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e-CFR data is current as of July 10, 2020

Title 7Subtitle BChapter VIISubchapter GPart 799 → Subpart E


Title 7: Agriculture
PART 799—COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT


Subpart E—Environmental Assessments


Contents
§799.40   Purpose of an EA.
§799.41   When an EA is required.
§799.42   Contents of an EA.
§799.43   Tiering.
§799.44   Adoption of an EA prepared by another entity.
§799.45   Finding of No Significant Impact (FONSI).
§799.50   Purpose of an Environmental Impact Statement (EIS).
§799.51   When an EIS is required.
§799.52   Notice of intent to prepare an EIS.
§799.53   Contents of an EIS.
§799.54   Draft EIS.
§799.55   Final EIS.
§799.56   Supplemental EIS.
§799.57   Tiering.
§799.58   Adoption of an EIS prepared by another entity.
§799.59   Record of Decision.

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§799.40   Purpose of an EA.

(a) FSA prepares an EA to determine whether a proposed action would significantly affect the environment, and to consider the potential impacts of reasonable alternatives and the potential mitigation measures to the alternatives and proposed action.

(b) FSA will prepare a PEA to determine if proposed actions that are broad in scope or similar in nature have cumulative significant environmental impacts, although the impacts of the proposed actions may be individually insignificant.

(c) The result of the EA process will be either a FONSI or a determination that an EIS is required. FSA may also determine that a proposed action will significantly affect the environment without first preparing an EA; in that case, an EIS is required.

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§799.41   When an EA is required.

(a) Proposed actions that require the preparation of an EA include the following:

(1) New Conservation Reserve Enhancement Program (CREP) agreements;

(2) Development of farm ponds or lakes greater than or equal to 20 acres;

(3) Restoration of wetlands greater than or equal to 100 acres aggregate;

(4) Installation or enlargement of irrigation facilities, including storage reservoirs, diversions, dams, wells, pumping plants, canals, pipelines, and sprinklers designed to irrigate greater than 320 acres aggregate;

(5) Land clearing operations (for example, vegetation removal, including tree stumps; grading) involving greater than or equal to 40 acres aggregate;

(6) Clear cutting operations for timber involving greater than or equal to 100 acres aggregate;

(7) Construction or major enlargement of a Concentrated Aquatic Animal Production Facility (CAAP), as defined by the U.S. Environmental Protection Agency in 40 CFR 122.24;

(8) Construction of commercial facilities or structures for processing or handling of farm production or for public sales;

(9) Construction or major expansion of a large CAFO, as defined by the U.S. Environmental Protection Agency in 40 CFR 122.23, regardless of the type of manure handling system or water system;

(10) Refinancing of a newly constructed large CAFO, as defined by the U.S. Environmental Protection Agency in 40 CFR 122.23, or CAAPs as defined by the U.S. Environmental Protection Agency in 40 CFR 122.24 through 122.25, that has been in operation for 24 months or less;

(11) Issuance of substantively discretionary FSA regulations, Federal Register notices, or amendments to existing programs that authorize FSA or CCC funding for proposed actions that have the potential to significantly affect the human environment;

(12) Newly authorized programs that involve substantively discretionary proposed actions and are specified in §799.32(d);

(13) Any FSA proposed action that has been determined to trigger extraordinary circumstances specified in §799.33(c); and

(14) Any proposed action that will involve the planting of a potentially invasive species, unless exempted by Federal law.

(b) Proposed actions that do not reach the thresholds defined in paragraph (a) of this section, unless otherwise identified under §799.31(b) or §799.32(c), require a review using the ESW to determine if an EA is warranted.

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§799.42   Contents of an EA.

(a) The EA should include at least the following:

(1) FSA cover sheet;

(2) Executive summary;

(3) Table of contents;

(4) List of acronyms;

(5) A discussion of the purpose of and need for the proposed action;

(6) A discussion of alternatives, if the proposed action involves unresolved conflicts concerning the uses of available resources;

(7) A discussion of the existing pre-project environment and the potential environmental impacts of the proposed action, with reference to the significance of the impact as specified in §799.8 and 40 CFR 1508.27;

(8) Likelihood of any significant impact and potential mitigation measures that FSA will require, if needed, to support a FONSI;

(9) A list of preparers and contributors;

(10) A list of agencies, tribes, groups, and persons solicited for feedback and the process used to solicit that feedback;

(11) References; and

(12) Appendixes, if appropriate.

(b) FSA will prepare a Supplemental EA, and place the supplements in the administrative record of the original EA, if:

(1) Substantial changes occur in the proposed action that are relevant to environmental concerns previously presented, or

(2) Significant new circumstances or information arise that are relevant to environmental concerns and to the proposed action or its impacts.

(c) FSA may request that a program participant prepare or provide information for FSA to use in the EA and may use the program participant's information in the EA or Supplemental EA, provided that FSA also:

(1) Independently evaluates the environmental issues;

(2) Takes responsibility for the scope and content of the EA and the process utilized, including any required public involvement; and

(3) Prepares the FONSI or NOI to prepare an EIS.

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§799.43   Tiering.

(a) As specified in 40 CFR 1508.28, tiering is a process of covering general environmental review in a broad PEA, followed by subsequent narrower scope analysis to address specific proposed actions, action stages, or sites. FSA will use tiering when FSA prepares a broad PEA and subsequently prepares a site-specific ESW, EA, or PEA for a proposed action included within the program addressed in the original, broad PEA.

(b) When FSA uses tiering in a broad PEA, the subsequent ESW, EA, or PEA will:

(1) Summarize the issues discussed in the broader statement;

(2) Incorporate by reference the discussions from the broader statement and the conclusions carried forward into the subsequent tiered analysis and documentation; and

(3) State where the PEA document is available.

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§799.44   Adoption of an EA prepared by another entity.

(a) FSA may adopt an EA prepared by another Federal agency, State, or Tribal government if the EA meets the requirements of this subpart.

(b) If FSA adopts another agency's EA and issues a FONSI, FSA will follow the procedures specified in §799.44.

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§799.45   Finding of No Significant Impact (FONSI).

(a) If after completing the EA, FSA determines that the proposed action will not have a significant effect on the quality of the human environment, FSA will issue a FONSI.

(b) The FONSI will include the reasons FSA determined that the proposed action will have no significant environmental impacts.

(c) If the decision to issue the FONSI is conditioned upon the implementation of measures (mitigation actions) to ensure that impacts will be held to a nonsignificant level, the FONSI must include an enforceable commitment to implement such measures on the part of FSA, and any applicant or other party responsible for implementing the measures will be responsible for the commitments outlined in the FONSI.

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Title 7Subtitle BChapter VIISubchapter GPart 799 → Subpart E



Subpart E—Environmental Impact Statements


Contents
§799.40   Purpose of an EA.
§799.41   When an EA is required.
§799.42   Contents of an EA.
§799.43   Tiering.
§799.44   Adoption of an EA prepared by another entity.
§799.45   Finding of No Significant Impact (FONSI).
§799.50   Purpose of an Environmental Impact Statement (EIS).
§799.51   When an EIS is required.
§799.52   Notice of intent to prepare an EIS.
§799.53   Contents of an EIS.
§799.54   Draft EIS.
§799.55   Final EIS.
§799.56   Supplemental EIS.
§799.57   Tiering.
§799.58   Adoption of an EIS prepared by another entity.
§799.59   Record of Decision.

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§799.50   Purpose of an Environmental Impact Statement (EIS).

(a) FSA will prepare an EIS for proposed actions that are expected to have a significant effect on the human environment. The purpose of the EIS is to ensure that all significant environmental impacts and reasonable alternatives are fully considered in connection with the proposed action.

(b) FSA will prepare a PEIS for proposed actions that are broad in scope or similar in nature and may cumulatively have significant environmental impacts, although the impact of the individual proposed actions may be insignificant.

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§799.51   When an EIS is required.

(a) The following FSA proposed actions normally require preparation of an EIS:

(1) Legislative proposals, not including appropriations requests, with the potential for significant environmental impact that are drafted and submitted to Congress by FSA;

(2) Broad Federal assistance programs administered by FSA, involving significant financial assistance or payments to program participants, that may have significant cumulative impacts on the human environment; and

(3) Ongoing programs that have been found through previous environmental analyses to have major environmental concerns.

(b) [Reserved]

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§799.52   Notice of intent to prepare an EIS.

(a) FSA will publish a Notice of Intent to prepare an EIS in the Federal Register and, depending on the scope of the proposed action, may publish a notice in other media.

(b) The notice will include the following:

(1) A description of the proposed action and possible alternatives;

(2) A description of FSA's proposed scoping process, including information about any public meetings; and

(3) The name of an FSA point of contact who can receive input and answer questions about the proposed action and the preparation of the EIS.

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§799.53   Contents of an EIS.

(a) FSA will prepare the EIS as specified in 40 CFR part 1502 and in section 102 of NEPA (42 U.S.C. 4332).

(b) The EIS should include at least the following:

(1) An FSA cover sheet;

(2) An executive summary explaining the major conclusions, areas of controversy, and the issues to be resolved;

(3) A table of contents;

(4) List of acronyms and abbreviations;

(5) A brief statement explaining the purpose and need of the proposed action;

(6) A detailed discussion of the environmental impacts of the proposed action and reasonable alternatives to the proposed action, a description and brief analysis of the alternatives considered but eliminated from further consideration, the no-action alternative, FSA's preferred alternative(s), and discussion of appropriate mitigation measures;

(7) A discussion of the affected environment;

(8) A detailed discussion of:

(i) The direct and indirect environmental consequences, including any cumulative impacts, of the proposed action and of the alternatives;

(ii) Unavoidable adverse environmental effects;

(iii) The relationship between local short-term uses of the environment and long-term ecosystem productivity;

(iv) Any irreversible and irretrievable commitments of resources;

(vi) Possible conflicts with the objectives of Federal, regional, State, local, regional, and Tribal land use plans, policies, and controls for the area concerned;

(vii) Energy and natural depletable resource requirements, including, but not limited to natural gas and oil, and conservation potential of the alternatives and mitigation measures; and

(viii) Urban quality, historic, and cultural resources and the design of the built environment, including the reuse and conservation potential of the alternatives and mitigation measures;

(9) In the draft EIS, a list of all Federal permits, licenses, and other entitlements that must be obtained for implementation of the proposed action;

(10) A list of preparers;

(11) Persons and agencies contacted;

(12) References, if appropriate;

(13) Glossary, if appropriate;

(14) Index;

(15) Appendixes, if any;

(16) A list of agencies, organizations, and persons to whom copies of the EIS are sent; and

(17) In the final EIS, a response to substantive comments on environmental issues.

(c) FSA may have a contractor prepare an EIS as specified in 40 CFR 1506.5(c). If FSA has a contractor prepare an EIS, FSA will:

(1) Require the contractor to sign a disclosure statement specifying it has no financial or other interest in the outcome of the proposed action, which will be included in the administrative record; and

(2) Furnish guidance and participate in the preparation of the EIS, and independently evaluate the EIS before its approval.

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§799.54   Draft EIS.

(a) FSA will prepare the draft EIS addressing the information specified in §799.53.

(b) FSA will circulate the draft EIS as specified in 40 CFR 1502.19.

(c) In addition to the requirements of 40 CFR 1502.19, FSA will request comments on the draft EIS from:

(1) Appropriate State and local agencies authorized to develop and enforce environmental standards relevant to the scope of the EIS;

(2) Tribal governments that have interests that could be impacted; and

(3) If the proposed action affects historic properties, the appropriate SHPO, THPO, and the Advisory Council on Historic Preservation.

(d) FSA will file the draft EIS with the U.S. Environmental Protection Agency as specified in 40 CFR 1506.9 and in accordance with U.S. Environmental Protection Agency filing requirements (available at http://www.epa.gov/compliance/nepa/submiteis/index.html).

(e) The draft EIS will include a cover sheet with the information specified in 40 CFR 1502.11.

(f) FSA will provide for a minimum 45-day comment period calculated from the date the U.S. Environmental Protection Agency publishes the NOA of the draft EIS.

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§799.55   Final EIS.

(a) FSA will prepare the final EIS addressing the information specified in §799.53.

(b) FSA will evaluate the comments received on the draft EIS and respond in the final EIS as specified in 40 CFR 1503.4. FSA will discuss in the final EIS any issues raised by commenters that were not discussed in the draft EIS and provide a response to those comments.

(c) FSA will attach substantive comments, or summaries of lengthy comments, to the final EIS and will include all comments in the administrative record.

(d) FSA will circulate the final EIS as specified in 40 CFR 1502.19.

(e) FSA will file the final EIS with the U.S. Environmental Protection Agency as specified in 40 CFR 1506.9.

(f) The final EIS will include a cover sheet with the information specified in 40 CFR 1502.11.

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§799.56   Supplemental EIS.

(a) FSA will prepare supplements to a draft or final EIS if:

(1) Substantial changes occur in the proposed action that are relevant to environmental concerns; or

(2) Significant new circumstances or information arise that are relevant to environmental concerns and bearing on the proposed action or its impacts.

(b) The requirements of this subpart for completing the original EIS apply to the supplemental EIS, with the exception of the scoping process, which is optional.

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§799.57   Tiering.

(a) As specified in 40 CFR 1508.28, tiering is a process of covering general environmental review in a broad PEIS, followed by subsequent narrower scope analysis to address specific proposed actions, action stages, or sites. FSA will use tiering when FSA prepares a broad PEIS and subsequently prepares a site-specific ESW, EA, or PEA for a proposed action included within the program addressed in the original, broad PEIS.

(b) When FSA uses tiering in a broad PEIS, the subsequent ESW, EA, or PEA will:

(1) Summarize the issues discussed in the broader statement;

(2) Incorporate by reference the discussions from the broader statement and the conclusions carried forward into the subsequent tiered analysis and documentation; and

(3) State where the PEIS document is available.

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§799.58   Adoption of an EIS prepared by another entity.

(a) FSA may elect to adopt an EIS prepared by another Federal agency, State, or Tribal government if:

(1) The NECM determines that the EIS and the analyses and procedures by which they were developed meet the requirements of this part; and

(2) The agency responsible for preparing the EIS concurs.

(b) For the adoption of another Federal agency EIS, FSA will follow the procedures specified in the CEQ regulations in 40 CFR 1506.3.

(c) For the adoption of an EIS from a state or tribe that has an established state or tribal procedural equivalent to the NEPA process (generally referred to as “mini-NEPA”), FSA will follow the procedures specified in the CEQ regulations in 40 CFR 1506.3.

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§799.59   Record of Decision.

(a) FSA will issue a Record of Decision (ROD) within the time periods specified in 40 CFR 1506.10(b) but no sooner than 30 days after the U.S. Environmental Protection Agency's publication of the NOA of the final EIS. The ROD will:

(1) State the decision reached;

(2) Identify all alternatives considered by FSA in reaching its decision, specifying the alternative or alternatives considered to be environmentally preferable;

(3) Identify and discuss all factors, including any essential considerations of national policy, which were considered by FSA in making its decision, and state how those considerations entered into its decision; and

(4) State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted and, if not, explain why these mitigation measures were not adopted. A monitoring and enforcement program will be adopted and summarized where applicable for any mitigation.

(b) FSA will distribute the ROD to all parties who request it.

(c) FSA will publish the ROD or a notice of availability of the ROD in the Federal Register.

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