a.
General. As required by the
Provisions of the Act
DHHS will conduct an interdisciplinary environmental review
of equivalency projects proposed for funding through the Fund. This NEPA
(National Environmental Protection Act) - like review will ensure that the
Project will comply with the applicable local, State and federal laws, relating
to the protection, restoration and enhancement of the environment. The review
will include provisions for public participation and consideration of the
immediate and long-term individual and cumulative effects of the Project. Based
upon DHHS staff (the Staff) review and consideration of public comments,
including local, State and federal agency comments, DHHS will make a formal
determination regarding the potential social and environmental impacts of the
proposed Project. If necessary, the determinations of DHHS will
includemitigative provisions as a condition to the provision of financial
assistance for construction. No financial assistance will be provided until a
final environmental determination has been made by DHHS, or a previous
determination made by DHHS has been accepted (see subsection (d) (I) of this
section). DHHS may concur with an environmental determination that is based on
a NEPA or NEPA-like review issued by another State or federal agency.
c.
Basic Environmental
Determinations
There are three basic environmental determinations that will
apply to Projects proposed to be implemented with assistance from the Fund.
They are: (1) a determination to categorically exclude (CE) a Project from a
formal environmental review, (2) a finding of no significant impact (FNSI)
based upon a formal environmental review supported by an environmental
information document (EID) and, (3) a determination to require the preparation
of an environmental impact statement (EIS), after which a determination to
provide or not to provide financial assistance will be included in the EIS
record of decision (ROD).
I. For the
purposes of making an environmental determination, no significant environmental
impact means:
AA. State ambient air quality
standards and State emissions standards are met;
BB. The State classification of nearby, or
adjacent, surface water bodies is not affected;
CC. Ground water quality for the area is not
degraded, nor are off-site wells or other protected natural resources at risk
due to taking of water from the ground water source;
DD. The preservation of any site recognized
as historic on the National Register of Historic Places and/or the Maine
Historic Resource Inventory is not affected;
EE. Threatened or endangered species, and/or
their habitats, are not affected;
FF. Environmentally sensitive areas such as,
but not limited to, wetlands, fragile mountain areas, floodplains, coastal
zones, coastal dunes, coastal barrier islands, wild and scenic rivers, and
important farmlands, identified by State and Federal environmental authorities,
are not affected;
GG. Local noise
levels are not changed; and
HH.
Other parameters which may be designated by DHHS, as required.
When evaluating the above parameters, the criteria and
considerations established in Chapter 375 Site Location of Development
Regulations of the State of Maine Department of Environmental Protection will
be utilized. Guidance for application and definition of terms used in
evaluation of social and natural environmental impacts will be taken from the
Council on Environmental Quality (CEQ) regulations, guidance and "Question and
Answer" documents.
II. The categorical exclusion (CE)
determination applies to categories of Projects that have been shown over time
not to entail significant impacts on the quality of the environment:
AA. A Project that 1) is expected to have no
significant environmental impact, 2) is located such that the Project or the
required construction work for the Project will not be in or affect nearby
environmentally sensitive areas or resources, and 3) meets any one of the
following criteria, as determined by DHHS, may be categorically excluded from
formal environmental review requirements:
i.
The Project is directed solely toward the rehabilitation, minor upgrading
and/or minor expansion of existing facilities, toward functional replacement of
equipment, toward the construction of related facilities adjoining existing
facilities, or toward construction of small structures on existing
sites;
ii. The Project is to
replace existing water mains with new mains in the same general location;
or
iii. The Project is to replace
existing water storage facilities with new storage facilities in the same
general location; or
iv. The
Project is to construct distribution or transmission mains in existing
developed rights-of-way; or
v. The
Project is the purchase of land or easements integral to the implementation of
a source water protection plan where no land-use changes are anticipated to
occur.
BB. CEs will not
be granted for Projects that entail:
i. A new
surface water intake or relocation of an existing surface water intake or a new
discharge;
ii. The provision of
capacity for a population 30 percent or greater than the existing population
within a 10 year period;
iii. Known
or expected impacts to cultural resources, to threatened or endangered species,
or to other environmentally sensitive areas, as defined by local, State or
federal law; or
iv. The
construction of facilities that are known or expected not to be cost-effective
or are likely to cause significant public controversy.
CC. DHHS may issue a CE for other categories
of Projects for which there is sufficient documentation demonstrating that the
Project is not likely to have significant effects on the quality of the
environment.
DD. DHHS shall revoke
a CE and require the applicant to prepare and submit an EID if 1) the Project
is altered and no longer meets the requirements for a CE or, 2) new evidence
shows that serious environmental issues exist or, 3) a local, State, or federal
law is being or may be violated.
III. Applicants whose Projects do not meet
the criteria for a CE will be required to prepare an Environmental Information
Document (EID). DHHS Staff will review the EID and prepare an environmental
assessment (EA) resulting in the issuance of either a FNSI or a public notice
that preparation of an EIS by the applicant will be required.DHHS's issuance of
a FNSI will be based upon the EA which shall document that the potential
environmental impacts will not be significant or that they will be mitigated
without extraordinary measures.
IV.
The ROD may only be based upon an EIS that is prepared in conformance with CEQ
regulations (CFR 40 Part 1502.10). An EIS will be required when DHHS determines
through preparation of the EA that any one of the following conditions exist:
AA. The Project will significantly affect the
pattern and type of land use or growth and distribution of the
population;
BB. The effects of the
construction or operation of the project will conflict with local or State laws
or rules;
CC. The Project may have
significant adverse impacts upon any one of the following:
i. Wetlands;
ii. Floodplains;
iii. Threatened and endangered species or
their habitats; or
iv. Cultural
resources including parklands, preserves, and other public land or areas of
recognized scenic, recreational, agricultural, archeological or historic
value.
DD. The Project
may displace population or significantly alter the characteristics of existing
residential areas;
EE. The Project
may directly or indirectly (e.g., through induced development) have significant
adverse effect, as defined by CEQ Regulations, upon local ambient air quality,
local noise levels, surface and ground water quantity or quality, fish,
shellfish, wildlife or their natural habitats; or
FF. The Project may generate significant
public controversy.
d.
Other Determinations That DHHS Is
Required to Make
I. If funding
application is made five or more years after an environmental determination has
been issued, or a Project has been altered, DHHS will examine the plans and
specifications, and related documents, for consistency with the environmental
determination. If significant changes are found, DHHS may revoke a CE and
require the preparation of an EID and, if appropriate an EIS, or require the
preparation of amendments to an EID or, if appropriate, supplements to an EIS.
Based upon Staff review of the amended Project and EID, DHHS will:
AA. Reaffirm the original environmental
determination through the issuance of a public notice or statement of
finding;
BB. 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;
CC. Issue an amendment to a FNSI, or revoke a
FNSI and issue a public notice that the preparation of an EIS will be required;
or
DD. Issue a supplement to a ROD,
or revoke a ROD that included funding and issue a public notice that financial
assistance will not be provided.
e.
Other Determinations That DHHS May
Make
I. An applicant may request
advance authority to construct part of the proposed Project prior to completion
of the necessary environmental review when the part of the Project to be
constructed:
AA. Immediately remedies a
severe public health, water quality or environmental problem;
BB. Does not preclude any reasonable
alternatives identified for the complete system;
CC. Does not cause significant direct or
indirect environmental impacts including those which cannot be acceptably
mitigated without completing the entire Project; and
DD. Is not highly controversial.
II. Based upon the review of the
information required by subsection (f) of this section, if DHHS finds that the
portion of the Project to be constructed meets the requirements of subsection
(e)(I) above, DHHS will issue a FNSI so conditioned as to prohibit construction
of the remainder of the Project until a complete environmental review of the
entire Project has been performed and an environmental determination
issued.
f. Environmental
information required by DHHS. A minimum of two copies of all information
required in this subsection shall be submitted to DHHS. Information regarding
environmentally sensitive areas and important natural resources referred to in
these rules is available through various agencies of the State and federal
government.
I. Applicants seeking a CE will
provide DHHS with sufficient documentation to demonstrate compliance with the
criteria of subsection (c)(II) of this section. At a minimum, this
documentation will consist of:
AA. A brief,
complete description of the proposed Project and its costs;
BB. A statement indicating that the Project
is cost-effective and that the applicant is financially capable of
constructing, operating and maintaining the facilities; and
CC. A plan map, or maps, of the proposed
Project showing:
i. The location of all
construction areas,
ii. The water
service area boundaries, and
iii.
Any known environmentally sensitive areas, such as, but not limited to,
cultural resource sites, endangered or threatened species critical habitats and
environmentally important natural resource areas such as, but not limited to,
100-year floodplain boundary, wetlands, important farmlands, coastal zones or
wild and scenic rivers, and fragile mountain areas.
DD. Copies of all permits obtained by the
applicant from local, State and federal agencies for the Project.
II. An EID must be submitted by
those applicants whose proposed Projects do not meet the criteria for a CE.
AA. In addition to such other information as
DHHS may require, the contents of an EID will include:
i. A description of the Project including
population to be served, if appropriate. Population projections will be
consistent with studies available from the Regional Planning Commission for the
area to be served by the Project;
ii. The environmental setting of the Project
and the future of the environment without the Project;
iii. The alternatives to the Project
including an evaluation of direct and indirect impacts, cost effective analysis
and socioeconomic effect of each alternative;
iv. The potential environmental impacts of
the Project, including those which cannot be avoided;
v. A discussion of the whole range of
relevant impacts including measures to mitigate adverse impacts, and
commitments of resources to the Project. This would include any specific
requirements of grant conditions or drinking water system long-term plans. Such
requirements should be identified and referenced;
vi. A description of public participation
activities conducted, issues raised, and changes to the Project which have been
or may be made as a result of the public participation process;
vii. Documentation of coordination with
appropriate governmental and regulatory agencies; and
viii. A plan map or maps as defined in
subsection (f)(I)(CC) of this section.
BB. The EID shall be made available for
public review and comment for 30 days. The applicant shall advertise the
availability of the EID in a newspaper of general circulation in the area to be
served. Concurrent with the advertisement, a notice of availability of the EID
will be sent to all local, State and federal agencies and to public and private
parties who have expressed an interest in the proposed Project. Both the
advertisement and the notice shall include the deadline for submitting comments
and for requesting a public hearing. Addresses where copies of the EID can be
obtained and where comments will be taken shall also be included.
CC. A public hearing on the EID will be held
when the Project is expected to have an effect on the environment, or when five
(5) or more persons request a hearing in writing. The applicant shall provide
DHHS with a record of the hearing which shall include, a list of people in
attendance, identities ofcommenters and the comments they made, copies of
written testimony and the applicant's responses to the comments made. The
record of the hearing and the EID shall be submitted to DHHS no later than
thirty (30) days after the hearing. Advertisement and notice of the hearing
shall be made no less than seventeen (17) days prior to the hearing. In the
event the hearing date falls after a previously set comment deadline, comments
shall be taken for five (5) days after the hearing. Notice of the public
hearing shall be advertised in a newspaper of general circulation in the area
to be served and sent to all local, State, and federal agencies and to public
and private parties that have expressed an interest in the proposed Project.
The applicant may request and DHHS may allow for the hearing to be held in
conjunction with another hearing required for the Project.
III. The format of an EIS will allow for
sound analysis by making a clear presentation of all alternatives, including
the no action alternative, the proposed alternative, and all rejected
alternatives. Both positive and negative environmental, economic and social
impacts will be presented for each of the alternatives. Justification for
choosing the proposed alternative and rejecting the others will be included.
The procedure for developing the EIS is given in subsection (g) of this
section.
g.
Procedures for Developing the EIS
I. Upon making the determination that an EIS
will be required of a proposed Project, DHHS will publish and distribute a
notice of intent to have an EIS prepared.
II. The EIS shall be prepared consistent with
the CEQ regulations (
40 CFR Part
1502.10) .
III. The environmental determination will be
in the form of a ROD stating one of the following:
AA. Financial assistance is given to the
proposed Project;
BB. The proposed
Project is modified to reduce adverse environmental impacts prior to financial
assistance being given, or financial assistance is provided with conditions
thatmitigative measures be implemented; or
CC. Financial assistance is not provided for
the proposed Project.
h.
Public Notice Requirements After an
Environmental Determination Has Been Made
After DHHS has issued an environmental determination the
applicant shall give public notice as follows:
I. For Projects receiving a CE determination:
AA. Applicants shall publish a notice
indicating the determination in a local newspaper of community-wide circulation
stating that supporting documentation is available for public
inspection.
BB. Concurrently, DHHS
shall make the documentation available to the public and shall distribute the
notice of the determination to all known interested parties.
II. For Projects receiving a FNSI
determination:
AA. DHHS shall allow for
public review for at least thirty (30) days prior to the FNSI taking effect by:
i. Assisting the applicant with publication
of a notice of the determination and a statement of the availability of the
supporting EA in a newspaper of general circulation in the area to be
served.
ii. Making the EA available
to the public.
iii. Distributing
the FNSI and EA to all known interested parties.
III. For Projects receiving a ROD
after preparation of an EIS:
AA. DHHS shall
distribute the ROD to all parties who commented on the Draft or Final EIS.
i.
DHHS
Shall Monitor and Enforce Compliance with Grant Conditions.
I. The Project will be monitored by DHHS to
ensure that any mitigating measures identified in the FNSI or ROD are being
met.
II. If the applicant/recipient
fails to comply with grant conditions any of the following enforcement
sanctions may be imposed:
AA. Temporarily
withhold cash payments pending correction of the deficiency;
BB. Deny funding of all or part of the cost
of the action not in compliance;
CC. Wholly or partly suspend or terminate
funding of the Project;
DD.
Withhold further funding for the Project;
EE. Take other measures that may be legally
available.
