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Legal Issues Jump to new posts
Settlement Eliminates 1,500 Acres of Designated Dusky Gopher Frog Critical Habitat outdoorwire 07/25/19 03:48 PM
The U.S. Fish and Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa). The Service designated the private land in Louisiana as critical habitat in 2012. Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach.

The Supreme Court heard oral argument in the case on October 1, 2018. The central issue in the case was whether an area that is not currently habitable by a species can be “critical habitat” for that species. The Service argued that an area that is not currently habitable may nevertheless be “critical habitat” if it can be made habitable through reasonable efforts.

In its November 27, 2018 decision, the Court held that for an area to be designated “critical habitat” it must be “habitat” of the species. Because the U.S. Court of Appeals for the Fifth Circuit Court concluded that “critical habitat” need not be limited to areas that are currently habitat, it did not give separate consideration to the meaning of the term “habitat.” For this reason, the Court remanded to the Court of Appeals to consider the meaning of “habitat” in the first instance. The Court also remanded the matter for the Court of Appeals to consider whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude the land arbitrary, capricious, or an abuse of discretion.

Prior to resolution of these questions on remand, the parties agreed to a consent decree that removed the private land from the species’ critical habitat designation, while preserving the remainder of the designated habitat.

In the Supreme Court proceedings, Nossaman represented the Energy and Wildlife Action Coalition and the San Luis & Delta-Mendota Water Authority, Coalition for a Sustainable Delta, and Western Growers Association as amici curiae in support of the landowners.

Source: Lexology
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NEPA Jump to new posts
NEPA Review and Climate Change - Proposed Guidance Aims to Define Federal Agency Duties and Discretion outdoorwire 07/25/19 03:13 PM
On Wednesday, June 26, 2019, the Federal Register published the White House Council on Environmental Quality’s (CEQ) proposed National Environmental Policy Act (NEPA) Guidance on Consideration of Greenhouse Gas (GHG) Emissions. If adopted, the guidance would fill a void created by the rescission of the Obama-era NEPA guidance on climate change in March 2017 by President Trump’s “Promoting Energy Independence and Economic Growth” executive order.

NEPA requires federal agencies to conduct a review of potential environmental impacts before approving major federally funded, licensed, or permitted projects. The proposed guidance is intended to streamline GHG analysis as part of the NEPA permitting process by relaxing the review criteria that agencies were directed to follow under the Obama-era guidance. Although the new guidance still instructs agencies to consider GHG emissions, it appears to give agencies more discretion in determining to what extent they do so.

Perhaps most notable are the provisions on quantifying GHG emissions. Under the proposed guidance, agencies are instructed “to attempt” to quantify projected GHG emissions “when the amount of those emissions is substantial enough to warrant quantification.” What constitutes “substantial enough” emissions is left to the agencies’ discretion. In making the determination of whether or not to quantify GHG emissions, CEQ also instructs agencies to consider whether quantifying a project’s projected GHG emissions “would be practicable and whether quantification would be overly speculative.” However, if an agency decides that quantification would be impractical or overly speculative, the agency should offer an explanation for its decision.

In addition to limiting quantification requirements, the proposed guidance contains further limiting instructions with regard to weighing the impact of GHG emissions. For example, under the proposed guidance, agencies should only assess GHG effects “when a sufficiently close causal relationship exists between the proposed action and the effect”; a “‘but for’ causal relationship is not sufficient.” In addition, CEQ instructs agencies that they need not give the analysis of the potential impacts of GHG emissions any more weight than other potential effects of a proposed project.

The proposed guidance differs from the rescinded Obama-era guidance in several additional key ways. For example, while it encourages agencies to consider potential alternative project plans and to compare alternative GHG emissions, the proposed guidance squarely states that “NEPA does not require agencies to adopt mitigation measures.” Conversely, the previous guidance listed several specific GHG emission-reducing mitigation measures and instructed agencies to “consider the potential for mitigation measures . . . when those measures are reasonable and consistent” with the proposed action. Additionally, although neither the previous nor proposed guidance requires agencies to conduct a monetized cost-benefit analysis, the proposed guidance note that if an agency decides to do so, the Social Cost of Carbon (SCC) is not meant to be used in such an analysis. In contrast, the previous guidelines stated that the SCC could be used for developing a quantifiable cost-benefit analysis.

The proposed guidance is not “law”; it is suggestive only. If implemented, however, it should not only help facilitate agencies’ consideration of GHG emissions as part of NEPA review, but also fill a perceived regulatory gap that some courts themselves have been filling on their own (with inconsistent results) over the last few years in the absence of regulatory guidance. See, e.g., Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (requiring FERC to consider GHG emissions from natural gas flowing through pipelines under NEPA review); WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222 (10th Cir. 2017) (rejecting argument that GHG emissions from coal combustion need not be assessed because lease approval would not affect coal combustion nationwide).

CEQ is currently seeking public comment on the proposed guidance until July 26, 2019.

Source: Lexology
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NEPA Jump to new posts
A Clear Shift in Policy: CEQ Issues Draft Guidance for Consideration of Greenhouse Gas Emissions Under NEPA outdoorwire 07/25/19 03:09 PM
On June 21, 2019, the White House Council on Environmental Quality (CEQ) released a new draft guidance redefining the process federal agencies will use to evaluate greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA). In marked contrast to GHG guidance issued by CEQ under the Obama Administration in 2016, the draft guidance encourages federal agencies undertaking NEPA review to follow the “rule of reason” and use their “expertise and experience” to decide whether and to what degree the agency will analyze particular effects of GHG emissions. Therefore, the draft guidance moves to a more deferential approach to agency review under NEPA than the Obama Administration’s prescriptive guidance. The draft guidance will be published in the Federal Register for public review and comment. If finalized, it will replace the Obama Administration’s 2016 guidance, which was withdrawn effective April 5, 2017, after President Trump issued Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.”

Hard Shift from 2016

Unlike the 2016 CEQ guidance which directed federal agencies to follow an extensive list of GHG considerations, the 2019 draft guidance proposes a much more streamlined (and more deferential), approach to analyzing the impacts of GHGs under NEPA. For example, the draft guidance notes:

Agencies should quantify a project’s projected direct and reasonably foreseeable indirect GHG emissions when emissions are “substantial enough to warrant quantification,” and when it is “practical” to do so using available data and GHG quantification tools. The guidance stresses that agencies should consider whether quantification of GHG emissions “would be overly speculative” or where necessary information is “not of high quality.”
The guidance does not address what “substantial” means, however it notes that following the “rule of reason,” there must be a close causal relationship between potential impact and anticipated GHG emissions to include GHG emissions in the analysis.
Agencies are not required to prepare separate cumulative effects analyses, nor undertake new research or analysis of climate effects.
Although NEPA requires agencies to consider reasonable alternatives to the proposed action, they are not required to adopt mitigation measures.
Finally, the 2019 draft guidance clarifies that federal agencies are not required to monetize the cost and benefit of a proposed project, and specifically, the social cost of carbon (SCC) need not be considered.

Significance of Draft Guidance

As noted above, CEQ’s 2019 draft guidance marks a dramatic shift from the heavily detailed approach outlined in 2016. CEQ’s draft guidance proposes a more subjective approach to federal agencies conducting reviews of “major federal actions” and explicitly recognizes the significant obstacles in quantifying the effect of GHG emissions under NEPA. For example, the draft guidance clarifies that the social cost of carbon (SCC) is not intended for NEPA decision-making, and states, “SCC estimates were developed for rulemaking purposes to assist agencies in evaluating the costs and benefits of regulatory actions and were not intended for socio-economic analysis under NEPA or decision-making on individual actions, including project-level decisions.” If an agency chooses to consider costs and benefits when analyzing different alternatives, the guidance directs that the agency should incorporate this analysis and disclose all assumptions and uncertainty associated with the analysis.

Similarly, if the agency analyses the impact of GHG emissions in their NEPA review, the draft guidance requires a description of the impacted environment and the reasonably-foreseeable future state of the environment by the proposed action and its reasonable alternatives. Because GHG emissions are often quantified on a global rather than a local scale, analysis of GHG emissions for a specific project will be inherently speculative. The draft guidance explains that under NEPA, only actions that significantly affect the quality of the human environment should be considered. “Significantly” is defined at 40 C.F.R. §1508.27. This section explains that in the case of a site-specific action, the significance of an action would depend on the effect on the specific locale rather than a global perspective. Additionally, when determining whether an action will significantly impact the environment, the agency should consider the intensity of the action, which takes in to consideration such factors as the degree to which the effect is uncertain or involve unique or unknown risks. The draft guidance recognizes that it may be difficult to perform a credible review for GHG impacts under NEPA.

CEQ will allow 30 days for public review and comment on the draft guidance after publication in the Federal Register.

Source: Lexology
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NEPA Jump to new posts
Council on Environmental Quality issues draft guidance on considering GHGs outdoorwire 07/25/19 03:05 PM
Council on Environmental Quality issues draft guidance on considering GHGs in environmental impact reviews. The White House Council on Environmental Quality (CEQ) — the executive agency tasked with promulgating regulations implementing the National Environmental Policy Act (NEPA) — has issued draft guidance for federal agencies on how to consider GHGs when conducting NEPA-required environmental impact assessments of proposed major federal actions that significantly affect the quality of the human environment. This draft guidance replaces an Obama administration document covering the same topic that CEQ rescinded as directed by President Donald Trump’s Executive Order 13783 (“Promoting Energy Independence and Economic Growth”). The new draft guidance instructs agencies that they “need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment.” The draft guidance also does not require federal agencies to weigh the effects of any considered alternatives using a monetized “social cost of carbon,” which had been an element of the previous guidance. The draft guidance will be available for public comment for 30 days once it is published in the Federal Register.
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NEPA Jump to new posts
White House CEQ issues new draft NEPA guidance on assessing GHG emissions outdoorwire 07/23/19 11:27 PM
On June 21, 2019, the White House Council on Environmental Quality (CEQ) issued a new draft guidance on how National Environmental Policy Act (NEPA) analysis and documentation should address greenhouse gas (GHG) emissions. CEQ Draft Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, Docket No. CEQ-2019-0002 (June 21, 2019) (Draft Guidance). The Draft Guidance, if finalized, would replace final guidance the Obama Administration CEQ issued on August 1, 2016, entitled “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews” (81 Fed. Reg. 51866, Aug. 5, 2016), which was withdrawn by the Trump Administration CEQ effective April 5, 2017, for further consideration pursuant to Executive Order 13783 dated March 28, 2017 (82 Fed. Reg. 16576), entitled “Promoting Energy Independence and Economic Growth.” Draft Guidance at 1. The purpose of the Draft Guidance is to facilitate compliance with NEPA by Federal agencies conducting reviews of proposed major Federal actions. Id. at 3.

The Draft Guidance notes that under CEQ regulations and the “rule of reason” that controls all NEPA analysis, impacts of proposed actions should be discussed in proportion to their significance. Id. at 4. Consequently, “Agencies preparing NEPA analyses need not give greater consideration to potential effects from GHG emissions than to other potential effects on the human environment.” Id. The Draft Guidance goes on to state that a proposed action’s “direct and reasonably foreseeable indirect GHG emissions may be used as a proxy for assessing potential climate effects.” Id. Direct effects are caused by the action and occur at the same time and place, and indirect effects are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Id.

The Draft Guidance also makes clear that quantification of GHG emissions is not always necessary. It explains that “Agencies should attempt to quantify a proposed action’s projected direct and reasonably foreseeable indirect GHG emissions when the amount of those emissions is substantial enough to warrant quantification, and when it is practicable to quantify them using available data and GHG quantification tools.” Id. Presumably the Draft Guidance leaves the determination regarding the level at which GHG emissions become substantial and warrant quantification to the agencies. The Draft Guidance also noted that an agency should explain its decision if it concludes that quantification would not be practicable or would be overly speculative. Id. at 5.

An agency may also reference local, regional, national, or sector-wide emission estimates, where GHG inventory information is available, to provide context for understanding the relative magnitude of a proposed action’s GHG emissions. The CEQ believes that this approach taken together with a qualitative summary discussion of the effects of GHG emissions based on an appropriate literature review, allows an agency to present the environmental impacts of a proposed action in clear terms with sufficient information to make a reasoned choice among the alternatives. Id. The CEQ indicated that it believes such a discussion would satisfy NEPA’s requirements that agencies analyze the cumulative effects of a proposed action, since the potential effects of GHG emissions are inherently a global cumulative effect. Thus, a separate cumulative effects analysis would not be required. Id.

The CEQ also explained that an agency should include a qualitative analysis to explain its basis for determining that quantification is not warranted, such as where an agency determines that the tools, methods, or data inputs necessary to quantify a proposed action’s GHG emissions were not practicable. The Draft Guidance explained that “Agencies are not required to quantify effects where information necessary for quantification is unavailable, not of high quality, or the complexity of identifying emissions would make quantification overly speculative.” Id.

In order to compare the current and reasonably foreseeable future state of the environment effected by a proposed action and its reasonable alternatives, analyses under NEPA should include a description of the effected environment. Id. at 6. Agencies would not need to undertake new research or analysis of potential changes to the effected environment in the proposed action area, however, and may summarize and incorporate by reference appropriate scientific literature.

The Draft Guidance also explains that agencies need not weigh the effects of the various alternatives in a NEPA monetary cost-benefit analysis using any monetized Social Cost of Carbon (SCC) estimates and related documents. Id. at 7. The SCC estimates were required in NEPA project analyses under the Obama Administration CEQ, but the Trump Administration through Executive Order 13783 dated March 8, 2018, specified that such estimates were directed to be withdrawn as no longer representing government policy. Id. at 7, citing 82 Fed. Reg. 16093 (Mar. 31, 2017). The CEQ explained that that “the SCC estimates were developed for rulemaking purposes to assist agencies in evaluating the cost and benefits of regulatory actions, and were not intended for socio-economic analysis under NEPA or decision-making on individual actions, including project-level decisions.” Id. at 8.

The Draft Guidance was submitted to the Office of Management and Budget for its review. Comments on the Draft Guidance will be due thirty (30) days after date of publication in the Federal Register.

Source: Lexology
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NEPA Jump to new posts
FWS Moves To Add Quantitative Measures To Recovery Plans outdoorwire 07/23/19 11:23 PM
In its newly-released proposed recovery plan for the Desert pupfish (Cyprinodon macularius), the U.S. Fish and Wildlife Service (“Service”) has put into action its internal plan to add quantitative criteria to recovery plans. The pupfish recovery plan, originally adopted in 1993, contained only qualitative criteria when adopted. In its proposed revisions to the pupfish’s recovery plan, the Service adds quantitative criteria for whether the pupfish should be considered for delisting or when it has “recovered,” including the number of established populations that would make the species eligible for delisting, as well as the new requirement that a Tier 2 population of the species must persist for at least 20 years. This is one of the first of the approximately 182 recovery plans that the Service anticipates updating and revising pursuant to the Interior Department’s “priority performance goals,” which commits the Service to revising all Endangered Species Act (“ESA”) recovery plans to include quantitative criteria by September 2019.

ESA recovery plans are often described by the Service as “non-regulatory guidance documents that identify, organize and prioritize recovery actions, set measurable recovery objectives, and include time and cost estimates.” The Service’s push to add quantitative criteria to recovery plans is intended to address the often lacking criteria for when a species has recovered and is therefore eligible to be removed from the list of Endangered and Threatened Species. At present, the majority of ESA recovery plans establish qualitative criteria which would allow a species to be downlisted from endangered to threatened, but do not establish delisting criteria.

In addition to the pupfish, the Service has issued proposed revised recovery plans for the Delhi sands flower-loving fly (Rhaphiomidas terminates abdominalis) and the Florida salt marsh vole (Microtus pennsylvanicus dukecampbelli), among others. For many of these species, the new recovery/delisting criteria will likely be irrelevant, as the species continue to decline in population and remain far from any sort of recovery. However, this move does address a notable deficiency in the existing ESA recovery plans and will be an important one for species whose populations have rebounded since listing.

Source: Lexology
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Access Roundtable Jump to new posts
Summer of Discontent - EPA looks to eliminate California Air Resources Board outdoorwire 07/23/19 11:20 PM
Despite an effort by the automotive industry, the Environmental Protection Agency (EPA) is set to finalize a proposal that would freeze fuel economy standards at roughly 37 miles per gallon for the next six years, rather than raising them to nearly 51 miles per gallon for 2025 models. The rule would also revoke California’s existing waiver to set its own rules under the Clean Air Act, a practice the federal government has allowed for decades.

“As we acknowledged earlier this year, California Air Resources Board (CARB) failed to put forward a productive alternative, and we are moving forward to finalize a rule with the goal of promoting safer, cleaner and more affordable vehicles,” said White House spokesman Judd Deere.

Administration officials say that the emissions targets need to be readjusted because consumers prefer bigger and less fuel-efficient vehicles than regulators initially envisioned. As a result, they argue Americans will be forced to drive older, less safe vehicles.

California’s power to set its own standards dates back to 1967 legislation and has been reaffirmed on the prior occasions that Congress amended the law. It now appears that California may litigate the issue of its ability to separately regulate emissions.

“Despite the White House’s rejection of the automakers’ appeal, we stand with those automakers, other states, and environmental leaders in pushing for one national standard — one that doesn’t backtrack on the progress states like California have made in protecting the climate and our kids’ health,” California Gov. Gavin Newsom said.

Chairwoman of CARB Mary Nichols, recently addressed the conflict in front of a House Energy and Commerce subcommittee.

“California is not here because we are seeking to defy the federal government. We are in the business of setting emissions standards for vehicles based on the provisions of the Clean Air Act, which recognizes the important fact that California is very big and has some of the biggest markets for vehicles and also has some of the worst air quality in the United States,” she said.

It appears that CARB is still willing to work on a compromise. Nichols elaborated, “I would state categorically that we proposed areas where we would be willing to come to a compromise with the administration and we never were told precisely what was wrong with any of those proposals. We were simply told they were inadequate and we had simply failed in our jobs by not bringing a proposal that the administration found acceptable.”

“We have always been prepared to go to the negotiating table in good faith,” she said. “We still are.”

Moving forward, the auto industry now faces the prospect of years of litigation with an uncertain regulatory future. Automakers could face sweeping upheaval in the nation’s automotive market, should carmakers eventually have to meet different standards in different states.

Source: Lexology
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Wildlife Jump to new posts
Environmental Groups Seek Protection for Mountain Lions in Southern California outdoorwire 07/23/19 11:12 PM
The Center for Biological Diversity and Mountain Lion Foundation submitted a petition to the California Fish and Game Commission (the “Commission”) to list mountain lions (Puma concolor) in southern and central California as threatened or endangered pursuant to the California Endangered Species Act. The petition identifies habitat loss and fragmentation, due to roads and development, as significant threats to the survival of the local populations.

The petition acknowledges that “there is no reliable estimate of mountain lion abundance in California,” but includes estimates for several populations within the evolutionarily significant unit the petition describes. The boundary of the proposed evolutionarily significant unit encompasses the area south of I-80 in northern California and west of I-5, including the Central Coast and much of the Central Valley, and all of southern California south of I-15, including portions of San Bernardino and Kern Counties and all of Imperial, Los Angeles, Orange, Riverside, and San Diego Counties.

While the federal Endangered Species Act extends protection to species, subspecies, and distinct population segments, the California Endangered Species Act only extends protection to species and subspecies. Nonetheless, the decision of a Court of Appeal to uphold the listing of two populations (or evolutionarily significant units) of coho salmon in 2007 appears to have affirmed the Commission’s interpretation of the term “subspecies” as used in the California Endangered Species Act. (Cal. Forestry Assn. v. Cal. Fish & Game Com. (2007) 156 Cal.App.4th 1535.)

Commission staff must conduct a 10-day review of the petition for completeness. If Commission staff deem the petition complete, the next step is referring it to the California Department of Fish and Wildlife to conduct a 90-day evaluation of the petition.

Source: Lexology
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Access Roundtable Jump to new posts
US Forest Service Proposes NEPA Streamlining Rule: Implications for the Outdoor Recreation Industry outdoorwire 07/23/19 11:03 PM
On June 13, the US Forest Service announced a proposal to streamline environmental review of proposed projects on National Forest System land.1 The proposed rule would modify the agency’s regulations implementing the National Environmental Policy Act (NEPA).

NEPA requires federal agencies to assess the environmental impacts of their proposed actions, including approvals of private activities on federal land. Compliance requires considerable agency resources, even when the NEPA process is funded by project proponents. Consistent with widespread federal efforts to streamline regulations, and in the face of skyrocketing Forest Service expenditures on wildland firefighting (which accounted for 57 percent of its annual spending in 2018), the agency is placing a renewed emphasis on efficiency.2

Three proposed revisions are particularly relevant for current and prospective Forest Service permit holders: (1) addition or expansion of Categorical Exclusions (CE), which define categories of activities that are exempt from detailed analysis under NEPA; (2) modification of requirements for public engagement on the appropriate scope of NEPA analysis (“scoping”); and (3) reduction of redundant NEPA reviews for proposed actions that are similar to previously analyzed actions. If finalized, those changes would reduce regulatory burdens on ski areas, outdoor recreation providers, and other project developers working on National Forest land.

Proposed Categorical Exclusions

NEPA requires an often-lengthy environmental analysis of all major federal actions, including permit approvals. That analysis often takes the form of an Environmental Assessment (EA) or Environmental Impact Statement (EIS). Activities covered by a CE, including those undertaken by special use permit holders on National Forest land, do not require an EA or EIS except in extraordinary circumstances3—significantly reducing time, cost, and resources associated with the approval process. The proposed rule expands several CEs relevant to project developers and recreational special use permit holders.

Construction at an Existing Recreation Site

The proposed regulations include a new CE, which would “cover the construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site.”4 This broad CE would include not only existing recreation sites but also “infrastructure or improvements that are adjacent or connected to an existing site and provide access or utilities for that site.”5 Recreation sites include both sites managed by the Forest Service and those managed by special use permittees, such as ski areas, campgrounds, fishing sites, and trailheads.6 Examples of actions covered by the proposed CE include replacing a ski area chairlift, constructing or reconstructing a parking area, and reconstructing or expanding a recreational rental cabin.7

Construction at an Existing Administrative Site

A similar proposed CE would cover construction, reconstruction, or decommissioning of an existing Forest Service administrative site. Administrative sites are areas of land within, adjacent to, or even at a considerable distance from a National Forest boundary; typically, those lands are used for forest headquarters, ranger stations and similar Forest Service activities. However, it is not uncommon for ski areas and other private parties to lease administrative sites for use in their operations. This CE would improve the process of converting such sites to visitors’ centers, employee housing, or other purposes.

Activities Requiring Less than 20 Acres of Land

The Forest Service also proposes to expand an existing CE to cover “the approval, modification, or continuation of special uses of National Forest lands that require less than 20 acres of land.”8 The current version of the CE excludes only “minor” activities that require less than five acres of land; the proposed CE quadruples the acreage threshold and removes the term “minor.”9 Historically, the Forest Service has relied on the existing CE to approve projects such as ski chairlift replacements and fire mitigation activities. The proposed changes would increase flexibility by allowing permit holders and developers to avoid EA/EIS processes for larger projects, so long as those projects are contained within 20 acres.

Additional Activities

Another proposed CE would cover authorization of new activities in existing facilities or areas in which those activities are consistent with existing Forest Service approvals.10 That change would allow managers of existing recreation sites to expand the activities they offer without undertaking full NEPA analyses. Examples of such expansions include issuance of outfitting and guiding permits for backcountry skiing or mountain biking and permits for special events.11

“Right-Sizing” Scoping and Public Participation

NEPA requires opportunity for public participation. The extent of public involvement varies according to the proposed action, but it can prove time-consuming and costly. One of the Forest Service’s proposed changes is aimed at “right-sizing” public engagement opportunities.12 Currently, the agency exceeds Council on Environmental Quality requirements by conducting scoping for all proposed actions, including those that are unlikely to have a significant environmental impact.13 The proposed rule would require scoping only for an EIS (not a CE or EA), thereby allowing the agency to allocate its resources to projects that are “potentially more complex or have greater public interest.”14 At the same time, the agency proposes to allow for more public engagement at the discretion of the local responsible official.15

Determining NEPA Adequacy

In another effort to increase efficiency, the Forest Service proposes a process for determining whether an existing NEPA analysis, such as an EA or EIS, can “suffice for a new proposed action.”16 This Determination of NEPA Adequacy (DNA) poses a series of questions that evaluate a proposal’s similarity to previously analyzed actions, alternatives, and effects, as well as new information associated with the proposal under review. The agency would not need to undertake a new NEPA process for actions that are sufficiently similar to others that already have undergone NEPA analysis. The DNA is modeled after similar procedures used by the Department of the Interior and other federal agencies.

Opportunity for Engagement

The proposed rule will not be finalized until after the public comment period ends on August 12, 2019. Interested and potentially affected parties should consult with counsel to frame targeted comments that will inform finalization of the rule.

Source: Lexology
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Access Roundtable Jump to new posts
Executive Order on Evaluating and Improving the Utility of Federal Advisory Committees outdoorwire 07/23/19 10:52 PM
Executive Order on Evaluating and Improving the Utility of Federal Advisory Committees

By executive order issued June 14, 2019, the Trump administration has ordered federal agencies to review the need for each of its advisory committees established under the Federal Advisory Committee Act and eliminate at least one-third not required by statute. Each agency can receive a waiver only if the Director of the Office of Management and Budget (OMB) determines that one is “necessary for the delivery of essential services, for effective program delivery, or because it is otherwise warranted by the public interest.”

Read the complete EO at:

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