40 cfr 1500-1508 regulations for implementing procedural provisions of nepa legislative vs....

40 CFR 1500-1508REGULATIONS FOR IMPLEMENTING

PROCEDURAL PROVISIONS OF NEPA

Legislative vs. Discretionary Timelines -Agency Requirements for Implementing

Project Level EAs and EISs

June 11, 2008

Buys & Associates, Inc.

Our discussion focuses on key tasks that have the most salient impact on the timing of O&G project EAs and EISs.


Decision to Prepare an EA or EIS?

(Sections 1501.3 and 1501.4)

Task-Level Time Frames


An EIS is prepared when:

1) The action normally requires an EIS; or2) When the agency knows there will be

significant impacts.

For other situations, an EA is usually prepared.

EISs are more involved than EAs, and have more task-specific, non-discretionary, and lengthy timeframes.


Key Tasks for EISs:• Proposed Action• Internal Scoping• Draft Notice of Intent (NOI) Review• Public Scoping• Preparation of Preliminary Draft EIS (PDEIS)• Internal review of PDEIS• Notice of Availability (NOA) & Draft EIS (DEIS) Internal Review• DEIS Public Comment Period• Responses to Comments (RTCs) & Preparation of Preliminary Final

EIS (PFEIS)• NOA, Final (FEIS) and Draft ROD Review • FEIS Availability

• ROD Appeal Period


Proposed Action Prior to public scoping the operator must have a Proposed Action to present to the public. This task, although technically outside the formal EIS process, can take a substantial amount of time.

Timing is operator-specific:

• How long will it take you to prepare a complete Proposed Action? • Do you know what the agency wants/needs to see in the Proposed

Action? • Do you have a feel for the key issues of the project area; things that

you may need to consider within the operational aspects of your Proposed Action?

• Is the agency expecting you – are they planning for an EIS?

All of the above boil down to pre-planning; start your pre-planning 6 to 18 months before you want the formal EIS process to begin.


Internal Scoping

• Once your Proposed Action is received by the agency, there is usually some level of internal scoping that is conducted in conjunction with the lead agency prior to the formal public scoping period.

• During this general timeframe, the lead agency prepares the Notice of Intent (NOI).

Internal scoping can take 2 – 6 months

before agency is ready to officially scope the project to the public. Timing

depends on the completeness of your

Proposed Action, sensitivity of the project area, scope of the project, and

budget and staffing availability.


Draft NOI Review • Prior to publication in the Federal Register, the draft NOI is reviewed

by (as appropriate) upper agency management (e.g., USFS Solicitor Office, BIA Regional Office, or BLM State and Washington Offices): – Although CEQ provides no guidance on time frames for NOI review,

plan for at least 30-90 days• Acceleration of this time frame often requires pressure by the lead

agency and operator

Recent Wyoming and Utah NOIs:

Sat in the Washington Office of the BLM for over 6

months before being approved for publication


Formal Public Scoping (1501.4 and 1501.7)

• CLOCK STARTS when the EPA publishes the NOI (1501.7) in their Federal Register:– Although CEQ provides no

guidance on required time frames, public scoping takes no less than 45 days

– Lead agency has discretion to extend the scoping period


Preparation of PDEIS

Realistic estimate =

9 months to 2 years depending on:

1) The scope of the Proposed Action,

2) Degree to which the action is controversial,

3) Scope of the EIS (e.g., # of alternatives, depth of analysis), and

4) Degree to which relevant baseline information is available (i.e., is field work needed first ?),


Preparation of PDEISOther factors affecting how long it takes

to prepare the PDEIS:

Involvement by Cooperating Agencies and Consulting Parties – it’s valuable, but consensus/compromise is difficult and time consuming

Changes to the Proposed Action or alternatives – changes have ripple effects


PDEIS Internal Review

• i.e., Review of the PDEIS by the lead agency, Cooperating Agencies, and operator– timing is at the lead agency’s discretion, plan for at

least 30 days. – At a minimum, the lead agency will review the PDEIS.– Limiting internal review periods becomes more

difficult with each agency office, Cooperating Agency or Consulting Party in the mix (more schedules to accommodate)


NOA and DEIS Internal Review

• i.e., Review by USFS Solicitor Office, BIA Regional Office, or BLM State and Washington Offices– Although CEQ provides no formal guidance on time frames for

NOA review, plan for at least 30-90 days

• Timeframe can usually be expedited if the Solicitor/Regional/State/Washington Office(s) is involved early in the process – Last minute involvement can result in significant delays (e.g., 2

recent NOAs and DEISs sat in the Washington Office of the BLM for over 6 months, were remanded and had to be revised/re-printed)

– For recent EIS where Washington BLM had been involved since scoping, the NOA and DEIS review took about 2 months


NOA and DEIS Internal Review

And sometimes, even with early involvement, review by agency upper management can result in major schedule slip.

Acceleration of this time frame often requires pressure by the lead agency, operator, and sometimes legal counsel


DEIS Public Review

After preparing a DEIS, the agency shall (1503.1):• Obtain comments of any Federal agency with jurisdiction

by law or special expertise with respect to any environmental impact involved or which is authorized to develop and enforce environmental standards (e.g., EPA under Clean Air Act).

• Request the comments of appropriate State and local agencies…, Indian Tribes…, and any [other] agency which has requested that it receive [DEISs].

• Request comments from the public.


DEIS Public Review

• CLOCK STARTS when EPA publishes NOA in their Federal Register

• CEQ guidelines (1506.10(d)) require no less than 45 days for DEIS public review but agencies have discretion to add additional time – plan for at least 60 days plus requests for additional time

• Minimum 90-day review period if the EIS decision is going amend a land use plan


Responses to Comments & Preparation of PFEIS

Realistic range =

3 months to 1 year depending on the volume of comments and whether comments:

1) modify the alternatives,

2) lead to consideration of additional alternatives,

3) modify the impact analysis.


PFEIS Internal Review • i.e., review/edits by lead agency,

upper agency management, Cooperating Agencies, and operator:– Although CEQ provides no

formal guidance on time frames for NOA review, plan for at least 30 days

• Reviewers will be looking at how the EIS was revised based on public comments – RTCs generally receive careful scrutiny


NOA, FEIS and Draft ROD Review

• i.e., Review by USFS Solicitor Office, BIA Regional Office, or BLM State and Washington Offices: – Although CEQ

provides no guidance on time frames for NOA, FEIS, and Draft ROD review - plan for at least 30-90 days.

Again, acceleration of this discretionary time frame often requires pressure by the lead agency, operator, and legal counsel


FEIS Availability

• CLOCK STARTS when the EPA publishes the NOA (1506.6) in their Federal Register: – CEQ guidelines require no less than 30 days– Substantive comments on FEISs do not have

to be incorporated into a revised FEIS, but are generally responded to by the agency within the ROD


ROD Appeal Period

No less than 30 days for ROD appeal

+ additional time if there’s a land use plan amendment (40 CFR 1610), which for BLM projects are becoming commonplace given the number of outdated RMPs:– 60-day Governor’s consistency review with State and local

plans (is sometimes concurrently with FEIS review), – 30-day protest period afforded to the public (can run

concurrently with 30-day ROD appeal period), – discretionary protest resolution period (up to 90 days can be

taken to resolve protests on land use plan decisions)


Save appeals and/or litigation, the EIS process is now complete,

but what about timing on EAs?


TYPICAL Task Level Timing for EAs isAgency-specific & Project-specific:

Tasks Time Frames

Pre-planning & Internal scoping 2 – 4 months

Public Scoping 0 - 30 days

Prep. of Internal Draft EA 2 – 4 months

Internal Draft EA Review(s) USUALLY 1 - 3 months per review

Draft EA Public Review 0 - 30 days

RTCs and EA Revisions 2 weeks - 2 months

Agency Final Review USUALLY 2 weeks - 2 months

Final EA Public Review Usually 0 days

Decision Record/Notice 30-day averageAppeal Period


Start – Finish? Project Level Time Frames

(Section 1501.8)


CEQ says: Large, complex energy project EISs - 12 months start to finish.

More realistic - 3 to 5 years

CEQ says: EAs – 3 months start to finish.More realistic - 6 months to about 2 years

While CEQ has made suggestions on time limits for EAs and EISs, in reality, timeframes

are agency-specific, operator-specific, and (especially these days) project scope, project

area, and issue-specific.


Keys to keeping the NEPA process running:

Operator needs to establish early dialogue with the lead Agency – get on the agency’s schedule;

Operator needs to prepare a thorough Proposed Action - avoid 11th hour changes when feasible;

Early/Ongoing involvement by upper agency management, Cooperating Agencies, other stakeholders - avoid 11th hour revisions;

Know the sticking points of the project and project area and try to preempt holdups;

Understand that small details can yield big delays. So, COMMUNICATE - Make sure everyone understands roles, responsibilities, and timelines throughout the process

40 cfr 1500-1508 regulations for implementing procedural provisions of nepa legislative vs....

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