Chapter 14 - § 14.8 • TIERING AND THE PROGRAMMATIC|SITE-SPECIFIC CONCEPT

• Jurisdiction: Colorado

§ 14.8 • TIERING AND THE PROGRAMMATIC/SITE-SPECIFIC CONCEPT

"Tiering" is the practice of incorporating the environmental analysis from an existing EIS into a subsequently prepared EIS or EA by referencing that prior analysis.²³⁹ The CEQ regulations encourage federal agencies to avoid duplicating paperwork and environmental analysis by tiering.²⁴⁰ Tiering allows the agency to concentrate on the specific action at hand while incorporating the relevant environmental analysis from another EIS. Tiering to a document that itself has not been subject to NEPA review is inappropriate.²⁴¹

Tiering often arises when an agency prepares a programmatic EIS followed by subsequent EISs or EAs that are within the scope of the programmatic EIS.²⁴² This occurs frequently in the preparation of NEPA documents for actions on federal lands. For example, an agency may prepare a programmatic EIS to analyze the effects of future timber sales over a 10-year period. When the agency subsequently conducts an individual timber sale, it may prepare an EA that evaluates the site-specific effects of the timber sale, and tiers to the broader discussion of environmental effects in the programmatic statement.²⁴³

Where an agency makes decisions at two levels — i.e., at a programmatic or planning level and at a site-specific level — it is appropriate for it to make its NEPA analysis either programmatic or site-specific.²⁴⁴ A programmatic EIS must provide "sufficient detail to foster informed decision-making," but "site-specific impacts need not be fully evaluated until a critical decision has been made to act on site development."²⁴⁵ The CEQ issued final guidance on December 18, 2014, on the "Effective Use of Programmatic NEPA Reviews."²⁴⁶ The guidance clarifies when and how federal agencies should use programmatic NEPA reviews to promote greater efficiency and make better informed decisions.

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Notes:

^[239] 40 C.F.R. § 1508.28.

^[240] 40 C.F.R. § 1502.20.

^[241] Muckleshoot Indian Tribe v. U.S. Forest Serv, 177 F.3d 800, 812 (9th Cir. 1999).

^[242] Town of Superior v. U.S. Fish & Wildlife Serv., 913 F. Supp. 2d 1087, 1116-17 (D. Colo. 2012) (upholding agency's tiering of an EA to an EIS).

^[243] See Portland Audubon Soc'y v. Lujan, 884 F.2d 1233, 1235 (9th Cir. 1989).

^[244] N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975-77 (9th Cir. 2006); Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 923 n.2 (9th Cir. 1999).

^[245] Friends of Yosemite Valley v. Norton, 348 F.3d 789, 800 (9th Cir...