Bureau of Land Management - Environmental Impact Statement (9-FD-c)
An 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. An EIS describes the purpose and need for a proposed action and the affected environment, discusses alternatives to a proposed action, and analyzes environmental impacts and ways to mitigate them. Each EIS is completed with a Record of Decision (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. The BLM must begin preparation of an EIS early in project planning (e.g., when the BLM starts developing or is presented with a project proposal) so that it can be completed in time to be included in any recommendation or report on the proposal and serve as an important contribution to the decision making process. 40 C.F.R. § 1502.5.
The following actions may require that the BLM prepare an EIS:
- Approval of Resource Management Plans (RMPs) or amendments to RMPs;
- Approval of applications to the BLM for sites for steam-electric power plants;
- Approval of applications to the BLM for rights-of-way for major reservoirs, canals, pipelines, transmission lines, highways and railroads; and
- Approval of any mining operation where the area to be mind, including any area of disturbance, over the life of the mining is 640 acres or larger in size.
Important terms include:
- A “major federal action” means an action with effects that may be major and which is potentially subject to federal control and responsibility and may include:
- new and continuing activities;
- projects or programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; and
- new or revised agency rules, regulations, plans, policies, or procedures. 40 C.F.R. § 1508.18.
- “Significantly” as used in NEPA requires considerations of both context and intensity. The significance of an action must be analyzed in several contests such as society as a whole (e.g., human, national), the affected region and interests, and the locality. Significance varies with the setting of a proposed action. Intensity refers to the severity of impact. The following should be considered in evaluating intensity:
- beneficial and adverse impacts;
- the degree the project affects public health or safety;
- unique characteristics of the geographic area;
- whether the project is highly controversial;
- whether the projects effects are highly uncertain or involve unique risks;
- the precedential quality of the action;
- whether the action is related to other actions that may have cumulatively significant impacts;
- the affects of the action on endangered or threatened species; and
- whether the action threatens a violation of federal, state, or local environmental laws or requirements. 40 C.F.R. § 1508.27.
- A “cumulative impact” is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. § 1508.7.
Bureau of Land Management - Environmental Impact Statement Process
9-FD-c.1 – Select Contractor (Optional)
The BLM may select a contractor to prepare all or part of an EIS. 40 C.F.R. § 1506.5. The contractor must execute a conflict of interest statement prepared by the BLM specifying that they have no financial or other interest in the outcome of the project. 40 C.F.R. § 1506.5.
The use of a contractor does to prepare part or all of an EIS does not eliminate the BLM’s active role in the NEPA process. The BLM is responsible for all content within the EIS and must independently evaluate all products and materials, develop necessary partnerships with counties, the state, Tribes, other federal agencies, and BLM offices. In addition, the decisions and findings must be those of the BLM, not the contractor. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 124.
Note: A contractor may prepare all or part of an EIS. Accordingly, any references to the BLM during the EIS preparation process refers to the contractor, if applicable.
9-FD-c.2 – Develop Environmental Impact Statement (EIS) Preparation Plan (If Applicable)
The BLM may develop an EIS preparation plan to facilitate coordination between participants involved in the NEPA process and those with approval and oversight responsibility. A preparation plan should identify:
- The issues to be addressed;
- Participants in the NEPA process;
- Process for EIS development;
- The skills needed to address the issues;
- A preliminary budget that can be used for cost estimates;
- Important legal, regulatory, and policy guidance;
- Available and needed data and metadata.
The preparation plan should also include public involvement and interagency or intergovernmental coordination and consultation strategy. Public involvement and interagency coordination and consultation are integral parts of the EIS process. The public preparation plan should remain flexible as it may be updated during the EIS process. The public involvement strategy should identify:
- Tribes, individuals, organizations, and other agencies known to be interested or affected by the action;
- Agencies with special expertise or jurisdiction by law;
- Any 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;
- The process for tracking and recording public involvement and include lists of contacts.
Note: Although developing a preparation plans is recommended prior to initiating any EIS, the BLM must develop a preparation plan before initiating an EIS for a resource management plan (RMP), also referred to as a land use plan (LUP). RMPs are used by state and federal agencies to manage public lands and form the basis for every action and approved use of those lands. If a project is not consistent with an RMP, the RMP may require an amendment, which may trigger the need to prepare an EIS Bureau of Land Management – National Environmental Policy Act Handbook, pg. 87.
9-FD-c.3 to 9-FD-c.4 – Publish Notice of Intent (NOI) to Prepare EIS
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:
- A description of the purpose and need of the action;
- A description of the action and possible alternatives to the action;
- A description of the agency’s proposed scoping process including whether, when, and where any scoping meeting will be held; and
- The name and address of the BLM contact for the proposed action and EIS. 40 C.F.R. § 1508.22.
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-c.5 – Hold Scoping Meeting
The BLM must conduct scoping with appropriate BLM staff, as well as interested and affected public, agencies, tribes and organizations to identify issues, provide resources and other information, and develop planning criteria to guide preparation of the NEPA document. 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. 40 C.F.R. § 1501.7; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 89.
Determining the Scope of the EIS “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. § 1502.20; 40 C.F.R. § 1508.28. To determine the scope of environmental impact statements, agencies must consider the following:
(a) Actions, which include:
- (1) Connected actions, which are closely related actions that should be discussed in the same EIS. 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; or
- (3) Cumulative.
Formulating Alternatives As part of developing the EIS, the BLM must study, develop, and describe appropriate alternatives to the proposed action to enable the BLM to make a reasonable choice. Reasonable alternatives include those that are practical or feasible from a technical and economic standpoint using common sense. For proposed actions that have a potentially large number of alternatives, the BLM need only analyze a reasonable number to cover the full spectrum of alternatives. 40 C.F.R. § 1502.14; Council on Environmental Quality - Forty Most Asked Questions Concerning CEQ's NEPA Regulations.
9-FD-c.6 to 9-FD-c.7 – 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. 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. 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;
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.
9-FD-c.8 to 9-FD-c.9 – Review DEIS for Completeness
The BLM reviews the DEIS for administrative and substantive completeness. Bureau of Land Management – National Environmental Policy Act Handbook, pg. 94-97.
9-FD-c.10 to 9-FD-c.11 – File DEIS with Environmental Protection Agency (EPA)
The BLM must file the DEIS with the Environmental Protection Agency (EPA), which publishes notice of the Filing in the Federal Register. The BLM should distribute copies of the DEIS to any federal agency with jurisdiction or special expertise, the applicant, and any requesting party before or on the same day the BLM files the DEIS with the EPA. 40 C.F.R. § 1502.19; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 99.
In addition, the BLM must publish a notice of availability (NOA) of the DEIS 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-c.12 to 9-FD-c.13 – Provide Opportunity for Public Comment
The BLM must provide an opportunity for the public to comment on the DEIS for a minimum of 45 days. However, some programs may require longer comment periods. For example, a DEIS for an RMP must be made available for 90 days. 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-c.14 to 9-FD-c.15 – Prepare Final EIS (FEIS)
The BLM prepares a final EIS (FEIS) following the end of the public comment period on the DEIS. 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.
If changes to the DEIS in response to comments are minor, the BLM may prepare an abbreviated FEIS, which contains only a cover sheet, explanation of the abbreviated FEIS, copies of substantive comments received on the DEIS, responses to those comments, and an errata section with specific modifications and corrections to the DEIS made in response to comments. 40 C.F.R. § 1503.4; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 101.
If changes to the DEIS are major, the FEIS should be a complete full text document. The content of a full text FEIS is substantially the same as the corresponding DEIS except that it includes copies of substantive comments on the DEIS, responses to those comments and changes in or additions to the text of the FEIS in response to comments. 40 C.F.R. § 1503.4; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 101.
9-FD-c.16 to 9-FD-c.17 – File FEIS with EPA
The BLM must file the FEIS with the Environmental Protection Agency (EPA), which publishes notice of the Filing in the Federal Register. The BLM should distribute copies of the FEIS to any federal agency with jurisdiction or special expertise, the applicant, and any requesting party before or on the same day the BLM files the FEIS with the EPA. 40 C.F.R. § 1506.6; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 102.
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 FWS must wait to issue a Record of Decision (ROD). 40 C.F.R. § 1506.10(b)(2)
9-FD-c.18 to 9-FD-c.19 – Issue Record of Decision (ROD)
The BLM must issue a signed record of decision (ROD) to document the selected alternative and any accompanying mitigation measures. The BLM cannot issue the ROD until the later of the following dates:
- 90 days after the publication of the EPA’s notice of filing of the DEIS;
- 30 days after publication of the EPA’s notice of filing of the FEIS. 40 C.F.R. §§ 1505.2; 1506.10; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 102-103.
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.
9-FD-c.20 – Publish NOA of ROD
The BLM must publish the NOA of the ROD in the Federal Register and provide copies of the ROD to those who have requested it. 40 C.F.R. §§ 1506.6; Bureau of Land Management – National Environmental Policy Act Handbook, pg. 103.
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 C.F.R. § 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 C.F.R. § 1506.10(b)(2).
9-FD-c.21 – 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-c.22 to 9-FD-c.23 – File Notice of Appeal
The developer must file a Notice of Appeal with the BLM within 30 days of receipt of the final 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 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. 43 C.F.R. § 4.21.
Within 15 days after the appeal is filed, each adverse party named in the decision must be served with a copy of the notice of appeal and other applicable documents. 43 C.F.R. § 4.413.
9-FD-c.24 to 9-FD-c.25 – 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-c.26 to 9-FD-c.27 – Hold Hearing (Optional)
Any party may file a motion with 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:
- Any issues of material fact which, if proved, would alter the disposition of the appeal; or
- 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. § 4.403.
9-FD-c.28 – Implement and Monitor as Provided in the 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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- National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 – 4370
- 40 C.F.R. §§ 1500 - 1508, CEQ Regulations for Implementing Procedural Provisions of NEPA
- 43 C.F.R. §§ 46.10 – 46.450, Implementation of the National Environmental Policy Act of 1969
- 43 C.F.R. §§ 1601.01 – 1610.8, Planning, Programming, Budgeting
- Bureau of Land Management - Washington Office Directories
- Bureau of Land Management – National Environmental Policy Act Handbook
- Bureau of Land Management – National Environmental Policy Act Webpage
- Council on Environmental Quality - Forty Most Asked Questions Concerning CEQ's NEPA Regulations
- Bureau of Land Management - Examples of Scoping Reports
- Bureau of Land Management - Examples of Non-LUP Prep Plan or EIS Prep Plan
- Department of the Interior - Departmental Manual - 516 DM Chapter 1
- Bureau of Land Management - Resource Advisory Councils
- Federal Register - Document Drafting Handbook
- Bureau of Land Management - WO-210 - Contact Information
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)
- Federal Emergency Management Agency - Executive Order 11988 - Floodplain Management (1977)
- Federal Emergency Management Agency - Executive Order 11990 - Protection of Wetlands (1977)