NEPA

Forest Service Categorical Exclusion 25

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Here’s where the list of CEs are for those curious. Somehow in all the discussion of Cat 6, I missed this one (which does have an acreage limit).

Update: It was one of the 2020 administrative CEs established based on the EADM effort via a rulemaking here.

On January 3, 2018, the USFS published in the Federal Register an Advance Notice of Proposed Rulemaking (83 FR 302) associated with the Agency’s Environmental Analysis and Decision Making (EADM) change effort. On June 13, 2019, the USFS published the proposed rule to update the Agency’s NEPA procedures, including several proposed CEs (80 FR 27544). In response to public comments on the proposed rule, some of the proposed CEs were modified or deleted. The CEs outlined in this document reflect those modifications and the CEs being established in the final rule.

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25) Forest and grassland management activities with a primary purpose of meeting restoration objectives or increasing resilience. Activities to improve ecosystem health, resilience, and other watershed and habitat conditions may not exceed 2,800 acres.
(i) Activities to meet restoration and resilience objectives may include, but are not limited to:
(A) Stream restoration, aquatic organism passage rehabilitation, or erosion control;
(B) Invasive species control and reestablishment of native
species;
(C) Prescribed burning;
(D) Reforestation;
(E) Road and/or trail decommissioning (system and non-system);
(F) Pruning;
(G) Vegetation thinning; and
(H) Timber harvesting.
(ii) The following requirements or limitations apply to this category:
(A) Projects shall be developed or refined through a collaborative process that includes multiple interested persons representing diverse interests;
(B) Vegetation thinning or timber harvesting activities shall be designed to achieve ecological restoration objectives, but shall not include salvage harvesting as defined in Agency
policy; and
(C) Construction and reconstruction of permanent roads is limited to 0.5 miles.
Construction of temporary roads is limited to 2.5 miles, and all temporary roads shall be decommissioned no later than 3 years after the date the project is completed. Projects may include repair and maintenance of NFS roads and trails to prevent or address resource impacts; repair and maintenance of NFS roads and trails is not subject to the above mileage limits.

Big FS Win! Ninth Circuit Upholds Category 6 Lack of Acreage Limitation; Builds on Previous Case

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Given the discussion about acreages in the Fix our Forests Act (I’ll continue the series; when I agreed to look at it I didn’t realize that it was the Mother of All Forest Bills), I thought this was weirdly timely, serendipitous, synchronistic or whatever..from AFRC yesterday.

Shout-out to the Fremont-Winema (who has a person answering the phone), the Region and WO, OGC and DOJ, for swinging for the stands! And it looks like, for the Bear Wallow Project, the Oregon Department of Forestry, and a  contract NEPA firm that deserves a shout-out as well.

I remember our view during my time period in NEPA was “don’t have too many acres as someone will litigate and we will lose the CE.” So it took some courage and good work all the way along to carry it through.  And of course, some luck (it’s a crapshoot, as my colleague JR used to say).

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For those of a political science bent, it is interesting that a policy that the Biden Admin apparently did not support in Congress (as to larger acreages) was supported by DOJ in defending the FS. I would guess the Admin didn’t have to appeal the lower court ruling, but did?  I wonder how all that worked between various parts of the Admin. Was the appeal horse out of the barn? Did DOJ not ask for permission from whomever??? If anyone knows, please email me. We are all curious about how our government works.

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Today the American Forest Resource Council (AFRC) announced a significant legal victory in the U.S. Court of Appeals for the Ninth Circuit concerning three critical forest management projects—Baby Bear, Bear Wallow, and South Warner—on the Fremont-Winema National Forest.

The Ninth Circuit upheld the U.S. Forest Service’s use of the timber stand and/or wildlife habitat categorical exclusion (CE-6) under the National Environmental Policy Act (NEPA), rejecting the claims made by Oregon Wild and WildEarth Guardians that CE-6 has an implied acreage limitation.

The plaintiffs challenged the projects, which cover a total area ranging from 3,000 to 16,000 acres of commercial thinning, on the grounds that the Forest Service had misused CE-6. They argued that the categorical exclusion should not apply to “large-scale” projects like these.

However, the Ninth Circuit ruled that CE-6 contains no acreage limitation, affirming that the Forest Service appropriately applied CE-6 to improve forest stand conditions and wildlife habitat, in compliance with both federal law and NEPA regulations.

AFRC participated in the litigation as amicus, both at the district court and appellate levels.

“The Court reaffirmed that CE-6 can be used for projects of this scale, ensuring that vital forest management efforts can proceed without the unnecessary delays of extended environmental reviews. This ruling allows these projects to continue their important work in maintaining healthy forests and reducing the risk of catastrophic wildfires,” said AFRC General Counsel Sara Ghafouri.

The Court’s decision also follows precedent from the Mountain Communities for Fire Safety v. U.S. Forest Service case, which upheld CE-6 as applicable for timber stand improvements, reinforcing that commercial thinning and other forest health projects can be expedited under this exclusion.

The Baby Bear, Bear Wallow, and South Warner projects are essential to improving forest resilience and wildlife habitat across the Fremont-Winema National Forest. They allow for commercial thinning without herbicide use and with minimal road construction, all within the legal framework of CE-6. The ruling ensures that these projects will not face additional legal obstacles, paving the way for sustainable forest management practices to continue without delay.

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For those interested, here is some background on the Bear Wallow Project from the Oregon Department of Forestry.

The restoration prescriptions on the Bear Wallow Project will create openings by removing lodgepole pine and white fir from within 30 feet of mature ponderosa pines and 100 to 200 feet from aspen stands. The prescriptions will retain all trees 21 inches or greater in diameter those within a 75 feet buffer of streams.

Here’s how folks worked together and the history of the stands, it appears to be a GNA project.

CASE STUDY: The FFR Program and Bear Wallow Project Area The Bear Wallow Timber Stand and Wildlife Habitat Improvement Project is a forest restoration project on the Fremont Winema National Forest, just south of La Pine, Oregon, bordering the Gilchrist State Forest. Developed as a collaboration between the Fremont Winema National Forest, Oregon Department of Forestry, and the Klamath-Lake Forest Health Partnership, this project serves as an interesting example of the FFR Program’s use of the Good Neighbor Authority (GNA) to accelerate the pace and scale of restoration on federal forest lands.

During the 2019-2021 Oregon State Biennium, FFR Program involvement in Bear Wallow began with a Planning Assistance Categorical Exclusion (PACE) grant to invest $100,000 in contract NEPA planning in the Sugarpine project area. This resulted in two commercial restoration projects generating over $2.7M in revenue. The state then used this funding to accomplish additional non-commercial restoration within these project areas and to complete surveys and planning for two additional NEPA project areas: Bear Wallow and Sun Pass.

The Bear Wallow project comprises about 17,000 acres of National Forest, approximately 40 percent of which is former Industrial Timber lands, some of which were heavily logged prior to Forest Service acquisition from Shevlin-Hixon Lumber Company in 1943.  Fire suppression and the lack of other active management has resulted in dense mixed conifer encroachment (mainly lodgepole pine), raising fire hazard and creating competition with more desirable species, such as ponderosa pine and aspen.
The project intends to improve habitat for wildlife and increase wildfire resilience by thinning less-desirable trees. The restoration prescriptions on the Bear Wallow Project will create openings by removing lodgepole pine and white fir from within 30 feet of mature ponderosa pines and 100 to 200 feet from aspen stands. The prescriptions will retain all trees 21 inches or greater in diameter those within a 75 feet buffer of streams.

Conifer infill began soon after the historical logging of ponderosa pine in the Bear Wallow project area. As a result, many of the trees that require thinning are of commercially desirable size. Through the use of the GNA, the ODF’s FFR Program plans to advertise and administer commercial thinning projects within the project area. Recent FFR Program GNA commercial projects have been purchased by local businesses such as Gilchrist Forest Products LLC, which produce building materials from ponderosa and lodgepole pine. Revenue from these commercial sales will be directed toward additional restoration needs within the project area and potentially elsewhere on the Fremont Winema National Forest.

This looks like the bid request for the NEPA contract, apparently contracted through the State.

I have asked the Forest for a photo of the forest conditions described in the ODF writeup, so stay tuned on that.

Condition-Based NEPA: PERC Files Amicus Brief on Twisp Restoration Project

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PERC used this photo, I don’t know where it was taken.
Somehow I missed this until today. Our friends at PERC filed an amicus brief in this case.

I won’t let this opportunity go by without linking to the Forest Service’s own document describing CBM since they did such good work on it.

Anyway, back to PERC’s argument. If you go to the link above, you can find the full text of the amicus brief.

Summary of the Argument
Forests are not static but complex and living ecosystems. Planning for forest restoration must be equally dynamic and flexible. In this case, however, North Cascades Conservation Council (NCCC) seeks to impose unnecessary and impractical constraints on the Forest Service’s ability to restore forests while complying with NEPA.

NCCC challenges the Twisp Restoration Project, which would restore forest and watershed health, improve wildlife habitat (including for northern spotted owl, lynx, gray wolves, and mule deer), and reduce wildfire risks. NCCC objects to the Forest Service’s use of “condition-based management” to fit the projects’ restoration activities to forest conditions during implementation.

Under condition-based management, the agency authorizes restoration activities in an area but limits their implementation based on local, on-the-ground conditions. For instance, the Forest Service may authorize mechanical thinning to reduce insect and disease threats in an area vulnerable to such threats, but only allow it to go forward within a certain distance of an outbreak. Or it may authorize thinning to address overly dense forest conditions, but limit that activity to areas meeting conditions for slope, density, etc., and, within those areas, limit the extent of thinning based on the degree to which tree density departs from desired conditions. This allows the agency to document and understand the environmental impacts of its restoration work while narrowing implementation in light of on-the-ground conditions.

Condition-based management is “a method to meet NEPA’s requirements, not to avoid or shortcut them.” NCCC, however, asserts that this approach is never permissible under NEPA. Instead, it claims the Forest Service must predict exactly “which trees will be cut, how, [and] when,” which would demand of the Service an impracticable level of foresight that is contrary to this Court’s cases.

Forest conditions vary even within a single unit of analysis and, further, may change during the years that pass between an environmental analysis and on-the-ground work. Therefore, condition-based management provides necessary but limited flexibility to meet the Forest Service’s obligations to conserve forests while also complying with NEPA. The consequences of taking away this flexibility would extend far beyond this case, undermining the Forest Service’s ability to address an 80-million-acre backlog in forest restoration and tackle the wildfire crisis. The district court’s holding that condition-based management is a lawful way for the Forest Service to comply with NEPA should be affirmed

I didn’t read the brief, if anyone finds something interesting, please put it in the comments and we can discuss.

Bipartisan Policy Center’s Summary of Manchin-Barrasso Permitting Reform Bill: Some Provisions of Interest

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I promised to find a comprehensive description of the Manchin-Barrasso bipartisan permitting bill when the dust had settled and the permitting reform folks had time to analyze it.  The Bipartisan Policy Center does good work on permitting reform, and sure enough, they have a comprehensive report on it, helpfully titled “the Energy Permitting Reform Act of 2024: What’s in the Bill.”.

The Energy Permitting Reform Act of 2024 (EPRA) presents a crucial opportunity to accelerate and streamline the energy infrastructure permitting process that is vital for the U.S. to ensure affordable, reliable energy while reducing emissions.

As with all compromise bills, stakeholders will probably like many provisions but dislike others. Luckily for those on both sides of the aisle, the legislation has more to like than to dislike.

If you care about:

energy affordability and reliability, the leasing and transmission provisions will help achieve that
supply chains for clean technology, the mining provisions will help accomplish that
reducing emissions, the provisions on transmission, geothermal resources, and renewables, along with the categorical exclusions, will help with that
project certainty across the board, the judicial review provisions are important
This explainer summarizes the key provisions in the EPRA and contextualizes their importance.

There’s a great deal in the BPC report, including many details of interest to the FS and BLM. Folks may be interested in:

Judicial Review
Judicial review allows individuals and groups to legally challenge federal actions, including agency decisions on permits and siting under federal law. Under current law, aggrieved parties can file lawsuits for up to six years after an agency makes final permitting decisions on energy projects. This creates a legal limbo that drives up costs, even if developers ultimately prevail in the legal challenges, as is usually the case. Both fossil and renewable projects face these legal challenges; in fact, a recent study found that solar projects face the highest litigation rate. EPRA contains three major provisions concerning judicial review:

Reduced Statute of Limitations (Section 101): Reduces the deadline from six years to 150 days (five months) for filing lawsuits against an agency action approving or denying the permitting of an energy or mineral project. This change will help reduce uncertainty, so project developers know if they have a final yes or no to proceed. The tighter deadline is on the aggressive, but reasonable, side of what members of Congress have been considering. It is shorter than the two-year deadline that exists for transportation projects but longer than the 90-day deadline proposed in the GOP’s energy and permitting bill, H.R. 1, the Lower Energy Costs Act. That bill passed the House in 2023 in a 225-204 vote.
Deadline on Agency Remand (Section 101): Directs courts to set a time limit for an agency to act on a remand—when a court sends a decision back to an agency for further consideration or when a judge vacates a permit—not to exceed 180 days (six months). Federal agencies currently face no deadline to act, so this provision provides greater certainty.
Expedited Review (Section 101): Requires courts to prioritize cases reviewing an agency permitting decision for an energy or mineral project, moving the case up the docket.
Combined, these three judicial review provisions will modestly increase timeline certainty for energy and mineral projects. Broader changes concerning judicial review would fall under the jurisdiction of the Senate Environment and Public Works Committee rather than the Energy and Natural Resources Committee.

This bill is only for energy projects, but this intervention might be helpful for fuel treatment projects.

Deadline on Agency Remand (Section 101): Directs courts to set a time limit for an agency to act on a remand—when a court sends a decision back to an agency for further consideration or when a judge vacates a permit—not to exceed 180 days (six months). Federal agencies currently face no deadline to act, so this provision provides greater certainty.
Expedited Review (Section 101): Requires courts to prioritize cases reviewing an agency permitting decision for an energy or mineral project, moving the case up the docket.

I don’t know whether judges would go along with the expedited review.. seems sort of separation of powers-ish. But the Senate has access to many wise and knowledgeable attorneys so..

Combined, these three judicial review provisions will modestly increase timeline certainty for energy and mineral projects. Broader changes concerning judicial review would fall under the jurisdiction of the Senate Environment and Public Works Committee rather than the Energy and Natural Resources Committee.

I figured I’d pick out some new CEs envisioned by the bill.

Transmission CE

Categorical Exclusions for Certain Transmission Activities (Section 209): Directs DOI and the Department of Agriculture (USDA) to create new categorical exclusions for the following activities related to transmission: building transmission facilities within rights-of-way corridors; upgrades to existing transmission and grid infrastructure within rights-of-ways or on previously disturbed land; and deployment of energy storage technologies on previously disturbed lands. These categorical exclusions currently exist at DOE but not at DOI or USDA, which are more often responsible for reviewing projects in need of the exclusions. Sharing relevant categorical exclusions across agencies was a key recommendation in BPC’s Smarter, Cleaner, Faster Infrastructure Task Force Report, The Role of Categorical Exclusions in Achieving Net Zero.

Geothermal CE

Geothermal Categorical Exclusions (Section 208): Directs DOI and USDA to adopt categorical exclusions under NEPA for the exploration of geothermal resources on federal lands. This measure codifies and expands BLM’s recent actions and adds parity to oil and gas categorical exclusions in existing statute.

I thought this aside was interesting.

Some environmentalists will be concerned about the revised schedules for oil and gas leasing. It is important to note, however, that increased domestic oil production does not necessarily translate to increased global oil production, just as reduced domestic oil production does not necessarily lead to reduced global oil production. It is a global market, and other countries ramp production up or down in response to the basic economic law of supply and demand.

This seems like an important point that sometimes gets lost. We might expect this topic to heat up (again) as the election nears.

The Vital Role of Categorical Exclusions in Forest Restoration Projects: Hannah Downey

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Here’s the link to Hannah’s paper:

Large and destructive wildfires are becoming more common across the West. Although several factors contribute to this trend, the declining health of our nation’s forests is a primary cause. Our forests are filled with excess dead and dying trees, brush, and other fuels—to the point where an area larger than the state of California is in need of restoration. Removing those fuels through mechanical thinning and prescribed fire are urgently needed to reduce wildfire damage and promote forest resilience. A new meta-analysis published in the journal Forest Ecology and Management found that combining mechanical thinning with prescribed burns reduces the severity of subsequent wildfires in an area by 62-72 percent.

The Forest Service heavily depends on categorical exclusions to help get work done. In an appearance before the U.S. House Natural Resources Committee earlier this month, Forest Service Chief Randy Moore emphasized that 87 percent of the agency’s NEPA compliance is done through categorical exclusions.

To be fair, we need to compare apples (fuels projects) to apples, not oranges (CE’s for administrative site renovations or renewing outfitter guide permits or…)

The Lawsuit

Recently, however, the Ninth Circuit Court of Appeals—which oversees Montana and other Western states—ruled to limit the use of categorical exclusions. In Friends of the Inyo v. United States Forest Service the Court held that the Forest Service cannot use categorical exclusions to approve a project unless the entire project fits in a single categorical exclusion. This decision could severely hamper the Service’s ability to conduct forest restoration work as the agency routinely cites multiple categorical exclusions for bigger projects that combine more or more needed actions.

The Impact

Amidst current frustrations over how slow forest restoration activities take place, the process will get even more cumbersome and tangled with this new ruling. For example, PERC researchers found it takes an average of 3.6 years for treatment to begin on a prescribed burn project when a CE is issued. This timeframe extends to 5.6 years when an Environmental Assessment (EA) is conducted and further increases to 7.2 years when an Environmental Impact Statement (EIS) is used. Without the use of CEs, our forests face a significant risk of being destroyed in catastrophic fires while awaiting for a project approval.

Conclusion

The hopeful news is that policymakers in Congress are working to expand the benefits of categorical exclusions. The Farm Bill proposal from the House of Representatives includes policies to expand categorical exclusions focused on healthy forests and reduced wildfire risk to 10,000 acres. The bipartisan Fix Our Forests Act would similarly expand categorical exclusions and reduce litigation over forest projects.

Here’s what Fix Our Forests Act says about litigation reform (sorry about the formatting).

(a) IN GENERAL .—A court shall not enjoin a fireshed3
management project if the court determines that the plain-4
tiff is unable to demonstrate that the claim of the plaintiff5
is likely to succeed on the merits.6
(b) BALANCING SHORT – AND LONG -TERM EFFECTS7
OF FIRESHED MANAGEMENT ACTIVITIES IN CONSID -8
ERING INJUNCTIVE RELIEF .—As part of its weighing the9
equities while considering any request for an injunction10
that applies to any agency action as part of a fireshed11
management project, the court reviewing the agency ac-12
tion shall balance the impact to the ecosystem likely af-13
fected by the fireshed management project of—14
(1) the short- and long-term effects of under-15
taking the agency action; against16
(2) the short- and long-term effects of not un-17
dertaking the action.18
(c) LIMITATIONS FOR INJUNCTIVE RELIEF AND RE -19
MAND .—20
(1) IN GENERAL .—Notwithstanding any other21
provision of law, a court shall not vacate or other-22
wise limit, delay, stay, or enjoin a fireshed manage-23
ment project unless the court determines that—24
36
(A) the fireshed management project will1
pose a risk of a proximate and substantial envi-2
ronmental harm; and3
(B) there is no other equitable remedy4
available as a matter of law.5
(2) R EMAND .—6
(A) IN GENERAL .—Notwithstanding any7
other provision of law, if a court determines8
that a fireshed management project will not9
pose a risk of a proximate and substantial envi-10
ronmental harm—11
(i) the court may remand the fireshed12
management project to the applicable13
agency with instruction to correct (includ-14
ing specific directions) the errors or defi-15
ciencies within 180 days; and16
(ii) an activity under the fireshed17
management project may be carried out so18
long as such activity does not affect the er-19
rors or deficiencies described in clause (i).20
(B) REVIEW .—Unless the court finds that21
the applicable agency entirely failed to prepare22
a required environmental assessment or envi-23
ronmental impact statement, on remand—24
37
(i) the court shall not require such1
agency to prepare a new environmental as-2
sessment or environmental impact state-3
ment; and4
(ii) such agency may use another for-5
mat, including a memorandum or errata6
sheet, to document any new analysis re-7
quired.8
(d) LIMITATIONS ON CLAIMS .—Notwithstanding any9
other provision of law, a claim arising under Federal law10
seeking judicial review of a fireshed management project11
shall be barred unless—12
(1) with respect to an agency document noticed13
in the Federal Register, such claim is filed not later14
than 120 days after the date of publication of a no-15
tice in the Federal Register of agency intent to carry16
out the fireshed management project, unless a short-17
er period is specified in such Federal law;18
(2) in the case of an agency document not de-19
scribed in paragraph (1), such claim is filed not20
later than 120 days after the date that is the earlier21
of—22
(A) the date on which such agency docu-23
ment is published; and24
(B) the date on which such agency docu-1
ment is noticed; and2
(3) in the case of an authorization or action for3
which there was a public comment period, such4
claim—5
(A) is filed by a party that—6
(i) participated in the administrative7
proceedings regarding such fireshed man-8
agement project; and9
(ii) submitted a comment during such10
public comment period and such comment11
was sufficiently detailed to put the applica-12
ble agency on notice of the issue upon13
which the party seeks judicial review; and14
(B) is related to such comment.15
(e) DEFINITIONS .—In this section:16
(1) AGENCY DOCUMENT .—The term ‘‘agency17
document’’ means, with respect to a fireshed man-18
agement project, a record of decision, categorical ex-19
clusion, environmental document, or programmatic20
environmental document.21
(2) NEPA TERMS .—The terms ‘‘categorical ex-22
clusion’’, ‘‘environmental document’’, and ‘‘pro-23
grammatic environmental document’’ have the mean-24
ings given such terms, respectively, in section 111 of
the National Environmental Policy Act of 1969 (421
U.S.C. 4336e).

CBD FOIA Finds BLMers Disagree About Lithium Mine Analysis Process

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Interesting story from E&E News, and no paywall on this one (perhaps because it came as a link from Center for Western Priorities).  When groups disagree about a project, it seems like once again the BLM is darned if it does and darned if it doesn’t..in the interests of fair use, I can’t post the whole thing, but there are good parts I am leaving out.

 

A senior Bureau of Land Management official warned the federal government might be rushing the review of a controversial lithium mine in Nevada that’s at the center of a raging fight over an endangered wildflower, according to an internal email.

“This is a very aggressive schedule that deviates from other project schedules on similar projects completed recently and concurrently at the District and State,” said Scott Distel, a supervisory project manager, in a Dec. 21, 2023, email.

Distel told Douglas Furtado, a BLM district manager in central Nevada, the review of Ioneer’s Rhyolite Ridge project was poised to move forward with limited input. “The groundwater model is approved on 12/26/2023, without any edits or comments that need to be addressed,” he wrote in the email, which was also sent to officials at Ioneer.

Check out the email yourself.  I don’t know what the right way to go about it is, but in my experience agreement about processes, analysis and documents is difficult to get.  There are naturally forces to “move it along” versus forces to analyze more.  Sometime different specialists disagree about the same topic (e.g. fish bios and hydrologists). Someone has to make a call at some point.  Or maybe agencies will just give up on trying to do things.

The email illuminates the challenges federal regulators face in complying with legally required deadlines for completing environmental reviews of complicated projects under the National Environmental Policy Act. BLM and its parent, the Interior Department, declined to comment on the email, which the Center for Biological Diversity obtained under the Freedom of Information Act and shared with E&E News.

BLM’s ongoing environmental review of Ioneer’s proposed Rhyolite Ridge lithium mine has drawn national attention because of the sprawling mine’s potential impact on the habitat for an endangered desert flower, Tiehm’s buckwheat. The project is in the Silver Peak Range, about 40 miles southwest of Tonopah.

The CBD cited Distel’s email in an unsuccessful request asking BLM to extend the comment period on a draft environmental impact statement the agency released in April. That draft review concluded the mine — through fencing, locked gates and dust-tampering measures — would not drive the endangered wildflower to extinction.

Currently, BLM appears poised to make a decision on the mine in October. Once a record of decision (ROD) is issued, the project is expected to receive a conditional loan of up to $700 million from the Department of Energy.

According to Distel’s email, the revised schedule under NEPA shows BLM approving a “camera ready” final EIS in August along with a briefing at the agency’s headquarters, followed by a final ROD in October.

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The timing, duration and intensity of environmental reviews have become an issue both within agencies and on Capitol Hill, as regulators review projects needed to produce minerals like lithium while protecting pristine areas and critical habitat.

Distel’s email illuminates the tensions.

Kevin Minoli, a partner at the law firm Alston & Bird and a former career EPA lawyer who served during the Clinton, Bush, Obama and Trump administrations, said the language Distel used about the “very aggressive” schedule is not incredibly unusual for federal officials. But Minoli said it does appear to reflect a federal employee’s concern with the time frame.

“What appears to be the case is the person expressing that they wish they had more time … to do something like this,” said Minoli, who also advises clients on complying with NEPA.

Minoli said the email appears to show BLM complying with revisions to NEPA that came into effect fairly recently through amendments that set two-year time frames for agencies to complete EISs. BLM confirmed the agency is complying with the Fiscal Responsibility Act (FRA) amendment to NEPA, which includes a two-year timeline for EISs.

“What I expect is happening is you’re seeing an agency midaction having to comply with that deadline and some concern about that being expressed,” said Minoli.

But Minoli cautioned against equating longer NEPA reviews with better work, noting that regulators can do good work quickly. He also noted that while some have been pushing for deeper reviews, especially for contentious projects, others have been long fighting to reach a final decision more quickly.

“People are probably unhappy on both sides, it’s a timing question,” he said.

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Pat Parenteau, emeritus professor and senior fellow for climate policy at the Vermont Law and Graduate School, said amendments in the FRA don’t change the legal requirements for NEPA reviews. Any issues raised in the email will need to be addressed, said Parenteau, including those tied to the groundwater model, which was highlighted in Distel’s email.

“If this is, in fact, someone within BLM in a position to know, who’s raising questions about the process … if these are not corrected by the time the ROD is issued, it’ll be grounds for a lawsuit,” said Parenteau.

There is language in the law, Parenteau noted, that allows agencies to take more time to conduct reviews and EISs, but that will ultimately be up to BLM. He also emphasized that BLM isn’t alone in facing the pressure caused by artificial deadlines.

“We’re going to see a lot of these cases, a lot of these issues,” he said. “Any time you put artificial deadlines in the law, you run into this problem because it denies the reality of the way the world works.”

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Bernard Rowe, managing director of Ioneer, said in a statement last week as the public comment period for the draft EIS closed, that the company has engaged with federal, state and tribal officials, as well as community members, for more than five years, and sought a “new standard for domestic lithium project development.” Added Rowe: “Listening has made our project stronger, and we look forward to addressing feedback to the Bureau of Land Management from the public comment period.”

Conservation groups and tribes disagree and are warning the draft EIS doesn’t give a full picture of just how much water the mine will use. The critics contend the mine could drive the Tiehm’s buckwheat to extinction. The plant was listed as endangered in December 2022.

Currently, eight subpopulations of the plant have been mapped and extensively studied within the mine’s project area. The most recent population census was conducted last May and June and counted 24,916 plants.

In the draft EIS, BLM concluded that while the plant’s desert habitat would be disturbed by construction of the Rhyolite Ridge project, the agency also pointed to steps that Ioneer would take to minimize and mitigate the potential damage. The company also modified its original plan to reduce the environmental impact.

A coalition of groups including the CBD, the Western Shoshone Defense Project, the Sierra Club and Earthworks argued in comments to BLM that the draft EIS is insufficient and fails to fully consider the effect on groundwater and cultural resources

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I have much sympathy for the BLM,  and wonder whether the FRA timelines are retroactive for ongoing projects.   The BLM is definitely “darned if they do and darned if they don’t”. Also,  I wonder what the weight of one employee’s concern should be, when the complete array of tedious details of substance and process will no doubt be part of future litigation.

9th Circuit Appeals and the Inyo Exploratory (12 Hole) Drilling Case: Did The Forest Service Ask Them to “Do Violence to” NEPA? Updated

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NOTE: This post has been updated with information from Dan Farber of UC Berkeley Law. Thanks, Dan!  I’ve added his thoughts in red below.

It’s a bit hard to keep track of what’s in the statutory amendments of last year and what’s in the new NEPA regs that Jon covered yesterday. I think this is a fascinating story that illustrates the confusion that can result when Congress and Admins mess around with the NEPA statute and regs..but this is only the tip of a future iceberg of glacial progress as the courts redo NEPA case law with the new NEPA regs. It reminds me a bit of the Paul Simon song:

Slip slidin’ awaySlip slidin’ awayYou know the nearer your destinationThe more you’re slip slidin’ away

The basic story of this case  is that there is a request for a permit for exploratory drilling which will be completed in a year as per an existing CE.  But the FS wanted them to do habitat restoration and monitoring, which would take longer.  So they used the habitat restoration CE for that. Here are the details of the project according to Courthouse News:

Kore Mining Ltd. wants to drill 12 holes, 600 feet deep, to try to find gold on federally owned land — which is legal, so long as it applies for a permit. The federally owned land in question is, as Mueller describes it, “a wide and gently sloping expanse of 1,848 shrubby acres” pocked with hundreds of holes bored by mining companies in the 1980s and 1990s. At the time, technical limitations meant that those holes couldn’t go deeper than a few hundred feet. But Kore Mining believes there might be gold up in them there hills and that deeper drilling might be possible today.

Kore’s proposal would require clearing vegetation and building about a 1/3-mile temporary access roads. The U.S. Forest Service concluded in 2020 that the project “was unlikely to have any significant effects on the environment” since it would take less than a year and require less than a mile of new roads.

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project. Of particular concern was the bi-state sage grouse, an iconic bird famous for its extravagant mating dances — “Picture a spike-tailed, puff-chested small turkey in a brown tuxedo, shaking and strutting in the brush,” Mueller wrote.

The Forest Service then said it would not allow Kore Mining to undertake any “disturbance activity” between March and June, the sage grouse’s mating season. It also said Kore would have take a number of steps to restore the land after its exploratory drilling, including returning the land to its original slope and sowing native seeds. And a biologist would have to monitor the area for three years after the drilling stopped.

Four groups — the Center for Biological Diversity, the Western Watersheds Project, Friends of the Inyo, and the Sierra Club — filed a lawsuit in October 2021 against the U.S. Forest Service and Kore Mining to halt the project.

“This drilling project will cause exactly the kind of noise and commotion that make bi-state sage grouse abandon their habitat,” said Ileene Anderson, a senior scientist at the Center for Biological Diversity, in a statement at the time. “It’s appalling that the Forest Service is willing to push these beautiful dancing birds closer to extinction for a toxic mine.” Environmentalists also worried about the impact the drilling would have to the groundwater in the area that feeds into the Owens River, which supplies water for Los Angeles.

So basically, some groups don’t want the project.  The court case seems to have focused on the two-CE issue;that is, they used two CEs instead of an EA.

Here’s what the Judge Mueller  said about this when finding for this in March of 2023.

While the mining operation was covered under the second exception, the habitat restoration, and in particular the three-year monitoring period, would of course take longer than a year, and would those need to be covered by that first exception.

“It is undisputed that all drilling, grading and construction will finish within a year; Kore will regrade the pads and roads and cap its wells within a year; revegetation is a nonherbicidal wildlife improvement for sage grouse; and Kore will construct less than a mile of new access roads,” Mueller wrote. The question, then, was: “Can a project be approved in two or more parts, each covered by a different exclusion?”

Mueller decided yes — though it may not be ideal, “a patchwork of individually-insufficient-but-collectively-sufficient exclusions can cover a single project or action.” Or: “Zero plus zero is zero.”

I do think that restoration is a different kettle of fish than other CEs, the whole point is to improve the environment.

Now as Dan Farber of Berkeley Law said in an interesting post today,  the (so-called) Fiscal Responsibility Act was signed in June 2023 (after the court decision), saying that

After the 2023 amendments, Section 111(1) of NEPA now defines a CE as “a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of section.”  And section 106(a)(2) says that an agency doesn’t need an environmental assessment “if the proposed agency action is excluded pursuant to one of the agency’s categorical exclusions.”  It seems clear that the action  — a combination of drilling and restoration — does not fit “one of the agency’s categorical exclusions.”

However, that was after Judge Mueller made her decision.  So that changed the statutory landscape. Ah… but there was an appeal.

Dan says in his piece:

But what’s most striking isn’t what the court did discuss but what it didn’t mention : the fact that last year’s NEPA amendments  speaks directly to one of those issues. Apparently the word that NEPA was extensively amended a year ago hasn’t yet reached the federal courts.

So I asked Dan whether the statutes and regs for the original decision applied, here’s his emailed response:

The general rule is that an appeals court applies the law as it exists at the time of the appeal. The NEPA amendments were effective immediately, and there’s no indication in the statute that they apply only to agency decisions occurring after the amendments. So the Ninth Circuit should have considered them (or at least given some reason for refusing to apply them).  I don’t think that judges are really aware of the new law, to tell the truth, since they’re so used to operating in a setting where the statute itself is very vague and thinking all the rules come from the CEQ regs or the courts.

This is of concern (unless the goal of government is a full employment program for lawyers) for two reasons. Agencies can’t predict the future regulatory environment or future case law.  Also the idea that judges aren’t aware of this law.. this seems problematic.  Can lawyers make recommendations for topics for them to cover in their next training? Back to Dan’s original post.

The majority  said that the agency’s justification for avoiding the NEPA process was wrong, and that refusing to do an environmental assessment was such a basic violation of NEPA that it could not be considered harmless.   The dissent, on the other hand, says that the Forest Service had plainly taken as close a look at the environmental issues as it would have in an environmental assessment.  (If that’s true, one wonders, why didn’t the Service just do an environmental assessment in the first place?) For that reason, the dissent argues, any procedural error by the agency was harmless.

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This is an example of why  Forest Service people sometimes think “litigation is a crapshoot”, as my colleague JR was known to say.  From a Sierra Club piece:

The Court held that “The Forest Service asks us to adopt a view of categorical exclusions that will swallow the protections of NEPA. We decline to do such violence to NEPA’s procedural safeguards.” (Court decision at p. 25). As the Court explained: “when an agency applies CEs in a way that circumvents NEPA’s procedural requirements and renders the environmental impact of a proposed action unknown, the purpose of the exclusions is undermined. That is the case here.” (Court decision at p. 24).

Just think about it.. Judge A says “0 plus 0 equals zero”; I say restoration is by definition positive, so the sum is >0, and the Appeals judges- I think do a bit of over-hyping (is that their usual kind of language?)- “do violence to NEPA’s procedural safeguards,””swallowing the protections”- I’d argue that using the restoration CE might regurgitate a protection or two.

Do they think Mueller was “doing violence” by agreeing with the FS? Or was she just “promoting” violence?

Anyway, back to Farber’s piece:

The dissent doesn’t have a bad argument, but there are some differences between what the agency did and the environmental assessment process that could be significant. The Service did solicit public input, but the regulations governing environmental assessments require fuller opportunities to participate. Instead, “agencies shall involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments.” Asking the public whether it agrees with use of a CE isn’t the same as involving them along with governments at all levels in the preparing an assessment.

Yet according to the Courthouse News article,

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project.

It sounds like the public involvement process was similar to that of an EA in that respect (without looking at the documents).  Here’s what Dan brought up in his email:

In terms of the harmless error doctrine, the idea is that you violated the proper procedure but that it didn’t affect the outcome — no harm, no foul.  The question I raised is whether we can be sure of that. In response to one of your other questions, we do know (as I said in the post) that there were a lot of comments filed. But were they as detailed as the commenters would have offered in an environmental assessment?  After all, they were really only designed to get the Forest Service to agree to at least consider the environmental consequences rather than doing a categorical exclusion.  If there had done an environmental assessment, would the state or federal fish & wildlife people have been consulted?

That’s a really interesting take. Every CE public comments I’ve read (that being, when people don’t like the project) have been more general than “does this CE fit”? I’ve appended the summary of the response to comments below.

In fact, the agency did originally say an environmental assessment was needed, but the company complained and the agency quickly reversed itself.  (Is it a coincidence that this was the Trump Administration?) Maybe the agency should have stuck with its original position rather than shortcutting the process in its haste to approve the mining project.

Remember the 9th Circuit judge (appointed by Obama) agreed with the FS that it was a  legitimate approach.  I’m calling “unnecessary invoking of Trump” here.

In addition, an environmental assessment would have required a  Finding of No Significant Impact (FONSI), which would also have had to discuss alternatives to the proposal.  None of the judges cites any discussion of alternatives by the agency.  We don’t know if there were other, less sensitive, locations that might have been used. If there had been an environmental assessment, the agency would have had to discuss that.

This is exploration.. not a final plan.  It could well not be economic to extract there or there might not be any gold.  It makes sense to me to look at alternatives when an actual mine is proposed.  Exploration to me is mostly collecting information that is useful in preparing environmental documents and .. there is a CE for that.

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I think this illustrates a couple of things.. how judges can disagree, how some of them might not be able to keep up with NEPA at this point in time. My own experience with industry is that they did not want us to use available CEs because if it’s going to be litigated, then there’s better documentation and it’s safer. Or so the timber industry individual said, and so our OGC folks told us. If it hadn’t been for the appeal, the two CEs would have worked.

I also think Dan’s comment here is of interest, when do the facts of the case matter, and when is the idea that applying the law to this case would lead to some kind of generic CE-piling

In terms of piling up CEs, if the Forest Service’s theory was right, it wouldn’t just apply to this case.  It could potentially give agencies the power to use a bunch of CEs, shortcut the normal procedures for environmental assessment, and then claim that even though they didn’t used the required process, it was all o.k. in the end.

But of course all this is moot with the new amendments to NEPA.

You may be right that this is a situation where there couldn’t possibly have been an environmental impact, but then you wonder why there was so much opposition from the Sierra Club and others. 

My experience is that slowing a project, step by laborious legal step, is a strategy to stopping it.  I’d guess that this isn’t about the exploratory wells at all but about making an inhospitable environment for the developers.  I doubt that if the FS does an EA, that there will be no further litigation.  The company can look uphill to possible litigation on the EA, an EIS for the mine, litigation, appeal court rulings,  and so on.  Maybe the next Admin will refuse to defend the FS for some reason, who knows? With current interest rates, this degree of uncertainty would make companies (and investors) wary.

If we project this onto renewable energy projects, solar, wind and transmission may be better off because there is no exploratory stage, as with geothermal. Anything mining related will have trouble, I predict, even strategic minerals.

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Here’s the response to comments:

PUBLIC INVOLVEMENT
This action was originally listed as a proposal on the Inyo National Forest Schedule of Proposed Actions (SOPA) and updated periodically during the analysis. The project was first published in the SOPA on January 1, 2021. Public scoping was opened on April 8, 2021 and closed on May 13, 2021, which included a one-week extension of the original scoping period. Scoping letters were mailed to one address and electronic delivery was made to another 37 project subscribers through GovDelivery. Comments were collected online in the Comment Analysis and Response Application as well as through hardcopy, and email. In response to public requests, the Responsible Official decided to extent the scoping period by one week, and notified the public with a news release and email to the original email list.
The comments received expressed concerns on a number of subjects that included potential impacts to tourism, wildlife, cultural resources, water quality and recreation which was primarily about the fishery on Hot Creek. Comments also addressed geothermal and seismic activity, air quality, noise and light pollution. Technical studies completed in response to comments include KORE Long Valley Exploration Sage‐Grouse Lek Baseline Noise Monitoring and Drilling Noise Analysis; and Hydrogeologic Evaluation. Additional project design features and/or mitigations measures were also added to the plan of operation. These include:
• Sound barriers for equipment to reduce noise that might affect sage grouse.
• Shielded and directed lighting to limit potential light pollution.
• Air quality permits, if required, to be obtained through the Great Basin Air Quality
Management District
• Operator is responsible for immediate repairs of any, and all damages to roads, structures,
and improvements, which result from the operations.
• Noxious weeds will be controlled.

Most of the public comments associated this exploration drilling project with the development of a  long-term open pit mine and processing facility, which has not been proposed. The purpose of a  mineral exploration project is to assess the potential for mineral concentration at a volume that would be economically feasible to produce and does not automatically lead to an actual mine. An application has not been submitted or proposed for a mineral extraction project and if that were to occur, that application would be processed as a separate project.

 

The latest and greatest NEPA requirements

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Image: Scout Environmental

For any NEPA nerds out there, the last few years have seen an unprecedented tug-of-war over the law’s requirements.  In 2020, the Trump Administration put its stamp on the CEQ regulations implementing NEPA, the first substantial editing of its procedural requirements since 1978.  Upon taking office, the Biden Administration began to undo many of the changes.  On October 7, 2021, CEQ finalized the first phase of its changes to the 2020 Regulations, in which the agency made a handful of targeted revisions.  On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (FRA), which made a number of changes in the law itself, summarized here as follows:

  • Codify that environmental impact statements should include discussion of reasonably foreseeable effects of a proposed action, reasonably foreseeable effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. (Sec. 102(2)(C); 42 U.S.C. § 4332(2)(C)).
  • Clarify requirements for determining whether to prepare an environmental document and the appropriate level of NEPA review. (Sec. 106; 42 U.S.C. § 4336).
  • Clarify the roles and responsibilities of lead agencies and cooperating agencies, including designation of such agencies. (Sec. 107(a); 42 U.S.C. § 4336a(a)).
  • Promote development of a single environmental document. (Sec. 107(b); 42 U.S.C. § 4336a(b)).
  • Set page limits and deadlines for environmental impact statements and environmental assessments. (Sec. 107(e) and (g); 42 U.S.C. § 4336a(e) and (g)).
  • Direct agencies to develop procedures for how, under Federal agency supervision, project sponsors may prepare environmental assessments and environmental impact statements. (Sec. 107(f); 42 U.S.C. § 4336a(f)).
  • Provide time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review. (Sec. 108; 42 U.S.C. § 4336b).
  • Establish a process for Federal agencies to use another agency’s categorical exclusions. (Sec. 109; 42 U.S.C. § 4336c).
  • Require CEQ to conduct a study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency. (Sec. 110; 42 U.S.C. § 4336d).
  • Define terms used in NEPA, including cooperating agency, environmental document, lead agency, major Federal action, participating Federal agency, programmatic environmental document, and special expertise. (Sec. 111; 42 U.S.C. § 4336e).

On July 31, 2023, CEQ published proposed Phase 2 Revisions to the agency’s NEPA implementing regulations.   On May 1, 2024, the Council on Environmental Quality (CEQ) published its final Bipartisan Permitting Reform Implementation Rule (Final Rule).  These will be the NEPA requirements for the foreseeable future (that would be until January, 2025 anyway).  The Federal Register Notice with the final regulations may be found here.

Nossaman is providing a series of reviews of various aspects of the changes that have been made.  They provided this initial overview of what they think is noteworthy (their perspective seems usually be that of a private party):

  • Changes in the definition of “major federal action”;
  • Changes to the way federal agencies approach NEPA’s threshold question of whether the effects of a major federal action are “significant”;
  • Codifying environmental justice and climate change as among the effects that must be examined during the NEPA process;
  • Updated requirements relating to public engagement;
  • Codification of CEQ’s 2023 greenhouse gas guidance;
  • Additional flexibility for federal agencies to establish new categorical exclusions;
  • Codification of CEQ’s longstanding practice of relying on mitigated findings of no significant impact (FONSI);
  • Providing clarity on the requirements for mitigation to form the basis of a mitigated FONSI;
  • Removal of language added by the 2020 Regulations that sought to limit the ability of third parties to challenge NEPA determinations; and
  • Adoption of provisions intended to speed the NEPA review process.

The second installment, discussing the first two bullets, is found here (others will follow).  One of the topics it addresses is the criteria for “significance” that would require an EIS.  The new regulation mostly affirms past practices, but it explicitly recognizes a situation that may arise for “restoration” proposals on public lands.  In determining significance:

Agencies may also consider the extent to which an effect is adverse at some points in time and beneficial in others (for example, in assessing the significance of a habitat restoration action’s effect on a species, an agency may consider both any short-term harm to the species during implementation of the action and any benefit to the same species once the action is complete).  However, agencies shall not offset an action’s adverse effects with other beneficial effects to determine significance …

The Preamble warns:

In some circumstances, an effect may be significant due to the harm during one period of time regardless of the benefit at another.  For example, if implementation of a habitat restoration action may extirpate a species from the area, then an agency could not reasonably rely on long-term habitat improvements resulting from the action to determine that the overall effect to the species is not significant.

(I would like to say this is just an extreme example to make the point that if short term effects may be significant, you can’t discount them based on long-term benefits to avoid preparing an EIS.  However, they follow this with a comparison to mitigation, where it IS possible to offset adverse effects with beneficial mitigation to the point that they are no longer significant.)

“Indirect containment” for San Juan wildfire

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We’ve had some good discussion recently (which searches couldn’t find) of how to count acres burned by wildfires towards burning targets, and how to comply with project planning requirements (i.e. NEPA and ESA) for such actions.  An implication I got was that a national forest could count a lot of acres if it just let a wildfire burn, and there wouldn’t be any process requirements.

Well, this sounds like the opposite of that, and like what I think should be the proper way of doing this – a wildfire started in an area that had been “prepped” for a prescribed burn.  Assuming that “prepped” includes the usual public  participation and effects analysis.

Fire managers plan to expand the footprint of a 10-acre lightning-caused wildfire burning northeast of Dolores on the Haycamp Mesa next week, and could burn upward of 4,500 acres.

Last month, the Dolores Ranger District announced plans to burn 4,577 acres across Haycamp Mesa Units 5, 6 and 9. Fire managers plan to use existing roads as fire lines within which they would contain the blaze.

The Spruce Creek Fire started Tuesday afternoon along the northern perimeter of Unit 5.

“It’s all prepped and ready to go, conditions are ideal,” said Pat Seekins, prescribed fire and fuels program manager for the San Juan National Forest. “It’s low-intensity surface fire, it’s doing exactly what we need it to do.”

If the weather continues to cooperate, fire managers hope to burn between 4,000 and 5,000 acres. Seekins said crews have prepared around 5,600 acres to burn.

“With prescribed fire this spring, we’ve accomplished just shy of 4,000 acres, which is good – we’ve had a good spring,” Seekins said. “But we’re taking this opportunity to expand those acres.”

It’s not clear exactly how active they would be to “expand” those acres.  Interestingly,

Last year, fire managers used three natural blazes that began inside units already prepped for treatment to return fire to the landscape in the San Juan National Forest. With the help of firefighters, those three wildfires ultimately treated 4,000 acres of forest.

Is the San Juan just lucky, or well-prepared, or does this happen a lot?

Inventory of Environmental Permitting Tools

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The Forest Service and BLM are part of  “permitting world,” so while this is a little NEPA-nerdy for TSWites…

I ran across this application inventory from the Federation of American Scientists , their idea being to:

“survey permitting tools for interested users, open up lines of dialogue for cross-application learning, and highlight where we see needs for further permitting tech investment. ”

It’s pretty interesting to look at the federal lineup of apps.. I didn’t know that EPA has all EISs since 2012 online (of course, I retired in 2012); also CEQ has a comprehensive list of all CEs. Hopefully the descriptions of FS and BLM apps are accurate.