National Environmental Policy Act and Special Uses - US Forest Service

National Environmental Policy Act and Special Uses Frequently Asked Questions

Background

The National Environmental Policy Act (NEPA) requires agency decision makers to make informed decisions by considering the environmental consequences of their decisions along with other considerations such as social, economic, technical, and security interests. Approving special uses on National Forest System (NFS) lands usually includes compliance with NEPA. Criteria for determining whether a decision is subject to NEPA can be found in Forest Service Handbook 1909.15, Zero Code (attached). Once a responsible official makes a decision about approving a use, authorized officers will typically issue a special use authorization (permit, lease, or easement) which outlines the terms and conditions of the use. Criteria for authorizing special uses can be found in 36 CFR 251.50 (the Federal Register Notice is found here: Special Uses FRN).

Special use authorizations can take on many labels such as permit, term permits, leases, or easements. For simplicity in this document, the word "permit" will be used to generically refer to this class of instruments.

These FAQs are intended to help field staff better understand and utilize the authorities and tools we have in our current directives system.

Main Point

Separate "approving a use" from "authorizing a use." There has been inconsistency in how NEPA is applied to special uses which has led to inefficiency. In short, a NEPA decision "approves" an action/activity to take place on the landscape. A special use authorization "authorizes" a specific entity to conduct the stated action/activity in a specific location on the landscape. Special use authorizations are administrative actions (i.e., permits) and do not necessarily require a NEPA analysis. The distinction between approving an action and authorizing a use is important to track because it underpins part of and guides the decision process around special uses. A NEPA decision may approve a new use or expansion of an existing use, but the authorization holder cannot proceed until a special use authorization is issued or amended. The special use authorization, not the NEPA decision, is the mechanism by which individuals or entities are authorized to use and occupy NFS lands.

There are many components of administering special use authorizations that do not require additional NEPA compliance. When considering a particular activity remember to separate out the administrative action of "authorizing a use" from the decision to "approve a use."

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Frequently Asked Questions

The following questions are shared in the context of 36 CFR 251.50, 36 CFR 220, and FSH 1909.15. There may be situations in both the Lands and Recreation context that are not clearly addressed by these FAQs; in these situations consult with the appropriate regional program manager for further clarification. Also involve your local or regional Environmental Coordinator (these people are also sometimes referred to as NEPA Coordinators) when there are questions or concerns.

Q1: Does every special use related proposed action require NEPA analysis? A1: No. Each situation has to be considered individually. Forest Service Handbook 1909.15 Zero Code (attached) provides the four criteria that need to be met in order for NEPA to apply. Be careful of "over-applying" NEPA. There are many situations in which the four criteria DO NOT apply and therefore further analysis under NEPA is not needed to proceed with issuing, reissuing or renewing a special use authorization.

Q2: Does the issuance of a new authorization for an existing use (in lay terms a "permit renewal"), in the same location, i.e., no change in scope, need NEPA analysis? A2: Generally not, however, changed conditions on the ground could require additional NEPA analysis. Authorizing a use is an administrative action. The special use authorization may or may not be supported by an existing decision that approves the use (some use decisions pre-date NEPA, see A3) or may not meet all of the criteria required for NEPA analysis (see A1). If the use was previously authorized, the special use authorization may be reissued or renewed. The authorized officer must determine if the earlier environmental analysis still covers the use to be authorized. Changed conditions that can be meaningfully evaluated, new information, or timing limitations in a NEPA decision document may result in the need for additional NEPA analysis and decision. If additional NEPA analysis is warranted, consider focusing the scope and scale of the NEPA analysis on the changed conditions and related effects rather than updating previous disclosure of effects to resource conditions that have not changed. It is a good practice to document in the project record or case file the adequacy of existing NEPA and/or the determination that there are no changed conditions or new information warranting additional NEPA review. (Refer to Forest Service Handbook 1909.15, Chapter 10, Section 18 for additional information.)

Q3: I am working with a permit that was originally issued in 1952, has subsequently been reauthorized continuously over the last 60+ years and is due for another reauthorization. Nothing is changing with the permit terms and conditions but it has never had a NEPA analysis conducted. Do I need to conduct a NEPA analysis? A3: It depends. Decisions made prior to 1970 were not subject to NEPA and it is important to note that this does not negate the decisions that were made. For example, a decision to allow construction of a resort in 1952 and issuance of a special use authorization does not need to be re-evaluated unless the responsible official is ready to make a new decision regarding use of the resort (use criteria in FSH 1909.15 Zero Code). If there are no changes to the use approved in the original decision and the question is about whether or not to reissue the special use authorization, then use the criteria for issuing special use authorizations (36 CFR 251.50) instead of whether or not NEPA applies.

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Q4: What if there is no previous NEPA analysis or decision for the proposed use I want to authorize?

A4: If no previous decision has been made analyzing the effect of a proposed activity, use the four criteria below to consider whether or not the proposed activity requires further analysis under NEPA. An action is subject to the NEPA requirements (i.e., requires analysis) when ALL of the following apply (36 CFR 220.4(a)):

1. The Forest Service has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated.

2. The proposed action is subject to Forest Service control and responsibility. 3. The proposed action would cause effects on the natural and physical environment and the

relationship of people with that environment (40 CFR 1508.14) that can be meaningfully evaluated.

4. The proposed action is not statutorily exempt from the requirements of section 102(2)(C) of the NEPA.

Full detailed explanation of each of these criteria is taken from FSH 1909.15 Chapter Zero Code and is provided at the end of this document for quick reference.

Q5: Is a proposed action that only has social or economic effects subject to NEPA? A5: No. See 40 CFR 1508.14 for further detail.

Q6: Can a Categorical Exclusion (CE) be used if there is wilderness in the project area? A6: Congressionally designated areas, such as wilderness, are one of the resource conditions that should be considered in determining whether extraordinary circumstances related to a proposed action warrant any further analysis and documentation in an EA or EIS. However, the mere presence of one or more of these resource conditions does not preclude use of a CE. It is the existence of a cause-effect relationship between the proposed action and the potential effects on these resource conditions, and if such a relationship exists, the degree of the potential effect that determines whether an extraordinary circumstance exists and if a CE can be used (36 CFR 220.6(b)).

Q7: Are there Categorical Exclusions that can be used with special use authorizations? A7: Yes. There are CEs that apply specifically to special use authorizations. Consider other categorical exclusions that are appropriate for the action being proposed, regardless of whether the category is written specifically for special uses. For example, if a youth group is going to do some campground or trail maintenance, consider using the category for repair and maintenance of roads, trails, and landline boundaries (36 CFR 220.6(d)(4)) or the category for repair and maintenance of recreation sites and facilities (36 CFR 220.6(d)(5).

By reference, they are:

Categories Established by the Secretary:

? 7 CFR 1b.3(a)(3) - Inventories, research activities, and studies, such as resource inventories and routine data collection when such activities are clearly limited in context and intensity.

? 7 CFR 1b3(a)(4) - Educational and information programs and activities.

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Categories Established by the Chief:

? 36 CFR 220.6(d)(4) - Repair and maintenance of roads, trails, and landline boundaries. ? 36 CFR 220.6(d)(5) -Repair and maintenance of recreation sites and facilities. ? 36 CFR 220.6(d)(8) - Approval, modification, or continuation of minor, short-term (1 year or

less) special uses of National Forest System lands. ? 36 CFR 220.6(d)(9) - Issuance of a new permit for up to the maximum tenure allowable

under the National Forest Ski Area Permit Act of 1986 (17 U.S.C. 497b) for an existing ski area when such issuance is a purely ministerial action to account for administrative changes. ? 36 CFR 220.6(d)(10) - Amendment to or replacement of an existing special use authorization that involves only administrative changes and does not involve changes in the authorized activities or increase in the scope or intensity of authorized activities, or extensions to the term of authorization, when the applicant or holder is in full compliance with the terms and conditions of the special use authorization.

Q8: There are examples for most categorical exclusions; but what if the examples do not specifically cover the proposal I have? A8: The examples that are given are illustrative, but do not define the full extent of application of the CEs. Each Forest Service CE states: "Examples include but are not limited to" prior to the list of examples. Be sure you understand the language used in the CEs and think broadly about the application of the CEs to the specific situation in question. Be sure to consult with your Environmental Coordinator if there are questions. The preamble to the FRN (found at: Special Uses FRN) may help clarify as well.

Q9: Is there any way to avoid having to do a new NEPA analysis every five years for the same permit? A9: Yes. Quite simply, consider whether you really need to set a time limit on the decision informed by a NEPA analysis. Don't make the NEPA decision document temporally limited (tied to a specific time frame) unless there is a specific known reason to do so (i.e., "I think it might change in the future" is not a reason).

For example, if the impacts of a special use activity (e.g., leading pack animals on an existing trail) are expected to be similar every year, then approve the special use through a NEPA decision document that does not have an end date. Let the special use authorization ? not the NEPA decision document ? set the time limit in the terms and conditions. That way, subsequent special use authorizations can tie back to the same NEPA decision document. If there are changed conditions or new information causing you to reconsider a decision, refer to Forest Service Handbook 1909.15, Chapter 10, and Section 18. The NEPA decision should not be for a specific permit/company etc. The NEPA is for the use, the authorization is administrative and is for any company doing the use. As we know, companies change, sell out to another, fold, etc. We want the NEPA to support the authorization, not the individual.

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Q10: What are some new ways people are approaching NEPA compliance more efficiently that I may not know about? A10: Here are some suggestions:

? Determine whether or not NEPA even applies to begin with. ? Determine whether an environmental disclosure has already been made for a particular

use and is still an appropriate decision. ? Before including a timing or geographical limit in your NEPA decision to approve

proposed use, consider whether the limit is necessary for the proposed uses. ? Separate the decision to approve a use or a project from the authorization needed to

implement the use or project over time. ? Use categorical exclusions whenever appropriate to limit the need to prepare

environmental assessments and environmental impact statements. Consider using all appropriate Forest Service categorical exclusions, including some specific to special uses and some specific to purposes such as wildlife habitat improvement and trail maintenance. ? If an environmental assessment (EA) is needed, follow the regulations for EA requirements to prepare a 15-20 page document vs. how EAs have traditionally been prepared. ? Consider using a single NEPA document to analyze and approve similar actions or uses (especially where a CE is not available). For example, it may be efficient to prepare a Forest-wide analysis of outfitter/guide activities in a single EA and then authorize individual outfitter/guide permits based on the over-arching NEPA document as needed.

Q11: I would like to take additional training on NEPA so I can better understand how the process works. What's available? A11: The Forest Service Washington Office offers national-level NEPA training to individuals involved in NEPA analysis and decision-making:

? An Introduction to NEPA course offers a broad overview of NEPA requirements and procedures.

? A Purpose and Need online module offers insight into writing a purpose and need for NEPA projects that helps to limit the scope of alternatives and effects that need to be analyzed in order to write more focused and efficient NEPA documents.

? A NEPA Team Leadership course offers seasoned NEPA practitioners concepts and lessons learned for leading an effective, highly productive ID Team.

More information on these trainings and potential offerings can be found on the NEPA Services Group webpage.

There are also specialized training courses geared specifically for individuals involved in the special use program, of which NEPA analysis requirements are part of the curriculum. In addition, a number of Regional Offices have specialized NEPA trainings that focus on frequent activities or issues experienced in the Region. Those training offerings can be found by contacting a Regional Environmental Coordinator.

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From FSH 1909.15 Chapter Zero Code

01 - PROPOSED ACTIONS SUBJECT TO THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS (42 U.S.C. 4321 ET SEQ.)

Before determining whether or not NEPA applies to a proposal, consider whether or not the action has already been addressed in an environmental analysis and decision. Activities which merely implement a decision previously analyzed under NEPA are not new Federal actions requiring independent analysis. Many enforcement decisions, and decisions to administer contracts or authorizations, fall within this category because compliance with the terms and conditions of the decision, contract or authorization was considered in the NEPA effects analysis.

A Forest Service proposal is subject to the NEPA requirements when all of the following apply:

(1)The Forest Service has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated (see 40 CFR 1508.23); (36 CFR 220.4(a))

An operative term in the CEQ definition of proposal is the term "stage." Most mid-level analyses, for example watershed analyses, are simply a stage where the Forest Service identifies what possible management actions can be taken to move the Agency towards its desired future condition or "goals." However, the results of these analyses generally are a description of the existing condition and a myriad of possible management actions. It is not until the Forest Service determines that it wants to move forward with one or more possible actions that the Agency is at a stage where a NEPA "proposal" exists. If the Agency does not know where or when an activity will occur or if it will occur at all then the effects of that action cannot be meaningfully evaluated. Additionally, if the proposed action does not compel any direct action or inaction then it would be very difficult to meaningfully evaluate the effects of that proposed action, including alternatives and mitigations. If a proposed action results in no tangible or perceptible effects on the environment then the effects of that action could not be meaningfully evaluated and it is unlikely that NEPA would apply.

(2)The proposed action is subject to Forest Service control and responsibility (see 40 CFR 1508.18); (36 CFR 220.4(a))

The NEPA process applies to proposed "Federal" actions. A non-Federal activity may be subject to the NEPA process when it requires a permit, regulatory decision, or funding from a Federal agency. The following considerations may be useful when determining if a proposed action is subject to Forest Service control and responsibility and therefore if NEPA analysis and documentation is required.

There are currently few situations where a non-Federal entity may take action on National Forest System (NFS) lands without Forest Service authorization, or a proposal for Federal action. Thus, a State, local, or private activity may be subject to NEPA if Forest Service action, approval or authorization is required (40 CFR 1508.18(b)(4)). If a permit or other type of Forest Service authorization is required, or if the Forest Service can impose conditions that must be met by the non-Federal entity, then NEPA analysis is required.

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When NEPA is required for state or private activities to occur on NFS lands, it is important to remember that the proposed action is only the action that is subject to Forest Service control and authority. If there are additional activities proposed by the non-Federal entity that are outside of Forest Service control and authority then these other activities will probably need to be analyzed as connected actions.

When another Federal agency is acting on National Forest System lands and the action does not need Forest Service authorization, most likely that agency is required to prepare appropriate environmental analysis and documentation in accordance with NEPA. The Forest Service NEPA responsibility would be for what, if any, actions are controlled by the Forest Service. The Forest Service has some degree of control if the other Federal agency must have Forest Service authorization or approval, or the Forest Service can impose mandatory terms and conditions.

When the Forest Service does have some degree of control over the action then the Forest Service should coordinate with the other Federal agency to determine the best method for the agencies to comply with their NEPA responsibilities.

When the Forest Service is providing non-binding advice or recommendations, it is not controlling the activity. Providing advice or recommendations is likely not subject to NEPA. However, these situations may require the Forest Service to provide analysis and expertise as a cooperating agency when another agency has decision authority. The Forest Service often provides scientific data, evaluations, or opinions to other agencies and individuals. See section 11.31b.

Evaluation of title claims made against NFS land does not constitute a proposal for Federal action under NEPA. For example, when a party asserts that it owns a right-of-way to construct, maintain, or use a road across NFS land, the Forest Service, in conjunction with the Office of the General Counsel, must determine if a valid right of way exists, and what the scope of that right of way is. The Forest Service is not making a decision to convey a property interest, but is simply making an assessment of the property rights that already exist.

When a Federal agency provides funding for non-Federal activities, the action may be "federalized" and subject to NEPA analysis. The courts have applied a sliding scale test to evaluate the level of Federal control over a funded activity, considering both the level of funding and the degree the Federal agency conditions the use of the funds. The key to determining whether or not the Forest Service is responsible for performing NEPA analysis is determining whether the Forest Service exercises control over the implementation of the action to be funded and to what degree implementation of the action is dependent on Forest Service funding.

Where the Forest Service provides funds for programs generally, such as for ecological restoration, but it does not control the specific projects the funds will be used for, it is unlikely that this will be deemed Federal action for purposes of NEPA. Similarly, where the Forest Service provides only a small percentage of the funding for a project, it is unlikely that environmental analysis will be required under NEPA due to limited control and responsibility.

There are some ministerial actions which a Federal agency is required by law to undertake, and the Agency does not have discretion not to act, or to control the action. Occasionally, Congress may direct the Forest Service to take certain actions, such as sale, exchange, or disposal of land, and the Forest Service has no discretion whether or how to take the action. In these cases it is not likely that the Forest Service is obligated to perform analysis and documentation under NEPA. The specific statutory wording is key in these circumstances and therefore it is important

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to consult with an Office of General Counsel attorney to verify whether or not NEPA applies in each specific situation.

(3)The proposed action would cause effects on the natural and physical environment and the relationship of people with that environment (40 CFR 1508.14) that can be meaningfully evaluated (40 CFR 1508.23); and (36 CFR 220.4(a))

Section 102 of NEPA requires Federal agencies to prepare detailed statements on the environmental impacts of proposed major Federal actions significantly affecting the quality of the human environment [42 U.S.C. 4332(2)(C)]. The CEQ regulations at 40 CFR 1508.14 state that the term human environment, as used in the Act, shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. The regulations further clarify that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. Consequently an action that results only in economic or social effects does not trigger the procedural requirements of NEPA.

If there are effects related to the natural and physical environment triggering the procedural requirements of NEPA, then any interrelated economic or social effects must also be analyzed. Refer to the definition of effects contained at 40 CFR 1508.8 for a full explanation of the direct, indirect, cumulative, ecological, aesthetic, historic, cultural, economic, social, or health effects that must be analyzed.

(4) The proposed action is not statutorily exempt from the requirements of section 102(2)(C) of the NEPA (42 USC 4332(2)(C)). (36 CFR 220.4(a))

Congress can create an express statutory exemption from NEPA. The 2003 Interior and Related Agencies Appropriations Act provided that the issuance of special use authorizations for organizational camps is not subject to NEPA if the authorization is issued upon a change in control of the holder of an existing authorization, an authorization is renewed, or the authorization is amended to effectuate administrative changes or to include nondiscretionary environmental standards to conform to current law. Other examples of express statutory exemptions from NEPA have included: specific timber salvage exemptions and certain fire and fuels management projects. An exemption may be local or regional in application, so it is important to check with the regional office or Office of the General Counsel to determine whether a statutory exemption applies to a particular proposed action.

Process and analyses for removal and remediation actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (have been deemed to supersede requirements for environmental analysis under NEPA. This is in part because the CERCLA process has been deemed a functional equivalent of NEPA 102 (2), and in part because compliance with NEPA processes may frustrate the purposes of CERCLA to complete environmental cleanups in time to avoid complications from additional environmental degradation.

In some circumstances, Congress has enacted other legislation that requires Federal agencies to act in a time frame that does not permit compliance with NEPA. Courts have required agencies to show that it is "impossible" and not just "difficult" to comply with NEPA under such circumstances.

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