CHAPTER 13 COMBINING NEPA COMPLIANCE WITH OTHER STATUTES: THE NATIONAL HISTORIC PRESERVATION ACT (NHPA) AND THE ENDANGERED SPECIES ACT (ESA)

• Jurisdiction: United States

National Environmental Policy Act
(Oct 2010)
CHAPTER 13
COMBINING NEPA COMPLIANCE WITH OTHER STATUTES: THE NATIONAL HISTORIC PRESERVATION ACT (NHPA) AND THE ENDANGERED SPECIES ACT (ESA)
Aaron C. Courtney
Stoel Rives LLP
Portland, Oregon

AARON C. COURTNEY is with the firm of Stoel Rives LLP in Portland. His legal practice focuses on federal/state environmental and natural resource regulatory compliance (e.g., NEPA, ESA, CWA) with an emphasis on energy project development on federal lands. He oversees state and federal environmental and land use permitting relating to wind, solar, natural gas, ethanol and other energy development projects throughout the Western United States. This includes advising clients on facility siting, managing generation and pipeline/transmission permitting and project construction, overseeing administrative record development, and defending project proponents against regulatory enforcement actions and third-party environmental lawsuits. Aaron's significant experience navigating clients through complex compliance issues associated with these numerous regulatory programs enables him to provide practical guidance that reflects an understanding of project schedule and other energy project development realities that are often at odds with such regulations absent creative compliance strategies. Aaron's additional professional experience representing non-governmental environmental organizations facilitates his advising clients on stakeholder engagement strategies.

Combining NEPA Compliance with Other Statutes: the National Historic Preservation Act and the Endangered Species Act

Aaron Courtney, Barbara Craig & Eric Martin

Stoel Rives LLP

I. Introduction

The National Environmental Policy Act ("NEPA") is one of a number of federal statutes that impose mandatory procedural requirements upon federal agencies before the agency can implement a major federal action (e.g., issuing a permit or right-of-way, funding a development project). Two other critical procedure-imposing federal statutes are the National Historic Preservation Act ("NHPA") and the Endangered Species Act ("ESA").

Together, these three statutes have many similarities, such as consultation/ communication with other agencies, assessing likely impacts/effects of proposed projects, and developing alternatives. Despite these similarities, however, coordinating compliance with each of these statute's procedures can be challenging. Significant permitting delays can result if an applicant is not mindful of each statute's unique requirements and is not careful throughout the permitting process to build a consistent, coordinated administrative record that complies with each of the statutes' requirements

Furthermore, from the perspective of a private permit applicant compliance with the NHPA and the ESA differ in that ESA compliance can trigger NEPA. Because the ESA's "take" prohibition extends beyond the federal government to the public at large, private entities often seek to obtain some level of ESA liability protection, even if their particular project lacks a federal nexus that would otherwise trigger the ESA. In obtaining this ESA liability protection, however, private entities may trigger NEPA. In contrast, because the NHPA lacks substantive prohibitions that impact private projects without a federal nexus, private entities needing no federal permits or money need not concern themselves with the NHPA or NEPA.

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II. Statutory Background

A. National Environmental Policy Act

NEPA sets forth a procedural framework for evaluating environmental impacts of "major federal actions."¹ It is primarily a procedural statute, compliance with which provides federal agencies and the public with information about the probable environmental impacts of a proposed project and ensures that these impacts are thoroughly analyzed. NEPA requires a thoughtful and reasonably thorough analysis of (i.e., a "hard look") the probable environmental impacts of a proposed project before federal agencies make final binding decisions.² The public disclosure that NEPA requires allows the public to ensure that substantive standards are being met under federal laws such as the Marine Mammal Protection Action Act, the Migratory Bird Treaty Act, or the Clean Water Act.³ However, NEPA does not require an agency to take the action that is most compatible with environmental conservation.⁴

Under the Council on Environmental Quality's ("CEQ") NEPA regulations, "major federal actions" are generally actions that are "potentially subject to Federal control and responsibility," and include "projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies" as well as "new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals."⁵ Thus, private entities seeking federal permits trigger NEPA. For example, a private project developer's application for a permit under Section 404 of the Clean Water Act will likely be subject to NEPA.⁶ CEQ's regulations outline a six-step process. First, the federal agency must determine whether the action falls within a categorical exclusion (i.e., categories of actions that the federal agency has found to not individually or cumulatively have a significant effect on the human environment), and if not, coordinate its NEPA review with other agencies that have jurisdiction by law or special expertise with respect to potential environmental impacts.⁷ Second, the agency prepares an environmental assessment ("EA") to determine whether an environmental impact statement

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("EIS") is necessary.⁸ Ideally, an EA will be sufficient to support a "finding of no significant impact" ("FONSI"), which obviates the need for the preparation of an EIS. If an EA does not result in the issuance of a FONSI, an EIS must be prepared. Third, if an EIS is to be prepared, the agency proceeds through the scoping process, in which it gathers information about the potential impacts from a project and the methods by which those impacts will be evaluated in an EIS.⁹ From this process the agency determines the "scope * * * and the significant issues to be analyzed in depth in the environmental impact statement."¹⁰ Fourth, the draft EIS ("DEIS") is completed detailing the project purpose and need, describing all the alternatives, analyzing the environmental impacts associated with each of the alternatives, and describing mitigation measures. Fifth, there is a comment period, typically 45 days, during which members of the public, Indian tribes, state and local agencies, other federal agencies, and other interested parties may provide detailed comments on the DEIS. Sixth, after reviewing the submitted comments and revising the DEIS as necessary in response to these comments, the federal agency issues the final EIS ("FEIS"). The agency then makes a decision on the proposed action with is documented in a record of decision ("ROD").¹¹

B. National Historic Preservation Act

Section 106 of the NHPA and the Advisory Council on Historic Preservation's ("ACHP") regulations set forth a procedural framework for "tak[ing] into account the effect" of federal "undertakings" on any property listed on or eligible for listing on the National Register of Historic Places.¹² Any project, activity or program funded by a federal agency or authorized by a federal permit, license or approval constitutes an "undertaking" subject to Section 106.¹³ Like NEPA, compliance with the NHPA "requires planning to avoid or mitigate harm to historic resources, but does not prohibit projects simply because they are likely to cause such harm."¹⁴ However, compliance with the NHPA does not necessarily equate to compliance with NEPA because "[e]ach mandates separate and distinct procedures, both of which must be complied with when historic buildings [or resources] are affected."¹⁵

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The ACHP's regulations outline a four-step process for complying with Section 106. First, the federal agency must determine whether the undertaking has the potential to cause effect to historic resources and identify the entities with which it must consult during the process (e.g., the State Historic Preservation Officer ("SHPO") or Tribal Historic Preservation Officers ("THPO") for an undertaking on an Indian reservation, local government, and any Indian tribe or Native Hawaiian organization which attaches religious and cultural importance to identified historic properties).¹⁶ Second, the federal agency must identify the area of potential effects ("APE") in consultation with the SHPO/THPO, determine the area of potential effects as defined in 36 C.F.R. § 800.16(d) in consultation with the SHPO/THPO, identify historic resources listed on or eligible for listing on the National Register of Historic Places in consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to historic properties within the APE, and then assess whether the undertaking will have an "adverse effect" on any such resources, in consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to historic properties within the APE¹⁷ Third, if adverse effects will result, the federal agency must consult with the identified consulting parties "to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate" the adverse effects.¹⁸ The federal agency is also to make information available for public comment.¹⁹ Where the action agency and SHPO/THPO agree on how to resolve adverse effects, they execute a memorandum of agreement which should be submitted to the ACHP in order to afford the ACHP an opportunity to comment as required by Section 106. Finally, if the federal agency and SHPO/THPO are unable to resolve efforts relating to...