ABSTRACT
We live in an age of environmental litigation. Fortunately, you will not be bitten by a snail darter. In fact, you will probably not even be worried about the existence or nonexistence of a snail darter at your place. Except for wetlands, buffers to wetlands, or some other special circumstance, you will not be required to do anything with respect to the environment. You may not even be required to file anything to comply with the National Environmental Policy Act of 1969 (NEPA). An environmental assessment (EA), to be filed with the Federal Communications Commission (FCC), is required only in eight environmentally sensitive situations (47 CFR § 1.1307(a)), or for radiation in excess of Office of Engineering Technology (OET) 65 guidelines (47 CFR § 1.1307(b)). Here’s an overview of compliance with NEPA, adapted from the FCC website:
Compliance with Commission’s Rules Implementing the National Environmental Policy Act of 1969
This document is prepared by the Wireless Telecommunications Bureau’s Commercial Wireless Division to assist wireless service carriers understand the Commission’s Rules implementing the National Environmental Policy Act of 1969, 42 USC § 4321 et seq. This document is intended to serve as an informal guide only, and is NOT INTENDED to revise or replace the rules contained in Subpart I, Part 1 of the Commission’s Rules (https://wireless.fcc.gov/rules.html" xmlns:xlink="https://www.w3.org/1999/xlink">https://wireless.fcc.gov/rules.html), 47 CFR § § 1.1301 to 1.1319.
Attached are answers to some frequently asked questions received by the Commercial Wireless Division (https://wireless.fcc.gov/siting/npafaq.html" xmlns:xlink="https://www.w3.org/1999/xlink">https://wireless.fcc.gov/siting/npafaq.html). These answers are general in nature, and do not necessarily represent the opinions of the Commission or any individual Commissioner. Furthermore, the Bureau’s positions reflected in these general responses may not apply to your individual factual circumstance. Please contact the Bureau’s Commercial Wireless Division at (202) 418-0620 for more questions on these compliance issues.
National Environmental Policy Act (NEPA)
NEPA is the basic national charter for protection of the environment. It requires all Federal agencies to implement procedures to make environmental consideration a necessary part of an agency’s decision-making process. Specifically, NEPA and the regulatory guidelines established by the Council on Environmental Quality which implemented the Act, 40 CFR § § 1500 et seq., require all Federal agencies to take into account environmental consequences when making decisions which could be considered “major federal actions.”
As a licensing agency, the Commission complies with NEPA by requiring our licensees to review their proposed actions for environmental consequences. Our rules implementing NEPA are found at Title 47 of the Code of Federal Regulations, Part 1, Subpart I, rule sections 1.1301 to 1.1319 (https://wireless.fcc.gov/rules.html" xmlns:xlink="https://www.w3.org/1999/xlink">https://wireless.fcc.gov/rules.html).
Section 1.1305 of these rules state that the Commission “has found no common pattern which would enable it to specify” any particular Commission action as a “major action” under NEPA. Thus, section 1.1306 of the Rules “categorically excluded from environmental processing” all Commission actions except for those specifically identified in section 1.1307. If a licensee’s proposed action falls within one of the categories of 1.1307, section 1.1308(a) requires the licensee to consider the potential environmental effects from its construction of antenna facilities or structures, and disclose those effects in an environmental assessment (EA) which is filed with the Commission for our review.
Section 1.1307 is divided into four parts:
1.1307(a): Lists eight areas or situations which are considered environmentally sensitive and requiring preparation of an EA prior to construction.
1.1307(b): Requires an EA if the antenna transmitter would cause exposure of workers or the general public to levels of radiofrequency (RF) radiation in excess of certain guidelines. These guidelines were recently revised. See Report and Order in ET Docket No. 93-62, FCC 96-326 (https://www.fcc.gov/Bureaus/Engineering_Technology/Orders/1996/fcc96326.txt" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.fcc.gov/Bureaus/Engineering_Technology/Orders/1996/fcc96326.txt, released Aug. 1, 1996).
1.1307(c): Allows “an interested person” to petition the Commission to require environmental consideration in its decision-making process where such analysis would not otherwise be required by the rules. The petition must be in writing and detail the reasons justifying such an analysis. The Commission then reviews the petition and will either require an EA or it may proceed without an environmental analysis.
1.1307(d): Allows the Bureau responsible for processing an action which may otherwise be excluded from an EA, to require environmental consideration of that action upon its own motion.
Wireless Telecommunications Bureau’s EA Review Process
If, after consulting the NEPA rules, a wireless service provider determines that its proposed service facility project does not fall under any of the listed categories in section 1.1307, section 1.1306 states that the licensee may proceed with the project without providing any documentation to the Bureau. Both FCC Form 601 (Application for Radio Service Authorization, https://www.fcc.gov/formpage.html#601" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.fcc.gov/formpage.html#601) and FCC Form 854 (Application for Antenna Structure Registration, https://www.fcc.gov/formpage.html#854" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.fcc.gov/formpage.html#854) contain question 28, which asks whether the licensee’s proposed action may have a significant environmental effect requiring an EA. If the licensee indicates “NO” to this question, no environmental documentation is required to be filed with the Commission. However, the licensee should maintain all pertinent records and be ready to provide documentation supporting its determination that an EA was not required for the site, in the event that such information is requested by the Bureau pursuant to section 1.1307(d).
If, after consulting the NEPA rules, a licensee determines that its proposed construction does fall under one of the listed categories in section 1.1307(a) or (b), the licensee is required to notify that fact to the Bureau. The licensee must answer “YES” to question 28 on either FCC Forms 601 or 854 and attach an EA to the form filing. Once this question is answered “YES,” the filing is treated as a “major environmental action.” Questions on how to file an FCC Form 601 should be addressed to the Commercial Wireless Division, Broadband Branch, (202) 530-6008. Questions on how to file an FCC Form 854 should be addressed (202) 418-1513.
The Bureau’s review of a major environmental action consists of the following stages:
Initial Review: When an EA is received by the Bureau (attached to either a Form 601 or a Form 854), the appropriate licensing Office initially reviews the complete filing to determine whether the proposed antenna facility complies with any FAA height, location, lighting and marking requirements, AM station interference coordination or other engineering requirements, or any other non-environmental concerns.
Acceptance Public Notice: The licensing Office then places the filing on the Commission’s Public Notice (PN) for thirty days, indicating that the application was accepted for filing as a “major environmental action.” The PN indicates the licensee’s name, call sign, the market, FCC file number, the date on which the application was received, and the specific section of the 1.1307 category invoking the need for an EA.
Review: The EA is then reviewed by the Bureau’s Enforcement Division, along with any comments, petitions or opposition filed against the EA during the 30-day PN period.
Finding of No significant Impact: If, after consulting with all relevant expert federal and state agencies, the Enforcement Division determines that the proposed project will not have a significant impact upon the environment, the Enforcement Division issues its finding of no significant impact (FONSI). The licensing Office then notifies the licensee that the application has been granted and issues another PN announcing the grant of the application.
Finding of Impact: If, after consulting with all appropriate agencies, the Enforcement Division determines that the proposed project will have significant impact upon the environment, it informs the licensee of this finding. Pursuant to section 1.1308(c) of the Commission Rules, the licensee is afforded an opportunity to amend its proposal to reduce, minimize, or eliminate environmental problems. If the licensee’s amended application resolves the negative environmental impact, the Enforcement Division issues a FONSI and the application is granted. If the amended application does not eliminate the environmental problem, the Enforcement Division will either recommend the denial of the application or will work with the applicant to proceed with the project upon preparation of an environmental impact statement (EIS). Should the Bureau decide to proceed with the action, sections 1.1314, 1.1315 and 1.1317 require a notice of intent that EISs will be prepared, then a draft and final EISs be prepared and announced in the Federal Register.
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NEPA Questions Frequently Asked by Licensees
The following are questions the Commercial Wireless Division frequently receives concerning NEPA and EA preparation. The Q & As will be updated regularly as more information becomes available. Please contact the Commercial Wireless Division at 202-418-0620 for additional questions you may have on this topic.
Q. Is it necessary to hire outside environmental consultants, scientists, archaeologists or historians to comply with these rules?
A. Nothing in the Commission’s Rules require that you hire these outside specialists, although it may be easier and more cost effective in the long run to let such experts assist you in handling this area of compliance.
Q. Which government agency or Office can assist us in determining whether or not a proposed construction may require an environmental assessment (EA) under section 1.1307?
A. Because the Commission is not an expert agency on environmental matters, in evaluating our licensees ’ environmental assessments prepared and filed pursuant to NEPA, we defer to the opinions or judgments of other agencies with expertise over a particular subject matter. These agencies can also assist you in determining whether your proposed construction may affect the areas over which the agency has jurisdiction, and they can offer suggestions on how to mitigate any impact upon the area. The federal and certain state agencies with expertise and jurisdiction over each of the categories in section 1.1307 are as follows:
Wilderness Area: U.S. Department of Interior (https://www.doi.gov/" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.doi.gov/)
Wildlife Preserve: U.S. Department of Interior (https://www.doi.gov/" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.doi.gov/)
Endangered Species: U.S. Department of Interior, Fish and Wildlife Service (https://www.fws.gov" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.fws.gov)
Historic Site: Advisory Council on Historic Preservation, State Historic Preservation Office (https://www.achp.gov" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.achp.gov)
Indian Religious Site: American Indian Tribes, State Historic Preservation Office
Floodplain: Federal Emergency Management Agency (https://www.fema.gov" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.fema.gov)
Surface Features: U.S. Army Corp of Engineers (https://www.usace.army.mil" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.usace.army.mil)
High Intensity Lights in Residential Neighborhoods: Federal Aviation Administration (https://www.faa.gov" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.faa.gov)
Excessive Radiofrequency Emission: Federal Communications Commission’s Office of Engineering and Technology (https://www.faa.gov/oet" xmlns:xlink="https://www.w3.org/1999/xlink">https://www.faa.gov/oet)
Q. Should any state or local government agency also be contacted to determine the environmental effects of a situation listed under section 1.1307?
A. Yes. You should always contact any and all state and local government Offices with responsibility over the effected area, as some of these Offices share jurisdiction over the area with a federal agency. In addition, some states have environmental laws and regulations which may be more stringent than federal standards, and you must comply with all relevant laws in addition to the Commission’s NEPA rules.
Q. What is an EA? What does it look like? How long should it be? How can we obtain a sample of a good EA?
A. An EA is a document which, among other purposes, serves to assist the Bureau staff understand the environmental effects of the licensee’s proposed construction. Thus the document should contain all relevant information necessary for the Bureau staff to make a determination on the extent of negative impact the construction may have upon the area. Rule section 1.1311 details what should be included in an EA. It is always helpful to include as attachments, copies of all relevant correspondence with and permits or authorizations issued by the local or state officials concerning the proposed project. As publicly filed documents, all EAs are available to the public at the Bureau’s Public Reference Room, located at FCC Headquarters, Room CY-A257, 445 12th Street SW, Washington, DC 20554. For more information, you may contact the Reference Room at (202) 418-0270, Monday through Thursday from 8:00–4:30PM EST and Friday from 8:00–11:30AM EST.
Q. Should the EA address all the categories even if only one or two of those listed categories are actually effected?
A. Yes. The EA should be comprehensive in its analysis by discussing the reasons why a particular category is effected as well as the reasons why other categories are not effected by the proposed action. The substantial portion of the analysis, of course, should address the categories which are effected by the proposed construction.
Q. What is a “floodplain” referred to in section 1.1307(a)(6)? Is there a difference between a 100-year and a 500-year floodplain?
A. According to Executive Order 11988 referred to in section 1.1307(a)(6), a floodplain is defined as the “lowland and relatively flat area adjoining inland and coastal waters … including at a minimum, that area subject to a one percent or greater chance of flooding in any given year.” This definition is often referred to as a “100-year floodplain.”
The Federal Emergency Management Agency (FEMA) is the administrator of the National Flood Insurance Program, and the federal agency having lead responsibility for flood hazard assessment and mitigation. FEMA has adopted the 100-year floodplain as the base flood standard for NFIP as that agency is mainly concerned with construction which could potentially harm a 100-year floodplain, rather than a 500-year floodplain, which is an area that has a 0.2 percent chance of a flood in a year. However, FEMA is also concerned with any construction in a 500-year floodplain if the proposed project is considered a “critical action.” A “critical action” is defined as any activity for which even a slight chance of flooding is too great. Relying upon FEMA’s guidelines, this Office understands the term “floodplain” as used in Section 1.1307(a)(6) to refer to either a 100-year floodplain, or a 500year floodplain subject to “critical action” characterization. However, to fully understand these terms and concepts, it is advised that you review FEMA’s Further Advice on Executive Order 11988 Floodplain Management, and the U.S. Water Resources Council’s Floodplain Management Guidelines for Implementing E.O. 11988, published on February 10, 1978, at page 6030 of volume 43 of the Federal Register.
Q. Since the Commission issued its NEPA Rules in 1986 with certain amendments thereafter, are the structures built prior to 1986 exempt from compliance, or must the existing structures be re-evaluated now for environmental compliance?
A. NEPA is a federal policy directive aimed at producing quality agency decisions that take into consideration environmental consequences. NEPA does not set a time frame in which to come into compliance with the law as environmental problems can change with time. Thus, even if you have never filed an EA on a structure because it was constructed prior to 1986, you are required to come into compliance now, under the environmental conditions of the structure as it exists today. Keep in mind, however, that coming into compliance with the NEPA Rules may not require you to file an EA if the conditions under which your structure stands today does not involve any of the categories listed in 1.1307. It simply requires you to conduct a field investigation on the structure to be sure that no negative environmental problems exist today.
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