1 Current Issues in NEPA Lessons Learned in Appeals and Litigation Jackie Andrew R6 Assistant Director RPM
Mar 27, 2015
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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