EA Analyst's Tips

Scoping and consultation

The CEQ regulations discuss "scoping" -- that is, figuring out the scope of the environmental analysis -- only in the context of EIS preparation, but pragmatically, it's necessary to scope any sort of analysis. You have to determine what it is you're going to look at, what variables will be analyzed, what kinds of methods will be used, what kind of expertise you need, and who you're going to consult with. Scoping for an EIS must be a public process; scoping for an EA, in theory, does not, but it's hard to imagine not talking with someone outside your agency in developing your EA's scope. Where cultural resources are concerned, this sort of consultation is vital. You need to talk with stakeholders who may have cultural interests in the area that's potentially subject to effect, and you need to talk with regulatory bodies like the State or Tribal Historic Preservation Officer. (Added material: If any of the possible stakeholders may be low-income populations or minority communities, you may have environmental justice issues to consider, and should make sure these are addressed in scoping.)

40 CFR 1508.27

The definition of the word "significantly," at 40 CFR 1508.27, provides a good outline for an EA. If you establish the contexts in which effects may occur and then ask yourself: "Is this alternative likely to affect?." each of the intensity measures set forth in the "significantly" definition, you'll have a simple structure for your analysis.

Remember the purpose

Remember that the purpose of an EA is to arrive at a yes-or-no, up-or-down decision: is the project or alternative likely to have significant impacts on the quality of the human environment? If it is, then an EIS is required; if it's not, then your agency can issue a FONSI. If you can stay focused on answering this question, you'll produce a much more useful document, much more efficiently, than if you follow the EIS outline given in the CEQ regulations (i.e. write a mini-EIS). Of course, your agency's procedures may require you to follow the EIS model, but even so, it's important to remember that the objective of an EA is different from that of an EIS. An EIS simply identifies the impacts and presents the decisionmaker with the information needed to make a defensible decision that takes the impacts into account. An EA has to justify the decision that there either will or won't be significant impacts.

All the cultural resource laws and types

Be sure to consider potential impacts on all types of cultural resources, in accordance with all the pertinent laws. Typically these will include such factors as:

  • Subsistence, religious, medicinal, esthetic, and spiritual values ascribed by cultural groups to the natural and built environment (NEPA, EO 12898);
  • Social institutions linked to the environment, or subject to environmental impacts (NEPA, EO 12898);
  • Historic properties (NHPA, other federal, state, tribal, local laws);
  • Native American graves and cultural items (NAGPRA, state and tribal laws);
  • Native American religious practices and spiritual places (AIRFA, EO 13007);
  • Archeological sites (ARPA, ADPA, NHPA); and
  • Documents and records (FRA).

NHPA (Section 106), NAGPRA, ARPA, ADPA, and FRA have specific regulatory processes that must be followed if they apply. You should make sure that these are addressed in the EA analysis.

Beware of professional bias

Many consulting firms that do cultural management work are dominated by archeologists; others are run by architectural historians. Without meaning to, these specialists may tend to focus only on those types of resources with which they're comfortable. When this happens, other resource types and impacts may go unanalyzed, and present unresolved problems late in the planning process; this can be expensive and time consuming. Make sure your cultural resource people are prepared to address the whole range of resources and impacts that are likely to be of concern.

Coordinating Section 106 review

Of all the cultural resource authorities, Section 106 of NHPA has the most developed, rigorous, and heavily litigated review process, set forth in the Section 106 regulations of the Advisory Council on Historic Preservation (ACHP). Generally speaking, you should try to coordinate EA analysis and Section 106 review as follows:

  • When scoping the EA, initiate the Section 106 process by determining whether the project requires Section 106 review, and if it does, by consulting with the State and/or Tribal Historic Preservation Officer (S/THPO) and other concerned parties, establishing the area of potential effect (APE) and establishing the scope of the Section 106 identification effort;
  • As part of EA analysis, identify historic properties and effects within the APE;
  • Report the potential effects in the EA;
  • Use the EA as a documentary base for further consultation about how to resolve any effects that are adverse;
  • Consider the results of the Section 106 process in deciding whether there will or will not be significant impacts on the quality of the human environment.
  • If it's decided that such impacts will not occur, document this in the FONSI, and make the results of the Section 106 process (Memorandum of Agreement or other agreement document, or ACHP comment) a part of the FONSI documentation.

Note: 36 CFR 800.8(a)(1) in the Section 106 regulations says that adverse effects on a historic property, by themselves, are not enough to require preparation of an EIS. However, your own agency procedures may say otherwise, and even if they don't, in some cases the adverse effects may be serious enough, the historic property significant enough, or the Section 106 review sufficiently controversial, to make a FONSI unsupportable even if there aren't any other significant impacts on the quality of the human environment.

Don't define the APE too narrowly

Both NEPA and Section 106 require considering all kinds of impacts -- direct, indirect, and cumulative. In defining the area of potential effects for Section 106 purposes, you need to consider all these kinds of effects, just as you do in scoping the EA. Consider not only physical impacts like demolishing buildings or digging in the ground, but also visual, auditory, social, and land use effects, impacts on community cultural integrity, impacts on cultural uses of the biophysical environment, and so on. Be sure to include the areas subject to effect by all alternatives.

Don't "defer"

It's not uncommon for agencies to "defer" Section 106 review until after NEPA analysis has been completed and a decision made on a preferred alternative. Thus a FONSI may say something like "all alternatives have the potential for some (undefined) level of impact on historic properties, but this impact will be addressed and mitigated under Section 106."

There are two problems with such deferral. One is that it causes a whole class of environmental impacts -- impacts on historic properties -- to be ignored in deciding whether the action will have a significant impact on the environment; this is inconsistent with NEPA. A second problem is that it causes historic properties to be considered late in planning, when options for mitigation may be greatly reduced and costly conflicts become inevitable.

Agencies often defer Section 106 review because they find the process to be too expensive or time consuming, or impossible to do early in planning when the agency may not have access to the affected lands. Under such circumstances, the agency may not be able to do the detailed surveys and eligibility studies that Section 106 review is ordinarily understood to require.

However, the Section 106 regulations provide for Section 106 review to be "phased," so at an early stage of planning, during EA preparation, you might do initial background studies, sample field studies, and consultation with concerned parties to develop enough information to rank alternatives and get a feeling for what more might need to be done. A Memorandum of Agreement could be drafted based on this general information, stipulating what would be done at subsequent phases in planning to minimize the likelihood of impacts, refining knowledge of such impacts, and mitigating them.

Consult broadly

Be sure to consult with cultural stakeholders in preparing the EA, and document the consultation. "Consultation" means a back-and-forth exchange of ideas and concerns, and efforts to address these concerns, through agreement where possible (See 36 CFR 800.16(f)). The EA should document compliance with the consultation requirements of Section 106 and other specific authorities (e.g. NAGPRA) where they apply. To be consistent with the broader requirements of NEPA the EA should also document consultation with people and groups that may value the environment for cultural reasons not directly related to specific extra-NEPA authorities. For example, don't neglect communities whose social institutions or cultural uses of the environment may be impacted, even if these institutions are not related to historic properties and the communities are not Native American, low-income, or minority groups.