Environmental Review

PURPOSE: This rule establishes procedures and requirements for environmental reviews for assistance from the Drinking Water State Revolving Fund program. (1) General. The purpose of the environmental review is to ensure that the project will comply with applicable local, state, and federal laws and rules relating to the protection and enhancement of the environment. Based upon the staff’s review, the director will make formal determinations regarding the potential social and environmental impacts of the proposed project. As necessary, the determination will include mitigative provisions as a condition of the provision of financial assistance for construction. No financial assistance will be provided until a final environmental determination has been made. Nothing in this rule shall prohibit any public, private, or governmental party from seeking administrative or legal relief from the determinations of the director. (2) Basic Environmental Determinations. There are three (3) basic environmental determinations that will apply to projects proposed to be implemented with assistance from the fund. (A) Categorical exclusion (CE). The CE determination applies to categories of projects that have been shown over time not to entail significant impacts on the quality of the human environment. 1. Projects which meet the following criteria may be categorically excluded from formal environmental review requirements: A. The project is directed solely toward minor rehabilitation of existing facilities, functional replacement of equipment, or toward the construction of related facilities adjoining the existing facilities that do not affect the degree of water treatment or the capacity of the public water system. Examples include rehabilitation of existing equipment and structures, and the construction of small structures on existing sites; or B. New underground water lines or structures if located entirely in existing rights-of-way that have been previously disturbed and supported by appropriate documentation to verify the rights-of-way location(s) and type(s) of previous disturbance. 2. CEs will not be granted for projects that entail— A. The construction of new water mains located outside existing rights-of-ways; B. A new water supply source or relocation of an existing water supply source; C. An increase of more than thirty percent (30%) in the capacity of the water system; D. Provision of a capacity for a population thirty percent (30%) or greater than the existing population; E. Known or expected impacts to cultural resources, threatened or endangered species, or other environmentally sensitive areas; and F. The construction of facilities that are known or expected to be not cost-effective or are likely to cause significant public controversy. (B) Finding of no significant impact/environmental assessment (FNSI/EA). The FNSI/EA will be based upon an environmental review by the staff supported by an environmental information document (EID) prepared by the recipient in conformance with guidance developed by the department. If a FNSI/EA is not appropriate, a public notice noting the preparation of an environmental impact statement (EIS) will be required. The director’s issuance of a FNSI/EA will be based upon documentation that the potential environmental impacts will not be significant or that they may be mitigated without extraordinary measures. (C) Record of Decision (ROD). The ROD may only be based upon an EIS in conformance with the format and guidelines described in subsection (5)(C). An EIS will be required when the director determines any of the following: 1. The project will significantly affect the pattern and type of land use or growth and distribution of the population; 2. The effects resulting from any structure or facility constructed or operated under the proposed action may conflict with local or state land use plans or policies; 3. The project may have significant adverse impacts upon— A. Wetlands; B. Floodplains; C. Threatened and endangered species or their habitats; D. Cultural resources including parklands, preserves, other public lands, or recognized scenic, recreational, prime farmlands, archeological, or historic value; and E. Prime farmland; 4. The project will displace populations or significantly alter the characteristics of existing residential areas; and 5. The project directly or indirectly (for example, through induced development) may have significant adverse effect upon local ambient air quality, local noise levels, surface and groundwater quantity or quality, fish, shellfish, wildlife, or their natural habitats. (3) When five (5) or more years have elapsed between the last environmental determination and the submittal of an application to the fund, the director will reevaluate the project, environmental conditions, and public views and, prior to approval of the application, proceed in accordance with section (6) of this rule. (4) Construction Prior to Environmental Review. (A) A recipient may request advance authority to construct part of the proposed drinking water project prior to completion of the necessary environmental review when that part of the project will— 1. Remedy a severe public health problem immediately; 2. Not preclude any reasonable alternatives identified for the complete system; 3. Not cause significant direct or indirect environmental impacts, including those which cannot be acceptably mitigated without completing the entire project; and 4. Not be highly controversial. (B) Based upon the review of the information required by section (5) of this rule, the director will issue a FNSI/EA so conditioned as to prohibit construction of the remainder of the project until a complete environmental review has been performed and a subsequent environmental determination has been issued. (5) Information Required for Environmental Review. (A) Recipients seeking a CE shall provide the director with sufficient documentation to demonstrate compliance with the criteria of subsection (2)(A). At a minimum, this shall consist of a— 1. Brief, complete description of the proposed project and its costs; 2. Statement indicating that the project is cost-effective, and that the recipient is financially capable of constructing, operating, and maintaining the facilities; and 3. Plan map(s) of the proposed project showing— A. The location of all construction areas; B. The planning area boundaries; and C. Any known environmentally sensitive areas. (B) An EID shall be submitted by those recipients whose proposed projects do not meet the criteria for a CE and for which the director has made a preliminary determination that an EIS will not be required. The director will provide guidance on both the format and contents of the EID to potential recipients prior to initiation of facilities planning. 1. At a minimum, the contents of an EID shall include: A. The purpose and need for the project; B. Information describing the current environmental setting of the project and the future environmental setting without the project; C. The alternatives to the project as proposed; D. A description of the proposed project; E. The proposed impact of the project and alternatives on the user rates; F. The potential environmental impacts of the project as proposed including those which cannot be avoided; G. The relationship between the short-term uses of the environment and the maintenance and enhancement of long-term productivity; H. Any irreversible and irretrievable commitments of resources to the proposed project; I. Proposed mitigation measures to minimize the environmental impacts of the project; J. 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 K. Documentation of coordination with appropriate governmental agencies. 2. The recipient shall hold a public meeting or hearing on the proposed project and the EID, and provide the director with a complete record of the meeting or hearing. The meeting or hearing will be advertised at least thirty (30) days in advance in a local newspaper of general circulation. Included with the meeting record will be a list of all attendees with addresses, any written testimony, and the recipient’s responses to the issues raised. (C) The format of an EIS shall encourage sound analyses and clear presentation of alternatives, including the no-action alternative and the selected alternative and their environmental, economic, and social impacts. The following format shall be followed by the recipient unless the director determines there are compelling reasons to do otherwise: 1. A cover sheet identifying the recipient, the project(s), the program through which financial assistance is requested, and the date of publication; 2. An executive summary consisting of a five to fifteen (5-15) page 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 will include: A. A description of the existing problem; B. A description of each alternative; C. A listing of each alternative’s potential environmental impacts, mitigative measures, and any areas of controversy; and D. Any major conclusions; 3. The body of the EIS which 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 balanced description of each alternative considered by the recipient. The descriptions will include the size and location of the facilities and pipelines, land requirements, operation and maintenance requirements, and construction schedules. The alternative of no action will be discussed and the recipient’s preferred alternative(s) will be identified. Alternatives that were eliminated from detailed examination will be presented 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 to reduce adverse environmental impacts or providing assistance with conditions requiring the implementation of mitigative measures; and (III) Not providing financial assistance; 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; E. A description of the affected environment and environmental consequences of each alternative including secondary and cumulative impacts. The affected environment on which the evaluation of each alternative will be based includes, as a partial listing, hydrology, geology, air quality, noise, biology, socioeconomics, land use, and cultural resources of the facilities planning area. The department will provide guidance, as necessary, to the recipient regarding the evaluation of the affected environment. The discussion will present the total impacts of each alternative in a manner that will facilitate comparison. The effects of the no-action alternative must be included to serve as a baseline for comparison of the adverse and beneficial impacts of the other alternatives. A description of the existing environment will be included in the no-action section to provide background information. The detail in which the affected environment is described will be commensurate with the complexity of the situation and the significance of the anticipated impacts; 4. The draft EIS will be provided to all local, state, and federal agencies and public groups with an interest in the proposed project and be made available to the public for review. The final EIS will include all objections and suggestions made before and during the draft EIS review process along with the issues of public concern expressed by individuals or interested groups. The final EIS must include discussions of any such comments pertinent to the project or the EIS. All commenters will be identified. If a comment has led to a change in either the project or the EIS, the reason should be given. The department will always endeavor to resolve any conflicts that may have arisen, particularly among permitting agencies, prior to the issuance of the final EIS. In all cases, the comment period will be no less than fortyfive (45) days; 5. Material incorporated into an EIS by reference will be organized 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 persons within the comment periods specified in paragraph (5)(C)4. and subparagraph (5)(C)7.C.; 6. When an EIS is prepared by contractors, either in the service of the recipient or the department, the department will independently evaluate the EIS prior to issuance of the ROD and take responsibility for its scope and contents. The staff who undertake this evaluation will be identified under the list of preparers along with those of the contractor and any other parties responsible for the content of the EIS; and 7. The public participation required for an EIS is extensive but, depending upon the nature and scope of the proposed project, should be supplemented by the recipient. The following requirements represent the minimum allowable: A. Upon making the determination that an EIS is required of a proposed project, the department will distribute a notice of intent to prepare an EIS; B. As soon as possible after the notice of intent has been issued, the director will convene a meeting of the affected federal, state, and local agencies, the recipient and other interested parties to determine the scope of the EIS. A notice of this scoping meeting may be incorporated into the notice of intent or prepared as in paragraph (5)(B)2. of this rule, except that in no case will the notification period be less than forty-five (45) days. As part of the scoping meeting the director will, at a minimum— (I) Determine the significance of issues and analyze in depth the scope of those significant 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 for EIS preparation and the public participation strategy; (V) Identify consultation requirement of other laws and regulations; and (VI) Determine the relationship between the preparation of the EIS and the completion of the engineering report and any necessary arrangements for coordination of the preparation of both documents; and C. Following the scoping process, the director will begin the identification and evaluation of all potentially viable alternatives to adequately address the range of issues developed in the scoping. A summary of this, including a list of the significant issues identified, will be provided to the recipient and other interested parties. Preparation of the EIS will be done at the discretion of the department: directly, by the staff; by consultants to the department; or by a consultant contracted by the recipient subject to approval by the department. In the latter two (2) cases, the consultant will be required to execute a disclosure statement prepared by the department signifying they have no financial or other conflicting interest in the outcome of the project. Both the draft EIS and final EIS will be distributed and made available for public review in a fashion consistent with the requirements of paragraph (5)(B)2. of this rule except that the advertisement and comment period for the public participation will be no less than forty-five (45) days. The department will publish in a newspaper of general circulation in the project area, a notice of availability of the EIS giving locations at which it will be available for public review at least forty-five (45) days prior to making any environmental determination. (6) Environmental Determination. (A) When the director has determined that a recipient’s proposed project may be excluded from a formal environmental review, the director will prepare a determination to categorically exclude the project. The director will distribute the determination to interested federal agencies, state and local governments, and entities that have expressed an interest in the proposed project, and a copy will be available to the public upon request. (B) An environmental review of the proposed project, supported by the recipient’s EID, will be conducted by the director to determine whether any significant impacts are anticipated and whether any changes may be made in the proposed project to eliminate significant adverse impacts. As part of this review, the director may require the recipient to submit additional information or undertake additional public participation and coordination to support its environmental determination. Based on the environmental review, the director will prepare a FNSI/EA describing— 1. The purpose and need for the proposed project; 2. The proposed project including its costs; 3. The alternatives considered and the reasons for their rejection or acceptance; 4. The existing environment; 5. Any potential adverse impacts and mitigative measures; and 6. Any proposed conditions to the provision of financial assistance and any means provided for the monitoring of compliance with the conditions. (C) When the director has determined that a FNSI/EA will be issued, the director will prepare a FNSI/EA. The FNSI/EA will be distributed to the interested federal agencies, state and local governments, entities that have expressed an interest in the proposed project and a copy will be available to the public upon request. No action regarding approval of the engineering report or the provision of financial assistance will be taken by the director for at least thirty (30) days after the issuance of the FNSI/EA. (D) Public participation requirements for an EIS are detailed in paragraph (5)(B)2. except the ROD and final EIS shall have a forty-five- (45-) day period of notice. (7) Project Modification. Recognizing that a project may be altered at some time after an environmental determination on the project has been issued, the director will provide that, prior to approval, the plans and specifications, loan application and related documents will be examined for consistency with the environmental determination. If inconsistencies are found, the director may revoke a CE and require the preparation of an FNSI/EA or an EIS, or require the preparation of amendments to a FNSI/EA or supplements to an EIS, as appropriate. Based upon the staff’s review of the amended project, the director will— (A) Reaffirm the original environmental determination through the issuance of a public notice or statement of finding; (B) Issue a FNSI for a project for which a CE has been revoked or issue a public notice that the preparation of an EIS will be required; (C) Issue an amendment to a FNSI/EA or revoke a FNSI and issue a public notice that the preparation of an EIS will be required; or (D) Issue a supplement to a ROD or revoke a ROD and issue a public notice that financial assistance will not be provided. (8) The director may, on a case-by-case basis, accept the environmental determinations, consistent with the National Environmental Policy Act completed by other state and federal agencies. Environmental determinations completed by other state and federal agencies must be less than five (5) years old unless reaffirmed. AUTHORITY: sections 640.100 and 640.107, RSMo 2016.* Emergency rule filed July 15, 1998, effective July 25, 1998, expired Feb. 25, 1999. Original rule filed Aug. 17, 1998, effective April 30, 1999. Amended: Filed June 13, 2018, effective Feb. 28, 2019. *Original authority: 640.100, RSMo 1939, amended 1978, 1981, 1982, 1988, 1989, 1992, 1993, 1995, 1996, 1998, 1999, 2002, 2006, 2012, 2014 and 640.107, RSMo 1998.