Coastal Engineering Guidelines in North Carolina

1. Summary of NEPA and SEPA Coastal Engineering and Land Use Issues in North Carolina Greenville, NC January 13, 2009 Sean M. Sullivan

2. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

3. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

4. Summary of the Acts • National Environmental Policy Act • 42 U.S.C. § 4321, et seq. • Purpose – Ensure that federal agencies investigate and consider the environmental consequences of their actions. • Environmental Impact Statement (“EIS”).

5. Summary of the Acts (cont’d) • North Carolina Environmental Policy Act (“SEPA”). • N.C.G.S. § 113A-1, et seq. • Purpose – Require state agencies to consider and report on the environmental consequences of their actions.

6. Summary of the Acts (cont’d) • Both statutes are procedural in nature. • They force federal and state agencies to evaluate and consider the effects of their actions. • Neither statute requires an agency to alter its plans based on the results of the analysis.

7. Summary of the Acts (cont’d) • Implementing Regulations – for both NEPA and SEPA, individual agencies have their own procedural regulations in addition to the general regulations. • Compliance with NEPA will satisfy SEPA as well.

8. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

9. Applicability • NEPA – a federal agency must prepare an EIS for any: • “Major federal action significantly affecting the quality of the human environment.” (MFASAQHE). • Can apply to: • Internal policy decisions • Rulemakings • Permitting Decisions

10. Applicability (cont’d) • Determining whether NEPA Applies • Rule – if the effects of an action will not rise to the level of a MFASAQHE, an EIS is not required. • Procedure • Some actions are designated as requiring an EIS by regulation; or • An agency can perform an Environmental Assessment (“EA”) to determine if an EIS is necessary; or • An agency can establish Categorical Exemptions from NEPA for certain actions.

11. Applicability (cont’d) • Three Criteria for SEPA to Apply: • State Actions; • That will significantly affect the quality of the human environment; and • Involve either: • Expenditures of public money; or • Use of State Land

12. Applicability (cont’d) • Determining whether SEPA Applies • Same basic format as for NEPA • SEPA has Minimum Criteria rather than Categorical Exemptions. • Minimum Criteria • In order for an action to be exempt, it must satisfy both: • General minimum criteria; and • Specific minimum criteria.

13. Applicability (cont’d) • When in doubt, do an EA. • For NEPA and SEPA. • Goal - Determine whether to prepare an EIS. • An EA analyzes the environmental effects of a project, but the question is the extent of the effects.

14. Applicability (cont’d) • Effects to consider in the EA: • Direct effects – immediate consequences of the proposed action. • Indirect effects – reasonably foreseeable effects of the proposed action. • Cumulative effects – effect of the proposed action when combined with other existing or planned actions.

15. Applicability (cont’d) • Two Choices Based on Result of EA: • Finding of No Significant Impact (“FONSI”). • No EIS required. • Proposed action requires an EIS.

16. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

17. What’s Required • The lawyer’s answer – It depends. • Two basic paradigms: • If NEPA applies to the proposed action, follow the NEPA Paradigm. • If NEPA does not apply to the proposed action, but SEPA does, follow the SEPA Paradigm.

18. What’s Required (cont’d) • The NEPA Paradigm • Recall that if both NEPA and SEPA apply to an action, compliance with NEPA will satisfy SEPA as well. • Caveat – If SEPA applies, you must submit your NEPA documents for distribution through the NC clearinghouse process. • Consult the agency’s regulations to determine how to proceed (EIS, EA, or Categorical Exemption).

19. What’s Required (cont’d) • The SEPA Paradigm • State agencies typically prepare an EA before doing an EIS. • But, they have discretion to proceed directly to an EIS. • State agencies document their review of the EA and/or EIS and their ultimate decision in a Record of Decision (“ROD”).

20. What’s Required (cont’d) • The Mitigation Concept • The proponent can mitigate the effects of a project to the point that an EIS is not required and a FONSI is appropriate. • Mitigation steps must be legally binding. • Example – incorporation of mitigation requirements into a final permit.

21. What’s Required (cont’d) • The Mitigation Concept (cont’d) • Examples of Mitigation • Refraining from certain actions to limit the effects of a project. • Repairing or rehabilitating the environment. • Compensating for the effects through other actions.

22. What’s Required (cont’d) • Required Content of the EIS • Purpose and need for the project; • Description of the affected environment; • Effects of the project (direct, indirect, cumulative); and • Alternatives analysis (including no action).

23. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

24. The Process • NEPA Procedures • For NEPA, the level of public interest in a project can affect the process. • Some public notices are mandatory and some are discretionary. • EA/FONSI – Public notice is discretionary.

25. The Process (cont’d) • NEPA Procedures (cont’d) • For an EIS, public notice and comment on the draft EIS is mandatory. • Timing Constraints • Comment period on draft EIS must be at least 45 days. • No final decision until at least 90 days have passed since publication of the notice of availability regarding the draft EIS. • Notice of availability for final EIS must be published at least 30 days prior to agency’s final decision.

26. The Process (cont’d) • NEPA Procedures (cont’d) • Judicial Review • Done as part of judicial review of overall agency action. • Standard – courts apply deferential “arbitrary and capricious” standard of review. • Caveat – courts must ensure that the agency took a “hard look” at the consequences of the proposed project.

27. The Process (cont’d) • NEPA Procedures (cont’d) • SEPA Clearinghouse Requirements • If SEPA applies to your project as well as NEPA, you must distribute the NEPA documents through the clearinghouse process.

28. The Process (cont’d) • SEPA Procedures • NC Department of Administration Clearinghouse Procedures • EAs, FONSIs, draft EISs and final EISs must be distributed through this procedure. • Affords other state agencies the opportunity to comment. • Initiates a public comment period as well.

29. The Process (cont’d) • SEPA Procedures (cont’d) • Judicial Review • Compliance with SEPA is reviewed during review of overall agency action. • Standard – courts apply deferential “arbitrary and capricious” standard of review. • First step is to file a contested case with the Office of Administrative Hearings.

30. Overview • Summary of the Acts • Applicability • What’s Required • The Process • Practical Considerations

31. Practical Considerations • Scoping – Purpose and Need • The questions you ask determine the answers that you get. • Other Consultation Statutes May Apply • National Historic Preservation Act • Can incorporate into NEPA review. • Endangered Species Act • May need consultations with US Fish and Wildlife Service. • May affect availability of categorical exemptions.

32. Practical Considerations (cont’d) • Dot your “I’s” and cross your “T’s” • NEPA compliance is a favorite for environmental groups opposed to a project. • Ultimately, the statutes are procedural and compliance is within your control.

33. Contact Information Sean M. Sullivan Williams Mullen 3200 Beechleaf Court, Suite 500 Raleigh, NC 27604 (919) 981-4312 ssullivan@williamsmullen.com www.williamsmullen.com