Adventures in NEPA

Current Perspectives from Land Managers and Trail Partners

Emmy Andrews, Central Oregon Trail Alliance, OTC

Larry O’Keefe, Team Dirt, OTC

Getting to Know Each Other

“There is only one way to avoid criticism: do nothing, say nothing, and be nothing.” - Aristotle

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Emmy and Larry

Are you a:

• Land manager
• Partner
• Other

What’s your understanding of the NEPA process?

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Educational Objectives

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• Develop a deeper understanding of and appreciation for the challenges land managers and their partners face in navigating the NEPA process.
• Learn about opportunities for improvement in that process.
• Discuss actionable steps land managers and partners can take to better support each other and promote a smooth process.

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Data Gathering Process

Celebrating the NEPA process

• Makes government accountable and decision-making transparent
• Helps agencies make well-informed decisions
• Protects natural and cultural resources
• Stops harmful projects and avoids undue impacts
• Public can get involved, comment, protest, and appeal
• Considers multiple alternatives
• Provides checks and balances for various public land uses

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Survey Summary 1

Survey Summary 2

Short answer themes

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Process: Observations

• If the proposed action is not well-defined, the process is very difficult
• Recreation projects aren’t a priority
• Difficult to build trust
• There are too many collaborative partners and their zone of agreement is too small
• Need more communication with nearby landowners and communities
• Pre-NEPA collaboration is where the real work gets done
• Collaborative partners avoid interpersonal conflict and use administrative remedies
• There are misunderstandings about what is and isn’t required for NEPA
• Many hands touch the process and any of them can stall the whole thing
• Partners need to know what agencies consider non-starters
• Newspapers are mandated for public notices but are no longer widely read

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Process: Ideas for Improvement - BOTH

• Make time to work together
• Involve all relevant stakeholders early
• Make time to build relationships and trust and address stakeholders’ concerns
• Align expectations
• Clearly define priorities
• Clearly define the project and alternative ways to achieve its objectives
• Understand collaborative processes
• Get training
• Hire a facilitator

Process: Ideas for Improvement - AGENCIES

• Help partners understand your internal workings
• Terms and processes that are obvious to you are unknown to your partners
• Take the time to explain why
• Explain what are non-starters and why
• This promotes mutual understanding and decreases frustrations

Process: Ideas for Improvement - PARTNERS

• Get NEPA training
• Read the law and the agency’s implementing regulations and CEs
• Read other recent NEPA documents
• Recruit someone with professional NEPA experience to your team
• Work to understand agency roles and responsibilities, jargon, and processes
• Get an org chart
• Ask who the decision-makers are
• Get your project on the agency’s plan of work
• Ask when the plan of work is completed each year
• Ask for your project to be included

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Capacity: Observations

Capacity: Ideas for Improvement

Time: Observations

“I want to protect our resources, but also want to get something done. You can do both.”

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• Too slow
• Partners need to be patient
• Assume it will take longer than you anticipate
• Consultations (e.g., SHPO, USFWS) can take years
• Delays can adversely effect resources more than the proposed action would
• Projects with negligible impacts are delayed for years
• Pre-NEPA seems to take forever

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NEPA Timelines by Agency

John C. Ruple & Kayla M. Race, Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases, 50 Environmental Law 479 (2020)

Time: Ideas for Improvement

• Both
• Implement ideas to improve process and capacity – these will improve the timeline
• Agencies
• Give partners a timeline – they need it to plan for grants, staff and volunteer capacity
• Partners
• Accept that it will take time

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Perception: Observations

• Effects are manifested for the sake of analysis
• Effects of small projects are overstated and overanalyzed
• Projects with minimal effects should be streamlined
• Protection measures are excessive and become roadblocks to good projects
• Lack of perspective on the scale of the impacts
• Agency staff are afraid of litigation
• Appeals are always a possibility, even projects with broad public support
• Small amount of opposition can prevent a worthy project
• Public doesn’t know how to provide substantive comments (it’s not a vote)

NEPA Litigation

John C. Ruple & Kayla M. Race, Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases, 50 Envtl. Law 479 (2020)

Perception: Ideas for Improvement

Partners

Agencies

Match the analysis and protection measures to the magnitude of potential impacts

Some opposition is likely

Engage with potential opponents and educate them

Educate your audience on how to comment effectively

Analysis: Observations

• Need more categorical exclusions
• Guidelines are interpreted differently by different offices
• Beneficial impacts are not sufficiently analyzed
• Impacts of not doing the project are not robustly analyzed
• No library of existing NEPA documents
• Some offices are willing to hire third party contractors; others are not

Analysis: Ideas for Improvement

Both

• 42 U.S.C. § 4336d: “study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency”

Agencies

• Adopt existing Categorical Exclusions for trail building (42 U.S.C. § 4336c)
• Allow third-party contractors and partners to conduct EAs (42 U.S.C. § 4336a(f))

Partners

• Raise funds for use of third party contractors
• Provide information on beneficial effects and adverse effects of no action

Citations from the Fiscal Responsibility Act of 2023 (FRA, Public Law 118-5)

Collective Action Ideas

• Create statewide inventory of proposed trail projects subject to NEPA
• Regularly convene agencies and partners to review progress on proposed trail projects subject to NEPA
• Facilitate NEPA education
• Partners, use OTC’s trail project proposal template to give agencies necessary information:
• Ready, Set, Plan!? An Introductory Guide to Trail Planning and Development by Oregon Trails Coalition, Appendix B, Workbook: https://docs.google.com/document/d/1qfjDWrQgICBjad3om3bjmii xlmImoRIRKemak6i-7I4/edit?usp=sharing

Resources

• A Citizen’s Guide to NEPA and many other NEPA resources: https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html
• Ready, Set, Plan!? An Introductory Guide to Trail Planning and Development by Oregon Trails Coalition: https://www.oregontrailscoalition.org/trail-planning
• U.S. Forest Service NEPA Training: https://www.fs.usda.gov/emc/nepa/fs_nepa_concepts/index.html
• Know NEPA: Important Points for Public Participation (Two Part Series) https://extension.unr.edu/publication.aspx?PubID=3113
• Trail Development Triumphs & Pitfalls, Gabriel Amadeus Tiller, Limberlost
• YouTube – many videos on NEPA!

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Thank you! Questions?

Adventures in NEPA: Current Perspectives from Land Managers and Trail Partners

Emmy Andrews, emmy.andrews@cotamtb.com

Larry O’Keefe, lpokeefe@gmail.com