La. Admin. Code tit. 33 § IX-2125

Current through Register Vol. 50, No. 6, June 20, 2024

Section IX-2125 - Introduction to the State Environmental Review Process

A. The state environmental review process (SERP) provides the policy for conducting environmental reviews of construction projects that are funded by federal funds in Louisiana's CWSRF. The reviews shall be consistent with the requirements of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq., as implemented by the Council on Environmental Quality (CEQ) NEPA Regulations (40 CFR Parts 1500-1508). Pursuant to the 1987 amendments to the Clean Water Act, the United States Environmental Protection Agency (EPA) specified that state agencies may either develop or revise their own environmental review methods. They may also adopt and apply the procedures of 40 Code of Federal Regulations (CFR) Part 6. The CWSRF has adopted the procedures as outlined in 40 CFR Part 6, procedures for implementing the National Environmental Policy Act and assessing the environmental effect abroad of EPA actions.

B. All terminology used in this document is consistent with the terms defined in 40 CFR Part 1508 (CEQ NEPA regulations). The following definitions are provided for clarity.

Environmental Information Document(EID) - any written analysis prepared by an applicant, or their authorized representative, describing the environmental impacts of a proposed project. This document shall be of sufficient scope to enable the CWSRF to identify potentially significant environmental concerns and the associated potential impacts of the proposed project.

Environmental Review - the process whereby an evaluation is undertaken by the CWSRF to determine whether a proposed project may have a significant impact on the environment.

Preliminary Engineering Report (PER)- any written study prepared by an applicant, or their authorized representative, describing the need and recommendations for new, expanded, or upgraded wastewater facilities. The documents shall include a study of any socioeconomic, environmental, or other unique features. It shall include a forecast of planning area future conditions a detailed economic analysis for each principal alternative, and a description of the process, design flow, effluent limits, cost, and plan for implementation of the proposed wastewater treatment works.

C. The department shall conduct a NEPA-type review of construction projects proposed for funding through the CWSRF, if required. This review shall be conducted as early as possible in project formulation to ensure that all projects comply with applicable local, state, and federal laws, and departmental rules relating to the protection and enhancement of the environment. Based upon the department's review, it shall make a formal determination regarding the potential social and environmental impacts of the proposed project. The determination shall include any necessary mitigation measures as a condition of financial assistance. No financial assistance shall be provided until a final environmental determination has been made. Any public, private, or governmental entity shall be allowed to seek any administrative or legal review provided by law from the department determinations. Applicants to the CWSRF shall obtain guidance from the department regarding the scope of the environmental review to be conducted, and the environmental information the applicant is required to submit in support of the proposed project. Applicants are strongly encouraged to consult with the department in the early stage of project formulation. This consultation is to determine whether a project is eligible to be categorically excluded from a substantive environmental review, determine alternatives to the proposed project for evaluation, and/or identify potential environmental issues which may impact its application.

1. The determinations that will apply to construction projects proposed to be implemented include a determination to:

a. issue a categorical exclusion (CE);

b. issue a finding of no significant impact (FONSI); or

c. require an environmental impact statement (EIS).

2. A project may be categorically excluded from a substantive environmental review if the project fits within a category of actions identified in Subparagraph C.2.c of this Section that are eligible for exclusion and the project does not involve any extraordinary circumstances identified in Subparagraph C.2.d of this Section. Applicants are not required to prepare an environmental information document (EID) or preliminary engineering report (PER) for projects that are being considered for CE. An environmental assessment (EA) is not required if the project is categorically excluded.

a. If a project is determined to be categorically excluded, a written CE determination shall be prepared by the department and published in the official parish journal at the location of the project. The CE determination constitutes a final decision of the administrative authority.

b. The department may identify categories of actions that do not individually, cumulatively over time, or in conjunction with other actions, have a significant effect on the quality of the human environment. These do not include projects that provide a capacity to serve a population 30 percent greater than the existing population, that directly or indirectly involve upgrading, or that extend infrastructure systems primarily for the purposes of future development.

c. Department-identified CEs include, but may not be limited to:

i. actions at facilities involving routine facility maintenance, repair, and groundskeeping; minor rehabilitation, restoration, renovation, or revitalization of existing facilities; replacement as defined in LAC 33:IX.2105, of equipment; acquisition and installation of equipment (including equipment needed solely for purposes of emergency preparedness); or construction of new minor ancillary facilities adjacent to or on the same property as existing facilities;

ii. actions relating to existing infrastructure systems (i.e., sewer systems, drinking water supply systems, and stormwater systems that include combined sewer overflow systems) that involve minor upgrading, minor expansion of system capacity or rehabilitation (i.e., functional replacement) of the existing system and system components, (i.e., sewer collection network and treatment system; the system to collect, treat, store, and distribute drinking water; and stormwater systems, including combined sewer overflow systems) or construction of new minor ancillary facilities adjacent to or on the same property as existing facilities. This category does not include actions that:

(a). involve new or relocated discharges to surface or ground water;

(b). will likely result in the substantial increase in the volume or the loading of pollutant to the receiving water;

(c). will provide capacity to serve a population 30 percent greater than the existing population;

(d). are not supported by the state, other regional growth plan, or strategy; or

(e). directly or indirectly involve or relate to upgrading or extending infrastructure systems primarily for the purposes of future development; and

iii. actions in unsewered communities involving the replacement of existing on-site systems, providing the new on-site systems do not result in substantial increases in the volume of discharge, or the loadings of pollutants from existing sources, or relocating an existing discharge.

d. Extraordinary circumstances that would preclude issuance of a CE include, but are not limited to, the following:

i. the proposed project is likely to have potentially significant environmental impacts on the quality of the human environment either individually or cumulatively over time;

ii. the proposed project is likely to have disproportionately high and adverse human health or environmental effects on any community including minority communities, low income communities, or federally-recognized Native American tribal communities;

iii. the proposed project is likely to significantly affect federally listed, threatened, endangered species, or their critical habitat;

iv. the proposed project is likely to significantly affect national natural landmarks or any property with nationally significant architectural, historic, prehistoric, archeological, or cultural value, including but not limited to, property listed on or eligible for the National Register of Historic Places;

v. the proposed project is likely to significantly affect environmentally important natural resource areas such as wetlands, floodplains, significant agricultural lands, aquifer recharge zones, coastal zones, barrier islands, wild and scenic rivers, and significant fish or wildlife habitat;

vi. the proposed project is likely to cause significant adverse air quality effects;

vii. the proposed project is likely to have a significant effect on the pattern, type of land use (i.e., industrial, commercial, agricultural, recreational, or residential), growth and distribution of population including altering the character of existing residential areas, or not consistent with state government, local government, or federally-recognized Native American tribe approved land use plans, or federal land management plans;

viii. the proposed project is likely to cause significant public controversy about a potential environmental impact of the proposed project; and

ix. the proposed project is likely to conflict with federal, state, local government, federally-recognized Native American tribe, federal environmental, resource protection, or land use laws or regulations.

e. A CE determination shall be rescinded if:

i. the proposed project no longer complies with the applicable 40 CFR Part 6 criteria for CE due to project changes; or

ii. new information involves or relates to at least one of the extraordinary circumstances, or otherwise indicates serious environmental issues exist.

f. When the department has determined that a CE is to be rescinded based upon this criteria, the department shall prepare a notice of intent (NOI) to rescind the CE previously applied to the project and require the preparation of an EID or EIS.

3. A FONSI may be prepared based on a proposed project's EA, which will be prepared based on a substantive environmental review conducted by the department and supported by an EID prepared in conjunction with the facility plan (FP) prepared by the applicant. If the EA supports the finding that the proposed project will not have a significant effect on the human environment or includes any commitments to mitigation that render the impacts of the proposed project insignificant, then the administrative authority will issue a FONSI. If the EA does not support a FONSI, then an EIS shall be prepared.

4. An EIS may be required based on a proposed project's EA, which will be prepared based on a substantive environmental review conducted by the department and supported by an EID prepared in conjunction with the PER prepared by the applicant. An EIS may also be required without an EA when the proposed project is deemed a major action significantly affecting the quality of the human environment. A project normally requires an EIS if the administrative authority determines:

a. the project will significantly affect the pattern and type of land use (i.e., industrial, commercial, recreational, or residential), or growth and distribution of the population;

b. the proposed project is inconsistent with federal, state, local government, federally-recognized Native American tribe, or federal environmental, resource protection, or land-use laws and management plans for protection of the environment;

c. the project is likely to significantly affect environmentally important resources such as:

i. wetlands;

ii. significant agricultural lands;

iii. aquifer recharge zones;

iv. threatened and endangered species or their habitats;

v. coastal zones;

vi. barrier islands;

vii. wild and scenic rivers;

viii. significant fish or wildlife habitat;

ix. national natural landmarks; and/or

x. any property on or eligible for the National Register of Historic Places; or

d. the project is likely to directly or indirectly, through induced development, involve uncertain environmental effects, produce significant cumulative impacts in conjunction with other government projects, or have significant adverse effects upon local ambient air quality, local noise levels, surface water reservoirs, or navigation projects.

5. Amended Projects, Previous Environmental Determinations, and Usage of Other Relevant Environmental Documents by the Department

a. In the event that changes are made to a project after an environmental determination has been issued, the administrative authority shall, prior to approval, examine the plans and specifications, loan application, and related documents for consistency with the environmental determination. Based upon the department's review of the amended project, the administrative authority shall:

i. reaffirm and amend, as necessary, the original determination through the issuance of a statement of findings;

ii. rescind a CE and issue a NOI that the preparation of an EID or an EIS will be required;

iii. revise a FONSI and make available to the public;

iv. rescind a FONSI and issue a NOI that the preparation of an EIS will be required;

v. revise a record of decision (ROD) associated with an EIS and make available to the public; or

vi. rescind a ROD via the issuance of a NOI that financial assistance will not be provided.

b. The administrative authority may accept and adopt previous NEPA environmental determinations (i.e., CE, EA/FONSI, and EIS/ROD) issued within the last five years with the submittal of an application to the CWSRF. Acceptance of previous environmental determinations shall be affirmed through the issuance of a statement of findings. Otherwise, the administrative authority shall re-evaluate the project, environmental conditions, public views, and may reaffirm the original environmental determination, or have a new environmental review conducted in accordance with Subsection A of this Section.

c. The administrative authority may review relevant planning, decision making, and/or environmental review documents to determine if the proposed project or any of its alternatives have previously been considered. The department may adopt the existing document, or incorporate by reference, any pertinent part of that document.

6. Construction Prior to Environmental Review

a. An applicant may, at the applicant's risk, commence construction of part of the proposed project prior to completion of the necessary environmental review when that part of the project will:

i. immediately remedy a severe public health, water quality, or environmental problem;

ii. not preclude any identified reasonable alternatives;

iii. not cause significant direct or indirect environmental impacts including those which cannot be acceptably mitigated without completing the entire project;

iv. not be significantly controversial concerning a potential environmental impact; and

v. all other parts of the proposed project remain subject to the completion of the environmental review process prior to construction.

b. The administrative authority shall make a determination of eligibility for work performed under Subparagraph C.6.a of this Section after submittal, approval of the PER, and completion of the environmental review. There is no guarantee that work undertaken prior to the loan award will be eligible for funding.

D. Environmental Information Requirements

1. A minimum of one copy of the information required in this Subsection shall be submitted to the department by the applicant.

a. Categorical Exclusions (CE). Applicants seeking a CE shall provide the department with sufficient documentation to demonstrate compliance with the criteria listed under Subparagraph C.2.c of this Section. If requested by the administrative authority the applicant shall submit additional information to support the application of a CE to the applicant's project and/or whether any extraordinary circumstance applies. At a minimum, additional information consists of:

i. a brief description of the proposed project, including maps and drawings;

ii. a brief description of the no action alternative;

iii. a statement specifying the department-identified CE, as listed in Subparagraph C.2.c of this Section which applies to the proposed project; and

iv. a statement that no extraordinary circumstances, as identified in Subparagraph C.2.d of this Section, apply to the proposed project.

b. Environmental Information Documents (EID). An EID is not required when the project is categorically excluded and does not involve extraordinary circumstances, or when the project has already been determined to require the preparation of an EIS. Otherwise, the applicant shall submit an EID that provides sufficient information for the administrative authority to undertake an environmental review and prepare either an EA/FONSI and/or request the preparation of an EIS for the project. The EID may be incorporated into the PER or submitted separately, and the administrative authority shall provide guidance to applicants on both the format and contents of the EID.

i. Contents. At a minimum the contents of the EID shall include:

(a). the purpose and need for the project;

(b). the existing environmental setting of the project;

(c). the alternatives to the project, including the no action alternative;

(d). a description of the proposed project;

(e). the potential environmental impacts of the proposed project, including those which cannot be avoided;

(f). a description of public participation activities conducted, issues raised, and changes to the project which may be made as a result of the public participation process; and

(g). documentation of coordination with appropriate governmental agencies.

ii. Availability to the Public. At least 30 days in advance of submittal and availability of the PER and EID, the applicant shall provide a public notice of the availability of the PER and EID for public review and comment in a newspaper of general circulation in the project area. The applicant shall make the PER and EID available to all federal, state, local agencies, the affected public, and others that may have previously expressed an interest in the project. A public hearing may be required by the department if there is substantial public interest in conducting a hearing, or a hearing is requested by another agency with jurisdiction over the proposed project. In the event that a public hearing is required, the administrative authority shall provide guidance to the applicant regarding the contents of the public hearing notice and of the public hearing. The public hearing and the availability of the PER for public review shall be advertised by the applicant at least 30 days in advance in the newspaper of general circulation in the project area. Following the public hearing the applicant shall provide the department with a verbatim transcript of the hearing, a copy of the public hearing notice with proof of publication, a list of all applicants and agencies notified of the public hearing, a list of all attendees, and responses to any substantive comments received.

c. Environmental Impact Statements (EIS). In the event that an EIS is required, the applicant shall provide sound analysis and clear presentation of alternatives, including the no action alternative, the selected alternative, and their environmental, economic, and social impacts. The administrative authority may request the applicant to prepare an EIS without first undertaking an EA. The EIS format shall be followed by the applicant unless the administrative authority determines otherwise. The EIS format shall include:

i. a cover sheet identifying the applicant, the project(s), and the program through which financial assistance is requested; and

ii. an executive summary of the critical issues of the EIS in sufficient detail that the reader may become familiar with the proposed project and its cumulative effects. The summary shall include:

(a). a description of the existing problem;

(b). a description of each alternative, including the no action alternative;

(c). a listing of each alternative's potential environmental impacts, mitigation measures, and any areas of concern; and

(d). any conclusions;

iii. the body of the EIS shall contain the following information:

(a). a complete and clear description of the purpose and need for the proposed project that clearly identifies its goals and objectives;

(b). a discussion of alternatives including, but not limited to:

(i). a balanced description of each alternative considered by the applicant including the no action alternative;

(ii). description including the size and location of the facilities, water lines, land requirements, and construction schedules; and

(iii). the preferred alternative identified, and any alternatives that are eliminated from examination along with the reasons for their elimination;

(c). a description of the alternatives available to the department including:

(i). providing financial assistance to the proposed project;

(ii). requiring that the proposed project be modified prior to providing financial assistance with conditions requiring the implementation of mitigation measures; and

(iii). not providing financial assistance to the proposed project;

(d). a description of the alternatives available to other local, state, and federal agencies which may have the ability to issue or deny a permit, provide financial assistance, or otherwise affect or have an interest in any of the alternatives; and

(e). a description of the affected environment and environmental impacts of each alternative, including, but not limited to:

(i). the alternative evaluation of the affected environment, which shall be based on, but not be limited to: hydrology, geology, air quality, noise, biology, socioeconomic factors, land use, and cultural resources of the planning area;

(ii). analysis of the total impact of each alternative in a manner that will facilitate comparison;

(iii). the effect of the no action alternative to serve as a baseline for comparison of the adverse and beneficial impacts of the other alternatives; and

(iv). description of the existing environment in the no action section for background information;

iv. the draft EIS shall be public noticed for a period of 30 days. The final EIS shall include a list of comments, a list of commenters, a commenter key, responses, and the final decision(s) of the department on any such comments pertinent to the project or the EIS;

v. material incorporated by reference into an EIS shall be organized to the extent possible into a supplemental information document and be made available for public review upon request. No material may be incorporated by reference unless it is reasonably available for inspection by interested applicants within the comment periods specified in Clause D.1.c.iv of this Section and Subclause D.1.c.vii.(b.) of this Section;

vi. when an EIS is prepared by contractors either for the department or the applicant, the department shall independently evaluate the EIS prior to issuance of the record of decision and take responsibility for its scope and contents. The department staff who reviews this evaluation shall be identified under the list of preparers, along with those of the contractor, and any other parties responsible for the content of the EIS;

vii. public participation required for an EIS shall be conducted by the department, but may be supplemented by the applicant depending upon the nature and scope of the proposed project. The following requirements represent the minimum allowable to the applicant and the department:

(a). as soon as practicable, and in accordance with Subparagraph E.2.c of this Section, the department shall convene a scoping meeting of the affected federal, state, and local agencies; the applicant; and other interested parties to determine the scope of the EIS after a determination has been made that an EIS is required. As part of the scoping meeting the department shall, at a minimum:

(i). determine the significant issues and the scope of analysis required of those issues in the EIS;

(ii). identify the preliminary range of alternatives to be considered;

(iii). identify potential cooperating agencies and determine the information or analyses that may be needed from cooperating agencies or other parties;

(iv). discuss the method of EIS preparation and the public participation strategy;

(v). identify consultation requirements of other laws and regulations; and

(vi). determine the relationship between the preparation of the EIS and the completion of the PER, and any necessary arrangements for coordination of the preparation of both documents;

(b). following the scoping process the administrative authority shall begin the identification and evaluation of all potential available alternatives to adequately address the range of issues developed in the scoping process. A summary, including a list of the significant issues identified, shall be provided to the applicant and other interested parties. Preparation of the EIS shall be done at the discretion of the department, by the staff, consultants to the department, or a consultant contracted by the applicant subject to approval by the department. When a consultant is used for the preparation of the EIS, the consultant shall be required to execute a disclosure statement signifying it has no financial or other conflicting interest in the outcome of the project. Both the draft EIS and the final EIS shall be distributed and made available for public review in a manner consistent with the requirements of Clause D.1.b.ii of this Section. The department shall publish, in the Louisiana Register and a newspaper(s) of general circulation in the project area, a notice of availability of the final EIS giving locations at which it will be available for public review for at least 30 days prior to making the decision to provide or deny financial assistance to the proposed project;

(c). at the time of its decision to provide or deny financial assistance to the proposed project, the administrative authority shall prepare a concise public ROD that shall:

(i). include a brief description of the proposed project and all alternatives considered in the EIS, specifying the alternative that was considered to be environmentally preferable;

(ii). clearly state the decision being made and provide an explanation behind the decision; and

(iii). identify, if necessary, any commitments to mitigation.

E. Environmental Reviews and Determinations

1. A substantial environmental review resulting in the preparation of an EA is required for proposed projects that are expected to result in environmental impacts and where the significance of the impacts is not known. An EA is not required if the proposed project is categorically excluded, or if the administrative authority has determined that an EIS is required. The environmental review, supported by the applicant's EID and PER, shall be conducted by the administrative authority to determine whether any significant environmental impacts are anticipated and whether any changes may be made to the proposed project in order to eliminate significant adverse environmental impacts. As part of the review, the administrative authority may require the applicant to submit additional information or undertake additional public participation and coordination to support its environmental determination. Based on the environmental review, the administrative authority shall prepare an EA that provides sufficient information and analysis for determining whether to issue a FONSI or require the preparation of an EIS. The EA shall include:

a. a brief discussion of the:

i. need for the proposed project;

ii. alternatives considered, including the no action alternative;

iii. existing environment; and

iv. environmental impacts of the proposed project;

b. identification and description of any mitigation measures considered, including any mitigation measures that shall be adopted to ensure the action will not have significant impacts; and

c. incorporation of documents by reference, if appropriate, including the EID and PER for the proposed project.

2. Based on the EA, the administrative authority shall issue a FONSI or a NOI to prepare an EIS.

a. The FONSI shall include a brief description of:

i. the proposed project;

ii. any mitigation measures required of the applicant as a condition of its receipt of financial assistance; and

iii. a statement to the effect that comments supporting or opposing with the FONSI may be submitted for consideration by the department.

b. The FONSI and EA shall be distributed to all public and private parties, governmental entities, and agencies that have previously expressed an interest in the proposed project. The availability of the FONSI and EA shall be public noticed in a newspaper of general circulation in the project area and invite the affected public to review and provide comments. The public notice initiates the required 30-day public comment period. No action regarding approval of the PER or the provision of financial assistance shall be taken by the department until the end of the public comment period.

c. The NOI to prepare an EIS shall include a brief description of the:

i. proposed project and possible alternatives;

ii. department's proposed scoping process (see Clause D.1.c.vii of this Section) including an invitation for comments and suggestions on the scope of the EIS, if available, when, and where any scoping meeting will be held; and

iii. name and contact information for the applicant's representative designated by the department to answer questions about the proposed project and the EIS.

d. The NOI to prepare an EIS shall be public noticed in a newspaper of general circulation in the project area and shall be distributed to all public and private parties, governmental entities, and agencies that have previously expressed an interest in the proposed project. Distribution of the NOI begins the scoping process for the EIS, which shall allow for a public comment period of 30 days. The department shall announce the location, date, and time of any scoping meetings in the NOI, or by other appropriate means, at least 15 days before the scoping meeting is held.

F. Cross-Cutting Environmental Laws

1. All projects receiving funding from the CWSRF shall comply with the following nonexclusive applicable laws respecting the human environment:

a. Archeological and Historic Preservation Act, as amended;

b. Clean Air Act, as amended;

c. Clean Water Act, as amended;

d. Coastal Barrier Resources Act, as amended;

e. Coastal Zone Management Act, as amended;

f. Endangered Species Act, as amended;

g. Environmental Justice, Executive Order 12898, as amended;

h. Farmland Protection Policy Act, as amended;

i. Fish and Wildlife Coordination Act, as amended;

j. Floodplain Management, Executive Order 11988, as amended;

k. National Historic Preservation Act, as amended;

l. Protection of Wetlands, Executive Order 11990, as amended;

m. Safe Drinking Water Act, as amended;

n. Demonstration Cities and Metropolitan Development Act, as amended;

o. Wild and Scenic Rivers Act, as amended; and

p. Wilderness Act, as amended.

2. Because particular federal, state, and/or local agencies are charged with enforcement and/or permitting required under these laws, applicants shall be provided guidance regarding agency contact information and consultation. The department shall require appropriate coordination and project planning with these agencies.

La. Admin. Code tit. 33, § IX-2125

Promulgated by the Department of Environmental Quality, Office of Water Resources, LR 14:862 (December 1988), amended by the Office of Environmental Assessment, Environmental Planning Division, LR 26:2551 (November 2000), amended by the Office of the Secretary, Legal Affairs Division, LR 31:2509 (October 2005), LR 33:2165 (October 2007), amended by the Office of the Secretary, Legal Division, LR 40:774 (April 2014).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2011(D)(1).