§ 26.41 Requirements for EISs.
(a) Purpose and need. The EIS will include 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 EIS will include a detailed statement on a reasonable range of alternatives to the proposed action, including an analysis of any adverse environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are, in VA's expert judgment, technically and economically feasible, and meet the purpose and need of the proposal.
(d) Analysis within the EIS. (1) The EIS will include a detailed statement on:
(i) Reasonably foreseeable environmental effects of the proposed action;
(ii) Any reasonably foreseeable adverse environmental effects which cannot be avoided should the proposal be implemented;
(iii) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity;
(iv) Any irreversible and irretrievable commitments of Federal resources that would be involved in the proposed action should it be implemented; and
(v) Any means identified to mitigate adverse environmental effects of the proposed action. VA is mindful in this respect that NEPA itself does not require or authorize VA to impose any mitigation measures.
(2)(i) In preparing the EIS, VA will focus its analysis on the environmental effects of the action or project at hand that are significant.
(ii) Similarly, VA will document in the EIS 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.
(iii) 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 EIS and explain where it drew a reasonable and manageable line relating to the consideration of such effects from such separate projects.
(3) EISs will discuss effects in proportion to their significance. With respect to issues that are not of a substantive nature and do not meaningfully inform the consideration of environmental effects and the resulting decision on how to proceed, there will be no more than the briefest possible discussion to explain why those issues are not substantive and therefore not worthy of any further analysis. EISs will be analytic, concise, and no longer than necessary to comply with NEPA in light of the congressionally mandated page limits and deadlines.
(e) Format and page limits. (1) Except as provided in paragraph (e)(2) of this section, the text of an EIS will not exceed 150 pages, not including citations or appendices.
(2) An EIS for a proposed action of extraordinary complexity is strictly prohibited from exceeding 300 pages, not including any citations or appendices. VA will determine at the earliest possible stage of preparation of an EIS whether the conditions for exceeding the page limit in paragraph (e)(1) of this section are present.
(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 EIS not later than the date that is two years after the sooner of, as applicable, the date a notice of intent to prepare the EIS is published; or the date on which it is confirmed by VA's assigned NEPA project manager for an agency- or applicant-prepared EIS, or by the NEPA contractor for a contractor-prepared EIS, that the proposed action is a major Federal action requiring NEPA review and is sufficiently defined to estimate that the reasonably foreseeable effects on the quality of the human environment would be significant.
(2) VA will define the end date for an EIS as the date the EIS is published or, in the case of a NEPA process in which VA first publishes a Draft EIS for public comment, the date the Final EIS is published.
(3) The EIS will publish (unless the deadline is extended pursuant to the provision in paragraph (f)(4) of this section) on the day the deadline elapses, in as substantially complete form as is possible.
(4) If VA determines it is not able to meet the deadline prescribed by section 107(g)(1)(A) of NEPA (42 U.S.C. 4336a(g)(1)(A)), 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 EIS on schedule, by means of a notice published to the same VA website where the original notice of intent for the EIS was posted. Cause for establishing a new deadline is only established if the EIS 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 EIS. The announcement of the new deadline will specify the reason why the EIS was not able to be completed under the statutory deadline and whether the applicant, if any, consented to the new deadline.
(g) Publication of the EIS. (1) VA will publish the entire EIS on a publicly accessible agency website.
(2) VA will file EISs together with comments and any responses with the Environmental Protection Agency, Office of Federal Activities, for publication in the Federal Register.