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U.S. Forest Service - NEPA Review (9-FD-g)

Information current as of 2020
The National Environmental Policy Act (NEPA) requires federal agencies, including the United States Forest Service (USFS), to consider the potential environmental impacts of their proposed actions and any reasonable alternatives before undertaking a major federal action, as defined by 40 C.F.R. § 1508.18.

The Council on Environmental Quality (CEQ) has established general regulations governing all NEPA actions, which can be found at 40 C.F.R. § 1500 - 1518. In addition, 40 C.F.R. § 1507.3 requires federal agencies to establish procedures that implement the CEQ regulations. The United States Department of Agriculture (USDA) NEPA procedures can be found at 7 C.F.R. § 1b et seq., and the USFS NEPA procedures can be found at 36 C.F.R. § 220 et seq. USFS NEPA guidance can be found in the NEPA Manual and NEPA Handbook.

NEPA does not dictate a particular outcome, but it does require federal agencies to perform an environmental analysis. The environmental analysis can take on one of three forms:

  • A Categorical Exclusion (CX);
  • An Environmental Assessment (EA); or
  • An Environmental Impact Statement (EIS).

A CX is a category 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. An EA or EIS may be necessary, even though the activity is covered by a CX, if extraordinary circumstances are present. See 40 C.F.R. § 1508.4.

An EA is a concise public document that helps the agency determine whether an EIS or Finding of No Significant Impact (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. See 40 C.F.R. § 1508.9. If the USFS determines that there are no significant environmental impacts after completing the EA, a FONSI should be prepared. 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. See 40 C.F.R. § 1508.13.

Analysis of environmental effects during the EA process may result in a finding that there may be significant effects caused by the proposed federal action that cannot be mitigated. The USFS Official then decides whether an EIS is required in order to meet the NEPA requirements. An EIS should contain a discussion of the all environmental impacts of the proposed federal action, alternatives to the proposed action, and mitigation measures. See 40 C.F.R. § 1502.3. In addition, the EIS should describe the purpose and need for the proposed action.

U.S. Forest Service - NEPA Review Process

9-FD-g.1 – Enter Proposed Project Information Into the Schedule of Proposed Actions (SOPA)

The USFS uses the Schedule of Proposed Actions (SOPA) to inform the public about upcoming actions that may require NEPA analysis by providing the public with informal notice regarding upcoming proposals. The SOPA is published every quarter automatically by the planning, appeals, and litigation system (PALS). Project information should be entered into the PALS, including a project description, the project location, the estimated start date for scoping, and contact information. The SOPA notice may not be used as the exclusive method of scoping.

9-FD-g.2 to 9-FD-g.3 –Is it Clear that an EIS Should be Prepared?

An EIS must be prepared when there is a major federal action significantly affecting the quality of the human environment. If the proposed action is one which would normally require an EIS, or if it is clear that impacts of the proposed action will significantly affect the human environment, an EIS should be prepared. If the significance of the impacts is unclear, an EA should be prepared. See 40 C.F.R. § 1501.4. Classes of actions identified by the USFS that would normally require an EIS can be found in 36 C.F.R. § 220.5(a). If, after completing an EA, the USFS determines that an EIS is required, an NOI should be published and a new round of scoping should be conducted, even though scoping has already been conducted for the EA.

After entering project information into the SOPA and publishing an NOI (if an EIS is required), the USFS commences scoping. Scoping is the first stage in the NEPA process and is defined by 40 C.F.R. § 1501.7 as “an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action.”

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 CX, EA, or 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 CX, EA, or EIS between the lead and cooperating agencies (if necessary);
  • Identify any environmental documents being prepared that have relevance to, but are not part of, the scope of this CX, EA, or EIS;
  • Identify other environmental review and consultation requirements;
  • Discuss the relationship between the timing of the preparation of the CX, EA, or EIS and the agency’s tentative planning and decision-making schedule;

36 C.F.R. § 220.4(e)(1) states that scoping is required for all USFS proposed actions. No single scoping technique is required, but that the scoping process must comply with 40 C.F.R. § 1501.7. See 36 C.F.R. § 220.4(e)(2). Chapter 10 of the USFS NEPA Handbook contains guidance regarding compliance with the CEQ and USFS scoping requirements. It states that scoping involves “refining the proposed action, determining the responsible official and lead and cooperating agencies, identifying preliminary issues, and identifying interested and affected persons,” and the result of scoping is used to “clarify public involvement methods, refine issues, select an interdisciplinary team, establish analysis criteria, and explore possible alternatives and their probable environmental effects.” Some of the more important steps in the scoping process are discussed below. Except where required by statute or regulation, the responsible USFS official may adjust or combine various steps to craft an appropriate scoping analysis, so long as it complies with the CEQ scoping regulations. For a more detailed discussion, see Chapter 10, section 11 of the USFS NEPA Handbook.

Identify a need for action

The USFS must determine the purpose of and need for an action before it can determine the scope of issues that must be addressed by the NEPA review. A “purpose and need” statement may be used to narrow the range of alternatives that must be considered. The purpose and need should be as specific as possible in order to reduce the scope of the environmental analysis and the issues that must be addressed. For examples of general and specific purpose and need statements, see Chapter 10, section 11.21 of the USFS NEPA Handbook.

Develop a decision framework

The USFS may use a decision framework to help describe the scope of the proposed action and ensure the purpose and need, proposed action, and alternatives are relevant to each other. The decision framework “may be described in terms of whether or not to implement the action as proposed or an alternative way to achieve the desired outcome.” See Chapter 10, section 11.22 of the USFS NEPA Handbook.

Review existing decisions and documents

Existing environmental analysis documentation should be reviewed to determine if a valid decision already exists. If so, a new analysis and decision is only warranted if there is new information, new technology, or changed conditions. See Chapter 10, section 11.23 of the USFS NEPA Handbook.

Furthermore, tiering, adoption and incorporation by reference should be used to supplement the NEPA process when possible.

Tiering is defined as “using the coverage of general matters in broader NEPA documents in subsequent, narrower NEPA documents.” See 40 C.F.R. § 1508.28. Tiering allows the site-specific review to incorporate analyses of significant impacts by reference, thereby reducing redundancy and allowing the site-specific review to focus on issues not already addressed.

40 C.F.R. § 1506.3 allows an agency to adopt a federal draft or final EIS or portion thereof. See Chapter 10, section 11.42 of the USFS NEPA Handbook.

Incorporation by reference allows the USFS to refer to environmental documents that are relevant to its NEPA analysis. It is encouraged by both the CEQ and USFS NEPA regulations. The contents of the incorporated material should be briefly described in the EA or EIS. See 40 C.F.R. § 1502.21; 36 C.F.R. § 220.4(h); Chapter 10, section 11.43 of the USFS NEPA Handbook.

The USFS should review documents that may be tiered, adopted or incorporated by reference during the scoping period to determine their applicability.

Invite participation from interested entities and solicit cooperation from other agencies

40 C.F.R. § 1501.7(a)(1) requires the USFS to invite participation from federal, state and local agencies, affected Indian tribes, the proponent of the action, and any other interested persons. As the lead agency (the agency with primary responsibility for completing the NEPA process), the USFS must also solicit cooperation from other federal, tribal, state or local agencies. Agencies that accept the invitation become “cooperating agencies,” which is defined as an agency, “other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal.” See 40 C.F.R. § 1508.5. Cooperating agencies participate in both scoping and analysis, assume responsibility for sections of the NEPA document upon request that pertain to its special expertise, and make staff available to the lead agency upon request to enhance the interdisciplinary analysis. See 40 C.F.R. § 1501.6.

Identify preliminary issues

The USFS should identify preliminary issues during the scoping process in order to narrow the focus of the environmental analysis. The USFS should evaluate preliminary issues based on:

  • A review of similar actions;
  • Knowledge of the area or areas involved; and
  • Discussions with interested and affected persons, community leaders, organizations, resource professionals within the Agency [USFS], and State and local governments, and/or consultations with experts and other agencies familiar with such actions.

See Chapter 10, section 11.51 of the USFS NEPA Handbook.

As part of this process, the USFS must eliminate from consideration issues which are not significant or which have been covered by a prior review. Insignificant issues should be briefly addressed in the subsequent EIS. See 40 C.F.R. § 1501.7(a)(3).

Identify public participation needs

CEQ regulation 40 C.F.R. § 1506.6(a) requires the USFS to “[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures.” This includes:

  • Providing public notice of hearings, meeting, and environmental documents;
  • Holding public hearings or meetings when appropriate;
  • Soliciting information from the public;
  • Explaining where interested persons can obtain information regarding the information process; and
  • Making the EIS available to the public along with comments and underlying documents.

The USFS should determine the level of public participation required for the proposed action during the scoping period. If the proposed action requires extensive public involvement, a formal public participation strategy should be prepared. See Chapter 10, section 11.52 of the USFS NEPA Handbook.

9-FD-g.4 - Inform Participants and the Public of the Results of Scoping

After scoping has been completed, the USFS informs the participants of the results. In addition, the public should be kept informed of the progress of the environmental analysis.

The Agency maintains a publicly accessible Schedule of Proposed Actions (SOPA) that tracks the progress of every ongoing project through the appropriate NEPA steps. See USFS - Forest Service Schedule of Proposed Actions.

Some units use personal contacts, local media, and newsletters as well. See Chapter 10, section 11.7 of the USFS NEPA Handbook.

9-FD-g.5 to 9-FD-g.7 – Does the Proposed Activity Fall Under a Categorical Exclusion?

As stated above, a CX is a category of actions that individually or cumulatively, do not have a significant effect on the environment. However, actions may only be categorically excluded if there are no extraordinary circumstances. See 36 C.F.R. § 220.6(a). A list of resource conditions that should be considered when determining whether extraordinary circumstances exist can be found in 36 C.F.R. § 220.6(b). If any of the listed resource conditions are present, the USFS must determine the degree to which they are affected. The mere presence of a resource condition does not create extraordinary circumstances. According to Chapter 30, section 31.2 of the USFS NEPA Handbook, “[i]f the degree of potential effect raises uncertainty over its significance, then an extraordinary circumstance exists, precluding use of a categorical exclusion.”

Although not required by the CEQ, the USFS requires scoping for all actions, including those that fall within a CX. Scoping may help to determine whether a CX is appropriate or whether extraordinary circumstances exist. See Chapter 30, section 31.3 of the USFS NEPA Handbook.

There are two lists of CXs that apply to USFS actions. The first list applies to all agencies under the jurisdiction of the USDA and can be found at 7 C.F.R. § 1b.3. The Second list applies only to the USFS and can be found at 36 C.F.R. § 220.6(d) and (e).

Decisions regarding actions that fall under one of the CXs listed in 36 C.F.R. § 220.6(e) must be documented in a decision memo. Formatting information for the decision memo can be in 36 C.F.R. § 220.6(f). Interested and affected parties must be notified of the availability of the decision memo as soon as practical after signing. See 36 C.F.R. § 220.6(f). The decision memo should also be distributed to agencies, organizations, and persons interested in or affected by the proposed action. In addition, information regarding the decision memo should be entered into the PALS database. See Chapter 30, section 34 of the USFS NEPA Handbook.

If the action falls under one of the CXs in 36 C.F.R. § 220.6(d) or 7 C.F.R. § 1b.3, no decision memo is required. However, the USFS should still notify interested and affected parties of the decision in an appropriate manner. In some cases, the USFS may choose to prepare a decision memo, even though it is not required. See Chapter 30, section 33.1 of the USFS NEPA Handbook.

Lastly, some CXs are required by statute and established by the United States Congress. A general list of statutorily established CX categories can be found in Chapter 30, section 32.3 of the USFS NEPA Handbook.

9-FD-g.8 to 9-FD-g.9 – Form Interdisciplinary Team

Section 102(2)(A) of NEPA requires agencies to “utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment.” CEQ regulation 40 C.F.R. § 1501.7 requires the disciplines of the preparers to be appropriate to the scope and issues identified in the scoping process. The USFS must always establish an interdisciplinary team for complex proposals or proposals that may have significant environmental effects. For less complex proposals, one or more resource specialists may be used instead of a full team. See Chapter 10, section 12 of the USFS NEPA Handbook.

If an EA or EIS is required, the responsible USFS official sends a project initiation letter (PIL) to the newly formed team. The PIL should set forth the project direction and expectations of the team leader. Suggested content for the PIL can be found in Chapter 10, section 12 .1 of the USFS NEPA Handbook.

9-FD-g.10 to 9-FD-g.13 – Develop a Framework for Analysis

36 C.F.R. § 220.7(a) requires the USFS to prepare an EA for proposals that are not categorically excluded and for which the need for an EIS has not been determined. The main purpose of an EA is to provide sufficient evidence and analysis to determine whether to prepare an EIS or a FONSI. See 40 C.F.R. § 1508.9(a). See Chapter 40, section 41.2 of the USFS NEPA Handbook.

The first step in the EA process is the development of a framework for analysis. This includes:

  • Identifying and selecting data sources, analysis methods, and set standards of accuracy;
  • Defining what type of analysis will be conducted and why it is appropriate;
  • Defining measurements indicators and effects analysis boundaries;
  • Determining the depth or detail of the analysis
  • Developing a framework to assure a range of reasonable alternatives will be analyzed;
  • Developing a strategy to estimate the significance of environmental effects using the definitions of context and intensity (see the Zero Code of the USFS NEPA Handbook for the definitions of context and intensity);
  • Considering how alternatives will be evaluated; and
  • Considering how to ensure compliance with the forest’s land management plan, policy, laws and regulations.

See Chapter 10, section 12.3 of the USFS NEPA Handbook.

Data should be collected and interpreted in accordance with the framework for analysis, and the USFS should identify any incomplete or missing data in the EA.

40 C.F.R. § 1501.2(c) requires the USFS to develop alternatives to the proposed action based on the data collected. The EA must briefly describe the proposed action and alternative(s). See 36 C.F.R. § 220.7(b)(2). If there are no unresolved conflicts regarding alternative uses of the available resources, “the EA need only analyze the proposed action and proceed without consideration of additional alternatives”. See 36 C.F.R. § 220.7(b)(2)(i).

In addition to a description of the proposed action and the alternative(s), the EA must also include a description of the need for the proposal and a discussion of the effects of the proposed action and the alternatives. The discussion should include sufficient analysis and evidence to determine whether an EIS or FONSI should be prepared. The significance of the effects should be described in terms of context and intensity. See 36 C.F.R. § 220.7(b).

9-FD-g.14 to 9-FD-g.16 – Are There Significant Environmental Impacts?

If the EA analysis indicates that the proposed action may have a significant effect on the quality of the human environment, the USFS publishes a Notice of Intent (NOI) to prepare an EIS in the Federal Register. Otherwise, the USFS prepares a FONSI and a Decision Notice.

40 C.F.R. § 1508.13 defines a FONSI as “…a document by a Federal agency briefly presenting the reasons why an action, not otherwise excluded, will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared.” 40 C.F.R. § 1508.4. The FONSI must include either the EA or a summary of it.

36 C.F.R. § 220.7(c) requires the USFS to document its decision to proceed with the proposed action in a decision notice when an EA and FONSI have been prepared. Among other things, a decision notice must include:

  • The decision and rationale;
  • A brief summary of public involvement;
  • A statement incorporating by reference the EA and FONSI if not combined with the decision notice; and
  • The expected implementation date.

For a complete list of decision notice formatting requirements, see 36 C.F.R. § 220.7(d).

The USFS notifies interested and affected parties of the availability of the EA, FONSI and decision notice as soon as practicable after the decision notice has been signed. See 36 C.F.R. § 220.7(d). In some cases, the FONSI must be issued at least 30 days before the decision notice. See 40 C.F.R. § 1501.4(e)(2). Otherwise, the FONSI and decision notice may be issued simultaneously.

9-FD-g.17 to 9-FD-g.22 – Notice of Intent to Prepare EIS

As stated above, the EIS scoping process begins when the USFS publishes an NOI in the Federal Register. Scoping must be conducted for an EIS even though it has already been conducted for an EA. For more information on scoping, see 9-FD-g.3.

After the NOI has been published, an interdisciplinary team should be formed and a PIL should be sent to the newly formed team. See 9-FD-g.8.

A framework for analysis should be developed and data should be collected and interpreted in accordance with that framework as part of the scoping process. See 9-FD-g.11.

A range of reasonable alternatives must be developed for and analyzed in the EIS. The effects of the alternatives on the environment should be analyzed and documented. The EIS should briefly discuss alternatives that have been eliminated and the reason for their elimination. 40 C.F.R. § 1502.14(d) requires an EIS include a no-action alternative. In addition, the USFS should identify its preferred alternative in the draft EIS. See 40 C.F.R. § 1502.14.

9-FD-g.23 to 9-FD-g.26 – Draft EIS

The draft EIS should be prepared in accordance with the scope established by the scoping process. It should conform to the requirements for a final EIS to the greatest extent possible. The recommended CEQ format for an EIS is as follows:

  • A cover sheet;
  • A summary;
  • A Table of contents;
  • The purpose and need for action;
  • Alternatives including the proposed action;
  • The affected environment;
  • The environmental consequences;
  • A list of preparers;
  • A list of agencies, organizations, and persons to whom copies of the statement are sent;
  • An index; and
  • An appendices (if any).

See 40 C.F.R. § 1502.10; Chapter 20, section 23.3 of the USFS NEPA Handbook.

Once the draft EIS is complete, the USFS circulates it to other agencies and the public. See 40 C.F.R. § 1502.19. The USFS also files the draft EIS with the Environmental Protection Agency (EPA). Once received, the EPA publishes a Notice of Availability (NOA) in the Federal Register. See 36 C.F.R. § 220.5(f); 40 C.F.R. § 1502.19.

The public comment period begins once the NOA has been published in the Federal Register. The comment period must last a minimum of 45 days. 40 C.F.R. § 1503.1 requires the SFS to invite comments on the draft EIS. This may include:

  • Obtaining comments from federal agencies with special expertise;
  • Requesting comments of state and local agencies, Indian tribes, and any agency which has requested that it receive statements on actions of the kind proposed;
  • Requesting comments from the applicant; and
  • Requesting comments from the public and affirmatively soliciting comments from those persons or organizations whom may be interested or affected.

9-FD-g.27 to 9-FD-g.29 – Final EIS

The final EIS should include responses to substantive comments. It should also include modifications to the draft EIS, if necessary. All substantive comments received on the draft EIS should be attached to the final EIS. The USFS may respond to substantive comments by:

  • Modifying alternatives including the proposed action;
  • Developing and evaluating alternatives not previously given serious consideration by the agency;
  • Supplementing, improving, or modifying its analysis;
  • Making factual corrections; and
  • Explaining why the comments do not warrants further response.

See 40 C.F.R. § 1503.4.

As with the draft EIS, the final EIS must be distributed to the public and other agencies, and it must be filed with the EPA. Once the final EIS is received, the EPA publishes a NOA in the Federal Register. For timing requirements governing the EIS process, see 40 C.F.R. § 1506.10. It should be noted that an exception to the 30-day delay provision for the Record of Decision (ROD) applies to most USFS actions, because the USFS has established an appeals process for environmental decisions. See 9-FD-g.30 below. This means that the final EIS and ROD may be published at the same time in most cases. See 40 C.F.R. § 1506.10; Chapter 20, section 26.1 of the USFS NEPA Handbook.

9-FD-g.30 – Record of Decision

The ROD is a concise public record that documents the decision reached in the EIS regarding the proposed action. The ROD must state what the decision was, outline the deliberations taken to reach the final decision, indicate the reasons for that decision, identify all alternatives considered by the USFS in reaching it decision, and state whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why not. See 40 C.F.R. § 1505.2. For USFS guidance on the format and content of the ROD, see Chapter 20, section 26.21 of the USFS NEPA Handbook.

The decision takes effect as soon as the ROD is signed, or at a later date if the USFS official designates one in the ROD itself. If the decision is subject to review under the USFS appeal regulations, the ROD may be signed on the date that it is transmitted with the final EIS to the EPA and made available to the public. Otherwise, the ROD may not be signed sooner than 30 days after the EPA’s NOA of the final EIS is published in the Federal Register.

After the ROD is signed, the USFS notifies interested and affected parties of its availability.

9-FD-g.31 to 9-FD-g.33 – Has an appeal been filed?

The USFS has established regulations that allow for pre and post-decisional appeals for certain types of actions. Land Management Plan (LMP) revision appeal procedures can be found in 36 C.F.R. § 219. Appeal procedures for projects that have been categorically excluded and for which a decision memo was prepared can be found in 36 C.F.R. § 215. Appeal procedures for land occupancy and land use decisions can be found in 36 C.F.R. § 214. As stated above, if the appeal procedures are applicable to a USFS decision, the ROD may be signed and issued simultaneously with the final EIS.

More information about appeals can be found at the Forest Service Appeals Webpage.

If an appeal is filed under one of the procedures listed above, the USFS generally completes the appeals process before implementing the decision. If an appeal is not filed, the decision should be implemented and monitored in accordance with the ROD and final EIS.

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