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Bureau of Land Management - NEPA Review Overview (9-FD-a)

Information current as of 2024

The National Environmental Policy Act (NEPA) of 1969 requires federal agencies, including the Bureau of Land Management (BLM), to consider the potential environmental impacts of their proposed actions and any reasonable alternatives before undertaking a "major federal action." A major federal action is defined as “an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility.” 42 U.S.C. § 4336e(10). A BLM-proposed action triggers NEPA compliance if it would cause effects on the human environment and is subject to BLM control and responsibility. 43 C.F.R. § 46.100.

The Council on Environmental Quality (CEQ) has established general regulations governing all NEPA actions, which can be found at 40 C.F.R. §§ 1500 - 1508. In addition, 40 C.F.R. § 1507.3(b) requires federal agencies to establish procedures that implement the CEQ regulations. The United States Department of Interior's (DOI) NEPA procedures can be found at 43 C.F.R. § 46. The DOI’s NEPA procedures apply to all of its sub-agencies, including the BLM. The DOI’s NEPA guidance can be found in Department of Interior, Department Manual 516, while the BLM’s NEPA guidance can be found in the Bureau of Land Management – National Environmental Policy Act Handbook.

The BLM will designate a Responsible Official who has the authority to make decisions regarding the proposed action and is responsible for ensuring NEPA compliance. 43 C.F.R. § 46.30. The appropriate level of NEPA documentation may fall within one of four categories (discussed in more detail below):

a Determination of NEPA Adequacy (DNA)
a Categorical Exclusion (CX)
an Environmental Assessment (EA)
an Environmental Impact Statement (EIS)

Bureau of Land Management - NEPA Review Overview Process

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9-FD-a.1 – Identify Proposed Action

A BLM-proposed action triggers the procedural requirements of NEPA if it would cause effects on the human environment and is subject to bureau control and responsibility. 43 C.F.R. § 46.100. This determination depends on the extent to which the BLM exercises control over the action and whether Federal funding or approval is necessary. 43 C.F.R. § 46.100. The nature of the action could include developing Resource Management Plans (RMP), making leasing decisions, or granting a permit, as well as any other action where a federal decision is required.

9-FD-a.2 to 9-FD-a.3 – Is the Proposed Action Covered by an Existing NEPA Document?

A new proposed action may rely on one or multiple existing NEPA documents that sufficiently cover environmental analysis of the proposed action. This may include:

An EIS associated with a BLM Resource Management Plan;
An EIS or an EA associated with Resource Management Plan Amendments;
An EIS or an EA for BLM programmatic actions;
An EIS or an EA prepared by other agencies including those on programmatic, land use, and activity or project specific plans or actions, with the BLM as a cooperating agency; or
Without the BLM as a cooperating agency.

Bureau of Land Management – National Environmental Policy Act Handbook, pg. 22.

The BLM must find that the existing NEPA document meets all of the following criteria in order to use the NEPA document for a new proposed action:

The proposed action is a feature of or essentially similar to an alternative analyzed in the existing NEPA document, and the project is within the same analysis area or in a substantially similar location;
The range of alternatives analyzed in the existing NEPA document is appropriate for the proposed action in light of current environmental concerns, interests, and resource values;
The analysis in the existing document has not been substantially changed by new information or circumstances (e.g., recent endangered species listings or updated lists of BLM sensitive species); and
The direct, indirect, and cumulative effects that would result from implementation of the new proposed action are quantitatively and qualitatively similar to those analyzed in the existing NEPA document.

Bureau of Land Management – National Environmental Policy Act Handbook, pg. 23

The BLM uses a "Determination of NEPA Adequacy" (DNA) worksheet to document the answers to the above questions in order to determine whether existing NEPA documents will satisfy NEPA requirements for the new proposed action and to ensure that the proposed action is in conformance with the land use plan. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 24. The checklist itself is not a NEPA document.

When the BLM makes a determination that existing NEPA documents will satisfy the requirements for the proposed action, it will prepare a DNA, identifying the existing NEPA documents which describe the environmental consequences of the proposed action. The BLM may rely on analyses included in a previously prepared programmatic environmental document (for which judicial review was available) when preparing a subsequent environmental document for related actions. 42 U.S.C. § 4336b.

These programmatic environmental documents may be relied upon when prepared within 5 years, unless substantial new circumstances or information about the significance of adverse effects arise which bear on the analysis. 42 U.S.C. § 4336b(1). Additionally, these documents may be relied upon when prepared more than 5 years prior if the agency reevaluates the analysis in the document and any underlying assumptions to ensure that reliance on the analysis remains valid. 42 U.S.C. § 4336b(2).

9-FD-a.4 to 9-FD-a.6 – Does a Categorical Exclusion Apply?

A CX may be granted for categories of actions that, individually or cumulatively, do not have a significant effect on the environment. Federal agencies may establish CXs in accordance with their NEPA procedures. 40 C.F.R. § 1501.4. Pursuant to NEPA, a proposed agency action does not require an Environmental Assessment (EA) if the action qualifies as one of the agency's CXs. 42 U.S.C. § 4336(b)(2). Prior to initiating an EA, the BLM reviews the project to determine whether the project fits within the category of actions covered by an existing CX. The BLM applies a CX if the scope of the project is consistent with the terms of an applicable CX and there are no extraordinary circumstances. The BLM may also adopt another agency’s categorical exclusions consistent with section 109 of NEPA. 42 U.S.C. § 4336(a).

The application of a CX can be limited by extraordinary circumstances. Extraordinary circumstances are factors or circumstances in which a normally excluded action may have a significant environmental effect that then requires further analysis in an EA or EIS. 43 C.F.R. § 46.215; 40 C.F.R. § 1508.4. When evaluating whether to apply a CX to a proposed activity, an agency must consider the specific circumstances associated with the activity and may not end its review based solely on the determination that the activity fits within the description of a CX; rather, the agency must also consider whether there are extraordinary circumstances that would warrant further NEPA review.

Example of extraordinary circumstances - the potential effects on a protected species, species habitat, or historic properties listed in the National Register of Historic Places.

9-FD-a.7 – Categorical Exclusion Documentation

Proposed actions that fall within an agency’s categorical exclusion (CX) do not require an Environmental Assessment but typically require some form of documentation. 42 U.S.C. 4336(b)(2). Each agency may have different rules for documenting a CX determination. For example, the United States Forest Service (USFS) requires a Decision Memo for a Responsible Official’s decision to implement a categorically excluded action. 36 C.F.R. § 220.3. In contrast, the BLM requires decision documentation in some circumstances but not in others.

‘’’Statutory CX Documentation’’’

When the Responsible Official uses a CX that is established by statute in 43 C.F.R. § 46.210 or by the BLM in its DOI Department Manual chapter, a decision document is required. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 18; 516 DM 11.9.

It is important to note that Section 390 of the Energy Policy Act also establishes five statutory CXs, but that these specific CXs do not apply to geothermal actions, and are only applicable to oil and gas exploration and development actions. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 17.

‘’’Non-Statutory CX Documentation’’’

When the Responsible Official and/or developer uses a CX that is not established by statute, the Official must issue a decision document and document the application of that CX using the form in Appendix 6 of the BLM NEPA Handbook. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 20.

‘’’Documentation Not Required’’’

The BLM does not require documentation of a decision to implement a categorically excluded action where that action:

Would have no environmental effect, such as a personnel action or a financial transaction;
Has a negligible environmental effect; or
Is the installation of routine signs and markers.

Bureau of Land Management – National Environmental Policy Act Handbook, pg. 20.

9-FD-a.8 – Form Interdisciplinary Team to Complete NEPA Review

The BLM begins the formal NEPA Process by forming an interdisciplinary team (ID team) to conduct the NEPA review in tandem with the start of the scoping process. The BLM agency project manager reviews the proposal and then selects the resource specialists for the ID team for preparation of the NEPA document. The ID Team may be directly involved in the analysis and writing of specific sections or may work with a consultant that is preparing the document. 40 C.F.R. § 1502.6; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 4.

9-FD-a.9 – Conduct On-Site Evaluation

The BLM is not required to conduct on-site evaluations for Geothermal Drilling, Geothermal Exploration Operations, or other Geothermal pre-operation stages. 43 C.F.R. § 3261.20(a)-(g); 43 C.F.R. § 3251.12(a). However, for Geothermal Resource Leasing in general, the BLM has the authority to ensure compliance with 43 C.F.R. § 3200.4. Because of this, the BLM retains the right to conduct onsite inspections related to exploration. 43 C.F.R. § 3254.10.

On-Site Evaluation Process: 10 (Transmission)

On-Site Evaluation Process: 10 (Hydropower)

On-Site Evaluation Process: 10 (Solar)

On-Site Evaluation Process: 10 (Geothermal)

9-FD-a.10 – Conduct Scoping Analysis

Scoping begins the first stage of the planning process and closely involves the public with identifying issues, providing resources and other information, and developing planning criteria to guide preparation of the NEPA document. During scoping, the BLM solicits input on the issues and impacts that will be addressed in a NEPA document as well as the degree to which those issues and impacts will be analyzed. The intent of scoping is to focus the analysis on significant issues and reasonable alternatives, to eliminate extraneous discussion, and to reduce the length of the EIS if applicable. No guidance is provided by the CEQ for the length of scoping periods. Check individual program guidance for any prescribed minimum periods. Scoping must be conducted both internally with appropriate BLM staff, and externally with interested and affected public, agencies, tribes, and organizations 40 C.F.R. § 1501.7. The scoping process is ongoing throughout the early stages of the NEPA process. 43 C.F.R. § 46.235.

The CEQ Regulations explicitly address the role of scoping in preparation of an EIS and require scoping for preparation of an EIS. However, external scoping (notification and opportunities for feedback from other agencies, organizations, tribes, local governments, and the public) is optional when preparing an EA. The BLM can choose to use the scoping process when preparing an EA that deals with uncertainty or controversy regarding potential conflicts over the use of resources or the environmental effects of the proposed action. For example, for an EA the BLM may use scoping to identify and eliminate from detailed study the issues that are not significant or that have been covered by prior environmental review. The scoping process provides a transparent way to identify significant environmental issues and to de-emphasize insignificant issues. 40 C.F.R. § 1501.9.

Formal public scoping begins following publication of a Notice of Intent (NOI) in the Federal Register. However, informal internal and external scoping may occur before the formal scoping period begins. Internal scoping is used by the BLM and any cooperating agency staff to help determine what needs to be analyzed in a NEPA document. External scoping involves notification and opportunities for feedback from other agencies, organizations, tribes, local governments, and the public. While formal external scoping prior to completing an EA is optional, formal external scoping prior to completing an EIS is required. 40 C.F.R. § 1501.9; Bureau of Land Management – National Environmental Policy Act Handbook.

The CEQ regulations at 40 C.F.R. § 1501.7 require the following in an agency’s scoping process:

Invite participation from affected Federal, state, local, and tribal organizations and interested persons.
Determine the scope or extent of the EIS and the significant issues to be analyzed. Scoping is valuable in identifying connected, cumulative, and similar actions.
Eliminate those issues raised that are not related to potentially significant impacts or those that have been covered in other environmental documents.
Make assignments for preparation of the EIS between the lead and cooperating agencies.
Identify any environmental documents being prepared that have relevance to, but are not part of, the scope of the EIS.
Identify other environmental review and consultation requirements.
Discuss the relationship between the timing of the preparation of the EIS and the BLM’s tentative planning and decision-making schedule.

9-FD-a.11 – Is the Proposed Activity Likely to Have a Significant Effect on the Quality of the Human Environment?

During scoping, the BLM determines the issues to be addressed in either the EA or EIS and identifies any significant issues related to the proposed action that will be considered in the analysis. An EA is required when a proposed action does not have a “reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown.” 42 U.S.C. § 4336(b). An EIS is required when an action has a “reasonably foreseeable significant effect on the quality of human environment.” 42 U.S.C. § 4336(b). If the BLM determines the proposed activity is likely to have a significant effect on the quality of the human environment it will not complete the EA process, but instead will complete the more detailed EIS process.

The determination of whether a proposed action has significant effects is a subjective one. To determine whether the proposed action has significant effects, the agency "shall analyze the potentially affected environment and degree of the effects of the action." 40 C.F.R. § 1501.3(b).

Proper consideration of the potentially affected environment will vary depending on the setting of the action, and should encompass the entire affected area (national, regional, or local). 40 C.F.R. § 1501.3(b). Consideration of the potentially affected environment should also include consideration of the affected area's resources, such as threatened and endangered species and designated critical habitats under the Endangered Species Act. 40 C.F.R. § 1501.3(b)(1).

Proper consideration of the degree of the effects means that the agency should consider the following four categories of effects, as appropriate to the specific action:

Both short- and long-term effects.
Both beneficial and adverse effects.
Effects on public health and safety.
Effects that would violate Federal, State, Tribal, or local law protecting the environment.

40 C.F.R. § 1501.3(b)(2).

9-FD-a.12 – Publish Notice of Intent to Prepare Environmental Assessment (EA)

43 CFR § 46.305 requires the BLM, to the extent practicable, to provide for public notification and involvement during EA preparation. Although there must be some form of public involvement, 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.

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-a.13 – Did the Developer Prepare a Draft EA?

The developer or developer’s contractor may prepare an Environmental Assessment (EA). However, the BLM is ultimately responsible for the scope and content of the EA, and independently evaluates the information submitted and its accuracy, along with the environmental issues. The CEQ provides guidance for contracting EAs and EISs at 40 C.F.R. § 1506.5(a) and (b). 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 C.F.R. § 1501.5(c).

The EA must identify the known and predicted impacts that are related to the issues. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 54. An issue differs from an effect; an issue describes an environmental problem or relation between a resource and an action, while impacts analysis predicts the degree to which the resource would be affected upon implementation of an action. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 54. The terms "effect" and "impact" are synonymous in both the CEQ Regulations and in the BLM NEPA Handbook. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 54.

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. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 54. 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. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 54. The EA should analyze relevant short-term and long-term impacts and disclose both beneficial and detrimental impacts in the NEPA analysis. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 55.

9-FD-a.14 to 9-FD-a.18 – Is a Draft EA Required?

The BLM is not required to publish a Draft Environmental Assessment (EA). However, the BLM may seek comments on an EA as appropriate, such as when there is a high level of public interest or when effects of the project are uncertain. 43 C.F.R. § 46.305(b). If the BLM prepares a Draft EA, it must offer a minimum 30-day public comment period, a period that cannot be extended. The BLM must resolve these comments before issuing a decision record.

9-FD-a.19 – Environmental Assessment (EA)

An EA is a concise public document that helps the agency to determine whether an EIS or FONSI is required. It should include a brief assessment of the proposed action and an analysis of the evidence relating to significant environmental impacts. It should also include an analysis of the effects of the proposed action and of the alternatives. 40 C.F.R. § 1501.5(c). If the BLM determines that there are no significant environmental impacts after completing the EA, it prepares a Finding of No Significant Impact (FONSI). A FONSI is a document prepared by a federal agency that briefly explains why an action will not have a significant effect on the human environment. 40 C.F.R. § 1501.6. During the EA process, analysis of environmental impacts may result in a finding that the proposed federal action may cause significant effects to the environment that cannot be mitigated. The BLM-appointed Responsible Official then decides whether NEPA requires the BLM to prepare an EIS. 43 CFR § 46.325.

At the conclusion of the EA process, the BLM issues a Final Environmental Assessment. An EA is typically shorter than an EIS, with fewer opportunities for public comment or involvement, and has fewer procedural requirements, generally requiring less time to prepare than an EIS. CEQ suggests that an EA should be between 10 – 15 pages. CEQ - Forty Most Asked Questions Concerning CEQ's NEPA Regulations. Further, the EA shall not take longer than one year to complete. 42 U.S.C. § 4336a(g). If the deadline is not met, a project sponsor may petition to a court. 42 U.S.C. § 4336a(g)(3).

9-FD-a.20 to 9-FD-a.21 – Does the BLM Identify a Significant Environmental Impact?

If during the EA process, the BLM determines the proposed activity will have significant environmental impacts, then an EIS must be prepared. If the proposed activity is not likely to cause significant environmental impacts, then the BLM prepares a Finding of No Significant Impact (FONSI).

A FONSI must state the agency's reasons for deciding that the action will have no significant environmental effects. 40 C.F.R. § 1501.6. The FONSI only needs to provide a basis for the conclusion that the selected alternative(s) will not have a 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.

The EA must be attached to the FONSI or be incorporated by reference into the FONSI. 40 C.F.R. § 1501.6. The FONSI must note any other relevant environmental documents related to the findings, and must be signed and dated by the decision-maker. 40 C.F.R. § 1501.6.

An EA may demonstrate that a proposed action would have effects that are significant but could be reduced or avoided through mitigation. Bureau of Land Management - National Environmental Policy Act Handbook, pg. 69. In these instances a mitigated FONSI may be used rather than an EIS if the BLM is 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. The mitigation measures chosen must be included in the decision documentation and must provide monitoring to ensure the implementation of these measures. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 69.

If a FONSI cannot be signed because there is a significant impact, then an EIS must be prepared. If an EIS is necessary, the BLM publishes a Notice of Intent (NOI) to prepare an EIS in the Federal Register. The information assembled and analyzed for preparation environmental impact analyses such as the EA may be integrated into the EIS and used for scoping for the EIS. 40 C.F.R. § 1502.24(a).

9-FD-a.22 – Publish Notice of Intent to Prepare Environmental Impact Statement

An Environmental Impact Statement (EIS) is a comprehensive document that analyzes the direct, indirect, and cumulative impacts of a federal action that will have a significant effect on the human environment. The BLM should begin preparation of an EIS as close as practicable to the time the agency is developing or receives a proposal so that preparation can be completed in time for the EIS to be included in any recommendations or reports on the proposal and serve as an important contribution to the decision-making process. 40 C.F.R. § 1502.5. The EIS process is initiated with publication of a notice of intent (NOI) and requires formal scoping. 40 C.F.R. § 1501.9; Bureau of Land Management - National Environmental Policy Act Handbook, pg. 69. The BLM must publish a notice of intent (NOI) to prepare an EIS in the Federal Register. Publishing the NOI serves as the official legal notice that the BLM is commencing an EIS.

The NOI must include:

The purpose and need for the proposed action;
A description of the proposed action and alternatives that the EIS will consider;
A brief summary of expected impacts
Anticipated permits and other authorizations
A schedule for the decision-making process;
A description of the public scoping process, including scoping meetings;
A request for identification of potential alternatives, information, and analyses relevant to the proposed action; and
Contact information for a person within the agency who can answer questions about the proposed action and the environmental impact statement.

40 C.F.R. § 1501.9.

In addition, the NOI should identify any preliminary planning issues and planning criteria, if applicable. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 88-89.

At the time it publishes the NOI in the Federal Register, the BLM may simultaneously distribute a notice to interested agencies, organizations, and other stakeholders announcing the initiation of the formal scoping process.

Note: A revised NOI may be required if there are any substantial changes to an action or if substantial new circumstances or information arise that relate to the action or its impacts, such that the BLM would essentially be starting over with the NEPA process. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 88-89.

9-FD-a.23 – Hold Scoping Meeting

The BLM must use scoping to engage with appropriate BLM staff, as well as interested and affected public, agencies, tribes and organizations. Bureau of Land Management - National Environmental Policy Act Handbook, pg. 39. Scoping should be used to identify concerns, potential impacts, relevant effects of past actions, and possible alternative actions. 43 CFR § 46.235. Scoping is also an opportunity to introduce and explain the agency's interdisciplinary approach and solicit information as to additional disciplines that should be included. 43 CFR § 46.235. Finally, scoping provides an opportunity for agencies and developers to being working together to set time limits, expedite reviews, integrate other environmental reviews, and identify major obstacles that could delay the process. 43 CFR § 46.235. The scoping period lasts for a minimum of 30 days. During scoping, the BLM solicits input on the issues and impacts addressed in the EIS as well as the degree to which issues and impacts are analyzed. The intent of scoping is to focus the NEPA analysis on significant issues and reasonable alternatives, to eliminate extraneous discussion, and to reduce the length of the EIS. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 89.

Determining the Scope of the EIS

The project 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 C.F.R. § 1501.9. To determine the scope of environmental impact statements, agencies must consider three types of actions, three types of alternatives, and three 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; and/or

(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. The BLM may wish to analyze these actions in the same impact statement. The BLM 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; and/or

(3) Mitigation measures (not in the proposed action).

(c) Impacts, which may be:

(1) Direct;

(2) Indirect; and/or

(3) Cumulative.

40 C.F.R. § 1501.9(e).

Formulating Alternatives

NEPA directs federal agencies 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…”. 42 U.S.C. § 4332(E).

The range of alternatives explores ways to meet 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. Analysis of alternatives is limited to alternatives that permit the BLM to make a reasoned choice. 40 C.F.R. § 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 BLM 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.

9-FD-a.24 to 9-FD-a.25 – Prepare Draft Environmental Impact Statement (DEIS)

The BLM must prepare a Draft EIS (DEIS) analyzing significant environmental impacts and reasonable project alternatives identified during scoping. Further, the EIS shall not take longer than two years to complete. 42 U.S.C. § 4336a(g). If the deadline is not met, a project sponsor may petition to a court. 42 U.S.C. § 4336a(g)(3).

The DEIS should be “concise, clear, and to the point,” focusing on “significant environmental issues and alternatives useful” to the BLM in making a decision and the public. 40 C.F.R. § 1502.1. Discussions of impacts are to be proportionate to their significance. 40 C.F.R. § 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 C.F.R. § 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.” Bureau of Land Management – National Environmental Policy Act Handbook, pg. 4.

The DEIS should describe:

The purpose and need for the proposed action;
The proposed action and a range of reasonable alternatives;
The analysis of the environmental effects of the proposed action and each alternative analyzed in detail;

40 C.F.R. §§ 1502.14; 1502.16; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 94-97.

The usual analytical steps for completing 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.

Bureau of Land Management – National Environmental Policy Act Handbook, pg. 94-97.

9-FD-a.26 – Review and Approve DEIS

The BLM reviews the DEIS for administrative and substantive completeness. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 94-97.

9-FD-a.27 to 9-FD-a.28 – File DEIS with EPA

The BLM must file the DEIS with the Environmental Protection Agency (EPA), which publishes notice of the Filing in the Federal Register. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 99. The BLM should distribute copies of the DEIS to any federal agency with jurisdiction or special expertise, the applicant (developer), any requesting party before or on the same day the BLM files the DEIS with the EPA. 40 C.F.R. § 1502.20; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 100.

In addition, the BLM must publish a notice of availability (NOA) of the DEIS in the Federal Register. The date the EPA notice appears in the Federal Register initiates the public review period. The minimum review period is 45 days starting from when EPA publishes the NOA in the Federal Register. The NOA generally identifies the purpose and need of the action, describes the action and alternatives, and indicates the dates and locations of public meetings related to the DEIS. 40 C.F.R. § 1506.6; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 99.

9-FD-a.29 to 9-FD-a.30 – Comment on DEIS

The BLM must provide an opportunity for the public to comment on the DEIS for a minimum of 45 days. 40 C.F.R. § 1506.11(d). However, some programs may require longer comment periods. For example, a DEIS for a Land Use Plan must be made available for 90 days. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 99. The public comment period is initiated when the EPA publishes notice of the DEIS in the Federal Register. 40 C.F.R. § 1506.6; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 99.

The BLM may hold public meetings or hearings to receive comments on the DEIS. The BLM must maintain records of public meetings and hearings, including a list of attendees and notes or minutes of the proceedings. 40 C.F.R. § 1506.6; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 99.

9-FD-a.31 to 9-FD-a.32 – Prepare Final EIS (FEIS)

The BLM prepares a Final Environmental Impact Statement (FEIS) following the end of the public comment period on the DEIS. CEQ regulations set forth a preferred standard format for EISs found at 40 C.F.R. § 1502.10. At minimum, the FEIS must assess, consider, and respond to comments made on the DEIS. The BLM must discuss at appropriate points in the FEIS any responsible opposing view which was not adequately discussed in the DEIS and indicate the BLM’s response to the issues raised. 40 C.F.R. §§ 1502.9(b); 1503.4(a); Bureau of Land Management – National Environmental Policy Act Handbook, pg. 101.

9-FD-a.33 to 9-FD-a.35 – Review and Approve FEIS

The BLM must file the FEIS with the EPA, which publishes notice of the Filing in the Federal Register. 40 C.F.R. §§ 1506.10. The BLM should distribute copies of the FEIS to any federal agency with jurisdiction or special expertise, the developer, any requesting party, and any person, organization, or agency that submitted substantive comments on the draft. 40 C.F.R. § 1502.20. The BLM should distribute all copies before or on the same day that the BLM files the FEIS with the EPA. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 122.

In addition, the BLM must publish the NOA of the FEIS in the Federal Register. 40 C.F.R. § 1506.6; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 102. This begins the 30-day no action period in which the BLM must wait to issue a Record of Decision (ROD). 40 C.F.R. § 1506.11(b).

9-FD-a.36 – Record of Decision (ROD)

Each EIS is completed with a ROD, which documents the BLM's decision as to how it will, or will not, move forward with a proposed action. Bureau of Land Management – National Environmental Policy Act Webpage. After the 30-day no action period, the BLM issues a Record of Decision (ROD). 40 C.F.R. § 1506.11(b). RODs are concise public records of the BLM’s final decisions. 40 C.F.R. § 1505.2.

The ROD should include the following:

A concise description of the approved action;
A summary of the alternatives considered;
The rationale for the BLM’s decision; and
A description of efforts to seek public views through the EIS process.

40 C.F.R. §§ 1505.2; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 103-104.

9-FD-a.37 – Does the Developer Decide to Appeal the Decision?

The developer may decide to file an appeal, if the developer believes that the BLM’s final decision is adverse or incorrect. 43 C.F.R. § 4.700. A decision by the BLM, subject to appeal, is not effective during the period of time in which the person may file an appeal. 43 C.F.R. § 4.21(a)(1).

The Department of the Interior (DOI) Board of Land Appeals (Board) has authority to make final decisions on appeals from decisions by departmental officials relating to the use and disposition of public lands and their resources. 43 C.F.R. § 4.1.

9-FD-a.38 to 9-FD-a.39 – File Notice of Appeal (NOA) and Petition for Stay

If the developer wishes to appeal the BLM’s final decision, the developer is required to file a Notice of Appeal in the office that made the decision within 30 days of receipt of the decision. 43 C.F.R. § 4.701. The burden of proof is on the developer 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 NOA. The petition must show sufficient justification based on the following factors:

The relative harm to the parties if the stay is granted or denied,
The likelihood of the developer’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.

43 C.F.R. § 4.21(b).

If a stay is granted, BLM will notify the developer that a stay has been granted and will remain in effect until lifted. 43 C.F.R. § 4.21(a)-(b).

Within 15 days after each document is filed, each adverse party named in the decision and the Regional Solicitor or Field Solicitor having jurisdiction over the state in which the appeal arose must be served with a copy of: NOA, Statement of Reasons (SOR), and any other documents. Proof of service is required. 43 C.F.R. § 4.413.

9-FD-a.40 to 9-FD-a.41 - File Statement of Reasons (SOR)

The developer must file a complete statement of reasons (SOR) describing the reason for the appeal within 30 days after filing the notice of appeal. 43 C.F.R. § 4.412. Within 15 days after filing the SOR, each adverse party named in the decision must be served with a copy of the SOR and any other applicable documents. 43 C.F.R. § 4.413.

9-FD-a.42 – Hold Hearing

Any party may file a motion for the Board to refer a case to an administrative law judge for a hearing. Hearings are discretionary. In response to a motion or on its own initiative, the Board may order a hearing if there are:

(1) Any issues of material fact which, if proved, would alter the disposition of the appeal; or

(2) Significant factual or legal issues remaining to be decided, and the record without a hearing would be insufficient for resolving them.

43 C.F.R. § 4.415.

The Board will render a decision on the merits of the case. 43 C.F.R. § 4.

9-FD-a.43 - Decision

IBLA reviews and renders a decision on the merits of the case 43 C.F.R. § 4.

9-FD-a.44 – Implement and Monitor as Provided in ROD

If the BLM’s final decision is not appealed or if the BLM’s decision is upheld on appeal, the BLM and developer should implement and monitor the final decision as provided in the ROD.

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RAPID/Roadmap/9-FD-a