Federal Bureau of Land Management- Environmental Assessment (EA) Process (9-FD-b)
‘Significantly’ as used in the NEPA requires considerations of both context and intensity:
- This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, for a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short-term and long-term effects are relevant.
- This refers to the severity of effect. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. 40 CFR 1508.27.
Bureau of Land Management- Environmental Assessment (EA) Process Process
9-FD-b.1 - Application
A NEPA analysis is required for any use authorization applications that are not determined to be casual use, categorically excluded (CE), or covered by a determination of NEPA adequacy (DNA) that results in surface disturbance. There are many different types of applications that can trigger the NEPA process resulting in an Environmental Assessment. Examples include:
Utilization Application Process:
9-FD-b.2 - Land Use Plan
Bureau of Land Management (BLM) Land Use Plans (LUPs) are designed to provide guidance for future management actions and the development of subsequent, more detailed and limited-scope plans for resources and uses. LUPs include both resource management plans (RMPs) and management framework plans (MFPs).
Applications to use or develop resources on BLM administered land will be reviewed to ensure the proposal is in conformance with the LUP and a determination will be made as to what type of NEPA documentation is required. 43 CFR 1610.5-3; 516 DM 11.5. If the effects of proposed actions substantially differ from those projected in the existing NEPA analyses associated with the existing RMP, then a new or supplemental NEPA analysis must be conducted to address the differences and document the findings. BLM will consider:
- direct and indirect effects and their significance,
- cumulative effects and whether the new circumstances identify or produce incremental impacts added to those resulting from other past, present and reasonable foreseeable future management actions.
If the proposal is consistent with the reasonably foreseeable development analyzed in the RMP/EIS, and the proposal is consistent with RMP decisions, changes to the RMP/EIS are probably not necessary. BLM will work the lease holders to obtain appropriate site specific information, and then prepare an activity-level EA to approve the activity and set the stage for subsequent application for permits. If the proposal exceeds the reasonably foreseeable development analyzed in the current RMP/EIS, a new reasonably foreseeable development scenario and NEPA analysis supplementing the RMP/EIS would be warranted.
If the proposal exceeds and is substantially different from the reasonably foreseeable development analyzed in the RMP/EIS, and the new NEPA analysis could reasonably be expected to result in changes to RMP decisions, a plan amendment may also be warranted. When it is not certain whether the project proposal and resulting NEPA analysis will result in the need to amend the RMP, considerable time and cost savings will be achieved by beginning the process as a plan amendment. If it is later determined that a plan amendment is not warranted, the amendment may be cancelled and the supplemental NEPA analysis continued.
If the EA does not conform to the current LUP, BLM can either:
- adjust the actions or condition the authorization to conform to the plan or achieve consistency with the terms, conditions and decisions in the approved RMP; or
- Prepare the EA as an RMP amendment.
9-FD-b.3 - Reports from All Environmental & Siting Evaluations
The agency reviews and incorporates environmental surveys and consultations resulting from the on-site evaluation to develop site specific mitigation and conditions of approval (COA).
9-FD-b.4 – Notify Public of EA Preparation; May Include 30-day Notice Period or Public Meeting
43 CFR 46.305 requires the BLM, to the extent practicable, to provide for public notification and involvement during EA preparation. There must be some form of public involvement. However, the BLM has discretion as to the amount and type of public involvement. Examples of public involvement include external scoping, public notification before or during preparation of an EA, public meetings, or public review and comment of the completed EA and unsigned FONSI. The discretion for what type of public involvement is with the decision-maker, BLM.
Generally, the BLM will post a notice on their website, publish notice in local papers, and circulate to interested parties for a 30-day protest/comment period. A public meeting may also be held.
9-FD-b.5 - Was the EA Conducted Upfront?
An applicant (developer) may prepare the EA or may pay a contractor to prepare an EA (third-party contracting). The CEQ provides guidance for contracting EAs and EISs at 40 CFR 1506.5(b) and (c). When this happens, the BLM independently evaluates the information submitted and its accuracy, along with the environmental issues. The BLM is ultimately responsible for the scope and content of the EA. EAs should be initiated as early as possible; environmental studies and processes have the longest timelines of all steps in project development. Steps developers should take include:
- Contact the BLM field office regarding specific environmental issues for the project location and select an environmental consultant
- Check if the proposed location is included (or excluded) in BLM's Geothermal Programmatic Environmental Impact Study.
- Use the BLM Plan of Utilization checklist, which refers to a description of the facility, construction plans, operational characteristics, mitigation measures, and more.
9-FD-b.6 - Preliminary Environmental Assessment
The CEQ regulations state that an EA must contain brief discussions of the need for the proposal, the alternatives considered, the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted 40 CFR 1508.9(b). In addition, BLM requires the EA to contain certain information as well as particular program-specific requirements. Refer to the NEPA Web Guide for a current description of program-specific requirements related to EAs.
Note however that proposals are limited to Federal actions 40 CFR 1508.23. You would not have to develop or present the purpose and need for the non-Federal action, and you are not required to consider alternatives available to the non-Federal party for its action. However, if there are impacts on BLM managed resources, it may be useful to develop and suggest alternatives or mitigation for those non-Federal connected actions.
A proposal exists at that stage in the development of an action when an agency subject to the Act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the impacts can be meaningfully evaluated. Preparation of an 9-FD-c: Environmental Impact Statement on a proposal should be timed so that the final statement may be completed in time for the statement to be included in any recommendation or report on the proposal.40 CFR 1502.5. The EA must identify the known and predicted impacts that are related to the issues. 40 CFR 1500.4(c) and (g); 40 CFR 1500.5(d); 40 CFR 1502.16. An issue differs from an effect. A issue describes an environmental problem or relation between a resource and an action, while an impacts analysis predicts the degree to which the resource would be affected upon implementation of an action.
Impacts can be ecological (such as the impacts on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health. Impacts may also include those resulting from actions that may have both beneficial and detrimental impacts, even if on balance the agency believes that the impacts will be beneficial. 40 CFR 1508.8. The developer should analyze relevant short-term and long-term impacts and disclose both beneficial and detrimental impacts in the NEPA analysis. BLM recommends that the developer define the duration of long term and short-term, as it can vary depending on the action and the scope of analysis. The developer must consider and analyze three categories of effects for any BLM proposal: direct, indirect, and cumulative. 40 CFR 1508.25(c).
BLM recommends that the EA be organized so that it is logical and easy to follow. The recommended format presents the analytical information in a way that both informs BLM and enhances general reader understanding of the proposal, the analysis process, and the results. See BLM 2008 NEPA Handbook, Appendix 9. A description of the sections to be included as well as an explanation of what content should be included is below:
- Title, EA number, and type of project.
- Location of proposal. Identify the general location of the proposed action (details of the location are in the proposed action). Use maps where appropriate to assist in identifying the specific location of the proposed action.
- Name and location of preparing office.
- Identify the subject function code, lease, serial or case file number (where applicable). Identify, for example, the right-of way case file number, the application for a permit to drill identifier, etc.
- Applicant name. The applicant's address may also be included. (Note: Applicant name and address may be protected under the Privacy Act: refer to program-specific guidance and the exemptions under the Freedom of Information Act, which is referenced in the NEPA Web Guide.
- Background information that provides context.
Purpose and Need for Action and Decision to be Made:
- The purpose and need statement frames the range of alternatives. BLM recommends that you develop the purpose and need statement very early in the NEPA process and include it in scoping.
- BLM recommends including a section in the EA that describes the “Decision to be Made” to clearly spell out the BLM’s decision space and the focus of the NEPA analysis. It may also serve as a vehicle for describing the nature of other decisions that will be made by other entities in order to implement the proposed action and any alternatives.
Scoping and Issues section:
- Internal scoping is used to formulate the purpose and need; identify connected, similar and cumulative actions associated with the proposal; begin preparations for the cumulative effects analysis; determine the appropriate level of documentation; and prepare a public participation strategy.
- Field offices must engage in an appropriate level of scoping activities.
- BLM must offer at least a 30-day public comment period on issues and planning criteria.
- Depending on the local situation and planning issues, the BLM can also conduct a more involved scoping effort and include a series of public meetings, for example.
- BLM must document the results of scoping either in a scoping report, the draft plan amendment and EA or the proposed amendment/EA (if a draft plan amendment and EA is not prepared).
- External scoping for an EA is optional. External scoping involves notification and opportunities for feedback from other agencies, organizations, tribes, local governments, and the public. It can be used to identify coordination needs with other agencies; refine issues through public, tribal and agency feedback on preliminary issues; and identify new issues and possible alternatives. External scoping may help identify alternatives to the proposed action, as well as refine the proposed action. When evaluating the need for scoping, consider factors such as: the size or scale of the proposed action; whether the proposal is routine or unique; who might be interested or affected; and whether or not external scoping has been conducted for similar projects and what the results have been. It is up to the decision-maker to determine the need for and level of scoping to be conducted. BLM recommends that you document in the EA your rationale for determining whether or not to conduct external scoping. If you conduct external scoping, document the scoping process, the comments received, and the issues identified and how they were addressed in the EA. If you receive numerous comments, a summary of the comments may suffice for the EA; however, be sure to retain the comments and to document their disposition in the administrative record.
- You do not need to analyze all issues identified in the scoping process. Analyze an issue if its analysis will help in making a reasoned choice among alternatives, or if it is, or may be, related to a potentially significant effect. In addition, the decision-maker may elect to analyze other issues to assist in planning or decision-making. In such cases explain in the EA why you are electing to identify the issue for analysis.
Proposed Action and Alternatives:
- You must describe the proposed action and any alternatives considered. 40 CFR 1508.9(b). Illustrations and maps can be used to help describe the proposed action and alternatives.
- Consensus about the proposed action may be established by conducting scoping for the proposed action, but it may also be possible to establish consensus through other means of public involvement. Document the basis for concluding that there is consensus about a proposed action and identify the interested parties that participated in the consensus-building process.
- 42 U.S.C. 4332 provides that agencies of the Federal Government shall “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”
- CEQ has interpreted the regulations generally to require some consideration of a No Action alternative in an EA. The CEQ has issued guidance stating: “you may contrast the impacts of the proposed action and alternatives with the current condition and expected future condition in the absence of the project. This constitutes consideration of a no-action alternative as well as demonstrating the need for the project.” See CEQ - Emergency Actions and NEPA; CEQ - Guidance for Environmental Assessments of Forest Health Projects. Therefore, at a minimum, your EA must include documentation of the current and future state of the environment in the absence of the proposed action.
- This discussion does not need to be a separate section called “No Action Alternative,” but can be part of the environmental effects section of the EA to show the change in effects brought about by the proposed action or alternatives. Examples of how to do this can be found on the web guide.
- If the analysis of the no action alternative has the same level of treatment as the proposed action and any action alternatives, it may add clarity to include this analysis in a separate analysis of the No Action alternative, and then together in an environmental effects section. Including such a separate analysis may provide a useful context for comparing environmental effects of the various alternatives, and demonstrates the consequences of not meeting the need for the action.
- Must consider alternatives if there are unresolved conflicts concerning alternative uses of available resources.40 CFR 1508.9(b). There are no unresolved conflicts concerning alternative uses of available resources if consensus has been established about the proposed action based on input from interested parties, or there are no reasonable alternatives to the proposed action that would be substantially different in design or effects. However, the analysis of effects may result in new issues that require development and consideration of another alternative.
- Many conflicts concerning alternative uses of available resources are resolved in existing land use plan (LUP) and other programmatic decisions. Such programmatic decisions often establish “basic policy objectives for management of the area,” which may ultimately limit the “reasonable” alternatives to a proposed action to implement an LUP or programmatic decision. The purpose and need statement for implementation actions may be constructed in the context of the existing LUP or programmatic decisions; thus, alternatives that are not in conformance typically will not be “reasonable.” However, some proposed actions and alternatives will intentionally not be in conformance with the LUP because the intent is to amend or revise LUP direction; hence the alternatives are reasonable to analyze.
- If alternatives relevant to the proposed action have been described and analyzed in a previous environmental document, it may be sufficient to incorporate by reference the description and analysis from the previous document. In addition, tiering may be used to reduce the range of alternatives.
- Also, for EAs, the only alternatives that need to be analyzed are those that would have a lesser effect than the proposed action. However, be cautious in dismissing an alternative from analysis in an EA because it would have a “greater effect.” For many management actions, characterizing the overall effects of alternatives as “lesser” or “greater” will be difficult, because alternatives will often have lesser effects on some resources and greater effects on other resources when compared to the proposed action.
- While analysis of alternatives is not always required in EAs, a decision-maker may choose to analyze alternatives in detail to assist in identifying trade-offs or in decision-making and planning. In such cases, explain in the EA why you are electing to analyze the alternative in detail.
- For projects proposed under the Healthy Forests Restoration Act of 2003 (HFRA) (P.L. 108-148), refer to specific guidance regarding analysis of alternatives.
Alternatives Considered but Eliminated from Detailed Analysis:
- BLM recommends that the EA contain a description of alternatives to the proposed action that were considered but not analyzed in detail. Include alternatives that were recommended by members of the public or agencies but dismissed from detailed analysis after preliminary investigation. Document the reasons for dismissing an alternative in the EA.
- Here, discuss if the proposed action is in conformance with the land use plan and identify directly relevant laws, regulations, policies, program guidance, and local permitting requirements that are germane to the proposed action. An exhaustive list or discussion of all applicable laws or regulations is not necessary.
- The EA should contain a brief description of the environment likely to be affected by the proposed action or alternatives. The description of the affected environment should be limited to the information relevant to understanding the effects of the proposed action or alternatives. This may be it’s own section or combined with environmental effects.
- The EA must describe and provide the analysis of environmental effects of the proposed action and each alternative in detail. An issue identified through internal or external scoping must be analyzed if analysis is necessary to
- make a reasoned choice among alternatives (if any), or
- determine the significance of effects.
- The effects analysis must address direct, indirect and cumulative effects related to each issue.
- Mitigation measures, if any, must be identified and analyzed to avoid or reduce potentially significant effects. The analysis must describe the anticipated effectiveness of mitigation measures and any direct, indirect, and cumulative effects that remain after the application of all mitigation measures—that is, residual effects.
- Mitigation can be used to reduce the effects of an action below the threshold of significance, avoiding the need to prepare an EIS.
- Although described and analyzed in the body of the EA, the mitigation measures that will be implemented are explicitly adopted in the decision record (described below in 9-FD-b.7).
Tribes, Individuals, Organizations, or Agencies Consulted:
- The EA must list tribes, individuals, organizations, and agencies consulted. 40 CFR 1508.9(b). It may be appropriate to provide brief statements regarding the purpose for the contacts and the results. BLM may include comments received from tribes and the public in this section, though you may also include them in the discussion of scoping and issues earlier in the EA, or describe them in the decision record. If large numbers of substantive comments are received, you may summarize them in the EA or decision record, but you must retain the comment letters in the administrative record. It is important that you not only evaluate and summarize the substantive comments, but be able to demonstrate that you considered them.
List of Preparers:
- BLM recommends that you provide a list of the specialists who prepared the EA and their area of expertise
9-FD-b.7 - Review and Revise EA
BLM must prepare a draft RMP amendment and EA/finding of no significant impact (FONSI) when it is determined that a public review and comment period are appropriate or to meet NEPA requirements under certain limited circumstances per 40 CFR 1501.4(e)(2).
Otherwise, a draft plan amendment is not required, and the BLM can simply go from analyzing to preparing a proposed RMP amendment/EA/FONSI. If the BLM prepares a draft RMP amendment and EA/FONSI, it must offer a minimum 30-day public comment period. This period cannot be extended. Since a Notice of Availability is not published in the Federal Register for EA-level amendment, BLM field offices notify the public (including publication of legal notices in local newspapers) to announce the protest period. The BLM must resolve these comments before issuing a decision record/RMP amendment. A decision record may be issued on any portion of the proposed RMP amendment not protested, in coordination with BLM’s Washington, DC office.
State Level Review
BLM regulations require a 60-day Governor’s consistency review period for an EA LUP amendment. See BLM Land Use Planning Handbook, Appendix E. Pg. 14.
Revisions may be required and incorporated into the draft EA as a result of interagency review of the draft EA.
9-FD-b.8 - Is Public Review Required?
BLM may elect to release the unsigned EA for public review and comment. In deciding whether to do this, BLM will consider the complexity of the project and issues, as well as the level of public interest, in determining the length of review and comment period. Releasing the documents for public review and comment is typically done to allow the public, agencies and tribes the opportunity to respond to the analysis of impacts and to further long-term collaborative efforts.
9-FD-b.9 - Public Review and Comment of EA
CEQ regulations do not require agencies to make EAs available for public comment and review, though in certain limited circumstances FONSIs must be made available for public review. 40 CFR 1501.4(e)(2). BLM must have some form of public involvement in the preparation of all EAs however. There is discretion as to how much public involvement works best; examples of public involvement include external scoping, public notification before or during preparation of an EA, public meetings, or public review and comment of the completed EA and unsigned FONSI. The discretion for what type of public involvement is with the decision-maker, BLM.
In addition to public involvement in the preparation of EAs, BLM must notify the public of the availability of a completed EA and FONSI. 40 CFR 1506.6(b). In addition, some FONSIs must be made available for a 30-day public review. 40 CFR 1501.4(e)(1)-(2). Public review is necessary if or when:
- the proposal is a borderline case (such as when there is a reasonable argument for preparation of an EIS)
- it is an unusual case, a new kind of action, or a precedent-setting case, such as a first intrusion of even a minor development into a pristine area
- there is either scientific or public controversy over the effects of the proposal
- it involves a proposal that is similar to one that normally requires preparation of an EIS
Public review of the FONSI is also required if the proposed action is construction in a wetland or would be located in a floodplain. See CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations. BLM may elect to release the unsigned FONSI and EA for public review and comment. In deciding whether to do this, BLM will consider the complexity of the project and issues, as well as the level of public interest, in determining the length of review and comment period. Releasing the documents for public review and comment is typically done to allow the public, agencies and tribes the opportunity to respond to the analysis of impacts and to further long-term collaborative efforts.
BLM will also publish various notices in the Federal Register during the course of the NEPA process including notices announcing NEPA-related hearings, public meetings, or the availability of EAs and FONSIs on issues of national concern. 40 CFR 1506.6(b)(2).
Comments on the document and proposed action may be received in response to a scoping notice or in response to public review of an EA and FONSI or draft EIS. Comments received at other times in the process may not need a formal response. However, all substantive comments received before reaching a decision must be considered to the extent feasible. 40 CFR 1503.4.
The requirements for BLM responses to comments differ between EAs and EISs. BLM will include a discussion of substantive and timely comments received on the EA and FONSI and their disposition in the decision record. If a substantive and timely comment does not lead to changes in the EA or decision, BLM may reply directly to the commenter, and document the reply in either the EA or the decision record.
When a protest period or consistency review results in significant changes to the proposed plan, BLM will issue a Notice of Significant Change providing an additional 30-day public comment period. See BLM Table of Land Use Planning Process Steps.
9-FD-b.10 - Final Environmental Assessment
At the conclusion of the EA process, the BLM issues a Final Environmental Assessment. The Final Environmental Assessment may include:
- A background on the proposed action;
- A description of the proposed action and alternatives to the proposed action;
- A description of the affected environment;
- A discussion of the environmental impacts or consequences of the proposed action;
- A cumulative impacts analysis; and
- Recommended mitigation and monitoring for the proposed action.
9-FD-b.11 to 9-FD-b.12 - Significant Environmental Impact Identified?
If the proposed activity has had significant environmental impacts identified during EA preparation, then an EIS must be prepared. If the proposed activity is not likely to cause significant environmental impacts, then a Finding of No Significant Impact (FONSI) must be prepared.
9-FD-b.13 - Finding of No Significant Impact (FONSI)
The FONSI explains the reasons why an action will not have a significant effect on the human environment and thus why an EIS will not be required. It must succinctly state the reasons for deciding that the action will have no significant environmental effects. 40 CFR 1508.13; CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations. The FONSI need only provide a basis for the conclusion that the selected alternative(s) will have no significant effect. Alternatives that are not selected but may have significant effects do not trigger the preparation of an EIS nor do they have to be described in the FONSI. We recommend that the FONSI address the relevant context and intensity factors.
There are two situations when a FONSI is prepared:
- EA analysis shows that the action would have no significant effects.
- EA analysis shows that the action would have no significant effects beyond those already analyzed in an EIS to which the EA is tiered. You may find that your action has significant effects and still reach a FONSI, provided that those significant effects were fully analyzed in the EIS to which your EA tiered. In this case, we recommend that you state in the FONSI that there are no significant impacts beyond those analyzed in the EIS to which this EA is tiered.
The EA must be attached to the FONSI or incorporated by reference into the FONSI. 40 CFR 1508.13; CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations. The FONSI must note any other relevant environmental documents related to the findings, and must be signed and dated by the decision-maker. 40 CFR 1501.7 (a)(5); 40 CFR 1508.13. The FONSI is signed before issuance of the decision record (described below). The FONSI is not the authorizing document for the action: the decision record is the authorizing document. The FONSI must not be combined with the EA or decision record, although these may be attached to each other. 43 CFR 46.315(b). Although there are no format requirements, BLM has a suggested format and examples in their web guide.
An EA may demonstrate that a proposed action would have effects that are significant but could be reduced or avoided through mitigation. You may use a mitigated FONSI rather than an EIS if you are able to reasonably conclude, based on the EA analysis, that the mitigation measures would be effective in reducing effects to non-significance. The FONSI must clearly identify whether the mitigation measures are needed to reduce effects to non-significance. BLM must describe the mitigation measures you are adopting in the decision documentation, and must provide monitoring to ensure the implementation of these measures.
If a FONSI cannot be signed because there is a significant impact, then an EIS must be prepared. If BLM determines that an EIS is necessary, they draw the EA preparations to a close (retain all documents). You must publish in the Federal Register a Notice of Intent (NOI) to prepare an EIS (see 9-FD-c: Environmental Impact Statement). BLM may integrate the information assembled and analysis completed for the EA into the EIS and use it for scoping for the EIS. Information related to how and when scoping was conducted for the EA, the results, and any comments received can still be very helpful. However, the scoping for the EA does not take the place of the scoping required after publication of the NOI (to prepare an EIS). This is unless public notice for the EA scoping indicates that preparation of an EIS is a possibility and that comments will still be considered. See CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations.
When transitioning to an EIS, organize materials used for the EA so that pertinent portions may be integrated into the EIS. As discussed above, information about the scoping process and issues, contact lists used for scoping, and comments received may be especially helpful. Discussions from the EA of the purpose and need, proposed action and alternatives may streamline the initiation of the EIS process. Descriptions of the affected environment and the analyses of effects, including assumptions and methodologies, may also be directly incorporated into the EIS.
Refer to 9-FD-c: Environmental Impact Statement for assistance in preparing an EIS.
9-FD-b.14 - Decision Record
Although NEPA does not require a Decision Record (DR) for actions for which an EA has been completed, BLM has chosen to use this format to document the decision for an EA. The decision cannot be implemented until the DR is signed. There generally are program-specific requirements on the content and format for the DR. If there are not, use the guidance in the BLM - 2008 NEPA Handbook. After the DR is signed, notice of the signed DR, FONSI and EA must be provided.
A decision may not be implemented until the FONSI and DR have been signed and all other program-specific procedural requirements have been met. Most BLM decisions are full force and effect when the BLM issues the DR, meaning that the proposed activity can begin during the appeals period, unless a court enjoins the action.
9-FD-b.15 - Prepare and Publish Public Notice of Decision
The letter must be signed by the decision-maker responsible for preparing the FONSI. It may be used to request review and comment. This letter may be used to inform the reader of other details pertinent to the review.
9-FD-b.16 to 9-FD-b.17 - Has an Appeal or Protest been Filed?
The appellant is required to file a Notice of Appeal (43 CFR, Part 4 and Form 1823-1) in the office that made the decision within thirty (30) days of receipt of the decision. The burden of proof is on the appellant to show that the decision being appealed from is in error. The decision is in full force and effect and does not provide for an automatic stay. A request for stay must be filed with the Notice of Appeal. The petition must show sufficient justification based on the following standards:
- The relative harm to the parties if the stay is granted or denied;
- The likelihood of the appellant's success on the merits;
- The likelihood of immediate and irreparable harm if the stay is not granted; and
- Whether the public interest favors granting the stay. If a stay is granted, BLM will notify appellant that a stay has been granted and will remain in effect until lifted.
9-FD-b.18 - Implementation and Monitor as Provided in the Decision
Implementation and monitoring take place regardless of whether an appeal has been filed. Agencies have discretion, within their scope of authority, to select an appropriate form and method for monitoring, but they should identify the monitoring area and establish the appropriate monitoring system. Monitoring can be the result of an EIS, EA, or FONSI. For mitigation commitments that warrant rigorous oversight, an Environmental Management System (EMS) or other data or other management system could serve as a useful way to integrate monitoring efforts effectively. Regardless of the method chosen, agencies should make sure mitigation commitments are being performed in compliance with NEPA. The responsibility for developing an implementation monitoring program depends in large part upon who will actually perform the mitigation-the lead Federal agency or cooperative non-Federal partner or a combination of these. The lead agency should ensure that the information about the responsible parties, mitigation requirements and appropriate enforcement clauses are included in documents such as authorizations, agreements, permits, financial assistance awards or contracts. Ultimate monitoring responsibility rests with the lead Federal agency or agencies to assure that the monitoring is occurring when needed and that results are being properly considered. Agencies are expected to apply professional judgment and the rule of reason when identifying those cases that are important and warrant monitoring, and when determining the extent and type of monitoring used. The following is a list of factors agencies should use to determine importance:
- Legal requirements of statutes, regulations, or permits
- Human health and safety
- Protected resources and the proposed action’s impact on them
- Degree of public interest in the resource or level of public debate over the effects of the proposed action
- Level of intensity of project impacts
Agencies are encouraged to make proactive, discretionary release of mitigation monitoring reports and other supporting documents, and to make responses to public inquiries regarding mitigation monitoring readily available to the public through online or print media. The public may also assist with actual monitoring through public-private partnership programs.
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- National Environmental Policy Act
- 5 U.S.C. 552
- 42 U.S.C. 4332
- 40 CFR 1500.4
- 40 CFR 1500.5
- 40 CFR 1501.4
- 40 CFR 1501.7
- 40 CFR 1502.5
- 40 CFR 1502.16
- 40 CFR 1503.4
- 40 CFR 1506.5
- 40 CFR 1506.6
- 40 CFR 1508.8
- 40 CFR 1508.9
- 40 CFR 1508.13
- 40 CFR 1508.23
- 40 CFR 1508.25
- 40 CFR 1508.27
- 43 CFR 46.315
- 43 CFR 1610.5-3
- Healthy Forests Restoration Act of 2003
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- BLM - Land Use Planning
- CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations
- BLM - E-Forms
- BLM - Right-of-Way for Surface Occupancy - Form SF-299
- BLM - Land Use Planning Handbook
- BLM - Table of Land Use Planning Process Steps
- DOI - Departmental Manual - 516 DM 11
- BLM - Final Programmatic Environmental Impact Statement for Geothermal Leasing in the Western United States
- BLM - Plan of Utilization Checklist
- BLM - NEPA Web Guide
- BLM - 2008 NEPA Handbook
- BLM - Examples of Scoping Reports
- CEQ - Emergency Actions and NEPA
- CEQ - Guidance for Environmental Assessments of Forest Health Projects
- BLM - 4.0 Chapter 4 - Environmental Effects
- BLM - Techniques for Documenting a No Action Alternative in an EA
- BLM - Examples of FONSIs
- BLM - Decision Record Examples
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