NEPA

This publication is the second of a two part series of special publications dealing with the National Environmental Policy Act (NEPA) of 1969. The first Special Publication SP-09-14, titled “Know NEPA,” provides readers detailed background information about the Act, its intent and purpose, authority and implementation. It also provides some rationale regarding why and when it is important to respond to NEPA documents proposing major federal actions that could have an impact upon you in the use and/or enjoyment of federal or public lands. The authors urge users of this publication to read Know NEPA in order to gain a better perspective of the NEPA process. This will at least provide you a clearer idea of what you and the agency will gain from your response, and to what extent you may or may not influence the NEPA process. It will also help you assess your ability to affect, appeal, or challenge the final document and Record of Decision (ROD) if you are severely impacted by the final decision.

Strategies for reading and responding to NEPA documents

Reading and responding to voluminous NEPA documents in short time periods (as little as 15 to 30 days) begs the question of “How does one eat an elephant.” It is intimidating to wade through a document hundreds of pages long, filled with federal acronyms, confusing logic and objectives that may conflict and lack clarity. It is often difficult for the average citizen to analyze the content and provide meaningful comments.

The public most directly impacted by the proposed and alternative actions, the analysis and interpretation of existing data, and ultimately the Record of Decision (ROD) often fail to provide the sponsoring agency comments about its analysis of the proposed action. If the public does respond, it often phrases its comments so vaguely that the agency cannot respond to the question or analyze the concern as presented. The result is a ROD and implementation of an action or project that may have significant negative effects on the public directly affected by the agency decision. This directly conflicts with the intention of the Act, which is:

"To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation..."

Commenting on a NEPA document proposal is not a “vote” for or against the proposed action, or any of the alternative actions. The information provided through comments during the process benefits the decision-makers, providing them with relevant information about how the proposed and alternative actions are expected to affect the environment and the public’s ability to use or enjoy public lands. The intent of NEPA, including public comments, is to increase the quantity and quality of information available to decision makers about the consequences of proposed and alternative actions. The preparation of a NEPA document does not determine which alternative to choose. It does not prevent environmental impacts from happening or guarantee the final decisions will be appreciated by anyone. It does not prohibit any actions. Simply stated, NEPA is an information disclosure process. More importantly, if the ROD and the actions it permits will adversely impact you, then you have standing in the appeal process only if you provided written or otherwise official comments during the comment period. Without official comments, you lack legal standing, i.e., the legal right to appeal.

Abbreviated process for reviewing an EIS or EA

You do not have to read an entire NEPA document from cover to cover to determine the purpose and impacts of a specific project being analyzed, or to provide effective comments about the effectiveness or accuracy of the analysis. Much of the voluminous content is background material. You may or may not find this information useful. The effects on your specific interests may range from virtually none to very extensive. In order to help the reader quickly go to the portions of the document that are most pertinent, we offer the following suggestions¹:

1. The summary provides a condensed version of the document. This brief section provides the reader with a general idea about why the agency prepared the document (Purpose and Scope); the process and rationale the agency used to structure and write the document; and what action(s) the sponsoring agency intends to implement (Preferred Alternative) to achieve its goals. Read through the entire summary section, focusing on the proposed and alternative actions to identify the major premise of the issues that the sponsoring agency is trying to address. At this point of your review, it is not important whether you agree or disagree with the sponsoring agency.
2. After you read the summary, you may determine that you have information or knowledge (i.e., comments) about the issues that will help inform the sponsoring agency. List the issues that you think are most important on a piece of paper. Note any glaring disparities, such as the absence of known data, or information that appears to be factually in error. Double check the written statements with the data analysis included in the appendix. Ask yourself: do they coincide with one another? Any discrepancies should be commented upon.
3. Review the summary again and check for discrepancies or disconnections between the proposed action and other uses. For example, let’s say the analysis indicated there are issues with the loss of wet meadow riparian areas and the summary action proposes to reduce livestock numbers and forage utilization levels. The data section, however, indicates that the damage in the meadows is being caused by off highway vehicle (OHV) activity. These are the types of discrepancies or disconnects between the identified issue and the proposed actions you are trying to identify.
4. Re-read the summary section for additional clarity and understanding and then review the detailed proposed action in the document.
5. Note the discrepancies you found in your first reviews of the summary section in detail, and provide one additional review to see if you can find any more issues to address.

At a minimum, affected interests should read the following portions of the document:

Purpose and Need

This section provides the background about “why” the document is being written and its relationship with higher level planning documents used by the sponsoring agency. These may be Forest Plans, Resource Management Plans, Management Framework Plans or some other guiding document or suite of regulations about how the agency will manage the resources under its jurisdiction.

The Issues Section identifies major concerns held by the sponsoring agency. These are the issues that the agency should analyze with respect to the proposed and alternative actions. The results of these analyses are reported in the Affected Environment segment of the document.

Important questions that readers should consider during their review of Purpose and Need and Issues are:

• Has the agency clearly and correctly defined the issues?
• Has the agency addressed all issues sufficiently?

Alternatives - Chapter 2

This section is the heart of a NEPA document. The agency should present the environmental impacts of the proposed (preferred action) and alternative actions in comparative form. This approach helps define the issues and provides a clear basis for choice among the options presented. In Chapter 2, the sponsoring agency should:

• Rigorously explore and objectively evaluate all reasonable alternatives. For alternatives that the agency eliminated from detailed study, the agency should briefly discuss their rationale for why the alternative was eliminated.
• Devote substantial analysis to the proposed action and alternatives, so that reviewers may evaluate their comparative merits.
• Identify reasonable alternatives not within the jurisdiction of the lead agency.
• Include the alternative of “no action” (i.e., maintain existing management).
• Identify the preferred alternative or alternatives, if one or more exist. The preferred action states how the sponsoring agency intends to manage the land you use (e.g., grazing allotment, mine, trail, etc.), your annual level of involvement in management of the area (if any) and any limitations land users may encounter.
• Include appropriate mitigation measures not already included in the proposed action or alternatives. These mitigation measures may be called by another name (e.g., design features).

Affected Environment and Environmental Consequences - Chapter 3

This section of a NEPA document will vary from tens to hundreds of pages. In this section of the document, each issue identified in the Alternatives section should be analyzed in detail, with respect to each of the alternative actions. Each reviewer will have to determine how much of this section is important to them and use that information to determine what is and is not read. No two individuals are likely to be affected similarly.

Some pertinent questions each reviewer should consider are:

1. Has the analysis included all relevant data or research about the issue?
2. Were the data properly collected with enough samples at different locations, across time, to accurately assess the situation and/or determine trends since preparation of the last planning document?
3. Did the sponsoring agency correctly interpret the data? Are multiple interpretations possible? Be able to defend a different interpretation if you develop one.
4. Are the conclusions definitive (based upon on-site data) or speculative (it may happen here because it happened somewhere else)?
5. If the conclusions are based upon research or case studies that occurred somewhere else, are the conditions that influenced the results of those studies similar to conditions in the current project area? If not, are the same results likely to occur? If not, clearly state why.
6. If the document is being prepared to address undesired conditions or situations, are these conditions or situations widespread or localized? Are the proposed solutions (actions) designed for widespread or localized problems? Problems and proposed solutions should match one another if they are to succeed.
7. Has all appropriate anecdotal or historical information been included in the document? This type of information can put current situations in the proper context and affect proposed solutions.

Suggestions for Writing Comments:

Write your comments as clearly, completely and simply as possible. Take the approach of an eighth-grade grammar school teacher. Identify the problems you have with the document and provide clear reasons why you believe there is an error or insufficiency. Submit constructive solutions with documentation (data) or sources to support your recommendations. You can disagree with the purpose, need, issues addressed (or lack thereof), analyses of the issues, and/or the preferred or alternative actions for any number of reasons. These can include, but are not limited to cultural, social, economic, scientific or other reasons. The key point is that your comments, suggestions and/or recommendations must be constructive. Comments that are pointed, accusatory, or personal will receive reduced or no attention. Comments that do not address the need or purpose of the document, the appropriateness of the issues addressed (or not addressed), or the accuracy of the analysis can be ignored. The same holds for comments that lack clarity and cannot be properly interpreted. The BLM NEPA Handbook provides the following observations about substantive comments (U.S Department of Interior, BLM, 2008).

“Substantive comments do one or more of the following:

• question, with reasonable basis, the accuracy of information in the EIS or EA.
• question, with reasonable basis, the adequacy of, methodology for, or assumptions used for the environmental analysis.
• present new information relevant to the analysis.
• present reasonable alternatives other than those analyzed in the EIS or EA.
• cause changes or revisions in one or more of the alternatives”.

Good and useful comments are focused on the specific content, or lack thereof, in the document.

Clearly state:

• The problems you have found with the document
• Why the information provided in the document is in error
• Why the data in the document has been interpreted incorrectly
• The location of correct or missing information or data
• Other issues that should be addressed or why identified issues are not as critical as presented by the sponsoring agency
• Alternative ideas about how to address the issues identified in the document
• The sources of your information
• Personal observations and ancillary data you possess (photos, notes of observations, records of unusual events or activities), and that are critical to the analysis
• The number of years you have worked in the project area, your formal and informal education or training related to the purpose of the project and the issues it addresses, and how your experience supports your observations and comments

The more individuals that review a document and provide constructive comments, the better the final product should be. A NEPA document will never be perfect, but it can always be better. The least desirable situation is for only one or two individuals or groups to provide comments. All affected interests need to provide comments, even on NEPA documents they support. If agency staff knows they will be supported by stakeholders for good work, they are more likely to listen and learn when the same individuals question their work. The number of individuals who comment on a NEPA document does matter. In order for comments to have the most impact they must be made clearly, accompanied with rationale and whenever possible with reputable sources of information or background. You are an expert on your allotment because you are on the ground and probably have years of observations and experience, or you have hunted this area for more than 20 years. Only you can make the case for yourself. Do not be intimidated; you can make a difference. In order to make a difference you must provide sound and rational comments.

Further References

1. Know NEPA: Important Points for Public Participation Part One of a Two-Part Series
2. National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321- 4347.
3. CEQ NEPA Citizens Guide 722 Jackson Place, NW Washington, DC 20503 White House.
4. BLM Land Use Planning Manual MS- 1601 BLM.
5. BLM National Environmental Policy Act H-1790-1 BLM.

Published by: McCuin, G., Schultz, B. and Orr, R., 2009, NEPA Response: A Guide for Reading and Responding to NEPA Documents Part Two of a Two Part Series, Extension | University of Nevada, Reno, FS-09-15

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