CONSIDERATIONS FOR WORKING WITH FEDERAL AGENCIES AND IMPROVING EFFICIENCY AND PUBLIC PARTICIPATION IN THE NEPA PROCESS

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 14A
CONSIDERATIONS FOR WORKING WITH FEDERAL AGENCIES AND IMPROVING EFFICIENCY AND PUBLIC PARTICIPATION IN THE NEPA PROCESS
Arthur R. Kleven ¹
Attorney-Advisor, U.S. Department of the Interior, Office of the Solicitor, Rocky Mountain Region
Lakewood, CO

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ARTHUR R. KLEVEN is lucky. He began work in the Office of the Solicitor, U.S. Department of the Interior in October 2004, and since September 2005 has worked as an attorney-advisor in the Rocky Mountain Regional Office. He counsels the Bureau of Land Management, Colorado and Wyoming State Offices on a variety of subjects including implementation of the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act, the Mineral Leasing Act, and the Wild Free-Roaming Horses and Burros Act. Mr. Kleven also advises the Office of Surface Mining Reclamation and Enforcement, Western Region on matters involving OSMRE's Indian Lands Program, NEPA and, of course, the Surface Mining Control and Reclamation Act. Mr. Kleven earned a B. S. in Environmental Health Science from the University of Georgia in the last millennium, and a J.D. from the University of Denver Sturm College of Law. He is a member of the Colorado bar. When not working he can usually be found chauffeuring his children, riding a bike, or listening to live music.

Naturally, federal agencies and project proponents have differing priorities or goals during and after the preparation of environmental documents under the National Environmental Policy Act (NEPA).² But they both share an interest in the timely production of a defensible NEPA document, and providing the opportunity for meaningful public participation. Consistent with those goals, the Council on Environmental Quality (CEQ)³ and the Department of the Interior⁴ recently issued notices and policy documents setting goals and guidance for more efficient and timely NEPA reviews. This paper provides a non-scholarly, far-from-complete list of considerations, practice points, and pet-peeves developed from the author's hard won (or lost) personal experience, that may help facilitate an efficient and timely NEPA process, or avoid common pitfalls in NEPA preparation.

In general, early and regular engagement and communication with the federal agencies with decision-making (and thus NEPA) responsibilities over a particular project is necessary to ensure a timely and efficient NEPA process. For complex or large-scale proposals involving preparation of an environmental impact statement (EIS), most project proponents or applicants (or their counsel), contractors, and federal agencies, are well-versed in process basics like engaging a contractor; establishing or memorializing the relationships between proponents, lead and key federal agencies, and contractors; scheduling NEPA product deliverables and regular status updates, and producing a public participation plan. Suffice to say, no matter the level of planning, the best laid schemes of mice and men go often awry,⁵ and potentially schedule-bursting events often arise during NEPA preparation for large, complex proposals. Those contingencies may be reduced, and proponent and federal agency goals for timely and efficient NEPA with robust public involvement more easily met, if at the outset of the

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NEPA process proponents, contractors, and federal agencies know the project, know the agencies, know their roles, and know the public.

Know the Project

Project proponents and applicants always approach federal agencies to initiate NEPA reviews with fully-formed and complete descriptions of the projects for which authorization is sought--except when they do not. Changes in economic or environmental circumstances may be unpreventable and project modifications unavoidable. A project's scope, of course, defines the entirety of the NEPA process, from the lead and cooperating agencies, to scoping, purpose and need, alternatives, affected environment, to impacts analyses. Providing the federal agencies with a clear and complete description of the project at the outset is, of course, also critical for timely and efficient agency engagement and NEPA review.

A thorough description of the proposed project and all component parts at the outset is also necessary to identify connected and cumulative actions that must be discussed in the same NEPA document.⁶ Proponents and agencies should not allow the understandable focus on large project components and primary authorizations to leave relatively small, ancillary components (e.g., spur utility lines or access roads) unaccounted for until later in the NEPA process. Likewise, proponents or the agency may wish to analyze unconnected, independent actions from the proponent as similar actions⁷ in an EIS. Doing so may allow for tiering or incorporation by reference for future authorizations.

In the least, incomplete project information at the early stages of NEPA may require the revision or amendment of initiating agreements, documents or notices, such as notices of intent, intra-agency memorandums of understanding, and public notices. Later, the need to account for incomplete or changed project information may, depending on magnitude, require that a project be re-scoped, or in the least the revision of preliminary draft sections of the document. Major project changes or the inclusion of new environmental information between a draft and final EIS may require the preparation of a supplemental analysis.⁸ One simple strategy for assuring that agency or contractor needs for project information are timely met, or that changes to a proposal or new environmental information is timely related, is to schedule regular status update calls with the interested parties.

Know the Agencies

In many respects, project proponents or applicants must accept federal agencies

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with permitting and NEPA responsibility like eggshell tort victims, they must take them as they find them.⁹ Proponents have no choice of the agency with Congressionally-delegated authority to issue a particular federal regulatory permit or land use authorization. Within the responsible agency, project location usually dictates the agency component with lead responsibility for issuing the federal authorization, often a field office. Sometimes...