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Hobbs Straus attorneys successfully obtained the first Interior Board of Contract Appeals ruling entitling a tribal school to 100% of administrative cost grant funding in Alamo Navajo School Board and Miccosukee Corporation v. BIA, IBCA 3463-3466, IBCA 3560-3562 (Dec. 4, 1997).

General Memorandum 14-072

General Memorandum 14-072
Council on Environmental Quality Publishes Draft Guidance on Effective Use of Programmatic NEPA Reviews

On August 25, 2014, the Council on Environmental Quality (CEQ) published a draft guidance document on the effective use of programmatic reviews for compliance with the National Environmental Policy Act (NEPA). While the guidance is written for use by federal agencies, it may also prove useful for tribal governments in preparing NEPA documents for various federal programs. In addition to the FEDERAL REGISTER (79 Fed. Reg. 50578), the draft guidance can also be found on the CEQ website: http://ceq.hss.doe.gov/. The deadline for filing comments is October 9, 2014.

CEQ intends that the guidance will help federal agencies analyze the impacts of large-scope federal actions such as landscape scale proposals, and conduct such reviews so that they are timely, informative, and useful for decision-makers. As explained by CEQ, a programmatic NEPA review may be appropriate for four major categories of proposed actions: (1) adoption of official policy; (2) adoption of a formal plan; (3) adoption of an agency program; and (4) approval of multiple actions that are connected in time or space. The guidance says that improving the use of programmatic reviews "should result in clearer and more transparent decision-making, as well as provide a better defined and more expeditious path toward decisions on proposed actions."

The draft guidance builds on the concept of "tiering" as used in the CEQ regulations implementing NEPA. "Tiering" refers to using broad-scope NEPA documents to cover general matters and using more narrow scope documents for more specific actions, incorporating the earlier broad-scope document by reference, thus allowing the documents for the later actions to be more concise. The typical way this works is for the agency to prepare an environmental impact statement (EIS) for the broad-scope decision and then, for a subsequent action, prepare an environmental assessment (EA) that incorporates by reference the analysis in the EIS. The draft guidance explains that the broad-scope document need not be an EIS, as CEQ interprets its regulations to also allow for the use of programmatic review in an EA. If a programmatic EA supports a finding of no significant impact (FONSI), there is no need to prepare an EIS at the programmatic stage.

The draft guidance also says that, in some cases, review at the programmatic level may be sufficient such that no further NEPA documentation will need to be prepared for a subsequent action. We note that the NEPA implementing procedures of the Bureau of Indian Affairs (BIA) provide for this scenario in the wording of several categorical exclusions. For example, there is a categorical exclusion for Self-Determination Act contracts for BIA programs "in which environmental impacts are adequately addressed in earlier NEPA  
analysis." 516 Departmental Manual § 10.5E(1). Several of the categorical exclusions for the BIA forestry program include similar language.

An appendix to the draft guidance document summarizes the differences between a programmatic level review and a subsequent tiered level review (which may be either project-specific or site-specific). At the subsequent stage, if there is a need to prepare a new NEPA document, the issue that must be resolved for NEPA compliance is not whether there would be any significant impacts but, rather, whether there would be any new significant impacts, i.e., impacts that were not addressed in the broad-scope EIS. If an EIS is required at that stage, having prepared an earlier programmatic EA may allow for the later EIS to be more narrowly focused, such as by incorporating by reference portions of the impacts analyses in the programmatic document or by limiting the range of alternatives.

One of CEQ’s reasons for proposing this draft guidance is the recognition that the programmatic approach for conducting the NEPA review process has not been fully used and, when it has been used, has often not fulfilled the expectations of agencies or stakeholders. In a report published by CEQ in 2003, a task force of federal agency NEPA professionals found that the use of programmatic reviews often resulted in a "shell game" that undermined agency credibility and public trust, obscuring the relationships between the programmatic issues being analyzed and the specific issues being deferred, and sometimes creating the impression that deferred issues will never be addressed. National Environmental Policy Act Task Force Report: Modernizing NEPA Implementation (2003). That Task Force recommended that CEQ issue guidance for agencies on the preparation and use of programmatic NEPA documents. More recently, when CEQ issued a guidance document captioned "Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act" (March 6, 2012), CEQ received feedback calling for additional guidance on programmatic and tiered reviews.

Determining which issues to defer for subsequent NEPA documents is a major challenge in using the programmatic approach. Lack of clarity regarding the deferral has contributed to the criticism, noted above, that the use of programmatic reviews has become a "shell game." This may be particularly problematic for tribes who are concerned about management of federal lands that contain areas of cultural and religious importance, particularly if a decision made at the programmatic level forecloses an opportunity to avoid adverse impacts at later decision points. The draft guidance suggests deferral may be appropriate for consultation required under section 106 of the National Historic Preservation Act or section 7 of the Endangered Species Act, or for "additional tribal consultations." The guidance says that "agencies should logically explain why there is no effect on the programmatic decision, and also include sufficient information to explain where and when deferred issues raised by the public and/or regulatory agencies will be addressed."

Please let us know if we may provide additional information or assistance regarding the CEQ draft guidance on programmatic NEPA reviews.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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