BLM plans overhaul of Wyo. sage grouse safeguards — leaked doc: “The Bureau of Land Management has developed a draft analysis that calls for removing some key protections from Obama-era greater sage grouse conservation plans in Wyoming, including easing restrictions on oil and gas development and expanding some permitting exemptions. That's according to a draft environmental impact statement (EIS) obtained by E&E News after top Interior officials this month outlined a series of changes in the Cowboy State with state and local government officials. The Wyoming draft EIS has not been finalized and likely won't be released to the public until at least next month, a source said. It covers only the 17 million acres of BLM-managed lands in the state. But it offers key insights into the Interior Department's still-evolving plans to change the Obama-era blueprint, approved in 2015, that amended 98 BLM and Forest Service land-use plans to adopt stronger grouse protection measures. It's not clear whether BLM, which has yet to share many details of the grouse plan amendment process with the public, is conducting concurrent environmental impact statements covering federal lands in the nine other Western states covered by the Obama plans. BLM released a statement today saying the agency "cannot comment on a document that is not complete." But the draft document is potentially significant because Wyoming is home to more than one-third of remaining greater sage grouse — more than any other state — making the welfare of its population critical to the overall effort to restore the bird and the sagebrush steppe ecosystem it shares with hundreds of other species. The changes outlined in the "preferred alternative" in the draft EIS would require amendments to land-use plans stretching across 10 BLM field offices in the state, covering 17 million acres of surface lands and 28 million acres of subsurface mineral rights. Major provisions outlined in the draft EIS include: Integrating "flexibility into the plans to be able to adjust habitat management area boundaries without the need for a plan amendment" in the future, "based on information consistent" with data supplied by the Wyoming Game and Fish Department; deferring to states as the lead on managing sage grouse within their borders. "In making management determinations on BLM-administered lands, the BLM will use, to the fullest extent practicable, state game and fish agencies' greater sage-grouse data and expertise;” Developing a "programmatic analysis" that could lead to broadening the use of permitting exemptions, called categorical exclusions, "in order to enable, as appropriate, Field Offices to use other tools to authorize projects" without first conducting an EIS or an environmental assessment. The overall goal of the proposed amendments is to comply with Interior Secretary Ryan Zinke's Secretarial Order 3353, which "directed BLM to collaborate with states and stakeholders to improve alignment between federal management plans and other plans and programs at the state level, while ensuring consistency with BLM's multiple use mission," according to the draft document.”

[E&E News, 4/17/18] https://goo.gl/WtbDRr

FHWA Audits Utah DOT National Environmental Policy Act Compliance: “The Federal Highway Administration published its first of four audits regarding UDOT’s compliance with environmental review practices in the Federal Register on April 13. Utah participates in the Surface Transportation Project Delivery Program, which allows a state to assume FHWA’s responsibilities outlined in NEPA. The program requires FHWA to audit the state every year for the first four years of the state’s participation. Among UDOT’s responsibilities are the preparation of environmental assessments and environmental impact statements. Although FHWA’s report states that UDOT has successfully added these project review responsibilities, the federal agency found that UDOT could communicate policy matters to staff members more efficiently. “Most [subject matter experts] and regional environmental staff were not aware of the latest policies and procedures regarding the NEPA Assignment Program,” the audit states. “Some regional staff said they expect to hear about changes from their managers in the regional office, but they often feel they do not receive all necessary information.” Another observation listed in the audit was inconsistent file management systems. UDOT primarily relies on ProjectWise, a document management software system, to store all of its documents, according to Brandon Weston, environmental services director at UDOT. The system was not created specifically to handle environmental documents, and Weston explained that the agency had no set policy for how to deal with draft documents…UDOT assumed federal NEPA responsibilities in January 2017. The audit took place June 2017 and involved 18 on-site interviews with UDOT staff over the course of several days. FHWA’s audit team consisted of NEPA experts from Utah, California, the District of Columbia, Georgia and Texas. Besides an on-site visit, the team of auditors reviewed UDOT’s response to FHWA’s pre-audit information request, its NEPA project files and its self-assessment of its NEPA program. While Weston agreed with the observations in the audit, he noted that the audit took place while UDOT was in the nascent stages of assuming its federal responsibilities. “It always takes a long time to get change implemented fully. There was also a concern on UDOT’s side that, because of the newness of the assignment program, we didn’t necessarily have the right people in the room for the audit,” Weston said. “That’s my opinion, but also I agree with FHWA’s observation that it’s important that everyone in our department have an understanding of what the program is and what the responsibilities are.” The Federal Register notice solicits public comments on the audit report, which must be submitted before May 14.”

[Transportation Topics, 4/17/18] https://goo.gl/A9Ejjo

U.S. Supreme Court Declines to Hear Beyond Nuclear v. NRC Appeal on Fermi 3: “The U.S. Supreme Court has refused to hear Beyond Nuclear’s appeal against the proposed new Fermi 3 atomic reactor. Despite this, the environmental coalition has vowed to continue its resistance. The appeal focused on the U.S. Nuclear Regulatory Commission’s (NRC) exclusion of the transmission line corridor from the National Environmental Policy Act’s (NEPA) required “hard look” at all environmental impacts of major federal actions, such as NRC approval of a combined construction and operations license application (COLA) for the Fermi 3 atomic reactor, a General Electric-Hitachi (GEH) so-called “Economic Simplified Boiling Water Reactor” (ESBWR). Fermi 3 is the flagship ESBWR in the U.S., and internationally. The Fermi nuclear power plant is located in southeast Michigan, on the Lake Erie shoreline, south of Detroit, north of Toledo, immediately adjacent to Ohio and Ontario, Canada. "We regret that the Supreme Court didn't take the opportunity to teach an instructive lesson to an important regulatory agency that NEPA, the environmental impact statement law, can't be weakened to address only the environmental damage that the agency wants the public to know about," said Terry Lodge, attorney for Beyond Nuclear and the other grassroots opponents of Fermi 3. "The NRC's decision to allow its staff to reshape the project undermines the public's right to know, and worse, mocks the public's right to participate in very important decisions."…Intervenors prevented DTE from breaking ground in January 2011 by forcing compliance with the National Environmental Policy Act…The ongoing resistance includes an event on Wed., April 18, 2018, as announced by the Alliance to Halt Fermi 3 at its website.”

[Common Dreams, 4/17/18] https://goo.gl/Vf6UDs

Environmental Protectionism Run Amok: “The House Natural Resources Committee is conducting an ongoing examination of the National Environmental Policy Act of 1970 (NEPA). President Richard Nixon signed NEPA, often hailed as the Magna Carta of environmental law, to great fanfare in 1970…As drafted, NEPA contains no provision that allows private parties to challenge agency decisions in court. Instead, the NEPA approval process is a matter for internal agency consultation and deliberation that takes into account comments submitted by any interested parties. One year after its passage, NEPA was turned upside down in a key decision by Judge J. Skelly Wright of the D.C. Circuit Court of Appeals. In Calvert Cliffs’ Coordinating Committee v. U.S. Atomic Energy Commission, Wright read the law as giving private parties the right to challenge government actions. Indeed, Wright welcomed such challenges, writing (admiringly) that the change, “promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment.” Giving private parties the right to challenge an agency decision grants enormous leverage to the private parties most opposed to letting projects go forward. In the case of nuclear power, delay became the order of the day, as the D.C. Circuit on which Judge Wright sat arrogated to itself the power to find that any EA or EIS was insufficient in some way, so that the entire project was held up until a new and exhaustively updated EIS was prepared—which could then be duly challenged yet again in court. The delays became still longer when the proposal was before government agencies whose sympathies were aligned with those of protesting parties…These earlier actions assumed the actual or impending commission of a public nuisance. Under NEPA, it is critical to adapt the earlier practice to deal with construction of new projects. At this point, the key issue is the timing and choice of legal remedies. NEPA wrongly became a roaring tiger because it has been interpreted to allow injunctions against any work taking place on a new project until every conceivable mishap, no matter how remote, is thoroughly analyzed. This premature remedial intervention can put new projects on hold forever. The far more sensible approach would be to let work on a project begin once its major features meet customary safety standards. As the project proceeds, standard inspections by both government and private parties can uncover serious construction risks that can then be corrected in the ordinary course of business. By taking this simple approach, endless amounts of time and money can be saved by ignoring the evaluation of remote contingencies that never come to pass.”

[Ricochet, 4/17/18] https://goo.gl/DbfFSZ

Enviro group calls new $1 billion Walk Bridge plan waste of taxpayers’ money: “A group opposed to a $1 billion plan to rebuild the movable Walk Bridge over the Norwalk River — an aging relic that frequently delays Metro-North trains when it fails — are pressing lawmakers and the state to start over. "We want [the state] to rethink the costly and disruptive plan to build a massive lift bridge," said Fred Krupp, a member of Norwalk Harbor Keeper, during a lobbying effort Monday at the state Capitol. "The oversized Walk Bridge is not necessary," Krupp said. "The state is doubling down on one of the most costly and unnecessary bridge projects in the country." Other members of the group complained about the disruption the project means for nearby businesses, the state’s ongoing seizure of private property and the lack of traffic on the river to justify a movable bridge. Norwalk Harbor Keeper and other opponents in January asked a U.S. District Court to force the state and federal departments of transportation, and the Federal Transit Administration, to reconsider the bridge replacement plan. The conservation group maintains the state and federal governments didn’t properly evaluate fixed-bridge alternatives and violated environmental assessment rules under the National Environmental Policy Act. The Walk Bridge moves to allow river traffic to pass underneath, a federal requirement because the Norwalk River is designated as a federal navigable waterway. But because of its age — it’s more than 120 years old — the bridge often becomes stuck, and that backs up the 200 Metro-North trains and 125,000 passengers that travel over it every day. The latest delay happened just last week. The state Department of Transportation launched a $1 billion project to replace the bridge, and engineering is now well under way. DOT officials have repeatedly said the project is the only feasible option, in part because of federal waterway rules. "On the surface, it may seem as if a new fixed bridge or rehabilitating the existing structure would generate the least cost, shortest duration effort resulting in minimal impacts to rail traffic," DOT said in a statement. "On the contrary, the manner in which this work would need to be implemented will negatively affect both cost and duration of the effort with an increased [burden] to the traveling public," DOT said. Bill Collins, a former Norwalk mayor, said there is no need for a movable bridge. "We will have a bridge that goes up 60 feet with no boats," Collins said. "This will be difficult to explain."

[Connecticut Post, 4/16/18] https://goo.gl/N6VKPV

Federal Efforts Seek to Streamline NEPA Environmental Reviews for Major Infrastructure Projects: “The Trump Administration continues to prioritize guidance-driven revisions to federal regulatory programs to reduce the impact of administrative review and permitting on development. Last week’s highly-anticipated memorandum of understanding (MOU) released by the White House purporting to streamline the National Environmental Policy Act (NEPA) review process for “major infrastructure projects” could be a step toward a more efficient environmental permitting process. However, the impact may be limited. The length and inefficiency of some environmental reviews under the NEPA has long been a point of frustration for industry and environmental practitioners alike. The MOU – signed by 12 federal agencies – builds upon Executive Order 13807 and a separate action list issued by the White House Council on Environmental Quality (CEQ). Both documents focused on reforming the NEPA to promote speedy infrastructure development. In particular, the August executive order established the “One Federal Decision” policy, which provided that major infrastructure projects should have a single lead federal agency, a single record of decision (ROD), and that all authorizations for construction of major infrastructure projects should be completed within 90 days. The executive order defines “major” projects as those “for which multiple authorizations by federal agencies will be required to proceed with construction.” The MOU further clarified these goals by setting a two-year target time frame for completing the environmental permitting process and directed agencies to work together to review and make decisions concurrently. The MOU listed several other general directives to the agencies, such as providing “predictable, transparent, and timely” reviews, establishing “standard operating procedures” for reviews, and eliminating “duplication of effort” among agencies. In order to make the Trump Administration’s plan to speed up permitting enforceable and effective, the MOU must be followed up by agency regulations that incorporate deadlines, specific requirements, and additional resources to ensure that permit applications move faster and still comply with relevant laws.”

[The National Law Review, 4/16/18] https://goo.gl/txQyno

Justin McCarthy

Digital Director, NEPA Campaign

The Partnership Project
1101 Connecticut Ave NW, 10^th Floor

Washington, DC 20036 USA

T: (202) 650-0327
C: (540) 312-3797

E: jmccarthy@partnershipproject.org

The Partnership Project, a registered 501 (c) (3) non-profit, is a collaborative effort of over 20 of the country’s most influential advocacy organizations.