Chapter 14 - § 14.3 • MAJOR FEDERAL ACTION

• Jurisdiction: Colorado

§ 14.3 • MAJOR FEDERAL ACTION

"Major Federal action" is a statutory prerequisite for the application of NEPA, and its presence — or absence — determines whether a proposed action requires environmental review under NEPA.⁴⁸

§ 14.3.1—Test — Federal Approval, Funding, Control, And Permits

"Federal action" includes virtually anything subject to federal approval, permit, decision, funding, or control. The CEQ has interpreted "Federal action" to include: federally authorized actions on federal lands; the adoption of agency rules or regulations; the adoption of federal programs or plans; the approval of specific projects; the issuance of federal permits or regulatory decisions; and federally funded or assisted activities.⁴⁹

A key indicator of federal action is the federal government's ability "to exercise discretion over the outcome."⁵⁰ Federal action exists where the federal government has "actual power to control" the project.⁵¹ Action taken by private entities is federal action subject to NEPA if "federal approval is the prerequisite to the action taken by the private actors."⁵²

Government inaction is generally not a major federal action subject to NEPA "where that failure to act is not otherwise subject to review" as agency action under the Administrative Procedure Act.⁵³

§ 14.3.2—Colorado Examples

NEPA applies to an array of activities on federal, state, tribal, and privately owned fee lands within Colorado.

Federally Authorized Actions on Federal Lands

Twenty-four million acres, or a little over one-third (36 percent), of the 66 million acres in Colorado are federal lands owned by the United States, and are administered by the United States Department of the Interior or the United States Forest Service.⁵⁴ Virtually any action on those federal lands that requires federal approval or authorization is federal action potentially subject to NEPA. Examples of major federal actions include: special use permits for ski area or recreational development issued by the Forest Service;⁵⁵ rights-of-way or easements granted to private interests on federal lands;⁵⁶ leases for oil and gas or mineral development on federal lands or development of federal minerals under fee surface;⁵⁷ federal land use plans prepared by the Bureau of Land Management;⁵⁸ federal decisions affecting National Parks, National Monuments, and statutory wilderness areas;⁵⁹ and exchanges of federal lands for private lands.⁶⁰

Federal Permits

Actions authorized by federal permits on federal, state, private, or Tribal lands are subject to review under NEPA.⁶¹ Examples include: permits for the discharge of dredge or fill materials issued by the Army Corps of Engineers under § 404 of the Clean Water Act;⁶² permits issued by the United States Fish and Wildlife Service authorizing the incidental take of bald eagles;⁶³ federal permits for the drilling of oil and gas wells on federal or split estate lands consisting of federal minerals under fee surface; and federal permits authorizing natural gas pipelines.⁶⁴

Federal Funding

Actions that are fully or partially financed with federal funds are federal actions subject to NEPA.⁶⁵ This requires environmental review under NEPA of state or private actions that otherwise have little federal control. Common examples are highway and transportation projects and airport expansions.⁶⁶

Federal Decisions

Federally approved actions are federal actions under NEPA.⁶⁷ Examples include discretionary decisions by the Department of the Interior in fulfillment of its trust obligations to Indian tribes,⁶⁸ decisions by the armed forces that affect the use of military bases,⁶⁹ and adoption by federal agencies of regulations applicable to federal lands.⁷⁰

§ 14.3.3—Actions That Do Not Amount To Major Federal Action

Certain activities by federal agencies, as well as actions taken by state or private actors, are not subject to NEPA.

Ministerial Acts by Federal Agencies

...