Federal Environmental Review for Interoperable Public Safety Radio Projects |  |
By David L. Snyder, Esq.
Nearly $1 billion in federal grants for interoperable public safety radio projects could be lost unless grant applicants demonstrate compliance with the National Environmental Policy Act before the grant funding deadline of September 30, 2010.
The Public Safety Interoperable Communications (PSIC) grant program was created by the Deficit Reduction Act of 2005 (the Act) (Public Law 109-171), as amended by the Implementing Recommendations of the 9/11 Commission Act of 2007 (Public Law 110-53). Section 3006(a)(2) of the Act established September 30, 2010 as the deadline to expend all previously awarded PSIC grant funds, though pending federal legislation would extend this deadline to September 30, 2012. See H.R. 1819.
Under the Act as amended, the National Telecommunications and Information Administration (NTIA) of the Department of Commerce, in consultation with the Department of Homeland Security, was directed to establish and administer the PSIC grant program to assist public safety agencies in the advancement of interoperable communications. On September 30, 2007, the federal government announced the award of nearly $1 billion in PSIC grant funding to all 56 States and Territories to enhance interoperability nationwide. More than 90 percent ($811 million) of PSIC funds have been designated by State and local agencies for the acquisition and deployment of equipment that will increase emergency communications interoperability.
However, no PSIC grant money may be spent until each eligible project is reviewed under the National Environmental Policy Act (NEPA). NEPA requires all Federal agencies to analyze the possible environmental impacts of actions that a Federal agency implements, funds, permits, or licenses, provided the Federal agency retains some level of control or discretion. The purpose of a NEPA review is to inform Federal decision makers about the environmental impacts associated with their projects (for example, impacts on water resources, endangered species, historical buildings, archaeological resources, or culturally sensitive areas) before construction so that they may make informed planning decisions.
NTIA is the agency responsible for oversight of all PSIC funds. NTIA will determine compliance with NEPA by reviewing the “Statement of Work” submitted by prospective grant recipients for each individual PSIC project. The Statement of Work provides a detailed project description with information ranging from the longitude and latitude of the project location, to site plans, surveys and other data which provide a clear picture of the proposed project, its physical layout and potential impacts on the natural environment, including air and water resources, endangered species, historic sites, and other important national resources.
NEPA review under the PSIC grant program could result in projects (1) needing to be modified or redesigned to reduce or eliminate environmental impacts, (2) requiring an individual site-specific Environmental Assessment (EA) to evaluate the potential for environmental impact, or (3) an Environmental Impact Statement (EIS) developed to assess the extent of the environmental impact of the project under the Council on Environmental Quality general NEPA regulations (40 CFR Part 1500). An EA would provide a snapshot of all potentially significant project impacts on the environment. If these impacts cannot be mitigated, an EIS must be prepared. If an EIS is prepared, the project can only be approved if all adverse impacts have been mitigated to maximum practical extent and the overall project benefits outweigh project risks.
Most projects, however, should be able to comply with NEPA without major modifications, and without the preparation of an EA or an EIS, since NTIA has established four (4) broad project categories that have been deemed to have no significant impact on the environment. Projects that fall within the “no impact” categories automatically comply with NEPA and no further action is required.
The four “no impact” categories established for the PSIC grant program are embodied in a Finding of No Significant Impact (FONSI) which NTIA published in the Federal Register on April 24, 2009 (74 Fed. Reg. 18692). The FONSI for the PSIC grant program determined that the following four project types ordinarily have “no significant impact” on the environment and will thus comply with NEPA without modification: (i) projects that include new and upgraded sites for transmitting and receiving with towers less than 200 feet above the ground and less than 1 acre of ground-disturbing activity; (ii) operations and response centers with less than 1 acre of ground-disturbing activity; (iii) acquisition of mobile infrastructure (e.g. cell-on-wheels), mobile and portable equipment; and (iv) planning and training exercises with less than 1 acre of ground disturbance. As long as project within these four categories do not pose significant risks or impacts to sensitive areas these activities are predicted to have no significant environmental impacts. Nevertheless, if any of these activities involve significant risks or impacts to sensitive areas, they will require further review under NEPA.
But even if a project appears to fit within a “no impact” category, all individual projects will be reviewed by NTIA to determine if the project will involve extraordinary circumstances, defined as an otherwise benign project that involves unusual risks or impacts. The criteria for this determination are listed below. If one or more of the following conditions exist, an environmental assessment must be prepared for the project:
• A potentially significant impact on public health and safety
• A potentially significant impact on species or habitats protected by the Endangered Species Act, Marine Mammal Protection Act, the Migratory Bird Treaty Act, or Magnuson-Stevens Fishery Conservation and Management Act
• A potentially significant impact on a district, site, highway, structure, or objeour categories do not pose significant risks or impacts to sensitive areas these activities are predicted to have no significant environmental impacts. Nevertheless, if any of these activities involve significant risks or impacts to sensitive areas, they will require further review under NEPA.
But even if a project appears to fit within a “no impact” category, all individual projects will be reviewed by NTIA to determine if the project will involve extraordinary circumstances, defined as an otherwise benign project that involves unusual risks or impacts. The criteria for this determination are listed below. If one or more of the following conditions exist, an environmental assessment must be prepared for the project:
• A potentially significant impact on public health and safety
• A potentially significant impact on species or habitats protected by the Endangered Species Act, Marine Mammal Protection Act, the Migratory Bird Treaty Act, or Magnuson-Stevens Fishery Conservation and Management Act
• A potentially significant impact on a district, site, highway, structure, or object that is listed in or eligible for listing in the National Register of Historic Places, affects a historic or cultural resource or traditional and sacred sites, or causes the loss or destruction of a significant scientific, cultural, or historical resource
• A potentially significant impact on an environmentally sensitive area, such as critical habitat, wetlands, and floodplains
• A potential or threatened violation of a Federal, State, or local law or administrative determination imposed for the protection of the environment (Examples of administrative determinations to consider are a local noise control ordinance; the requirement to conform to an applicable State Implementation Plan; and Federal, State, or local requirements for the control of hazardous or toxic substances.)
• An impact on the quality of the human environment that is likely to be highly controversial with regard to scientific validity, likely to be highly uncertain, or likely to involve unique or unknown environmental risks
• Employment of new technology or unproven technology that is likely to involve unique or unknown environmental risks, where the impact on the human environment is likely to be highly uncertain, or where the impact on the human environment is likely to be highly controversial in regard to scientific validity
• Extent to which a precedent is established for future actions with significant impacts
• Potential for significant degradation of existing poor environmental conditions, and initiation of a potentially significant environmental degrading influence, activity, or impact in areas not already significantly modified from their natural condition
• Action related to other actions with individually insignificant but cumulatively significant impacts.
In addition to analyzing the direct and indirect impacts of a specific PSIC project, NTIA will examine the incremental impact of each action when added to other past, present, and reasonably foreseeable future actions no matter whether a federal, state or local agency has undertaken or plans to undertake such other actions. These incremental impacts are referred to as cumulative impacts. “Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time” (40 CFR 1508.7). According to the NTIA, the cumulative impact of multiple project types that fit within the “no impact” categories are not expected to result in significant cumulative impacts to either human health or the environment. See Page 4-91 of the Final Programmatic Environmental Assessment for the PSIC grant program (74 Fed. Reg. 7663).
Given the looming September 30, 2010 funding deadline for the PSIC program, applicants for grant funding should do the following to demonstrate compliance with NEPA. First, streamline the environmental review for grant eligible PSIC projects by designing the project at the outset to fit within one of the four “no impact” categories established by NTIA. Second, the Statement of Work submitted to NTIA by a PSIC grant applicant must be written,
Tags: federal, grant, National Telecommunications and Information Administration, NEPA, NTIA, PSIC, public safety interoperable communications