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Water Education Colorado

Want to Build a Water Project? You Better Know NEPA

By John Morton

As public concern for environmental health escalated during the 1960s, Congress introduced more than 30 environmental protection bills between 1967 and 1971. One of those most familiar to organizations involved in water supply development is the National Environmental Policy Act, or NEPA. Signed into law January 1, 1970, the act requires federal officials to study the environmental ramifications of any proposed federal government action that could “significantly” affect the quality of the environment.

NEPA was designed to provide the federal agencies that fund, issue permits or are otherwise involved with federal projects with a clear understanding of how different actions generate different environmental results. It also seeks to identify strategies to reduce those impacts.

At the heart of the NEPA process is a study called an Environmental Impact Statement, or EIS. These documents identify the “purpose and need” of the proposed action, list all reasonable alternatives (also briefly describing alternatives eliminated from consideration), evaluate current environmental conditions, estimate potential impacts to specific resources such as air and water quality, and propose mitigation strategies to reduce impacts.

In addition to evaluating environmental impacts and alternatives, an EIS provides an opportunity for public scrutiny and involvement. NEPA procedures are designed to help ensure that environmental information about a proposed federal action is available to the public before a decision is made. NEPA provides several opportunities, including public meetings and written comments, for the public and interested parties to participate.

Today’s EIS reports are thought by some officials to be easier for the public to read and understand, though they are generally much more encompassing than early statements.

“Early EISs were more of a brochure. They might have been harder to read but they were 50 pages,” says David Merritt, chief engineer for the Glenwood Springs-based Colorado River Water Conservation District, who led the district through a five-year NEPA process in the 1980s with Wolford Mountain Reservoir, a joint venture with Denver Water.

“Now, they might be easier to read but they’re 500 pages.”

“NEPA is designed to be a public process,” says Nicole Seltzer, a spokesperson for the Northern Colorado Water Conservancy District. “At several points, you’re required to show your hand to the public. You can’t get around that. Why not go ahead and embrace it fully?”

Agencies also use the EIS to show compliance with other federal environmental requirements. For example, the reports are often used to demonstrate compliance with the Endangered Species Act and to document consultation with the U.S. Fish and Wildlife Service. The EIS can also document steps taken to comply with the National Historic Preservation Act, which addresses historic properties and archeological sites.

The NEPA review process only applies to projects that require some kind of federal decision. It does not apply to private sector or state and local government actions unless those projects require an element of federal oversight and decision making. Federally-funded highways, for example, require an EIS. Reservoirs that need a Section 404 permit from the Army Corps of Engineers to discharge dredge or fill material into rivers and streams, or reservoirs that require a special-use permit from the U.S. Forest Service, are also required to complete an EIS.

Most water development projects in Colorado, especially large-scale storage projects, require an EIS because they need an Army Corps permit or because they require some other type of federal action.

“In Colorado, we’re seeing more (environmental impact statements) because there’s more going on as a result of growth and the recent drought,” says Jerry Kenny, an engineer at HDR Engineering in Denver. “Generally, most water projects will trigger NEPA. It’s not impossible, but it’s very difficult to do a water project and avoid NEPA.”

The NEPA process typically lasts two to three years, Kenny says, though it can last as little as 14 months. Merritt says Wolford Mountain took five years to get through the process, and that was considered “pretty quick.”  And the timeframe is often determined by the degree of controversy associated with a project.

Still, some water providers consider NEPA an onerous process because of its costs in time and money. “It can be viewed as a roadblock, but frankly it’s much better viewed as a way to get folks involved,” Merritt says. “In balance, ultimately you’re dealing with a public resource.”

Should It Get a FONSI?
Because some federal actions do not have the potential to cause “significant” environmental impacts, the agency or the project proponent may prepare a more limited analysis, called an Environmental Assessment. This study helps determine whether or not the project will result in significant environmental impacts—and whether an EIS is necessary.

If the EA determines the project could cause significant impacts, the lead federal agency (in conjunction with other project proponents) must prepare an EIS. If it is determined that the proposed action will not have significant impacts, the agency can conclude the NEPA review with a Finding of No Significant Impact, or FONSI, allowing the permit to be issued and construction to proceed.

Starting the Process
The EIS process begins when an organization that wants to build, for example, a water reservoir, applies to the federal agency that will fund or otherwise issue permits for their project. That federal agency—such as the U.S. Bureau of Reclamation or the U.S. Army Corps of Engineers—then publishes a notice in the Federal Register publicly declaring its intent to prepare an EIS. That notice also starts what is called the scoping process, when the public and other organizations comment to the federal agency about issues that need to be considered. Some agencies hold one or more public meetings to get comments during the scoping phase. Environmental studies of the vegetation, surface water, groundwater, wildlife and a full gamut of natural and human resources are also initiated at this time.

When the scoping process and environmental field work are complete, the federal agency prepares a Draft Environmental Impact Statement, files it with the U.S. Environmental Protection Agency and circulates it for review by interested parties, who have at least 45 days to comment. Though called a draft, this document is nearly complete and includes a full disclosure of the impacts of the action. Depending on the project, it can take months or years to move from scoping to a draft EIS.

After the end of the comment period, which usually lasts longer than the minimum required 45 days, the federal agency prepares a Final Environmental Impact Statement, files it with the EPA and makes it available to the public. The final statement must address all comments received on the draft version and include any modifications or factual corrections.

Then the federal agency must wait at least 30 days to make a decision on the proposed action. This 30-day period allows the public and interested parties to further review the final document and provide comments.

“People want to be included in the process,” Merritt says. “I don’t think (NEPA’s drafters) saw how much public involvement there would be. It changed the way we do water projects.”

Editor’s Note:
John Morton has worked for HDR Engineering for 10 years as vice president in charge of their environmental science program for the Midwest. Involved in NEPA activities for more than 30 years, Morton also was a U.S. Army Corps of Engineers employee for 20 years, working on a variety of water storage projects, including Denver Water’s Two Forks project, which was vetoed by the EPA.

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