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Current Issues in NEPA

Lessons Learned in Appeals and Litigation

Jackie AndrewR6 Assistant Director RPM

Lessons Learned in Appeals and Litigation

Jackie AndrewR6 Assistant Director RPM

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Top NEPA Traps . . .

Really good ways to tempt appellants and litigants into challenging a project

Really good ways to tempt appellants and litigants into challenging a project

Analysis serves as the foundation for the Decision

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What kind of traps do What kind of traps do we fall into that we fall into that

prevent appropriate prevent appropriate determinationsdeterminations

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Trap 1 – Not fully understanding or describing the Proposed Action and the Alternatives. . .

Every member of the IDT must understand ALL of the actions Include the mitigation measures and design features

Every member of the IDT must understand ALL of the actions Include the mitigation measures and design features

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Trap 2 – Omitting the measures and values of change . . .

Snags per acre Pools per mile % detrimental

disturbance Tons per acre Qualitative and

quantitative

Snags per acre Pools per mile % detrimental

disturbance Tons per acre Qualitative and

quantitative

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Trap 3 – Neglecting the magnitude of change . . .

Extent – how vast ? Direction – how

dynamic? Speed – how rapid? Duration – how lasting?

Extent – how vast ? Direction – how

dynamic? Speed – how rapid? Duration – how lasting?

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Trap 4 – Restating the actions themselves as the effects of the actions . . .

Action: The District Ranger proposes to restore the streambank of Cat Creek in 2003

Wrong: This action would restore the streambank of Cat Creek by 2003

Right: This action would increase vegetative cover along the lower 2.1 miles of Cat Creek to 100 percent of its potential by 2006

Action: The District Ranger proposes to restore the streambank of Cat Creek in 2003

Wrong: This action would restore the streambank of Cat Creek by 2003

Right: This action would increase vegetative cover along the lower 2.1 miles of Cat Creek to 100 percent of its potential by 2006

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Trap 5 – Discounting the effects of the no-action alternative . . .

The evolving conditions of the affected environment Best opportunity to

display why action is needed The baseline for

comparison ofaction alternatives

The evolving conditions of the affected environment Best opportunity to

display why action is needed The baseline for

comparison ofaction alternatives

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Trap 6 – Excluding the effect and effectiveness of mitigation measures – and even the measures themselves . . .

Avoiding Minimizing Rectifying Reducing Compensating

Avoiding Minimizing Rectifying Reducing Compensating

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Trap 7 – Neglecting to interpret the effects or ask the ‘so what’ question . . .

Example

As a result of the fuel reduction activities, basal area will be reduced to 60 sq ft/acre….So?

Example

As a result of the fuel reduction activities, basal area will be reduced to 60 sq ft/acre….So?

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Trap 8 – Incorporating reference material without checking the relevance . . .

New material comes out all the time, review it, incorporate it, check to see if it represents good science…

New material comes out all the time, review it, incorporate it, check to see if it represents good science…

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Trap 9 – Writing ad naseum about extraneous information . . .

Frame the analysis Focus the presentation Emphasize the effects Streamline the writing Use plain language

(40 CFR 1500.1c, 1500.2b, 1500.4b,c,d,f)

Frame the analysis Focus the presentation Emphasize the effects Streamline the writing Use plain language

(40 CFR 1500.1c, 1500.2b, 1500.4b,c,d,f)

The more we write,

the more wemust defend

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Trap 10 – Ignoring cumulative effects ...

Federal lands Non-federal lands

Past projects Present projects Reasonably foreseeable future projects

Federal lands Non-federal lands

Past projects Present projects Reasonably foreseeable future projects

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Trap 11 – Stating indirect project effects as a substitute for cumulative effects . . .

Example

Describing downstream turbidity as the cumulative effect on water quality instead of as merely an indirect effect of the sediment from a proposed action

Example

Describing downstream turbidity as the cumulative effect on water quality instead of as merely an indirect effect of the sediment from a proposed action

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Trap 12 – Omitting assumptions, methodologies, references, conclusions, and rationale . . .

Mouse mortality would increase because ________ Mouse mortality would increase because ________

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Trap 13 – Failing to provide a consistency conclusion. . .

You must interpret the effects in relation to law, regulation and policy…

Bottom line, is it consistent with your Forest Plan?

You must interpret the effects in relation to law, regulation and policy…

Bottom line, is it consistent with your Forest Plan?

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Bonus – Preparing effects analysis inan interdisciplinary vacuum with minimal participation from the responsible official . . .

Effects analysis displays inconsistencies among resources in descriptions, interpretations, and conclusions

Conflicts emerge among effects analysis, specialists reports, and biological assessments

Effects analysis displays inconsistencies among resources in descriptions, interpretations, and conclusions

Conflicts emerge among effects analysis, specialists reports, and biological assessments

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Parting shot . . .

Work interdependently Take a hard look Talk with your peers Consult your references Rely on your judgment, gut feeling, best guess Streamline your analysis and writing Support your conclusions with rationale

Work interdependently Take a hard look Talk with your peers Consult your references Rely on your judgment, gut feeling, best guess Streamline your analysis and writing Support your conclusions with rationale

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That’s all folks!For assistance-ask your NEPA Coordinator or call:

Jackie AndrewAssistant Director

Resource Planning and Monitoring503-808-2464