If an EAW or EIS is required for a governmental action under parts 4410.0200 to 4410.6500, or if a petition for an EAW is filed under part 4410.1100 that complies with the requirements of subparts 1 and 2 of that part, a project may not be started and a final governmental decision may not be made to grant a permit, approve a project, or begin a project, until:
a petition for an EAW is dismissed;
a negative declaration on the need for an EIS is issued;
an EIS is determined adequate; or
If a project subject to review under parts 4410.0200 to 4410.6500 is proposed to be carried out or sponsored by a governmental unit, the governmental unit shall not take any action with respect to the project, including the acquisition of property, if the action will prejudice the ultimate decision on the project, until a petition has been dismissed, a negative declaration has been issued, or until the final EIS has been determined adequate by the RGU or the EQB, unless the project is an emergency under subpart 9 or a variance is granted under subparts 4 to 8. An action prejudices the ultimate decision on a project if it tends to determine subsequent development or to limit alternatives or mitigative measures.
Subpart 1 does not prohibit a governmental unit from issuing notice of and receiving public comments on a draft permit prior to completion of environmental review.
[Repealed, 13 SR 1437]
Construction may begin on a project if the proposer applies for and is granted a variance from subparts 1 and 2. A variance for certain governmental approvals to be granted prior to completion of the environmental review process may also be requested. A variance may be requested at any time after the commencement of the 30-day review period following the filing of an EAW. The proposer shall submit an application for a variance to the EQB together with:
a detailed explanation of the construction proposed to be undertaken or the governmental approvals to be granted;
the anticipated environmental effects of undertaking the proposed construction or granting the governmental approvals;
the reversibility of the anticipated environmental effects;
the reasons necessitating the variance; and
a statement describing how approval would affect subsequent approvals needed for the project and how approval would affect the purpose of environmental review.
The EQB chair shall publish a notice of the variance application in the EQB Monitor within 15 days after receipt of the application. The EQB chair shall issue a press release to at least one newspaper of general circulation in the area where the project is proposed. The notice and press release shall summarize the reasons given for the variance application and specify that comments on whether a variance should be granted must be submitted to the EQB within 20 days after the date of publication in the EQB Monitor.
At its first meeting more than ten days after the comment period expires, the EQB shall grant or deny the variance. A variance shall be granted if:
the RGU consents to a variance;
on the basis of the variance application and the comments, construction is necessary in order to avoid excessive and unusual economic hardship, or avoid a serious threat to public health or safety. Unusual economic hardship is hardship caused by unique conditions and circumstances which are peculiar to the project and are not characteristic of other similar projects or general economic conditions of the area or state. It does not include hardship caused by the proposer's own action, or inaction, if the hardship was reasonably foreseeable;
on the basis of the variance application and the comments, the construction for which the variance is sought will not have a serious adverse effect on the environment; and
on the basis of the variance application and the comments, the construction for which the variance is sought is separable from the remainder of the project and would not have the effect of eliminating from consideration any feasible and prudent alternatives or mitigation measures likely to be presented in an EIS.
The EQB shall set forth in writing its reasons for granting or denying each request for a variance.
Only the construction or governmental approvals necessary to avoid the consequences listed in subpart 6 shall be undertaken or granted.
In the rare situation when immediate action by a governmental unit or person is essential to avoid or eliminate an imminent threat to the public health or safety or a serious threat to natural resources, a proposed project may be undertaken without the environmental review which would otherwise be required by parts 4410.0200 to 4410.6500. The governmental unit or person must demonstrate to the EQB chair, either orally or in writing, that immediate action is essential and must receive authorization from the EQB chair to proceed. Authorization to proceed shall be limited to those aspects of the project necessary to control the immediate impacts of the emergency. Other aspects of the project remain subject to review under parts 4410.0200 to 4410.6500.
11 SR 714; 13 SR 1437; 21 SR 1458; 28 SR 951; 31 SR 539; 34 SR 721
November 30, 2009