(a) Generally. The State must agree to conduct reviews of the potential environmental impacts of all section 212 construction projects receiving assistance from the SRF, including nonpoint source pollution control (section 319) and estuary protection (section 320) projects that are also section 212 projects.
(b) NEPA-like State environmental review process. Equivalency projects must undergo a State environmental review process (SERP) that conforms generally to the National Environmental Policy Act (NEPA). The State may elect to apply the procedures at 40 CFR part 6, subpart I and related subparts, or apply its own “NEPA-like” SERP for conducting environmental reviews, provided that the following elements are met.
(1) Legal foundation. The State must have the legal authority to conduct environmental reviews of section 212 construction projects receiving SRF assistance. Such authority and supporting documentation must specify:
(i) The mechanisms to implement mitigation measures to ensure that a project is environmentally sound;
(ii) The legal remedies available to the public to challenge environmental review determinations and enforcement actions;
(iii) The State agency primarily responsible for conducting environmental reviews;
(iv) The extent to which environmental review responsibilities will be delegated to local recipients and will be subject to oversight by the primary State agency.
(2) Interdisciplinary approach. The State must employ an interdisciplinary approach for identifying and mitigating adverse environmental effects including, but not limited to, those associated with other applicable Federal environmental authorities.
(3) Decision documentation. The State must fully document the information, processes and premises that influence decisions to:
(i) Proceed with a project contained in a finding of no significant impact (FNSI) following documentation in an environmental assessment (EA);
(ii) Proceed or not proceed with a project contained in a record of decision (ROD) following preparation of a full environmental impact statement (EIS);
(iii) Reaffirm or modify a decision contained in a previously issued categorical exclusion (CE), EA/FNSI or EIS/ROD following a mandatory 5 year environmental reevaluation of a proposed project; and
(iv) If a State elects to implement processes for either partitioning an environmental review or CE from environmental review, the State must similarly document these processes in its proposed SERP.
(4) Public notice and participation.
(i) The State must provide public notice when a CE is issued or rescinded, a FNSI is issued but before it becomes effective, a decision issued 5 years earlier is reaffirmed or revised, and prior to initiating an EIS.
(ii) Except with respect to a public notice of a categorical exclusion or reaffirmation of a previous decision, a formal public comment period must be provided during which no action on a project will be allowed.
(iii) A public hearing or meeting must be held for all projects except for those having little or no environmental effect.
(5) Alternatives Consideration. The State must have evaluation criteria and processes which allow for:
(i) Comparative evaluation among alternatives including the beneficial and adverse consequences on the existing environment, the future environment and individual sensitive environmental issues that are identified by project management or through public participation; and
(ii) Devising appropriate near-term and long-range measures to avoid, minimize or mitigate adverse impacts.
(c) Alternative State environmental review process. The State may elect to apply an alternative SERP to non-equivalency section 212 construction projects assisted by the SRF, provided that such process:
(1) Is supported by a legal foundation which establishes the State's authority to review section 212 construction projects;
(2) Responds to other environmental objectives of the State;
(3) Provides for comparative evaluations among alternatives and account for beneficial and adverse consequences to the existing and future environment;
(4) Adequately documents the information, processes and premises that influence an environmental determination; and
(5) Provides for notice to the public of proposed projects and for the opportunity to comment on alternatives and to examine environmental review documents. For projects determined by the State to be controversial, a public hearing must be held.
(d) EPA approval process. The RA must review and approve any State “NEPA-like” and alternative procedures to ensure that the requirements for both have been met. The RA will conduct these reviews on the basis of the criteria for evaluating NEPA-like reviews contained in appendix A to this part.
(e) Modifications to approved SERPs. Significant changes to State environmental review procedures must be approved by the RA.
[55 FR 10178, Mar. 19, 1990, as amended at 79 FR 76057, Dec. 19, 2014]