Environmental Compliance Overview

As a federal agency, BPA is required to comply with certain environmental laws and regulations when it funds all or part of a project. BPA must work cooperatively with project contractors to identify the applicable requirements and ensure that they are met before a project is implemented.

BPA Environmental Staff are responsible for reviewing a SOW before the corresponding contract is issued. Throughout the contract period, BPA Environmental Staff will update and maintain information about the current status of various environmental compliance requirements on the Environmental Compliance Tab under the Work Element Details in Pisces. Questions regarding the information on the Environmental Compliance Tab should be directed to the BPA Environmental Lead for that contract.

Work Element #165 should be used to account for all time and expenses contractors spend meeting environmental compliance requirements.

Environmental Compliance Requirements Tracked in Pisces:

• The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental effects of proposed projects before making a final decision to fund, approve, or implement an action.
• The Endangered Species Act (ESA) provides for conservation of listed animal and plant species and their habitat, and specifies consultation and permitting requirements.
• The National Historic Preservation Act (NHPA) requires an evaluation of effects on historic properties and cultural resources, and consultation with states and affected tribes.
• Public Involvement is required under NEPA to provide an opportunity for the public to comment on federal actions that concern or affect them.

For each of these components on the Environmental Compliance Tab, a checked box indicates that the requirement applies to that work element, whereas an unchecked box indicates the requirement does not apply to that work element. The BPA Environmental Lead will mark an applicable requirement complete by entering a completion date. Notes are optional; they will be used by the BPA Environmental Lead to communicate status of an environmental compliance component with the COTR and contractor. When all applicable components on the Environmental Compliance Tab have a completion date, environmental compliance for that work element will be deemed complete and a date will be displayed at the top of the Tab. This status will also be reflected automatically by Pisces in the status report for that work element’s Environmental Compliance Milestone. As necessary, the BPA Environmental Lead can modify the Environmental Compliance Milestone End Date on the Environmental Compliance Tab to indicate a change in expected schedule for environmental compliance related activities.

On-the-ground work should not start until environmental compliance for a work element has been determined to be complete by the BPA Environmental Lead (as described above).

NEPA Coverage

The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental effects of proposed projects before making a final decision to fund, approve, or implement an action. Various kinds of documents can provide NEPA coverage for a proposed project; a BPA Environmental Lead will determine the appropriate NEPA coverage. The most commonly used types of NEPA coverage by BPA for fish and wildlife mitigation activities are described below.

Programmatic
BPA has developed several Records of Decision (ROD) tiered to the Fish and Wildlife Implementation Plan Environmental Impact Statement (FWIP EIS) (DOE/EIS 0312, April 2003) for its fish and wildlife project funding decisions. These RODs provide NEPA coverage for a majority of the fish and wildlife program activities including standard watershed and wildlife management and mitigation activities, research activities, and site characterization activities.

Complex projects (e.g. artificial production projects, large scale construction projects or projects requiring the Council’s 3-Step Review Process) or projects that involve complicating factors (e.g. controversy, special regulatory requirements, the participation of other federal agencies, unprecedented actions or extraordinary environmental circumstances) may not be covered by the Programmatic ROD. BPA will review these activities and determine the appropriate NEPA coverage.

Environmental Assessment (EA)
An EA can provide NEPA coverage for an action if no significant impacts are expected (see discussion below). EAs must meet certain legal and regulatory standards, including timelines for public involvement and document distribution. EAs describe the purpose and need for a project, evaluate alternatives, document existing conditions, analyze potential environmental impacts, and may include mitigation measures.

Environmental Impact Statement (EIS)
An EIS can provide NEPA coverage for an action if significant environmental impacts are expected. Significance of impacts is defined in the regulations and is determined by a combination of factors such as the sensitivity of the resources affected, the severity of the effects, the degree to which the effects might be highly controversial or involve unique or unknown risks, and whether the proposed action is related to other actions with individually insignificant but cumulatively significant impacts. EISs must meet certain legal and regulatory standards, including timelines for public involvement and document distribution. EISs describe the purpose and need for a project, evaluate alternatives, document existing conditions, analyze potential environmental impacts, and may include mitigation measures.

Endangered Species Act
The ESA provides for conservation of listed animal and plant species and their habitat, and specifies consultation and permitting requirements. BPA is required to consult with either the National Marine Fisheries Service (NOAA Fisheries) or U.S. Fish and Wildlife Service (USFWS), or both, depending on the ESA-listed animal and plant species and habitat that are present in a project vicinity. “Take” is defined very broadly under ESA: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct.

Section 7
Federal agencies are required to conduct Section 7 consultation with NOAA Fisheries and/or USFWS on activities they fund, permit or carry out that may affect ESA-listed species. Consultation can either be informal or formal depending on the likely effect of the proposed action. In January 2008, BPA completed a second Section 7 consultation with NOAA Fisheries on 31 habitat improvement activities and was issued the Habitat Improvement Program Biological Opinion (HIP II BO). Section 7 coverage for proposed anadromous fish projects can be provided by the HIP BO if a project:

• meets the description of one or more of the 31 categories of actions;
• has effects that are consistent with the HIP II BO; AND
• can meet all of the applicable Terms and Conditions from the HIP II BO.

The HIP II BO can be found here.

Section 10
A Section 10 permit is required for activities that result in the direct “take” of ESA-listed species for scientific purposes (the activity deliberately targets the listed species and will result in “take”). This applies to many BPA-funded research activities. The project contractor must obtain a Section 10 Permit from USFWS and/or NOAA Fisheries; BPA Environmental Staff can assist with the permit application as necessary.

Section 6
Under Section 6, NOAA Fisheries and USFWS are authorized to enter into cooperative agreements with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species. Section 6 can provide ESA coverage for State entities that use BPA funds to conduct actions under an approved cooperative agreement.

NOAA Fisheries
NOAA Fisheries has jurisdiction over ESA-listed anadromous fish, marine mammal, and certain marine turtle species. Activities that have the potential to affect these species require consultation with NOAA Fisheries. The types of possible ESA coverage include:

• HIP BO: Applicable when BPA Environmental Staff determines that an activity can be approved under BPA’s Habitat Improvement Program Programmatic Biological Opinion (HIP BO).
• Section 6: Applicable when a state entity is conducting work under an approved cooperative agreement with NOAA Fisheries.
• Section 7-NE: Applicable when a BPA biologist determines that an activity will have No Effect (NE) on ESA-listed species.
• Section 7-NLAA: Applicable when a BPA biologist determines that an activity may affect, but is Not Likely to Adversely Affect (NLAA) ESA-listed species and therefore requires informal Section 7 consultation.
• Section 7-LAA: Applicable when a BPA biologist determines that an activity will Likely Adversely Affect (LAA) ESA-listed species and therefore requires formal Section 7 consultation.
• Section 10: Applicable when an activity will result in direct take of ESA-listed species for scientific purposes; a Section 10 permit is required.

USFWS
USFWS has jurisdiction over ESA-listed plant, animal, non-anadromous freshwater fish, and certain marine turtle species. Activities that have the potential to affect these species require consultation with USFWS. The types of possible ESA coverage include:

• Section 6: Applicable when a state entity is conducting work under an approved cooperative agreement with USFWS.
• Section 7-NE: Applicable when a BPA biologist determines that an activity will have No Effect (NE) on ESA-listed species.
• Section 7-NLAA: Applicable when a BPA biologist determines that an activity may affect, but is Not Likely to Adversely Affect (NLAA) ESA-listed species and therefore requires informal Section 7 consultation.
• Section 7-LAA: Applicable when a BPA biologist determines that an activity will Likely Adversely Affect (LAA) ESA-listed species and therefore requires formal Section 7 consultation.
• Section 10: Applicable when an activity will result in direct take of ESA-listed species for scientific purposes; a Section 10 permit is required.

NHPA Section 106 (Cultural Resources)
Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to consult with states and tribes on the effects of federal undertakings on historic properties and cultural resources. In accordance with Section 106, federal agencies must identify historic properties and cultural resources potentially affected by a federal undertaking, assess its effects, and seek ways to avoid, minimize or mitigate any adverse effects to these resources. This typically involves conducting background research and a site survey when ground disturbing activities are planned.

Parties Consulted With
As the responsible federal agency, BPA must identify the appropriate State Historic Preservation Officer or Tribal Historic Preservation Officer (SHPO or THPO) to consult with during the Section 106 process. The regulations define THPO as those tribal appointees who have assumed the SHPO responsibilities on their tribal lands and have been certified pursuant to the NHPA. BPA must also identify other potential consulting parties; the regulations place major emphasis on consultation with Indian tribes. BPA, not contractors (including Tribal contractors), must take the lead for Section 106 consultation, and initiation of consultation should be completed prior to a survey.

Determination

• No Effect: Applicable if no historic/cultural resources are found or no effects on historic or cultural resources are expected.
• No Adverse Effect: Applicable when effects to historic/cultural resources are expected but these effects are determined not to be adverse (see discussion below).
• Adverse Effect: Applicable when adverse effects to historic/cultural resources are expected. Adverse effects occur when an undertaking may directly or indirectly alter characteristics of a historic/cultural property that qualify it for inclusion in the National Register. Examples of adverse effects include physical destruction or damage; alteration not consistent with the Secretary of Interior’s Standards; relocation of a property; change of use or physical features of a property’s setting; and visual or audible intrusions. A finding of adverse effect requires further consultation on ways to resolve it.

Public Involvement
For many actions, BPA and/or the project sponsor must notify potentially interested and affected parties of a proposed project and consider their concerns in project planning and decision-making. Interested and affected parties may include local (city or county) planners and government officials, nearby landowners, affected tribes, local watershed groups, irrigation districts, and state and federal fish and wildlife agencies. Techniques to involve the public include mailings, public notices, public meetings or workshops, Internet postings, radio advertisements, stories or ads in the local newspaper, and one-on-one meetings with interested parties.

Provisions
BPA Environmental Staff will indicate on the Environmental Compliance Tab when certain provisions apply to a work element. Provisions will include terms and conditions, stipulations, etc. that the contractor must adhere to during the implementation of a work element. Provisions may also specify federal, state, tribal, and local permits and approvals that must be obtained prior to work proceeding. Examples include a Clean Water Act Section 404 permit and Clean Water Act Section 401 certification.

Contact For Additional Information:
Don Rose
Fish and Wildlife Environmental Team Lead
Bonneville Power Administration
P.O. Box 3621
Portland, OR 97208-3621
503-230-3796
dlrose@bpa.gov