RAPID/Roadmap/9-FD-c

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Regulatory and Permitting Information Desktop Toolkit

Federal Bureau of Land Management - Environmental Impact Statement (EIS) Process (9-FD-c)

If the proposed action is not categorically excluded and will have a significant environmental impact, the responsible lead agency must prepare an environmental impact statement (EIS). 40 CFR 1502. The lead agency initiates the EIS process by publishing a notice of intent (NOI) as part of the formal scoping process. Draft EISs are made available for public review and comment, and final EISs include all responses to comments received. The lead agency is responsible for documenting the decision on the action in a record of decision (ROD). 40 CFR 1505.2.

BLM departmental policy requires that all rule-making documents be published in the Federal Register for public comment and that the notice include a Record of Compliance with a statement indicating whether the proposed policy would or would not constitute a major Federal action significantly affecting the quality of the human environment (318 DM 4). This statement may be supported by an EIS.

It is also important to inquire as to whether a programmatic EIS (PEIS) is already in place for the area. PEIS is defined under 40 CFR 1502.4(c). The tool is used "when preparing statements on broad actions agencies may find it useful to evaluate proposals in one of the following ways:

  • Geographically, actions occurring in the same general location;
  • Generically, actions that have relevant similarities; and
  • By stage of technological development.”

See BLM National Land Use Planning Conference presentation.

There is a PEIS for Geothermal Leasing in Western states. The PEIS covers Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.


Bureau of Land Management - Environmental Impact Statement (EIS) Process Process

9-FD-c.1 - Application

There are many different types of applications that can trigger the NEPA process resulting in an Environmental Impact Statement. Examples include:

1. Bureau of Land Management - Notice of Intent to Conduct Geothermal Resource Exploration Operations - Form 3200-9;

Exploration Application Process BLM:
4-FD-a

2. Bureau of Land Management - Geothermal Drilling Permit - Form 3260-002

Drilling Application Process:
5-FD-a

3. Bureau of Land Managment - Right-of-Way for Surface Occupancy - Form SF-299

Land Access Process Overview (Geothermal)

Land Access Process Overview (Solar)

Land Access Process Overview (Transmission)


4. Bureau of Land Management - Sundry Notice Operations Plan - Form 3160-5

Utilization Application Process:
7-FD-a

5. Utilization Plan Utilization Application Process:
7-FD-a


9-FD-c.2 - Land Use Plan

Land Use Plans (LUPs) are used by state and federal agencies to manage public lands and they form the basis for every action and approved use of those lands. The Federal Land Policy and Management Act of 1976 (FLPMA) requires the BLM to develop and maintain LUPs called Resource Management Plans (RMPs) that cover individual planning units. In some cases, the proposed project may not be consistent with the current RMP. If that is the case, the RMP may require an amendment, and the amendment may require an EIS.


9-FD-c.3 - Reports from All Environments & Siting Evaluations

Reports from all environmental and siting evaluations are used in the Environmental Impact Statement (EIS) process (e.g. cultural resources survey report, endangered species survey report).


9-FD-c.4 - Contractor Selection Process

A contractor may be retained to prepare all or part of an EIS. BLM is responsible for all content within the EIS and supporting materials, all of which must be included in the administrative record. In addition, decisions and findings are those of the BLM, not of the contractor, and must reflect a review of the EIS. It is recommended that BLM prepare the findings and decision records, not the contractor.

The CEQ provides guidance for contracting EISs at 40 CFR 1506.5(b) and (c). The BLM may permit an applicant (developer) to prepare the EA. An applicant (developer) may also pay a contractor to prepare an EA (this is called third-party contracting). When an applicant or contractor prepares an EA, the BLM must independently evaluate the information submitted and its accuracy, and the environmental issues. Though the applicant or contractor prepares the EA, the BLM is responsible for the scope and content of the EA. Additionally, the BLM or a cooperating agency(ies) must select the cooperator, and a conflict of interest disclaimer must be included in the EIS. The CEQ speaks directly to this requirement at 40 CFR 1506.5(c):

It is the intent of these regulations that the contractor be chosen solely by the lead agency, or by the lead agency in cooperation with cooperating agencies, or where appropriate by a cooperating agency to avoid any conflict of interest. Contractors shall execute a disclosure statement prepared by the lead agency, or where appropriate the cooperating agency, specifying that they have no financial or other interest in the outcome of the project. If the document is prepared by contract, the responsible Federal official shall furnish guidance and participate in the preparation and shall independently evaluate the statement prior to its approval and take responsibility for its scope and contents. Nothing in this section is intended to prohibit any agency from requesting any person to submit information to it or to prohibit any person from submitting information to any agency.

Additionally, when using third-party contracting, BLM recommends an MOU between the BLM and the applicant. This MOU must:

  • establish the roles and responsibilities of each party; and
  • specify that all costs of using a contractor in the preparation of the NEPA document will be borne by the applicant - Cost Recovery Agreement (BLM recovers from applicant all costs incurred)

There are two principle approaches for contracting environmental documents: standard federal contracting procedures (competitive procurement), and third party contracting. Procurement of contracts is subject to the Federal Acquisition Regulation. 48 CFR 1.6. Third party contracting may be used most effectively for non-Bureau energy initiatives (for example, power plants and certain rights-of-way). The key element in both approaches is the BLM control of analytical standards used, of the products produced, and of the schedule. Work with procurement personnel early in the process when considering contracting. See the NEPA Web guide for more information and suggestions on contracting.

A developer’s BLM State Office may establish policy related to contracting NEPA work. It is recommended that the developer start working with their State NEPA coordinators to ensure that any applicable guidance is used in this process.


9-FD-c.5 - Kickoff Meeting

The kickoff meeting is attended by the developer, Project Manager, agency inter discipline (ID) team members, consultants, and cooperating agency representatives to discuss the project, timing, develop time lines and roles and responsibilities.


9-FD-c.6 - Preparation Plan

The consultant (or agency/applicant) must develop a preparation plan before initiating an EIS for land use plans. BLM recommends that the developer construct a preparation plan for other EISs as well. The preparation plan facilitates coordination between participants involved in the preparation of the EIS and those with approval and oversight responsibility. A properly prepared preparation plan provides the foundation for the entire planning process by identifying the issues to be addressed; the skills needed to address the issues; a preliminary budget that can be used for cost estimates; important legal, regulatory and policy guidance; and available and needed data and metadata.

Appendix F-1 in the BLM - Land Use Planning Handbook describes in detail what goes into a preparation plan for an LUP; the contents may be tailored to fit any action effort involving an EIS. BLM recommends that preparation plans contain the following information and discrete sections:

  • Introduction and Background;
  • Anticipated Issues and Management Concerns;
  • Important Legal, Regulatory and Policy Guidance;
  • Data and GIS Needs, Including Data Inventory;
  • Participants in the Process;
  • Process for EIS Development;
  • Schedule;
  • Communications Strategy; and
  • Budget.

The public involvement and interagency or intergovernmental coordination and consultation strategy is an integral part of the EIS process. BLM recommends that this strategy be described in the preparation plan and that it remain flexible. BLM recommends that the public involvement strategy identify:

  • tribes, individuals, organizations and other agencies known to be interested or affected by the proposed action;
  • agencies with special expertise or jurisdiction by law; possible cooperating agencies; the role, if any, of the BLM Resource Advisory Council;
  • schedules for scoping, including public meetings, and timing for electronic and postal mail notifications; and
  • the process for tracking and recording public involvement and include lists of contacts.

The public involvement strategy will likely be updated during the EIS process. Agencies need ensure that the public involvement strategy is sensitive to language or cultural barriers by holding meetings in ways that accommodate cultural traditions, values and methods of communication. The requirements are outlined in the Federal Advisory Committee Act of 1972 (FACA).

The BLM provides several examples of Non-LUP Prep Plans or EIS Prep Plans.


9-FD-c.7 - Review Prep Plan and Prepare NOI for Federal Register

The EIS process is initiated with publication of a notice of intent (NOI) and requires formal scoping.

Notice of intent (40 CFR 1508.22)

"Notice of intent" means a notice that an environmental impact statement will be prepared and considered. The notice shall briefly:

(a) Describe the proposed action and possible alternatives.
(b) Describe the agency's proposed scoping process including whether, when, and where any scoping meeting will be held.
(c) State the name and address of a person within the agency who can answer questions about the proposed action and the environmental impact statement.

At the earliest opportunity, the BLM should notify the public, Indian Tribes, other Federal agencies, and state and local governments about its intent to engage in land use planning for a given area. BLM managers should take whatever measures they feel necessary to ensure all interested parties are notified of upcoming planning actions. At a minimum, however, the BLM must distribute two types of notices.

(a) Publish a notice of intent (NOI) in the Federal Register. The BLM must publish a NOI in the Federal Register prior to scoping to announce its decision to prepare an EIS. The NOI should identify preliminary issues and planning criteria and provide for a thirty (30)-day public review and comment period. In addition to the Federal Register notice, BLM should solicit ideas through mailings, newspaper articles, public meetings, and workshops. As well as gather, screen and evaluate ideas from public, private and internal sources and summarize the issues to guide the planning process. This is also the start of the formal NEPA scoping process inviting the public to identify issues or land use problems that need to be resolved.
(b) Distribute scoping notices. Simultaneously with the Federal Register NOI, the BLM should submit a scoping notice to Federal agencies, state agencies, the heads of county boards, other local government units, and Tribal chairmen or Alaska Native leaders and any other entities/individuals who have requested such notice or the Field Manager has reason to believe would be concerned with the planning effort. 43 CFR 1610.3-1(d). BLM should request the current status of government entities’ officially approved or adopted resource-related plans, and the policies and programs contained therein.


9-FD-c.8 - Notice of Intent to Prepare EIS (Federal Register)

Publishing the Notice of Intent (NOI) in the Federal Register begins the formal scoping process and serves as the official legal notice that the BLM, or when the BLM is the lead agency, the BLM and its cooperators, are commencing an EIS. The NOI must include:

  • A description of the purpose & need, the draft proposed action, & possible alternatives, if available. For some BLM-initiated actions, where the proposed action has not yet been developed in detail, the reason for initiating the EIS must be clearly stated;
  • A description of the agency’s proposed scoping process; this should include whether, when, and where any scoping meetings will be held. If the time and place of scoping meetings is not known, the NOI must state how the time and place will be announced;
  • The name and address of the BLM contact for the proposed action and EIS; and
  • For planning documents, also identify preliminary planning issues and planning criteria.

40 CFR 1508.22; BLM - Land Use Planning Handbook.

The BLM requires that the NOI be formatted in accordance with Federal Register guidance on notices. Check program guidance for any additional information that must be included in the NOI.

A revised NOI may be required if there are any substantial changes to the proposed action or if substantial new circumstances or information arise that relate to the proposal or its impacts, such that the BLM would essentially be starting over with the NEPA process. Minor changes may be addressed in the Notice of Availability (NOA) for the draft EIS.

Contact your BLM State office for current briefing and approval procedures for NOIs and NOAs.

Background

You must publish various notices in the Federal Register during the course of the NEPA process:

  • a notice of intent (NOI) to prepare an EIS in the Federal Register;
  • a notice of availability (NOA) for draft, final, and supplemental EISs for land use plans and land use plan amendments, and for actions with effects of national concern. You must file EISs with the EPA, who publishes its own Federal Register notice;
  • an NOA for RODs for actions with effects of national concern; and
  • notices announcing NEPA-related hearings, public meetings.

40 CFR 1501.7; 40 CFR 1506.6(b)(2); BLM - Land Use Planning Handbook.

Offices should follow the most current guidance on review and submission of Federal Register notices.

The Office of the Federal Register (OFR) has established procedures and formats to be used when preparing a notice for publication. Individuals should consult the latest version of the Document Drafting Handbook prepared by the OFR for detailed guidance on the preparation of notices for publication in the Federal Register.


9-FD-c.9 and 9-FD-c.10 - Formulate Alternatives, Analyze Effects of Alternatives

The BLM, contractor, and developer will all collaborate to formulate alternatives and analyze their effects. However, while the developer and contractor may play a role in the selection of the preferred alternative, the ultimate decision-making authority rests with the BLM.


Determining the Scope of an EIS 40 CFR 1508.25

"Scope" consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. The scope of an individual statement may depend on its relationships to other statements. 40 CFR 1502.20; 40 CFR 1508.28. To determine the scope of environmental impact statements, agencies must consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:
(i) Automatically trigger other actions which may require environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.
(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.
(3) Similar actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.

(b) Alternatives, which include:

(1) No action alternative.
(2) Other reasonable courses of actions.
(3) Mitigation measures (not in the proposed action).

(c) Impacts, which may be:

(1) Direct;
(2) indirect;
(3) cumulative.


Formulating Alternatives

The NEPA directs the BLM to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources…” (NEPA Sec. 102(2)(E)).

The range of alternatives explores alternative means of meeting the purpose and need for the action. The purpose and need statement helps define the range of alternatives. The broader the purpose and need statement, the broader the range of alternatives that must be analyzed. The developer must analyze those alternatives necessary to permit a reasoned choice. 40 CFR 1502.14. For some proposals there may exist a very large or even an infinite number of possible reasonable alternatives. When there are potentially a very large number of alternatives, the developer must analyze only a reasonable number to cover the full spectrum of alternatives. CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 1b. When working with cooperating agencies, the range of alternatives may need to reflect the decision space and authority of other agencies, if decisions are being made by more than one agency.

In determining the alternatives to be considered, the emphasis is on what is "reasonable" rather than on whether the proponent or applicant likes or is itself capable of implementing an alternative. “Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.” CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 2a. Only define whether an alternative is “reasonable” in reference to the purpose and need for the action. For externally generated action, the range of alternatives will typically include at least denying the request (No Action); approving the request as the proponent proposed; or approving the request with changes BLM makes to the proponent’s proposal.

In some situations it may be appropriate for the developer to analyze a proposed action or alternative that may be outside the BLM’s jurisdiction. CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 2b. Such circumstances would be exceptional and probably limited to the broadest, most programmatic EISs that would involve multiple agencies. For most actions, BLM recommends that the purpose and need statement be constructed to reflect the discretion available to the BLM, consistent with existing decisions and statutory and regulatory requirements; thus, alternatives not within BLM jurisdiction would not be “reasonable.”

Note that if a contractor is hired, BLM still works to develop the contract, meets frequently with the contractor, reviews all products, and develops necessary partnerships with counties, the state, Tribes, other Federal agencies, and other BLM offices.


9-FD-c.11 - Draft Environmental Impact Statement (EIS)

The CEQ regulations require NEPA documents to be “concise, clear, and to the point.” 40 CFR 1500.2(b); 1502.4. Analyses must “focus on significant environmental issues and alternatives” and be useful to the decision-maker and the public. 40 CFR 1500.1. Discussions of impacts are to be proportionate to their significance. 40 CFR 1502.2(b). Similarly, the description of the affected environment is to be no longer than is necessary to understand the effects of the alternatives. 40 CFR 1502.15. “Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.” 40 CFR 1500.1. For an internally generated project (one in which the BLM is developing the proposed action), the usual analytical steps for an EIS are as follows:

  • Identify the purpose and need for action and describe the proposed action to the extent known.
  • Develop a scoping strategy and conduct scoping.
  • Identify issues requiring analysis.
  • Refine the proposed action.
  • Develop reasonable alternatives to the proposed action.
  • Identify, gather and synthesize data.
  • Analyze and disclose the impacts of each alternative.
  • Identify potential mitigation measures to reduce adverse impacts.

For an externally generated project (one in which a non-BLM party has developed a proposed action), the analysis steps are the same except that the first step in the process is when a proposal regarding an action to be taken is accepted, and move forward into NEPA analysis.

9-FD-c.12 – Conduct Draft EIS Administrative Review

Once the Draft EIS is complete, the BLM review it for adequacy and ensures that it complies with both BLM and CEQ NEPA regulations. Timelines for the review can vary widely between field offices, and the required review process heavily influences the schedule, scope, and budget for the EIS. Important items to consider include:

  • Will the BLM invite cooperating agencies or the developer to review the document prior to publication?
  • Who will review the Draft EIS? Will the BLM require reviews by staff in state offices or a headquarters office?
  • Will the BLM field office need to review the document and require revisions before it goes to these other reviewing parties?
  • Is a review required by the Office of Environmental Planning and Compliance (OEPC)?
  • How will the BLM respond to comments received?

9-FD-c.13 - Notice of Availability of Draft EIS (on Federal Register)

BLM must provide public notification of the availability of the draft EIS, and that notification must include publication of a Notice of Availability (NOA) in the Federal Register for actions with effects of national concern. 40 CFR 1506.6(b).

File the draft EIS with the EPA in accordance with BLM procedures. The EPA will then publish notice of the filing in the Federal Register. The date the EPA notice appears in the Federal Register initiates the public review period. Consult program-specific guidance for additional requirements regarding filing procedures.

There are no content or format requirements for an NOA other than those associated with the preparation of notices for publication in the Federal Register. In addition to announcing the availability of a document and the public review period, where applicable, the NOA will generally identify the purpose and need of the action, describe the proposed action and alternatives, and indicate the dates and location of public meetings on the document. Consult program-specific guidance for any other content requirements. The developer should check with their State NEPA coordinator and Public Affairs Chief for information about the appropriate documentation to include with the NOA. Public affairs will also assist with procedures for notifying appropriate members of the Congressional Delegation from the developer’s state.

A press release is usually prepared for national media, local media, or both to announce the availability of the draft and to announce any public meetings or hearings.

Distribute the draft EIS before or on the same day copies are transmitted to the EPA for filing. Sufficient copies must be made available to any requesting party and for review in appropriate for review in appropriate BLM offices, including the State Office, and for distribution to those who request a copy during the review period. The use of websites to distribute draft and final EISs and RODs is encouraged, as is the use of compact disks or other electronic media. However, do not underestimate the number of paper copies that will be needed; there are still many people who will want a paper copy. The State NEPA coordinator can provide guidance on this process. The BLM may charge requesting parties the cost of production for a document copy in a particular format or in multiple copies.


9-FD-c.14 – Submit Comments

The CEQ regulations at 40 CFR 1503.1 require that the BLM obtain comments from Federal agencies with jurisdiction by law or special expertise; and that BLM request comments from appropriate State and local agencies, tribes, and any agency that requests a copy of the EIS).

The public comment period for all draft EISs must last at least 45 days 516 DM 1.22(A), but some programs require longer comment periods. For example, a draft EIS for a LUP or LUP amendment must be available for a 90-day comment period. BLM - Land Use Planning Handbook. Check program guidance requirements.


9-FD-c.15 - Prepare Proposed Final EIS

Following public review of the draft EIS, the lead agency prepares a final EIS (unless a decision is made to terminate the EIS).

Abbreviated EIS

In deciding whether an abbreviated EIS is appropriate, consider the extent of the changes made to the EIS as a result of comments on the draft. If the BLM makes only minor changes to the draft EIS in response to comments, then they may prepare an abbreviated final EIS. An abbreviated final EIS only contains a cover sheet, an explanation of the abbreviated EIS, copies of substantive comments received on the draft, responses to those comments, and an errata section with specific modifications and corrections to the draft EIS made in response to comments. 40 CFR 1503.4. Abbreviated EISs require that the reader have access to both the draft and the final EIS. Because a draft EIS is usually required to understand changes in an abbreviated EIS, send the appropriate number of draft EISs with the abbreviated final EIS to the EPA when filing the final. See the Web Guide for examples of abbreviated EISs.

If you make major changes to the draft EIS, the final EIS should be a complete full text document. The content of a full text document is substantially the same as the corresponding draft EIS except that it includes copies of substantive comments on the draft EIS, responses to those comments and changes in or additions to the text of the EIS in response to comments. 40 CFR 1503.4. A full text final EIS may incorporate by reference some of the text or appendices of the draft EIS.

Supplemented EIS

“Supplementation” has a particular meaning in the NEPA context. The Supreme Court has explained that supplementation of an EIS is necessary only if there remains major Federal action to occur. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004). In the case of a land use plan, implementation of the Federal action is the signing of a Record of Decision. BLM (or lead agency) must prepare a supplement to a draft or final EIS if, after circulation of a draft or final EIS but prior to implementation of the Federal action:

The standard procedural and documentation requirements for preparing an EIS described in this chapter also apply to supplementing an EIS, with the following exceptions:

Additional scoping is optional. 40 CFR 1502.9(c).

  • BLM recommends that the supplemental EIS identify the EIS being supplemented on the cover page, and explain the relationship of the supplement to the prior analysis early in the text.
  • BLM recommends that the supplemental EIS identify the changes in the proposed action or the new information or changed circumstances that require the BLM to prepare the supplement.

The OEPC and the Office of the Solicitor must be consulted before proposing to the CEQ to prepare a final supplement without preparing an intervening draft 516 DM 1.14(B).

BLM (or lead agency) must circulate a supplement in the same manner as a draft or final EIS. 40 CFR 1502.9(c). If there is good reason to believe the interested and affected public will have a copy of the draft or final EIS, BLM (or lead agency) only need to circulate the supplement. If you do not circulate the EIS being supplemented with the supplement, it must be reasonably available for public inspection. 40 CFR 1506.6(f).

Draft EIS Comments

When preparing a final EIS, BLM (or lead agency) must respond to all substantive written comments submitted during the formal scoping period and public comment period. BLM (or lead agency) is are not required to respond to comments that are not substantive or comments that are received after the close of the comment period, but may choose to reply. 43 CFR 46.435(D). However, be cautious about not responding to untimely comments from agencies with jurisdiction by law or special expertise.

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.

Comments that are not considered substantive include the following.

  • comments in favor of or against the proposed action or alternatives without reasoning that meet the criteria listed above (such as “we disagree with Alternative Two and believe the BLM should select Alternative Three”).
  • comments that only agree or disagree with BLM policy or resource decisions without justification or supporting data that meet the criteria listed above (such as “more grazing should be permitted”).
  • comments that don’t pertain to the project area or the project (such as “the government should eliminate all dams,” when the project is about a grazing permit).
  • comments that take the form of vague, open-ended questions.

The CEQ regulations at 40 CFR 1503.4 recognize several options for responding to substantive comments, including:

  • modifying one or more of the alternatives as requested.
  • developing and evaluating suggested alternatives.
  • supplementing, improving, or modifying the analysis.
  • making factual corrections.
  • explaining why the comments do not warrant further agency response, citing cases, authorities, or reasons to support the BLM’s position.

The CEQ recommends that responses to substantive comments should normally result in changes in the text of the NEPA document, rather than as lengthy replies to individual comments in a separate section CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 29a. If the comments are made with respect to the BLM decision, BLM (or lead agency) may respond to the comments in the decision documentation or Record of Decision rather than in the EIS.

A short response to each substantive comment and a citation to the section or page where the change was made may be appropriate. Similar comments may be summarized and one response given to each group of similar comments; this approach is especially useful when a large number of comments is received.

If public comments on a draft EIS identify impacts, alternatives, or mitigation measures that were not addressed in the draft, the decision-maker responsible for preparing the EIS must determine if they warrant further consideration. If they do, the decision-maker must determine whether the new impacts, new alternatives, or new mitigation measures must be analyzed in either the final EIS or a supplemental draft EIS CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 29b. Similarly, BLM recommends that the decision-maker responsible for preparing an EA consider whether public comments identify impacts, alternatives or mitigation measures that warrant preparation of a new EA.

Comments that express a professional disagreement with the conclusions of the analysis or assert that the analysis is inadequate may or may not lead to changes in the NEPA document. When there is disagreement within a professional discipline, a careful review of the various interpretations is warranted. In some instances, public comments may necessitate a reevaluation of analytical conclusions. If, after reevaluation, the decision-maker responsible for preparing the EA or EIS does not think that a change is warranted, the decision-maker should provide a rationale for the conclusion in the response. Thorough documentation of methodology and assumptions in the analysis may improve the reader’s understanding of the BLM’s analytical methods, and may reduce questions.

BLM is not required to respond to non-substantive comments such as those comments merely expressing approval or disapproval of a proposal without reason. However, BLM may wish to acknowledge the comment, and may do so in a variety of methods, including but not limited to sending postcards, letters, or email responses.

Any comments received may be addressed in the Record of Decision. However, review any comments on the final EIS, to determine if they have merit; for example, if they identify significant new circumstances or information relevant to environmental concerns and bear upon the proposed action. If so, the decision-maker preparing the EIS must determine whether to supplement the draft or the final EIS or if minor changes can be made to the existing EIS. Check program guidance for additional review requirements. For example, there is a sixty (60)-day Governor’s consistency review requirement for LUPs. See BLM - Land Use Planning Handbook.


9-FD-c.16 - Consult with Contractor, As Needed

Even if a contractor is hired, BLM still works to develop the contract, meets frequently with the contractor, reviews all products, and develops necessary partnerships with counties, the state, Tribes, other Federal agencies, and other BLM offices.


9-FD-c.17 - Notice of Availability of Proposed Final EIS (on Federal Register)

Once the final EIS is prepared, print it, file it with the EPA, and distribute it to the public. BLM (or lead agency) must provide public notification of the availability of the final EIS, and that notification must include publication of a notice of availability (NOA) in the Federal Register for actions with effects of national concern. 40 CFR 1506.6(b). BLM (or lead agency) must publish an NOA in the Federal Register for a final EIS prepared for a LUP or LUP amendment. BLM - Land Use Planning Handbook. The State NEPA coordinator and Public Affairs Chief can provide information about the appropriate documentation to include with an NOA. The date the EPA notice appears in the Federal Register initiates the required minimal 30-day availability period. Although this is not a formal public comment period, comments may be submitted. Also note that while 43 CFR 46.435(D)may have requested comment from agencies with jurisdiction by law or special expertise, they do not need to delay preparation and issuance of the final EIS when such agencies do not comment within the prescribed time frame. 43 CFR 46.435(D).


9-FD-c.18 – Submit Comments

Comments

Comments on the document and proposed action may be received in response to a scoping notice or in response to public review of a 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. Comments must be in writing (including paper or electronic format or a court reporter’s transcript taken at a formal hearing), substantive, and timely, in order to merit a written response. BLM (or lead agency) may receive oral comments at public meetings and workshops – it is helpful to write these down to revisit during the NEPA process. To ensure that the true intent of the comment is captured, offer the commenter the opportunity to record his or her comment in writing. The geographic origin of a comment does not alter whether it is substantive.


9-FD-c.19 - Letter to Governor

The agency prepares a letter to the Governor of the state in which the LUP or plan revision is being proposed to ensure consistency with state and local plans, policies, and programs. The protest period and the Governor’s review period should occur simultaneously in order to save time. Sending a print-ready copy to the Governor at the same time the document goes to the printer will allow both periods to end at about the same time.


9-FD-c.20 - State Governor Consistency Review

Applicable to Land Use Plan EISs, the BLM must provide a 60-day review period to the Governor of the state in which the RMP (amendment) is being proposed to ensure consistency with state and local plans, policies, and programs. The protest period and the Governor’s review period should occur simultaneously in order to save time. BLM state offices can potentially negotiate a shorter review period with the Governor.

Any responses from a Governor on consistency must be resolved before the BLM issues a ROD. If the Governor does not respond within the review period, the BLM can assume that the proposed land use plan (amendment) decisions are consistent. 43 CFR 1610.3-2(e). If the Governor recommends changes in the proposed plan (amendment) that were not raised during the public participation process, the State Director shall provide the public with an opportunity to comment on the recommendations. 43 CFR 1610.3-2(e). This public comment opportunity will be offered for 30 days and may coincide with the 30-day comment period for the notice of significant change. If the State Director does not accept the Governor’s recommendations, the Governor has 30 days to appeal in writing to the BLM Director. 43 CFR 1610.3-2(e).


9-FD-c.21 - Record of Decision

A ROD is prepared to document the selected alternative and any accompanying mitigation measures. The ROD must be signed by the decision-maker. The ROD may be integrated with any other record prepared by the BLM. 40 CFR 1505.2. Examples would be findings for floodplains required by Executive Order 11988 and for wetlands required by Executive Order 11990. No action concerning a proposal may be taken until the ROD has been issued, except under conditions specified in 40 CFR 1506.1.

Except as described below, the ROD cannot be issued until the later of the following dates:

  • 90 days after the publication of the EPA’s notice of filing of the draft EIS.
  • 30 days after publication of the EPA’s notice of filing of the final EIS. 40 CFR 1506.10(b).

The BLM (or lead agency) must provide public notification of the availability of the ROD, and that notification must include publication of a notice of availability (NOA) in the Federal Register for actions with effects of national concern as well as a copy of the ROD to those who have requested it. 40 CFR 1506.6(b); CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 34a. BLM recommends that the developer provide a copy of the ROD to substantive commenters on the draft or final EIS and to others known to have a strong interest in the proposal(s). Generally, the funding office in Washington will specify WO or other distribution requirements. For example, a copy of the decision documents for LUPs or plan amendments must be provided to WO-210 (BLM Division of Decision Support, Planning and NEPA). Consult program-specific guidance for additional requirements on the distribution of RODs or records which incorporate RODs.

If the decision is subject to 30-day appeal to the Interior Board of Land Appeals (IBLA), then the ROD may be issued at the same time the final EIS is filed 40 CFR 1506.10(b). This allows both 30-day periods to run concurrently. If the ROD is issued at the same time the final EIS is filed, the EIS must identify and explain the appeal provisions. If the ROD is issued in full force and effect, then it cannot be issued until 30 days after publication of the EPA’s notice of filing the final EIS. 40 CFR 1506.10(b)(2).

Consult program specific guidance for any additional requirements regarding protest and appeal procedures and preparation of RODs.

A suggested format which satisfies the ROD content requirements specified in 40 CFR 1505.2, is provided below. The BLM - Land Use Planning Handbook provides a recommended format for planning-related RODs.

  • Introductory Material. A cover sheet that provides introductory material may be prepared. This includes the title, project or case file identification number, preparing office and office location, cooperating agencies, signatures, date of signatures, and titles of the responsible and concurring officials.
  • Summary. A summary is needed only if the ROD exceeds 10 pages.
  • Decision. Include a concise description of the approved action. Identify all important aspects of details of the decision. Provide a clear description of what is and what is not being approved. Attach to the ROD stipulations and other design features that are part of the decision or incorporated by reference. Present any committed mitigation measures and related monitoring and enforcement activities, if any, for the selected alternative. Indicate whether all practicable mitigation measures have been adopted. The BLM (or lead agency) must identify any mitigation measures which were not selected with a brief explanation of why such measures were not adopted. 40 CFR 1505.2(a).
  • Alternatives. Identify all of the alternatives considered. When it is necessary to summarize the alternatives, thematic descriptions including major aspects may be helpful. The BLM (or lead agency) must identify the environmentally preferable alternative in this section. 40 CFR 1505.2 (b). The environmentally preferred alternative best promotes the national environmental policy in Section 101 of the NEPA. This is ordinarily the alternative that causes the least damage to the biological and physical environment and best protects, preserves and enhances the resources that are present. CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations - 6a.
  • Management Considerations. Provide the rationale for the decision. Discuss factors which were important and relevant to the decision. 40 CFR 1505.2 (b). Explain how the alternatives respond to the purpose and need for the action.
  • Public Involvement. Briefly describe efforts to seek public views throughout the EIS process.

The ROD is not issued until all protests are resolved as well as any potential consistency issues received from the Governor’s office.

9-FD-c.22 - Prepare and Publish Public Notice of Decision

The letter must be signed by the decision-maker responsible for preparing the EIS. 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-c.23 to 9-FD-c.24 - 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 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-c.25 - Implement 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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