been that may be affected by the proposed impact statement, propose specific exceptionally voluminous), shall be action; changes to those parts of the statement, appended to the final statement or (iii) Any agency which has requested where possible, and include or describe otherwise published. that it receive statements on actions of the data sources and methodologies (c) If changes in response to the kind proposed; supporting the proposed changes. comments are minor and are confined to (iv) The applicant, if any; and (b) Comments on the submitted the responses described in paragraphs (v) The public, affirmatively soliciting alternatives, information, and analyses (a)(4) and (5) of this section, agencies comments in a manner designed to section (§ 1502.17) should identify any may write the changes on errata sheets inform those persons or organizations additional alternatives, information, or and attach the responses to the who may be interested in or affected by analyses not included in the draft statement instead of rewriting the draft the proposed action. environmental impact statement, and statement. In such cases only the (3) Invite comment specifically on the shall be as specific as possible. comments, the responses, and the completeness of the submitted Comments on and objections to this changes and not the final statement alternatives, information, and analyses section shall be raised within 30 days of need be published (§ 1502.20). The section (§ 1502.17). the publication of the notice of entire document with a new cover sheet (b) An agency may request comments availability of the final environmental shall be filed with the Environmental on a final environmental impact impact statement. Comments not Protection Agency as the final statement statement before the final decision. An provided within 30 days shall be (§ 1506.10). agency shall request comments and considered exhausted and forfeited, ■ 5. Revise part 1504 to read as follows: provide a 30-day comment period on consistent with § 1500.3(b). the final environmental impact (c) When a participating agency PART 1504—PRE–DECISIONAL statement’s submitted alternatives, criticizes a lead agency’s predictive REFERRALS TO THE COUNCIL OF information, and analyses section methodology, the participating agency PROPOSED FEDERAL ACTIONS (§ 1502.17). Other agencies or persons should describe the alternative DETERMINED TO BE may make comments consistent with methodology which it prefers and why. ENVIRONMENTALLY the time periods provided for under (d) A cooperating agency shall specify UNSATISFACTORY § 1506.11. in its comments whether it needs Sec. (c) An agency shall provide for additional information to fulfill other 1504.1 Purpose. electronic submission of public applicable environmental reviews or 1504.2 Criteria for referral. comments, with reasonable measures to consultation requirements and what 1504.3 Procedure for referrals and response. ensure the comment process is information it needs. In particular, it Authority: 42 U.S.C. 4321–4347; 42 U.S.C. accessible to affected persons. shall specify any additional information 4371–4375; 42 U.S.C. 7609; and E.O. 11514, it needs to comment adequately on the 35 FR 4247, Mar. 7, 1970, as amended by § 1503.2 Duty to comment. draft statement’s analysis of significant E.O. 11991, 42 FR 26967, May 25, 1977. Cooperating agencies and agencies site-specific effects associated with the § 1504.1 Purpose. that are authorized to develop and granting or approving by that (a) This part establishes procedures enforce environmental standards shall cooperating agency of necessary Federal for referring to the Council Federal comment on statements within their permits, licenses, or authorizations. jurisdiction, expertise, or authority (e) When a cooperating agency with interagency disagreements concerning within the time period specified for jurisdiction by law specifies mitigation proposed major Federal actions that comment in § 1506.11. A Federal agency measures it considers necessary to allow might cause unsatisfactory may reply that it has no comment. If a the agency to grant or approve environmental effects. It provides means cooperating agency is satisfied that its applicable permit, license, or related for early resolution of such views are adequately reflected in the requirements or concurrences, the disagreements. (b) Under section 309 of the Clean Air environmental impact statement, it cooperating agency shall cite to its Act (42 U.S.C. 7609), the Administrator should reply that it has no comment. applicable statutory authority. of the Environmental Protection Agency § 1503.3 Specificity of comments and § 1503.4 Response to comments. is directed to review and comment information. (a) An agency preparing a final publicly on the environmental impacts (a) To promote informed decision environmental impact statement shall of Federal activities, including actions making, comments on an environmental consider substantive comments timely for which environmental impact impact statement or on a proposed submitted during the public comment statements are prepared. If after this action shall be as specific as possible, period and may respond individually review the Administrator determines may address either the adequacy of the and collectively. In the final that the matter is ‘‘unsatisfactory from statement or the merits of the environmental impact statement, the the standpoint of public health or alternatives discussed or both, and shall agency may: welfare or environmental quality,’’ provide as much detail as necessary to (1) Modify alternatives including the section 309 directs that the matter be meaningfully participate and fully proposed action. referred to the Council (hereafter inform the agency of the commenter’s (2) Develop and evaluate alternatives ‘‘environmental referrals’’). position. Comments should explain why not previously given serious (c) Under section 102(2)(C) of NEPA the issue raised is significant to the consideration by the agency. (42 U.S.C. 4332(2)(C)), other Federal consideration of potential (3) Supplement, improve, or modify agencies may produce similar reviews of environmental impacts and alternatives its analyses. environmental impact statements, to the proposed action, as well as (4) Make factual corrections. including judgments on the economic and employment impacts, and (5) Explain why the comments do not acceptability of anticipated other impacts affecting the quality of the warrant further agency response. environmental impacts. These reviews human environment. Comments should (b) All substantive comments received must be made available to the President, reference the corresponding section or on the draft statement (or summaries the Council and the public.

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§ 1504.2 Criteria for referral. (i) Identify any disputed material facts evidence does not support the position Environmental referrals should be and incorporate (by reference if of an agency). made to the Council only after appropriate) agreed upon facts; (7) When appropriate, submit the concerted, timely (as early as practicable (ii) Identify any existing referral and the response together with in the process), but unsuccessful environmental requirements or policies the Council’s recommendation to the attempts to resolve differences with the which would be violated by the matter; President for action. lead agency. In determining what (iii) Present the reasons for the (g) The Council shall take no longer environmental objections to the matter referral; than 60 days to complete the actions are appropriate to refer to the Council, (ii) Contain a finding by the agency specified in paragraph (f)(2), (3), or (5) an agency should weigh potential whether the issue raised is of national of this section. adverse environmental impacts, importance because of the threat to (h) The referral process is not considering: national environmental resources or intended to create any private rights of (a) Possible violation of national policies or for some other reason; action or to be judicially reviewable environmental standards or policies. (iii) Review the steps taken by the because any voluntary resolutions by (b) Severity. referring agency to bring its concerns to the agency parties do not represent final (c) Geographical scope. the attention of the lead agency at the agency action and instead are only (d) Duration. earliest possible time; and provisional and dependent on later (e) Importance as precedents. (iv) Give the referring agency’s (f) Availability of environmentally consistent action by the action agencies. recommendations as to what mitigation ■ 6. Revise part 1505 to read as follows: preferable alternatives. alternative, further study, or other (g) Economic and technical course of action (including PART 1505—NEPA AND AGENCY considerations, including the economic abandonment of the matter) are DECISION MAKING costs of delaying or impeding the necessary to remedy the situation. decision making of the agencies (d) No later than 25 days after the Sec. involved in the action. referral to the Council, the lead agency 1505.1 [Reserved] 1505.2 Record of decision in cases requiring § 1504.3 Procedure for referrals and may deliver a response to the Council environmental impact statements. response. and the referring agency. If the lead 1505.3 Implementing the decision. (a) A Federal agency making the agency requests more time and gives assurance that the matter will not go Authority: 42 U.S.C. 4321–4347; 42 U.S.C. referral to the Council shall: 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 (1) Advise the lead agency at the forward in the interim, the Council may FR 4247, Mar. 7, 1970, as amended by E.O. earliest possible time that it intends to grant an extension. The response shall: 11991, 42 FR 26967, May 25, 1977; and E.O. refer a matter to the Council unless a (1) Address fully the issues raised in 13807, 82 FR 40463, Aug. 24, 2017. satisfactory agreement is reached. the referral. (2) Include such advice whenever (2) Be supported by evidence and § 1505.1 [Reserved] explanations, as appropriate. practicable in the referring agency’s § 1505.2 Record of decision in cases comments on the environmental (3) Give the lead agency’s response to requiring environmental impact statements. assessment or draft environmental the referring agency’s recommendations. At the time of its decision (§ 1506.11) impact statement. (e) Applicants may provide views in (3) Identify any essential information writing to the Council no later than the or, if appropriate, its recommendation to that is lacking and request that the lead response. Congress, each agency shall prepare and agency make it available at the earliest (f) No later than 25 days after receipt timely publish a concise public record possible time. of both the referral and any response or of decision or joint record of decision. (4) Send copies of such advice to the upon being informed that there will be The record, which each agency may Council. no response (unless the lead agency integrate into any other record it (b) The referring agency shall deliver agrees to a longer time), the Council prepares, shall: its referral to the Council no later than may take one or more of the following (a) State the decision. 25 days after the lead agency has made actions: (b) Identify all alternatives considered the final environmental impact (1) Conclude that the process of by the agency in reaching its decision, statement available to the referral and response has successfully specifying the alternative or alternatives Environmental Protection Agency, resolved the problem. which were considered to be participating agencies, and the public, (2) Initiate discussions with the environmentally preferable. An agency and in the case of an environmental agencies with the objective of mediation may discuss preferences among assessment, no later than 25 days after with referring and lead agencies. alternatives based on relevant factors the lead agency makes it available. (3) Obtain additional views and including economic and technical Except when the lead agency grants an information. considerations and agency statutory extension of this period, the Council (4) Determine that the issue is not one missions. An agency shall identify and will not accept a referral after that date. of national importance and request the discuss all such factors, including any (c) The referral shall consist of: referring and lead agencies to pursue essential considerations of national (1) A copy of the letter signed by the their decision process. policy which were balanced by the head of the referring agency and (5) Determine that the issue should be agency in making its decision and state delivered to the lead agency informing further negotiated by the referring and how those considerations entered into the lead agency of the referral and the lead agencies and is not appropriate for its decision. reasons for it. Council consideration until one or more (c) State whether the agency has (2) A statement supported by factual heads of agencies report to the Council adopted all practicable means to avoid evidence leading to the conclusion that that the agencies’ disagreements are or minimize environmental harm from the matter is unsatisfactory from the irreconcilable. the alternative selected, and if not, why standpoint of public health or welfare or (6) Publish its findings and the agency did not. The agency shall environmental quality. The statement recommendations (including where adopt and summarize, where applicable, shall: appropriate a finding that the submitted a monitoring and enforcement program

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for any enforceable mitigation impact, as provided in § 1501.6, or conducted in support of Federal, State, requirements or commitments. record of decision, as provided in Tribal, or local environmental reviews (d) Address any comments or § 1505.2, no action concerning the or authorization decisions, unless the objections received on the final proposal may be taken which would: agencies are specifically barred from environmental impact statement’s (1) Have an adverse environmental doing so by some other law. Except for submitted alternatives, information, and impact; or cases covered by paragraph (a) of this analyses section. (2) Limit the choice of reasonable section, such cooperation shall to the (e) Include the decision maker’s alternatives. fullest extent practicable include: certification regarding the agency’s (b) If any agency is considering an (1) Joint planning processes. consideration of the submitted application from a non-Federal entity, (2) Joint environmental research and alternatives, information, and analyses and is aware that the applicant is about studies. submitted by public commenters to take an action within the agency’s (3) Joint public hearings (except (§§ 1502.17 and 1502.18). jurisdiction that would meet either of where otherwise provided by statute). the criteria in paragraph (a) of this (4) Joint environmental assessments. § 1505.3 Implementing the decision. section, then the agency shall promptly (c) Agencies shall cooperate with Agencies may provide for monitoring notify the applicant that the agency will State, Tribal, and local agencies to the to assure that their decisions are carried take appropriate action to ensure that fullest extent practicable to reduce out and should do so in important cases. the objectives and procedures of NEPA duplication between NEPA and Mitigation (§ 1505.2(c)) and other are achieved. This section does not comparable State, Tribal, and local conditions established in the preclude development by applicants of requirements, unless the agencies are environmental impact statement or plans or designs or performance of other specifically barred from doing so by during its review and committed as part activities necessary to support an some other law. Except for cases of the decision shall be implemented by application for Federal, State, Tribal, or covered by paragraph (a) of this section, the lead agency or other appropriate local permits or assistance. An agency such cooperation shall include, to the consenting agency. The lead agency considering a proposed action for fullest extent practicable, joint shall: Federal funding may authorize such environmental impact statements. In (a) Include appropriate conditions in activities, including, but not limited to, such cases one or more Federal agencies grants, permits or other approvals. acquisition of interests in land (e.g., fee and one or more State, Tribal, or local (b) Condition funding of actions on simple, rights-of-way, and conservation agencies shall be joint lead agencies. mitigation. easements), purchase of long lead-time Where State or Tribal laws or local (c) Upon request, inform cooperating equipment, and purchase options made ordinances have environmental impact or participating agencies on progress in by applicants. statement or similar requirements in carrying out mitigation measures which (c) While work on a required addition to but not in conflict with they have proposed and which were programmatic environmental impact those in NEPA, Federal agencies may adopted by the agency making the statement or environmental assessment cooperate in fulfilling these decision. is in progress and the action is not requirements, as well as those of Federal (d) Upon request, publish the results covered by an existing programmatic laws, so that one document will comply of relevant monitoring. statement, agencies shall not undertake with all applicable laws. ■ 7. Revise part 1506 to read as follows: in the interim any major Federal action (d) To better integrate environmental covered by the program which may impact statements into State, Tribal, or PART 1506—OTHER REQUIREMENTS significantly affect the quality of the local planning processes, environmental OF NEPA human environment unless such action: impact statements shall discuss any (1) Is justified independently of the inconsistency of a proposed action with Sec. program; any approved State, Tribal, or local plan 1506.1 Limitations on actions during NEPA or law (whether or not federally process. (2) Is itself accompanied by an 1506.2 Elimination of duplication with adequate environmental impact sanctioned). Where an inconsistency State, Tribal, and local procedures. statement; and exists, the statement should describe the 1506.3 Adoption. (3) Will not prejudice the ultimate extent to which the agency would 1506.4 Combining documents. decision on the program. Interim action reconcile its proposed action with the 1506.5 Agency responsibility for prejudices the ultimate decision on the plan or law. While the statement should environmental documents. program when it tends to determine discuss any inconsistencies, NEPA does 1506.6 Public involvement. subsequent development or limit not require reconciliation. 1506.7 Further guidance. alternatives. 1506.8 Proposals for legislation. § 1506.3 Adoption. 1506.9 Proposals for regulations. § 1506.2 Elimination of duplication with (a) An agency may adopt a Federal 1506.10 Filing requirements. State, Tribal, and local procedures. environmental assessment, draft or final 1506.11 Timing of agency action. (a) Federal agencies are authorized to environmental impact statement, or 1506.12 Emergencies. 1506.13 Effective date. cooperate with State, Tribal, and local portion thereof, provided that the agencies that are responsible for assessment, statement, or portion Authority: 42 U.S.C. 4321–4347; 42 U.S.C. preparing environmental documents, thereof meets the standards for an 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 including those prepared pursuant to adequate assessment or statement under FR 4247, Mar. 7, 1970, as amended by E.O. 11991, 42 FR 26967, May 25, 1977; and E.O. section 102(2)(D) of NEPA. the regulations in parts 1500 through 13807, 82 FR 40463, Aug. 24, 2017. (b) Agencies shall cooperate with 1508. State, Tribal, and local agencies to the (b) If the actions covered by the § 1506.1 Limitations on actions during fullest extent practicable to reduce original environmental impact NEPA process. duplication between NEPA and State, statement and the proposed action are (a) Except as provided in paragraphs Tribal, and local requirements, substantially the same, the agency (b) and (c) of this section, until an including through use of environmental adopting another agency’s statement agency issues a finding of no significant studies, analysis, and decisions shall republish it as a final statement.

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Otherwise, the adopting agency shall an environmental assessment, the (vi) Notice to potentially interested treat the statement as a draft and agency, besides fulfilling the community organizations including republish it (except as provided in requirements of paragraph (a) of this small business associations. paragraph (c) of this section), consistent section, shall make its own evaluation (vii) Publication in newsletters that with § 1506.10. of the environmental issues and take may be expected to reach potentially (c) A cooperating agency may adopt in responsibility for the scope and content interested persons. its record of decision without of the environmental assessment. (viii) Direct mailing to owners and republishing the environmental impact (c) Environmental impact statements. occupants of nearby or affected statement of a lead agency when, after Except as provided in §§ 1506.2 and property. an independent review of the statement, 1506.3, the lead agency, a contractor or (ix) Posting of notice on and off site the cooperating agency concludes that applicant under the direction of the lead in the area where the action is to be its comments and suggestions have been agency, or a cooperating agency, where located. satisfied. appropriate (§ 1501.8(b)), may prepare (x) Notice through electronic media (d) If the actions covered by the an environmental impact statement (e.g., a project or agency website, email, original environmental assessment and pursuant to the requirements of NEPA. or social media). For actions occurring the proposed action are substantially the (1) If a contractor or applicant in whole or part in an area with limited same, an agency may adopt another prepares the document, the responsible access to high-speed internet, public agency’s environmental assessment in Federal official shall provide guidance, notification may not be limited to solely its finding of no significant impact and participate in its preparation, electronic methods. provide notice consistent with § 1501.6. independently evaluate it prior to its (c) Hold or sponsor public hearings, (e) The adopting agency shall specify approval, and take responsibility for its public meetings, or other opportunities if one of the following circumstances are scope and contents. for public engagement whenever present: appropriate or in accordance with (1) The agency is adopting an (2) Nothing in this section is intended to prohibit any agency from requesting statutory requirements applicable to the assessment or statement that is not final agency. Agencies may conduct public within the agency that prepared it. any person, including the applicant, to submit information to it or to prohibit hearings and public meetings by means (2) The action assessed in the of electronic communication except assessment or statement is the subject of any person from submitting information to any agency for use in preparing where another format is required by a referral under part 1504. law. (3) The assessment or statement’s environmental documents. (d) Solicit appropriate information adequacy is the subject of a judicial § 1506.6 Public involvement. from the public. action that is not final. (e) Explain in its procedures where (f) An agency may adopt another Agencies shall: interested persons can get information agency’s determination that a (a) Make diligent efforts to involve the or status reports on environmental categorical exclusion applies to a public in preparing and implementing proposed action if the adopting agency’s their NEPA procedures (§ 1507.3). impact statements and other elements of proposed action is substantially the (b) Provide public notice of NEPA- the NEPA process. (f) Make environmental impact same. related hearings, public meetings, and other opportunities for public statements, the comments received, and § 1506.4 Combining documents. engagement, and the availability of any underlying documents available to Agencies should combine, to the environmental documents so as to the public pursuant to the provisions of fullest extent practicable, any inform those persons and agencies who the Freedom of Information Act, as environmental document with any other may be interested or affected by their amended (5 U.S.C. 552). agency document to reduce duplication proposed actions. § 1506.7 Further guidance. and paperwork. (1) In all cases, the agency shall notify The Council may provide further § 1506.5 Agency responsibility for those who have requested notice on an guidance concerning NEPA and its environmental documents. individual action. procedures consistent with Executive (a) Information. If an agency requires (2) In the case of an action with effects Order 13807, Establishing Discipline an applicant to submit environmental of national concern, notice shall include and Accountability in the information for possible use by the publication in the Federal Register. An Environmental Review and Permitting agency in preparing an environmental agency may notify organizations that Process for Infrastructure Projects document, then the agency should assist have requested regular notice. Agencies (August 5, 2017), Executive Order the applicant by outlining the types of shall maintain a list of such 13891, Promoting the Rule of Law information required. The agency shall organizations. Through Improved Agency Guidance independently evaluate the information (3) In the case of an action with effects Documents (October 9, 2019), and any submitted and shall be responsible for primarily of local concern, the notice other applicable Executive orders. its accuracy. If the agency chooses to may include: use the information submitted by the (i) Notice to State and local agencies § 1506.8 Proposals for legislation. applicant in the environmental that may be interested or affected by the (a) When developing or providing document, either directly or by proposed action. significant cooperation and support in reference, then the names of the persons (ii) Notice to affected Tribal the development of legislation, agencies responsible for the independent governments. shall integrate the NEPA process for evaluation shall be included in the list (iii) Following the affected State or proposals for legislation significantly of preparers (§ 1502.19). It is the intent Tribe’s public notice procedures for affecting the quality of the human of this paragraph that acceptable work comparable actions. environment with the legislative process not be redone, but that it be verified by (iv) Publication in local newspapers of the Congress. The test for significant the agency. (in papers of general circulation rather cooperation is whether the proposal is (b) Environmental assessments. If an than legal papers). in fact predominantly that of the agency agency permits an applicant to prepare (v) Notice through other local media. rather than another source. Drafting

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does not by itself constitute significant Congressional committees with (1) Some agencies have a formally cooperation. Only the agency which has jurisdiction. established appeal process which allows primary responsibility for the subject other agencies or the public to take matter involved will prepare a § 1506.9 Proposals for regulations. appeals on a decision and make their legislative environmental impact (a) Where the proposal for major views known, after publication of the statement. Federal action is the promulgation of a final environmental impact statement. (b) A legislative environmental impact rule or regulation, analyses prepared In such cases, where a real opportunity statement is the detailed statement pursuant to other statutory or Executive exists to alter the decision, the decision required by law to be included in a order requirements may serve as the may be made and recorded at the same recommendation or report on a functional equivalent of the EIS and be time the environmental impact legislative proposal to Congress. A sufficient to comply with NEPA. statement is published. This means that legislative environmental impact (b) To determine that an analysis the period for appeal of the decision and statement shall be considered part of the serves as the functional equivalent of an the 30-day period set forth in paragraph formal transmittal of a legislative EIS, an agency shall find that: (b)(2) of this section may run proposal to Congress; however, it may (1) There are substantive and concurrently. In such cases, the be transmitted to Congress up to 30 days procedural standards that ensure full environmental impact statement shall later in order to allow time for and adequate consideration of explain the timing and the public’s right completion of an accurate statement that environmental issues; of appeal and provide notification (2) There is public participation can serve as the basis for public and consistent with § 1506.10. Congressional debate. The statement before a final alternative is selected; and (2) An agency engaged in rulemaking must be available in time for (3) A purpose of the analysis that the under the Administrative Procedure Act Congressional hearings and agency is conducting is to examine or other statute for the purpose of deliberations. environmental issues. protecting the public health or safety (c) Preparation of a legislative § 1506.10 Filing requirements. may waive the time period in paragraph environmental impact statement shall (a) Environmental impact statements (b)(2) of this section, publish a decision conform to the requirements of the together with comments and responses on the final rule simultaneously with regulations in parts 1500 through 1508, shall be filed with the Environmental publication of the notice of the except as follows: Protection Agency, Office of Federal availability of the final environmental (1) There need not be a scoping Activities, consistent with EPA’s impact statement and provide process. procedures. notification consistent with § 1506.10, (2) Agencies shall prepare the (b) Statements shall be filed with the as described in paragraph (a) of this legislative statement in the same EPA no earlier than they are also section. manner as a draft environmental impact transmitted to participating agencies statement and need not prepare a final (d) If an agency files the final and made available to the public. EPA environmental impact statement within statement unless any of the following may issue guidelines to agencies to conditions exist. In such cases, the 90 days of the filing of the draft implement its responsibilities under environmental impact statement with agency shall prepare and publish the this section and § 1506.11. statements consistent with §§ 1503.1 the Environmental Protection Agency, and 1506.11: § 1506.11 Timing of agency action. the decision-making period and the 90- (i) A Congressional committee with (a) The Environmental Protection day period may run concurrently. jurisdiction over the proposal has a rule Agency shall publish a notice in the However, subject to paragraph (e) of this requiring both draft and final Federal Register each week of the section, agencies shall allow at least 45 environmental impact statements. environmental impact statements filed days for comments on draft statements. (ii) The proposal results from a study since its prior notice. The minimum (e) The lead agency may extend the process required by statute (such as time periods set forth in this section minimum periods in paragraph (b) of those required by the Wild and Scenic shall be calculated from the date of this section and provide notification Rivers Act (16 U.S.C. 1271 et seq.) and publication of this notice. consistent with § 1506.10. The the Wilderness Act (16 U.S.C. 1131 et (b) Unless otherwise provided by law, Environmental Protection Agency may seq.)). including statutory provisions for upon a showing by the lead agency of (iii) Legislative approval is sought for combining a final environmental impact compelling reasons of national policy Federal or federally assisted statement and record of decision, reduce the minimum periods and may construction or other projects which the Federal agencies may not make or issue upon a showing by any other Federal agency recommends be located at a record of decision under § 1505.2 for agency of compelling reasons of specific geographic locations. For the proposed action until the later of the national policy also extend the proposals requiring an environmental following dates: minimum periods, but only after impact statement for the acquisition of (1) 90 days after publication of the consultation with the lead agency. The space by the General Services notice described above in paragraph (a) lead agency may modify the minimum Administration, a draft statement shall of this section for a draft environmental periods when necessary to comply with accompany the Prospectus or the 11(b) impact statement. other specific statutory requirements. Report of Building Project Surveys to (2) 30 days after publication of the (§ 1507.3(e)(2)) Failure to file timely the Congress, and a final statement shall notice described above in paragraph (a) comments shall not be a sufficient be completed before site acquisition. of this section for a final environmental reason for extending a period. If the lead (iv) The agency decides to prepare impact statement. agency does not concur with the draft and final statements. (c) An agency may make an exception extension of time, EPA may not extend (d) Comments on the legislative to the rule on timing set forth in it for more than 30 days. When the statement shall be given to the lead paragraph (b) of this section for a Environmental Protection Agency agency which shall forward them along proposed action in the following reduces or extends any period of time it with its own responses to the circumstances. shall notify the Council.

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§ 1506.12 Emergencies. to ensure that presently unquantified their procedures, especially for Where emergency circumstances environmental amenities and values programs requesting similar information make it necessary to take an action with may be given appropriate consideration. from applicants. significant environmental impact (c) Prepare adequate environmental (2) Agencies shall provide an without observing the provisions of the impact statements pursuant to section opportunity for public review and regulations in parts 1500 through 1508, 102(2)(C) of NEPA and cooperate on the review by the Council for conformity the Federal agency taking the action development of statements in the areas with the Act and the regulations in parts should consult with the Council about where the agency has jurisdiction by 1500 through 1508 before adopting their alternative arrangements for compliance law or special expertise or is authorized final procedures. The Council shall with section 102(2)(C) of NEPA. to develop and enforce environmental complete its review within 30 days of Agencies and the Council will limit standards. the receipt of the proposed final such arrangements to actions necessary (d) Study, develop, and describe procedures. Once in effect, the agency to control the immediate impacts of the alternatives to recommended courses of shall publish its NEPA procedures and emergency. Other actions remain subject action in any proposal which involves ensure that they are readily available to to NEPA review. unresolved conflicts concerning the public. alternative uses of available resources. (b) Agencies shall adopt, as necessary, § 1506.13 Effective date. This requirement of section 102(2)(E) of agency NEPA procedures to improve The regulations in parts 1500 through NEPA extends to all such proposals, not agency efficiency and ensure that 1508 apply to any NEPA process begun just the more limited scope of section decisions are made in accordance with after [EFFECTIVE DATE OF FINAL 102(2)(C)(iii) of NEPA where the the Act’s procedural requirements. Such RULE]. An agency may apply these discussion of alternatives is confined to procedures shall include, but not be regulations to ongoing activities and impact statements. limited to: environmental documents begun before (e) Comply with the requirements of (1) Implementing procedures under [EFFECTIVE DATE OF FINAL RULE]. section 102(2)(H) of NEPA that the section 102(2) of NEPA to achieve the ■ 8. Revise part 1507 to read as follows: agency initiate and utilize ecological requirements of sections 101 and 102(1). information in the planning and (2) Designating the major decision PART 1507—AGENCY COMPLIANCE development of resource-oriented points for the agency’s principal projects. programs likely to have a significant Sec. (f) Fulfill the requirements of sections 1507.1 Compliance. effect on the human environment and 102(2)(F), 102(2)(G), and 102(2)(I), of 1507.2 Agency capability to comply. assuring that the NEPA process NEPA, Executive Order 11514, 1507.3 Agency NEPA procedures. corresponds with them. 1507.4 Agency NEPA program information. Protection and Enhancement of Environmental Quality, section 2, as (3) Requiring that relevant Authority: 42 U.S.C. 4321–4347; 42 U.S.C. amended by Executive Order 11991, environmental documents, comments, 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 and responses be part of the record in FR 4247, Mar. 7, 1970, as amended by E.O. Relating to Protection and Enhancement of Environmental Quality, and formal rulemaking or adjudicatory 11991, 42 FR 26967, May 25, 1977; and E.O. proceedings. 13807, 82 FR 40463, Aug. 24, 2017. Executive Order 13807, Establishing Discipline and Accountability in the (4) Requiring that relevant § 1507.1 Compliance. Environmental Review and Permitting environmental documents, comments, All agencies of the Federal for Infrastructure Projects. and responses accompany the proposal Government shall comply with the through existing agency review regulations in parts 1500 through 1508. § 1507.3 Agency NEPA procedures. processes so that decision makers use (a) No more than 12 months after the statement in making decisions. § 1507.2 Agency capability to comply. [PUBLICATION DATE OF FINAL (5) Requiring that the alternatives Each agency shall be capable (in terms RULE] in the Federal Register, or 9 considered by the decision maker are of personnel and other resources) of months after the establishment of an encompassed by the range of complying with the requirements of agency, whichever comes later, each alternatives discussed in the relevant NEPA and the regulations in parts 1500 agency shall develop or revise, as environmental documents and that the through 1508. Such compliance may necessary, proposed procedures to decision maker consider the alternatives include use of the resources of other implement the regulations in parts 1500 described in the environmental impact agencies, applicants, and other through 1508, including to eliminate statement. If another decision document participants in the NEPA process, but any inconsistencies with these accompanies the relevant environmental the using agency shall itself have regulations. When the agency is a documents to the decision maker, sufficient capability to evaluate what department, major subunits are agencies are encouraged to make others do for it and account for the encouraged (with the consent of the available to the public before the contributions of others. Agencies shall: department) to adopt their own decision is made any part of that (a) Fulfill the requirements of section procedures. Except as otherwise document that relates to the comparison 102(2)(A) of NEPA to utilize a provided by law or for agency of alternatives. systematic, interdisciplinary approach efficiency, agency NEPA procedures (6) Requiring the combination of which will ensure the integrated use of shall not impose additional procedures environmental documents with other the natural and social sciences and the or requirements beyond those set forth agency documents, and may include environmental design arts in planning in these regulations. designation of analyses or processes that and in decision making which may have (1) Each agency shall consult with the shall serve the function of agency an impact on the human environment. Council while developing or revising its compliance with NEPA and the Agencies shall designate a senior agency proposed procedures and before regulations in parts 1500 through 1508. official to be responsible for overall publishing them in the Federal Register To determine that an analysis review of agency NEPA compliance. for comment. Agencies with similar individually or analyses in the aggregate (b) Identify methods and procedures programs should consult with each serve as the functional equivalent of an required by section 102(2)(B) of NEPA other and the Council to coordinate EIS, an agency shall find that:

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(i) There are substantive and criteria established by an Executive (3) Agency policy documents, orders, procedural standards that ensure full Order or statute to be kept secret in the terminology, and explanatory materials and adequate consideration of interest of national defense or foreign regarding agency decision-making environmental issues; policy and are in fact properly classified processes; (ii) There is public participation pursuant to such Executive Order or (4) Agency planning program before a final alternative is selected; and statute. Agencies may safeguard and information, plans, and planning tools; (iii) A purpose of the analysis that the restrict from public dissemination and agency is conducting is to examine environmental assessments and (5) A database searchable by environmental issues. environmental impact statements that geographic information, document (c) Agency procedures may include address classified proposals in status, document type, and project type. identification of actions that are not accordance with agencies’ own (b) Agencies shall provide for efficient subject to NEPA, including: regulations applicable to classified and effective interagency coordination (1) Non-major Federal actions; information. Agencies should organize of their environmental program (2) Actions that are non-discretionary these documents so that classified websites, including use of shared actions, in whole or in part; portions are included as annexes, so databases or application programming (3) Actions expressly exempt from that the agencies can make the interface, in their implementation of NEPA under another statute; unclassified portions available to the NEPA and related authorities. (4) Actions for which compliance public. ■ 9. Revise part 1508 to read as follows: with NEPA would clearly and (2) Provide for periods of time other fundamentally conflict with the than those presented in § 1506.11 when PART 1508—DEFINITIONS requirements of another statute; and necessary to comply with other specific (5) Actions for which compliance statutory requirements. Authority: 42 U.S.C. 4321–4347; 42 U.S.C. with NEPA would be inconsistent with (3) Provide that where there is a 4371–4375; 42 U.S.C. 7609; E.O. 11514, 35 Congressional intent due to the FR 4247, Mar. 7, 1970, as amended by E.O. lengthy period between the agency’s requirements of another statute. 11991, 42 FR 26967, May 25, 1977; and E.O. (d) Agency procedures shall comply decision to prepare an environmental 13807, 82 FR 40463, Aug. 24, 2017. impact statement and the time of actual with the regulations in parts 1500 § 1508.1 Definitions. through 1508 except where compliance preparation, the agency may publish the would be inconsistent with statutory notice of intent required by § 1501.9 at The following definitions apply to the requirements and shall include: a reasonable time in advance of regulations in parts 1500 through 1508. (1) Those procedures required by preparation of the draft statement. Federal agencies shall use these terms §§ 1501.2(b)(4) (assistance to Agency procedures shall provide for uniformly throughout the Federal applicants), and 1506.6(e) (status publication of supplemental notices to Government. information). inform the public of a pause in its (a) Act or NEPA means the National (2) Specific criteria for and preparation of an environmental impact Environmental Policy Act, as amended identification of those typical classes of statement and for any agency decision (42 U.S.C. 4321, et seq.). action: to withdraw its notice of intent to (b) Affecting means will or may have (i) Which normally do require prepare an environmental impact an effect on. environmental impact statements. statement. (c) Authorization means any license, (ii) Which normally do not require (4) Adopt procedures to combine its permit, approval, finding, either an environmental impact environmental assessment process with determination, or other administrative statement or an environmental its scoping process. decision issued by an agency that is assessment and do not have a significant (5) Provide for a process where the required or authorized under Federal effect on the human environment agency may consult with and apply a law in order to implement a proposed (categorical exclusions (§ 1501.4)). Any categorical exclusion listed in another action. procedures under this section shall agency’s NEPA procedures to its (d) Categorical exclusion means a provide for extraordinary circumstances proposed action by establishing a category of actions which the agency in which a normally excluded action process that ensures application of the has determined in its agency NEPA may have a significant environmental categorical exclusion is appropriate. procedures (§ 1507.3) normally do not effect. Agency NEPA procedures shall have a significant effect on the human § 1507.4 Agency NEPA program environment. identify where documentation of a information. categorical exclusion determination is (e) Cooperating agency means any required. (a) To allow agencies and the public Federal agency (and a State, Tribal, or (iii) Which normally require to efficiently and effectively access local agency with agreement of the lead environmental assessments but not information about NEPA reviews, agency) other than a lead agency which necessarily environmental impact agencies shall provide for agency has jurisdiction by law or special statements. websites or other means to make expertise with respect to any (3) Procedures for introducing a available environmental documents, environmental impact involved in a supplement to an environmental relevant notices, and other relevant proposal (or a reasonable alternative) for assessment or environmental impact information for use by agencies, legislation or other major Federal action statement into its formal administrative applicants, and interested persons. Such significantly affecting the quality of the record, if such a record exists. means of publication may include: human environment. (e) Agency procedures may: (1) Agency planning and (f) Council means the Council on (1) Include specific criteria for environmental documents that guide Environmental Quality established by providing limited exceptions to the agency management and provide for title II of the Act. provisions of the regulations in parts public involvement in agency planning (g) Effects or impacts means effects of 1500 through 1508 for classified processes; the proposed action or alternatives that proposals. These are proposed actions (2) A directory of pending and final are reasonably foreseeable and have a that are specifically authorized under environmental documents; reasonably close causal relationship to

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the proposed action or alternatives. (m) Human environment means adopted pursuant to the Administrative Effects include reasonably foreseeable comprehensively the natural and Procedure Act, 5 U.S.C. 551 et seq.; effects that occur at the same time and physical environment and the implementation of treaties and place and may include reasonably relationship of present and future international conventions or foreseeable effects that are later in time generations of Americans with that agreements; formal documents or farther removed in distance. environment. (See the definition of establishing an agency’s policies which (1) Effects include ecological (such as ‘‘effects.’’) will result in or substantially alter the effects on natural resources and on (n) Jurisdiction by law means agency agency programs. the components, structures, and authority to approve, veto, or finance all (ii) Adoption of formal plans, such as functioning of affected ecosystems), or part of the proposal. official documents prepared or aesthetic, historic, cultural, economic (o) Lead agency means the agency or approved by Federal agencies which (such as the effects on employment), agencies, in the case of joint lead prescribe alternative uses of Federal social, or health effects. Effects may also agencies, preparing or having taken resources, upon which future agency include those resulting from actions that primary responsibility for preparing the actions will be based. may have both beneficial and environmental impact statement. (iii) Adoption of programs, such as a detrimental effects, even if on balance (p) Legislation means a bill or group of concerted actions to implement the agency believes that the effect will legislative proposal to Congress a specific policy or plan; systematic and be beneficial. developed by or with the significant connected agency decisions allocating cooperation and support of a Federal (2) A ‘‘but for’’ causal relationship is agency resources to implement a agency, but does not include requests insufficient to make an agency specific statutory program or executive for appropriations or legislation responsible for a particular effect under directive. recommended by the President. (iv) Approval of specific projects, NEPA. Effects should not be considered (q) Major Federal action or action significant if they are remote in time, such as construction or management means an action subject to Federal activities located in a defined geographically remote, or the product of control and responsibility with effects a lengthy causal chain. Effects do not geographic area. Projects include actions that may be significant. Major Federal approved by permit or other regulatory include effects that the agency has no action does not include non- ability to prevent due to its limited decision as well as Federal and federally discretionary decisions made in assisted activities. statutory authority or would occur accordance with the agency’s statutory regardless of the proposed action. (r) Matter includes for purposes of authority or activities that do not result part 1504: Analysis of cumulative effects is not in final agency action under the required. (1) With respect to the Environmental Administrative Procedure Act. Major Protection Agency, any proposed (h) Environmental assessment means Federal action also does not include a concise public document prepared by legislation, project, action or regulation non-Federal projects with minimal as those terms are used in section 309(a) a Federal agency to aid an agency’s Federal funding or minimal Federal compliance with the Act and support its of the Clean Air Act (42 U.S.C. 7609). involvement where the agency cannot (2) With respect to all other agencies, determination of whether to prepare an control the outcome of the project. any proposed major Federal action to environmental impact statement or (1) Major Federal actions may include which section 102(2)(C) of NEPA finding of no significant impact, as new and continuing activities, including applies. provided in § 1501.6. projects and programs entirely or partly (s) Mitigation means measures that (i) Environmental document means an financed, assisted, conducted, regulated, avoid, minimize, or compensate for environmental assessment, or approved by Federal agencies; new or reasonably foreseeable impacts to the environmental impact statement, revised agency rules, regulations, plans, human environment caused by a finding of no significant impact, or policies, or procedures; and legislative proposed action as described in an notice of intent. proposals (§ 1506.8). Actions do not environmental document or record of (j) Environmental impact statement include funding assistance solely in the decision and that have a nexus to the means a detailed written statement as form of general revenue sharing funds effects of a proposed action. While required by section 102(2)(C) of NEPA. with no Federal agency control over the NEPA requires consideration of (k) Federal agency means all agencies subsequent use of such funds. Actions mitigation, it does not mandate the form of the Federal Government. It does not do not include loans, loan guarantees, or or adoption of any mitigation. mean the Congress, the Judiciary, or the other forms of financial assistance Mitigation includes: President, including the performance of where the Federal agency does not (1) Avoiding the impact altogether by staff functions for the President in his exercise sufficient control and not taking a certain action or parts of an Executive Office. It also includes, for responsibility over the effects of the action. purposes of the regulations in parts action. Actions do not include farm (2) Minimizing impacts by limiting 1500 through 1508, States, units of ownership and operating loan the degree or magnitude of the action general local government, and Tribal guarantees by the Farm Service Agency and its implementation. governments assuming NEPA pursuant to 7 U.S.C. 1925 and 1941 (3) Rectifying the impact by repairing, responsibilities from a Federal agency through 1949 and business loan rehabilitating, or restoring the affected pursuant to statute. guarantees by the Small Business environment. (l) Finding of no significant impact Administration pursuant to 15 U.S.C. (4) Reducing or eliminating the means a document by a Federal agency 636(a), 636(m), and 695 through 697f. impact over time by preservation and briefly presenting the reasons why an Actions do not include bringing judicial maintenance operations during the life action, not otherwise categorically or administrative civil or criminal of the action. excluded (§ 1501.4), will not have a enforcement actions. (5) Compensating for the impact by significant effect on the human (2) Major Federal actions tend to fall replacing or providing substitute environment and for which an within one of the following categories: resources or environments. environmental impact statement (i) Adoption of official policy, such as (t) NEPA process means all measures therefore will not be prepared. rules, regulations, and interpretations necessary for compliance with the

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requirements of section 2 and title I of interested persons, including electronic (dd) Senior agency official means an NEPA. publication, and adopted by agency official of assistant secretary rank or (u) Notice of intent means a public NEPA procedures pursuant to § 1507.3. higher, or equivalent, that is designated notice that an agency will prepare and (z) Reasonable alternatives means a for agency NEPA compliance, including consider an environmental impact reasonable range of alternatives that are resolving implementation issues and statement. technically and economically feasible, representing the agency analysis of the (v) Page means 500 words and does meet the purpose and need for the effects of agency actions on the human not include explanatory maps, proposed action, and, where applicable, environment in agency decision-making diagrams, graphs, tables, and other meet the goals of the applicant. processes. means of graphically displaying (ee) Special expertise means statutory (aa) Reasonably foreseeable means quantitative or geospatial information. responsibility, agency mission, or sufficiently likely to occur such that a (w) Participating agency means a related program experience. person of ordinary prudence would take Federal, State, Tribal, or local agency (ff) Tiering refers to the coverage of it into account in reaching a decision. participating in an environmental general matters in broader review or authorization of an action. (bb) Referring agency means the environmental impact statements or (x) Proposal means a proposed action Federal agency that has referred any environmental assessments (such as at a stage when an agency has a goal, is matter to the Council after a national program or policy statements) actively preparing to make a decision on determination that the matter is with subsequent narrower statements or one or more alternative means of unsatisfactory from the standpoint of environmental analyses (such as accomplishing that goal, and can public health or welfare or regional or basin-wide program meaningfully evaluate its effects. A environmental quality. statements or ultimately site-specific proposal may exist in fact as well as by (cc) Scope consists of the range of statements) incorporating by reference agency declaration that one exists. actions, alternatives, and impacts to be the general discussions and (y) Publish and publication mean considered in an environmental impact concentrating solely on the issues methods found by the agency to statement. The scope of an individual specific to the statement subsequently efficiently and effectively make statement may depend on its prepared. environmental documents and relationships to other statements [FR Doc. 2019–28106 Filed 1–9–20; 4:15 pm] information available for review by (§ 1501.11). BILLING CODE 3225–F0–P

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To: RCRC Board of Directors From: Leigh Kammerich, Regulatory Affairs Specialist

Date: March 3, 2020 Re: California Fish and Game Commission: Public Use Regulation Changes

Summary To provide an overview of Public Use Regulation Changes being proposed by the California Fish and Game Commission.

Background The California Fish and Game Commission (the Commission) is a Gubernatorially- appointed body with regulatory authority over the state’s public lands and wildlife conservation. For example, the Commission is tasked with setting take limits for game animals and fishing, controlling non-native species as well as listing (or de-listing) threatened and endangered species, and regulating uses of protected areas. This Commission typically meets monthly in locations across the state to conduct its business.

Most of the acreage the California Department of Fish and Wildlife (DFW) administers is either a wildlife area or ecological reserve. The purpose of a wildlife area is to conserve wildlife habitats and allow compatible recreation—such as hunting, fishing, education and research. Ecological reserves conserve threatened or endangered plants, animals and habitat with potentially more limited recreational opportunities. There are currently 110 designated wildlife areas (approximately 712,383 acres) and 135 designated ecological areas (approximately 230,175 acres) managed by the DFW.

As directed by the Legislature, the DFW created a Lands Pass program to fund the management of these properties by all visitors such as hikers, birdwatchers and photographers. Previously these properties were primarily funded by seasonal hunters and anglers. These one-day ($4.58) or annual ($26.49) passes must generally be purchased in advance of a visit to these areas as there are no “in-person” sales on these lands and cellular or WiFi coverage is often limited on the property. Visitors that carry valid hunting or fishing licenses, school or organized youth groups are exempt from purchasing a Lands Pass on these properties.

Issue In January, the Commission released a regulatory proposal to make public use changes to DFW’s lands, including designating recently acquired lands and removing properties the DFW no longer possesses or manages, make non-substantive changes that would

RURAL COUNTY REPRESENTATIVES OF CALIFORNIA 1215 K STREET, SUITE 1650 SACRAMENTO, CA 95814 PHONE: 916-447-4806 FAX: 916-448-3154 WEB: WWW.RCRCNET.ORG improve the clarity and consistency, as well as streamline the regulations by removing unnecessary text throughout the document.

The proposal includes designating one property as a wildlife area and seven properties as ecological reserves affecting Inyo, Mono, San Luis Obispo, Napa and Sonoma Counties. Additionally, if approved, these regulations would make other site-specific changes that impact public access and/or public safety, increase recreational opportunities, and provide resource protection on these managed lands in various RCRC member counties. Further, these proposed changes would improve consistency between federal regulations for nine National Wildlife Refuges that are also state wildlife areas managed by the DFW directly affecting Colusa, Merced, Glenn, Imperial and Sutter Counties.

The Commission is expected to adopt these regulation changes at their April 16, 2020 meeting. Written comments must be received by the Commission no later than April 16, 2020. The Commission is also accepting oral comments and feedback at two Commission meetings, one which was held on Friday, February 21st, and one upcoming meeting on April 16th at 8 a.m. in the Natural Resources Building (1416 Ninth Street, Sacramento).

Staff Recommendation Information only. For questions or more information, please contact Julie Horenstein with the Department of Fish and Wildlife Lands Program at [email protected] or (916) 324-3772. Rulemaking documents and commenting guidelines can be found in documents which are attached.

Attachments  Notice of Proposed Changes in Regulations  DFW Lands Pass Properties  DFW Map of Lands to be Designated or Removed TITLE 14. Fish and Game Commission

Notice of Proposed Changes in Regulations

NOTICE IS HEREBY GIVEN that the Fish and Game Commission (Commission), pursuant to the authority vested by sections 200, 203, 205, 265, 331, 332, 355, 710, 710.5, 710.7, 713, 1050, 1055, 1055.1, 1530, 1570, 1571, 1572, 1573, 1583, 1587, 1745, 1764, 1765, 3003.1, 3004.5, 3031, 3039, 3950, 3951, 4001, 4004, 4150, 4302, 4330, 4331, 4332, 4333, 4336, 4340, 4341, 4652, 4653, 4655, 4657, 4750, 4751, 4752, 4753, 4754, 4755, 4902, 10500, 10502 and 10504, Fish and Game Code, and to implement, interpret or make specific sections 355, 711, 713, 1050, 1055.3, 1301, 1526, 1528, 1530, 1570, 1571, 1572, 1580, 1581, 1582, 1583, 1584, 1585, 1745, 1761, 1764, 1765, 1907, 2006, 5003, 5010, 10504, Fish and Game Code and Sections 25455, 26150 and 26155, Penal Code; proposes to amend sections 550, 550.5, 551, 552, 630 and 702; Title 14, California Code of Regulations, relating to wildlife areas, public lands and ecological reserves.

Informative Digest/Policy Statement Overview

The Department proposes to designate recently acquired lands; one as a wildlife area pursuant to Fish and Game Code sections 1525 and 1526; and seven (7) as ecological reserves pursuant to Fish and Game Code Section 1580. Four properties which the Department no longer possesses or manages will be removed from the regulations.

The purposes of wildlife areas are to conserve wildlife and their associated habitats, while allowing for compatible recreation. The main uses of wildlife areas include hunting, fishing, wildlife viewing, photography, environmental education and research. The purposes of ecological reserves are to conserve threatened or endangered plants and/or animals, and/or specialized habitat types, provide opportunities for the public to observe native plants and wildlife, and provide opportunities for environmental research. Recreation on ecological reserves must be compatible with the conservation of the property’s biological resources.

The general public’s use of Department lands is governed by regulations:

• Section 550 contains regulations that pertain to all Department lands. • Section 550.5 contains more detailed regulations about reservations, passes, and permits used on Department lands. • Section 551 pertains to wildlife areas only. • Section 552 pertains to nine (9) National Wildlife Refuges where the Department manages hunting programs. • Section 630 pertains to the Department’s ecological reserves. • Section 702 pertains to fees and forms.

If approved, these proposed regulation changes would:

Designate seven ecological reserves in subsection 630(b) and one wildlife area in subsection 551(b).

Remove one ecological reserve and three wildlife areas from, respectively, subsections 630(b) and 551(b). Make site-specific regulation changes for certain properties to improve public safety, increase compatible recreational opportunities on certain properties, prohibit general public access on certain properties, provide natural resource protection and manage staff resources for the conservation and recreational purposes of these properties.

Improve consistency between federal regulations and the state regulations in Section 552 for nine Federal refuges on which the Department manages hunting programs and remove text that is duplicative or otherwise unnecessary in this section. These refuges are also listed as state wildlife areas in subsection 551(c). Update information in the “Permit Application For Special Use of Department Lands” (DFW 730 (New 01/14)) which is incorporated by reference in Subsection 702(d)(1) and associated subsections of 702 to improve their clarity and consistency.

Editorial changes are also proposed to improve the clarity and consistency of the regulations and to streamline the regulations by removing unnecessary text.

Goals and Benefits of the Regulation: The increase in compatible recreational opportunities will benefit businesses that provide recreational equipment, and supplies, and local businesses that sell food or other goods to people who recreate on Department lands.

Non-monetary benefits to the public

The Commission does not anticipate non-monetary benefits to the protection of public health and safety, worker safety, the prevention of discrimination, the promotion of fairness or social equity, and the increase in openness and transparency in business and government.

Consistency with State Regulations

The proposed regulations are neither inconsistent nor incompatible with existing State regulations. Section 20, Article IV, of the State Constitution specifies that the Legislature may delegate to the Fish and Game Commission such powers relating to the protection and propagation of fish and game as the Legislature sees fit. The Legislature has delegated to the Commission the power to regulate the uses of Department lands (Sections 1526 and 1580, Fish and Game Code). The Commission has reviewed its own regulations and finds that the proposed regulations are neither inconsistent nor incompatible with existing State regulations. The Commission has searched the California Code of Regulations and finds no other State agency regulations pertaining to the designation and compatible uses of Department lands.

NOTICE IS GIVEN that any person interested may present statements, orally or in writing, relevant to this action at a hearing to be held in the Natural Resources Building Auditorium, First Floor, 1416 Ninth Street, Sacramento, California, on Friday, February 21, 2020, at 8:00 a.m., or as soon thereafter as the matter may be heard.

NOTICE IS ALSO GIVEN that any person interested may present statements, orally or in writing, relevant to this action at a hearing to be held in the Natural Resources Building Auditorium, First Floor, 1416 Ninth Street, Sacramento, California, on Thursday, April 16, 2020, at 8:00 a.m., or as soon thereafter as the matter may be heard. It is requested, but not required, that written comments be submitted on or before noon April 10, 2020 at the address 2 given below, or by email to [email protected]. All comments (both oral and written) must be received no later than April 16, 2020, at the hearing in Sacramento, California. If you would like copies of any modifications to this proposal, please include your name and mailing address. Mailed comments should be addressed to Fish and Game Commission, P.O. Box 944209, Sacramento, CA 94244-2090.

Availability of Documents

Copies of the Notice of Proposed Action, the Initial Statement of Reasons, and the text of the regulation in underline and strikeout format can be accessed through the Commission website at www.fgc.ca.gov. The regulations as well as all related documents upon which the proposal is based (rulemaking file), are on file and available for public review from the agency representative, Melissa Miller-Henson, Acting Executive Director, Fish and Game Commission, 1416 Ninth Street, P.O. Box 944209, Sacramento, California 94244-2090, phone (916) 653-4899. Please direct requests for the above-mentioned documents and inquiries concerning the regulatory process to Melissa Miller-Henson or Sheri Tiemann at the preceding address or phone number. Julie Horenstein, Lands Program, has been designated to respond to questions on the substance of the proposed regulations. She can be reached at (916) 324-3772 or via email at [email protected].

Availability of Modified Text

If the regulations adopted by the Commission differ from but are sufficiently related to the action proposed, they will be available to the public for at least 15 days prior to the date of adoption. Circumstances beyond the control of the Commission (e.g., timing of Federal regulation adoption, timing of resource data collection, timelines do not allow, etc.) or changes made to be responsive to public recommendation and comments during the regulatory process may preclude full compliance with the 15-day comment period, and the Commission will exercise its powers under Section 265 of the Fish and Game Code. Regulations adopted pursuant to this section are not subject to the time periods for adoption, amendment or repeal of regulations prescribed in Sections 11343.4, 11346.4, 11346.8 and 11347.1 of the Government Code. Any person interested may obtain a copy of said regulations prior to the date of adoption by contacting the agency representative named herein.

If the regulatory proposal is adopted, the final statement of reasons may be obtained from the address above when it has been received from the agency program staff.

Impact of Regulatory Action/Results of the Economic Impact Assessment

The potential for significant statewide adverse economic impacts that might result from the proposed regulatory action has been assessed, and the following initial determinations relative to the required statutory categories have been made:

(a) Significant Statewide Adverse Economic Impact Directly Affecting Businesses, Including the Ability of California Businesses to Compete with Businesses in Other States:

The proposed action will not have significant statewide adverse economic impacts directly affecting business, including the ability of California businesses to compete with businesses in

3 other states because the regulatory actions affect undeveloped land and are not anticipated to have any net impact on recreational uses.

(b) Impact on the Creation or Elimination of Jobs Within the State, the Creation of New Businesses or the Elimination of Existing Businesses, or the Expansion of Businesses in California; Benefits of the Regulation to the Health and Welfare of California Residents, Worker Safety, and the State’s Environment:

The proposed action will not impact the creation or elimination of jobs within the state, the creation of new businesses or the elimination of existing businesses, or the expansion of businesses in California because the regulatory actions affect undeveloped land and are not anticipated to have any net impact on recreational uses. No benefits to worker safety are anticipated because this regulatory action will not impact working conditions. The proposed site-specific regulation changes for certain properties are expected to benefit the health and welfare of California residents by increasing public safety and recreational opportunities and benefit the environment by improving resource protection and the management of staff resources.

(c) Cost Impacts on a Representative Private Person or Business:

The agency is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

(d) Costs or Savings to State Agencies or Costs/Savings in Federal Funding to the State:

The California Department of Fish and Wildlife (Department) may experience a small increase in draw application fees for additional special hunts that have been proposed, as well as a small decrease in one-day or two-day hunting passes because some pheasant hunts are proposed to be no longer permitted in certain Type A wildlife area lands. The net revenue change is estimated to be $149.52 per budget year.

The proposed changes are to designate seven ecological reserves and one wildlife area. Through designating these properties, four will offer at least occasional public use opportunities, such as special hunts and educational activities. Three will generally be open to authorized public uses.

The proposed regulation changes would increase special hunt opportunities offered to a limited number of participants via a random drawing. These hunts are often offered to a category of hunters that would particularly benefit from the more controlled circumstances of a special hunt, such as youth or disabled hunters.

Most of the proposed special hunt opportunities would be for upland game. One would be for tule elk. The anticipated number of applicants for each new special hunts and potential new revenue is shown in Table 1. The draw application fee for an upland game special hunt is $2.42, and the application fee for tule elk is $8.13. The estimated new revenue for the proposed upland game bird and tule elk special hunts is estimated to be as much as $653.40.

Some proposed changes would decrease public use opportunities such as the elimination of early season pheasant hunting days on seven Central Valley Type A wildlife areas. Regular 4 shoot days for the Type A wildlife areas during the waterfowl hunting season (basically September through January) are Saturday, Sunday, and Wednesday. No hunting occurs outside of those days for waterfowl or any other species, except for the possibility that pheasant could be permitted. In the current regulations (subsections within 551(s)) there are exceptions to the regular shoot days on seven Type A wildlife areas. Depending on the property, five to twelve consecutive days of pheasant hunting are allowed at the beginning of the six-week pheasant season which begins in early November.

However, starting approximately nine years ago, because of the steep decline in the wild pheasant population, the Department has annually issued a press release that excluded nearly all those extra pheasant hunt days. The Department had to exercise its authority to restrict or close a public use for conservation purposes. Only one extra day was retained on two properties via the press releases: the first Monday of pheasant season on Gray Lodge and Upper Butte Basin. In practice, this one day on two areas have been the only extra opportunity available, regardless of the current language in Section 551(s). So functionally, the proposed regulatory change would be a very small change from the current practices over the last nine years.

In order to hunt on a Type A wildlife area, people must purchase a hunting pass. One-day, two-day, and season-long hunting passes are sold through the Department’s online license sales program. The current fee for a one-day Type A hunting pass is $21.42. The current fee for a two-day hunting pass is $36.21.

The hunter participation on “pheasant Mondays” in recent years at Gray Lodge and Upper Butte Basin has been very low compared to regular weekend shoot days. The Department estimates that five one-day passes are sold for each property for the first Monday, and four two-day passes are sold for each property for hunting on Sunday and Monday. If this day is no longer available for upland game hunting on those two properties, this could result in a total loss of $503.88 in hunting pass sales.

The Department estimates that removing this one-day from two properties will not affect the sale of season-long hunting passes, hunting licenses or upland game stamps.

In sum, the proposed rulemaking could result in $653.40 in new revenue to the Department along with a reduction in revenue estimated to be about $503.88, resulting in a $149.52 net revenue change for the Department that is absorbable within existing budgets and resources.

(e) Nondiscretionary Costs/Savings to Local Agencies: None.

(f) Programs Mandated on Local Agencies or School Districts: None.

(g) Costs Imposed on Any Local Agency or School District that is Required to be Reimbursed Under Part 7 (commencing with Section 17500) of Division 4, Government Code: None.

(h) Effect on Housing Costs: None.

Effect on Small Business

5

It has been determined that the adoption of these regulations may affect small business. The Commission has drafted the regulations in Plain English pursuant to Government Code Sections 11342.580 and 11346.2(a)(1).

Consideration of Alternatives

The Commission must determine that no reasonable alternative considered by the Commission, or that has otherwise been identified and brought to the attention of the Commission, would be more effective in carrying out the purpose for which the action is proposed, would be as effective and less burdensome to affected private persons than the proposed action, or would be more cost effective to affected private persons and equally effective in implementing the statutory policy or other provision of law.

David Thesell

Dated: January 14, 2020 Program Manager

FISH AND GAME COMMISSION

6

California Department of Fish and Wildlife Lands Pass Properties

Alpine County Lassen County San Joaquin County Hope Valley WA Bass Hill WA Woodbridge ER Willow Creek WA Butte County Ash Creek WA Shasta County Gray Lodge WAa Battle Creek WA North Table Mountain ER Merced County Mouth of Cottonwood

Upper Butte Basin WA Los Banos WAa Creek WA Volta WA Glenn County Siskiyou County Butte Valley WA Upper Butte Basin WA Modoc County Horseshoe Ranch WA Ash Creek WA Kern County Shasta Valley WA Canebrake ER Riverside County San Jacinto WAa Sutter County a Lake County Gray Lodge WA Cache Creek WA San Diego County (DELAYED Boden Canyon ER Tehama County IMPLEMENTATION) Hollenbeck Canyon WA Battle Creek WA

San Felipe Valley WA Mouth of Cottonwood Creek WA

aAn original lands pass property (not added in 2017). Bold-Property spans multiple counties.

DRAFT California Department of Fish and Wildlife Lands to be Designated in or Removed from Title 14 Land Regulations October 2019 Attachment #1

Lake Berryessa WA !

White ^ ! Slough WA Grizzly Island Round WA Valley WA ! ! Deep Springs ER

Yaudanchi ! Tecopa ER ER South ! Fork WA ! North ! Carrizo ER Indian Wells ! Valley ER

Cienega Springs ER !

Santa Margarita! River ER Canada de San Vicente ER ! LANDS TO BE DESIGNATED ! ! LANDS TO BE REMOVED FROM TITLE 14 ^ 2 UNITS REMOVED & 2 UNITS ADDED TO GRIZZLY ISLAND WA LO, 10/31/2019