NEW DEVELOPMENTS IN FEDERAL AGENCY NEPA PROCEDURES--USDOI

• Jurisdiction: United States

National Environmental Policy Act
(Oct 2010)
CHAPTER 7B
NEW DEVELOPMENTS IN FEDERAL AGENCY NEPA PROCEDURES--USDOI
Arthur R. Kleven
U.S. Department of the Interior
Office of the Regional Solicitor
Denver, Colorado

ARTHUR R. KLEVEN has been with the U.S. Department of the Interior, Office of the Solicitor, since October 2004. He has been a staff attorney in the Rocky Mountain Region of the Solicitors' Office since 2005. Mr. Kleven represents the Bureau of Land Management, Colorado and Wyoming State Offices in a variety matters, but primarily involving implementation of the National Environmental Policy Act, the Federal Land Policy and Management Act, and Mineral Leasing Act. He also represents the Office of Surface Mining Reclamation and Enforcement, Western Region in administrative and judicial matters related to implementation of the Surface Mining Control and Reclamation Act and National Environmental Policy Act. Mr. Kleven received a B.S. in Environmental Health Science from the University of Georgia and, in 2004, a J.D. from the University of Denver, College of Law. Mr. Kleven is a member of the Colorado bar.

* The views expressed herein are solely those of the speaker, and do not represent those of the Department of the interior

RMMLF NEPA Special Institute, October 28, 2010

New Developments in Federal Agency NEPA Procedures-USDOI

• USDOI NEPA Regulations, Oct. 15, 2008

— 43 C.F.R. Part 46-Implementation of the National Environmental Policy Act of 1969

[Page 7B-2]

• Bureau NEPA Policy

— Bureau of Indian Affairs (BIA) NEPA Handbook, 59 IAM 3-H, May 2005

— Bureau of Land Management (BLM) NEPA Handbook, H-1790-1, January 2008

— BLM Instruction Memoranda (IM), May 17, 2010

• IM 2010-117, Oil and Gas Leasing Reform-Land Use Planning and Lease Parcel Review

• IM 2010-118, Energy Policy Act Section 390 Categorical Exclusion Policy Revision

• USDOI NEPA Regulations, Oct. 15, 2008

— Where?

• 43 C.F.R. Part 46-Implementation of the National Environmental Policy Act of 1969

— Subpart A-General Information

— Subpart B-Protection and Enhancement of Environmental Quality

— Subpart C-Initiating the NEPA Process

— Subpart D-Environmental Assessments (EA)

— Subpart E-Environmental Impact Statement (EIS)

• Proposed Rule-73 Fed. Reg. 126 (Jan. 2, 2008)

• Final Rule-73 Fed. Reg. 61292 (Oct. 15, 2008)

[Page 7B-3]

— What?

• Codified NEPA procedures found in chapters 1-6, Part 516 of the Departmental Manual (DM)

— Bureau-specific NEPA procedures remain in 516 DM Chapters 8-15

• New changes and additions

— Why?

• The Department believes that codifying the procedures in regulations that are consistent with NEPA and the CEQ regulations will provide greater visibility to that which was previously contained in the DM and enhance cooperative conservation by highlighting opportunities for public engagement and input in the NEPA process. 73 Fed. Reg. 61292

[Page 7B-4]

— How?

• To be used by Department officials in conjunction with and supplementary to

— National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.

— Council on Environmental Quality (CEQ) Regulations, 40 C.F.R. Parts 1500-1508

— Executive Orders 11514 and 13352

• 43 C.F.R. 46.20(a)

— Follow CEQ regulations

• Table of corresponding CEQ regulations at 43 C.F.R. 46.20(a)

— New changes and additions

• Defines terms in CEQ regulations and adds new definitions

• Clarifies actions subject to NEPA

• Establishes documentation requirements for emergency responses

• Incorporates CEQ guidance on effects of past actions relevant to a cumulative impacts analysis

• Clarifies discretion to determine public involvement in EAs

• Highlights that adaptive management strategies may be incorporated into alternatives

• Incorporates language from statute and CEQ guidance concerning range of alternatives in EAs

[Page 7B-5]

— Definitions-43 C.F.R. 46.10

• Adaptive management

• Bureau

• Community-based training

• Controversial

• Environmental Statement Memoranda

• Environmentally preferable alternative

• No action alternative

• Proposed action

• Reasonably foreseeable future actions

• Responsible Official

— Definitions-43 C.F.R. 46.10

• Reasonably foreseeable future actions include those federal and non-federal activities not yet undertaken, but sufficiently likely to occur, that a Responsible Official of ordinary prudence would take such activities into account in reaching a decision.

• [I]nclude, but are not limited to activities for which there are existing decisions, funding, or proposals identified by the bureau.

• [D]o not include those actions that are highly speculative or indefinite.

• Does not conflict with oil and gas reasonably foreseeable development scenario (RFD)

— RFD may provide basic information that may inform analysis of reasonably foreseeable future actions

• Incorporates reasonableness standard of Department of Transportation v. Public Citizen, 541

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