This Is the First of Three Documents Providing Background for Citizens Submitting Scoping

NEPA Basics This is the first of three documents providing background for citizens submitting scoping comments on the BLM’s proposal to put up 30,000 acres of public minerals, under private and public lands in the North Fork, for oil and gas leasing, under a management plan from the last century. This information is posted as guidance only and is not meant to represent any type of professional or legal advice. Its purpose is to provide some basic information on the National Environmental Policy Act (NEPA) and how it relates to this current proposal. The second document will give a quick primer on the Resource Management Plan and process and how to approach the three NEPA documents that support it (draft EIS, final EIS/management plan, record of decision) in researching your comments. The third will look at some of the deficiencies in the EIS for the 1989 RMP, as a starting point for others who wish to submit comments. NEPA Basics ‘Scoping’ is an early stage in the public process outlined by the National Environmental Policy Act (NEPA) used by a federal agency to identify issues and the ‘scope’ of what it will cover in preparation of a NEPA document. The overall, and related, goals of NEPA can be understood as two-fold: it requires an agency to ‘look before it leaps’ and consider input, look over impacts, and make adjustments and corrections to what it thought it should do before it does it to ensure the better course of action, all things considered. Second, it's a 'government in the sunshine' law, to invite the public to participate in decision-making and to explain what the agency is thinking. For purposes here, there are basically two levels of NEPA documents: the Environmental Assessment (EA) and the Environmental Impact Statement (EIS). The latter is much more comprehensive and detailed in its analysis. The purpose of either NEPA document is to consider a proposed action and several alternative actions to allow the decision-maker and public an informed and transparent decision. If an agency is unsure which level of NEPA will ultimately be appropriate for a more site-specific project (like this one), it generally starts with an EA. An EA is only sufficient if this document arrives at a FINDING OF NO SIGNIFICANT IMPACTS (a ‘FONSI’). It can do so by concluding no such impacts exist, or by proposing standard and effective mitigations that reduce the impacts below the level of ‘significance.’ (There are numerous court cases and agency guidance on what constitutes significant and what qualify as effective types of mitigation). An EIS could be required if impacts have a foreseeable likelihood of being ‘significant’ or if the underlying NEPA document is found deficient—either because it failed to properly consider what it was required to when written (relevant to the proposed action), or because the situation has changed so much in intervening years as to no longer include relevant analysis and management prescriptions. The ‘Resource Management Plan’ The underlying NEPA document for federal land agencies is the EIS that accompanies the Resource Management Plan. The RMP acts as a type of ‘zoning’ identifying what uses are allowed on which lands. In its EIS for the plan, the agency is required by law to consider a broad set of potential impacts, mitigations, and management tools based on current and reasonably foreseeable resource and public use, adjacent uses, community values and area economies, based on current information and circumstances. When the agency’s underlying NEPA no longer (or never did) properly identifies the resources and uses at stake; nor properly describes the potential and likely impacts; nor considers current technologies and updated development scenarios; it has failed to ‘take a hard look’ at the issue, and an RMP amendment, update, or more site-specific EIS for a proposed action is more likely to be required. The Uncompahgre Field Office RMP was drafted in the mid-1980s (this is when the agency gathers its relevant information and does its analysis). The decision implementing this plan was signed in 1989. The BLM is currently updating its RMP for the field office, which is currently scheduled to be complete sometime in 2013 after these leases are proposed to be sold. Making the most of scoping comments My recommendation is that scoping comments accomplish two things, make the case that BLM should complete its RMP before it even considers what level of site-specific NEPA is required and identify any issues that you think the agency must or should consider in preparing its pending NEPA document.

Pete Kolbenschlag [email protected] 1) Prior to considering leasing any further federal minerals (underlying private or public lands) in the North Fork, BLM should first complete the RMP and only then contemplate what level of site-specific analysis would be appropriate to consider this activity. 2) What questions should the BLM answer in its analysis, and what specific knowledge, information, expertise, etc. can you provide to help it do that? In other words, document the resources, issues, concerns, values, uses, economies, and other relevant matters the agency must or should consider in its analysis and explain how the agency should utilize and consider that information.

If there is a particular management direction you prefer, scoping is the time to suggest that the BLM consider a certain alternative in its analysis. In this case, however, BLM should just defer this bad idea until it gets its underlying NEPA updated, and only then consider such after it has completed its additional, site-specific NEPA at the appropriate level (if site-specific impacts are significant enough, even with a current RMP, an EIS could be required for site-specific analysis as well).

Stopping a bad idea

Scoping is just the beginning. And NEPA opportunities are only one set of strategies to pursue in a successful campaign. In addition to the ‘line officer,’ in this case the manager at the Uncompahgre Field Office, who is authorized to make the final decision, others can also exercise that authority, including both the state and federal agency directors, all the way up to the Secretary of Interior and his boss.

In addition, influential boards and organizations, elected officials, and local governments can all help sway these decision-makers, at all levels. Sometimes, however, these community opinion-leaders need first to be convinced themselves, to weigh in and to carry the right message when they do. Successful campaigns consider what secondary and tertiary strategies need pursued to move the decision-makers (i.e. convince Rep. Tipton to ask BLM for more comment time; compel the Delta County BOCC to submit the right comments to BLM, etc.). Submitting comments on an agency action It’s a good idea that comments be submitted on time in the manner prescribed by the agency, but BLM has an obligation at this stage of the NEPA process—before it issues its document, to consider new information if it is, indeed, significant enough or if circumstances are substantially different. Finally, when submitting my comments, do not be shy about sharing them—your commissioners, congressman, and senators also deserve to know how you feel and what your concerns are. Adding a few extra email addresses to your submission is an easy way to raise the profile of an important issue, and to let the BLM know that you expect accountability. Some members of the media might also be interested in your comment letter, especially if you are submitting it on behalf of an influential, prominent, or important organization or might otherwise be of particular interest.