§ 1318.100. Determining when NEPA applies.
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/us/cfr/t18/s§ 1318.100·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(a)At the earliest possible time, TVA will determine whether a proposed action requires an environmental review under NEPA and, if so, the level of environmental review.
(b)TVA will determine that NEPA does not apply to a proposed agency action when:
(1)The activities or decision do not result in final agency action under the Administrative Procedure Act, see 5 U.S.C. 704, or other relevant statute that also includes a finality requirement;
(2)The proposed activity or decision is exempted from NEPA by law;
(3)Compliance with NEPA would clearly and fundamentally conflict with the requirements of another provision of law;
(4)In circumstances where Congress by statute has prescribed decisional criteria with sufficient completeness and precision such that TVA retains no residual discretion to alter its action based on the consideration of environmental factors, then that function of TVA is nondiscretionary within the meaning of NEPA sec. 106(a)(4) and/or sec. 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and 4336e(10)(B)(vii), respectively), and NEPA does not apply to the action in question;
(5)The proposed action is an action for which another statute's requirements serve the function of agency compliance with the Act; or
(6)The proposed action is not a "major Federal action." The terms "major" and "federal action," each have independent force. NEPA applies only when both of these two criteria are met. Such a determination is inherently bound up in the facts and circumstances of each individual situation, and is thus reserved to the judgment of TVA in each instance.
(7)NEPA does not apply to "non-Federal actions." Therefore, under the terms of the statue, NEPA does not apply to actions with no or minimal Federal funding, or with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project. NEPA sec. 111(10)(B)(i), 42 U.S.C. 4336e(10)(B)(i). A but-for causal relationship is insufficient to make an agency responsible for a particular action under NEPA. By the same token, minimal Federal funding or involvement does not by itself convert that action into a Federal action within the meaning of the language of the statute.
(c)The issuance or update of TVA's NEPA procedures is not subject to NEPA review.
(d)In determining whether NEPA applies to a proposed agency action, TVA will consider only the action or project at hand.
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