Why NEPA Docs are Long… Example of Agency Comments (EPA)

I would bet if you examined agency comments from the agencies involved in reviewing NEPA docs for actions proposed by other agencies, you would find almost entirely “you need to do more’s” and not many “you could have shortened this section by leaving out’s”. Culturally, reviewers tend to be supporting their agency’s view, or a specific resource/interest, or both. If the reviewer couldn’t add something of importance, it would bring into question if the reviews are really necessary (this is a human characteristic true of any kind of review).

To paraphrase the old expression about a picture, an example is worth a thousand words. I ran across this letter from EPA in 2010 about a garden variety vegetation management project. You may think that some of this detail is unnecessary to inform the decision maker and the public about the alternatives, or the analysis is speculative, or the answers fundamentally unknowable in any meaningful sense. Nevertheless, if someone says you should, you have to answer why not, and the judge might not agree. Still, the worst that happens is the judge tells you to do something, and once that is on the table, through the next iteration the finish line is in sight :).

Here’s a link to the letter. It says it’s an exhibit, so may have been in a legal case. You can pick any topic and see that EPA thinks that more is better (more baseline data, more analysis, more monitoring). There’s nothing wrong with their having opinions, but they only tend to go in one direction (more is better). This is one reason environmental docs, especially EIS’s, tend to be long.

Prescribed Fire: The action alternatives of the Big Moose Vegetation Management Project include the application of prescribed burning to acreage varying from 1,263 to 6,000 acres, depending on the alternative. This significant prescribed fire activity may cause degradation of air quality and visibility in the region. While we realize that the individual burn plans for this project would quantify expected emissions from the prescribed burns, EPA is concerned that the DEIS does not contain any air impact analysis presenting direct, indirect, or cumulative air quality impacts that would be associated with prescribed burning on the large acreage under consideration. Such information should be included in the Final EIS and is necessary for the decision-maker to ensure protection of air quality and visibility if the prescribed burns are ultimately conducted.

and part of the letter on climate change

The Final EIS should discuss reasonable alternatives and/or potential means to mitigate or offset the GHG emissions from the action. We understand that the action is intended to mitigate the likelihood of future stronger and potentially wide-ranging wildfires in the area.
Nevertheless, the Final EIS should discuss whether there are any reasonable alternatives or means to mitigate GHG emissions associated with the proposed action (e.g., would GHG emissions be reduced with alternatives that entail the harvest but omit the prescribed burning proposed under Alternatives 3 and 4?). (My italics- an alternative that doesn’t include PB but only MTs)

Further, EPA recommends that the “Affected Environment” section of the Final EIS include a brief summary of the ongoing and projected climate change impacts relevant to the action area, based on U.S. Global Change Research Program assessments and other relevant peer-reviewed studies. In addition, EPA recommends that the Final EIS identify any potential need to adapt the proposed action to ongoing and projected regional climate change, as well as any potential impacts from the proposed action that may be exacerbated by climate change. For example, how might ongoing and predicted climate change affect the viability of the DEIS goal of promoting aspen regeneration in this area? With regard to exacerbation of impacts, how might climate change exacerbate the water quality and other impacts from this proposed action?

This should give folks who have not been there a taste for “how docs get long” :).

11 Comments

  1. Interesting example. My experience with EPA comments has been that they usually focus on water quality-related items being adequately disclosed – and usually that has been right on and very easy to add on a few sentences as needed. But when I was doing a lot of NEPA work I worked in an area with lots of streams/rivers that exceeded temperature thresholds.

    But a more worrisome trend to me these days is that with the large projects being analyzed that on some ID Teams, they are being told that they will not be allowed to do detailed field work to save time and that this is because the line officer feels that they can take more risk in this area. I think that something like that is easier to do with more experienced resource specialists, but I get a lot of folks asking me how to do that if they have only been on that district/forest for a year and they only finished school a few years ago. It’s an interesting approach and may have some merit, but it is challenging to do with fairly new, inexperienced people who don’t necessarily have enough experience to be able to explain what the risks are to their line officer.

    • Developing the experience to be a good resource specialist, starting from school, I thought was the responsibility of that “resource specialist” group- mentoring, etc. Is that not happening? Did too many experienced people leave at once? Are the more experienced folks too busy?

      • On the more remote districts, that mentoring can be very difficult to do – the folks on the forest with more experience are too busy and located elsewhere, and too many experienced people have left. So, it is often the case that a district (or zone) might have 1 silviculturist, 1 wildlife biologist, etc. and they have all been out of school less than 5 years. They are very capable and competent folks, but just don’t have someone available locally to help them. And the forest biologist or the forest silviculturist is supposed to be working with them, but those folks are trying to fill in where there are vacancies or those forest-level jobs are vacant and there aren’t enough good applicants to fill the positions as quickly as the forest would like – these are just some of the things that I have experienced lately. The hiring freeze has really hit hard. But right now some of those positions are getting filled.

        One thing that is happening right now is the ACES program – the FS got the authority to use it in the 2014 Farm Bill. NRCS has been doing this for quite some time. The WO wanted to do a pilot test, and the WO Forest Management folks were the ones who stepped forward and mentioned that there is a dire need for silviculture and sale administration mentoring. The ACES program allows the FS to write job descriptions to bring back experienced folks who are over 55 years old – they are hired by a non-profit older worker organization, so it doesn’t affect their annuity if they are a former government employee. The FS has been bringing on these mentors since late July/early August. Region 1 has about 10 or so hired right now and other regions have others coming on as well. So, that is just getting started, but the agreement with the non-profit ends on April 30, 2018. And the WO funded this first round, but no one is certain right now how much funding (either from the WO or locally) will be available to fund it past April 30.

        • Thanks M of T! One of my other volunteer gigs is with a FS retiree group, so I was thinking that bringing back retirees, either as volunteers or paid, would be a possibility. there’s something wonderful on the “old person” side about sharing what we know and teaching the young. It helps us keep up and feel valued, and also helps the younger. I really like the idea that it’s all about supporting the person to be better at what they do. Their supervisors and others have so many other claims on their time..doing their own work and keeping up with crises.

          I wonder whether NAFSR might talk to the Powers that Be to support that program, as well as the professional societies…

  2. I think this example of EPA questions about air quality is reasonable for prescribed burning, but maybe the point is that documents are long because NEPA requires a “detailed statement” (that’s from the law itself). Here is what the CEQ regulations say about what should be included (notice the attention to what should NOT be included):

    §1502.1. The primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government. It shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. Agencies shall focus on significant environmental issues and alternatives and shall reduce paperwork and the accumulation of extraneous background data. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses.

    §1502.2. To achieve the purposes set forth in § 1502.1 agencies shall prepare environmental impact statements in the following manner:

    (a) Environmental impact statements shall be analytic rather than encyclopedic.

    (b) Impacts shall be discussed in proportion to their significance. There shall be only brief discussion of other than significant issues. As in a finding of no significant impact, there should be only enough discussion to show why more study is not warranted.

    (c) Environmental impact statements shall be kept concise and shall be no longer than absolutely necessary to comply with NEPA and with these regulations. Length should vary first with potential environmental problems and then with project size.

    • Also remember that each agency has its own NEPA regs, policies and directives, and standards. Oh, and don’t forget about executive orders. The cumulative effect of all of this direction is, IMHO, one of the main contributors of long NEPA docs and complicated NEPA procedures.

    • Jon, you are getting started in the convo that I mentioned before that was frequent for the Interagency NEPA group…
      CEQ- regs are fine, what’s the prob? (yes, the regs are fine).
      Agencies- Letters from other federal agencies, and judges often require more. That’s why we do it, not because we disagree with the ideals of the regs.

      But just take the example of the climate “extras” asked for by EPA above..
      “For example, how might ongoing and predicted climate change affect the viability of the DEIS goal of promoting aspen regeneration in this area? With regard to exacerbation of impacts, how might climate change exacerbate the water quality and other impacts from this proposed action?” That’s apparently analytic to them (otherwise they’re not reviewing according to the NEPA regs, which I think is why the EPA reviews these docs), encyclopedic to me.

      What kind of conflict resolution mechanism would there be to deal with this disagreement before courts? If I were a powerful person and trying to make NEPA docs more streamlined, I’d get a team of knowledgeable NEPA people with someone from CEQ in the group to handle interagency conflicts about the detail of documentation, with the ultimate authority being the interpretation of CEQ regs. Then when the court case happened, use the discussion about the CEQ regs as part of the material in the case. Then you could start to see whether/if the courts are interpreting things differently. If they do, Congress could amend NEPA (big political problem but still…)

      Sometimes you have to be in the weeds yourself to be motivated to find a way out.

      • Sharon – These examples relate to cumulative effects. Nothing new there, and reasonable things to consider (which is all that NEPA requires, so I think CEQ would agree). To me, “encyclopedic” means not relevant to the decision. These things are relevant. Judges don’t require “more;” they just clarify what the law is (and I think that is generally true for agencies with responsibility to implement the law).

        (by the way the blog’s notification feature isn’t working for me – happened once before but seemed to fix itself – but if I don’t respond …)

  3. ” You may think that some of this detail is unnecessary to inform the decision maker and the public about the alternatives, or the analysis is speculative, or the answers fundamentally unknowable in any meaningful sense.” This sage quote by Sharon, especially the last two possibilities encapsulates the basic flaw in the whole legalistic aspects of the EIS process. Planners attempt to deal with an unknowable future. Attempting to the define the details of that future (which is what many (most) comments ask the planners to do) is an impossible task. A judge mandating it accomplishment does not make it more possible. However, such a mandate does does result in days wasted in front of the computer, field work not done, acres left untreated, timber not harvested, and jobs lost (but, on the bright side more chargeable hours for the legal staff of litigants).

  4. Looks like (as of September 7th) that the Forest Service is proposing to revise their NEPA manual and handbooks to emphasize the need to focus the analysis and to not treat CEs and EAs like EISs….no page limits so far…

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