§ 26.40 — Requirements for EAs.

§ 26.40 Requirements for EAs.

(a) Purpose and need. VA will briefly discuss the purpose and need for the proposed action based on VA's statutory authority. When the proposed action concerns VA's duty to act on an application for authorization, the purpose and need for the proposed action will also be informed by the goals of the applicant.

(b) Proposed action. The proponent will identify a proposed action. The proposed action could be a plan, program, policy, or a specific project. VA may incorporate avoidance or mitigation measures into the proposed action to minimize or negate adverse effects. At a minimum, the description of the proposed action will include:

(1) The proposed site location(s) or geographic extent of the proposed project, plan, or program;

(2) The proposed footprint or area of the proposed project, plan, or program;

(3) The expected duration of the project, plan, program, or policy; and

(4) A detailed description of the proposed action, including any related or connected actions.

(c) Alternatives. The EA will briefly discuss alternatives to the extent required by section 102(2)(H) of NEPA (42 U.S.C. 4332(2)(H)).

(d) Scope of analysis. The EA will briefly discuss the reasonably foreseeable effects of the proposed action and the alternatives considered.

(1) VA will focus its analysis on whether the environmental effects of the action or project at hand are significant.

(2) Similarly, VA will document in the EA where and how it drew a reasonable and manageable line relating to its consideration of any environmental effects from the action or project at hand that extend outside the geographic territory of the project or might materialize later in time.

(3) To the extent it assists in reasoned decision-making, VA may, but is not required to by NEPA, analyze environmental effects from other projects separate in time, or separate in place, or that fall outside of VA's regulatory authority, or that would have to be initiated by a third party. If VA determines that such analysis would assist it in reasoned decision-making, it will document this determination in the EA and explain where it drew a reasonable and manageable line relating to the consideration of such effects from such separate projects.

(e) Page limits. The text of an EA is strictly prohibited from exceeding 75 pages, not including citations or appendices.

(f) Deadlines. As the Supreme Court has repeatedly held, NEPA is governed by a “rule of reason.” Congress supplied the measure of that reason in the 2023 revision of NEPA by setting the deadlines in section 107(g) of NEPA (42 U.S.C. 4336a(g)). These deadlines indicate Congress's determination that an agency, working within Congress's allocation of resources, has presumptively spent a reasonable amount of time on analysis and the document should issue, absent very unusual circumstances. In such circumstances, an extension will be given only for such time as is necessary to complete the analysis. Thus:

(1) VA will complete the EA not later than the date that is one year after the date a notice of intent to prepare the EA is published; or, if a public notice of intent is not published, the date on which it is confirmed by VA's assigned NEPA project manager for an agency- or applicant-prepared EA, or by the NEPA contractor for a contractor-prepared EA, that the proposed action is a major Federal action requiring NEPA review and is sufficiently defined to estimate that it would not have a reasonably foreseeable significant effect on the quality of the human environment.

(2) VA will define the end date for an EA as the date that either a FONSI is signed by the decision-maker or the date the VA NEPA project manager has notified the NEPA Implementation Officer that an EIS is required for the proposed action.

(3) VA will publish the EA, at the latest, on the day the one-year deadline elapses, in as substantially complete form as is possible, unless the deadline is extended pursuant to the provision in paragraph (f)(4) of this section.

(4) If VA determines it is not able to meet the deadline prescribed by section 107(g)(1)(B) of NEPA (42 U.S.C. 4336a(g)(1)(B)), it must consult with the applicant, if any, pursuant to section 107(g)(2) of NEPA (42 U.S.C. 4336a(g)(2)). After such consultation, if needed, and for cause stated, it may establish a new deadline, approved in writing by the NEPA Specialist responsible for completing the EA on schedule. Cause for establishing a new deadline is only established if the EA is so incomplete at the time at which VA determines it is not able to meet the statutory deadline, that issuance pursuant to paragraph (f)(3) of this section would, in VA's view, result in an inadequate analysis. Such new deadline must provide only so much additional time as is necessary to complete such EA. The announcement of the new deadline will specify the reason why the EA was not able to be completed under the statutory deadline and whether the applicant, if any, consented to the new deadline.

(g) Scoping. Scoping is a process used to help determine the scope of issues for analysis during the NEPA process. VA may determine to publish a notice of intent to prepare the EA and accept public comments on the scope of the EA. In such case, VA would follow the procedures described in § 26.42.