FINAL HANDBOOK FOR PRINT - ALL Consulting NEPA - 2008 Handbook.… · What if the needs of the EA...

AN OIL AND GAS FOCUSED TRAINING PROGRAM

NAVIGATING NEPASupplemental Handbook

INTERSTATE OIL & GAS COMPACT COMMISSION

November 2008 Edition


iNAVIGATING NEPA

TABLE OF CONTENTSAcronyms and Abbreviations .......................................................................................... ivPreface ............................................................................................................................ viChapter 1. Introduction .................................................................................................... 1

WHAT IS NEPA? ......................................................................................................................................... 4Origins of NEPA ........................................................................................................................................ 4

Establishment of Council on Environmental Quality ............................................................... 4Declaration of National Environmental Policy Act .................................................................... 6NEPA Mandates ................................................................................................................................... 6

NEPA Goals: Section 101 ........................................................................................................................ 6NEPA --- The Act: Section 102 .......................................................................................................... 7Definitions ............................................................................................................................................ 8Actions .................................................................................................................................................10Alternatives ........................................................................................................................................10Impacts ................................................................................................................................................11Effects ..................................................................................................................................................11

NEPA Triggers ..........................................................................................................................................12Mineral Development Examples ..................................................................................................13

Emergency Actions ...............................................................................................................................13Federal Actions: Some Examples .......................................................................................................14Who Performs NEPA? ............................................................................................................................14NEPA Regulations ..................................................................................................................................15

Federal Regulations and Guidance ..............................................................................................15Council on Environmental Quality (CEQ) Regulations ...........................................................16Figure 1-1: State Regulations ........................................................................................................16Levels of Environmental Planning ...............................................................................................17Oil and Gas Applicability ................................................................................................................18What’s Unique to Oil and Gas? ......................................................................................................19

Summary ..................................................................................................................................................24Chapter 2. The NEPA Process .......................................................................................... 25

Figure 2-1: NEPA Process Flow Chart ................................................................................................28Iterative Process and Adaptive Management (AM) ......................................................................29

Figure 2-2: AM Flow Chart ..............................................................................................................30AM --- What It Is ................................................................................................................................30AM --- What It Is Not ........................................................................................................................30Continental Divide/Wamsutter II Natural Gas Project ............................................................30Pinedale Anticline Working Group ..............................................................................................31Powder River Basin Interagency Working Group .....................................................................31Recommended Uses of AM in Conjunction with CXs .............................................................31

Interdisciplinary (ID) Team ..................................................................................................................31Chapter 3. Roles and Responsibilities ............................................................................ 33

What is EPA’s Role in the NEPA Process ............................................................................................35What is the Public’s Role in the NEPA Process ...............................................................................36Federal Agencies ....................................................................................................................................36

Regulations by Agency ...................................................................................................................36Agency’s Responsibilities ...............................................................................................................42Roles of Federal Agencies in NEPA Compliance .......................................................................42U.S. EPA Role in NEPA Compliance ...............................................................................................43

Cooperating Agencies ..........................................................................................................................43Collaboration by Agencies ..................................................................................................................43Steps to a Successful Collaboration ..................................................................................................44Interagency Dispute Resolution ........................................................................................................44Consulting Agencies .............................................................................................................................45

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Role of the Proponent ..........................................................................................................................45Role of the Consultant ..........................................................................................................................45Role of the Lead Agency ......................................................................................................................46Role of the Oil and Gas Company .....................................................................................................47

Chapter 4. Categorical Exclusions (CX) .......................................................................... 49Introduction to Categorical Exclusions ...........................................................................................51

Administrative CXs ...........................................................................................................................51EPAct Section 390 CXs .....................................................................................................................51NEPA Forest Service CX 17 .............................................................................................................51

Categorical Exclusion Documentation ............................................................................................52Extraordinary Circumstances .............................................................................................................52

BLM Extraordinary Circumstances ...............................................................................................52Forest Service (FS) Extraordinary Circumstances ....................................................................54

NEPA CX ....................................................................................................................................................54 Significant Impact ................................................................................................................................55CX Process ................................................................................................................................................55

Figure 4-1: CX Flow Chart ...............................................................................................................56Recommended CX Documentation ..................................................................................................57Short Form EA .........................................................................................................................................57

Chapter 5. Determination of NEPA Adequacy (DNA) ..................................................... 59DNA Overview ........................................................................................................................................61Using Existing NEPA Documents .......................................................................................................62

Incorporation by Reference ...........................................................................................................62Tiering .................................................................................................................................................62Tiering of Evaluations ......................................................................................................................63Supplementing an EIS .....................................................................................................................63Adopting Another Agency’s Documents ...................................................................................64

Chapter 6. Common Components of an EA and EIS ....................................................... 65Scoping .....................................................................................................................................................67Actions ......................................................................................................................................................67

Actions—Individual .........................................................................................................................68Actions—Connected .......................................................................................................................68Actions—Similar ...............................................................................................................................68

Alternatives .............................................................................................................................................69No Action ............................................................................................................................................69Proposed Action ...............................................................................................................................70Preferred Alternative .......................................................................................................................71Common Features ............................................................................................................................71Alternatives Considered But Not Analyzed ...............................................................................71

Mitigation ................................................................................................................................................72Best Management Practices (BMP) ..............................................................................................72Stipulations ........................................................................................................................................73

Purpose and Need Statement ............................................................................................................73Consultations ..........................................................................................................................................73Administrative Record ..........................................................................................................................74

Chapter 7. Environmental Assessments (EAs) ............................................................... 75Environmental Assessments Overview ............................................................................................77Components of an EA ...........................................................................................................................77EA – Documentation .............................................................................................................................77

What if the needs of the EA change in the future? .................................................................79EA – Public Participation ......................................................................................................................79Finding of No Significant Impact (FONSI) .......................................................................................80

FONSI – Documentation .................................................................................................................80EA / FONSI Decision Record – Process ........................................................................................81

iiiNAVIGATING NEPA

Figure 7-1: EA Flow Chart – Process .............................................................................................82Chapter 8. Environmental Impact Statements (EISs) ..................................................... 83

Environmental Impact Statement Overview ..................................................................................85Components of an EIS ..........................................................................................................................85EIS – Process ............................................................................................................................................85Programmatic versus Project Specific Environmental Impact Statements (EIS) ..................86EIS – Documentation ............................................................................................................................86

EIS – Required Documents and Notices .....................................................................................87EIS / Record of Decision (ROD) .....................................................................................................87 Figure 8-1: EIS Flow Chart – Process ............................................................................................88

Screening Steps ......................................................................................................................................89Land Use Plans (LUP) .......................................................................................................................90LUP Conformance .............................................................................................................................90Land Use Plans ..................................................................................................................................90Figure 8-2: Land Use Plans .............................................................................................................91Resource Management Plan (RMP) .............................................................................................92Reasonably Foreseeable Development (RFD) ..........................................................................92Plan of Development (POD) ..........................................................................................................92What if future actions modify those contemplated in the original EIS? ...........................92

EIS – Public Participation: What is the public’s role? ....................................................................92NEPA Appeal ............................................................................................................................................93

Chapter 9. Impact Analysis ............................................................................................. 95Impact Analysis Overview ...................................................................................................................97Figure 9-1: Impact Analysis Triangle .................................................................................................97Monitoring ...............................................................................................................................................97EIS – Impact Analysis ............................................................................................................................98

EIS – Impact Analysis – Significance ...........................................................................................99Impacts ............................................................................................................................................. 100EIS – Short- and Long-term Impacts ........................................................................................ 100Irreversible ....................................................................................................................................... 101Irretrievable ..................................................................................................................................... 101EIS – Mitigation Measures ........................................................................................................... 101Cumulative Impacts ...................................................................................................................... 102Figure 9-2: Cumulative Impacts Flow Chart ........................................................................... 103

EIS – Resource Impacts ...................................................................................................................... 103Air Quality ........................................................................................................................................ 103Geological ....................................................................................................................................... 104Groundwater ................................................................................................................................... 104Noise ................................................................................................................................................. 104Paleontological .............................................................................................................................. 105Soil ..................................................................................................................................................... 105Surface Disturbance ..................................................................................................................... 105Surface Water .................................................................................................................................. 105Vegetation ....................................................................................................................................... 106Visual ................................................................................................................................................. 106Wildlife ............................................................................................................................................. 107Environmental Justice .................................................................................................................. 108Land Use .......................................................................................................................................... 108Socioeconomic ............................................................................................................................... 108

References/Suggested Reading ................................................................................... 111

iv INTERSTATE OIL & GAS COMPACT COMMISSION

ACRONYMS AND ABBREVIATIONSACEC .............................................................................................. Area Critical Environmental ConcernACHP .....................................................................................Advisory Council on Historic PreservationAEMP ................................................................................ Adaptive Environmental Management PlanAM ............................................................................................................................Adaptive ManagementAPD ........................................................................................................... Applications for Permit to DrillBLM .............................................................................................................. Bureau of Land ManagementBMP .................................................................................................................Best Management PracticesBIA ...........................................................................................................................Bureau of Indian AffairsBOR .......................................................................................................................... Bureau of ReclamationCAA .............................................................................................................................................Clean Air ActCBNG ...........................................................................................................................Coal Bed Natural GasCCSP .......................................................................... United States Climate Change Science ProgramCEQ .....................................................................................................Council for Environmental QualityCFR .................................................................................................................Code of Federal RegulationsCWA ....................................................................................................................................... Clean Water ActCX ................................................................................................................................Categorical ExclusionDEIS ........................................................................................... Draft Environmental Impact StatementDM .................................................................................................................................Department ManualDNA ..................................................................................................... Determination of NEPA AdequacyDOI ....................................................................................................................Department of the InteriorDR ..........................................................................................................................................Decision RecordE.O. ......................................................................................................................................... Executive OrderEA ..................................................................................................................... Environmental AssessmentEIS ......................................................................................................... Environmental Impact StatementEPA ...................................................................................................... Environmental Protection AgencyEPAct ................................................................................................................. National Energy Policy ActESA ........................................................................................................................ Endangered Species ActFEIS ............................................................................................. Final Environmental Impact StatementFEMA .............................................................................................Federal Emergency Management ActFERC ..........................................................................................Federal Energy Regulatory Commission FLPMA ................................................................................. Federal Land Policy and Management ActFONSI .....................................................................................................Finding of No Significant ImpactFR ...........................................................................................................................................Federal RegisterFS ...............................................................................................................................................Forest ServiceGHG ...................................................................................................................................... Greenhouse GasID ............................................................................................................................... Interdisciplinary TeamITA ..................................................................................................................................... Indian Trust AssetsLUP ............................................................................................................................................Land Use PlanMFP .......................................................................................................... Management Framework PlansMMS ...........................................................................................................Minerals Management ServiceMOU ...................................................................................................... Memorandum of UnderstandingNAAQS ..................................................................................... National Ambient Air Quality StandardsNEPA .................................................................................................. National Environmental Policy ActNG ..........................................................................................................Non-Governmental OrganizationNHPA ................................................................................................National Historical Preservation ActNHT .............................................................................................................................National Historic TrailNOA .............................................................................................................................. Notice of AvailabilityNS ............................................................................................................................. No Surface OccupancyNPDES ..................................................................... National Pollutant Discharge Elimination SystemNPS .............................................................................................................................. National Park ServiceO&G ................................................................................................................................................Oil and GasOHV ............................................................................................................................... Off Highway Vehicle

vNAVIGATING NEPA

PAWG ..................................................................................................Pinedale Anticline Working GroupPOD ............................................................................................................................. Plan of DevelopmentPRBIWG .................................................................... Powder River Basin Interagency Working GroupRFD ............................................................................................. Reasonably Foreseeable DevelopmentRFFA ..........................................................................................Reasonably Foreseeable Future ActionsRMP ................................................................................................................ Resource Management PlanROD ..................................................................................................................................Record of DecisionROW ............................................................................................................................................ Right of WaySEIS ........................................................................... Supplemental Environmental Impact StatementSEPA ..........................................................................................................State Environmental Policy ActSHP ...................................................................................................... State Historic Preservation OfficerT&E ................................................................................................................Threatened and EndangeredTCP ............................................................................................................. Traditional Cultural PropertiesUSFS ............................................................................................................... United States Forest ServiceUSFWS ........................................................................................United States Fish and Wildlife ServiceWSA .........................................................................................................................Wilderness Study AreasWSR .............................................................................................................................Wild and Scenic River

vi INTERSTATE OIL & GAS COMPACT COMMISSION

PREFACE

Since the establishment of the National Environmental Policy Act (NEPA) federal agencies

and project proponents have wrestled with how to navigate the NEPA process and complete

the mandated environmental analyses. This is difficult for oil and gas development projects

because of the typically large regional territories under consideration, the long-term nature

of exploration and development projects, and the need for more legally defensible analyses

in light of the rise in environmental lawsuits. Often federal agencies have had neither the

staff to spare nor the various experts needed to carry out the program or to write the re-

quired documents. Proponents, on the other hand, often have submitted documents that are

too vague to be useful or with obviously biased justifications of the proposed actions.

This handbook has been written for those agencies and corporations involved in oil and gas

development on federally administered minerals with limited staff or expertise, and for those

practitioners who would like to improve their understanding of the NEPA process and how it

relates to oil and gas activities.

For nearly 30 years, federal agencies, the courts, and the public have struggled to utilize NEPA

for making sound balanced decisions. As the authors of NEPA anticipated, nonrenewable

resource development conducted in rural areas coupled with population increases would

make compromise and negotiation inevitable and difficult. Section 101 of NEPA addresses

the obligation of the populace and their appointed decision-makers to instill a sense of bal-

ance between competing demands. The elementary purpose of NEPA is to create conditions

under which man and nature can exist in productive harmony.

In the following pages, we suggest ways to fulfill the NEPA process so that the provisions and

intent of NEPA as well as the requirements of the Council on Environmental Quality (CEQ)

regulations are met. Our recommended path is not the only

one to completing NEPA, and our suggestions may not even

be the best approach under certain circumstances, but they

have been successfully implemented to complete several

major oil and gas environmental impact statements (EISs)

and Environmental Assessments (EAs). Two principals where

followed during development of this handbook; NEPA’s legal

prerequisite for a systematic, interdisciplinary environmental

analysis and CEQ’s regulatory constraint to record the envi-

ronmental analysis in EAs and EISs. The analysis process is

scientifically arranged while the documents are administra-

tively structured.

The systematic, interdisciplinary environmental analysis is

an intricate, repetitive process. It is usually similar for each

analysis but is seldom identical and remains a challenging,

imprecise science. This handbook is organized to follow the NEPA process, but it also dem-

onstrates how the analysis must be prepared for recording in an EIS or EA. One observation

emphasized is that the course of analysis is a document-driven progression, that EAs or EISs

are the primary substantial product of the scientific analysis.

This handbook has been written for

those agencies and corporations

involved in oil and gas development

on federally administered minerals

with limited staff or expertise, and for

those practitioners who would like to

improve their understanding of the

NEPA process and how it relates to oil

and gas activities.


CHAPTER 1 - INTRODUCTION

2 INTERSTATE OIL & GAS COMPACT COMMISSION

3NAVIGATING NEPA

INTRODUCTION

The United States relies on oil and natural gas to supply a significant portion of the nation’s

energy needs. These needs are greater than domestic petroleum energy sources can supply;

a situation that is expected to continue with increasing disparity in the future. The federal

government owns large tracts of land and mineral estates (estimated up to 30%) much of

which is also estimated to have substantial undiscovered, undeveloped energy resources

(NEPDG, 2001). These federal lands and mineral estates represent a potential source with

which to increase domestic production of oil and natural gas, thereby satisfying a portion of

the increased domestic consumption. Therefore, a critical component of any future energy

policy needs to address issues associated with access to these federal lands and mineral es-

tates for development.

Federal lands and mineral estates are playing increasingly important roles as the nation’s

energy development and supply become critical elements of federal policy. At the same time,

it is also necessary that we understand and address the environmental and social concerns

associated with energy development activities on these properties. Information contained in

this handbook provides a general explanation for navigating the NEPA process that can be

used by oil and gas operators, federal land managers, and other stakeholders to understand

the procedures and requirements associated with preparing EISs, EAs and categorical exclu-

sions (CXs) for accessing federally owned onshore oil and natural gas resources. In particular,

this handbook outlines the specific steps and guidance relative to the requirements of NEPA

regarding oil and gas development on federal lands and mineral estates.

For many years it has been known that substantial oil and

gas resources exist under some of these federal lands, and

also state lands in the case of emerging shale gas resources;

however, development has been limited by lease restric-

tions and stipulations and outdated or nonflexible state EISs.

These requirements for development on federal and state

lands and mineral estates cause impediments to leasing, re-

sult in delays in obtaining necessary drilling permits, address

conflicts with current land uses, and recently have resulted in

delays associated with litigation seeking to slow or stop de-

velopment in certain areas. To minimize potential litigation, NEPA documents have become

unnecessarily cumbersome by including information from previous documents rather than

simply incorporating by reference. Additionally, NEPA documents related to oil and gas de-

velopment are characterized by a lack of oil and gas references, conflicting model parameter

assumptions, and inconsistent impact analyses (Argonne National Laboratory, 2004).

The goal of this training document is to present scientifi cally sound, standardized approaches to

navigating the NEPA process and conducting environmental analyses for oil and gas development

Federal lands and mineral estates

are playing increasingly important

roles as the nation’s energy

development and supply become

critical elements of federal policy.


on federal and state lands and mineral estates. The purpose of this training is to provide information

that can be utilized nationally to broaden the understanding of both seasoned NEPA practitioners

and oil and gas operators with regards to the unique challenge oil and gas development activities

present to the NEPA process.

What is NEPA?

Origins of NEPA

The National Environmental Policy Act (NEPA), the underlying national charter for environ-

mental protection, was signed into law on January 1, 1970. NEPA established the President’s

Council for Environmental Quality (CEQ) and established a national policy outlining goals for

protection, maintenance, and enhancement of the environment through the environmental

evaluation of federal actions.

The President’s Council on Environmental Quality (CEQ) issued final regulations for imple-

menting the procedural provisions of NEPA in November 1978. NEPA and the CEQ regulations

establish the guiding principles for safeguarding the environment and directing agencies on

how to make better decisions.

NEPA outlines process fundamentals aimed at:

Understanding environmental consequences (good as well as adverse) of

federal actions.

Informed decision making regarding federal actions to protect, restore, and

enhance the environment.

NEPA is the most significant piece of environmental legislation enacted in the United States.

It has affected substantially how federal agencies conduct their planning and decision mak-

ing processes because it requires all applicable agencies to:

Consider appropriate environmental factors when making decisions, not basing

decisions solely on technical and economic factors.

Involve the affected and interested public early in its environmental analysis process.

Seek ways to do jobs that are less environmentally damaging.

Document the environmental analysis process in plain language for the decision

maker and the public.

Establishment of Council on Environmental Quality

Congress established CEQ within the Executive Office of the President as part of the National

Environmental Policy Act of 1969. The law was signed in 1970, and additional responsibilities

were provided by the Environmental Quality Improvement Act that year.

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5NAVIGATING NEPA

In enacting NEPA, Congress recognized that nearly all federal activities affect the environ-

ment in some way. It mandated that before federal agencies make decisions, they must con-

sider the effects of their actions on the quality of the human environment. NEPA assigns CEQ

the task of ensuring that federal agencies meet their obligations under the Act. The chal-

lenge of harmonizing our economic, environmental, and social aspirations has put NEPA at

the forefront of our nation’s efforts to protect the environment.

The CEQ coordinates federal environmental efforts and works closely with agencies and

other White House offices in the development of environmental policies and initiatives. The

Council’s Chairperson is appointed by the President with the advice and consent of the Sen-

ate and serves as the principal environmental policy adviser to the President. In addition, CEQ

reports annually to the President on the state of the environment; oversees federal agency

implementation of the environmental impact assessment process; and acts as a referee when

agencies disagree over the adequacy of such assessments.

Part of the Executive Office of the President

Chairperson is appointed by the President.

Responsible for:

“Caretaker” of the NEPA.

Gathering information on environmental quality including changes and trends.

Evaluating the potential environmental impacts of federal programs.

Developing policy for environmental improvement.

Conducting research regarding environmental

quality.

The President annually transmits to Congress an Environ-

mental Quality Report that lays out the following:

Status and condition of the major natural, man-made

or altered environmental classes of the nation includ-

ing air, aquatic, forest, dry land, wetland, range, etc.

Current and foreseeable trends in the quality, manage-

ment, and utilization of environments.

Adequacy of available natural resources for fulfilling human and economic

requirements.

Review of the programs and activities include actions by federal, state, local

and non-government.

Program for remedying the deficiencies of existing programs and activities.

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Declaration of National Environmental Policy Act

NEPA mandates that the federal government take all practicable measures to en-

sure that man and nature may coexist.

Section 102 requires that federal government planning and decision making

take environmental issues into consideration using a systematic and interdis-

ciplinary approach.

Federal actions with potential to affect the environment must examine the likely

impact of the proposed action as well as alternatives to the proposed action.

NEPA Mandates

NEPA has five basic mandates that must be followed to comply with this law:

Supplemental mandate: adds to the existing authority and responsibility of every

federal agency to protect the environment when carrying out its agency mission.

Affirmative mandate: requires every federal agency to make decisions that re-

store and enhance the environment.

Substantive mandate: requires every federal agency to recognize that each per-

son should have a healthful environment, and as a trustee of the environment,

contribute to the fullest extent possible to the protection of the environment for

present and future generations.

Procedural mandate: requires every federal agency to use its planning and deci-

sion making process to give “appropriate consideration to environmental values

and amenities.”

Balancing mandate: requires every federal agency to make decisions to achieve

“productive harmony” between people and nature, to the fullest extent possible

“consistent with other essential policy considerations.”

NEPA Goals: Section 101

Section 101 is the spirit of NEPA and establishes policy, goals, and the means for implement-

ing said goals. NEPA contains six environmental goals that mandate federal agencies to use

all practicable means and measures to achieve productive harmony in cooperation with

state and local governments and other concerned public and private organizations so that

the nation may:

Fulfill the responsibilities of each generation as trustee of the environment for

succeeding generations.

Assure for all Americans safe, healthful, productive, and esthetically and culturally

pleasing surroundings.

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7NAVIGATING NEPA

Attain the widest range of beneficial uses of the environment without degrada-

tion, risk to health or safety, or other undesirable and unintended consequences.

Preserve important historic, cultural, and natural aspects of our national heritage,

and maintain, wherever possible, an environment that supports diversity and a

variety of individual choices.

Achieve a balance between population and resource use that will permit high

standards of living and a wide sharing of life’s amenities.

Enhance the quality of renewable resources and approach the maximum attain-

able recycling of depletable resources.

Congress recognizes that each person should have a healthful environment and that each person

has a responsibility to contribute to the preservation and enhancement of the environment.

Note: The environmentally preferable alternative is the alternative that best protects the physical

and biological aspects of the environment. This is not always the selected preferred alternative nor

is there one defi nition for “best protects” - the decision is an interpretation.

NEPA – The Act: Section 102

NEPA is legislation to facilitate environmental protection through technically sound deci-

sion making utilizing a systematic, interdisciplinary approach. NEPA identifies and develops

methods and procedures that will ensure that unquantified environmental amenities and

values are given consideration in decision making.

Section 102 is the letter of the law—the procedural “action-forcing” provisions. Section 102

has three principal requirements:

The lead federal agency is to consult with other agencies having jurisdiction over

applicable law or having specific expertise.

The public is to be involved.

All appropriate alternatives to recommended courses of action in any proposal

that involves unresolved conflicts concerning alternative uses of resources is to

be studied, developed, and described.

Developing and evaluating alternatives to eliminate or lessen “unresolved conflicts” is the

heart of the NEPA process. All reasonable alternatives are to be evaluated. The litmus test for

“reasonable” is “implementable.” Note that reasonable is based on Purpose and Need state-

ments for action.

An interdisciplinary approach is required to address all potential resources impacted and

to fully describe the appropriate alternatives. Additionally, the federal agency is required

to obtain the comments of any other federal agency that has jurisdiction by law or special

3.

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expertise. Finally, the NEPA process and documents must be available to the public and the

decision maker before the decision is made. NEPA opens federal decision making to public

involvement and scrutiny. Congress intended that full disclosure of environmental impacts

would lead to wise decisions.

Defi nitions

A few terms must be defined to provide a basis for further discussion.

Federal action: a land management planning decision including new or continuing activi-

ties, including projects or programs entirely or partly financed, assisted, conducted, regulat-

ed, or approved by federal agencies; new or revised agency rules, regulations, plans, policies

or procedures; and legislative proposals.

Federal actions tend to fall within one of the following categories:

Adoption of official policy, such as rules, regulations, and interpretations adopted

pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; treaties and in-

ternational conventions or agreements; formal documents establishing an agency’s

policies which will result in or substantially alter agency programs.

Adoption of formal plans, such as official documents prepared or approved by fed-

eral agencies which guide or prescribe alternative uses of federal resources, upon

which future agency actions will be based.

Adoption of programs, such as a group of concerted actions to implement a spe-

cific policy or plan; systematic and connected agency decisions allocating agency

resources to implement a specific statutory program or executive directive.

Approval of specific projects, such as construction or management activities located

in a defined geographic area. Projects include actions approved by permit or other

regulatory decision as well as federal and federally assisted activities.

Human environment: includes both the natural and physical environment and their rela-

tion to people inhabiting it. Economic and social effects alone do not trigger NEPA; however,

they are considered in NEPA evaluations whenever they are interrelated with an environmen-

tal effect.

Responsible offi cial: the agency line manager to whom the decision to authorize an action is del-

egated (decision-making authority may not be abdicated to another individual).

Significant: as used in NEPA, the term requires consideration of both context and intensity.

Context: This means that the significance of an action must be analyzed in several con-

texts such as society as a whole (human, national), the affected region, the affected in-

terests, and the locality. Significance varies with the setting of the proposed action. For

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9NAVIGATING NEPA

instance, in the case of a site-specific action, significance usually would depend upon

the effects in the locale rather than in the world as a whole. Both short- and long-term

effects are relevant.

Intensity: This refers to the severity of impact. Responsible officials must bear in mind

that more than one agency may make decisions about partial aspects of a major action.

The following 10 items should be considered in evaluating intensity:

Impacts that may be both beneficial and adverse. A significant effect may exist even

if the federal agency believes that on balance the effect will be beneficial.

The degree to which the proposed action affects public health or safety.

Unique characteristics of the geographic area such as proximity to historic or cul-

tural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or eco-

logically critical areas.

The degree to which the effects on the quality of the human environment are likely

to be highly controversial.

The degree to which the possible effects on the human environment are highly un-

certain or involve unique or unknown risks.

The degree to which the action may establish a precedent for future actions with signifi -

cant effects or to which it represents a decision in principle about a future consideration.

Whether the action is related to other actions with individually insignificant but cu-

mulatively significant impacts. Significance exists if it

is reasonable to anticipate a cumulatively significant

impact on the environment. Significance cannot be

avoided by terming an action temporary or by break-

ing it down into small component parts.

The degree to which the action may adversely affect

districts, sites, highways, structures, or objects listed in

or eligible for listing in the National Register of Historic

Places or may cause loss or destruction of significant

scientific, cultural, or historical resources.

The degree to which the action may adversely affect

an endangered or threatened species or its habitat that has been determined to be

critical under the Endangered Species Act of 1973.

Whether the action threatens a violation of federal, state, or local law or require-

ments imposed for the protection of the environment. [43 FR 56003, Nov. 29, 1978; 44 FR

874, Jan. 3, 1979]

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Scope: Scope consists of the range of actions, alternatives, and impacts to be considered in

an EIS. The scope of an individual statement may depend on its relationship to other state-

ments. To determine the scope of an EIS, agencies consider three types of actions, three types

of alternatives, and three types of impacts.

Actions

Connected

Cumulative

Similar

Actions (other than unconnected single actions) that may be: Connected actions, which

means that they are closely related and therefore should be discussed in the same impact

statement. Actions are connected if they:

Automatically trigger other actions that may require environmental impact state-

ments.

Cannot or will not proceed unless other actions are taken previously or simultane-

ously.

Are interdependent parts of a larger action and depend on the larger action for their

justification.

Cumulative actions, which, when viewed with other proposed actions, have cumulatively

significant impacts and should therefore be discussed in the same impact statement.

Similar actions, which, when viewed with other reasonably foreseeable or proposed agency

actions, have similarities that provide a basis for evaluating their environmental consequenc-

es together, such as common timing or geography. An agency may wish to analyze these ac-

tions in the same impact statement. It should do so when the best way to assess adequately

the combined impacts of similar actions or reasonable alternatives to such actions is to treat

them in a single impact statement.

Alternatives

No Action

Other Reasonable Course of Action

Mitigation Measures

No Action is the alternative that describes the current management practices being imple-

mented by the administering agency(ies) to manage the exploration, development, and op-

eration of oil and gas wells or other activity in the planning area.

Other Reasonable Course of Action alternatives are alternatives that meet the purpose

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11NAVIGATING NEPA

and need statement and can be reasonably implemented to manage the exploration, de-

velopment, and operation of oil and gas activities. Examples include phased development,

multiple wells from a single pad, horizontal drilling, and a variety of approaches to reduce all

potential impacts to the competing resources.

Mitigation Measures include:

Avoiding the impact altogether by not taking a certain action or parts of an action.

Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

Reducing or eliminating the impact over time by preservation and maintenance opera-

tions during the life of the action.

Compensating for the impact by replacing or providing substitute resources or environments.

Impacts

Direct

Indirect

Cumulative

Direct impacts are those that are caused by the action and occur at the same time and place.

Indirect impacts are those based on the project footprint and the extent of resources im-

pacted that may be further away from the project site itself. They are longer in duration and

include the duration of other project impacts that extend later in time.

Cumulative impact is the impact on the environment resulting from the incremental impact

of the action when added to other past, present, and reasonably foreseeable future actions

regardless of what agency (federal or non-federal) or person undertakes such other actions.

Cumulative impacts can result from individually minor but collectively significant actions

taking place over a period of time.

Cumulative impacts are not in fact a distinct type of impact but simply represent the com-

bination of all the direct and indirect impacts from the action with those of other actions

affecting the same resources.

Effects

Direct effects are caused by the action and occur at the same time and place.

Indirect effects are caused by the action and are later in time or farther removed

in distance, but are still reasonably foreseeable.

Indirect effects may include growth inducing and other effects related to induced changes

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in the pattern of land use, population density or growth rate, and related effects on air and

water and other natural systems, including ecosystems.

Effects and impacts as used in these regulations are synonymous. Effects include ecological (such

as the effects on natural resources and on the components, structures, and functioning of affect-

ed ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or

cumulative. Effects also may include those resulting from actions that may have both benefi cial

and detrimental effects, even if on balance the agency believes that the effect will be benefi cial.

Planning Area, the area that is under the jurisdiction of the lead agency where the action

will take place and that the decision will affect.

Impact Area, the area that reasonably could be impacted by the action including lands out-

side the jurisdiction of the lead federal agency, such as state lands, tribal lands, and other

federal agency administered surfaces.

Analysis Area, the area beyond the physical boundary of the planning area that could be

affected by the action over the longer term or could have foreseeable other activities that

could add to the cumulative effect.

NEPA Triggers

NEPA triggers are actions that are related to federal decisions or funding. There are three

broad triggers for NEPA review: 1) federal funding, 2) federal permit requirement (i.e., Section

404 permit to fill wetlands), and 3) use of federal property by the proposed project. There

has to be some federal connection to trigger NEPA or other federal requirements relating to

environmental planning, but if there’s no federal connection, there’s no NEPA, no matter how

bad the impacts.

Concerns or impacts that are not triggers for NEPA.

A proposed federal action:

Developed by a federal agency (BLM, USFS, BOR, etc.).

Proposed by an outside party but administered by a federal agency.

Examples:

Leasing federal minerals.

Development of federal minerals (split estates).

Development of federal minerals via a new method.

CBNG – (increased amounts of produced water).

Shale Gas – (increased fracturing liquid).

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13NAVIGATING NEPA

Other entities who submit proposals include applicants for use or development of resources

on lands administered by the BLM. Other entities include non-federal organizations and in-

dividuals, other federal, state and local agencies, and tribal entities. Examples include: ap-

plications for a permit to drill, a special recreation permit, a right-of-way grant, or a grazing

authorization; a proposal by the Animal and Plant Health Inspection Service to control grass-

hoppers on lands administered by BLM; a proposal from a state wildlife agency for the BLM

to cooperate in restoring wildlife habitat.

Mineral Development Examples:

BLM administers and manages both the surface and subsurface of the federal estate: NEPA is

triggered by a proposal to develop locatable or leasable subsurface mineral resource.

BLM administers subsurface, but surface is managed by another federal agency: NEPA is trig-

gered by a proposal to develop the subsurface resource.

BLM administers subsurface, but surface is non-federal: NEPA is triggered by an operator or

mining claimant’s proposal to explore for or develop subsurface resource. BLM is responsible

for NEPA compliance and must document effects on surface and subsurface resources (40

CFR 1508.8).

BLM administers surface, but subsurface is non-federal: NEPA is triggered by a request for the

BLM to authorize surface disturbance. To wit, the BLM is responsible for documenting NEPA

compliance for an access road right-of-way application, regardless of the use for which the

access is requested.

Emergency Actions

Federal emergency actions taken for the preservation of life or

the protection of property usually are carried out expeditiously

and typically exempt from NEPA analysis. Emergency stabiliza-

tion actions that are not immediately needed to protect public

health and safety or important resources must undergo normal

NEPA procedures (40 CFR 1506.11). Generally, follow-up actions

such as fire rehabilitation, abandoned mine land reclamation, or

flood cleanup are not considered emergency action.

Some emergency actions may be exempt from NEPA, such as:

Hazardous materials spill cleanup.

Wildfire suppression.

Stabilization following a natural disaster.

Emergency actions are meant to be limited to true emergencies necessary to protect

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the public, resources, or the environment.

Qualifying oil and gas action would be very rare:

Drainage of federal oil & gas estate?

Federal Actions: Some Examples

A land management planning decision or a use of federal funding have the potential to re-

sult in an environmental impact. For example:

When the BLM, or another agency, makes federal mineral estate or federal surface

rights available for potential oil and gas leasing, that is a federal action with po-

tential environmental impact implications and, therefore, triggers NEPA.

When federal funding is used to construct an interstate highway or federal peni-

tentiary, that is a federal action with potential environmental impact implications

and, therefore, triggers NEPA.

When a private company proposes to develop a new coal-fi red power plant adja-

cent to a coal mine on land that has already been through a programmatic review at

the state or regional level, that action may trigger NEPA on a project-specifi c level.

Who Performs NEPA?

Who conducts the NEPA analysis or prepares the EA or EIS is dependent on the action and agen-

cies involved. NEPA practitioners come from both public and private sector employment. When

a NEPA analysis is conducted in-house by the lead agency an interdisciplinary team of specialists

is organized to fi ll various roles, and expertise for the resources foreseen to be involved in the

action. This is similar to the approach most consulting fi rms take when preparing a large environ-

mental document, simply recognizing that no one individual can serve in all the resource roles

as an expert or even conduct multiple impact analyses. However, there usually is one individual

– typically the project manager – who needs to read all resource topics and make sure the other

members of the team consider one another’s impacts for their own cumulative effect discussions.

Most NEPA analysis is conducted by the following organizations or combinations there of:

Lead federal agency.

Private party proponent.

Third party – private party funds the preparation of the EIS using a consultant

whose work is directed by the agency – in this case the contractor is selected by

the agency not the proponent.

Such contracts are voluntary.

A Memorandum of Understanding establishes the roles of all parties.

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NEPA Regulations

The National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4327) was signed into law by President

Richard M. Nixon Jan. 1, 1970. It represented a fundamental shift in federal government policy from

a primary focus on economic development toward a more environmentally balanced approach.

NEPA is the briefest of all major U.S. environmental laws, approximately 5 ½ pages. It has two

parts: Title I, Congressional Declaration of Policy; and Title II, Council for Environmental Qual-

ity (CEQ). The latter requires the President to issue an annual report to Congress on the state

of the nation’s environment (42 U.S.C. Sec. 4341) and creates a President-appointed three-

member CEQ within the Executive Office of the President.

The Council on Environmental Quality regulations implementing NEPA were issued on No-

vember 29, 1978. These regulations became effective for, and binding upon, most federal

agencies on July 30, 1979, and for all remaining federal agencies on November 30, 1979.

Unlike almost any other U.S. environmental policy, since their creation neither NEPA (1970),

nor the CEQ NEPA Regulations (1978) have been substantively amended. Over the interven-

ing years, both pro-environment and anti-regulation interests have tried unsuccessfully to

make changes to these policies. To keep the process current, the CEQ periodically issues

“Guidelines” (non-enforceable recommended practices), on topics such as the Safe Drinking

Water Act (November 1976), Biodiversity (January 1993), and Environmental Justice (Decem-

ber 1997). The lack of updated centralized binding policy does not mean that the impact as-

sessment process is obsolete. From the outset, NEPA clearly placed the primary implementa-

tion of environmental responsibility on the federal agencies (42 U.S.C. Sec. 4333). All agencies

involved in NEPA have their individual agency NEPA Regulations and Procedures which are

continuously revised to reflect evolving environmental and agency laws and court cases.

Federal Regulations and Guidance

While many different federal laws, rules, and regulations govern the environmental review

of federal oil and gas development projects, NEPA is the all-encompassing, or “umbrella” law

guiding the various agencies’ environmental protection process. NEPA requires federal agen-

cies to “utilize a systematic, interdisciplinary approach which will insure the integrated use

of the natural and social sciences and the environmental design arts in planning and in deci-

sion-making” (Section 102, 42 U.S.C. 4332). Through the requirement of a “detailed statement”

[an Environmental Impact Statement (EIS)] that includes the consideration of all potential

significant environmental impacts of a proposed action, NEPA establishes an umbrella pro-

cess for coordinating compliance with myriad environmental, historic preservation, and civil

rights laws.

CEQ promulgated NEPA regulations in 1978 as 40 CFR Parts 1500-1508; minor amendments

were added in 1986. CEQ has issued several guidance documents to aid in the NEPA process:


A Citizen’s Guide to the NEPA – Having Your Voice Heard http://ceq.hss.doe.gov/

nepa/Citizens_Guide_Dec07.pdf

Collaboration in NEPA – A Handbook for NEPA Practitioners http://ceq.hss.doe.

gov/ntf/Collaboration_in_NEPA_Oct_2007.pdf

Aligning National Environmental Policy Act Processes with Environmental Man-

agement Systems - A Guide for NEPA & EMS Practitioners

Proposed Guidance - Establishing, Revising, and Using Categorical Exclusions Un-

der The NEPA http://ceq.hss.doe.gov/ntf/implementation.htm

Council on Environmental Quality (CEQ) Regulations

CEQ regulations require NEPA planning to begin at earliest opportunity to:

Ensure planning decisions consider environmental consequences.

Avoid delays. Preclude potential conflicts.

CEQ regulations require that NEPA documents be:

Clear, concise, and to the point.

Proportional to its significance.

Limited to what is necessary to understand effects of alternatives.

About significant issues and not flounder in needless detail.

State Regulations

Some states have adopted

NEPA-like environmental policy

acts – generally referred to as a

SEPA (state environmental poli-

cy act). Other states have adopt-

ed NEPA-like environmental re-

view procedures, which address

land management decisions on

state and/or private land. The

specifi cs of SEPA programs vary

by state. Many states defi ne the

threshold for requiring an EIS

differently. In some cases, when

states require a SEPA review and

the NEPA review, redundancies

are created.

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Figure 1-1: State Regulations

17NAVIGATING NEPA

The list below contains the states that have environmental planning requirements similar to

NEPA, along with the organizations and citations to the state laws.

California - CAL. PUB. RES. CODE §§ 21000 – 21177, Office of Planning and Research/

State Clearinghouse

Connecticut - CONN. GEN. STAT. ANN. §§ 22a-1 to -1i, Office of Policy and Management

District of Columbia - D.C. STAT. §§ 8-109.01 to -109.11, Department of Consumer and

Regulatory Affairs

Georgia - GA. CODE ANN. §§ 12-16-1 to -8, amended by 2004 Ga. Laws 463, Department

of Natural Resources

Guam - Exec. Order No. 96-26, Planning and Review Division

Indiana - IND. CODE §§ 13-12-4-1 to -10, Department of Environmental Management

Maryland - MD. NAT. RES. §§ 1-301 to -305, State Clearinghouse Review

Massachusetts - MASS. GEN. LAWS ANN. Ch. 30, §§ 61 - 62H, Executive Office of Envi-

ronmental Affairs

Minnesota – MINN. STAT. ANN. §§ 116D.01 to -.11, Environmental Quality Board

Montana – MONT. CODE ANN. §§ 75-1-101 to -324, Environmental Quality Council

Nevada/California - Tahoe – Article VII, Tahoe Regional Planning Compact (NEV. REV.

STAT. 277.220), Tahoe Regional Planning Agency

New Jersey - Exec. Order No. 215, Office of Permit Coordination and Environmental

Review

New York - N.Y. ENVTL. CONSERV. §§ 8-0101 to -0117, Department of Environmental

Conservation

North Carolina - N.C. GEN STAT. §§ 113A-1 to -13, State Clearinghouse

Puerto Rico - 12 P.R. LAWS ANN. §§ 1121-1127, Environmental Quality Board

South Dakota – S.D. CODIFIED LAWS §§ 34A-9-1 to -13, Division of Environmental Ser-

vices

Virginia - VA. CODE ANN. §§ 10.1-1188 to -1192, Office of Environmental Impact Re-

view

Washington - WASH. REV. CODE ANN. §§ 43.21C.010 to .914, Department of Ecology

Wisconsin - WIS. STAT. ANN. §1.11, Science Service Bureau

Levels of Environmental Planning

There are three increasing levels of evaluation/planning depending on the potential for ad-

verse environmental impacts as a result of a land management planning decision:


Categorical Exclusion (CX).

Environmental Assessment (EA).

Environmental Impact Statement (EIS).

Categorical Exclusion: At the first level, an undertaking may be categorically excluded from

a detailed environmental analysis if it meets certain criteria that a federal agency previously

has determined to have no significant environmental impact. A number of agencies have de-

veloped lists of actions that normally are categorically excluded from environmental evalua-

tion under their NEPA regulations.

Environmental Assessment: At the second level of analysis, a federal agency prepares a

written environmental assessment (EA) to determine whether or not a federal undertaking

would significantly affect the environment. If the answer is no, the agency issues a finding of

no significant impact (FONSI). The FONSI may address measures that an agency will take to

reduce (mitigate) potentially significant impacts. If the EA determines that the environmen-

tal consequences of a proposed federal undertaking may be significant, an EIS is prepared.

Environmental Impact Statement: An EIS is a more detailed evaluation of the proposed ac-

tion and alternatives. The public, other federal agencies and outside parties may provide in-

put into the preparation of an EIS and then comment on the draft EIS when it is completed.

If a federal agency anticipates that an undertaking may impact the environment significant-

ly, or if a project is environmentally controversial, a federal agency may choose to prepare an

EIS without having to first prepare an EA.

After a final EIS is prepared and at the time of its decision, a federal agency will prepare a

public record of its decision addressing how the findings of the EIS, including consideration

of alternatives, were incorporated into the agency’s decision-making process.

Oil and Gas Applicability

Oil and gas exploration and production often involve some atypical or unique NEPA circum-

stances such as:

Programmatic nature of federal lands or mineral development – programmatic refers to

following a plan, policy, or program in a step by step approach or, in the case of oil and gas

exploration and production on federal estates, outlining a plan of development which iden-

tifi es all the steps an operator will take to receive approval for the proposed project.

Management of large tracts of land using broad-based evaluation and guidance.

This refers to the fact that most oil and gas projects involve multiple development

sites, take place over several townships, and require generalized impact assump-

tions versus a single site with site-specific impacts.

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19NAVIGATING NEPA

Superimposed site-specific environmental impact evaluationon a regional struc-

ture. This means that the site-specific impacts associated with development of

one well site or one compressor or one tank battery is projected to be the same

for all well, compressor, or tank battery sites proposed in the project. For example,

if one well causes 2.5 acres of surface disturbance, 1,000 wells cause 2,500 acres

of surface disturbance. This is done despite the fact that potential infrastructure

saving may exist that could be realized by developing multiple well sites under

one project. However, without knowing the exact locations of all the faculties the

analyst is left with rolling up the impact based on individual generic examples.

What’s Unique to Oil & Gas?

Produced water impacts:

Water produced during the extraction of oil and gas have many implications such as in the

case of unconventional coal bed natural gas production in the Powder River Basin where

large quantities of water (17,000 gallons/day/well), often with elevated sodium content,

need to be disposed of but cannot be released onto the surface or into nearby streams and

rivers without treatment.

Quantity (CBNG vs. Conventional) – Some examples of direct impacts associated

with quantity include increased erosion from release into surface waters, changes

to riparian areas affecting various species, increased sediment loads in surface

waters causing a quality issue, and increased surface disturbance from construct-

ed treatment facilities or disposal wells. Examples of indirect impacts include in-

creased insect larva (West Nile virus-carrying mosquitoes) due to construction of

holding ponds, and reduced groundwater availability in specific aquifers which

share connectivity with coal seams.

Quality – Examples of quality impacts typically center around changes to surface

water quality and the use by downstream irrigators or the potential contamina-

tion of groundwater by spills or during inject. Although highly unlikely, they still

need to be addressed in the environmental analysis.

Disposal methods – Typically disposal methods are left to the operator to deter-

mine based on economics and site conditions. However, impacts from whichever

method is chosen need to be included in the discussion. This often requires the

estimating of a percentage for all methods available and the generalized use of

impact scenarios for the typical impacts.

Benefi cial use – Benefi cial use of produced water is the preferred method where possible

but typically does not require all the produced water and therefore a portion is left for

disposal. The affects of constructing pipelines to stock-watering ponds if the quality of

the water is good enough need to be included in the impacts.

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Wildlife issues:

The responses of wildlife to facilities and activities associated with oil and gas development

are complex but well documented. Tolerance of various types of environmental disturbances

varies among species and among individuals of the same species. The potential for impact is

related to the timing and nature of the disturbance, severity of winter, habitats and species

present, physiological status of the animal, hunting pressure and other disturbance factors,

and predictability of the disturbance. The scale of oil and gas development, number and

length of associated roads and other facilities, and implementation of measures to avoid or

reduce impacts also influence the probability and severity of effects on wildlife.

Direct and indirect impacts of road construction and use on wildlife and wildlife habitat have

been well documented for oil and gas projects and other natural resource developments. Im-

pacts include a wide range of biological effects, such as habitat loss, displacement because

of noise and human disturbance, and stress. The extent of the impacts would vary depending

on the level of development.

Considerations of these include:

Habitat fragmentation.

Population dynamics – cause and effect.

T&E species.

Air Quality Issues:

Fugitive dust and exhaust from construction activities, along

with air pollutants emitted during operation (e.g. well op-

erations, field and sales compressor engines), are potential

causes of air quality impacts. Federal Land Managers (FLM),

including the U.S. Department of Agriculture (USDA), U.S. For-

est Service; the U.S. Department of Interior (USDI), National

Park Service (NPS); and the U.S. Fish & Wildlife Service (FWS),

have expressed concerns regarding potential atmospheric

deposition and visibility impacts within PSD Class I and PSD

Class II areas under their administrations.

Air pollution impacts are limited by local, state, tribal and federal air quality regulations, stan-

dards and implementation plans established under the Clean Air Act (CAA) and administered

by the various state environmental departments and the EPA. Air quality regulations require

certain proposed new, or modified air pollutant emission sources to undergo a permitting re-

view before construction can begin. The applicable air quality regulatory agencies have the

primary authority and responsibility to review permit applications and to require emission

permits, fees and control devices, prior to construction and/or operation.

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21NAVIGATING NEPA

Air quality impacts related to oil and gas development typically requires the predicting of

both near-field and regional impacts utilizing sophisticated computer models.

Models may include:

Regional air quality models (CALPUFF).

Near-field air quality models.

Climate Change:

The assessment of greenhouse gas (GHG) emissions and climate is an ongoing scientific en-

deavor. Oil and gas development is likely to contribute to future emissions of GHG into the

atmosphere. However, while it’s generally accepted that human activities are changing the

composition of Earth’s atmosphere, important scientific questions remain about how much

warming will occur, how fast it will occur, and how warming will affect the rest of the climate

system including temperatures, precipitation patterns, and storms. Additionally, while oil and

gas development may contribute emissions of GHG, the amount of any contribution cannot

be compared to any regulatory standards because there are no applicable federal or state

standards at this time. It has been noted that “[to date, many of the models needed to make

effective decisions at the local and regional levels have not been developed” (DOI, 2007). Ac-

cording to the USGS (2008), “It is currently beyond the scope of existing science to identify a

specific source of CO2 emissions and designate it as the cause of specific climate impacts…”

The EPA has noted that, “Answering these questions will require advances in scientific knowl-

edge in a number of areas:

Improving understanding of natural climatic variations, changes in the sun's en-

ergy, land-use changes, the warming or cooling effects of pollutant aerosols, and

the impacts of changing humidity and cloud cover.

Determining the relative contribution to climate change of human activities and

natural causes.

Projecting future greenhouse emissions and how the climate system will respond

within a narrow range.

Improving understanding of the potential for rapid or abrupt climate change.

Addressing these and other areas of scientific uncertainty is a major priority of the U.S. Cli-

mate Change Science Program (CCSP).” (EPA, 2007; http://www.epa.gov/climatechange/sci-

ence/stateofknowledge.html#ref ).

Adaptive Management Approach:

The traditional NEPA model includes predicting the impacts of an action, identifying mitigation

measures for those impacts, and then implementing the action along with the mitigation. NEPA’s

adaptive management model adds two steps to the traditional model: monitoring environmen-

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tal conditions following implementation of the action with any mitigation, and adapting the

action’s implementation or mitigation as appropriate based on the environmental monitoring

data (the “predict, mitigate, implement, monitor, and adapt” model). Under this approach, ac-

tions are adjusted to foster desired outcomes and reduce undesired ones.

Under the NEPA adaptive management model all five steps of the process are considered

in the original NEPA review. This process focuses on knowledge regarding activities and im-

pacts within a specific area and making changes and adjustments based on that knowledge.

This includes the impacts of potential options for adjustments in the implementation of the

action and/or mitigation. By doing so, it may be possible to provide managers with the pa-

rameters to make any necessary adaptations without needing new or supplemental NEPA

analyses, unless there are substantial unforeseen changes to the action, or there are signifi-

cant new circumstances or information relevant to environmental concerns and bearing on

the proposed action or its impacts. This approach allows continuous improvement in man-

agement effectiveness and in reduction of environmental impacts within parameters and

processes established by the NEPA-informed decision, including the following:

Continuous monitoring.

Block surveys.

Changing requirements.

Multiple Use of Federal Lands:

The Bureau of Land Management is responsible for the stewardship of public lands. It is com-

mitted to manage, protect, and improve these lands in a manner to serve the needs of the

American people for all times. Management is based on the principles of multiple use and

sustained yield of our nation’s resources within a framework of environmental responsibility

and scientific technology. These resources or programs include:

Mineral Extraction – coal, oil and gas, locatable, leasable, saleable.

Recreation – OHV, hunting, fishing, guiding, camping, bird watching.

Cultural – historical artifacts, Native American concerns, NHPA, Traditional Cul-

tural Properties (TCP).

Paleontological Resources – fossil recovery.

Hydrologic Resources – irrigation, livestock watering, domestic use, industrial

use.

Indian Trust Assets – tribal resources, oil and gas, water, wildlife.

Lands and Reality – ROWs, easements, other energy development projects such

as wind.

Livestock Grazing – surface impacts, reduced grazing lands, noxious weeds.

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23NAVIGATING NEPA

Soils – increased erosion, slope cuts.

Vegetation – restoration of native plant species, riparian areas, rangelands, sage-

brush steppe.

Visual Resources – aesthetic impacts, designated class areas, camouflage.

Special Designated Areas - WSA, ACEC, WSR, NHT.

Social and Economic Concerns – employment, housing, income, rural townships.

Public Involvement:

The CEQ regulations specify three points in the NEPA process during which the public can

become involved: during scoping in response to a Federal Register publication of a Notice of

Intent (NOI) (time limits established by the agency), during the review of the Draft EIS (mini-

mum 45-day review), and during the “review” of the final EIS (minimum 30-day review).

The NOI should be published as soon as possible in the planning process for a particular

action. The regulations identify the need to include the NEPA documentation with congres-

sional recommendations. With some programs, this connection is lost, however. For example,

the Military Construction program usually will be set by Congress as budget line items be-

fore NEPA documentation is prepared for those projects.

The focus of the NEPA process is in supporting the decision to proceed with a particular pro-

posed action. The agency normally can decide to proceed with the action after completing

the NEPA process. The decision is documented with a Record of Decision (ROD) published in

the Federal Register (FR). The ROD includes decision factors other than environmental. For

instance, a BLM ROD will include oil and gas operation requirements, possible engineering

requirements, etc., in addition to environmental considerations.

It’s important to remember that doing an EIS, per se, does not guarantee environmental pres-

ervation, conservation, or reduction in impacts. How the agency interacts with the public

and regulatory agencies determines the environmental outcome of the EIS. Then, the agency

must implement the project in accord with the scope and mitigation commitments of the

supporting NEPA documentation.

Public comments can play a major role in how this all comes about (please see the CEQ NEPA

regulations on commenting). There are important guidelines on specificity of the comment

that will go a long way toward having an effect on the EIS.

Oil and gas development often carry negative connotations with the public that results in emotion-

ally driven reaction rather than factually based evaluation on the part of the public. These factors can

make effective public participation challenging, require increased scoping and public meetings and

necessitate involvement with numerous NGO involvement.

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Summary

NEPA provides the official fundamentals upon which an environmental analysis and accom-

panying documentation must be constructed. Elements of the fundamentals include:

All federal agencies have a responsibility and authority to consider environmental

consequences of their actions and to select an appropriate scope for the environ-

mental analysis.

The environmental analysis must employ a systematic, interdisciplinary approach.

The scoping process has to recognize the applicable aesthetic, biological, cultural,

economic, historic, health, physical, and social issues affected and should remove the

non-pertinent issues from the detailed study.

The environmental analysis contained in the CX/EA/EIS must be subject- and pur-

pose-driven, and investigative rather than exhaustive.

The CX/EA/EIS includes only the primary results of the environmental analysis.

The CX/EA/EIS needs to provide the decision-maker and public an obvious rationale for

the alternative chosen among all the other possible alternative courses of action.

NEPA’s authorized obligations have been met for project level decision-making only

when the decision-maker has been provided with adequate specific data to make

the irreversible commitment of resources.

The EA/EIS ought to describe plainly the following:

Need for and objectives of the proposal.

Decision to be made.

Other reasonable alternatives.

Estimated direct, indirect, and cumulative effects for all alternatives.

Short- and long-term effects.

Irreversible and irretrievable effects.

The EA/EIS is required to be available to the public and decision-maker prior to the

decision being made.

The decision is based on the technical merit, economic circumstances and environ-

mental implications. The EA/EIS provides the environmental information as neces-

sary, while other documents supply the technical and economic data.

In conclusion, NEPA documents should be easily understandable and short—only as long

as absolutely necessary to address the issues at hand. In reality, NEPA documents have been

getting larger over the past decade in proportion to the number of lawsuits filed by NGOs.

There has been a trend to over-document the analyses conducted to estimate the impacts

and to overestimate the impacts to be conservative. Both should be avoided.

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CHAPTER 2 - THE NEPA PROCESS


27NAVIGATING NEPA

THE NEPA PROCESS

The NEPA process consists of an evaluation of the environmental effects of a federal

undertaking, including its alternatives. There are three levels of analysis depending on

whether or not an undertaking could significantly affect the environment. These three

levels include: categorical exclusion determination; preparation of an environmental as-

sessment/finding of no significant impact (EA/FONSI); and preparation of an environ-

mental impact statement (EIS).

At the first level, an undertaking may be categorically excluded from a detailed en-

vironmental analysis if it meets certain criteria that a federal agency previously has

determined as having no significant environmental impact. A number of agencies have

developed lists of actions that normally are categorically excluded from environmental

evaluation under their NEPA regulations.

At the second level of analysis, a federal agency prepares a written environmental as-

sessment (EA) to determine whether or not a federal undertaking would significantly

affect the environment. If the answer is no, the agency issues a finding of no significant

impact (FONSI). The FONSI may address measures that an agency will take to reduce

(mitigate) potentially significant impacts.

If the EA determines that the environmental consequences of a proposed federal un-

dertaking may be significant, an EIS is prepared. An EIS is a

more detailed evaluation of the proposed action and alter-

natives. The public, other federal agencies and outside par-

ties may provide input into the preparation of an EIS and

then comment on the draft EIS when it is completed. If a

federal agency anticipates that an undertaking may impact

the environment significantly, or if a project is environmen-

tally controversial, a federal agency may choose to prepare

an EIS without having to first prepare an EA.

After a final EIS is prepared and at the time of its decision,

a federal agency will prepare a public record of its decision

addressing how the findings of the EIS, including consideration of alternatives, were

incorporated into the agency’s decision-making process.


Uncertain YesNo

No

No

Yes

Yes

Yes

Yes

Yes

No

No

Agency identifies a need for action and develops proposal

Are environmental effects likely to be significant?

Proposed action is listed as a §390

CX?1

Does a supporting NEPA document (EA, EIS, or RMP)?

No

Proposed action is described in

agency categori-cal exclusion; i.e. Admin CX or FS

Does the proposal have extraordinary

circumstances?

Significant environmental

effects uncertain or no agency CX

Develop Environmental

Assessment (EA) with public

involvement to the extent practicable


effects?

No

Finding of no significant impact

(FONSI)


effects may occur

Notice of intent to prepare

Environmental Impact Statement

(EIS)

Public scoping and appropriate public

involvement

Draft EIS2

Public review and comment and

appropriate public involvement

Final EIS2

Public Availability of FEIS

Record of Decision2

Decision

Implementation with monitoring as provided in the decision

1 Adapted from the Citizens Guide to the NEPA Process to include how Statutory 390 CXs fit into the NEPA process.2 Significant new circumstances or information relevant to environmental concerns or substantial changes in the proposed action that are relevant to environmental concerns many necessitate preparation of a supplemental EIS following either the draft or final EIS or the Record of Decision (CEQ NEPA Regulations, 40 C.F. R. § 1502.9(c)).

Figure 2-1: The NEPA Process1

29NAVIGATING NEPA

NEPA Process Flow Chart

This flow chart provides a summary of the NEPA process and the elements discussed herein;

the reader is referred to this figure as a graphic representation of the following text and

throughout this document.

If an EA finds that no significant environmental impact will result from the contemplated

federal action, a finding of no significant impact (FONSI) is issued by the oversight agency.

The FONSI is an agency document presenting justification for reaching the conclusion that a

proposed action will not have a significant adverse impact on the environment.

When a FONSI is issued, NEPA evaluation terminates at this step; an EIS is not required. If,

on the other hand, the EA determines that a significant environmental impact will (or may)

result from the federal action, an EIS is required. Both EAs and EISs can be cumbersome to

prepare, even in cases where the potential for adverse environmental impact is absent or

minor and similar activities have been approved in the recent past.

Iterative Process and Adaptive Management

Adaptive Management (AM) is a term to describe a flexible conceptual process based on ad-

justing management decisions as a result of information gained following the outcomes of

the initial planning directions taken. As a management plan plays out and the consequenc-

es of that plan become more fully understood, it may become evident that a modification

– “tweak” – of the original plan would provide an improvement in the overall outcome. The

DOI has formulated the following standard definition of AM:

“Adaptive Management is a decision process that promotes fl exible decision making that can be

adjusted in the face of uncertainties as outcomes from management actions and other events

become understood” (Williams et al, 2007). Monitoring of progress and results from initial manage-

ment decisions are essential to advancing the scientifi c understanding of the issue in question and

in this manner facilitates future decision-making.

An Example: Powder River Basin Interagency Working Group

Pursuant to the vision expressed in the April 2003 BLM Record of Decision for the Powder

River Basin EIS; the Powder River Basin Interagency Working Group (PRBIWG) was established

as a “forum for government agencies to address issues of common concern to all parties

involved with the many aspects of CBNG permitting” (PRBIWG, 2004). Initial resource man-

agement decisions were derived and implemented pursuant to the Powder River Basin Final

EIS (2003). Monitoring is now being provided for air and water quality, aquatics, and wildlife.

To date, the initial management decisions are being carefully monitored but have not yet

required modification.


AM Flow Chart

This fi gure provides a schematic of the AM process that consists of several basic phases (assess-

ment of the issue, design of a management approach, implementation of that approach, moni-

toring of outcomes from taking that approach, evaluation of the monitoring data, and modi-

fi cation of the management approach if determined to be prudent) and an iterative phase of

employing these elements in a cyclical manner to optimize the management approach.

AM – What It Is

Adaptive Management is a multi-step iterative process:

Assess the issue.

Develop a management plan based on existing knowledge of the issue.

Implement the management plan.

Monitor the outcomes of the management plan.

Evaluate those outcomes.

Based on the knowledge gained, modify the original management plan to improve

the overall outcome, if necessary.

AM – What It Is Not

Adaptive Management is not trial and error nor is it adopting (approving) a plan and then

changing it before it is ever implemented. For example: An agency’s improper use of AM to

defer decisions.

The following are examples of how BLM field offices have im-

plemented the adaptive approach to resource management.

Continental Divide/Wamsutter II Natural Gas

Project - U.S. EPA (1999) expressed concerns about

the “Continental Divide/Wamsutter II Natural Gas

Project, Implementation of Natural Gas Exploration

and Development, Sweetwater and Carbon Counties,

WY” EIS. To address these concerns, EPA recommend-

ed that BLM establish and implement an Adaptive

Environmental Management Plan (AEMP) to “verify,

monitor, and modify” the proposed management

approaches (EPA, 1999). Initial resource manage-

ment decisions were derived and implemented pur-

suant to the Continental Divide/Wamsutter II Natu-

ral Gas Project Final EIS (2000) as well as the EPA’s

•

•

•

•

•

•

•Assess Problem

Design

Implement

Monitor

Evaluate

Adjust

Figure 2-2: AM Flow Chart

31NAVIGATING NEPA

recommendations. Monitoring is now being provided for air and surface water qual-

ity, desert habitat, hazardous materials, reclamation, transportation, and wildlife. To

date, the initial management decisions have not required modification.

Pinedale Anticline Working Group - AM was utilized in the Pinedale Anticline to

address scientific uncertainty. Monitoring was viewed as necessary to establish a

baseline of data and fill in any data gaps that might be present, as well as to help

determine which management stipulations to employ and how future mitigation

plans should be modified (Meecham, 2004). These issues were addressed when the

Pinedale Anticline Working Group (PAWG) was created. Initial resource management

decisions were addressed in the Pinedale Anticline Final EIS (2000). Monitoring is

now being provided for the following resources: air and water quality, cultural/his-

torical, reclamation, socioeconomic, transportation, visual, and wildlife. To date, the

initial management decisions have not required modification.

Powder River Basin Interagency Working Group - Pursuant to the vision expressed

in the April 2003 BLM Record of Decision for the Powder River Basin EIS; the Powder

River Basin Interagency Working Group was established as a “forum for government

agencies to address issues of common concern to all parties involved with the many

aspects of CBNG permitting” (PRBIWG, 2004). Initial resource management decisions

were derived and implemented pursuant to the Powder River Basin Final EIS (2003).

Monitoring is now being provided for air and water quality, aquatics, and wildlife.

The initial management decisions are being monitored carefully but have not yet

required modification.

Recommended Uses of AM in Conjunction with CXs

The AM process is well suited for managing, evaluating, and revising the development of CXs.

Federal agencies can make use of the AM process to evaluate existing CXs and make new

ones to improve regulatory efficiencies and environmental protection.

Interdisciplinary (ID) Team

CEQ Regulations state that EISs shall be prepared using an interdisciplinary approach that

will insure the integrated use of the natural and social sciences and the environmental de-

sign arts (section 102(2)(A) of the Act). The disciplines of the preparers shall be appropriate

to the scope and issues identified in the scoping process (Sec. 1501.7).

The roles of the interdisciplinary team include:

Organizing agency staff who are experts in specific resource areas.

Identifying and writing site-specific issues.

Developing public involvement strategy.

Conducting analysis and reviews using standards and guidelines provided by the agency.

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CHAPTER 3 - ROLES AND RESPONSIBILITIES


35NAVIGATING NEPA

ROLES AND RESPONSIBILITIES

The role of a federal agency in the NEPA process depends on the agency’s expertise and rela-

tionship to the proposed undertaking. The agency carrying out the federal action is respon-

sible for complying with the requirements of NEPA. In some cases, there may be more than

one federal agency involved in an undertaking. In this situation, a lead agency is designated

to supervise preparation of the environmental analysis. Federal agencies, together with state,

tribal, or local agencies, may act as joint lead agencies.

A federal, state, tribal, or local agency having special expertise with respect to an environ-

mental issue or jurisdiction by law may be a cooperating agency in the NEPA process. A coop-

erating agency has the responsibility to assist the lead agency by participating in the NEPA

process at the earliest possible time; by participating in the scoping process; in developing

information and preparing environmental analyses including portions of the environmental

impact statement concerning which the cooperating agency has special expertise; and in

making available staff support at the lead agency’s request to enhance the lead agency’s

interdisciplinary capabilities.

Under Section 1504 of CEQ’s NEPA regulations, federal agencies may refer to CEQ interagen-

cy disagreements concerning proposed federal actions that might cause unsatisfactory en-

vironmental effects. CEQ’s role, when it accepts a referral, is generally to develop findings

and recommendations consistent with the policy goals of Section 101 of NEPA. The referral

process consists of certain steps and is carried out within a specified time frame.

What is EPA’s role in the NEPA process?

The Environmental Protection Agency, like other federal agen-

cies, prepares and reviews NEPA documents. However, EPA has

a unique responsibility in the NEPA review process. Under Sec-

tion 309 of the Clean Air Act, EPA is required to review and pub-

licly comment on the environmental impacts of major federal

actions including actions which are the subject of EISs. If EPA

determines that the action is environmentally unsatisfactory, it

is required by Section 309 to refer the matter to CEQ.

Also, in accordance with a Memorandum of Agreement be-

tween EPA and CEQ, EPA carries out the operational duties associated with the administrative

aspects of the EIS filing process. The Office of Federal Activities in EPA has been designated

the official recipient in EPA of all EISs prepared by federal agencies.


What is the public’s role in the NEPA process?

The public has an important role in the NEPA process, particularly during scoping, in providing in-

put on what issues should be addressed in an EIS and in commenting on the fi ndings in an agency’s

NEPA documents. The public can participate in the NEPA process by attending NEPA-related hear-

ings or public meetings and by submitting comments directly to the lead agency. The lead agency

must take into consideration all comments received from the public and other parties on NEPA

documents during the comment period.

Federal Agencies

An applicant can only prepare an EA. The agency is fully responsible for its scope, content,

and decisions. Regardless of who provides the information, conducts the analysis, or writes

the document, the agency itself is fully responsible for the quality and accuracy of the infor-

mation and the environmental analysis, public involvement, and notification and the docu-

ment itself.

Agencies with NEPA responsibilities most applicable to oil and gas activities include:

U.S. Department of Agriculture, Forest Service (FS)

U.S. Department of the Interior

Bureau of Indian Affairs (BIA)

Bureau of Land Management (BLM)

Bureau of Reclamation (BOR)

Minerals Management Service (MMS)

National Park Service (NPS)

U.S. Fish and Wildlife Service (USFWS)

Regulations by Agency

Individual agencies of the federal government subsequently have promulgated regulations

or adopted guidance applicable to their specific mission – most notably BLM, BOR, FS, and

NPS.

A few federal agencies have an established NEPA decision-making process, but most have

not. NEPA requires that an agency use a systematic, interdisciplinary process, which must

include decision-making.

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37NAVIGATING NEPA

Agency NEPA ProceduresAgency/Bureau Branch/Division RegulationDepartment of Agriculture

Agricultural Research Service --- 7 CFR Subtitle B, Part 520 /

51 FR 34191

Animal and Plant Health

Inspection Service

Environmental Services 7 CFR 372 / 60 FR 6002

Cooperative State Research,

Education and Extension

Services

Natural Resources and Envi-

ronmental Unit

7 CFR 3407 / 56 FR 49245

Department of Agriculture --- 7 CFR Subtitle A, Part 1b /

48 FR 11403

Economic Research Service Resource Economic Division 7 CFR 1b.4

Farms Service Agency Conservation and Env. Pro-

grams Division, Env. Activities

Branch

7 CFR 799 / 45 FR 32313

Food Safety and Inspection

Service

Policy Evaluation and Plan-

ning

7 CFR 372

Natural Resources Conserva-

tion Service

--- 7 CFR 650 / 44 FR 50579

Rural Business-Cooperative

Service

--- 7 CFR Part 1940 / 53 FR

36240

Rural Housing Service Program Support Staff/Tech-

nical Support Branch

7 CFR Part 1940

Rural Utilities Service Engineering and Environ-

mental Staff

7 CFR 1794 / 63 FR 68648

U. S. Forest Service Ecosystem Management

Coordination

36 CFR 220 / 73 FR 43084

Department of Commerce

Economic Development Ad-

ministration

Compliance Review Division 48 FR 14734

National Oceanic and Atmo-

spheric Administration

Policy Planning and Imple-

mentation Office

48 FR 14734

Department of Defense

Defense Logistics Agency Environmental Safety Policy

Office

Department of Air Force Environmental Planning,

Education and Training

32 CFR 989 / 64 FR 38127

Department of Army U.S. Army Corps of Engineers 33 CFR 230


Department of Army Deputy Assistant Secretary

of the Army for Environment,

Safety and Occupational

Health

32 CFR 651 / 65 FR 54348

Department of Defense Environmental Security-EQ 32 CFR 188

Department of Navy U.S. Marine Corps

Department of Navy Office of the Chief of Naval

Operations

32 CFR 775 / 64 FR 37069

Department of Navy Office of the Assistant Secre-

tary of the Navy for Environ-

ment and Safety

32 CFR 775 / 64 FR 37069

Department of Energy

Office of Environment, Safety

and Health

Office of NEPA Policy and

Compliance

10 CFR 1021 / 61 FR 64603

Department of Health and Human Services

Department of Health and

Human Services

---

Food and Drug Administra-

tion

Office of Science 21 CFR 25 / 65 FR 30352

Indian Health Service Sanitation Facilities Con-

struction Program, Engineer-

ing/Environmental Branch

58 FR 569

National Institute of Health --- 65 FR 2977

Office of Facility Services --- 45 CFR 76519 / 65 FR

10230

The Centers for Disease

Control

--- 65 FR 10230

Department of Homeland Security

Department of Homeland

Security

---

Federal Emergency Manage-

ment Agency

--- 44 CFR Part CFR

U.S. Coast Guard ---

Department of Housing and Urban Development

Office of Community Viability --- 24 CFR 50 / 53 FR 11224

Department of Interior

Office of Environmental

Policy and Compliance

69 FR 10865

Bureau of Indian Affairs --- 53 FR 10439

Bureau of Land Management Planning, Assessment, and

Community Support

39NAVIGATING NEPA

Bureau of Reclamation ---

Minerals Management Ser-

vice

Environmental Assessment

Branch

National Park Service Environmental Quality Divi-

sion

Office of Surface Mining ---

U.S. Fish and Wildlife Service ---

U.S. Geological Survey Envi-

ronmental Affairs Program

Department of Justice

Drug Enforcement Agency Civil Litigation Section (CCL) 28 CFR 61, Appendix B

Environment and Natural

Resources Division

General Litigation Section 28 CFR 61

Federal Bureau of Prisons Site Selection and Environ-

mental Review Branch

28 CFR 61, Appendix A / 63

FR 11120

Immigration and Naturaliza-

tion Service

Headquarters, Facilities Office 28 CFR 61, Appendix C

Office of Justice Assistance,

Research, and Statistics

--- 28 CFR 61, Appendix D

Office of Justice Programs Office of General Counsel 28 CFR 61

Department of Labor

Mine Safety and Health Ad-

ministration

Office of Standards, Regula-

tions, and Variances

29 CFR 11

Occupational Safety and

Health Administration

Directorate of Safety Stan-

dards Programs

Department of State

Bureau of Oceans and Inter-

national Environmental and

Scientific Affairs

Office of Environmental

Policy

22 CFR 161 / 44 FR 65560

Department of Transportation

Federal Aviation Administra-

tion

Office of Environment and

Energy

64 FR 55526

Federal Aviation Administra-

tion

Office of Environment and

Energy (AEE-300)

45 FR 2244

Federal Highway Administra-

tion

Office of NEPA Facilitation 23 CFR 771 / 65 FR 33960

Federal Railroad Administra-

tion

Office of Policy and Program

Development

64 FR 28545

Federal Transit Administra-

tion

Office of Planning (TPL-22) 49 CFR 622


John A. Volpe National Trans-

portation Systems Center

Environmental Preservation

and Systems Modernization

Office

Maritime Administration Office of Environmental

Activities

National Highway Traffic

Safety Administration

General Law 49 CFR 520

Office of Assistant Secretary

for Transportation Policy

--- 44 FR 56420

Saint Lawrence Seaway De-

velopment Corporation

---

Surface Transportation Board Environmental Analysis Sec-

tion

49 CFR 1105

U.S. Coast Guard (Headquar-

ters)

Environmental Management

Division

(G-SEC-3)

50 FR 32944

Department of Treasury

Office of Asset Management Environment and Planning 45 FR 1828

Department of Veterans Affairs

Office of Facilities Quality

Service

--- 38 CFR 26

Independent Agencies

Advisory Council on Historic

Preservation

Office of Planning and Re-

view

36 CFR 805 / 64 FR 27044

Appalachian Regional Com-

mission

Program Operations Division

Board of Governors of the

Federal Reserve System

---

Committee for Purchase From

People Who Are Blind or

Severely Disabled

---

Delaware River Basin Com-

mission

--- 18 CFR 401

Export-Import Bank of the

United States

--- 12 CFR 408

Farm Credit Administration Office of General Counsel

Federal Communications

Commission

Wireless Telecommunications

Bureau

47 CFR


Commission

Mass Media Bureau 47 CFR

41NAVIGATING NEPA


Commission

Office of Engineering and

Technology

47 CFR


Commission

Common Carrier Bureau 47 CFR


Commission

--- 47 CFR 1

Federal Deposit Insurance

Corporation

Health, Safety & Environmen-

tal Programs Unit/Adminis-

tration Division/Corporate

Services Branch

Federal Energy Regulatory

Commission

Office of Pipeline Regulation/

Environmental and Engineer-

ing Review and Compliance

Branch II

18 CFR 2.80, 380 / 64 FR

26572

Federal Energy Regulatory

Commission

Office of Energy Projects 18 CFR 380 / 64 FR 26572

Federal Maritime Commission --- 46 CFR 504

Federal Trade Commission Litigation 16 CFR 1

General Services Administra-

tion

Public Buildings Service 65 FR 69558

International Boundary and

Water Commission, U.S. &

Mexico

Engineering Department,

United States Section

48 FR 44083

Marine Mammal Commission --- 50 CFR 530

Millennium Challenge Corpo-

ration

---

National Aeronautics and

Space Administration

Environmental Management

Division

14 CFR 1216 / 53 FR 9759

National Capital Planning

Commission

Office of Plans Review 47 FR 51481

National Credit Union Admin-

istration

Division of Operations/Office

of General Counsel

National Indian Gaming Com-

mission

---

National Science Foundation Office of General Counsel 45 CFR 640; 641

Overseas Private Investment

Corporation

Investment Development

Department

44 FR 51385

Presidio Trust Legal/Compliance 36 CFR 1010 / 65 FR 55896

Securities and Exchange

Commission

Office of Public Utility Regu-

lation


Small Business Administra-

tion

Office of Financial Assistance

Tennessee Valley Authority Environmental Policy and

Planning

48 FR 19264

U.S. Access Board ---

U.S. Agency for International

Development

Bureau for Policy and Pro-

gram Coordination

22 CFR 216

U.S. Consumer Product Safety

Commission

Directorate for Health Sci-

ences

U.S. Environmental Protection

Agency

Office of Federal Activities 40 CFR 6

U.S. Nuclear Regulatory Com-

mission

Office of State and Tribal

Programs

10 CFR 51 / 64 FR 48496

U.S. Postal Service Headquar-

ters

--- 39 CFR 775 / 65 FR 41011

Valles Caldera Trust --- 68 FR 42460

Water Resources Council --- 18 CFR 707

Agency’s Responsibilities

The lead agency enacting a program change, or authorizing a federal action must ensure

compliance with NEPA through the preparation of a regional planning document such as

an EA or EIS. The planning document needs to have consistency with existing laws, such as,

National Forest Management Act, Endangered Species Act, Clean Water Act, Migratory Bird

Treaty Act, and other state-specific acts.

Roles of Federal Agencies in NEPA Compliance

The agency managing the proposed action has the responsibility for NEPA compliance. In

some cases, multiple agencies may be involved; however, one agency is given “lead” status

and so is responsible for the coordination of the documents prepared.

Potential agencies involved in oil and gas federal actions may include:

BLM

BOR

FS

State agencies

Tribal agencies

Local agencies

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43NAVIGATING NEPA

U.S. EPA Role in NEPA Compliance

Section 390 of the Clean Air Act requires U.S. EPA to review and comment on the environ-

mental impacts to the nation’s air resulting from federal actions. Any oil and gas project that

creates air emissions (e.g.: compressors, flares, etc.) and is covered by an EIS must be reviewed

by the EPA. If U.S. EPA finds that impacts resulting from the federal action are unacceptable,

they must refer the project to the CEQ. Also, through an MOU between the EPA and CEQ,

U.S. EPA’s Office of Federal Activities is responsible for the administrative filing of EISs in the

Federal Register.

Cooperating Agencies

The lead federal agency in developing EA or EIS and must invite eligible governmental entities (fed-

eral, state, local, and tribal) to participate as cooperating agencies. Lead agencies also must consider

any requests by eligible governmental entities to participate. A MOU on roles and responsibilities is

developed and each agency signs off on it to clarify roles.

Cooperating agencies may assist with:

Scoping.

Environmental analyses – particularly where the cooperating agency has specific

expertise or jurisdiction.

Providing staff and resources to aid in the interdisciplinary preparation of the

EA/EIS.

Collaboration by Agencies

Collaboration means to work together in an intellectual partnership directed at achieving

a common goal. Cooperating agencies, as stakeholders in a planning process, will help to

ensure that the most appropriate environmental decisions are achieved.

The purpose of cooperating agencies is to emphasize collaboration early in the NEPA pro-

cess. Upon request of the lead agency, any other federal agency that has jurisdiction by law

shall be a cooperating agency. In addition, any other federal agency that has special exper-

tise with respect to any environmental issue that should be addressed in the statement may

be a cooperating agency upon request of the lead agency. An agency may request the lead

agency to designate it a cooperating agency. Each cooperating agency shall participate in

the NEPA process at the earliest possible time.

Although simple in concept, successful collaboration can be an elusive goal – in part because

different entities may have signifi cantly differing priorities concerning the most benefi cial uses

of natural resources that are in increasingly short supply. These natural resources include natu-

ral and cultural landscapes, wildlife and their respective habitats, forestry resources, oil and gas

•

•

•


reserves, etc. A balanced approach to their preservation and wise management is not only the

key to optimal exploitation but it is also key to their ultimate conservation for future generations.

While a balanced approach is central to this goal, the confl icting priorities of stakeholders may

present challenges to the NEPA process.

Steps to a Successful Collaboration

The following can help to facilitate a successful collaboration:

Come to the project prepared to work together as a team.

Provide clear expectations of each stakeholder’s role and contribution – under-

stand their mission as well as your own.

Identify any potential tensions between differing agencies’ regulations and policies.

Provide a mechanism to work through those differences – interdisciplinary train-

ing, resolution methodologies.

Establish collaborative agreements as necessary.

Establish trust between stakeholders.

Open communications between stakeholders.

Commit the resources necessary to complete the project.

Use trained facilitators.

Interagency Dispute Resolution

The referral process permits federal agencies to bring to CEQ interagency disagreements

concerning proposed major federal actions that might cause unsatisfactory environmental

effects. Under CEQ regulations, 40 CFR Part 1504, any federal department or agency may refer

a proposed major federal action to CEQ no less than 25 days after the final EIS has been made

available to the public, commenting agencies, and the EPA. The administrator of the EPA has

broader authority, under section 309 of the Clean Air Act, to refer to CEQ any proposed leg-

islation, action, or regulation that he or she deems unsatisfactory from the standpoint of

public health or welfare or environmental quality.

A federal agency that intends to refer a proposal to CEQ must first notify the lead agency of

its intentions at the earliest possible time. If the issues are not resolved between the agen-

cies after publication of the final EIS, and the agency wishes to refer the proposal to CEQ,

the referring agency must send a letter and a statement to CEQ and the lead agency and

request that no action be taken to implement the proposal until CEQ acts upon the refer-

ral. The statement accompanying the referral letter must: (1) identify the material facts in

the controversy; (2) identify environmental policies or requirements that would be violated

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45NAVIGATING NEPA

by the proposal; (3) present the reasons why the referring agency believes the proposal is

environmentally unsatisfactory; (4) contain a finding that the issue raised is of national im-

portance; (5) review the steps taken by the referring agency to resolve the matter with the

lead agency prior to referral; and (6) offer the referring agency’s recommendations in regard

to the proposed action

Consulting Agencies

Agencies are required by law or regulation to consult with the following federal and state

agencies and entities because of jurisdictional responsibilities:

U.S. Fish and Wildlife Service (FWS).

State fish and wildlife agencies.

State Historic Preservation Officer (SHPO).

Native American Religious and Heritage Issue Consultation

Role of the Proponent

A proponent or applicant is “one that proposes a federal action subject to NEPA.” A propo-

nent can be a private entity or agency that requires federal permits, decisions, or authoriza-

tions that amount to “major federal action”. The proponent’s role is to take part in planning

with the agency, draft its proposal, including a purpose and need statement, for submission,

and suggest time limits for analysis.

Role of the Consultant

After the lead and cooperating agencies have been identified, one needs to determine if the

environmental analysis and documentation are to be done in-house or if all or parts of these

tasks are to be contracted to outside agencies or to private businesses. If the agency is con-

tracting the preparation of an EA, it should ensure that the selected company has no future

interest in the outcome of its work other than increasing its professional image—in other

words, no conflict of interests. That will ensure the credibility of the document and therefore

the decision based on the document.

Guidelines for using a consultant include:

Agency must select the consulting firm.

Applicant pays for the cost of preparing the EIS.

Agency guides the consultant’s work.

Agency is ultimately responsible for contents of EIS.

CEQ describes this arrangement as a “third party contract.”

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If an agency permits an applicant to prepare an EA:

Applicant may contract directly with a consultant.

Agency must “make its own evaluation of the environmental issues.”

Agency is responsible for scope and content.

The consultant ultimately is tasked with conducting the various analyses as directed by the

lead agency and preparing the internal drafts of the documents for lead and cooperating

agency reviews.

Role of the Lead Agency

As part of the scoping process, the lead agency shall identify other environmental review

and consultation requirements so the lead and cooperating agencies may prepare other re-

quired analyses and studies concurrently with, and integrated with, the EIS as provided in

§1502.25. For example, if the proposal involves wetlands, one must consult with the Corps

of Engineers and get a 404 permit. If the proposal might affect threatened or endangered

species, one must consult with the U.S. Fish and Wildlife Service and probably with the state

agency that is responsible for these species. If the proposal involves hazardous waste, one

probably would need to contact the EPA. Requirements, suggestions, and comments from

these agencies inevitably influence the scope of the environmental analysis.

A summary of the roles:

The lead agency directs and supervises the preparation of the environmental

analysis. Ultimately it is responsible for the ROD and maintains the administrative

record.

Federal agencies, together with state, tribal, or local agencies, may act as joint lead

agencies.

Joint lead agencies must reach a consensus on the preferred alternative.

If there is disagreement among the agencies, the following factors shall determine lead

agency designation:

Magnitude of agency’s involvement.

Project approval/disapproval authority.

Expertise concerning the action’s environmental effects.

Duration of agency’s involvement.

Sequence of agency’s involvement.

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47NAVIGATING NEPA

Role of the Oil and Gas Company

The oil and gas company may be the proponent or simply be a stakeholder in the project.

Regardless of the role, if the company is to develop oil or gas under the proposed action the

company must ensure compliance with NEPA through the preparation of development-spe-

cific planning documents. These planning documents must be in conformance with the pre-

existing EAs or EISs. Examples of oil and gas activities that fall under the realm of NEPA plan-

ning include exploration and development activities such as surface disturbances (drilling,

pipelines, utilities, roads, seismic lines, etc.) and air emissions (flares, generators, compressors,

tanks, gas plants, etc.). Additionally, these planning documents may take the form of:

Plans of Development (POD).

Applications for Permit to Drill (APD).

Categorical Exclusions (CX) where an activity qualifies for exclusions to NEPA as-

sessment document preparation; these are limited to a few specific activities that

conform to development issues already addressed in EA or EIS documents within

the last 5 years.

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CHAPTER 4 - CATEGORICAL EXCLUSIONS


51NAVIGATING NEPA

CATEGORICAL EXCLUSIONS (CX)

Introduction to Categorical Exclusions

“Categorical Exclusions” (CXs) are actions that federal agencies determine do not have an

environmental impact. They can occur “individually” or “cumulatively”. CXs are not subject to

appeal – the decision on the action taken may be subject to protest and appeal.

CXs available for use with routine oil and gas exploration and production activities fall into three

general categories: NEPA administrative CXs, EPAct Section 390 CXs, and NEPA Forest Service CXs.

Administrative CXs

Prior to the EPAct, administrative CXs were available to address a limited range of administrative

functions (such as paperwork with no, or only very limited, physical activity) with no associated con-

struction or drilling activities. Thus they do not result in environmental disturbances. These CXs for

fl uid minerals, which are within NEPA, are addressed in DOI Manual 516 Chapter 11.5 (DOI, 2004b).

Some of the functions that administrative CXs address are:

Issuance of future interest leases where the subject lands are already in production.

Approval of mineral lease adjustments and transfers.

Approval of unitization agreements, communalization agreements, drainage

agreements, and underground storage agreements.

Approval of suspensions of operations, force majeure suspensions and suspen-

sions of operations and production.

Approval of royalty determinations, such as royalty rate reductions.

Approval of Notices of Intent to conduct geophysical exploration of oil, gas, or

geothermal when no temporary or new road construction is proposed.

EPAct Section 390 CXs

Section 390 of EPAct provides five new CXs available for use on federal mineral estates. Un-

like the administrative CXs, the Section 390 CXs cover a wider range of active construction

and drilling tasks employed in oil and gas exploration and production; however, only routine

activities are included.

NEPA Forest Service CX 17

The Forest Service established a new CX (number 17), under the Forest Service Energy Im-

plementation Plan (FS, 2007a), applicable to oil and gas development in new fields. CX 17

complements the EPAct Section 390 CXs; it is not intended to duplicate the Section 390 CXs

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that may be utilized to address qualified development activities in existing oil and gas fields.

Forest Service CX 17 applies to activities within or adjacent to a new field up to specified

threshold levels of development; the specific wording of the CX 17 follows (FS, 2007a):

New CXs available under Section 390 of the Energy Policy Act of 2005 and through the For-

est Service (within regulations founded in NEPA) provide useful mechanisms to facilitate the

environmental review process for routine oil and gas exploration and development activities.

The use of these CXs eliminates the need for environmental assessment (EA) or EIS prepara-

tion. CXs are a practical and sound alternative to employ in the NEPA process providing an

opportunity to substantially streamline processing and approval of activities that already

have been vetted under a previous, more comprehensive NEPA document.

Contrary to opinions expressed by some environmentally oriented citizen groups, use of

these CXs does not preempt an agency’s environmental management obligations nor does it

waive wildlife restrictions or the use of best management practices. A CX is intended to be a

brief, concise document aimed at simplifying and expediting the environmental review pro-

cess by avoiding unnecessary or duplicative documentation of routine actions with limited

environmental effects. The use of CXs ultimately fosters more timely and cost effective use

of limited resources and in practice should allow the BLM to place a greater emphasis on the

inspections and enforcement of activities that already have been authorized so as to ensure

compliance with all requirements for operating on federal lands.

Categorical Exclusion Documentation

The case or well file must include justification of why a CX

is applicable and include a review of extraordinary circum-

stances. If an action fits more than one CX category, the pre-

parer must select the CX that most closely addresses the pro-

posed action and is most specific.

Extraordinary Circumstances

BLM Extraordinary Circumstances

BLM has determined that some circumstances potentially

applicable to a CX require further environmental analysis if

that circumstance applies to the action. In cases like this, a

CX cannot be used and an EA or EIS must be prepared. The

NEPA Handbook (BLM, 2008) and Department Manual (DM) 516 Chapter 2 Appendix 2 (DOI,

2005) specifies the 12 extraordinary circumstances, which, if present, preclude implementa-

tion of an administrative CX. The extraordinary circumstances (DOI, 2005) include the follow-

ing specific language:

A CX is intended to be a brief,

concise document aimed at

simplifying and expediting the

environmental review process

by avoiding unnecessary or

duplicative documentation of

routine actions with limited

environmental effects.

53NAVIGATING NEPA

“Have signifi cant impacts on public health or safety.”

Have signifi cant impacts on such natural resources and unique geographic charac-

teristics as historic or cultural resources; park, recreation or refuge lands; wilderness

areas; wild or scenic rivers; national natural landmarks; sole or principal drinking water

aquifers; prime farmlands; wetlands (Executive Order 11990); fl oodplains (Executive

Order 11998); national monuments; migratory birds; and other ecologically signifi cant

or critical areas.

Have highly controversial environmental effects or involve unresolved confl icts con-

cerning alternative uses of available resources [NEPA Section 102(2)(E)].

Have highly uncertain and potentially signifi cant environmental effects or involve

unique or unknown environmental risks.

Establish a precedent for future action or represent a decision in principle about future

actions with potentially signifi cant environmental effects.

Have a direct relationship to other actions with individually insignifi cant but cumula-

tively signifi cant environmental effects.

Have signifi cant impacts on properties listed, or eligible for listing, on the National Reg-

ister of Historic Places as determined by either the bureau or offi ce.

Have signifi cant impacts on species listed, or proposed to be listed, on the List of En-

dangered or Threatened Species, or have signifi cant impacts on designated critical

habitat for these species.

Violate a federal law, or a state, local, or tribal law or requirement imposed for the pro-

tection of the environment.

Have a disproportionately high and adverse effect on low income or minority popula-

tions (Executive Order 12898).

Limit access to and ceremonial use of Indian sacred sites on federal lands by Indian

religious practitioners that could adversely affect the physical integrity of such sacred

sites (Executive Order 13007).

Contribute to the introduction, continued existence, or spread of noxious weeds or

non-native invasive species known to occur in the area, or actions that may promote

the introduction, growth, or expansion of the range of such species (Federal Noxious

Weed Control Act and Executive Order 13112).”

Considerations: First consider if the proposed action can be modified such that it will not

trigger an extraordinary circumstance. If yes, and if acceptable to agency, proceed with modi-

fied action using the CX.

CXs are not intended as a mechanism to circumvent the environmental planning process; BLM must

approve the use of a CX before an operator can take action.

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Forest Service (FS) Extraordinary Circumstances

The Forest Service has a different set of extraordinary circumstances:

“Federally listed threatened or endangered species or designated critical

habitat, species proposed for federal listing or proposed critical habitat, or FS

sensitive species.

Flood plains, wetlands, or municipal watersheds.

Inventoried roadless areas.

Congressionally designated areas, such as wilderness, wilderness study areas

or national recreation areas.

Research natural areas.

American Indian and Alaska Native religious or cultural sites.

Archeological sites, or historic properties or areas.”

The Forest Service also established a new CX (number 17), under the Forest Service Energy

Implementation Plan (FS, 2007a), applicable to oil and gas development in new fields.

Use of this categorical exclusion will allow for approval of a Surface Use Plan of Operations

for oil and natural gas exploratory operations and initial development activities associated

with or adjacent to a new oil and/or gas field or area as long as the approval will not autho-

rize activities in excess of any of the following:

One mile of new road construction.

One mile of road reconstruction.

Three miles of individual or co-located pipelines and/or utilities disturbance.

Four drill sites.

No more than a single action may be categorically excluded under this category in a new

field or associated area when the aforementioned constraints are not surpassed.

NEPA CX

Extraordinary circumstances do not apply when a recent NEPA document (such as an EA or

EIS) provides the basis for the CX --- the CX is in effect an extension of activities previously

contemplated and approved by that earlier NEPA document. However, procedural require-

ments still apply such as consultation under:

Endangered Species Act.

National Historic Preservation Act.

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55NAVIGATING NEPA

Of the five new CXs under the Act, four call for a NEPA document that was prepared within

the last 5 years and the fifth CX is for maintenance of a minor activity, other than any con-

struction or major renovation of a building or facility.

“Individual surface disturbances of less than 5 acres so long as the total surface

disturbance on the lease is not greater than 150 acres and site-specific analysis in

a document prepared pursuant to NEPA has been previously completed.

Drilling an oil or gas well at a location or well pad site at which drilling has oc-

curred previously within 5 years prior to the date of spudding the well.

Drilling an oil or gas well within a developed field for which an approved land use

plan or any environmental document prepared pursuant to NEPA analyzed such

drilling as a reasonably foreseeable activity, so long as such plan or document was

approved within 5 years prior to the date of spudding the well.

Placement of a pipeline in an approved right-of-way corridor, so long as the cor-

ridor was approved within 5 years prior to the date of placement of the pipeline.

Maintenance of a minor activity, other than any construction or major renovation

of a building or facility.”

Signifi cant Impact

Significance is defined as effects of sufficient context and intensity that an EIS is required.

Determining whether an action may be “significant” can be difficult. If there is uncertainty

whether an extraordinary circumstance applies, the following steps must be taken:

Prepare an EA to determine if an EIS is needed.

Do not use a CX.

If EA determines that EIS is not necessary, proceed under the EA rather than the CX.

The CEQ regulations explain in 40 CFR 1508.27:

“‘Significantly’ as used in the NEPA requires considerations of both context and intensity: (a)

Context. This means that the significance of an action must be analyzed in several contexts

such as society as a whole (human, national), the affected region, the affected interests, and

the locality. It varies with the setting of the proposed action. (b) Intensity. This refers to the

severity of effect. Responsible officials must bear in mind that more than one agency may

make decisions about partial aspects of a major action…” Note that to determine the sever-

ity of effect, you must look at direct, indirect, and cumulative effects.

CX Process

Those actions to which a CX may be applied require no project-specific environmental evalu-

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ation; for such actions, the NEPA evaluation process terminates at this first step. Documenta-

tion is not required, but is advisable.

Figure 4-1: CX Flow Chart

The NEPA Process1

Uncertain YesNo

No

No

Yes

Yes

Yes

Yes

Yes

No

No




CX?1


No




circumstances?







effects?

No


(FONSI)


effects may occur



(EIS)


involvement

Draft EIS2



Final EIS2


Record of Decision2

Decision



57NAVIGATING NEPA

Recommended CX Documentation

Even if the agency does not require documentation for a CX, record appropriate background

information supporting the decision to CX an action. Such information constitutes the legal

record if the decision is called into question. Some agency procedures, such as for the Na-

tional Park Service and the Forest Service, require written documentation for some CXs. The

Forest Service calls theirs a Decision Memo.

The documentation should include the following:

Describe the proposed action.

Demonstrate that the proposed action conforms to the LUP outlined in the

existing NEPA document (EA or EIS).

Describe which CX is applicable and why.

Demonstrate that no extraordinary circumstances exist that could preclude

use of a CX.

Document the mitigation to be implemented (both design features and miti-

gation measures).

Document consultation and coordination with appropriate agencies and af-

fected parties.

Short Form EA

In the absence of a pre-existing NEPA document of appropriate vintage (less than 5 years),

a short form EA may also provide an efficient vehicle for environmental review of the low or

no impact actions that might otherwise be addressed with a CX. Some NGOs contend that

BLM has refused to apply extraordinary circumstances when screening CXs (2,000 in 2006

and part of 2007), but some BLM field offices prefer not to use CXs. As a consequence of this,

some oil and gas companies and/or BLM field offices are finding it easier to perform a brief

EA than to rely on a CX.

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CHAPTER 5 - DETERMINATION OF NEPA ADEQUACY


61NAVIGATING NEPA

DETERMINATION OF NEPA ADEQUACY (DNA)

DNA Overview

In evaluation of an action vis-à-vis existing NEPA documents, one must ask the questions:

Is the contemplated action in conformance with the existing land use plan (LUP)

Has the contemplated action been adequately analyzed. Not all new proposed ac-

tions will require new environmental analysis. In some instances, an existing environ-

mental analysis document may be relied upon in its entirety, and new NEPA analysis

will not be necessary (516 DM 11.6).

Reliance may be on a single or multiple existing NEPA documents, including:

EIS for an RMP.

EIS or EA for an RMP Amendment.

EIS or EA on BLM programmatic actions.

EIS or EA associated with BLM activity plans, projects, or permit approvals.

EIS or EA prepared for other agencies.

An EIS or EA prepared by another agency must be adopted by the BLM if it is to be

used to satisfy NEPA compliance.

Existing NEPA document review:

Is the contemplated action included or substantially equivalent to an alternative

analyzed in the existing NEPA document?

Did the existing NEPA document analyze a range of alternatives appropriate to

the contemplated action?

Additionally, if it is different, can it justify why the difference is not significant or are there

new environmental or resource circumstances that would require re-evaluation? If the an-

swer to any of the above questions is “no”, then a new EA or EIS must be prepared. However, it

may still be appropriate to tier off from or incorporate by reference the existing NEPA docu-

ment. Also consider whether or not the public involvement supporting the existing NEPA

document is sufficient to serve the needs of the contemplated action.

Note: the necessity of and type of public involvement is at the discretion of the

decision maker.

In addition to answering the above questions, evaluate whether the public involvement and

interagency review associated with existing EAs or EISs are adequate for the new proposed

action. In general, where the new proposed action has not already been discussed during

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public involvement for the existing EA or EIS, some public involvement for the new proposed

action will be necessary.

When evaluating new circumstances or information prior to issuance of a decision, one may

document the review using the DNA worksheet or other means, such as decision documen-

tation or responses to comments.

Using Existing NEPA Documents

Incorporation by reference and tiering provide opportunities to reduce paperwork and re-

dundant analysis in the NEPA process. When incorporating by reference, one refers to other

available documents that cover similar issues, effects, and/or resources considered in the

NEPA analysis. Incorporation by reference allows one to summarize briefly the relevant por-

tions of these other documents rather than repeat them.

Using existing documents include:

Incorporation by Reference.

Tiering.

Supplementation.

Adopting another agency’s document.

Incorporation by Reference

CEQ regulations direct that agencies shall incorporate material into an environmental impact

statement by reference when the effect will be to reduce bulk without impending agency

and public review of the action. It involves two steps: citation and summarization. If a docu-

ment incorporated by reference is central to the analysis in the EIS, circulate the document

for comment as part of the draft.

Considerations include:

Summarize pre-existing reviews rather than repeat them.

Provide a referenced document (e.g.: as an appendix) or make it reasonably avail-

able for inspection.

Cite the source.

Summarize the incorporated analysis.

Tiering

Tiering is a form of incorporation that refers to previous EAs or EISs. Incorporation by refer-

ence is a necessary step in tiering, but tiering is not the same as incorporation by reference.

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63NAVIGATING NEPA

Tiering allows one to narrow the scope of the subsequent analysis and focus on issues that

are ripe for decision-making, while incorporation by reference does not. One may only tier to

EAs or EISs, whereas that may incorporate by reference from any type of document. Note that

according to CEQ, tiering does not add a legal step to the NEPA process.

In summary, tiering:

Covers analysis from other NEPA documents in a new document without recreat-

ing that analysis.

Typically is used when preparing a more narrowly focused project-specific EA.

Usually is “borrowed from” a broader document such as a programmatic EIS.

Focuses on specific issues or mitigation measures that were not given sufficient

analysis to allow the contemplated action without additional evaluation.

Is useful for cumulative impact analysis.

Tiering of Evaluations

“Tiering of evaluations” involves referencing existing broad-scoped documents such as a re-

gional EIS or Resource Management Plan (RMP) as the general basis for the development of a

more focused EIS. The specifi c analysis is said to “tier off of” the pre-existing broader document.

These typically address:

A regional issue of specific scope.

A project-specific issue.

A site-specific issue.

Supplementing an EIS

Supplementation is a process applied only to draft and final EISs, not EAs. If changes are made

to the proposed action, add an alternative outside the spectrum of those already analyzed. If

new circumstances or data arise that alter the validity of an EA analysis prior to implementa-

tion of the federal action, prepare a new EA.

A Draft or Final EIS requires supplementation if:

The contemplated action is substantially changed.

A new alternative is to be evaluated.

Significant new circumstances exist.

Supplementation is required only if significant federal action is yet to implement or complete

the action. However, supplementation is not required if the changes to the contemplated ac-

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tion are not significant and the effects will remain within the range of effects analyzed in the

Draft or Final EIS. Supplemental EISs are prepared under the same requirements as EISs, but

Supplemental EISs do not require scoping.

Supplemental EISs will vary in scope and complexity depending upon the nature of the pro-

posed changes or new information or circumstances. Supplemental EISs are prepared, circu-

lated, and filed with the same requirements as EISs, except that SEISs do not require scoping.

However, in some cases, scoping has occurred to engage the public. The SEIS will have its

own ROD.

Adopting Another Agency’s Documents

If an EIS or EA prepared by another agency is relevant to a proposed action, prepare a new EIS

or EA and incorporate by reference the applicable portions of the other agency’s document.

Or adopt an EIS or EA prepared by another agency, after following certain steps of CEQ, DOI

and BLM requirements.

Actors include:

Adoption reduces paperwork, eliminates duplication, and makes the process

more efficient.

The adopted EIS or EA must meet all CEQ, DOI, and BLM requirements.

Adopted EISs require preparing a ROD.

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CHAPTER 6 - COMMON COMPONENTS OF AN EA & EIS


67NAVIGATING NEPA

COMMON COMPONENTS OF AN EA AND EIS When preparing an EA or EIS several common components are conducted regardless of docu-

ment type. These include scoping, the proposed action, alternative development, mitigation,

best management practices, purpose and need statement, and required consultations. These

aspects are discussed to provide a general understanding prior to addressing the individual

requirements of an EA or EIS.

Scoping

Scoping is the process by which agencies solicit internal and external input on the issues,

impacts, and potential alternatives that will be addressed in an EIS or EA as well as the extent

to which those issues and impacts will be analyzed in the NEPA document.

40 CFR 1501.7 states that “there shall be an early and open process for determining the scope

of issues to be addressed and for identifying the significant issues related to a proposed ac-

tion. This process shall be termed scoping.”

Aspects of Scoping:

Actions.

Impacts.

Alternatives.

Addressing Purpose and Need.

Consultations.

Use scoping to begin identifying actions by others that may have a cumulative effect on the

proposed action, and identify geographic and temporal boundaries, baselines, and thresh-

olds. Scoping helps to identify incomplete or unavailable information and to evaluate wheth-

er that information is essential to a reasoned choice among alternatives.

Scoping is one form of public involvement in the NEPA process. It occurs early in the NEPA process

and generally extends through the development of alternatives. The factors involved include:

The initial process of identifying the range of issues to be evaluated by an EIS.

Scoping is performed by the lead and contributing agencies.

The public also may play a role.

Actions

Design features are those specific means, measures or practices that make up the proposed

action and alternatives. One may identify design features --- especially those that would re-

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duce or eliminate adverse effects after the initial formulation of alternatives --- as the impact

analysis is being conducted.

Because the formulation of alternatives and the impact analysis are often an iterative pro-

cess, one might not be able to identify the means, measures, or practices until the impact

analysis is completed.

Design features of the action:

Means.

Measures.

Practices.

Standard operating procedures, stipulations, and best management practices are

considered design features of the proposed action.

Actions – Individual

Individual actions are those involving a single project to a specific site. For example: An op-

erator wants to install a new compressor station and has to prepare an EA, but discovers a

sage-grouse lek in the project area. The EA does not provide guidance for how to deal with

the lek, so an EIS must be conducted.

Actions – Connected

Connected actions are limited to those that are currently proposed (ripe for decision). Ac-

tions that are not yet proposed are not connected actions, but may need to be analyzed in

cumulative effects analysis if they are reasonably foreseeable. This includes:

Actions that are “closely related.”

Actions that are connected because they automatically trigger other actions.

Actions that cannot or will not proceed unless other actions are taken previously.

Actions that are interdependent parts of a larger action and depend upon the

larger action for their justification.

Actions – Similar

One may include similar proposed actions as aspects of a broader proposal, analyzed in a single

NEPA document when a single NEPA document would improve the quality of analysis and effi -

ciency of the NEPA process, and provide a stronger basis of decision-making.

If similar actions are included as aspects of a broader proposal, analyzed in a single NEPA

document, evaluate the purpose and need and the range of alternatives to ensure that they

adequately address the similar actions. These include:

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69NAVIGATING NEPA

Actions that have similarities, which provide a basis for evaluating their conse-

quences together with the proposed action.

Actions that are not limited to type.

Actions that may include common timing or geography.

Actions could be connected or cumulative depending on common timing or

geography.

Alternatives

Develop reasonable alternatives to the proposed action. The CEQ regulations define this step

as the heart of the NEPA process. Many agencies trigger NEPA late in their decision-making

process and have selected a de facto alternative, and use the NEPA process to justify the deci-

sion. This is illegal.

All alternatives including “no-action” deserve equal and objective treatment. They include

the no-action alternative, other action alternatives, preferred alternative, and in some cases

mitigation. In an EA the only two alternatives are no-action and preferred.

Reasonable alternatives include those that are practical or feasible from the technical and

economic standpoint and use common sense. What constitutes a reasonable range of alter-

natives depends on the nature of the proposal and the facts in each case.

NEPA directs the agency to “study, develop, and describe appropriate alternatives

to recommended courses of action in any proposal that involves unresolved con-

flicts concerning alternative uses of available resources:…”

Range of alternatives explores alternative means of meeting the purpose and

need for the action.

The broader the purpose and need statement, the broader the range of alternatives.

If potentially there are a large number of alternatives, the agency needs to ana-

lyze only a reasonable number.

No Action

Defining and describing the no-action alternative as it relates to the proposal is not an easy

task. The no-action alternative is the status-quo alternative and has two general meanings:

1) continue to implement the current management plan and; 2) do not implement the pro-

posed action.

Under the first meaning, projected impacts of alternative management schemes would be

compared in the EIS to those impacts projected for the existing plan.

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The second interpretation would mean the proposed activity would not take place, and the

resulting environmental effects from taking no action would be compared with the effects

of permitting the proposed activity or an alternative to go forward.

No-Action Alternative:

Provides a base or reference point to which all other alternatives may be compared.

Must be described and analyzed in every EIS level NEPA analysis.

In general, externally initiated proposed action means the proposed activity will

not take place.

Programmatic scope may mean continuation of current management practices

and levels.

Proposed Action

Describe the proposed-action alternative in detail, including all connected actions, and miti-

gation and monitoring activities.

The public and the decision maker must know what on-the-ground, in-the-ground, under-

the-ground, on-the-water, in-the-water, under-the-water, and in-the-air activities would take

place in the short- and long-term if the proposed action were implemented. Focus the de-

scription on the various activities that would cause the issues to exist.

Additionally, the decision maker needs to identify and list all problem-causing actions

of the No-Action and the Proposed Action alternatives.

In the list, identify where, when and how these actions

would take place. Re-examine the cause-and-effect flow

charts and textual explanations to help identify these

problem-causing actions.

Other Action alternatives include:

Alternative means of meeting the purpose and

need for the action.

Analysis of those alternatives necessary to per-

mit a reasoned choice.

Possibly reflecting the decision space and au-

thority of other agencies.

CEQ guidance states that, “reasonable alternatives

include those that are practical or feasible from the

technical and economic standpoint…”

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71NAVIGATING NEPA

Preferred Alternative

The preferred alternative is the alternative that the decision maker indicates in the EIS or EA

that it intends to select. It is not the selected alternative.

Because regulations have no formal comment period or required public drafts for an EA,

some agencies do not want a preferred alternative identified in the EA. The selected alter-

native is the one the decision maker selects to implement. This alternative might or might

not be the preferred alternative. The selected alternative is the alternative that the decision

maker believes would fulfill the applicant’s present need and statutory mission, giving con-

sideration to economic, technical, schedule, environmental, and other relevant factors.

Preferred Alternative:

The alternative that the agency believes would fulfill its statutory mission and

responsibilities.

In the selection process, consideration is given to economic, environmental, tech-

nical and other factors.

May or may not be the same as the action submitted by the proponent.

Common Features

Common features describe features that are common to all alternatives. These features need to

be described in detail only once. For example, identify common features in the description of

the proposed action and cross-reference to that description in the discussion of each alternative

to which they apply. Another option is to describe common features under a separate heading.

Common features also include a description of relevant laws, regulations, required permits,

licenses, or approvals.

Common to all alternatives (consult LUP decision base)

Standard operating procedures.

Agency-wide requirements prescribed by law, regulation, or manual guidance.

Alternatives Considered But Not Analyzed

Keep the best and discard the rest. The alternatives that are discarded must be dismissed for

sound reasons and documented in chapter 2.0. Alternatives, including the Proposed Action

section of the EIS or EA, prove development of a reasonable array of alternatives from which

the decision maker could choose.

Considered but eliminated from detailed analysis

Must explain why they were eliminated.

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May include the following:

Ineffective.

Technically or economically infeasible.

Inconsistent with the basic policy objectives.

Do not analyze alternatives that are:

Remote.

Speculative.

Impractical.

Ineffective.

Mitigation

If mitigation measures are incorporated into the proposed action or alternatives, they are called de-

sign features, not mitigation measures. The parts of an alternative include mitigation, best manage-

ment practices, cumulative effects, and stipulations. If the mitigation measure is realized after analy-

sis of the alternative but not included, they are called mitigation measures and require monitoring to

ensure the implementation of the measures.

Mitigation measures include specific means, measures, or practices that would reduce or

eliminate effects of the proposed action or alternatives:

Avoiding the impact altogether by not taking a certain action.

Limiting the degree of magnitude.

Rectifying by repairing, rehabilitating, or restoring.

Best Management Practices (BMP)

As with mitigation, if BMPs are not incorporated into the proposed action or alternatives as

design features, they are considered along with mitigation measures. BMPs can be mitigation

measures taken to support the implementation of a CX, an EA, or an EIS.

BMPs are environmental protection measures taken to avoid or lessen the im-

pacts of energy development on the natural environment and, thereby, allow for

environmentally responsible energy development.

It is critical to understand that “best” has a flexible definition:

What is “best” in Alaska may be entirely inappropriate in Louisiana.

What is “best” in a desert may be entirely inappropriate in wetlands.

In most cases, there is no one “best” that can be applied to all possible circumstances.

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Stipulations

In some cases an EIS may allow development of an area subject to terms and conditions

known as stipulations. These typically appear in three general categories:

Timing restrictions for certain activities typically to protect wildlife during sus-

ceptible periods of the year – breeding, winter range, etc.

No surface occupancy restrictions to protect sensitive areas such as National

Parks, wilderness areas, critical wildlife habitat, etc.

Controlled surface use – limiting the types of activities that can take place on

these acreages.

Purpose and Need Statement

The Purpose and Need Statement is a brief statement of the agency’s goals or objectives in con-

ducting the NEPA process. For many types of actions, the “need” for the action can be described

as the underlying problem or opportunity to which the agency is responding with the action. The

“purpose” can be described as a goal or objective. Often, the “purpose” can be presented as the

solution to the problem described in the “need” for the action.

The purpose and need statement for an externally generated action must describe the agency’s

purpose and need, not an applicant’s or external proponent’s purpose and need (40 CFR 1502.13).

The applicant’s purpose and need may provide useful background information, but this descrip-

tion must not be confused with the agency’s purpose and need for action. The agency action trig-

gers the NEPA analysis. It is the agency’s purpose and need for action that will dictate the range

of alternatives and provide a basis for the rationale for eventual selection of an alternative in a

decision. The purpose and need statement frames the range of alternatives and describes the re-

lationship between the purpose and need and the proposed action.

Consultations

During the NEPA analysis and decision-making processes, agencies must coordinate with other fed-

eral, state, and local agencies and Indian tribes. Guidance, RMPs, and plan amendments shall be con-

sistent with offi cially approved or adopted resource related plans and policies of other federal, state

and local agencies and Indian tribes, so long as such plans and policies are also consistent with the

purposes, policies, and programs of federal laws and regulations that apply to public lands.

Cooperating Agencies provide consistency with:

Offi cially approved or adopted resource related plans.

Other federal, state, and local agencies and tribes.

Purposes, policies, and programs of federal laws and regulations.

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Administrative Record

An administrative record consists of physical hard copies and electronic versions of all im-

portant communications, agreements, meeting minutes, public comments, internal review

notes, internal draft versions, referenced materials, GIS data layers, etc. Essentially, it is a re-

cord of all items used, reviewed, sent, or received during the course of developing the NEPA

document. As defense for litigation, a complete administrative record is necessary; an over

inclusive record is better than an under inclusive one.


CHAPTER 7 - ENVIRONMENTAL ASSESSMENTS (EA


77NAVIGATING NEPA

ENVIRONMENTAL ASSESSMENTS (EAS)

Environmental Assessments Overview

Environmental Assessments are the second level of evaluation from a CX. An environmental

assessment is a tool for determining the “significance” of environmental impacts; it provides

a basis for rational decision-making. It is intended to be a concise public document that

provides sufficient evidence and analysis for determining the significance of effects from a

proposed action and serves as a basis for reasoned choice. Based upon the EA analysis, either

an EIS or a FONSI will be prepared. (40 CFR 1508.9)

Environmental Assessments are:

The second level of environmental evaluation.

An evaluation of environmental impact of a federal action.

Intended to determine if a significant environmental impact will occur as a result

of the action, or if no impact will occur.

Components of an EA

One may reduce the length of the EA by thoughtful crafting of the purpose and need for

action; developing a proposed action that specifically addresses the purpose and need; and

maintaining focus on the relevant issues. Consistent focus on the issues associated with

the proposed action will help identify reasonable alternatives and potential effects. Other

streamlining techniques include the use of tiering and incorporation by reference.

A longer EA may be appropriate when a proposal is so complex that a concise document can-

not meet the goals of 40 CFR 1508.9 or when it is extremely difficult to determine whether

the proposal could have significant environmental effects.

An EA typically includes summary discussions of the:

Need for the proposed action.

Alternative actions in cases of unresolved confl icts for alternative uses of resources.

Environmental impacts potentially created by the proposed action and any alter-

native actions.

Listing of agencies and/or personnel consulted.

EA – Documentation

The CEQ has advised agencies to keep EAs to no more than approximately 10-15 pages. As

discussed before, the purpose and need statement frames the range of alternatives. It is rec-

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ommended that the purpose and need statement be developed early in the NEPA process

and included in scoping to describe the relationship to the proposed action. Be sure to in-

clude design features specific to the proposed action.

One must describe the proposed action and alternatives considered. Illustrations and maps

can be used to help describe the proposed action and alternatives. CEQ issued guidance

states: “one may contrast the impacts of the proposed action and alternatives with the cur-

rent condition and expected future condition in the absence of the project. This constitutes

consideration of a no-action alternative as well as demonstrating the need for the project.”

One must consider alternatives if there are unresolved conflicts concerning alternative uses

of available resources. There are no unresolved conflicts concerning alternative uses of avail-

able resources if consensus has been established about the proposed action based on input

from interested parties, or there are no reasonable alternatives to the proposed action that

would be substantially different in design or effects. Additionally, identifying information

should be provided at the beginning of an EA or in the introduction.

Management Framework Plans (MFP) are land use plans that establish land use allocations,

multiple use guidelines, and management objectives for a given planning area. The MFP

planning system was used by the BLM until about 1980.

It is recommended that the EA contain a description of alternatives to the proposed actions that

were considered but not analyzed in detail. Include alternatives that were recommended by mem-

bers of the public or agencies but dismissed from detailed analysis after preliminary investigation.

Document the reasons for dismissing an alternative in the EA.

An EA is intended to be a brief document establishing whether a FONSI or an EIS is the next

step in the NEPA process. Required documentation shall include:

Description of the need for the proposed federal action.

Description of the alternative actions evaluated pursuant to NEPA Section

102(2)(E).

“Study, develop, and describe appropriate alternatives to recommended courses

of action in any proposal which involves unresolved conflicts concerning alter-

native uses of available resources.”

Description of the environmental impacts resulting from the proposed action as

well as each of the alternative actions.

Documentation of consultation and coordination with appropriate agencies and

affected parties.

Other required and optional documentation include:

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79NAVIGATING NEPA

Identifying information:

Title, EA number, and type of federal action (required).

Location of proposed federal action (required).

Name/location of agency office preparing the EA (required).

Lease, serial, or case file number (required if applicable).

Applicant name (required if applicable).

Document preparation date (required).

List of preparers (recommended).

Information regarding related plans, policies, or programs:

Demonstration that the EA conforms with existing Resource Manage-

ment Plans (RMPs) or Management Framework Plans (MFPs) (required).

“Relationship to statutes, regulations, policies, plans, or other environ-

mental analyses.” (Recommended).

Additional information:

Alternative actions considered but not evaluated in detail (optional).

“Description of the affected environment (optional).”

What if the Needs of the EA Change in the Future?

If the needs of the EA change in the future, a new EA would have to be done to address the

issue. For example, after the project is completed and in production for a couple of years, a

sage grouse lek is found on the site but the operator wants to do secondary recovery on the

well. Under that situation, a new EA would be needed to address the lek.

A new EA is prepared.

There is no such thing as a “Supplemental EA” or a “Revised EA.”

Return to square one – there is no “get out of jail free” card.

EA – Public Participation

The CEQ regulations direct agencies to encourage and facilitate public involvement in the

NEPA process to the fullest extent possible. This means that while some public involvement is

required in the preparation of an EA, discretion is allowed to determine how much, and what

kind of involvement works best for each individual EA.

In addition to public involvement in the preparation of EAs, one must notify the public of the

availability of a completed EA and FONSI.

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CEQ regulations dictate the appropriate level of public participation – 40 CFR

1506.6(b).

A FONSI will be made available to the affected public, or on request.

In limited circumstances, the agency will make the FONSI available for public review

prior to issuing a fi nal determination (to implement the FONSI or to require an EIS):

The contemplated federal action is, or is similar to, one that would normally

require an EIS.

Cases where there is no precedent for the contemplated federal action – 40

CFR 1501.4(e).

Finding of No Signifi cant Impact (FONSI)

EAs have two outcomes --- a FONSI or EIS. The FONSI is a document that explains why an ac-

tion will not have a significant effect on the human environment and, why, therefore, an EIS

will not be required. The FONSI must state succinctly the reasons for deciding that the action

will have no significant environmental effects. The FONSI need only provide a basis for the

conclusion that the selected alternative(s) will have no significant effect.

The EA must be attached to the FONSI or incorporated by reference into the FONSI. The

FONSI must note any other relevant environmental documents related to the findings, and

must be signed and dated by the decision-maker.

Some FONSIs must be made available for a 30-day public review before the determination of

whether to prepare an EIS. Public review is necessary if or when: the proposal is a borderline

case; precedent-setting case; scientific or public controversy; involves a proposal that is simi-

lar to one that normally requires preparation of an EIS.

If the EA finds that no significant environmental impact will result from the fed-

eral action, then a FONSI is issued.

An agency document that briefly describes the rationale that the proposed action

will not have a significant adverse impact on the environment is needed.

If a FONSI is issued, NEPA evaluation terminates at this step; an EIS is not required.

If, on the other hand, the EA determines that a significant environmental impact

will (or may) result from the federal action, an EIS is required.

FONSI – Documentation

No format requirement exists for a FONSI; however, BLM has a suggested format and examples.

Required documentation shall include:

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81NAVIGATING NEPA

A summary of the EA.

Identification of any related environmental documents.

Explanation of why no significant environmental impact is expected to occur as a

result of the federal action.

“A formal determination by the responsible official (40 CFR 1508.13).”

EA / FONSI Decision Record – Process

Neither the EA nor the FONSI is a decision-making document. Decisions regarding proposed

actions analyzed in an EA are documented in accordance with program-specific require-

ments. While the NEPA does not require a specific decision document regarding actions for

which an EA has been completed, the BLM has chosen to use the “decision record” (DR) to

document the decision regarding the action for which the EA was completed. The decision

cannot be implemented until the DR is signed.

A FONSI decision is documented by the agency as a Decision Record (DR).

The DR is made available to the affected public, or on request.

When the FONSI is finalized, or in the limited cases noted made available for re-

view, a Notice of Availability (NOA) is prepared.

The NOA is not required to be posted in the Federal Register.

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Figure 7-1: EA Flow Chart – Process

The NEPA Process1

Uncertain YesNo

No

No

Yes

Yes

Yes

Yes

Yes

No

No




CX?1


No




circumstances?







effects?

No


(FONSI)


effects may occur



(EIS)


involvement

Draft EIS2



Final EIS2


Record of Decision2

Decision




CHAPTER 8 - ENVIRONMENTAL IMPACT STATEMENTS


85NAVIGATING NEPA

ENVIRONMENTAL IMPACT STATEMENTS (EISS)

Environmental Impacts Statement Overview

A preparation plan must be developed before initiating an EIS for land use plans. The

preparation plan facilitates coordination between participants involved in the prepara-

tion of the EIS and those with approval and oversight responsibility. A properly prepared

preparation plan provides the foundation for the entire planning process by identifying

the issues to be addressed.

An EIS is the third level of environmental evaluation:

The EIS examines the impacts of a proposed federal action as well as alternative

actions.

If an agency believes that a significant environmental impact is likely, the EA step

may be skipped and the review may begin with the EIS.

Components of an EIS

An EIS is a legally defensible document that needs to have a level of detail that will stand up

to public and judicial scrutiny. Each section of the EIS must be analyzed in detail to provide

proof that impacts and effects were fully considered.

An EIS typically includes more detailed discussion of the:

Need for the proposed action.

Alternatives to the proposed action.

The affected environment.

Environmental consequences of the proposed action and alternatives.

Listing of agencies and/or personnel participating in the preparation of the EIS.

Listing of agencies, organizations, and/or personnel providing review and com-

ment on the Draft EIS.

Index.

Appendices, as applicable.

EIS – Process

Once approved, print the draft EIS, file it with the Environmental Protection Agency, and then

issue it for public review and comment. The EPA will then publish notice of the filing in the

Federal Register.

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Included are a brief history of the public involvement (including scoping) in the undertaking,

a list of agencies (including cooperating agencies) and organizations consulted, a list of pre-

parers and their expertise, and a list of recipients of the EIS. In the final EIS, include a response

to comments section.

A ROD is prepared to document the selected alternative and any accompanying mitigation

measures. The ROD must be signed by the decision-maker. The ROD may be integrated with

any other record prepared by the BLM or other agency. An example would be findings for

floodplains required by E.O. 11988 and for wetlands required by E.O. 11990. No action con-

cerning a proposal may be taken until the ROD has been issued, except under conditions

specified in 40 CFR 1506.1.

The first step after scoping is preparing a Draft EIS:

The draft is then offered for public comment.

Public comment may involve one or more rounds of comment and modification

of the EIS.

Then, a Final EIS is prepared.

Once accepted, the EIS is formalized in a Record of Decision (ROD) published in

the Federal Register .

The ROD defines the final action once the alternative is selected through the

agency’s decision-making process.

This is the last and most involved level of NEPA evaluation.

Programmatic versus Project-Specifi c Environmental Impact Statements (EIS)

Programmatic EISs (SEIS) are region-wide (typically state, but can be national) planning docu-

ments prepared in advance of land planning decision-making federal actions such as leasing.

They have general applicability to land use and may be broad in scope, including oil and gas,

grazing, forestry, etc. Additionally, they can be project-specific EISs that are localized plan-

ning documents prepared for a specific contemplated action.

EIS – Documentation

An EIS is intended to be a detailed (much more so than an EA) document discussing federal

actions, and their alternatives, which may, or will, result in significant environmental impacts.

Required documentation shall include:

A statement of the environmental impacts likely to result from the proposed

federal action.

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87NAVIGATING NEPA

Statements of the environmental impacts likely to result from each of the alterna-

tives to the proposed federal action.

A discussion of the environmental impacts that are unavoidable if the federal ac-

tion is implemented.

Discussions of the irreversible and irretrievable commitments of natural resources

if the federal action is implemented.

Description of the need for the proposed federal action.

Description of the alternative actions evaluated.

The “No Action Alternative” must be considered.

Agency preferred alternative.

Environmentally preferable alternative.

Description of the affected environment.

Description of the environmental consequences resulting from the proposed ac-

tion as well as each of the alternative actions.

Documentation of consultation and coordination with appropriate agencies and

affected parties.

List of preparers.

Basic document elements – table of contents, index, appendices, etc.

EIS – Required Documents and Notices

The documents or a notice of filing, are published in the Federal Register. The following docu-

ments and/or public notice tasks are required:

Notice of Intent (NOI) to initiate a public scoping period (minimum 30 days).

Draft EIS (DEIS) to initiate a required public review and comment period (mini-

mum 45 days).

Final EIS (FEIS) to initiate a required 30-day waiting period prior to issuance of the

ROD.

The ROD itself.

EIS / Record of Decision (ROD)

When an EIS is finalized, that culmination of the process must be formally documented in

a ROD that is published in the Federal Register. The ROD identifies the final action to be

taken.

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Figure 8-1: EIS Flow Chart – Process

The NEPA Process1

Uncertain YesNo

No

No

Yes

Yes

Yes

Yes

Yes

No

No




CX?1


No




circumstances?







effects?

No


(FONSI)


effects may occur



(EIS)


involvement

Draft EIS2



Final EIS2

Public availability of FEIS

Record of Decision2

Decision



89NAVIGATING NEPA

Screening Steps

The following screening steps are questions that must be asked to determine if an EIS should

be conducted.

Define the proposed federal action.

Six screening areas:

1. “Does the decision or action conform to the existing land use plan

(LUP)?”

2. “Is the proposal or action an exception from BLM NEPA requirements?”

Congressionally exempt actions.

A limited range of emergency actions.

Rejections of proposed actions – such as actions that are not within BLM’s

authority to approve.

3. “Is the proposal or action listed as normally requiring an EIS?”

Has the proposed action already been thoroughly addressed in an existing EIS?

Has the proposed action been determined to result in significant envi-

ronmental impacts after the existing EIS was prepared?

Actions listed in BLM Department Manual 516 DM Chapter 6, Appendix 5.3.

“Actions that either may or are expected to significantly affect the quality

of the human environment.”

“Actions whose effects on the quality of the human environment are ex-

pected to be highly controversial.”

4. “Are existing analysis and documentation sufficient?”

5. “Is the proposal listed as a categorical exclusion?”

Is the action listed in 516 DM Chapter 2, Appendix 2; or Chapter 6, Ap-

pendix 5.4?

If the action is listed, review the “test of ten exceptions” (BLM NEPA Ad-

ministrative Procedures and Documentation Requirements, Item 3.b).

6. “Are the environmental impacts expected to be significant?”

Is the proposed action expected to result in a significant impact?

Is the proposed action likely to create a highly controversial impact?

Is the proposed action individually insignificant, yet its impacts are cu-

mulatively significant with those of other actions?

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Land Use Plans (LUP)

BLM-approved federal actions must conform to existing land use plans. Land use plans in-

clude Resource Management Plans (RMP) and Management Framework Plans (MFP).

LUP Conformance

If a proposed action has clearly been evaluated and approved in a LUP, it is in conformance

with that LUP.

What if a proposed action has not been evaluated and approved in a LUP?

If the action contributes to LUP goals and is not inconsistent with the LUP = con-

formance.

If the action is not in conformance, determine if the action can be modified so as

to be in conformance.

If the action is not in conformance, amendment of the LUP to allow the action may

be desirable.

The action is not in conformance and does not warrant a LUP amendment.

Land Use Plans

Development of a LUP requires preparation of an EIS and the amendment of a LUP requires

preparation of either an EA or an EIS.

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91NAVIGATING NEPA

Figure 8-2: Land Use Plans

Proposal submitted BLM action defined

Is the action clearly provided for in the LUP?

Document LUP conformance.

Proceed with NEPA process.

Does the LUP DISALLOW the action?

Is the action consistent with goals/objectives of

the LUP?

Can the action be modified to conform?

Does the action warrant amendment of LUP?



Modify action.



Proceed with proposal to amend LUP and allow the

proposed action.

Initiate the NEPA analysis process. *

Drop proposal.

Yes

No

Yes

No

Yes

No

No

Yes

Yes No

* Refer to the BLM Land Use Planning Handbook (H-1601-1) for further guidance.


Resource Management Plan (RMP)

The Federal Land Policy and Management Act (FLPMA) of 1976 states that RMPs define broad,

multiple-use guidance for the management of public lands, including fluid mineral resourc-

es, and serve as an administrative protection for specified sensitive lands such as wilderness

areas. Additionally, RMPs typically are prepared in concert with an EIS.

Reasonably Foreseeable Development (RFD)

RMPs establish regional land use policy and present an estimate of reasonably foreseeable

future oil and gas development.

Typically the number of oil or gas wells anticipated for the subject region in the

coming 10- or 20-year period.

Plan of Development (POD)

PODs are required by RMPs to plan the development of oil and gas resources within the ap-

plicable region.

What if Future Actions Modify Those Contemplated in the Original EIS?

Supplemental EISs will vary in scope and complexity depending upon the nature of the pro-

posed changes or new information or circumstances. Supplemental EISs are prepared, cir-

culated, and filed with the same requirements as EISs, except that supplemental EISs do not

require scoping. A supplemental EIS may incorporate by reference the relevant potions of the

EIS being supplemented or may circulate the entire EIS along with the supplemental EIS.

EIS – Public Participation: What is the public’s role?

The scoping process, including efforts to involve the public in preparation of the EIS, needs

to be summarized. This includes describing the scoping meetings (when, where, how many,

topics), the major issues that arose during scoping if they have not been discussed in Chapter

1, and the comments received.

Public meetings or hearings are conducted to receive comments on the draft EIS. One must

maintain records of public meetings and hearings including a list of attendees (as well as

addresses of attendees desiring to be added to the mailing list) and notes or minutes of the

proceedings.

Note: Public comments usually take the form of opinion for or against the preferred alterna-

tive. Opinions do not need to be addressed in the final EIS nor do these opinions represent

a vote to persuade the decision. Good public comments take the form of identifying incon-

sistencies, suggesting additional studies to be reviewed as part of the analysis, providing

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93NAVIGATING NEPA

additional information regarding estimated impacts, and suggesting mitigation measures or

best management practices that could reduce impacts.

All comments must be given equal consideration regardless of who made them or how many

times the comment is received. Consequently, mass mailings by the membership of NGOs

have no more effect on the process than a single statement prepared by the NGO itself – it is

not a popularity contest.

Scoping

During scoping the public has the opportunity to comment on the proposed

federal action and identify issues to be addressed by the EIS.

EIS review

The public has the opportunity to comment on the Draft EIS.

The lead agency must consider all comments received. Contrary to popular opin-

ion, the number of responses concerning the same issue does not elevate the

level of importance given that comment.

NEPA Appeal

“According to case law, any decision based on a NEPA analysis that considers all relevant in-

formation and complies with the applicable procedural requirements as provided in the CEQ

regulations must be upheld.”

NEPA documents (EA, EIS, etc.) are not appealable – they are analytical docu-

ments.

Only the decision document (ROD) can be appealed.

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CHAPTER 9 - IMPACT ANALYSIS


97NAVIGATING NEPA

IMPACT ANALYSIS

Impact Analysis Overview

This section covers analyzing and describing the direct, indirect, and cumulative impacts

on the quality of the human environment of the proposed action and each alternative an-

alyzed in detail, including the no-action alternative. In analyzing the impacts, discussions

are needed on possible conflicts between the proposed action (and each alternative) and

the objectives of federal, regional, state, local, and Indian tribal land use plans, policies, and

controls for the area concerned. Additionally, the energy and natural or depletable resource

requirements and conservation potential of the proposed action and each alternative will

need to be described. Where applicable, analysis needs to be conducted on urban quality,

historic and cultural resources, and the design of the built environment, including the reuse

and conservation potential of the proposed action and each alternative. The magnitude of all

impacts should be determined and the risks associated with such impacts assessed.

Impact Analysis Triangle

The Impact Analysis Triangle shows the three key components

that must be described to accurately predict environmental

consequences. If any one side is missing, environmental im-

pacts cannot be assessed. The key component most often

forgotten is analysis data.

Analysis data is a statement drawn from research, profession-

al judgment, or other sources, depicting the environmental

effect that resulted when a given action was applied to a giv-

en set of environmental conditions. This statement serves as

the basis for predicting the impact expected when an action

being considered is applied to the affected environment.

Monitoring

It is recommended that monitoring be conducted to ensure that actions taken comply with

terms, conditions, and mitigation measures identified in the decision. Monitoring may identi-

fy underlying reasons for non-compliance. One must provide compliance monitoring where

mitigation measures are required.

While not required by NEPA, monitoring can be implemented to determine if the decisions

are achieving intended environmental objectives, and whether predicted environmental ef-

fects were accurate. This could include the validation of conceptual models and assumptions

used in the analysis.

Figure 9-1: Impact Analysis Triangle


If decisions are not meeting the purpose and need, or achieving desired outcomes, monitor-

ing may be used to identify necessary changes.

Monitoring has the following benefits:

To ensure compliance with decisions.

To measure the effectiveness or success of decisions and the accuracy of analysis.

To determine how to modify decisions if the purpose and need or desired out-

comes are not being achieved.

EIS – Impact Analysis

Impacts can be ecological (such as the effects on natural resources and on the components,

structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic,

social, or health. Impacts also may include those resulting from actions that may have both

beneficial and detrimental effects, even if on balance the agency believes that the effects

will be beneficial.

There are two broad categories of impacts that must be considered:

Physical/biological resources.

Human environment and management resources.

An issue differs from an effect; an issue describes an environmental problem or relation be-

tween a resource and an action, while effects analysis predicts the degree to which the re-

source would be affected upon implementation of an action. The term “effects” and “impacts”

are synonymous in the CEQ regulations (40 CFR 1508.8).

Physical / biological resources include:

Human environment and management resources include:

Air quality Cultural Resources

Climate Land Use

Geology Livestock Grazing

Groundwater Native American Concerns

Noise Indian Trust Assets

Paleontology Recreation

Soil Socioeconomic concerns

Surface water Environmental Justice

Vegetation Safety

Visual Solid and Hazardous Waste

Wilderness Transportation

Wildlife

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EIS – Impact Analysis – Signifi cance

Think of the description of the relevant, existing resources as a base map over which one

would lay maps that show the predicted effects of all the action alternatives—including the

effects of the status-quo (no-action) alternative.

These predicted effects are the potential future environmental condition and are meaning-

less without an established baseline. No valid comparisons would be possible, and thus no

sound decisions could be made.

Establishing a Baseline:

Describe the relevant, affected environmental (and socioeconomic, if relevant) re-

sources as they now exist and place it in Chapter 3.

Describe the actions of the status-quo (no-action) alternative and place it in

Chapter 2.

Predict the effects of the actions of the status-quo alternative on the relevant, af-

fected environmental resources and place it in Chapter 4.

If other federal, state, or local agencies, and the public have not been invited to participate

in the process, the analysis and documentation will not pass legal muster. NEPA case law

recognizes that experts and lay people might disagree with environmental predictions. NEPA

requires only that these disagreements be sought out and disclosed in the EISs or EAs. The

courts have not attempted to override EIS or EA predictions if they:

Have fulfilled all procedural provisions of Section 102 of NEPA.

Are qualified scientifically and technically to make the environmental predic-

tions.

Disclose honestly and fully the disagreements of experts regarding the predicted

effects.

Base the predictions on the best scientific information available.

Significant impacts must be given thorough evaluation whereas trivial issues may be listed

without further consideration. They are evaluated by:

Context: site only, local, regional, etc.

Intensity: severity of impact.

The CEQ regulations include the following ten considerations for evaluating intensity:

Adverse or beneficial.

Affect on public health or safety.

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Specific to the unique characteristics of the location.

Degree to which effects are likely to be highly controversial.

Is it highly controversial?

Uncertainty – unique or unknown risks.

Does it establish a precedent for future actions.

Individually insignificant by cumulatively significant.

Listed or eligible for NRHP or scientific, cultural, or historical sites.

Violation of federal, state, local, or tribal laws.

NEPA (40 CFR 15001.1(d)) requires agencies to identify “the significant environmental issues

deserving study and de-emphasizing insignificant issues, narrowing the scope of the envi-

ronmental impact statement” at an early stage of agency planning – i.e.: scoping

Impacts

EAs and EISs must analyze and describe the direct effects and indirect effects of the proposed

action and the alternatives on the quality of the human environment. When one is uncertain

which effect is direct and which is indirect, it is helpful to describe the effects together. Ef-

fects are weighted the same; one does not consider an indirect effect less important than a

direct effect in the analysis.

“Analyzing cumulative effects is more challenging than analyzing direct or indirect effects,

primarily because of the difficulty of defining the geographic and time boundaries. For ex-

ample, if the boundaries are defined too broadly, the analysis becomes unwieldy; if they are

defined too narrowly, significant issues may be missed, and decision-makers will be incom-

pletely informed about the consequences of their actions.” (CEQ, “Considering Cumulative

Effects Under the National Environmental Policy Act”) The following defines impacts:

Direct: caused by the action and occur at the same time and place.

Indirect: caused by the action but occur later in time or are farther removed in

distance but are reasonably foreseeable.

Cumulative Effects: typically lesser impacts which taken together have a com-

bined adverse effect – may include both direct and indirect impacts.

EIS – Short- and Long-term Impacts

It is recommend that time frames be established and described for each cumulative impact issue.

Defi ne long-term and short-term, and incorporate the duration of the effects anticipated. Long-

term could be as long as the longest lasting effect. Time frames, like geographic scope, can vary

by resource. For example, the time frame for economic effects may be much shorter than the time

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101NAVIGATING NEPA

frame for effects on vegetation structure and composition. Base these time frames on the duration

of the direct and indirect effects of the proposed action and alternatives, rather than the duration

of the action itself. Describe in the EA or EIS the rationale for the time frame established.

Time frames need to be defined for each impact issue by:

Short-term impact.

Long-term impact.

Irreversible

Those effects caused by the proposal that cannot be reversed because these effects are one-way

equations. Irreversible is perceived from our human time scale, not from a geologic time scale.

An example might be if the proposal is to develop an oil field on a portion of a fragile, wildlife

refuge, the changes to the refuge would probably be irreversible. The refuge would be irre-

versibly changed by roads, drilling rigs, and pipelines.

Irretrievable

Irretrievable effects are caused by an alternative that changes outputs or commodities of

the land’s use. These must not be one-way equations—the must be reversible. One should

explain irretrievable effects in terms of gains and losses of outputs or commodities of the

land’s use both in short- and long-term.

For example, if the proposal were to build six photographic platforms on a portion of a wild-

life refuge and to stop everyone from entering that portion of the refuge except those who

would operate the platforms for 2 years, the use of the refuge would be changed. For 2 years

the output of the visitors to that portion of the refuge would be irretrievably lost, but the

use of that portion of refuge to record undisturbed bird and animal behavior on the refuge

would be gained.

EIS – Mitigation Measures

The purpose of mitigation, whether it is in the form of an alternative or an action within an al-

ternative, is to avoid, minimize, or eliminate negative impacts on affected resources to some

degree. The various levels of mitigation give rise to alternatives having different impacts on

the affected resources.

Mitigation measures must be identified once a proposed action has been deemed

to result in significant impacts to the environment.

Mitigation is best achieved through the implementation of prevention technolo-

gies to avoid the occurrence of the impact rather than to remediate the adverse

result of that impact.

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Cumulative Impacts

Evidence is increasing that the most devastating environmental effects may result not from

the direct effects of a particular action, but from the combination of individually minor ef-

fects of multiple actions over time. Some authorities contend that most environmental ef-

fects can be seen as cumulative because almost all systems have already been modified, even

degraded, by humans. William Odum succinctly described environmental degradation from

cumulative effects as “the tyranny of small decisions.”

Cumulative Impact Steps:

Create a list of all actions associated with the proposal and alternatives.

Construct a “network” of direct and indirect effects that emanate from the pro-

posal and alternatives.

Determine which direct and indirect effects warrant an in-depth assessment of

cumulative effects (i.e., which effects could be significant and/or important to the

decision).

Make an initial estimate of those effects (quantitative and qualitative) from the

proposal for different spatial and temporal bounds.

Determine an initial extent for the spatial and temporal bounding for each envi-

ronmental resource affected by the proposal.

Inventory past, present, and reasonably foreseeable actions/disturbances within

the initial spatial and temporal bounds that overlap with the proposed action

and/or alternatives.

Construct a network of effects for the proposal with past, present, and reasonably

foreseeable actions within the initially established spatial and temporal bounds.

Estimate the effects (individually, collectively, and synergistically) of the past,

present, and reasonably foreseeable actions with the project’s spatial and tempo-

ral bounds (may require reiterating steps 6 through 8).

Estimate the incremental effects of the proposal and alternatives for multiple spa-

tial and temporal bounds and compare with the relative contributions from past,

present, and reasonably foreseeable actions.

Clearly document rationale used in all of the above, as needed.

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103NAVIGATING NEPA

Figure 9-3: Cumulative Impacts Flow Chart

EIS – Resource Impacts

Air Quality

Impact analysis would include topics such as topography, climate and meteorology, existing

air quality; types of modeling conducted, or if there is an existing monitoring network, as

well as the regulatory framework. In some cases, studies from outside the planning area are

included. For example, in a planning area in Montana, a coal review study was included to

demonstrate the potential impacts on ambient air and air quality-related values associated

with coal activities and future development.

Potential impacts to air quality may include:

Air pollutant emissions.

Dust.

Greatest risk during development construction and operations.

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List all past, present, reasonable future

actions/events within spatial/temporal bounds

Develop a network of effects with all actions

Document

List all actions in the proposal

Develop a network

Assess importantcumulative effects

Set initial spatial/temporal

Estimate Effects

Estimate Effects

Adjust bounds for complete effects analysis

Interpret incremental effects of the proposal in

context with other actions


Geological

Analysis for these resources might include topics such as regional geology, stratigraphy, sedi-

ments, conventional and unconventional oil and gas and coal, mineral materials, locatable

minerals, and geologic hazards. Presentation of the data is typically depicted on maps and

charts. If the planning area covers various regions, those will need to be described as well.

Potential impacts to geological resources may include:

Landforms.

Important geological features or localities.

Greatest risk during exploration and development construction.

Adverse impacts are typically irreversible.

Groundwater

Groundwater resources analysis would cover groundwater drawdown, water rights, existing

wells and springs, water management, injection wells, and public water supply.

Potential impacts to groundwater may include:

Extraction of water.

Injection disposal of saline waters.

Chemical impacts.

Greatest risk during development.

Noise

Some states have monitoring networks and have developed mitigation strategies, such as

noise blankets.

Potential noise impacts may include:

Disturbance to human life.

Disturbance to wildlife.

Duration.

Low frequency.

High frequency.


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105NAVIGATING NEPA

Paleontological

Paleontological resource analysis topics might include fossil-bearing rock, evidence of dinosaur

fossils, nominated and designated National Natural Landmarks for paleontological resources,

and evidence of ancient environments including shallow oceans, deltas, rivers, etc.

Potential impacts to paleontological resources may include:

Damage/destruction of important fossil sites.


Adverse impacts are typically irreversible.

Soil

Soil analysis should include a discussion on the types of soils, parent materials, physical and

chemical properties, as well as if any soils are irrigated and crops grown or if it is primarily

used for grazing livestock.

Potential impacts to soil may include:

Erosion.

Compaction.

Contamination.


Roads, pipelines, supporting utilities.

Well pads.

Tank batteries and processing facilities.

Surface Disturbance

Surface disturbances could include mining, various types of oil and gas operations (roads,

well pads, pipelines, etc.), lumber operations, power lines, telephone lines, recreational activi-

ties, and railroads.

Potential surface disturbance impacts may include:

Extent dependent on type of oil and gas operation.

Surface use plans.

Greatest risk during development construction.

Surface Water

Groundwater or hydrological resources analysis would cover oil and gas surface water dis-

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charges, surface water monitoring, water rights, existing wells and springs, water manage-

ment, managed irrigation, livestock/wildlife watering-feedlots, public water supply, and im-

poundments.

Potential impacts to surface water may include:

Quality.

Water chemistry.

Temperature.

Turbidity.

Quantity.

Withdrawals.

Discharges.

Channel morphology.

Altered flow regime.

Altered sediment load.


Reduced/removed vegetation.

Discharge of produced water.

Vegetation

In analyzing vegetation, researchers would look at topics such as plant communities (grass-

lands, shrublands, forests, riparian areas, other wetlands, and barren lands), noxious weeds,

and species of concern (federally listed and state species of concern).

Potential impacts to vegetation may include:

Disturbance.

Removal.

Introduction of noxious species.

Contamination of vegetation.


Visual

Visual resource analysis includes the visual features of the project area such as landform, wa-

ter, vegetation, color, adjacent scenery, uniqueness or rarity, structures and other man-made

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107NAVIGATING NEPA

features. There are four classes of visual resource management:

Class I-preserve the existing character of the landscape.

Class II-retain the existing character of the landscape.

Class III-partially retain the existing character of the landscape.

Class IV-provide for management activities that require major modifications

to the existing character of the landscape.

Non-federal land is not under any visual resource management system although there are

often visual quality concerns.

Potential impacts to visual resources may include:

Clearing of vegetation.

Construction of infrastructure.

Presence of operating equipment.


Wildlife

Wildlife impact analysis includes mammals, birds (waterfowl, raptors, upland game birds, neo-

tropical migrants), reptiles and amphibians, species of concern (BLM and Forest Service, state

critically imperiled and federal), any diseases transmitted (West Nile virus), state manage-

ment plans for conservation, wildlife surveys, aquatic resources, and special status species.

In Montana and Wyoming the sage grouse is a concern for developers of oil and gas. The

species is a BLM and Forest Service sensitive species and in the Powder River Basin, where a

SEIS for oil and gas development is being finalized, in-depth research has been conducted

on how oil and gas development could impact the mating, diet, and nesting habit of the sage

grouse. In the Montana SEIS, a section is included that describes the on-going research as it

relates to oil and gas development including studies that have been conducted. This data is

presented in maps and charts showing proposed buffer zones to crucial sage grouse habitat

areas.

Potential impacts to wildlife:

Disturbance due to activities – human presence.

Habitat alteration.

Habitat fragmentation.

Predation.

Increased competition for limited resources.

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Releases of chemical agents.

Can occur throughout the entire oil and gas exploration and production life cycle

from initial exploration to final field reclamation.

Environmental Justice/Injustice

An environmental injustice exists when members of disadvantaged, ethnic, minority, or oth-

er groups suffer disproportionately at the local, regional (sub-national), or national levels

from environmental risks or hazards, and/or suffer disproportionately from violations of fun-

damental human rights as a result of environmental factors, and/or are denied access to

environmental investments, benefits, and/or natural resources, and/or are denied access to

information; and/or participation in decision-making; and/or access to justice in environ-

ment-related matters. In some EAs or EISs this impact analysis might be included with Social

and Economic Values.

Potential impacts of an environmental justice nature may include:

Fair treatment of all peoples.

Meaningful involvement of all peoples.


Land Use

A variety of land uses could exist in the planning area, such as agricultural (crops and graz-

ing), roads and highways, railroads, utility rights-of-way for electrical power lines and tele-

phone, communication sites, oil and gas production and pipelines, residential, commercial

and light industrial uses, mining, municipalities, and recreation.

Potential impacts to land use may include:

Agricultural.

Industrial.

Residential.


Socioeconomic

Along with social and economic values, this section also may be where environmental justice

is discussed. This impact analysis would look at demographics (population, ethnicity, income,

poverty status), social organization (housing units and vacancy, temporary housing, public

services and utilities, attitudes, beliefs, lifestyles and values), and economics (employment,

unemployment, government revenue sources, oil and gas lease income, federal mineral rev-

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109NAVIGATING NEPA

enues, water resource values). Typically analysis of this data is presented historically with per-

cent change to current or most available current data. Social data is collected through pub-

lic comment letters received during the scoping process and past summaries from related

documents. If an area is just beginning oil and gas development, there might be resistance to

the incoming work force and the locals may consider them “outsiders”. Long-term residents

often resent these “outsiders” while at the same time realizing some economic benefits from

the business and service demands of these newcomers.

Potential socioeconomic impacts may include:

Attitude of residents.

Cost of living.

Rapid community population growth.

Stress on community services.

Safety issues.

Solid and hazardous wastes.


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111NAVIGATING NEPA

REFERENCES/SUGGESTED READING

ALL, 2007. Improving Access to Onshore Oil & Gas Resources on Federal Lands. Prepared for

IOGCC. Prepared by ALL Consulting. Dated March 2007.

ALL, 2008. Use of Categorical Exclusions and Adaptive Management to Facilitate Environ-

mental Review Prior to Oil and Gas Development of Federal Leases. Prepared by ALL Consult-

ing. Dated March 2008.

BLM, 2008. National Environmental Policy Act Handbook. BLM Handbook H-1790-1. Dated

January 30, 2008.

BLM, 1996. Overview of BLM’s NEPA Process. National Training Center Course No. 1620-02.

BLM, 2005. Instruction Memorandum No. 2005-247, National Environmental Policy Act Com-

pliance for Oil, Gas, and Geothermal Development.

BLM. Undated. Energy Policy Act of 2005 Section 390 Categorical Exclusions.

CEQ, 2003. The NEPA Task Force Report to the Council for Environmental Quality – Modern-

izing NEPA Implementation.

CEQ, 2007. Collaboration in NEPA – A Handbook for NEPA Practitioners.

DOI, 2004/2005. Department Manual Part 516, National Environmental Policy Act of 1969;

various chapters.

DOI, 2004b. Department Manual Part 516, National Environmental Policy Act of 1969, Chap-

ter 11, Managing the NEPA Process – Bureau of Land Management.

FS, 2007a. National Environmental Policy Act Documentation Needed for Oil and Natural Gas

Exploration and Development Activities (Categorical Exclusion). Federal Register Vol. 72, No.

31, dated February 15, 2007.

U.S. EPA NEPA Basic Information at - http://www.epa.gov/compliance/basics/nepa.

html#process

The Interstate Oil and Gas Compact Commission is a multi-state government agency that promotes the conservation

and efficient recovery of our nation’s oil and natural gas resources while protecting health, safety and the environ-

ment.

The IOGCC consists of the governors of 37 states (30 members and seven associate states) that produce most of the oil

and natural gas in the United States, as well as seven international affiliates. Chartered by Congress in 1935, the organi-

zation is the oldest and largest interstate compact in the nation.

The IOGCC assists states in balancing interests through sound regulatory practices. These interests include: maximiz-

ing domestic oil and natural gas production, minimizing the waste of irreplaceable natural resources, and protecting

human and environmental health.

The IOGCC also provides an effective forum for government, industry, environmentalists and others to share informa-

tion and viewpoints, allowing members to take a proactive approach to emerging technologies and environmental

issues. For more information visit www.iogcc.state.ok.us or call 405-525-3556.

About the material: This publication was prepared with the support of the U.S. Department of Energy under award number DE-

FC26-04NT1554. However, any opinions, fi ndings, conclusions or recommendations expressed herein are those of the author(s)

and do not necessarily refl ect the views of DOE.

“Navigating NEPA: An Oil & Gas Focused Training Program” was developed based upon work entitled Ïmproving Access to Onsore

Oil & Gas Resources on Federal Lands,” which was directed by the IOGCC and submitted to the IOGCC by ALL Consulting.

P.O. Box 53127Oklahoma City, OK 73152405.525.3556 (phone)www.iogcc.state.ok.us

©2008 Interstate Oil & Gas Compact Commission

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