U.S. Department of the Interior

Office of Surface Mining Reclamation and Enforcement

Handbook on

Procedures for Implementing the

National Environmental Policy Act

July 2019
i 

Handbook on 

Procedures for Implementing the

National Environmental Policy Act

Prepared by the 

Office of Surface Mining Reclamation and Enforcement 

July 2019 

___________________ 

Glenda H. Owens, Deputy Director

Exercising the Authority of the Director
ii

ACRONYMS

ADPS Assistant Director of Program Support 

AML Abandoned Mine Lands 

ASLM Assistant Secretary of Land and Minerals Management

BLM Bureau of Land Management 

CE Categorical Exclusion

CEQ Council on Environmental Quality

CFR Code of Federal Regulations

DM Departmental Manual

DOI Department of the Interior

EA Environmental Assessment 

EIS Environmental Impact Statement

E.O. 13807 Executive Order 13807 

FACA Federal Advisory Committee Act

FWS United States Fish and Wildlife Service

MOU Memorandum of Understanding 

NARF NEPA Adequacy Review Form 

NEPA National Environmental Policy Act

NHPA National Historic Preservation Act

NOAA National Oceanic and Atmospheric Administration

NOI Notice of Intent 

OFD One Federal Decision 

OEPC Office of Environmental Policy and Compliance 

OSMRE Office of Surface Mining Reclamation and Enforcement

PAP Permit Application Package

POC Point of Contact 

RA Regulatory Authority

ROD Record of Decision

SES Senior Executive Service

SHPO State Historic Preservation Office

SMCRA Surface Mining Control and Reclamation Act of 1977 
iii

S.O. 3355 Secretarial Order 3355

THPO Tribal Historic Preservation Office

TLO Tribal Liaison Officer
iv

PURPOSE AND ORGANIZATION OF THIS HANDBOOK

This handbook provides an overview of the National Environmental Policy Act (NEPA) and its 

implementing regulations, as well as basic guidance for Office of Surface Mining Reclamation 

and Enforcement (OSMRE) personnel on how to integrate NEPA into OSMRE decision-making 

processes. It is intended to be a user-friendly document that outlines OSMRE’s NEPA-related 

regulatory responsibilities in addition to providing practical application of these regulations. 

This handbook, along with supplemental guidance to address certain NEPA-related processes is 

intended to assist you in carrying out your NEPA responsibilities. Although this handbook is 

intended to be comprehensive, it is not an all-inclusive, step-by-step NEPA “cookbook.” 

This handbook is intended to improve the internal management of NEPA-related processes 

within OSMRE. It is not intended to, and does not, create any right or benefit, substantive or 

procedural, enforceable by law or equity by a party against the United States, its departments, 

agencies, instrumentalities or entities, its officers or employees, or any other person. This 

document creates no rights in third parties. 

Chapter 1: Introduction provides a general overview of the legal framework (including the 

applicability of other environmental legislation) that requires OSMRE to integrate NEPA into the 

decision-making process and Departmental policy and guidance that provides instructions for the 

implementation of NEPA. This chapter also describes the Department of the Interior’s (DOI’s) 

NEPA streamlining initiative and how this effort has improved the Department’s NEPA review 

process.

Chapter 2: The National Environmental Policy Act Process provides a general overview of 

the NEPA process and the pathways of compliance and information on how to determine which 

circumstances may trigger a specific pathway. 

Chapter 3: Determining When NEPA Applies identifies OSMRE programs and specific 

actions that may be subject to NEPA compliance and actions for which NEPA does not apply. 

Chapter 4: Implementing NEPA through Project Management describes the importance of 

effective and efficient project management throughout the NEPA process and ways to develop a 

comprehensive project approach that includes a work plan and efficient schedule.

Chapter 5: Using Existing Environmental Documents provides information on how to 

identify existing environmental documents and determine whether an existing document 

adequately covers a proposed action. This chapter also describes options for using existing 

documents to inform other analyses. 

Chapter 6: Categorical Exclusions provides information about the use of categorical 

exclusions to meet NEPA review requirements for certain types of OSMRE actions and the 

process for applying and documenting categorical exclusions.
v 

Chapter 7: Considerations Prior to Document Preparation describes what you need and can 

do before beginning the formal NEPA process including coordination and consultation that may 

be conducted during the NEPA process before document preparation. 

Chapter 8: NEPA Analysis and Review Process outlines typical analytical steps in the NEPA 

process and identifies issues related to NEPA reviews.

Chapter 9: Environmental Assessments describes the elements of the NEPA process for 

environmental assessments (including information on preparing a Finding of No Significant 

Impact (FONSI).

Chapter 10: Environmental Impact Statements describes the elements of the NEPA process 

for environmental impact statements (EIS) (including information on preparing a Record of 

Decision (ROD)).

Chapter 11: Mitigation, Monitoring, and Adaptive Management provides information about 

the role of mitigation, monitoring, and adaptive management as it relates to the NEPA process.

Chapter 12: Coordinating with Cooperating Agencies, Joint Lead Agencies, and Advisory 

Committees during the NEPA Process describes OSMRE’s roles and responsibilities when 

serving as a cooperating agency or joint lead agency within DOI and with other federal 

agencies. This chapter also provides instructions for working with advisory committees and the 

Federal Advisory Committee Act (FACA).

This handbook contains numerous references to NEPA, the Council on Environmental Quality 

(CEQ) NEPA regulations and Forty Most Asked Questions Concerning CEQ’s National 

Environmental Policy Act Regulations, the DOI NEPA regulations, the Departmental Manual, 

Secretarial Order 3355 and associated memoranda, and the DOI Office of Environmental Policy 

and Compliance (OEPC) Environmental Statement Memorandum (ESM) series. The nature of 

these authorities is discussed in Chapter 1 of this handbook. Although this handbook has been 

written with these authorities in mind, if a conflict is found between the handbook and these 

authorities, the authorities take precedence. 

In this handbook, “we” and “our” refer to OSMRE, while “you” and “your” both refer to anyone 

reading this handbook for reference or using this handbook as guidance to prepare documents as 

part of OSMRE’s NEPA implementation process. 
vi 

TABLE OF CONTENTS

ACRONYMS................................................................................................................................. ii

PURPOSE AND ORGANIZATION OF THIS HANDBOOK................................................ iv

CHAPTER 1: INTRODUCTION ............................................................................................ 1-1

1.1 OSMRE’s Statutory Authority and Mission .............................................................. 1-1

1.2 The National Environmental Policy Act ................................................................... 1-2

1.2.1 Council on Environmental Quality (CEQ) ............................................................ 1-2

1.2.2 Executive Orders Related to NEPA ....................................................................... 1-3

1.2.3 Major Federal Laws Related to the Environment ................................................. 1-3

1.3 Departmental Policy and Guidance ........................................................................... 1-4

1.3.1 Departmental Manual............................................................................................. 1-4

1.3.2 Office of Environmental Policy and Compliance .................................................. 1-5

1.4 OSMRE Policy and Guidance ................................................................................... 1-5

1.5 OSMRE Roles and Responsibilities .......................................................................... 1-5

1.6 NEPA Streamlining Initiatives .................................................................................. 1-7

1.6.1 National Requirements for Streamlining ............................................................... 1-7

1.6.2 Department of the Interior Streamlining Requirements ......................................... 1-7

1.6.3 OSMRE Streamlining Requirements ..................................................................... 1-8

CHAPTER 2: THE NATIONAL ENVIRONMENTAL POLICY ACT PROCESS .......... 2-1

2.1 What is the NEPA Process? ....................................................................................... 2-1

2.2 What is Required for NEPA Compliance? ................................................................ 2-1

2.3 NEPA Implementation Pathways .............................................................................. 2-2

2.3.1 Categorical Exclusions........................................................................................... 2-3

2.3.2 Environmental Assessments .................................................................................. 2-3

2.3.3 Determining Whether an EA or EIS is Appropriate (Significance) ...................... 2-5

2.3.4 Environmental Impact Statements ......................................................................... 2-7

CHAPTER 3: DETERMINING WHEN NEPA APPLIES ................................................... 3-1

3.1 OSMRE Actions Requiring NEPA Compliance ....................................................... 3-1

3.1.1 Promulgation of SMCRA Regulations .................................................................. 3-1

3.1.2 Title IV of SMCRA - Reclaiming Abandoned Mine Lands .................................. 3-1

3.1.3 Federal Oversight of State Programs ..................................................................... 3-3

3.1.4 Title V - Regulatory Programs ............................................................................... 3-3

3.1.5 Federal Grants ........................................................................................................ 3-5

3.1.6 Experimental Practices (Title IV and V) ............................................................... 3-7
vii 

3.1.7 Lands Unsuitable for Mining ................................................................................. 3-7

3.1.8 Training and Technical Assistance ........................................................................ 3-7

3.1.9 Approval of State/Tribal Regulatory Programs ..................................................... 3-7

3.2 OSMRE Actions Exempt from NEPA Compliance .................................................. 3-8

3.2.1 Actions Exempted by Statute ................................................................................. 3-8

3.2.2 Actions Mandated by Statute ................................................................................. 3-9

3.3 Emergency Actions .................................................................................................... 3-9

CHAPTER 4: IMPLEMENTING NEPA THROUGH PROJECT MANAGEMENT ...... 4-1

4.1 Introduction - Comprehensive Project Management ................................................. 4-1

4.2 Managing the Project with an Awareness of NEPA .................................................. 4-1

4.2.1 Interdisciplinary Project Team ............................................................................... 4-1

4.2.2 Project Team Members .......................................................................................... 4-1

4.2.3 Project Understanding and Kick-Off ..................................................................... 4-2

4.3 “One Project - One Schedule” ................................................................................... 4-4

4.3.1 Work Plan and Schedule ........................................................................................ 4-4

4.3.2 Preparing the Work Plan ........................................................................................ 4-4

4.3.3 Developing a Comprehensive Project Schedule .................................................... 4-5

4.3.4 Working with a Project Proponent ......................................................................... 4-6

4.3.5 Managing Contractors ............................................................................................ 4-6

4.4 Integrating Processes for Informed Decision-Making ............................................... 4-7

4.4.1 OSMRE Program Decision Points and Environmental Regulations ..................... 4-7

4.4.2 Importance of Coordination and Timing ............................................................... 4-8

4.5 Department NEPA and Permitting Database ............................................................. 4-8

4.6 Documentation and File Management ....................................................................... 4-8

4.7 Files and Records....................................................................................................... 4-8

4.8 Information Access - Shared Drives and Folders ...................................................... 4-9

4.9 OSMRE Project Coordination and Reviews ........................................................... 4-10

4.9.1 Technical Reviews and Quality Assurance.......................................................... 4-10

4.9.2 Solicitor Review................................................................................................... 4-10

4.9.3 OSMRE Region/HQ Coordination Points and Director Briefings ...................... 4-10

4.9.4 Communications Plans, Press Releases, and Federal Register Notices............... 4-12

CHAPTER 5: USING EXISTING ENVIRONMENTAL DOCUMENTS .......................... 5-1

5.1 Performing a NEPA Adequacy Review .................................................................... 5-1

5.1.1 How to Identify Existing Environmental Documents ............................................ 5-2
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5.1.2 How to Review Existing Environmental Documents for NEPA Adequacy .......... 5-2

5.1.3 Documenting the Review ....................................................................................... 5-4

5.2 Tiering and Programmatic NEPA Documents .......................................................... 5-4

5.3 Adopting another Agency’s NEPA Document .......................................................... 5-6

5.4 Supplementing an EA or EIS..................................................................................... 5-8

5.4.1 When Supplementation Is Appropriate .................................................................. 5-8

5.4.2 When Supplementation Is Not Appropriate ........................................................... 5-8

5.4.3 The Supplementation Process ................................................................................ 5-9

5.5 Incorporation by Reference ....................................................................................... 5-9

CHAPTER 6: CATEGORICAL EXCLUSIONS .................................................................. 6-1

6.1 Does a Departmental or OSMRE Categorical Exclusion Apply to the Action? ....... 6-1

6.2 Identifying Extraordinary Circumstances.................................................................. 6-1

6.3 Documentation and Notification Requirements ........................................................ 6-2

6.4 Periodic Review of Categorical Exclusions and Extraordinary Circumstances ........ 6-3

CHAPTER 7: CONSIDERATIONS BEFORE DOCUMENT PREPARATION ............... 7-1

7.1 Early Coordination and Consultation ........................................................................ 7-1

7.1.1 Consultation with Tribal Governments .................................................................. 7-2

7.2 Early Public Involvement Considerations ................................................................. 7-3

7.2.1 Public Involvement Plan ........................................................................................ 7-4

7.3 Resources that May Be Affected by Your Project .................................................... 7-4

7.4 Best Practices for Data Collection ............................................................................. 7-5

CHAPTER 8: NEPA ANALYSIS AND REVIEW PROCESS ............................................. 8-1

8.1 Outline of the Analytical Steps .................................................................................. 8-1

8.2 Purpose and Need ...................................................................................................... 8-1

8.2.1 The Role of the Purpose and Need Statement ....................................................... 8-2

8.2.2 Identifying the Decision to be Made ...................................................................... 8-3

8.3 Scoping ...................................................................................................................... 8-3

8.4 Issues ......................................................................................................................... 8-3

8.4.1 Identifying Issues for Analysis .............................................................................. 8-4

8.4.2 Issues Not Analyzed .............................................................................................. 8-5

8.5 Proposed Action ........................................................................................................ 8-5

8.5.1 Description of the Proposed Action ....................................................................... 8-6

8.5.2 Defining the Scope of Analysis of the Proposed Action ....................................... 8-7

8.6 Alternatives Development ......................................................................................... 8-9
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8.6.1 Reasonable Alternatives......................................................................................... 8-9

8.6.2 No Action Alternative .......................................................................................... 8-10

8.6.3 Alternatives Considered but Eliminated from Detailed Analysis ........................ 8-12

8.7 Affected Environment and Use of Relevant Data ................................................... 8-12

8.7.1 Affected Environment .......................................................................................... 8-13

8.7.2 Use of Relevant Data ........................................................................................... 8-14

8.8 Environmental Effects ............................................................................................. 8-15

8.8.1 Analyzing General Effects ................................................................................... 8-15

8.8.2 Analyzing Direct and Indirect Effects ................................................................. 8-17

8.8.3 Determining Level of Analysis ............................................................................ 8-19

8.8.4 Cumulative Effects............................................................................................... 8-20

8.8.5 Mitigation and Residual Effects........................................................................... 8-24

8.9 Issue-Based Environmental Analysis ...................................................................... 8-25

CHAPTER 9: ENVIRONMENTAL ASSESSMENT ............................................................ 9-1

9.1 When to Prepare an EA ............................................................................................. 9-1

9.2 Page Limitations and Timeline for an EA ................................................................. 9-1

9.3 Public Involvement Requirements for an EA ............................................................ 9-2

9.3.1 Scoping .................................................................................................................. 9-2

9.3.2 Review and Distribution of the EA ........................................................................ 9-3

9.4. Contents of an EA (40 CFR 1508.9 and 43 CFR 46.310) ......................................... 9-4

9.5 Structural layout of an EA ......................................................................................... 9-6

9.5.1 Suggested Organization and Content of an EA ..................................................... 9-6

9.6 Content of a FONSI ................................................................................................. 9-10

9.7 When to prepare a FONSI ....................................................................................... 9-11

9.8 Public involvement requirements for a FONSI ....................................................... 9-11

9.9 Structural Layout of a FONSI ................................................................................. 9-12

CHAPTER 10: ENVIRONMENTAL IMPACT STATEMENT ........................................ 10-1

10.1 When to Prepare an EIS ........................................................................................... 10-1

10.2 Time Frame for an EIS ............................................................................................ 10-2

10.3 Public Involvement Requirements of an EIS .......................................................... 10-2

10.3.1 Scoping ................................................................................................................ 10-3

10.3.2. Distribution of the Draft EIS and the Departmental Document Clearance Process ... 

 ............................................................................................................................. 10-6

10.4 Content and Structural Layout of an EIS................................................................. 10-8

10.5 When to prepare a Record of Decision (ROD)...................................................... 10-16
x 

10.6 Public Involvement Requirements for a ROD ....................................................... 10-17

10.7 Content of a ROD .................................................................................................. 10-17

10.8 Structural layout of a ROD .................................................................................... 10-18

CHAPTER 11: MITIGATION, MONITORING AND ADAPTIVE MANAGEMENT.. 11-1

11.1 Mitigation ................................................................................................................ 11-1

11.2 Monitoring ............................................................................................................... 11-2

11.2.1 Purposes of and Requirements for Monitoring .................................................... 11-2

11.2.2 Developing a Monitoring Plan or Strategy .......................................................... 11-3

11.2.3 Implementing Monitoring .................................................................................... 11-4

11.3 Adaptive Management ............................................................................................. 11-4

CHAPTER 12: COORDINATING WITH COOPERATING AGENCIES, JOINT LEAD 

AGENCIES, AND ADVISORY COMMITTEES DURING THE NEPA PROCESS ....... 12-1

12.1 Working with Other DOI Bureaus as a Cooperating Agency to Develop NEPA 

Documents ............................................................................................................... 12-1

12.1.1 Determination of Lead Agencies When Working with Other DOI Bureaus ....... 12-1

12.1.2 Dispute Resolution Between OSMRE and Other DOI Bureaus .......................... 12-3

12.2 NEPA Timelines, Schedules, and Document Page Counts for Cooperating Agencies .. 

 ................................................................................................................................. 12-3

12.3 Cooperating Agency Status with Entities External to DOI in the Development of 

NEPA Documents ................................................................................................... 12-3

12.3.1 OSMRE as the Lead............................................................................................. 12-4

12.3.2 Deciding Whether to Be a Cooperating Agency.................................................. 12-5

12.3.3 OSMRE as a Cooperating Agency ...................................................................... 12-5

12.3.4 Procedures for Working as a Cooperating Agency .............................................. 12-5

12.4 Joint Lead Agencies in the Development of NEPA Documents ............................. 12-6

12.5 Working with Advisory Committees and the Federal Advisory Committee Act .... 12-6

12.5.1 Guidance for Meeting with Groups ..................................................................... 12-7

12.5.2 Alternatives to Chartered Groups ........................................................................ 12-7

REFERENCE LIST .................................................................................................................. R-1

LIST OF FIGURES

Figure 2-1 The NEPA Umbrella ............................................................................................... 2-2

Figure 2-2 The NEPA Process. Adopted from A Citizen’s Guide to the NEPA, 2007 ............ 2-4
xi

LIST OF TABLES

Table 5-1. Questions for Reviewing Existing NEPA Documents for a New Proposed Action .... 

................................................................................................................................. 5-3

Table 5-2. When to Use Tiering, Adoption, Supplementation, and/or Incorporation by 

Reference .............................................................................................................. 5-11
1-1 

CHAPTER 1: INTRODUCTION

Since the enactment of the Surface Mining Control and Reclamation Act (SMCRA) (Public Law 

95-87) in 1977, OSMRE has worked to strike a balance between the Act’s twin aims of: 

(1) protecting the environment and people through the regulation of surface coal mining and the 

restoration of abandoned mines in the United States, and (2) assuring the coal supply essential to 

the nation’s energy requirements. SMCRA (along with other legislation such as NEPA) defines 

the legal framework that gives OSMRE the authority to carry out its mission. This chapter 

outlines the framework of these authorities and identifies regulations, guidance, and policies 

associated with NEPA and OSMRE's administration and implementation of its programs.

1.1 OSMRE’s Statutory Authority and Mission 

OSMRE is a bureau within DOI whose primary mission is to carry out the requirements of 

SMCRA in cooperation with states and tribes. SMCRA was enacted for a number of purposes, 

including the “establish[ment of] a nationwide program to protect society and the environment 

from the adverse effects of surface coal mining operations” and to “strike a balance between 

protection of the environment . . . and the Nation’s need for coal as an essential source of 

energy[.]” 30 U.S.C. § 1202.

SMCRA created two major programs (Title IV and Title V) which allow OSMRE to balance 

protection of the environment and the Nation’s need for coal. Title IV establishes a reclamation 

program for abandoned mine lands that were abandoned or inadequately reclaimed before the 

enactment of SMCRA. Title V creates an environmental protection program to establish 

standards and procedures for permitting and inspecting surface and underground coal mining and 

reclamation operations. 

Coal mine operators pay fees on each ton of coal produced to fund OSMRE’s Abandoned Mine 

Land program (Title IV). Generally, these funds are either distributed as grants to states or Indian 

tribes with approved reclamation programs or spent directly by OSMRE for reclamation projects 

in the states and on Indian lands that do not have an approved reclamation program. 

OSMRE’s Regulatory program (Title V) requires surface coal mining operations to obtain a 

permit before mining. In order to receive a permit, the operation must meet minimum 

performance standards for environmental protection and public health and safety. If OSMRE 

approves a regulatory program consistent with SMCRA that was submitted by a state or Indian 

tribe, the state or tribe will become the primary regulatory authority (i.e., primacy). Most coalmining states or tribes have primacy, and in those states, OSMRE performs primarily an 

oversight role. OSMRE also partners with states and Indian tribes to regulate mining on Federal 

lands and to support States’ regulatory programs with grants and technical assistance.

In addition to SMCRA, OSMRE also helps implement a portion of the Mineral Leasing Act of 

1920 (MLA) related to the mining of federal coal and the Act of August 31, 1954 (for the control 

and extinguishment of outcrop and underground coal fires). 
1-2 

OSMRE’s rules pertaining to SMCRA, the MLA, and the Act of August 31, 1954 are in the 

Code of Federal Regulations (CFR) under Title 30 - Mineral Resources, CHAPTER VII - Office 

of Surface Mining Reclamation and Enforcement, Department of the Interior, Parts 700 to 999. 

1.2 The National Environmental Policy Act 

OSMRE must also comply with other federal laws (including NEPA) relevant to federal 

agencies. NEPA is the cornerstone of our Nation’s environmental laws and was enacted to 

ensure that information on the environmental impacts of any federal, or federally funded action 

is available to public officials and citizens before decisions are made and before actions are 

taken.

NEPA is a “procedural” or process-oriented law rather than a “substantive” or substance-oriented 

one. The law states the purposes of NEPA include (42 U.S.C. § 4321):

● declaring a national policy which will encourage productive and enjoyable harmony 

between man and his environment; 

● promoting efforts which will prevent or eliminate damage to the environment and 

biosphere and stimulate the health and welfare of man; 

● enriching the understanding of ecological systems and natural resources important to the 

Nation; and 

● establishing the Council on Environmental Quality. 

NEPA requires federal agencies to fully consider the impacts of proposals that would affect the 

human environment before making a decision to take an action. The NEPA process “help[s] 

public officials make decisions that are based on understanding of environmental consequences, 

and take actions that protect, restore, and enhance the environment” (40 CFR 1500.1). NEPA and 

its implementing regulations do not dictate what decision an agency must make about actions 

affecting the environment. After the NEPA process has been followed, an agency may choose to 

take an action with adverse environmental impacts, even if those impacts are severe. NEPA also 

requires federal agencies to involve the interested and affected public in decision-making 

processes.

1.2.1 Council on Environmental Quality (CEQ)

NEPA established CEQ to ensure federal agencies meet their NEPA obligations. As part of that 

responsibility, CEQ issued regulations to further clarify agencies’ NEPA responsibilities. These 

“Regulations for Implementing the Procedural Provisions of the National Environmental Policy 

Act” are codified in the CFR under Title 40 – Protection of the Environment, Chapter V (40 CFR 

1500 to 1508). These rules set forth the process that federal agencies must follow when 

proposing to take actions that have environmental impacts. CEQ also publishes guidance 

documents that give federal agencies information on various NEPA-related topics and set out 

processes for implementing NEPA. CEQ also reviews and approves federal agency NEPA 

procedures, approves alternative arrangements for compliance with NEPA for emergencies, and 

helps to resolve disputes between federal agencies and with other governmental entities and 

members of the public. Additional information on CEQ is available on CEQ’s webpage. 
1-3 

CEQ’s regulations require each federal agency to adopt procedures to implement NEPA. DOI 

published its final NEPA implementation procedures in 2008 (43 CFR 46). These regulations 

supplement CEQ’s regulations and set out Departmental procedures for compliance with NEPA. 

1.2.2 Executive Orders Related to NEPA

The President has issued multiple Executive Orders (EOs) providing direction to federal agencies 

for administering NEPA and executing other laws as they pertain to environmental reviews. 

Examples of such EOs include: 

● Executive Order 11514 (March 5, 1970) on Protection and Enhancement of 

Environmental Quality; 

● Executive Order 11593 (May 13, 1971) on Protection and Enhancement of the Cultural 

Environment; 

● Executive Order 11988 (May 24, 1977) on Floodplain Management; 

● Executive Order 11990 (May 24, 1977) on Protection of Wetlands; 

● Executive Order 12898 (February 11, 1994) on Federal Actions to Address 

Environmental Justice on Minority Populations and Low Income Populations; 

● Executive Order 13186 (January 10, 2001) on Responsibilities of Federal Agencies to 

Protect Migratory Birds; 

● Executive Order 13807 (August 15, 2017) on Establishing Discipline and Accountability 

in the Environmental Review and Permitting Process for Infrastructure.

A more exhaustive list of EOs relevant to NEPA is available on the CEQ Executive Order 

webpage. 

1.2.3 Major Federal Laws Related to the Environment

An environmental review in compliance with NEPA integrates and incorporates the requirements 

of other major federal laws related to the environment (see Chapter 2, The NEPA Process). 

Examples of statutes that should be integrated and incorporated into the NEPA process include: 

● The American Indian Religious Freedom Act, 42 U.S.C.§ 1996 et seq.; 

● The Archaeological Resources Protection Act of 1979, 16 U.S.C. § 470aa et seq.; 

● The Bald and Golden Eagle Protection Act of 1940, as amended, 16 U.S.C. § 668-668d, 

and implementing regulations; 

● The Clean Air Act, 42 U.S.C. § 7401 et seq., and implementing regulations; 

● The Clean Water Act of 1972, 33 U.S.C. § 1251 et seq., and 40 CFR 434; 

● The Endangered Species Act, 16 U.S.C. § 1531 et seq., and 50 CFR 402; 

● The Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq., and 

implementing regulations;

● The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. § 661-667; 

● The Migratory Bird Treaty Act, as amended, 16 U.S.C. § 701-718h and 50 CFR 20 and

21;
1-4 

● The National Historic Preservation Act of 1966, 16 U.S.C.§ 470 et seq., and 36 CFR 

800; 

● The Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq.; 

● The Reservoir Salvage Act of 1960, as amended by the Preservation and Historical and 

Archaeological Data Act of 1974, 16 U.S.C. § 469 et seq.; 

● The Resource Conservation and Recovery Act of 1976, 42 U.S.C.§ 6901 et seq., and 

implementing regulations; and

● The Stock Raising Homestead Act of 1916, 43 U.S.C. § 291 et seq. 

For a list of other statutes that may require incorporation into a NEPA analysis, please see this 

webpage from Carnegie Mellon University or this list from the Federal Highway Administration. 

Please note that each statute has various procedures and requirements for compliance. Many of 

these statutes require coordination with the respective resource stakeholders. These stakeholders 

may include various federal agencies, Indian tribes, state and local agencies, private 

organizations, and the public. For example, Section 106 of the National Historic Preservation Act 

has specific procedures for consultation that are defined by the Advisory Council of Historic 

Preservation, and includes consultation with state or tribal historic preservation officers. 

Similarly, to comply with the Endangered Species Act, OSMRE may need to consult with the 

U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service. 

1.3 Departmental Policy and Guidance 

The Department’s mission is to conserve and manage the Nation’s natural resources and cultural 

heritage for the benefit and enjoyment of the American people, provide scientific and other 

information about natural resources and natural hazards to address societal challenges and create 

opportunities for the American people, and honor the Nation’s trust responsibilities or special 

commitments to American Indians, Alaska Natives, and affiliated island communities to help 

them prosper. To further this mission, DOI has broad responsibilities for managing Federal lands 

and resources under its jurisdiction and for complying with NEPA. 

In October 2008, DOI codified its procedures for implementing NEPA (43 CFR 46), which were 

previously housed in the Departmental Manual (DM). As necessary, DOI also issues directives, 

policies, and guidance, including Secretarial Orders and Departmental Memoranda. In addition, 

the Department’s Office of Environmental Policy and Compliance issues Environmental 

Statement Memoranda (ESM) to assist bureaus in complying with NEPA. 

1.3.1 Departmental Manual

The DM describes the organization and functions of the Department’s bureaus and offices, 

documents delegation of the Secretary’s authority, and prescribes the policies and general 

procedures for administrative activities and specific program operations. Bureaus and offices 

must comply with the provisions of the DM, except to the extent that the provisions are 

superseded by appropriate authority, e.g., a statute, regulation, Executive Order, Secretary’s 

Order, or court decision (011 DM 1). 
1-5 

The DM provides NEPA-specific guidance for the NEPA process (see, e.g., Series 31: 

Environmental Quality Programs, Part 516). Chapters 1 through 4 of 516 DM provide 

implementation guidance for the NEPA process. Part 516 DM Chapter 13 provides 

supplementary requirements for OSMRE’s implementation of NEPA provisions. Other DM parts 

containing guidance for specific environmental resource topics include: cultural resources (Part 

519), natural resources (Part 520), invasive species (Part 524), and environmental justice (Part 

525). 

1.3.2 Office of Environmental Policy and Compliance 

The Department’s Office of Environmental Policy and Compliance (OEPC) provides guidance to 

bureaus and offices of the Department to ensure compliance with various pollution control and 

environmental protection statutes through its Environmental Memoranda Series, along with other 

guidance documents. OEPC also has responsibility for reviewing and concurring on nondelegated EISs (see Section 2.3.4.3). According to Environmental Statement Memoranda 13-2 

(ESM 13-2), a NEPA environmental impact statement (EIS) that requires the approval of more 

than one Assistant Secretary (such as would be the case for an OSMRE and National Park 

Service EIS) is considered a “Non-delegated EIS.” A Non-delegated EIS requires notification 

and coordination with OEPC. In contrast, if the decision authority on the proposed action is a 

single Assistant Secretary (such as an OSMRE-only document or a joint OSMRE-Bureau of 

Land Management (BLM) document), the EIS for the decision is considered a “Delegated EIS,” 

which the specific leading bureau or office can approve without a required OEPC review. (See 

Chapter 2 for more information on Delegated and Non-delegated EISs.) 

1.4 OSMRE Policy and Guidance

OSMRE’s policy is to interpret and administer its policies, regulations, programs, and applicable 

laws in accordance with NEPA. This includes compliance with the Department’s NEPA 

implementing regulations, 516 DM Chapter 13, CEQ issued regulations (40 CFR1500 to 1508) 

to implement NEPA, and other environmental laws and regulations. In addition, OSMRE follows 

the directives from EOs and Secretarial Orders (SOs) in implementing its activities.

OSMRE issues policy directives in the form of instructions, manuals, notices, guides, policies, 

and procedures. OSMRE Directives include multiple forms of guidance for all types of activities 

and programs to assist employees in effectively performing their jobs. The Directive, Regulatory 

Program Development-1 (REG-1), provides for the issuance of this handbook. 

1.5 OSMRE Roles and Responsibilities

Although every OSMRE employee is responsible for ensuring that federal actions or federallyfunded actions within their program comply with NEPA, some employees have formal NEPA 

responsibilities.

● Director - The Director is ultimately responsible for NEPA compliance within OSMRE 

(516 DM 13.2(A)). 
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● Assistant Director, Program Support (ADPS) - The Assistant Director of Program 

Support is responsible for overall policy guidance for NEPA compliance for OSMRE. 

Information about OSMRE NEPA documents or the NEPA process can be obtained by 

contacting the Assistant Director of the Program Support Division. The ADPS is also 

responsible for: 

o supervising and coordinating NEPA activities in program areas of responsibility; 

o completing an OSMRE Headquarters review and concurrence process for EISs 

within their program areas to ensure compliance with policy guidance; and 

o assuring that environmental concerns are identified early in the planning stages 

and appropriate policy and program guidance is disseminated (516 DM 13.2(B)).

● Regional Directors (RDs) - Regional Directors are responsible for: 

o integrating the NEPA process into all Regional activities and for NEPA 

compliance activities in their Regions; and

o designating a staff position to be responsible to the Regional Director for the 

consistency, adequacy, and quality of all NEPA documents prepared by the 

Region’s staff. The position will also be responsible to the Regional Director for 

providing information, guidance, training, advice, and coordination on NEPA 

matters, and for oversight of the Region’s NEPA process (516 DM 13.2(C)).

Specific NEPA duties have been delegated to other employees. For the current list of 

delegations, please see OSMRE Directive OPM-5, Appendix A, Section C. 

Other OSMRE employees work directly with NEPA reviews and help those employees with 

formal NEPA responsibilities perform their functions. These include: 

● Chief, Division of Regulatory Support - The Chief of the Division of Regulatory Support 

coordinates OSMRE compliance with NEPA and other related environmental laws, 

regulations, and directives for Title V matters.

● Chief, Division of Reclamation Support - The Chief of the Division of Reclamation 

Support is responsible for coordinating OSMRE compliance with NEPA and other 

related environmental laws, regulations, and directives for Title IV matters.

● Headquarters (HQ) NEPA Coordinator(s) - The NEPA Coordinator in Headquarters is 

responsible for keeping OSMRE up-to-date with CEQ’s and the Department’s current 

regulations, policies, and guidance related to NEPA and other environmental review 

requirements. The HQ NEPA Coordinator is the resource for OSMRE staff to consult 

about NEPA requirements, other environmental reviews, project approaches, and to assist 

OSMRE as a whole in complying with NEPA.

● Federal Preservation Officer - The Federal Preservation Officer is responsible for 

maintaining current guidance from the Advisory Council on Historic Places (ACHP) as it 

relates to the consultation process required by the National Historic Preservation Act. 

The Federal Preservation Officer is also the primary resource for OSMRE staff to consult 

with developing approaches and resolving potential effects to historic and cultural 

resources in compliance with the National Historic Preservation Act.

● Tribal Liaison Officer - The Tribal Liaison Officer is officially designated by the 

Director of OSMRE and responsible for carrying out responsibilities as described in 512 

DM 4 - American Indian and Alaska Native Programs. 
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● Science Integrity Officer - The Scientific Integrity Officer is responsible for maintaining 

records of OSMRE’s scientific integrity policy. This policy ensures the integrity of 

scientific and scholarly activities OSMRE conducts and the science and scholarship it 

uses to inform management and public policy decisions. The Scientific Integrity Officer 

conducts inquiries of scientific integrity complaints and serves as OSMRE’s ombudsman 

on matters of scientific integrity within OSMRE. In addition, the Scientific Integrity 

Officer serves on the Department’s Scientific Integrity Council (305 DM 3- Handbook - 

Scientific Integrity Procedures). 

● Field Office Directors (FODs) – FODs are responsible for the preparation of NEPA 

documents for actions originating within their jurisdiction. Also, FODs are responsible 

for implementing the procedures of this handbook for Field Office originated actions and 

for final review and approval of EA/FONSIs and determinations of categorical exclusion 

prepared in their Field Offices.

1.6 NEPA Streamlining Initiatives

Pursuant to NEPA, decision-makers must engage in a comprehensive environmental review of a 

project that consolidates environmental regulatory requirements into one review for a proposed 

action. This consolidated approach provides OSMRE with a tool to make informed decisions and 

the opportunity to combine various environmental review processes for the most efficient 

implementation of the action.

The CEQ regulations outline multiple ways and approaches to encourage efficiency throughout 

the NEPA process. In addition, since the enactment of NEPA in 1969, there have been valuable 

lessons learned from the experience of multiple federal agencies while implementing the NEPA 

process. This experience has led to national guidance documents in addition to individual federal 

agency directives and policies to streamline the NEPA review process. 

1.6.1 National Requirements for Streamlining

Streamlining the NEPA review process has been a nationwide initiative. On August 15, 2017, 

the White House published Executive Order 13807, “Establishing Discipline and Accountability 

in the Environmental Review and Permitting Process for Infrastructure Projects” (E.O. 13807), 

which focused on the coordination of federal environmental review and permitting processes for 

infrastructure projects. E.O. 13807 changes the way federal agencies process environmental 

reviews and authorization decisions for infrastructure projects. 

Planning, leasing, and the development/expansion of oil and gas development, or any other 

project type, that does not result in facility construction (which would be the subject of further 

NEPA review), is not considered an infrastructure project. Mining is not considered “major 

infrastructure” or “infrastructure” as defined in E.O. 13807, Section 3(d) and (e). Therefore, E.O. 

13807 is not applicable to OSMRE. 

1.6.2 Department of the Interior Streamlining Requirements

On August 31, 2017, DOI’s Deputy Secretary issued Secretarial Order (S.O. 3355), Streamlining 
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National Environmental Policy Act Reviews and Implementation of Executive Order 13807, 

“Establishing Discipline and Accountability in the Environmental Review and Permitting 

Process for Infrastructure Projects” in direct response to the national NEPA streamlining 

initiative. The Deputy Secretary issued S.O. 3355 “in recognition of the impediments to efficient 

development of public and private projects that can be created by needlessly complex NEPA 

analysis” and the need to enhance and modernize the Department’s NEPA processes.

Since the release of S.O. 3355, the Deputy Secretary and OEPC have issued a number of 

memoranda to provide additional guidance for implementation of S.O. 3355. These 

supplemental memoranda contain information essential to the implementation of the 

Department’s requirements for streamlining and improving the NEPA process. 

● Additional Direction for Implementing Secretary’s Order 3355, April 2018

● NEPA Document Clearance Process, April 2018

● Compiling Contemporaneous Decision Files, April 2018

● OEPC Environmental Review Memorandum (ERM) 10-9: Entering Information into the 

Department NEPA and Permit Tracking Database, April 2018

● Standardized Intra-Department Procedures Replacing Individual Memoranda of 

Understanding for Bureaus Working as Cooperating Agencies, June 2018

● Reporting Costs Associated with Developing Environmental Impact Statements, July 

2018

● Additional Direction for Implementing Secretary’s Order 3355 Regarding Environmental 

Assessments, August 2018

● OEPC ERM 10-11 Determining the Applicable Environmental Review Framework for 

Infrastructure Projects, August 2018

1.6.3 OSMRE Streamlining Requirements

OSMRE has developed specific requirements to ensure the implementation of NEPA that is 

consistent with the streamlining directives and guidelines outlined by CEQ and the Department 

while maintaining the integrity of the process. 

In accordance with Departmental policies, the following processes and procedures apply to 

OSMRE’s NEPA analyses.

Page and Timing Limitations for EISs and EAs - Consistent with S.O. 3355 and the Deputy 

Secretary’s Memorandum issued on April 27, 2018, “Additional Direction for Implementing 

Secretary’s Order 3355”, OSMRE has limited EISs to 150 pages (up to 300 pages for unusually 

complex projects) and will complete each Final EIS (including the Record of Decision) within 

365 calendar days of publishing the associated Notice of Intent (NOI), unless otherwise 

authorized by the Department via a waiver request (see Appendix 1.1 for the waiver request 

template). All EISs, exceeding 150 pages or the 365-day timeline, will require a waiver request.

On August 6, 2018, the Deputy Secretary issued guidance about Environmental Assessments. As 

instructed, OSMRE will prepare EAs no longer than 75 pages and complete each EA (with a 

conclusion in the form of a signed FONSI or the determination to prepare an EIS) within 180 
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calendar days. 

Best Practices for Data Collection Prior to Notice of Intent (NOI) Issuance - As directed in 

S.O. 3355, OSMRE reviewed its NEPA policies and procedures and identified opportunities to 

accelerate or streamline the EIS and EA process. In coordination with the Office of the Solicitor 

and OEPC, OSMRE also identified best practices for gathering information, coordinating with 

stakeholders, and preliminary drafting before the publication of an NOI. (See Chapter 7 for more 

information on best practices for coordination with stakeholders and data collection.) 

Project Schedules and the Department NEPA and Permit Tracking Database - As required by 

the Deputy Secretary’s Memoranda “Additional Direction for Implementing Secretary’s Order 

3355” and “Additional Direction for Implementing Secretary’s Order 3355 Regarding 

Environmental Assessments,” OSMRE will upload all EIS and EA (for EAs greater than 75 

pages and/or anticipated to exceed the 180 day timeframe) project schedules to the NEPA and 

Permit Tracking Database (Tracking Database) and consistently update this data when necessary. 

OSMRE will designate Points of Contact with rights to access, edit and upload information into 

the Tracking Database. However, all Department employees may view the information in the 

Tracking Database. (See Chapter 4 for additional information on uploading and updating EIS and 

EA data in the Tracking Database.)

NEPA Document Clearance Process - As instructed by the Deputy Secretary’s Memorandum, 

“NEPA Document Clearance Process,” any proposed OSMRE action requiring an EIS (after 

fully and properly considering the use of relevant categorical exclusions or EAs) will be 

reviewed by a designated Departmental Review Team at six specific clearance points. This 

review process replaces the Department’s former surnaming process and streamlines the review 

process. (See Chapter 10 for more information on the NEPA Document Clearance Process.) 

Contemporaneous Decision Files - Consistent with the Deputy Secretary’s Memorandum 

“Compiling Contemporaneous Decision Files” issued on April 27, 2018, OSMRE has issued 

guidance requiring contemporaneous compilation of Decision Files for decision-making 

processes that “will or could result in a ‘final Agency action’ subject to challenge under the 

Administrative Procedure Act”. The Memorandum further requires each Bureau to establish a 

system for standardized Decision File tracking. The Directives set forth in the Memorandum 

identify the specific information that should be contained in the Decision File, including the 

initial guidance on how the Decision File is created, what it should include, and how it should be 

maintained throughout the decision-making stages of the action. For more information on 

OSMRE’s guidance and requirements for constructing and maintaining decision files, see 

OSMRE Directive INF-1, OSMRE Records Management and OSMRE Directive INF-2, 

Administrative Records System. 

Intra-Departmental Procedures for Bureaus Working as Cooperating Agencies - Consistent 

with the Deputy Secretary’s Memorandum “Standardized Intra-Department Procedures 

Replacing Individual Memoranda of Understanding for Bureaus Working together as 

Cooperating Agencies” when OSMRE is acting as a cooperating agency with a DOI Bureau, an 

individual MOU will not be developed. (See Chapter 12 for more information on IntraDepartmental Procedures for Bureaus Working as Cooperating Agencies.) 
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OSMRE Program Streamlining Recommendations - OSMRE actively seeks opportunities to 

streamline NEPA reviews. The following are examples of specific streamlining tools that can be 

used for actions within OSMRE programs: 

● Early Stakeholder Coordination (Chapter 7); 

● Utilizing current and available data (Chapter 7); 

● Training (Chapter 3);

● Co-leading and cooperating with other agencies (Chapter 4); 

● Consolidating other agency requirements so agencies can work together and eliminate 

duplication (Chapter 4);

● Implementing NEPA through Project Management (Chapter 4); and 

● Consolidating multiple similar actions into one NEPA review (Chapter 4). 

List of Appendices

Appendix 1.1 Waiver Request Template
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CHAPTER 2: THE NATIONAL ENVIRONMENTAL POLICY ACT PROCESS

NEPA provides a process intended to help federal agencies make decisions based on 

understanding environmental consequences, and take actions to protect, restore, and enhance the 

environment. Its main objective is to create a better decision-making process for implementing 

federal projects and programs. This chapter describes the NEPA process and the pathways of 

compliance.

2.1 What is the NEPA Process?

NEPA authorizes and directs federal agencies, to the fullest extent possible, to use a systematic 

and interdisciplinary approach that will insure the integrated use of the natural and social 

sciences and the environmental design arts in planning and in decision-making which may have 

an impact on man’s environment. Specifically, federal agencies must provide a detailed 

statement of the environmental impacts of their major actions significantly affecting the quality 

of the human environment, and consider reasonable alternatives to meet the purpose and need of 

the action. The NEPA process facilitates this effort by directing various levels of environmental 

analyses and public involvement. 

2.2 What is Required for NEPA Compliance? 

NEPA requires all federal agencies to disclose the potential environmental impacts of projects 

they authorize and to make determinations as to whether the analyzed actions would 

“significantly” impact the environment. “Significance” is defined by CEQ and a regulatory 

version of the definition is found at 40 CFR 1508.27. OSMRE evaluates its projects to determine 

whether or not a categorical exclusion, an environmental assessment (EA), or an environmental 

impact statement (EIS) is required. Guidance from the Departmental Manual lists OSMRE 

actions normally requiring the preparation of an EIS. 

OSMRE’s environmental documents are prepared in accordance with the laws, regulations, 

policies and guidance described in Chapter 1. These include NEPA, the CEQ’s NEPA 

regulations (40 CFR 1500-1508), DOI’s NEPA regulations, the Departmental Manual, 

Secretarial Orders, and this handbook (OSMRE Directive REG-1).

As discussed in Chapter 1, NEPA requires that OSMRE comply with other periphery 

environmental laws, such as the Endangered Species Act and the National Historic Preservation 

Act, and integrate environmental reviews and consultation requirements into the NEPA process. 

Federal agencies must identify and list other federal and state environmental requirements 

applicable to a proposed action (40 CFR 1506.2). Agencies must cooperate with State and local 

agencies “to the fullest extent possible” to reduce duplication between NEPA and State and local 

requirements, and discuss and inconsistencies of a proposed action with any State or local plan 

and laws (40 CFR 1502.25(a) and (b)). For this reason, NEPA is often referred to as the umbrella 

law (see Figure 2.1). It is the umbrella that facilitates project coordination by integrating 

compliance requirements that may otherwise proceed independently. 

 
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Figure 2-1 The NEPA Umbrella

Besides legal authorities, policy, and guidance, OSMRE should also consider information 

gathered from the public, federal, state, tribal and local agencies, publicly available literature, 

and in-house OSMRE sources when analyzing the effects of an action.

2.3 NEPA Implementation Pathways 

OSMRE must comply with NEPA before approving, authorizing, or carrying out proposed 

OSMRE actions. The first step in complying with NEPA is to identify the proposed action. It is 

important to remember that the federal action creates the requirement for and is the focus of 

NEPA compliance. After the proposed action has been identified, your analysis, which may 

include a preliminary assessment of the scope and magnitude of the effects of the proposed 

action, should assist you in determining the appropriate type of NEPA compliance.

Proposed OSMRE actions can comply with NEPA in the following four ways: 

● Statutory exemption (see Chapter 3); 

● Categorical exclusion (see Chapter 6); 

● Preparation of an environmental assessment (EA), and a finding of no significant impact 

(FONSI) (see Chapter 9); and 
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● Preparation of an environmental impact statement (EIS) and Record of Decision (ROD) 

(see Chapter 10). 

The type of NEPA documentation depends on the nature of the action and its anticipated 

environmental impacts. Figure 2.2 provides an overview of the major decision points within the 

NEPA process. 

2.3.1 Categorical Exclusions 

A categorical exclusion is a category of actions which do not individually or cumulatively have a 

significant effect on the human environment and have been found by the agency to have no such 

effect. Categorical exclusions are developed through a multi-stage process that includes 

publication in the Federal Register, public notice, and a comment period (75 FR 75628). There 

are two lists of categorical exclusions that may be relevant to OSMRE actions—DOI and 

OSMRE categorical exclusions (43 CFR 46.210 and 516 DM 13.5). See Appendix 6.1 and 6.2. 

Some federal actions are statutorily excluded. That is, if OSMRE is required by law (statute) to 

take an action, NEPA may not be triggered. Also, if there is a clear and unavoidable conflict 

between NEPA compliance and another statutory authority, NEPA compliance is not required 

(see Chapter 3 for more information). 

If the proposed action you are reviewing falls within one of these categorical exclusions, you do 

not need to prepare an environmental assessment or an environmental impact statement (40 CFR 

1508.4) unless extraordinary circumstances exist. Extraordinary circumstances include twelve 

categories, each of which must be individually evaluated (43 CFR 46.215). 

Details related to OSMRE’s use of categorical exclusions and extraordinary circumstances can 

be found in Chapter 6. 

2.3.2 Environmental Assessments

If the proposed action is not statutorily or categorically excluded, an EA should be prepared 

unless the action is listed as normally requiring an EIS (516 DM 13.4) or would clearly have 

significant impacts. If no significant impacts are identified through preparation of an EA, a 

FONSI should be prepared. If the EA finds that significant impacts would occur, an EIS is 

required for the proposed action (40 CFR 1508.9). The purpose and preparation of an EA for an 

OSMRE action are discussed in Chapter 9.

Keep in mind that an EA may be used to evaluate any action (no matter how simple) at any time 

to assist in planning and decision-making. This evaluation may not lead to a decision to prepare 

an EIS, but it could provide the decision-maker with information on environmental issues and 

effects that may be incorporated upfront into a proposal. 
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Figure 2-2 The NEPA Process. Adopted from A Citizen’s Guide to the NEPA, 2007
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2.3.3 Determining Whether an EA or EIS is Appropriate (Significance)

If a major Federal action (40 CFR 1508.18) will significantly (40 CFR 1508.27) affect (40 CFR 

1508.3, 1508.8) the quality of the human environment (40 CFR 1508.14), you must prepare an 

EIS (40 CFR 1502.3). If it is unclear whether the action will have a significant effect, you may 

prepare an EA (40 CFR 1508.9(a)). If the analysis in an EA shows the action will not have a 

significant effect, a “Finding of No Significant Impact” (FONSI) will need to be prepared to 

document that there is no need for an EIS (40 CFR 1508.13). In contrast, if the analysis in the 

EA shows the action will have a significant effect that cannot be mitigated, you must prepare an 

EIS.

It is important to understand some fundamental differences between EAs and EISs. An EIS is a 

“detailed written statement” analyzing the environmental impacts of major actions significantly

affecting the environment (40 CFR 1508.11). Its fundamental purpose is to promote detailed 

consideration and disclosure of the environmental impacts of a proposed action. An EA is a 

concise public document that briefly provides sufficient evidence and analysis for determining 

whether to prepare an EIS or a FONSI (40 CFR 1508.9).

Whether an action must be analyzed in an EA or EIS depends upon a determination of the 

significance of the effects. The term “significance” has specific meaning in the NEPA context, 

and you must use only this meaning in NEPA documents. The CEQ regulations refer to both 

significant effects and significant issues (for further information, see 40 CFR 1502.2(b)). The 

meaning of significance should not be interpreted one way for issues and another way for effects. 

The CEQ regulations explain in 40 CFR 1508.27: 

● “Significantly” as used in NEPA requires consideration of both context and intensity: 

o Context. This means that the significance of an action must be analyzed in several 

contexts such as society as a whole (human, national), the affected (40 CFR 

1508.3) region, the affected interests, and the locality. Significance varies with the 

setting of the proposed action. For instance, significance for a site-specific action 

would usually depend upon the effects in the locale rather than in the world as a 

whole. Both short-term and long-term effects are relevant. 

o Intensity. This refers to the severity of impact. Note that to determine the severity 

of impact, you must look at direct, indirect, and cumulative impacts (40 CFR 

1508.25(c)).

The CEQ regulations include the following ten considerations or factors for evaluating intensity. 

Factor 1: Impacts That May Be Both Beneficial And Adverse (40 CFR 1508.27(b)(1)). In 

analyzing the intensity of effects, you must consider that effects may be both beneficial and 

adverse. Even if the effect of an action will be beneficial on balance, significant effects may 

exist. For example, abandoned mine land reclamation may have long-term beneficial effects on 

an endangered fish species. However, the process of construction on site may disturb waterways 

and have short-term adverse effects on the fish that may rise to the level of significant. 
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Factor 2: Public Health And Safety (40 CFR 1508.27(b)(2)). You must consider the degree to 

which the action would affect public health and safety which may require, for example, 

evaluation of hazardous and solid wastes and air and water quality. In the context of evaluating 

significance, consideration of these resource effects should describe their relation to public 

health and safety. Economic or social effects are not intended by themselves to require 

preparation of an environmental impact statement (40 CFR 1508.14). 

Factor 3: Unique Characteristics Of The Geographic Area in Proximity to the Proposed 

Action (40 CFR 1508.27(b)(3)). Unique characteristics, like those listed below, are generally 

limited to those that have been identified through the land use planning process or other 

legislative, regulatory, or planning process; for example: 

● Historic or cultural resources;

● Park lands; 

● Prime and unique farmlands (7 CFR 657.5, Section 510(d) of SMCRA); 

● Wetlands;

● Designated caves (43 CFR 37); 

● Wild and Scenic Rivers, both designated and suitable for designation; 

● Designated Wilderness areas and Wilderness study areas; and 

● Areas of critical environmental concern designated under 43 CFR 1610.7-2. 

Factor 4: Degree To Which Effects on the Quality of the Human Environment Are Likely To 

Be Highly Controversial (40 CFR 1508.27(b)(4)). You must consider the degree to which the 

effects are likely to be highly controversial. Controversy in this context means disagreement 

about the size, nature, or effect of a major Federal action, not the amount of public opposition to 

the proposed action or preference among the alternatives. For some actions (e.g., rulemakings), 

there may be some disagreement about the nature of the effects. In those cases, the decisionmaker must exercise some judgment in evaluating the degree to which the effects are likely to be 

highly controversial. Substantial disputes within the scientific community about the effects of the 

proposed action would indicate that the effects are likely to be highly controversial. 

Factor 5: Degree To Which Effects on the Human Environment Are Highly Uncertain Or 

Involve Unique Or Unknown Risks (40 CFR 1508.27(b)(5)). You must consider the degree to 

which the effects are likely to be highly uncertain or involve unique or unknown risks. As with 

controversy, there may be some uncertainty about the effects of our actions, and the decisionmaker must exercise some judgment in evaluating the degree to which the effects are likely to be 

highly uncertain. Similarly, it may be impossible to remove all risk, but the decision-maker must 

consider whether the risks are unique or unknown. 

Factor 6: Consideration Of Whether The Action May Establish a Precedent For Future 

Actions With Significant Impacts (40 CFR 1508.27(b)(6)). You must consider the degree to 

which the action may establish a precedent for future actions with significant effects or 

represents a decision in principle about a future consideration. You must limit this consideration 

to future actions that are reasonably foreseeable, not merely possible. 
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Factor 7: Consideration Of Whether The Action Is Related To Other Actions With 

Individually Insignificant but Cumulatively Significant Impacts (40 CFR 1508.27(b)(7)). You 

must consider whether the action is related to other individually insignificant actions with 

cumulatively significant effects (40 CFR 1508.27(b)(7)). Other actions are related to the action if 

they are connected (40 CFR 1508.25(a)(1)) or cumulative (40 CFR 1508.25(a)(2)) actions. 

Significance exists if it is reasonable to anticipate a cumulatively significant impact on the 

environment. Significance cannot be avoided by terming an action temporary or by breaking it 

down into small component parts. Regardless of who undertakes the other actions, you must 

analyze the effect of past, present, and reasonably foreseeable future other actions in the 

cumulative effects analysis for the proposed action. This analysis provides the context for 

understanding the effects of the proposed action. You should avoid confusing cumulative actions 

(40 CFR 1508.25(a)(2)) with cumulative impacts (40 CFR 1508.25(c)). In determining the 

significance of the proposed action, you assess only the effects of the OSMRE action together 

with the effects of connected and cumulative actions to the extent that the effects can be 

prevented or modified by OSMRE decision-making. 

Factor 8: The degree to which the action may adversely affect districts, sites, highways, 

structures, or objects listed in or eligible for listing in the National Register of Historic Places 

or may cause loss or destruction of significant scientific, cultural, or historical resource (40 

CFR 1508.27(b)(8)). This factor represents a specific subset of the factor, “unique characteristics 

of the geographic area.” Significance may arise from the loss or destruction of significant 

scientific, cultural, or historical resources. For resources listed in or eligible for listing in the 

National Register of Historic Places, significance depends on the degree to which the action 

would adversely affect these resources. 

Factor 9: Threatened Or Endangered Species And Their Critical Habitat (40 CFR 

1508.27(b)(9)). Significance depends on the degree to which the action would adversely affect 

species listed under the ESA or their designated critical habitat. A determination under the ESA 

that an action would adversely affect a listed species or critical habitat does not necessarily 

equate to a significant effect in the NEPA context. The NEPA analysis and ESA effects 

determinations have different purposes and use different analytical approaches (for example, 

there are differences when analyzing connected actions, reasonably foreseeable actions, and 

cumulative effects). 

Factor 10: Any Effects That Threaten A Violation Of Federal, State, Or Local Law Or 

Requirements Imposed For The Protection Of The Environment (40 CFR 1508.27(b)(10)). 

This factor will often overlap with other factors: for example, violations of the Clean Water Act 

or Clean Air Act could involve effects that would adversely affect public health and safety.

2.3.4 Environmental Impact Statements

If a major Federal action has the potential for causing significant impacts on the quality of the 

human environment, an EIS is required. An EIS analyzes the context and intensity of the impacts 

on the environment that would result from the proposed action and its reasonable alternatives (40 

CFR 1502.2(d)). The purpose and preparation of an EIS are discussed in Chapter 10. 
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2.3.4.1 Types of Environmental Impact Statements

The type of EIS prepared by a federal agency should correspond in focus and level of specificity 

to the particular proposed action (40 CFR 1502.2, 1502.3, and 1502.4). Generally, an EIS is 

prepared for single proposed actions that focus on implementation of a specific project. 

However, federal agencies sometimes prepare a broad, overarching EIS. These overarching EISs 

are called programmatic EISs.

Project-Specific EISs - The majority of EISs prepared by OSMRE are project or proposalspecific. As the name indicates, these EISs focus on individual projects or proposals. This type 

of EIS focuses on the direct, indirect, and cumulative environmental impacts of a proposal and is 

limited to the proposed action’s geographic scope.

Programmatic EISs - Programmatic EISs consider environmental impacts of broad agency 

actions, such as the adoption of a regulation, policy, plan, or program (40 CFR 1502.4(b)). 

OSMRE has prepared programmatic EISs for:

● Promulgation of the regulatory program under Section 501(b) of SMCRA, 30 U.S.C. § 

1251 . (OSMRE, 1979) 

● Establishment of two Title IV programs, the federal reclamation program (Section 

402(g)(3) of SMCRA, 30 U.S.C. § 1232) and the State and Indian reclamation program 

(Section 405(d), (f) and (k) of SMCRA, 30 U.S.C. § 1235) (OSMRE, 1980); and 

● Approval of State and Indian tribe grant applications under Title IV of SMCRA, 30 

U.S.C. § 1231 . (OSMRE, 1983) 

Under certain circumstances, programmatic EISs may be sufficient for subsequent, related, sitespecific NEPA compliance documents for use as tiering resources (see Chapter 5 for more 

information on tiering.) 

2.3.4.2 Delegated EISs 

Departmental guidance, as described in ESM 13-2, defines a delegated EIS as one for which the 

decision authority on the proposed action is delegated to a single DOI Assistant Secretary or a 

subordinate officer. 

For delegated projects involving activities within the regions, such as mining plans, lands 

unsuitable petitions, and experimental practices, the RDs will approve the initiation of the EIS 

process, oversee the analysis and document preparation, approve the printing and publication of 

the Draft and Final EIS and sign the ROD (OSMRE Directive OPM-5). The RD or designee will 

sign all Federal Register notices and is responsible for the Document Clearance Process outlined 

in the Deputy Secretary of the Department of Interior Memorandum “NEPA Document 

Clearance Process” issued on April 27, 2018. (See Chapter 10 for additional information.) Once 

the EIS has been cleared, the RDs will sign the Federal Register notice and provide copies to 

ADPS along with electronic files of the EIS suitable for e-filing with EPA and for posting on 

OSMRE websites. 
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If a rulemaking EIS is a delegated EIS, the ADPS will approve the initiation, oversee the 

preparation, approval, printing, and publication of the Draft and Final EIS and sign the ROD 

(OSMRE Directive, OPM 5).

For delegated EISs the ADPS will coordinate the publication of the Federal Register notice and 

the e-filing of documents with EPA.

2.3.4.3 Non-delegated EISs

A “non-delegated EIS” is one for which any one of the following applies: 

● The decision authority on the proposed action requires the approval of more than one 

Assistant Secretary (or bureaus under more than one Assistant Secretary). 

● The decision authority is reserved or elevated to the Secretary (or Office of the Secretary) 

by expressed interest of the Secretary, Deputy Secretary, the Chief of Staff, the Solicitor, 

or the Assistant Secretary for Policy, Management and Budget, or 

● The decision authority is so designated at the discretion of the Secretary, Deputy 

Secretary, or the Assistant Secretary for Policy, Management and Budget.

The RD or designee will sign all Federal Register notices and is responsible for the Document 

Clearance Process outlined in the Deputy Secretary of the Department of Interior Memorandum 

“NEPA Document Clearance Process” issued on April 27, 2018. (See Chapter 10 for additional 

information.) Once the EIS has been cleared, the RD will sign the Federal Register notice and 

provide copies to ADPS along with electronic files of the EIS suitable for e-filing with EPA and 

for posting on OSMRE websites. 

For all non-delegated EISs the ADPS will coordinate the document clearance process and the 

approval and publication of the Federal Register notice and the e-filing of documents with EPA. 

Signature of the ROD for non-delegated EISs will vary according to the project. ADPS will 

coordinate determining the anticipated responsible official to sign the ROD. 

For additional information on the purpose, content, and utility of the EIS within OSMRE, see 

Chapter 10. 

List of Appendices

NONE
3-1 

CHAPTER 3: DETERMINING WHEN NEPA APPLIES

Section 102 of NEPA requires federal agencies to utilize a systematic, interdisciplinary 

approach, which will insure the integrated use of the natural and social sciences and the 

environmental design arts in planning and in decision-making, which may have an impact on 

man's environment. The purpose of this chapter is to provide background information on how 

NEPA applies to federal actions and programs conducted as part of OSMRE’s statutory and 

regulatory responsibilities. While not an all-inclusive list, this chapter includes typical actions 

within OSMRE programs that are subject to or exempt from NEPA review. The level of 

environmental review is dependent on the magnitude of the action and its potential to affect the 

environment, which is addressed further in Chapter 2. 

3.1 OSMRE Actions Requiring NEPA Compliance

Many OSMRE actions can comply with NEPA utilizing a Categorical Exclusion (CE). If 

analysis beyond a CE is required, see Chapter 2 for significance determination. Keep in mind 

that existing NEPA documents may be sufficient for covering your action (see Chapter 5). If you 

are conducting NEPA analysis beyond a CE and existing NEPA documents are not sufficient to 

cover your action, refer to Chapters 4, 7, 8, 9 (EAs) and 10 (EISs) for detailed information on 

further NEPA analysis. This section describes typical actions within OSMRE programs that 

trigger a NEPA review.

3.1.1 Promulgation of SMCRA Regulations 

SMCRA authorizes OSMRE to promulgate regulations necessary to carry out the purposes and 

provisions of SMCRA. 30 U.S.C. §§ 1211(c)(2) and 1242(a). OSMRE prepared an EIS 

(OSMRE, 1979) when it first developed its SMCRA regulations. Any modifications, deletions, 

or additions to these regulations will require compliance with NEPA.

However, some types of regulatory revisions are categorically excluded from detailed 

environmental review (see Section 3.2). For the proposed regulation or change where a 

categorical exclusion is not applicable, the NEPA process will be used to assess the potential 

impacts of the proposed regulatory changes. 

The level of review for a regulatory action is dependent on the type, complexity, and potential to 

affect the environment (see Chapter 2). Regulatory actions could be minor clarifications in 

existing rules with little to no potential impacts or they could substantially revise the regulatory 

program established by Title V or the Abandoned Mine Land program established by Title IV. 

3.1.2 Title IV of SMCRA - Reclaiming Abandoned Mine Lands

Title IV of SMCRA, as amended, establishes the AML program. A central component of the 

AML program is the Abandoned Mine Land Reclamation Fund (AML Fund), which is funded by 

reclamation fees paid by current coal mining operations (30 CFR 870). OSMRE awards grants 

from the AML Fund and general Treasury receipts to states and tribes to carry out their approved 

reclamation plans. OSMRE also operates a Federal Reclamation Program, awards grants to 
3-2 

community groups through the watershed cooperative agreement program, and transfers funds to 

three health care plans within the United Mine Workers of America Health and Retirement Fund. 

During its early years, OSMRE completed two programmatic EISs analyzing the environmental 

impacts of the AML program: OSM-EIS-2, Implementation of Program Policies for Federal, 

State, and Indian Abandoned Mine Land Reclamation Under Title IV of the Surface Mining 

Control and Reclamation Act of 1977 (OSMRE, 1980), and OSM-EIS-11, Approval of State and 

Indian Reclamation Program Grants Under Title IV of the Surface Mining Control and 

Reclamation Act of 1977 (OSMRE, 1983). These programmatic EISs describe generic categories 

of AML projects, the impacts typically associated with AML sites, and typical reclamation 

techniques. 

Specifically, OSM-EIS-2 laid out the groundwork for establishing standardized procedures for 

completing future NEPA documents. OSM-EIS-11 set the foundation for approval of grants for 

funding from the AML Fund. Although these documents are dated, and we do not recommend 

incorporation by reference or tiering directly from these documents, we do recommend that 

states, tribes, and OSMRE Field Offices maintain a copy of these EISs as they provide useful 

information that could be used to assist with newer NEPA documents for AML projects. 

3.1.2.1 State and Tribe AML Projects 

Non-Emergency Projects - Non-emergency AML projects are those that do not meet the 

definition of an emergency project found in 30 CFR 700.5 (see Section 3.3 for more information 

on emergency AML projects). If a CE is applicable, non-emergency AML projects may use a CE 

to comply with NEPA (see Chapter 6). 

Maintenance of Previously Reclaimed Property - Some reclamation projects, particularly those 

involving long-term water treatment, require periodic, planned maintenance. This maintenance 

should be analyzed in the NEPA document before the project is authorized. The state or tribal 

agency will also need to ensure that any future maintenance projects comply with the NHPA, 

ESA, and other applicable laws and regulations. 

Sometimes reclamation projects encounter circumstances that require maintenance that was 

unknown or unplanned at the time of the project approval. When this occurs, you will need to 

determine if the maintenance action was sufficiently analyzed under the original NEPA 

document. If it was, there is no need to do additional NEPA. If the maintenance was not directly 

analyzed, you will determine if the maintenance will result in any new significant impacts not 

considered in the prior NEPA document. If so, additional NEPA analysis may be required. 
3-3 

EXAMPLE

First Scenario - An AML project will be conducted to replant trees on a previously reclaimed 

AML site. Replanting of trees that were already planted on the site may not have been spelled out 

directly in the original NEPA document. The area where the trees need to be replanted may be 

easily accessible and not incur any new impacts. This would likely be covered under the original 

NEPA document and not require a new authorization to proceed (ATP). However, this area may 

now support endangered species (that were not considered in the original NEPA document) and 

thus require Endangered Species Act (ESA) consultation with the U.S. Fish and Wildlife Service. 

This may not change the original NEPA document but could require consultation under the ESA. 

Another Scenario - Involves the same site, but the area where trees need replanting will require 

a small access road to access the area. These impacts were not analyzed under the original 

NEPA document and may require a new NEPA analysis and determination. 

OSMRE AML Reclamation Projects - In instances where a state or tribe does not have an 

approved reclamation program, OSMRE may implement the Federal Reclamation Program in 

order to reclaim high priority AML projects (30 CFR 886). Federal reclamation high priority 

projects generally conform to the same requirements as described above for state and tribal nonemergency projects. Federal reclamation high priority projects may comply with NEPA using a 

CE (DOI Departmental Manual, 516 DM 13.5(B)(33)). Also, see Chapter 6.

State and Tribal AML Reclamation Plans - Section 405 of SMCRA authorizes a state or tribe 

with an approved regulatory program (and the States of Tennessee and Missouri) to assume 

exclusive responsibility for reclamation activity within the state or on Indian lands if they 

develop and submit to the Secretary of the Interior for approval, a program (often referred to as a 

reclamation plan) for the reclamation of abandoned coal mines. Any alteration of an approved 

state or tribal reclamation plan must be reviewed and approved by OSMRE. As stated in 30 CFR 

884.15, state reclamation plan amendments can also be required when changes to SMCRA or the 

federal rules result in an approved state or tribal plan no longer meeting the requirements of 

SMCRA or the federal rules. Amendments to state or tribal reclamation plans comply with 

NEPA under a CE, which is documented in the DOI Departmental Manual, 516 DM 13.5(B)(29).

3.1.3 Federal Oversight of State Programs

OSMRE’s oversight activities are conducted in a manner that recognizes that states and tribes are 

authorized by SMCRA to exercise exclusive jurisdiction over the regulation of surface coal 

mining and reclamation operations within their borders except as provided in sections 521 

(dealing with OSMRE enforcement), and 523 (dealing with Federal Lands), and Title IV. 

30 U.S.C. § 1253(a). Federal oversight of state programs includes inspection and enforcement 

activities, ten-day notices, cessation orders, etc., and those oversight activities generally comply 

with NEPA under one or more CEs. See Chapter 6. 

3.1.4 Title V - Regulatory Programs

This section outlines three federal programs administered by OSMRE. The first is OSMRE’s 

administration of Title V programs in states without primacy. The second is for the 
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administration of a Federal lands program, and the third is the administration of an Indian lands 

program. NEPA compliance is required for all of these programs. 

Federal Regulatory Programs - As required by section 504 of SMCRA (30 U.S.C. § 1254), 

OSMRE directly regulates surface coal mining and reclamation operations in a state if the state 

does not submit and receive approval of its own program pursuant to section 503 of SMCRA. As 

of the date of this document, OSMRE operates Federal regulatory programs in 12 states 

(Arizona, California, Georgia, Idaho, Massachusetts, Michigan, North Carolina, Oregon, Rhode 

Island, South Dakota, Tennessee, and Washington), although only Tennessee and Washington 

have active mines.

Federal Lands Program - SMCRA requires OSMRE to promulgate and implement a Federal 

lands program, which is applicable to all surface coal mining operations taking place pursuant to 

any Federal law on any Federal lands. 30 U.S.C. § 1273(a). “Federal lands” are defined as “any 

land, including mineral interests, owned by the United States without regard to how the United 

States acquired ownership of the land and without regard to the agency having responsibility for 

management thereof, except Indian lands ....” 30 U.S.C. § 1291(4). 

If a state has primacy, OSMRE and the state may enter into a cooperative agreement to provide 

for state regulation of surface coal mining and reclamation operations on Federal lands within 

that state. 30 U.S.C. § 1273(c). Each State-Federal Cooperative agreement is unique and sets 

responsibilities for each state and OSMRE. More information on State-Federal cooperative 

agreements can be found at 30 CFR 745—State-Federal Cooperative Agreements and each 

State-Federal Cooperative Agreement is published in 30 CFR 901-950. 

Section 7(c) of the Mineral Leasing Act and the implementing federal regulations at 30 CFR 

740-746 require the Assistant Secretary for Land and Minerals Management (ASLM) to approve, 

disapprove, or approve with conditions an operation and reclamation plan, also known as a 

“mining plan,” for leased federal coal. OSMRE is responsible for making a recommendation to 

the Assistant Secretary about whether a mining plan or mining plan modification should be 

approved, disapproved, or approved with conditions. OSMRE’s recommendation is contained in 

a Mining Plan Decision Document (MPDD), which is submitted to the ASLM for the final 

decision.

The NEPA documentation prepared by OSMRE for a mining plan decision is dependent on the 

conditions and potential impacts outlined in Chapter 2 and can be an EA when anticipating a 

Finding of No Significant Impact or an EIS if there is the potential for significant impacts.

Indian Lands Program - For the purposes of this handbook, “Indian lands” refers to all lands, 

including mineral interests, within the exterior boundaries of any Federal Indian reservation, 

notwithstanding the issuance of any patent, and including rights-of-way, and all lands including 

mineral interests held in trust for or supervised by an Indian tribe (30 U.S.C. § 1291(9)). 

Although Indian tribes may apply for primacy (30 U.S.C. § 1300(j)), as of the date of this 

handbook no tribe has primacy. Consequently, OSMRE maintains Title V Regulatory SMCRA 

authority on Indian lands under 30 CFR 750. The December 2001 Memorandum of 

Understanding between OSMRE, BIA, and BLM with respect to Management of Coal Mining 
3-5 

on Indian Lands provides additional guidance on the regulation of surface coal mining operations 

on Indian lands. 

OSMRE’s SMCRA responsibilities on Indian lands generally include: 

● Permitting - Permitting actions on Indian lands require NEPA analysis. The type of 

NEPA analysis can vary by the specific permitting action. Start by reviewing the 

information in Chapter 6 of this document to see if your action can be completed as a 

categorically excluded action. 

● Inspection and Enforcement - Inspection and Enforcement actions on Indian Lands can 

generally comply with NEPA as a categorically excluded action. See Chapter 6.

● Civil Penalties Projects - A reclamation project completed with civil penalty funds is 

defined as a civil penalties project. Civil penalties projects are not covered by a CE (see

Chapter 6), therefore refer to Chapter 2 for determination of potential significance. Keep 

in mind that existing NEPA documents may be sufficient for covering your action, see

Chapter 5. 

3.1.5 Federal Grants 

OSMRE uses the Federal Assistance Manual (FAM) to show how OSMRE and its grantees 

manage federal grants, including regulatory program and abandoned mine land (AML) grants. 

The FAM provides policies and procedures to manage grants and cooperative agreements 

awarded by OSMRE.

As the awarding office for grant funds, OSMRE is responsible for the environmental document 

for each funded project. The state or tribal agency may prepare the document, but the awarding 

office must ensure that it adequately complies with NEPA. To prepare the document, the state or 

tribal agency should follow the procedures in this handbook. See Chapter 6 to determine whether 

the action is categorically excluded. (See Appendix 6.6 for the AML Categorical Exclusion 

Determination form.) If not categorically excluded, see Chapter 9 for information related to the 

development of an EA and FONSI or Chapter 10 for an EIS and ROD. Following the completion 

of the document, the state or tribal agency must send the document to the appropriate OSMRE 

awarding office for review. See Appendix 3.1 for information on OSMRE’s review process for 

the document. 

Regulatory Grants - Title V of SMCRA authorizes states and tribes to develop and assume 

regulatory primacy, act as a regulatory authority, and operate its coal regulatory program. 

OSMRE (30 CFR 735) provides regulatory financial assistance under several programs 

including: (1) interim grants to fund the initial regulatory program; (2) program development 

grants to assist states and tribes to develop a permanent program; (3) administration and 

enforcement grants to states and tribes to operate an approved permanent regulatory program; (4) 

federal lands cooperative agreements to states that elect to administer their approved regulatory 

program on federal lands; and (5) Small Operator Assistance Program operational grants to states 

to assist small coal mine operators to meet their permit requirements.
3-6 

Regulatory grants are generally categorically excluded from the NEPA process. Please refer to 

516 DM Chapter 13.5B (specifically categorical exclusions 8, 23, and 25, as well as categorical 

exclusions 2, 4, and 24). 

AML Grants to States/Tribes - Title IV of SMCRA established the AML Fund, supported by 

reclamation fees paid by current coal mining operations. It authorizes OSMRE to use funds from 

the AML Fund and Treasury to provide financial assistance to states and tribes to carry out their 

approved reclamation plans. 

AML funds are authorized for reclamation of abandoned coal mines following the priorities of 

section 403(a) of SMCRA (30 U.S.C. § 1233) for water supply restoration projects, non-coal 

reclamation requested under section 409(c) of SMCRA (30 U.S.C. § 1239), deposits into acid 

mine drainage set-aside accounts, land acquisition under section 407 of SMCRA (30 U.S.C. § 

1237), maintenance of the AML inventory, and general AML program administration. 

AML grants are generally categorically excluded. Please refer to 516 DM Chapter 13.5B 

(specifically categorical exclusions 23, 25, 31, and 32 as well as categorical exclusions 2, 4, 6, 

and 24). The following are examples of the types of AML grants funded by or through OSMRE: 

● Watershed Cooperative Agreements - The Watershed Cooperative Agreement Program 

(WCAP) partners with other funding sources to assist groups, such as small watershed 

organizations, to complete local acid mine drainage reclamation projects. Because the 

WCAP grant money comes from the AML Fund, projects must meet AML eligibility 

criteria and ensure NEPA compliance. As with other AML grants, WCAP grants are 

generally categorically excluded. However, this determination should be considered on a 

project-by-project basis. 

● Applied Science Cooperative Agreements - OSMRE provides funding through applied 

science cooperative agreements for projects that develop and demonstrate improved 

technologies to address environmental issues related to surface coal mining and land 

reclamation after mining. Applied science cooperative agreements are generally 

categorically excluded. However, this determination should be considered on a projectby-project basis. 

● AML Reclamation Economic Development Pilot Program - Starting in 2015, as part of 

its annual appropriation to OSMRE, Congress authorized the AML Reclamation 

Economic Development Pilot Program (AML Pilot) (Pub. L. Nos. 114-113, 115-31, and 

115-141). OSMRE grants AML Pilot funds to states “for the reclamation of abandoned 

mine lands in conjunction with economic and community development and reuse goals”. 

Each year’s appropriation act identifies states and tribes eligible to receive AML Pilot 

funds. Due to this federal funding, each AML Pilot project is considered a federal action 

and requires NEPA compliance. The AML Pilot projects vary in size and complexity. 

Because pilot projects vary in size and complexity, they may not be covered by 

OSMRE’s established categorical exclusions. Because an analysis beyond a CE is 

required, see Chapter 2 for significance determination. Refer to Chapters 4, 7, 8, 9 (EAs) 

and 10 (EISs) for detailed information on further NEPA analysis. 
3-7 

3.1.6 Experimental Practices (Title IV and V) 

OSMRE regulations at 30 CFR 785.13 allow for variances from the environmental protection 

performance standards established in 30 CFR Subchapter K and the regulatory program, for 

experimental or research purposes, or for alternative postmining land use. To receive a variance, 

proposed practices must encourage advances in mining or reclamation or allow an industrial, 

commercial, recreational, residential or public postmining land use. Operators applying to use an 

experimental practice must ensure that the practice is at least as environmentally protective as the 

federal performance standards and must monitor and analyze the effectiveness of the practice in 

achieving its potential benefits.

Because experimental practices are unique (by definition), they typically will not be covered by 

OSMRE’s established categorical exclusions. If analysis beyond a CE is required, see Chapter 2 

for significance determination. An experimental practice usually requires an EA, though in 

certain situations an EIS could be required. Refer to Chapters 4, 7, 8, 9 (EAs) and 10 (EISs) for 

detailed information on further NEPA analysis. 

3.1.7 Lands Unsuitable for Mining 

Citizens may submit petitions to OSMRE asking that certain lands be designated as unsuitable 

for mining. 30 U.S.C. § 1272; 30 CFR 732. When this occurs, OSMRE reviews the petition in 

accordance with statutory and regulatory criteria. There is not a CE applicable to this action. 

Because an analysis beyond a CE is required, see Chapter 2 for significance determination. 

Refer to Chapters 4, 7, 8, 9 (EAs) and 10 (EISs) for detailed information on further NEPA 

analysis. 

3.1.8 Training and Technical Assistance

OSMRE maintains a national training program (National Technical Training Program/Technical 

Innovation and Professional Services). The national training program is designed to assist state 

programs in the development, administration, and enforcement of their state programs. As 

mining and engineering information technology continues to improve and regulatory 

requirements (including NEPA-related policies) change, OSMRE continues to provide the most 

up-to-date information, technical training, technical assistance, and technology transfer to states 

and tribes. Additionally, regional and field offices may provide additional technical assistance, 

including specific tools or software that may assist in the administration and enforcement of state 

and tribal programs. 

Training and technical assistance generally comply with NEPA under a CE (DOI Departmental 

Manual, 516 DM 13.5(B)(24) assistance to states in the development, administration, and 

enforcement of State programs). See Section 6.1. 

3.1.9 Approval of State/Tribal Regulatory Programs 

SMCRA establishes a program of cooperative federalism that allows a state or tribe to enact and 

administer its own regulatory program within limits established by federal minimum standards 
3-8 

and with oversight authority exercised by OSMRE. A state may assume primary jurisdiction 

(“primacy”) over the regulation of surface coal mining and reclamation operations within its 

borders. 30 U.S.C. §§ 1253 (states) and 1300(j) (tribes). 

In order to assume primacy, a state or tribe must demonstrate that its “rules and regulations [are] 

consistent with regulations issued by the Secretary pursuant to this Act.” 30 U.S.C. § 1253(a)(7). 

Once a state or tribe demonstrates its capability to carry out applicable provisions of SMCRA, 

OSMRE will approve its regulatory program. State regulatory activities that are not federally 

funded are not considered federal actions and consequently do not require compliance with 

NEPA. However, OSMRE must comply with NEPA for all federally funded projects. Please 

consult the Office of the Solicitor if there are questions concerning the application of NEPA for 

activities associated with state or tribal regulatory authorities or funding sources.

3.2 OSMRE Actions Exempt from NEPA Compliance

NEPA has broad-reaching applicability, and situations where actions are exempt from NEPA are 

rare. If you believe a particular action or proposal may be exempt from NEPA review, you 

should consult with the Office of the Solicitor. It is worth noting that in some unique 

circumstances where an action is exempt from NEPA or if alternative arrangement procedures 

are used, you may still need to analyze that action as part of a cumulative effects analysis for a 

future action (see Chapter 8). 

3.2.1 Actions Exempted by Statute

Congress has exempted some agency actions from NEPA compliance by passing statutes that 

specifically list exempt actions.

SMCRA expressly exempts two activities from NEPA:

● adoption of interim program regulations (30 U.S.C. § 1251(a)); and 

● approval of state programs, including state program amendments (30 U.S.C. § 1292(d)).

Any alteration of an approved state or tribal program must be reviewed and approved by 

OSMRE. As stated in 30 CFR 732.17, state program amendments may be required when, as a 

result of changes to SMCRA or the federal rules, the approved state program no longer meets the 

requirements of SMCRA or the federal rules. State program amendments are statutorily 

exempted from NEPA compliance by 30 U.S.C. § 1292(d). 

These types of exemptions are uncommon, and the exemptions are interpreted narrowly. Before 

relying on a statutory exemption, you should carefully review the relevant statutory language to 

determine the extent and scope of the action being exempted and consult with the Office of the 

Solicitor. Actions that are outside the scope of a statutory exemption will require appropriate 

NEPA analysis.
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3.2.2 Actions Mandated by Statute 

If OSMRE is required by law (statute) to take an action, NEPA may not be triggered. Also, if 

there is a clear and unavoidable conflict between NEPA compliance and another statutory 

authority, NEPA compliance is not required. 

Such exemptions are rare for OSMRE actions. Therefore, before concluding that NEPA is not 

required due to a statutory mandate, you should carefully review the relevant statutory language 

and consult with the Office of the Solicitor. 

3.3 Emergency Actions

As defined in 30 CFR 700.5, an emergency is a sudden danger or impairment that presents a high 

probability of substantial physical harm to the health, safety, or general welfare of people before 

the danger can be abated under normal program operation procedures. Actions taken in response 

to an emergency are not exempt from NEPA review. However, the CEQ and DOI NEPA 

regulations provide procedures for taking emergency response actions, when necessary, without 

first completing a NEPA review.

In accordance with DOI NEPA regulations, the Responsible Official determines whether an 

emergency exists. If an emergency exists that will result in immediate impacts, immediate 

actions may be taken to mitigate harm to human life, property, or important natural, cultural, or 

historic resources (43 CFR 46.150). When taking such action, the probable environmental 

consequences of the action must be taken into account and mitigated to the extent practical 

(43 CFR 46.150(a)). For further information, see ESM 13-3, NEPA Compliance in Emergency 

Situations.

The Responsible Official is required to document in writing that an emergency exists and 

describe the actions taken in response to the emergency (43 CFR 46.150(b)). This 

documentation should include: 

● the nature and scope of the emergency; 

● the actions necessary to control the immediate effects of the emergency; 

● the potential adverse effects of the proposed action; 

● the components of the NEPA process that can be followed and that provide value to 

decision-making (e.g., coordination with affected agencies and the public); 

● the duration of the emergency; and 

● the potential mitigation measures.

If it is determined that the proposed emergency response actions are not likely to have significant 

environmental impacts, the Responsible Official should document that determination in an EA 

and a FONSI, unless the action is categorically excluded (43 CFR 46.150(c)). If an EA cannot be 

concluded with a FONSI, the Responsible Official, in consultation with ADPS, will consult with 

the Office of Environmental Policy and Compliance about a documented alternative arrangement 

for NEPA compliance (43 CFR 46.150(c)). See ESM 13-3.
3-10 

If it is determined that the proposed emergency response actions are likely to have significant 

environmental impacts, the Department should consult with CEQ as soon as possible about 

alternative arrangements for NEPA compliance (43 CFR 46.150(d)). The Department and CEQ 

will limit such arrangements to actions necessary to control the immediate impacts of the 

emergency, with all other actions remaining subject to NEPA review (40 CFR 1506.11).

Emergency State and Tribe AML Projects - The objective of an emergency reclamation project 

is to stabilize the emergency aspects of the problem by eliminating the immediate danger to 

public health, safety, and welfare. Any remaining reclamation should then be accomplished as 

part of a regular non-emergency AML project. Emergency AML projects are not exempt from 

NEPA. If possible, NEPA should evaluate the entire project, including both non-emergency and 

emergency reclamation activities. Emergency AML projects may comply with NEPA under a 

CE (DOI Departmental Manual, 516 DM 13.5(B)(33) specifically CE 33). See Chapter 6. 

Federal Emergency Programs - Similar to federal reclamation high priority projects, where a 

state or tribe does not have primacy, OSMRE may implement the Federal Reclamation Program 

in order to reclaim appropriate emergency AML projects. Emergency reclamation will only be 

conducted to the extent necessary to stabilize the emergency aspects of the problem by 

eliminating the immediate danger to public health, safety, and general welfare. Any remaining 

reclamation should then be accomplished as part of a regular, non-emergency AML project that 

is subject to NEPA review. The Federal Reclamation Program generally conforms to the 

requirements described above for state and tribal emergency projects. Federal emergency 

projects may comply with NEPA under a CE (DOI Departmental Manual, 516 DM 13.5(B)(33)). 

See Chapter 6. 

List of Appendices

Appendix 3.1 OSMRE Review Process for Environmental Documents
4-1 

CHAPTER 4: IMPLEMENTING NEPA THROUGH PROJECT MANAGEMENT

Implementing and documenting the NEPA process within a project management framework is 

vital to effectively complying with NEPA and essential for meeting project schedules. 

4.1 Introduction - Comprehensive Project Management

In order to avoid affecting a project’s schedule, each proposed project should have an integrated 

project schedule that is all inclusive and proactively addresses issues. The schedule should 

outline the timing for analysis, interim reviews, documentation requirements, and any required 

outside agency review or approval; the schedule should also consolidate NEPA review tasks and 

the OSMRE’s program requirements, including the AML Reclamation Economic Development 

Program (AML Pilot Program) and initiatives such as the Watershed Cooperative Agreement 

Program (herein referred to as OSMRE Programs). This combination should result in one 

comprehensive project schedule.

4.2 Managing the Project with an Awareness of NEPA

Managing a project with an awareness of NEPA’s requirements and the basic intent of the statute 

is essential; an experienced NEPA practitioner’s input at the beginning stages of the project will 

support timely compliance with the process and eliminate backtracking through earlier project 

discussions and considerations. A NEPA practitioner (with the rest of a project team) can 

proactively identify not just issues and legal requirements but also specific timing requirements 

and processes required for the various agencies, permits, and laws needed to implement the 

project effectively. 

Section 102(A) of NEPA (42 U.S.C. § 4331) states that an agency of the federal government 

shall “utilize a systematic, interdisciplinary approach which will ensure the integrated use of the 

natural and social sciences and the environmental design arts in planning and in decision-making 

which may have an impact on man’s environment.” In summary, NEPA requires federal 

agencies to have a process for making informed decisions about their major actions, which 

includes consideration of the environment and welfare of the public. 

4.2.1 Interdisciplinary Project Team

OSMRE’s responsibility as a federal agency is to conduct its business in the interest of the public 

and maintain its mission to carry out the requirements of SMCRA in cooperation with states and 

tribes. OSMRE is responsible for operating objectively and conducting impartial reviews of 

applicant proposals in accordance with all relevant laws, including SMCRA, Mineral Leasing 

Act, NEPA, etc. (See Chapter 1 and 2 for more detailed discussions on applicable statutes and 

federal regulations). 

4.2.2 Project Team Members

The Project Team should include a diverse group of experts to ensure that major issues are 

addressed; studies are scientifically supported; and that the expertise applicable to the project 
4-2 

scope is reflected in the evaluation of the proposal. The composition of the project team will 

depend upon the scope and complexity of the proposed action. 

Project Manager - responsible for the comprehensive project schedule, assembling an 

interdisciplinary OSMRE project team and developing quality deliverables. The project manager 

must also contact the Office of the Solicitor to have a project solicitor assigned to a complex 

project requiring NEPA review (typically EAs and EISs). Project managers should proactively 

request general legal advice on NEPA compliance or associated environmental laws when there 

are potential issues or questions associated with evaluations or decisions associated with the 

proposed action. 

NEPA Practitioner - responsible for developing the project approach that effectively includes 

compliance with relevant laws and efficiently documents the agency’s review and decisionmaking process. The NEPA practitioner, in coordination with the project manager and project 

solicitor (as needed), will identify the type of required NEPA review by completing the template 

- Evaluation of a Proposed Action for NEPA Compliance - provided in Appendix 4.1 and submit 

that form to HQ before initiating any external kick-off or scoping meetings. In addition, the 

NEPA practitioner, in consultation with the project solicitor, is responsible for ensuring the 

NEPA compliance is conducted in accordance with all procedural and substantive legal 

requirements.

Project Solicitor - responsible for reviewing NEPA documents for legal sufficiency and 

providing advice for questions related to legal responsibilities, such as the procedural 

requirements of NEPA and other federal laws.

Scientists/Technical Experts - responsible for preparing, conducting, reviewing methodologies, 

assessing data integrity and accuracy of study results, environmental findings, and evaluations. 

These experts may include, but are not limited to:

● Mining/Permitting/Inspector/Reclamation Specialist(s);

● Geologist;

● Hydrologist (Clean Water Act);

● Air Quality Expert (Clean Air Act);

● Biologist/Natural Resource Specialist (ESA);

● Cultural Resource Specialist (National Historic Preservation Act); and

● Tribal Coordinator (Executive Order 13175 - Consultation and Coordination with Indian 

Tribal Governments).

Additional Team Members – added when specific expertise is needed based on the project 

scope, location, project area, sensitive resources, schedule, and issues. 

4.2.3 Project Understanding and Kick-Off

Thinking through some of the questions below provides a good outline of information needed to 

initiate or “kick-off” the project. The answers (or lack of answers) to these questions can help to 

outline the information needed for a thorough understanding of the proposal, potential red-flags 
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to proactively schedule, and the expertise needed to address the issues. In addition, this list of 

questions will also identify data needed to evaluate the project proposal for both NEPA 

compliance and OSMRE program requirements. 

● What is the proposal, and why is it needed? 

o Can you clearly state what the proposal is? 

o Why is the proposal being made?

o What situation is it resolving, or what are its benefits?

● Where is the proposal? 

o What is in the project area?

o What is adjacent to the project area?

o Are there other projects in the vicinity of the project area?

● What will it take to develop the proposal and how will it continue after development? 

o What is the federal action?

o Which and what programs, laws, and regulations may the proposal involve? 

o How will the approvals for the various laws, requirements, and permits be 

coordinated and scheduled? 

o Are there specific processes or procedures required or needed? 

● What are the issues?

o What resources are in the project area?

o Are there specific red flag issues?

o Are there specific regulatory processes or data needs that could affect the schedule?

o Do you anticipate any conflicts with other agencies or stakeholders, and if so, how 

can those be resolved? 

● Are there any issues that can be resolved early?

● Who and how many specific task leads need to be on the project team? 

● Who and what agencies and organizations need to be informed or consulted? 

o Are there different stakeholder interests at the various stages of the development of 

the project?

o What specific expertise is needed?

o Are there specific agencies to involve formally or informally?

o Are cooperative agreements or third party agreements needed to define the level of 

assistance on the project?

● How should the timing of tasks and events be scheduled? 

o When is the agency and public input on the project most meaningful to OSMRE’s 

decision-making process? 

o Are there timing concerns related to some approvals, i.e., do some approvals have to 

happen before others? 

o Does the time of year affect any of the studies or project completion?

o Is there a “mandatory” schedule, and what dictates this?

● What information is needed? 

o What data is needed to start?

o Who will provide that data and how? 

o Are there time sensitive issues in obtaining the required data?

o What specific deliverables are needed or required to share information and analyses? 
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● How will project documentation be managed and records maintained? 

o How will pertinent correspondence be documented? 

o What type and format will be used for the documentation, (i.e., subject lines, shared 

drives, emails, etc.)?

o Who will have access to data?

o How will request for data be managed?

o What final products are required, and how will this be documented? 

o How will the approvals and final decisions be recorded? 

● What reviews are required?

o Who are the reviewers for data, technical, decisions, etc.?

o How will reviews be implemented?

o What are the timelines requirements for reviews?

● How will comments be addressed? 

● What approvals are needed?

o What information and format is needed to coordinate approvals? 

o What are the decision points in the project? 

o What is the approving agency, and who is the official that will approve?

4.3 “One Project - One Schedule”

Comprehensive project management requires the development of one schedule that incorporates 

all the required program review tasks and NEPA related processes from initiation to 

implementation. There will be many steps, including internal and external review processes 

involved to complete the NEPA review and obtain approval of the proposed project through the 

program; all these steps should be incorporated into one schedule. 

4.3.1 Work Plan and Schedule

Proposals with the potential to significantly impact the environment (e.g., larger scale, or 

complex or projects likely to generate strong opposition requiring an EIS or EA) require a formal 

project work plan with a schedule to ensure an efficient and effective deliverable. The project 

manager and NEPA practitioner are essential in proactively generating a comprehensive work 

plan that clearly states the project scope and objectives with a complete coordinated schedule. 

Although the information in this section is intended for larger, complex or projects likely to 

generate strong opposition, it can be used as a guide or checklist for smaller scale activities to 

assist with developing the project team and setting up the steps needed for a project.

4.3.2 Preparing the Work Plan 

The project manager should prepare a work plan, the details of which will vary based on the size 

and complexity of the project. A work plan is a concise document that comprehensively sets for 

the needs of the project and provides: 

● A clear project description;

● A defined project scope; 

● Agency and project objectives; 

● A list of project team members with contact information;
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● A description of roles and responsibilities; 

● A communications plan; 

● An outline of the project approach and rationale for the NEPA path; 

● A list of required studies and methodologies; 

● An agency coordination plan;

● A public involvement and participation plan; 

● Any necessary agreements (e.g., MOUs), disclosure statements, and contracts;

● A list of major issues and/or potential constraints; 

● A list of specific regulations and approvals needed to complete the project; and 

● A list of deliverables.

In addition, the work plan should identify any known schedule constraints, requirements, and 

essential sequencing of tasks to define the critical path for meeting the schedule. A thorough 

work plan coordinated with the project team should address as many issues as possible upfront to 

allow the project team to work efficiently through the schedule. 

4.3.3 Developing a Comprehensive Project Schedule

A comprehensive project schedule for conducting OSMRE programs includes sequencing tasks 

associated with the requirements of NEPA and other statutory and regulatory requirements. In 

order to develop this type of schedule, an understanding of the proposal and OSMRE’s role is 

required. 

Start of Project Versus Start of NEPA Study - The project manager is responsible for 

initiating the project and ensuring appropriate information is received from the proponent. 

OSMRE may coordinate with the proponent about a proposal before and during the time the 

proponent is revising and ultimately submitting a complete application for the proposal. These 

early project discussions do not necessarily start the NEPA process, just as, the completion of the 

NEPA process does not necessarily mean all the work on the project is complete. For example, 

as shown in the Federal Lands Flowchart (Appendix 4.2-2), the final NEPA decision document is 

required as part of the Mining Plan Decision Document. Therefore, the NEPA review start and 

end dates are different than the overall project start and end dates. Because of these potential 

differences in timing, the schedule needs to be developed collaboratively between the project 

manager and NEPA practitioner. The project solicitor should also be consulted. 

The NEPA review start of study date does not begin until all the existing conditions, base 

information for the analysis is collected, inventoried, and checked. This NEPA review start date 

is referred to the Notice of Start of Study for the EA, and the Notice of Intent for the EIS. This is 

the start date for the schedule defined in SO 3355 and needs to be uploaded into the OSMRE 

Project List and the Tracking Database by the NEPA practitioner.

Scheduling Regulatory and Review Processes - The project manager and NEPA practitioner 

need to develop a schedule that sequences all of the required statutory and regulatory processes 

so that information is available when needed. Examples of items requiring specific timing in a 

schedule include: 
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● Section 7 consultation under ESA (informal or formal); 

● Section 106 consultation under NHPA; 

● Other necessary permits if they require NEPA coverage or are necessary for the NEPA 

analysis;

● Surveys required and necessary field work windows for species or weather 

considerations; 

● Public comment periods; 

● Solicitor reviews;

● Cooperating agency reviews;

● Headquarter coordination points (see Appendix 4.3-1 and Appendix 4.3-2 for examples);

● DOI briefings (including scheduling, delivery of meeting materials, resolution of 

comments, etc.); and

● Federal Register reviews (internal and external) and for NOAs. Keep in mind that the 

EPA generally releases its NOAs in the Federal Register only on Fridays. 

Schedule Formats - Depending on the available resources, the project manager’s preference, 

and the complexity of the project, the schedule could range from a simple list of tasks and dates 

to the more detailed and expansive format of a Gantt chart that shows all the tasks, resources, 

and dates for every relevant process being conducted for the project. Example schedules for an 

EIS and EA can be obtained from the HQ NEPA Coordinator(s). 

4.3.4 Working with a Project Proponent 

A project proponent is an applicant or entity that requests approval or seeks federal funding from 

OSMRE for a project. Common proponents include a mining company, an operator, a permittee, 

a state, a tribe, an organization, an academic institution, or a person. To the extent necessary, the 

project team should work with the proponent to clarify the scope of a proposal and request 

information necessary for OSMRE’s review. However, the proponent must not be part of the 

project team or otherwise participate in the independent NEPA review or decision-making 

process of the project. 

In all cases, even if a primacy state or tribal AML program prepares the environmental review, 

OSMRE is responsible for providing the required notice, addressing issues, responding to 

inquiries from the public and other agencies, and independently evaluating information received 

from the proponent. 

4.3.5 Managing Contractors 

The CEQ regulations provide instructions for using contractors to prepare an EA or EIS (40 CFR 

1506.5(b) and (c)). Under these regulations, when an applicant or contractor prepares the 

information for the EIS or EA, OSMRE must independently evaluate the information submitted, 

its accuracy, and the environmental issues. The contractor may prepare the environmental review 

materials, but OSMRE is responsible for the scope and content of the EA and EIS. 

When using third-party contractors for any NEPA- related service, an MOU may be required 

between OSMRE, the proponent, and the contractor to clarify roles and communication protocols 

between OSMRE and the contractor, and ensure limited access to the impact analysis. The MOU 
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should clearly state that there are no conflicts of interest. As stated in Chapters 9 and 10, a 

conflict of interest disclaimer must be included in the EIS (40 CFR 1506.5(c)) and it is 

recommended that this clarification be included in the EA as well. The project solicitor should 

review the MOU before it is entered into by the parties to the MOU. 

At a minimum, the MOU must:

● Establish the roles and responsibilities of each party; 

● Establish that the proponent is not part of the project team that assesses data, conducts 

environmental analyses and evaluations, or makes decisions; 

● Include a communications plan and or procedures; and 

● Specify that all costs of using a contractor in the preparation of the NEPA document will 

be borne by the applicant. 

4.4 Integrating Processes for Informed Decision-Making

OSMRE is responsible for determining the consequences of our decisions and actions by 

conducting NEPA reviews for proposals made from within the agency, for proposals submitted 

by others, and for proposals that are part of its regulatory and abandoned mine lands programs. 

4.4.1 OSMRE Program Decision Points and Environmental Regulations

OSMRE’s decision-making process for a proposed action has multiple decision points, which 

need to be documented. These decision points, in many cases, require input and, sometimes, 

decisions related to other laws from other federal agencies. The decision points, especially if 

other agencies are involved, need to be identified early in the project approach and included in 

the work plan as scheduled milestones.

As discussed in Chapter 2, NEPA compliance also encompasses “other regulatory processes,” 

such as ESA and NHPA, that also have specific requirements and process steps. An efficient 

work plan will integrate and coordinate the milestones for the OSMRE program reviews, NEPA 

decision points, and other environmental regulatory processes into one project workflow and 

schedule. 

Flowcharts included in Appendix 4.2 illustrate tasks by state and tribal regulatory authorities, 

OSMRE, and operators required for implementing an action through several specific OSMRE 

processes related to our programs. As a general guide, milestones and decision points are 

included within a timeline on each flowchart. These milestones and timelines are not shown tied 

to specific tasks because they are determined on a project-by-project basis by the project 

manager and NEPA practitioner. Deliberately identifying the decision points and timelines helps 

ensure that an efficient and compliant NEPA process is conducted and documented. 

The following OSMRE processes are illustrated in Appendix 4.2: 

SMCRA Title V – Regulatory 

1. Federal Regulatory Program – Permitting Approval Process 
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2. Federal Coal - Mining Plan Decision Document Approval Process 

3. Federal Lands Program – Mining Plan Modification Process

4. Indian Lands Program – Permitting Approval Process

SMCRA Title IV – AML Program 

5. State Regulatory Authority AML Reclamation Process 

6. Emergency AML Reclamation Process

7. OSMRE (Federal) AML Reclamation Process 

8. Indian Lands Emergency and Non-Emergency AML Reclamation Process – 

9. AML Reclamation Economic Development Pilot Process (AML Pilot)– (OSMRE 

Guidance for Project Eligibility under the AML Reclamation Economic 

Development Pilot Program)

4.4.2 Importance of Coordination and Timing 

The flowcharts include an estimated sequence of when these steps need to be considered for 

applicable laws and processes. By considering these requirements and their timing, the project 

team can implement these processes sequentially or in tandem as needed to streamline the project 

schedule and ensure all requirements are met before a final decision is made on the project. In 

addition, integrating these regulatory and agency coordination milestones into the project 

schedule helps ensure all required factors are available and considered so that OSMRE can make 

a fully informed decision. 

4.5 Department NEPA and Permitting Database 

The Tracking Database is maintained by all DOI bureaus and offices to provide reports on the 

schedule, status, and project team members for all EISs and certain complex EAs. The NEPA 

practitioner is responsible for inputting and maintaining the information in the Tracking 

Database. Information and guidance for using the Tracking Database, is available in ERM 10-9. 

4.6 Documentation and File Management 

The project manager will ensure that decisions made for the project as it progresses through the 

work plan and the NEPA review are adequately documented and that all files are organized in a 

logical manner. OSMRE Directive INF-1, Administrative Records System outlines OSMRE’s 

policy for complying with both federal and Departmental record requirements and provides 

procedural guidance on how to organize, maintain, use, preserve, and ultimately dispose of 

records consistent with the Federal Records Act.

4.7 Files and Records

It is crucial to begin compiling and organizing the project file (also called a decision file) in the 

early stages of the project. Confidential information should be marked and maintained separately 

to prevent unauthorized disclosure. 

Official file copies of OSMRE environmental documents and supporting documents must be 

maintained by the responsible OSMRE office. Environmental documents include: 
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● Environmental Assessment (EA); 

● Finding of No Significant Impact (FONSI);

● Environmental Impact Statement (EIS);

● Notice of Intent (NOI); and 

● Record of Decision (ROD). 

Supporting documents consist of material generated or relied on in the preparation of 

environmental documents. As a guiding principle, these supporting documents should 

demonstrate both the process and information used to reach the final decision. Such documents 

include, but are not limited to: 

● Mailing lists;

● Agency coordination correspondence; 

● Summaries of public meetings (including attendance lists);

● Records pertaining to consultations; 

● Documents or studies incorporated by reference;

● Environmental study methodologies and findings; 

● Alternative evaluations;

● Technical reports prepared by or directed by OSMRE;

● Materials submitted by applicants;

● Public comments; and

● Records of contractual work related to the project. 

At least one copy of the final document (including Draft, Final, and Supplemental EISs and ROD 

or the Draft and Final EA and FONSI) must be available in the lead Regional Office and 

Washington D.C. Headquarters Office. 

4.8 Information Access - Shared Drives and Folders

Providing continued access to project information for the project team is the responsibility of the 

project manager. It can be useful to setup shared drive folders to help distribute information, 

including large files such as the PAP or baseline studies. Remember to restrict access to either 

certain folders or sites that are draft and deliberative from the general public and applicant until 

documents are finalized for release.

When releasing documents for internal review, it can be useful to setup a tracking sheet to help 

document when each review is completed, which files are outstanding, and which chapters still 

have comments to be resolved. The project manager can use multiple tabs for methodology 

reviews, baseline data reviews, draft chapter reviews, etc. so the information can be consolidated 

into one file. To help expedite comment resolution, the project manager may schedule a 

conference call with the project team and other reviewers. A teleconference call can assist in the 

resolution process and eliminate back and forth questions and edits. 
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4.9 OSMRE Project Coordination and Reviews

 In addition to organizing the project team and filing system, the project manager is responsible 

for providing appropriate time in the schedule to complete all necessary reviews and analyses, 

addressing comments, performing quality control checks, and coordinating both internally and 

externally.

4.9.1 Technical Reviews and Quality Assurance 

Technical reviews from the start of data collection through the completion of the analyses and 

evaluations of the project are to be led by the project manager. Technical data used for the 

project needs to be from a reputable source and contain the most recent and relevant data and 

findings as practicable. Before relying on a study, at least one technically qualified member of 

the project team should review the methodology used to conduct the analysis and confirm that 

such methodology meets the needs of the analysis. Questions concerning data provided or its use 

should be addressed early, preferably before starting the NEPA review process; the project team 

should coordinate with OSMRE’s Science Integrity Officer, who can assist with the assessment 

of the methodology or recommend additional resources. 

The project team should use technical reports and/or memoranda and coordinate review with 

cooperating agencies or other experts as needed before finalizing the NEPA documents. The 

project manager should also maintain a record of the quality checks that have been conducted on 

data, analyses, and evaluations that contribute to the major decisions for the project. 

4.9.2 Solicitor Review

Coordination with the project solicitor should be implemented at major milestones in the project 

to ensure their review is efficient and effective. The major deliverables for a project will require 

their approval and surname before issuing any information to the public. Any project schedule 

should build in sufficient time for solicitor review, and time for OSMRE to address to any 

comments from the project solicitor.

4.9.3 OSMRE Region/HQ Coordination Points and Director Briefings

The Director is ultimately responsible for NEPA compliance within OSMRE [516 DM 13.2(A)]. 

Throughout the development of NEPA documents, Headquarters (HQ) Division of Regulatory 

(Title V) or Reclamation Support (Title IV) will provide guidance at critical project milestones. 

The following critical decision coordination points supersede the December 19, 2018 memo, 

Assuring Compliance with Departmental and CEQ Guidelines for NEPA, from the Deputy 

Director Exercising the Authority of the Director of OSMRE.

● For CEs: 

For eligible AML projects, the Categorical Exclusion Determination form is to be 

completed and submitted to the HQ NEPA Coordinator (s). For all other projects, the 

project manager submits the “Evaluation of Proposed Action for NEPA Compliance 

Form” (NEPA Form) to the HQ NEPA Coordinator (s) as soon as a proposed action is 
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identified. The Categorical Exclusion Determination form is available in Appendix 6.6 

and the NEPA Form is provided in Appendix 4.1. Approval of these forms from HQ 

OSMRE Program Support Directorate (PSD) is not required. The information in the 

Categorical Exclusion Determination form and the NEPA Form will be used to track CEs 

and to meet OSMRE reporting requirements to the Department and CEQ. 

● For EAs: 

o EAs for common or small projects (e.g., typical AML reclamation projects, 

including state prepared environmental reviews; and minor permit 

modifications).

The project manager must provide the NEPA Form to the HQ NEPA 

Coordinator (s). (For Title IV projects, the NEPA Form is required at the first 

submittal of a request for authorization to proceed). Approval of the NEPA Form 

from PSD is not required. The information in the NEPA Form will be used to meet 

OSMRE reporting requirements to the Department and CEQ. 

o EAs for complex, unique, or larger projects (e.g., new permits, major permit 

modifications, mining plan approvals, and AML Pilot Projects). 

The project manager must provide the NEPA Form to the HQ NEPA 

Coordinator(s) to obtain PSD concurrence at the following milestones:

• Internal OSMRE Project Kickoff Meeting;

• Internal draft EA Review; 

• Agency and Public Comments and Responses; and, 

• Internal draft Final Decision Document Review.

● For EISs: 

The project manager must submit the NEPA Form to the HQ NEPA Coordinator (s) and 

coordinate the work plan and schedule with PSD at each milestone below to obtain 

concurrence and meet the Department requirements: 

o Internal OSMRE Project Kickoff Meeting;

o Notice of Intent Review (Federal Register);

o Development of the Draft EIS (Meeting following scoping process); 

o Draft EIS and Notice of Availability Clearance (Draft EIS Review, Department 

Clearance Process);

o Draft EIS Comment/Response Review;

o Final EIS and Notice of Availability Clearance (Final EIS Review, Department 

Clearance Process); and 

o Record of Decision Review (ROD Review, Department Clearance Process).

It is imperative that the HQ NEPA Coordinator (s) and Regional NEPA staff work 
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collaboratively as a team throughout each project in order to ensure the timely development of 

quality NEPA documents. Our goal is to have concurrence at critical decisions points before 

moving forward with the project. If concurrence between the HQ NEPA 

Coordinator (s) and Regional NEPA staff cannot be reached in a timely manner, the Regional 

Director and the ADPS should consult to resolve. 

4.9.4 Communications Plans, Press Releases, and Federal Register Notices

Major projects with active public and agency involvement require coordination with OSMRE 

Communications. A communications plan and draft press release are to be provided to the Office 

of Communications for coordination with the Director before publishing any formal notices in 

the Federal Register or at major milestones in the NEPA process as needed. OSMRE will 

generally publish a Federal Register notice concurrently with EPA’s publication of a Notice of 

Availability for a Draft EIS and Final EIS. In addition, all congressional letters and contact are to 

be coordinated through the OSMRE Congressional Representative in the Office of 

Communications. This includes contacts on the mailing list for NEPA reviews and notices of 

availability of the NEPA documents. 

List of Appendices

Appendix 4.1 Evaluation of a Proposed Action for NEPA Compliance Template 

Appendix 4.2 OSMRE Program/NEPA Flowcharts

Appendix 4.3-1 EA Process Coordination Points 

Appendix 4.3-2 EIS Coordination Points
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CHAPTER 5: USING EXISTING ENVIRONMENTAL DOCUMENTS

It is sometimes appropriate to use existing environmental analyses to support a new proposed 

action. In fact, the DOI NEPA regulations require that we incorporate by reference and tier to 

documents to the extent possible (43 CFR 46.405) in an effort to remain within the normal page 

limits stated in 40 CFR 1502.7. Important differences exist between the two techniques as 

discussed below. In addition, it may also be possible to meet our NEPA requirements by 

adopting an environmental analyses prepared by another agency. 

This chapter describes the options and procedures for using existing NEPA analyses to meet a 

current proposal’s NEPA documentation and analysis requirements, either in full or in part. Both 

the CEQ (1502.20; 1502.21) and DOI NEPA regulations (43 CFR 46.120) encourage the use of 

existing NEPA analyses to help reduce unnecessary analysis and paperwork. This chapter 

discusses several ways of doing so. 

5.1 Performing a NEPA Adequacy Review 

Not every new proposed action will require a new environmental analysis. In some instances, an 

existing environmental analysis document may be relied upon in its entirety and a new NEPA 

analysis is not necessary. OSMRE should review existing NEPA documentation and adequacy 

for any new or modified project requiring a decision by OSMRE. See Sections 5.1.2 and 5.1.3 

for information on completing and documenting your review. 

NEPA analysis and documentation have a “shelf-life” beyond which we should take another look 

to determine if the circumstances of either the project or the affected environment have changed 

sufficiently to invalidate our conclusions within the original documentation. Generally, if a 

project has not been implemented within 5-years from the completion of the NEPA analysis or if 

new information about the project or the affected environment is available, you should reexamine the original NEPA documentation to verify its continued adequacy and supplement or 

replace information if it is no longer valid. See Question 32 in the CEQ’s Forty Most Asked 

Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 

18026 (March 23, 1981). This timeframe is only a guideline; it may be necessary to redo the 

NEPA documentation before the general 5-year timeframe based on the availability of significant 

new information such as, a newly discovered presence of a protected species, a significant 

change to the boundaries of an action, or if you discover that a particular affected resource was 

not adequately covered by the prior NEPA analysis. In other instances, we may also review the 

NEPA documentation on a more frequent cycle to coincide with the timing of other 

environmental documentation. If that is the case, be sure to document each review so that the 

record shows your most recent review and analysis. 

The following are examples of some of the typical situations in which you may be able to rely on 

existing environmental analysis in its entirety.
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EXAMPLE 1

A proposed federal coal lease is analyzed in an EIS and approved in a ROD. If the proposed 

mining plan that follows the federal coal lease is consistent with the ROD, you should review the 

leasing EIS to determine if its analysis adequately addresses the specific effects of the individual 

mining plan and ensure there is no new information about the project related to the affected 

environment since the time the leasing EIS was completed. If there is no new significant 

information about the resources or effects of mining and the EIS continues to adequately address 

the environmental consequences of mining, you should be able to rely on the leasing EIS in its 

entirety.

 

EXAMPLE 2

An applicant requests a SMCRA permit for a surface mining operation in a federal program 

area, which is analyzed in an EA, approved in a decision document, and implemented. Later, the 

market conditions are such that the operation temporarily ceases for a period of time. Upon 

notification that the operator is going to reinitiate mining, review the existing EA to determine if 

it continues to adequately address the environmental consequences of the mining or if new 

significant information and resource concerns have arisen that would change the significance 

determinations and be useful for the decision-maker.

To determine if existing documents are adequate, identify and review each relevant 

environmental document, as described below. 

5.1.1 How to Identify Existing Environmental Documents 

A new proposed OSMRE action may rely on a single or multiple existing NEPA documents. The 

NEPA documents that may be relevant include: 

● EISs associated with BLM Resource Management Plans or U.S. Forest Service 

Management Plans;

● EISs or EAs on OSMRE programmatic actions, particularly rulemaking;

● EISs or EAs associated with OSMRE projects or permit approval actions; 

● EISs or EAs prepared by other agencies, including those on programmatic, land use, and 

activity or project-specific or activity plans or actions, when the OSMRE is a cooperating 

agency; and

● EISs or EAs prepared by other agencies when the OSMRE is not a cooperating agency.

If the existing document is an EIS or EA prepared by another agency, OSMRE must adopt the 

EIS or EA in order to use it for NEPA compliance. In these cases, follow the procedures for 

adoption rather than for a NEPA Adequacy Review (NAR) (see Section 5.3, Adopting Another 

Agency’s NEPA Analyses).

5.1.2 How to Review Existing Environmental Documents for NEPA Adequacy

Review existing environmental documents and consider the questions listed in Table 5.1.2 when 

determining if they adequately cover a proposed action currently under consideration. 
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Table 5-1. Questions for Reviewing Existing NEPA Documents for a New Proposed Action 

# Question If response is Yes If response is No

1 Is the new proposed action a feature of, or substantially 

similar to, an alternative analyzed in the existing NEPA 

document(s)? Is the project within the same analysis area, 

or if the project location is different, are the geographic 

and resource conditions sufficiently similar to those 

analyzed in the existing NEPA document(s)? If there are 

differences, can you explain what makes them 

substantially different? 

Move on to question 2 OSMRE must prepare an 

EA or EIS

2 Is the range of alternatives analyzed in the existing NEPA 

document(s) appropriate with respect to the new proposed 

action, given current environmental concerns, interests, 

and resource values? 

Move on to question 3 OSMRE must prepare an 

EA or EIS

3 Is the existing analysis valid in light of any new 

information or circumstances (such as recent endangered 

species listings, new policy or legal requirements, etc.)? 

Can you reasonably conclude that new information and 

new circumstances would not substantially change the 

analysis of the new proposed action? 

Move on to question 4 OSMRE must prepare an 

EA or EIS

4 Are the direct, indirect, and cumulative effects that would 

result from implementation of the new proposed action 

similar (both quantitatively and qualitatively) to those 

analyzed in the existing NEPA document? 

No additional NEPA 

is required

OSMRE must prepare an 

EA or EIS

Your answers must be substantive, detailed, and contain specific citations to the existing EA or 

EIS (see Section 5.1.3). If you answer “yes” to all of the above questions, additional analysis will 

not be necessary. If you answer “no” to any of the above questions, a new EA or EIS must be 

prepared. However, it may still be appropriate to tier to or incorporate by reference from the 

existing EA or EIS or supplement the existing EIS. Detailed information is provided in Sections 

5.1.3 – 5.5. 

When using an Interdisciplinary Team (IDT) for a NEPA adequacy review, it is important to set 

review priorities including expectations for how and when comments are delivered and whether 

or not the review is being completed for NEPA compliance, technical adequacy, and document 

quality and readability. It should be made clear to the reviewer if the document is in draft format 

and has not yet undergone any document formatting or style guide checks to help eliminate 

comments related to grammar, spelling, and file format. Reviews of content for technical 

adequacy should aim to provide actual text revisions versus a comment bubble with additional 

questions. Any questions the reviewer may have should be brought to the attention of the Project 

Manager before submitting a “completed review” so the questions can be resolved ahead of time. 

In addition to answering the above questions, you will evaluate whether the public involvement 

and interagency review associated with existing EAs or EISs are adequate for the new proposed 

action. In general, where the new proposed action has not already been discussed during public 

involvement for the existing EA or EIS, some additional public involvement for the new 

proposed action may be appropriate. 
5-4 

If you conclude that additional public involvement may be appropriate, the type of public 

involvement is at the discretion of the decision-maker. Public involvement may include any of 

the following: external scoping, public notification before or during your review of the existing 

EA or EIS, public meetings, or public notification or review of a completed NEPA Adequacy 

Review Form (NARF) (see Section 5.1.3). 

Some actions may be appropriate to implement with either a NARF and FONSI or ROD or 

categorical exclusion. When the new proposed action is clearly a feature of an action analyzed in 

an existing NEPA document and the existing analysis remains valid, a NARF would generally be 

preferable to using a categorical exclusion because a NARF would rely on additional NEPA 

analysis to support decision making. 

5.1.3 Documenting the Review

The NARF worksheet is not itself a NEPA document and must be used in conjunction with a 

decision document (FONSI or ROD). Instead, the NARF documents you review to determine 

whether the existing NEPA documents can satisfy the NEPA requirements for the proposed 

action currently under consideration. The NARF can be found in Appendix 5.1, NEPA 

Adequacy Review Form (NARF). 

When relying on an existing environmental analysis for a new proposed action, it is essential that 

you document the review using the NARF. This documents OSMRE’s review of the existing 

environmental analysis, makes a determination that it is adequate for the decision, and states that 

no additional NEPA is required for the proposed action. 

When evaluating new circumstances or information before issuance of a decision, as described in 

section 5.1, NEPA Adequacy Review Form, you must document your review using the NARF or 

in other documents, such as decision documentation or responses to comments. 

5.2 Tiering and Programmatic NEPA Documents 

Depending on the situation, it may be appropriate to conduct a programmatic NEPA review in 

order to provide a basis for a broad decision and a later, site-specific NEPA review to provide a 

basis for implementing a particular component of that decision. This stepped approach to 

planning and compliance is called “tiering.” Tiering (40 CFR 1508.28 and 43 CFR 46.140) 

occurs when we rely on the decision made for a NEPA document with a broader scope and 

therefore analyze a more focused scope of issues for the current specific proposed action. 

We might tier to a programmatic or broader-scope EIS to allow the preparation of an EA and a 

FONSI for the individual proposed action, as long as any previously unanalyzed effects are not 

significant. The FONSI, in such circumstances, would be, in effect, a FONSI for your sitespecific action but not for the broader action analyzed in the EIS to which the EA is tiered. The 

FONSI in these circumstances may also be called a “finding of no new significant impact 

(FONNSI).” (43 CFR 46.140(c)). Using tiering, we can prepare an EA FONNSI for a proposed 

action with significant effects, whether direct, indirect, or cumulative, if the EA is tiered to a 
5-5 

broader EIS that fully analyzed those significant effects.

Before you tier to a NEPA document, evaluate the broader NEPA document to determine if it 

sufficiently analyzed site-specific effects and considered the current proposed action. If so, a 

NARF will be more appropriate than a subsequent, tiered NEPA document (see Section 5.1). 

Take the following actions when preparing a tiered NEPA document (40 CFR 1502.20 and 

1502.21): 

● State that it is tiered to another NEPA document and state where the document is 

available for review;

● Describe the NEPA document to which it is tiered; and

● Incorporate by reference the relevant portions of the NEPA document to which it is tiered 

(cite and summarize, as described in Section 5.5, Incorporation by Reference). 

You may tier to a NEPA document for a broader action when the narrower action is clearly 

consistent with the decision associated with the broader action. In the tiered document, you do 

not need to reexamine alternatives analyzed in the broader document. Focus the tiered document 

on those issues and mitigation measures specifically relevant to the narrower action but not 

analyzed in sufficient detail in the broader document. 

Tiering can be particularly useful in the context of the cumulative impact analysis. A 

programmatic EIS will often analyze the typical effects anticipated as a result of the individual 

actions that make up a program, as well as the total effects of the overall program. An EA 

prepared in support of an individual action can be tiered to the programmatic EIS. You may 

prepare an EA for an action with significant effects, whether direct, indirect, or cumulative, if the 

EA is tiered to a broader EIS that fully analyzed those significant effects. Tiering to the 

programmatic EIS would allow the preparation of an EA and perhaps also a FONSI for the 

individual action, so long as the remaining effects of the individual action are not significant. If 

there are new circumstances or information that would result in significant effects of an 

individual action not considered in the EIS, tiering to the EIS cannot provide the necessary 

analysis to support a FONSI for the individual action (see Chapter 9 for guidance on the 

elements of an EA and FONSI).

Note that in some instances, a broader EIS might fully analyze significant effects on some 

resources affected by the individual action but not all resources. The tiered EA for the individual 

action need not re-analyze the effects on resources fully analyzed in the broader EIS but may 

instead focus on the effects of the individual action not analyzed in the broader EIS. A FONSI 

for such an individual action could rely on the analysis in the broader EIS as well as the tiered 

EA, and would explain which parts of the EIS it is relying upon and why the individual action 

would not have significant impacts either through mitigation measures or the previous analysis. 

An EIS should be prepared for an individual action only if significant effects exist that have not 

been analyzed in the broader EIS or have not been adequately reduced to non-significant effects 

by using mitigation measures committed to in a FONSI (commonly referred to as a mitigated 

FONSI).
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EXAMPLE

If an OSMRE EIS analyzed the effects of re-mining within an area otherwise designated as 

unsuitable for mining operations, a subsequent individual re-mining proposal within the 

designated area would generally be expected to have no significant effects beyond those already 

analyzed in the overall EIS. However, more information, including information about a specific 

site within the area designated as unsuitable for mining operations, may become available at the 

time of the subsequent proposal and the tiered document would focus on those issues.

In such instances, focus the EA on determining if, and how, any new circumstances or 

information would change the effects anticipated by the EIS. The EA in such instances may also 

consider mitigation of effects analyzed in the EA or already analyzed in the broader EIS, 

including reducing or avoiding effects that are not significant. 

For more information, see Chapter 2 and CEQ guidance: Effective Use of Programmatic NEPA 

Reviews. 

Tiering is not the same as incorporation by reference (see Section 5.5). Because tiering relies on 

previous analysis used to make a decision, you can only tier to a final document for which a 

decision was reached (i.e., through a FONSI or ROD). Tiering allows you to narrow the scope of 

the subsequent analysis, and focus on issues that are ripe for decision-making. Conversely, 

incorporation by reference only cites and refers to relevant material that helps provide foundation 

for your NEPA analysis but itself reaches no conclusion. You may only tier to EAs or EISs, but 

you may incorporate by reference from any type of document. All tiered documents must be 

listed in a bibliography (43 CFR 46.135(c)) and copies of tiered materials should be included in 

the decision file.

5.3 Adopting another Agency’s NEPA Document

“An agency may adopt a Federal Draft or Final [EIS] or portion thereof provided that the 

statement or portion thereof meets the standards for an adequate statement under these [the CEQ] 

regulations” (40 CFR 1506.3(a)). Adopting another agency’s EIS reduces paperwork, eliminates 

duplication, and makes the process more efficient. 

When available, OSMRE should use existing NEPA documents and analyses to evaluate the 

impacts of a proposed action and any alternatives. OSMRE may adopt an EA or EIS prepared by 

another agency or entity, including an applicant, as the basis for an OSMRE decision if the 

document meets all NEPA requirements applicable to OSMRE and OSMRE takes full 

responsibility for its content. When determining whether an existing EA or EIS is sufficient for 

purposes of an OSMRE action under consideration, OSMRE must consider whether new 

circumstances, new information, or changes in the action or its impacts not previously analyzed 

may result in different significant environmental effects. After a legal and technical adequacy 

review is completed, you may determine that it is appropriate for OSMRE to adopt the other 

agency’s original document. If you do not determine it to be legally or technically adequate, you 

should not adopt another agency’s NEPA document (see Section 5.1.2). Adoption would require 

a decision document (a FONSI for an EA or a ROD for an EIS). [CEQ Guidance Regarding 

NEPA Regulations, 48 Fed. Reg. 34263 (July 28, 1983)]. 
5-7 

Scoping is not required when OSMRE adopts another agency’s EA or EIS (40 CFR 1506.3(c)). 

However, OSMRE is expected to consult, cooperate, and coordinate with other federal, state, 

local, and tribal governments and other bureaus and federal agencies whenever possible. 

Furthermore, when adopting another agency’s EA or EIS, OSMRE is responsible for providing 

the appropriate level of public review, as discussed further below, and for completing other 

required consultation processes (such as ESA Section 7, NHPA Section 106, and tribal 

consultations). 

If OSMRE is a cooperating agency in the preparation of an EIS or EA, we may adopt it without 

recirculating the EIS or EA if we conclude that our comments and suggestions have been 

satisfied (40 CFR 1506.3(c)). Under these circumstances, OSMRE must prepare a decision 

document (ROD or FONSI) and a NARF. Once these documents are signed and a decision 

issued, the materials must be placed on OSMRE’s website. A public notification campaign is not 

required once these documents are issued. In certain limited circumstances, we must publish or 

otherwise make the FONSI available for public review for thirty days (see Chapter 9). The ROD 

and notice of adoption must be filed with EPA. This filing is not an opening of a public comment 

period. EPA’s website contains information about how to file an adoption notice. 

In accordance with the Secretary’s Streamlining Initiative, a ROD briefing must be completed 

following steps 1 (Initial Action Notice) and 6 (ROD and NOA Clearance) as outlined in the 

April 27, 2018 DOI Clearance Memorandum. If the document being adopted is the subject of 

ongoing legal action, the ROD or FONSI must disclose this to the public. This would not 

preclude OSMRE from adopting the document unless a legal proceeding has issued a “stay” or 

decision to vacate the current NEPA analysis.

If the OSMRE is not a cooperating agency in the preparation of an EIS, we may adopt it after 

recirculating the document consistent with the following requirements: 

● OSMRE may adopt a federal Draft or Final EIS or portion thereof provided that the EIS 

or portion thereof meets the standards for an adequate statement under these regulations 

(40 CFR 1506.3(a)).

● OSMRE may adopt the EIS after recirculating the document as a Final EIS if the 

proposed action is substantially the same as the action covered by the other agency’s EIS. 

When recirculating the Final EIS, we must identify the agency’s preferred alternative (40 

CFR 1506.3(b)). 

● If OSMRE participated as a cooperating agency, OSMRE may adopt without 

recirculating the EIS of a lead agency when, after an independent review of the EIS, 

OSMRE concludes that its comments and suggestions have been satisfied. OSMRE is 

then required to issue its own ROD (40 CFR 1506.3(c)).

If OSMRE is not a cooperating agency in the preparation of an EA, we may adopt it after 

recirculating the document if OSMRE determines it meets the standards for an adequate NEPA 

analysis and the proposed action is substantially similar to the action covered by the other 

agency’s EA. 
5-8 

If OSMRE decides to adopt an EIS that is not final by the lead agency that prepared it or if the 

action the EIS assesses is the subject of a CEQ agency referral or if the adequacy of the EIS is 

the subject of judicial action that is not final, OSMRE must indicate this status in the recirculated 

Draft and Final EIS (40 CFR 1506.3(d)). 

5.4 Supplementing an EA or EIS

Supplementing an existing document is a form of tiering (40 CFR 1508.28(b)). You must prepare 

a supplement to a Draft or Final EA or EIS if, after circulation of the Draft or Final but before 

initiation of the Federal action:

● Substantial changes are made to the proposed action that are relevant to environmental 

concerns (40 CFR 1502.9(c)(1)(i));

● A new alternative is added that is outside the spectrum of alternatives already analyzed 

(see Question 29b,CEQ, Forty Most Asked Questions Concerning CEQ's NEPA 

Regulations, March 23, 1981); or

● There are significant new circumstances or information relevant to environmental 

concerns and bearing on the proposed action or its effects (40 CFR 1502.9(c)(1)(ii)).

A supplemental EA or EIS must provide a basis for rational decision-making and give the public 

and other agencies an opportunity to review and comment on the analysis of the changes or new 

information (40 CFR 1502.9(c)(4)). Supplementing is used to meet the purposes of the NEPA as 

efficiently as possible, avoiding redundancy in the process. 

5.4.1 When Supplementation Is Appropriate

“Substantial changes” in the proposed action may include changes in the design, location, or 

timing of a proposed action that are relevant to environmental concerns (i.e., the changes would 

result in significant effects outside of the range of effects analyzed in the EA or Draft or Final 

EIS).

“New circumstances or information” are “significant” and trigger the need for supplementation if 

they are relevant to environmental concerns and bearing on the proposed action and its effects 

(i.e., if the new circumstances or information would result in significant effects outside the range 

of effects already analyzed). New circumstances or information that trigger the need for 

supplementation might include the listing under the Endangered Species Act of a species that 

was not analyzed in the EIS; development of new technology that alters significant effects; or 

unanticipated actions or events that result in significant changed circumstances, rendering the 

cumulative effects analysis inadequate. Adding a new alternative requires preparation of a 

supplement if the new alternative is outside the spectrum of alternatives already analyzed and not 

a variation of an alternative already analyzed.

5.4.2 When Supplementation Is Not Appropriate

Supplementation is not necessary if you make changes in the proposed action that are not 

substantial (i.e., the effects of the changed proposed action are still within the range of effects 
5-9 

analyzed in the Draft or Final EIS). 

If a new alternative is added after the circulation of a Draft EIS, supplementation is not necessary 

if the new alternative lies within the spectrum of alternatives analyzed in the Draft EIS or is a 

minor variation of an alternative analyzed in the Draft EIS. In such circumstances, the new 

alternative may be added in the Final EIS. 

EXAMPLE

A Draft EIS for a mining plan analyzed the effects of surface mining conducted within a permit 

boundary of 500, 1,000, and 5,000 acres of a 10,000 lease area. The addition of a 3,000-acre 

alternative could be analyzed in the Final EIS without a supplemental Draft EIS because it is 

within the scope of the original 5,000 acre alternative.

Supplementation is not appropriate when new information or changed circumstances arise after 

the Federal action has been implemented. If the new information or changed circumstances 

impedes the use of the EIS for subsequent tiering for future decision-making, prepare a new EIS 

or EA and incorporate by reference relevant material from the old EIS.

5.4.3 The Supplementation Process 

Supplemental EAs or EISs will vary in scope and complexity depending upon the nature of the 

proposed changes or new information or circumstances. Supplemental EISs are prepared, 

circulated, and filed with the same requirements as EISs, except that supplemental EISs do not 

require scoping (40 CFR 1502.9). The supplement may incorporate by reference the relevant 

portions of the document being supplemented or may circulate the entire original document 

along with the supplement. 

When a supplement is prepared after circulation of a Draft EIS, but before preparation of a Final 

EIS, you must prepare and circulate a Supplemental Draft EIS and then prepare a Final EIS. 

When a supplement is prepared after circulation of a Final EIS, you must prepare and circulate a 

Draft Supplemental EIS and then prepare and circulate a Final Supplemental EIS, unless 

alternative procedures are approved by CEQ (40 CFR 1502.9(c)(4)). Consult with the OPEC and 

the Office of the Solicitor before proposing alternative arrangements to the CEQ. Similar 

procedures are warranted for supplemental EAs.

5.5 Incorporation by Reference

Incorporation by reference is the citation and summary of reasonably available material that 

addresses actions, issues, resources, or impacts that are relevant to the actions under 

consideration in your NEPA review. Incorporation by reference allows such material to be 

briefly summarized rather than extensively repeated in the NEPA document. The purpose of 

incorporation by reference is to “cut down on bulk without impeding agency and public review 

of the action” (40 CFR 1502.21). Incorporation by reference can be useful to help reduce the 

overall number of pages of a NEPA document and maintain the project schedule. 

Many different types of material may be incorporated by reference, including written material of 
5-10 

all kinds, conversations, taped public meetings or workshops, etc. Specific examples of materials 

that might be incorporated by reference into a NEPA document include other NEPA documents, 

species lists relevant to the project area, scientific studies, monitoring data, and environmental 

reviews prepared by state and local governments. For material to be incorporated by reference, 

the analysis and assumptions used in the incorporated document must be appropriate for the 

analysis at hand (43 CFR 46.135(a)). In addition, the incorporated material must be “reasonably 

available for inspection by potentially interested persons within the time allowed for comment” 

on the NEPA document (40 CFR 1502.21). There are many options available to make referenced 

material readily available, such as placing material on OSMRE’s website (preferred option), 

notifying the public that the referenced material is available at an OSMRE office upon request, 

and placing materials in local libraries or facilities accessible to the public. OSMRE must make 

every effort to ensure that materials are available to Environmental Justice communities 

(including translated materials when appropriate) and making documents 508 accessible. 

OSMRE should also make every effort to place incorporated materials on OSMRE’s website and 

refer the public to an OSMRE office, library, or facility only when absolutely necessary. 

Material that is not or cannot be made reasonably available, such as proprietary information, may 

not be incorporated by reference (40 CFR 1502.21). 

Incorporating by reference is accomplished through two steps: (1) citing the incorporated 

material, and (2) summarizing its content. Citation consists of identifying the material in as 

specific a manner as possible to inform the reader of what material is being incorporated. 

Summarizing the material consists of briefly describing its content and placing the material and 

its use in the context of your specific NEPA review. Citations of specific information or analysis 

from incorporated material should include pertinent page numbers or other relevant identifying 

information (43 CFR 46.135(b)). All documents incorporated by reference must be listed in a 

bibliography (43 CFR 46.135(c)) and copies of materials incorporated by reference should be 

included in the decision file. OSMRE can incorporate by reference existing NEPA and nonNEPA technical environmental documents by other Federal agencies within and outside DOI as 

well as those prepared by the State Regulatory Authorities or other entities.
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Table 5-2. When to Use Tiering, Adoption, Supplementation, and/or Incorporation by 

Reference

Question If response is Yes, the Entire 

Proposed Action is Covered

If response is Yes, Part of the 

Proposed Action is Analyzed in a 

Previous NEPA Document

If response 

is No

Is there an existing 

programmatic or broadscale NEPA document that 

includes all or part of the 

proposed action?

For an OSMRE prepared 

NEPA document the project 

manager should use a NEPA 

Adequacy Review Form to 

document and no additional 

NEPA is required.

For a non-OSMRE prepared 

NEPA document, OSMRE 

may adopt the other agencies 

NEPA document. See sections 

5.3 for differences when 

OSMRE is a cooperating 

agency. 

Tiering and incorporation by 

reference may be an option. These 

options would allow OSMRE to 

focus on the site-specific impacts of 

the proposed action and incorporate 

by reference all previous analysis 

that is still applicable.

In the tiered document, you do not 

need to reexamine alternatives 

analyzed in the broader document. 

Focus the tiered document on those 

issues and mitigation measures 

specifically relevant to the narrower 

action but not analyzed in sufficient 

detail in the broader document.

OSMRE 

must prepare 

an EA or EIS

Is there an existing NEPA

document (EA or EIS) that 

includes an analysis of the 

entire proposed action?

OSMRE may adopt the other 

agencies NEPA document. If 

OSMRE is a cooperating 

agency, OSMRE is not 

required to recirculate the 

Final EIS and may issue their 

own ROD (including filing the 

ROD with EPA). 

If OSMRE is not a 

cooperating agency, OSMRE 

is required to recirculate the 

Final EIS and issue their ROD 

no earlier than 30 days after 

the recirculation of the Final 

EIS.

Although allowed to adopt in part 

under CEQ regulations, it is 

recommended that OSMRE prepare 

an EA or EIS incorporating by 

reference all previous analysis that 

is still applicable. 

OSMRE 

must prepare 

an EA or EIS

Have there been substantial 

changes or new 

information/circumstances 

regarding an OSMRE 

proposed action?

If there have been substantial 

changes to all of the proposed 

action or new 

information/circumstances that 

would change the previous 

significance determinations 

made in NEPA documents a 

supplemental NEPA analysis 

would be required. 

Supplementation is not 

appropriate when new 

information or changed 

circumstances arise after the 

Federal action has been 

implemented.

Even if only a portion of the 

proposed action has been 

substantially changed or there is 

new information/circumstances 

surrounding a portion of the 

proposed action a supplemental 

NEPA analysis is likely required. 

Supplementation is not appropriate 

when new information or changed 

circumstances arise after the Federal 

action has been implemented.

OSMRE 

must prepare 

an EA or EIS
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List of Appendices

Appendix 5.1 NEPA Adequacy Review Form
6-1 

CHAPTER 6: CATEGORICAL EXCLUSIONS

Categorical exclusions (CEs), also commonly abbreviated as CXs or CATEXs, are categories of 

actions that federal agencies have determined do not have a significant effect on the quality of 

the human environment (individually or cumulatively) and for which, therefore, neither an EA 

nor an EIS is required (40 CFR 1508.4). Use of a CE does not make a proposed action exempt 

from NEPA; instead, a CE is a form of NEPA compliance that does not require the level of 

analysis contained in an EA or an EIS (43 CFR 46.205(a)). Even if an action is ordinarily 

covered by a CE, a CE cannot be used if an extraordinary circumstance exists. In addition, a CE 

does not exclude compliance with other statutory requirements, such as the Endangered Species 

Act, the National Historic Preservation Act, and tribal consultation. 

To reduce delay, applicable CEs should generally be used to provide NEPA compliance for a 

proposed project (40 CFR 1500.5(k)). However, you may prepare an EA or EIS for a proposed 

action that would otherwise be subject to a CE if you believe that an EA or EIS would be helpful 

in planning or decision-making (40 CFR 1501.3) or if there is a high level of public interest in 

the project. You may seek the input of other federal and state agencies or the public (for 

example, through notification or scoping) before deciding whether to apply a CE. Public and 

external agency comments may be valuable in determining whether an extraordinary 

circumstance exists that would prevent the use of a CE or whether, despite the potential for using 

a CE, the decision-maker would benefit from an EA or EIS. You will need to provide 

documentation in the decision file that explains your rationale for completing an EA when a CE 

could be used. 

6.1 Does a Departmental or OSMRE Categorical Exclusion Apply to the Action? 

In order for a proposed federal action utilize a CE, you must verify that the proposed action fits 

within at least one Departmental CE (43 CFR 46.210) or an OSMRE CE (516 DM 13.5). Also, 

see Appendix 6.1 and 6.2. 

CEs are specific, and you will need to clearly demonstrate that one of the CEs applies to project 

or proposal before using it. If more than one CE applies to a project, you should select the CE 

that most closely matches the objectives of the proposed action and is the most specific. (For 

additional information to assist in determining if an EA or EIS would be more beneficial to the 

decision-maker, see Appendix 6.3) 

6.2 Identifying Extraordinary Circumstances

Extraordinary circumstances preclude the use of a Departmental or OSMRE CE. Extraordinary 

circumstances are those circumstances for which the Department has determined that further 

environmental analysis is required for an action, and, therefore, an EA or EIS must be prepared 

(43 CFR 46.202(c)(1)). All categorically excluded actions must be reviewed to determine if any 

of the extraordinary circumstances apply. See 43 CFR 46.215 (see Appendix 6.4) for the list of 

extraordinary circumstances.
6-2 

If any of the extraordinary circumstances apply to the proposed action, you will determine 

whether the proposal can be modified to alleviate or resolve the circumstances that are 

considered extraordinary. If this can be done, and the proponent agrees to the change, then the 

proposed action may be modified and categorically excluded. If the proposed action cannot be 

modified or the proponent refuses to accept a proposed change, you will prepare an EA or EIS. If 

an extraordinary circumstance indicates there are significant effects, then an EIS must be 

prepared (see Chapter 2 for a discussion of significance determination). 

Some actions may require considerable review to determine whether any extraordinary 

circumstances apply. For example, a significant impact on a threatened or endangered species is 

an extraordinary circumstance (see 43 CFR 46.215). It might be readily determined that an action 

would have some effect on a threatened or endangered species; however, determining whether 

that effect would be significant might require considerable review. If there is uncertainty about 

whether one or more of the extraordinary circumstances apply, we recommend that you prepare 

an EA to determine whether an EIS is required. 

If none of the extraordinary circumstances apply to the proposed action (or modified action), 

then it may be categorically excluded. You will need to provide documentation in the decision 

file that explains your rationale explaining why each of the extraordinary circumstances do not 

apply. 

6.3 Documentation and Notification Requirements

For actions covering AML (see Appendix 6.5 for instructions for determining when a categorical 

exclusion applies and Appendix 6.6 for the AML Categorical Exclusion Determination Form) 

and mine-specific projects that are categorically excluded, you will need to document which 

categorical exclusion applies. For actions requiring documentation, the documentation should 

explain how the project falls within the applicable CE and the lack of extraordinary 

circumstances and be placed in the project Decision File. 

Other actions and programs will generally not require documentation. These include, but are not 

limited to:

● Actions with no environmental effects (e.g., assessment of civil penalties (516 DM 

13.5(B)(16)); issuance of cessation orders for coal mining and reclamation operations 

(516 DM 13.5(B)(18)), annual grants programs to States for program development, 

administration, and enforcement (516 DM 13.5(B)(23)); personnel actions (43 CFR 

46.210(a));

● Routine financial transactions (43 CFR 46.210(c), see also, e.g., collection of reclamation 

fees (516 DM 13.5(B)(4)); and 

● Actions with negligible environmental effects (e.g., findings of fact and entries on land 

adversely affected by past coal mining (516 DM 13.5(B)(5)), routine inspection and 

enforcement activities (516 DM 13.5(B)(14)); nondestructive data collection, inventory 

(including field, aerial, and satellite surveying and mapping), study, research, and 

monitoring activities) (43 CFR 46.210(e)).
6-3 

As stated in CEQ’s Memorandum for Heads of Federal Departments and Agencies (2010), 

Establishing, Applying, and Revising Categorical Exclusions under the National Environmental 

Policy Act, CEQ strongly recommends that “agencies post key information about their NEPA 

procedures and implementation on a publicly available website. The website should include, 

among other things, information on agencies’ use of categorical exclusions for proposed actions, 

particularly in those situations where there is a high level of public interest in a proposed action”. 

Accordingly, for transparency it is recommended that the public be notified of your decision to 

use a CE, especially if there is public interest in your action. 

 

6.4 Periodic Review of Categorical Exclusions and Extraordinary Circumstances 

OSMRE will review its CEs and extraordinary circumstances every seven years (as 

recommended by CEQ) to avoid CEs from becoming outdated and to add new CEs and 

extraordinary circumstances as appropriate. If you identify CE or extraordinary circumstances 

that need updating or removal or believe a new CE or extraordinary circumstance should be 

added, please notify the HQ NEPA Coordinator (s) to facilitate this review.

List of Appendices

Appendix 6.1 Department of Interior Categorical Exclusions (43 CFR 46.205) 

Appendix 6.2 OSMRE Categorical Exclusions (516 DM Chapter 13) 

Appendix 6.3 Things to Consider When Determining Whether an EA or EIS is 

Appropriate 

Appendix 6.4 Extraordinary Circumstances (43 CFR 46.215) 

Appendix 6.5 AML Program-Specific Instructions for Categorical Exclusion 

Determination

Appendix 6.6 AML Categorical Exclusion Determination Form
7-1 

CHAPTER 7: CONSIDERATIONS BEFORE DOCUMENT PREPARATION

OSMRE has identified best practices for gathering information, coordinating with stakeholders, 

and preparing document drafts before initiating the formal NEPA process (i.e., before the official 

NEPA commencement date outlined in S.O. 3355 and Additional Direction for Implementing 

Secretary’s Order 3355 Regarding Environmental Assessments). Best practices include:

● Identifying Project Team members (section 4.3.2 Project Team Members), at the start of 

all projects requiring either an EIS or an EA;

● Early interagency or intergovernmental coordination and consultation; 

● Establishing a public involvement plan before beginning the formal NEPA process; and 

● Identifying potentially affected resource areas to help guide preliminary data collection, 

analysis, and document drafting. 

It is up to the Project Manager and decision-maker to determine which, if any, of the best 

practices outlined in this chapter are useful before initiating a project.

7.1 Early Coordination and Consultation 

Early coordination and consultation is the process of gathering internal and external input on the 

issues, impacts, and potential alternatives that may be considered. Formal or informal, early 

coordination and consultation are critical to identifying actions by others that you may need to 

consider and will help you identify the geographic and temporal boundaries, potential 

alternatives, baselines, and thresholds. A variety of federal, state, and local environmental 

reviews exist that have, or may be occurring, at a similar location as the project you are 

evaluating. Important early considerations are actions that have, are, or may be related or have 

applicability under peripheral environmental laws, regulations, and executive orders other than 

NEPA (see Chapter 1 and 4). 

OSMRE should identify points of contact at federal, state, and tribal agencies that are involved 

with the project or have particular expertise, including potential cooperating agencies. OSMRE 

should also identify points of contact at agencies that have worked with the project proponent on 

activities similar to the proposed action. OSMRE should invite participation by these identified 

points of contact and execute MOUs as necessary. Keep in mind that cooperating agency MOUs 

between DOI agencies are no longer necessary unless exceptional circumstances exist per the 

Department’s June 11, 2018 Standardized Intra-Department Procedures Replacing Individual 

Memoranda of Understanding for Bureaus Working as Cooperating Agencies. 

The responsible OSMRE official may develop an agreement with a state or Indian tribe to 

coordinate with all or some of the federal agencies that have expertise or jurisdiction in related 

environmental laws and to document the results. An OSMRE official must carry out certain 

consultations with other federal agencies, required by laws outside of NEPA, when necessary. If 

a state or tribal agency will be the primary NEPA project manager, the responsible official must 

ensure the consultation occurs properly and the results are documented as part of the project 

submittal to OSMRE. 
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Some consultations, such as consultation under Section 7 of the Endangered Species Act, cannot 

be delegated to a state or tribal agency, and some of those consultations can substantively affect 

the NEPA process. For example, the U.S. Fish and Wildlife Service could issue a biological 

opinion indicating jeopardy or adverse modification of critical habitat. Such a finding would 

indicate the potential for significant impacts and would therefore generally preclude the 

preparation of a FONSI. 

 

Similarly, if OSMRE, in consultation with the State Historic Preservation Office (SHPO)/Tribal 

Historic Preservation Office (THPO), determines that a historic property may lose its eligibility 

for inclusion in the National Register as a result of a proposed action, or if OSMRE and the 

SHPO/THPO do not agree on mitigation of an adverse effect to a historic property, preparation 

of a FONSI may be precluded. A FONSI can however, always be prepared as long as the 

proposed action is modified to avoid any potentially significant impacts (also known as the 

mitigated FONSI). In this example, a mitigated FONSI could contain mitigation measures 

sufficient to allow: 

● The U.S. Fish and Wildlife Service biological opinion to no longer indicate jeopardy or 

adverse modification of critical habitat, and

● The SHPO/THPO to agree that mitigation of adverse effects to historic properties was 

sufficient and the action would not result in a historic property losing its eligibility for 

inclusion in the National Register.

In addition, with regard to Indian sacred sites, as defined by E.O. 13007 (Indian Sacred Sites) 

and 512 DM 3 (Departmental Responsibilities for Protecting/Accommodating Access to Indian 

Sacred Sites), the FONSI must include a statement that no impacts that would adversely affect 

the physical integrity of such sites will occur and access to, or ceremonial use of, such sites 

would not be restricted, or a statement describing the anticipated effects or restrictions. The 

statement should also include information on the Indian sacred site, including access. If impacts 

are anticipated, an explanation must also be provided as to why such impacts cannot be avoided 

in accordance with E.O. 13007. 

The document should include similar information for environmental justice (E.O. 12898, 

Environmental Justice). 

7.1.1 Consultation with Tribal Governments 

It is important to engage in early consultation with tribal governments, for any proposed action 

that might have an effect on an Indian tribe; this will help you identify any potential issues 

before the formal NEPA process begins. As mandated by the U.S. Constitution and federal 

treaties, statutes, executive orders, and Departmental and bureau policies, OSMRE must engage 

with Indian tribes on a government-to-government basis. Federal agencies must meet this 

obligation through early, often and meaningful consultation with Indian tribes. If an OSMRE 

decision would have substantial effects on one or more Indian tribes, on the relationship between 

the federal government and Indian tribes, or the distribution of power and responsibilities 

between the federal government and Indian tribes, OSMRE must initiate government-togovernment consultation with affected tribes. See E.O. 13175 and S.O. 3317. Government-to-
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government consultation typically takes place between the OSMRE Tribal Liaison Officer 

(TLO) and tribal leaders. Although E.O. 13175 only requires consultation under limited 

circumstances, OSMRE will, in general, consult with potentially affected tribal governments to 

the greatest extent practicable any time a proposal could affect those tribes. 

OSMRE Directive REG-18 sets forth OSMRE’s specific policies, procedures, and 

responsibilities for tribal consultation. Consultations with tribal governments must be open and 

candid so that all interested parties may evaluate, for themselves, the potential impact of the 

proposal on Indian lands and tribal trust resources. OSMRE will consult with Indian tribes as 

early as possible when considering an action with tribal implications. Requests for consultation 

will be made in writing by the TLO, or other appropriate individuals, and will describe the 

specific action with tribal implications. OSMRE may conduct a meeting or other forms of 

interaction with tribes in order to receive comments and evaluate them as part of the initial 

planning stage. In the event that an Indian tribe chooses not to engage the TLO, OSMRE is not 

relieved of its obligation to engage in consultation as described by OSMRE Directive REG-18. If 

OSMRE initiates consultation with a tribe but does not receive a response, OSMRE will make 

reasonable and periodic efforts to repeat the invitation and, whenever feasible, will allow an 

Indian tribe to join an ongoing consultation. These engagement efforts will be appropriately 

documented. OSMRE may use multiple methods to contact tribal government as needed, e.g., 

letters, phone calls, and potential third party connections such as the National Congress of 

American Indians. OSMRE will work with other federal agencies, where appropriate, to avoid 

duplicative consultations. 

7.2 Early Public Involvement Considerations 

The CEQ regulations require agencies to involve the public to the fullest extent possible in 

decisions that would have environmental impacts (40 CFR 1500.2(d)). OSMRE must always 

make a diligent effort to involve interested parties and the affected public (40 CFR 1506.6) in its 

analysis and document preparation. The level of public involvement varies with the different 

types of NEPA compliance and decision-making. Public involvement will begin early in the 

formal NEPA process and continue throughout the preparation of the analysis and the decision. 

Give careful thought to the level of public involvement that may be appropriate with respect to 

the decision to be made and the analysis of the environmental consequences of that decision. 

A primary goal of public involvement is to ensure that all interested and affected parties are 

aware of your proposed action. Knowing your community well is the first step in determining the 

interested and affected parties and tribes. You may already have a core list of those individuals 

and groups interested in and potentially affected by the OSMRE’s proposed actions; this may 

provide a good starting point. Work with your public affairs officer and other OSMRE staff, 

community leaders, and governmental agencies (federal, state, and local) to help determine 

interested and affected parties and tribes. In many cases, people attending field trips and public 

meetings will be interested or affected parties. Make sure that you have attendance sheets that 

capture contact information at your field trips and meetings; these will provide you with a list of 

people who may want to be contacted and involved in the NEPA process. In these cases, you 

should reach out to those individuals, parties, or tribes. 
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7.2.1 Public Involvement Plan

Consider providing public involvement opportunities very early in the process. It is helpful to 

prepare a public involvement plan that allows you to determine the appropriate amount and 

nature of public participation throughout the analysis process. We recommend that the public 

involvement plan identify: tribes, individuals, organizations, and other agencies known to be 

interested or affected by the proposed action; agencies with special expertise or jurisdiction by 

law; possible cooperating agencies; the role, if any, of the Interstate Mining Compact 

Commission (IMCC); schedules of any scoping opportunities, including public meetings, and 

timing of electronic and postal mail notifications; the process for tracking and recording public 

involvement and developing contact lists. Ensure the public involvement plan is sensitive to 

language or cultural differences. We recommend that you describe all planned activities in the 

public involvement plan and that the plan remain flexible as it will likely be updated throughout 

the formal NEPA process. Public involvement strategies must be coordinated with the OSMRE 

Office of Communications. For detailed information see “Public Involvement Plan” Example

(Appendix 7.1) and “Involving and Notifying the Public” (Appendix 7.2). 

7.3 Resources that May Be Affected by Your Project

Before beginning the NEPA process, you should systematically assess individual environmental 

resources that may be impacted by a proposed action. These considerations include indirect and 

cumulative factors or concerns that, when combined, could lead to resource effects. Assessing 

individual resources areas will allow you to evaluate essential information to help identify 

information you may already have, recognize information gaps, and determine how you will 

gather the additional necessary information before beginning the formal NEPA process. 

You should focus on environmental resources, factors, or concerns that need to be considered. 

You may not need to include resources that are not expected to be affected or you may decide to 

give these resources less consideration so as not to divert attention from issues that do require 

detailed analysis. You may want to consider the following environmental resources, factors, and 

concerns listed below when you determine the expected level of analysis for each resource. 

Keep in mind that you do not need to consider all the resources listed below for all projects. 

Conversely, this list is not all-inclusive, and you may want to evaluate additional resources for 

some projects, as appropriate:

● Air quality - National Ambient Air Quality Standards (NAAQS), visibility, Hazardous 

Air Pollutants (HAPs) and Greenhouse Gases (GHGs) and Climate Change;

● Socioeconomics (population, income, employment, housing, and sociocultural 

resources);

● Public services (infrastructure and resources needed for growth, e.g., transportation and 

utilities);

● Noise and ground vibration; 

● Recreational resources;

● Topography, geology and soils; 

● Hydrology (e.g., surface and groundwater quantity and quality, floodplains, wetlands); 
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● Land use (e.g., prime farmlands, wilderness areas, refuse lands, natural landmarks, 

ecologically significant areas);

● Vegetation, Fish and Wildlife Resources (e.g., threatened and endangered species and 

critical habitats);

● Historic and Cultural Resources (archeological, paleontological, religious, cultural etc., 

including Indian Trust responsibilities and sacred sites); 

● Aesthetics and Visual Resources;

● Environmental Justice; 

● Solid and Hazardous Wastes (coal mine waste, coal combustion residuals, etc.); and 

● Health and Public Safety (public access, blasting, use of public roads, subsidence, 

flooding, etc.). 

7.4 Best Practices for Data Collection

As appropriate for the specific project, the Project Manager will ensure the following 

information (as applicable to the project) is collected and available before beginning the formal 

NEPA process: 

● Clearly defined Proposed Action and Purpose and Need statement; 

● Confirm the goals for the Proposed Action are technically feasible and financially 

achievable; 

● Administratively complete Permit Application Package (applies to mining plans for 

federal coal);

● Technically adequate Permit Application Package (applies to permit applications in 

Washington, Tennessee and on Indian Lands) 

● Conflict of Interest statements and Completed Three-Party Agreements are in place, if 

NEPA will be prepared by a third-party contractor;

● Baseline surveys and mapping for project area, including potential buffer zones for 

certain resource areas (e.g., biological resources, water resources, etc.) with associated 

GIS data files;

● Preliminary alternative documentation of coordination with regulatory authorities, 

applicable state agencies, and the applicant including: technical and economically 

feasible alternatives considered previously by the applicant or other federal agencies with 

supporting studies, preliminary engineering reports, and other supporting information. 

For EAs: Documentation outlining the development of the Proposed Action; 

● Chronology and package of previously issued data files (including previous NEPA, 

SMCRA, and Mineral Leasing Act documentation for other associated federal actions, 

such as leasing, previous permits, previous commitments and consultations etc.) for mine 

operations including the proposed action; 

● List of anticipated project issues or concerns; 

● Methodology of technical studies with confirmation the data is available and meaningful 

evaluations of the effects are feasible, including the historical/projected data for end use 

of coal (coal combustion and coal ash); 

● Quality Assurance with OSMRE and any third-party contractor ensuring needed 

information is available from the most recent studies with a resolution plan for any data 

gaps;
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● Coordinated Work Plan with Approved Schedule, including defined critical paths, 

sufficient prioritized staff, communications, and consultation strategies (see Chapter 4);

● A NOI and OSMRE Federal Register publication approved through the current 

Department and OSMRE clearance process; and

● Drafts of sections of the document (where applicable) may be prepared when information 

is available.

List of Appendices

Appendix 7.1 Public Involvement Plan Example 

Appendix 7.2 Involving and Notifying the Public
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CHAPTER 8: NEPA ANALYSIS AND REVIEW PROCESS

This chapter outlines the steps of the NEPA analysis and review process. A variety of ways exist 

to comply with NEPA; the scope of your analysis and documentation will depend on your 

proposal and its environmental effects. This chapter is broadly focused on NEPA analysis, not on 

documentation requirements. This chapter describes NEPA concepts and outlines typical steps of 

the NEPA analysis. For detailed documentation and format requirements for EAs and EISs, see 

Chapter 9, Environmental Assessment and Chapter 10, Environmental Impact Statement. 

The steps of the NEPA analysis are much the same for all OSMRE actions, however, some 

programs have unique requirements. Program-specific requirements for AML, Federal Lands, 

Federal Regulatory Programs, Lands Unsuitable for Mining Petitions, and Experimental 

Practices are addressed in Chapter 3, Determining when NEPA Applies. Consult applicable 

program-specific guidance at the beginning of the NEPA process. 

It is important to establish the Project Team (including a Project Solicitor) that will provide the 

expertise to define both the proposed action and alternatives as well as the science underlying the 

NEPA analysis before beginning the analytical steps in Section 8.1 below. Refer to Section 4.3 

of this handbook for additional information on establishing interdisciplinary teams.

8.1 Outline of the Analytical Steps

The typical steps for NEPA analysis are as follows:

● Identify the purpose and need and describe the proposal to the extent known; 

● Develop a scoping strategy and conduct initial scoping; 

● Identify issues requiring analysis;

● Refine the proposed action; 

● Develop reasonable alternatives to the proposed action; 

● Identify, gather, and synthesize necessary data;

● Analyze and disclose the impacts of each alternative; and

● Identify potential mitigation measures to reduce adverse impacts.

Many of these steps are iterative; for example, developing alternatives may lead to the 

identification of additional issues requiring analysis. At several points in the process, you may 

need to return to an earlier step to make refinements. 

8.2 Purpose and Need

The CEQ regulations direct that an EIS “shall briefly specify the underlying purpose and need to 

which the agency is responding in proposing the alternatives including the proposed action” (40 

CFR 1502.13). The CEQ regulations also direct that EAs “shall include brief discussions of the 

need for the proposal....” (40 CFR 1508.9(b)).

Defining the purpose and need statement is a key step in the NEPA process because the purpose 

and need provides the foundation for determining which alternatives will be considered 
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reasonable and for selecting the preferred alternative (40 CFR 1502.13). It is important to 

develop a purpose and need statement that is clear, well-supported, and defensible. 

The CEQ regulations do not differentiate the “purpose” of the action from the “need” for the 

action. However, distinguishing the “purpose” and the “need” as two separate aspects of the 

purpose and need statement may help clarify why OSMRE is proposing an action. 

EXAMPLE

The “need” for modifications to our regulations on baseline data requirements might be that 

recent science has shown a potential impact from a parameter for which our current regulations 

do not require data; the “purpose” might be to ensure that sufficient data exists for the 

regulatory authority to make required decisions about permit approval. 

Another example, the “need” expressed for removing a highwall on an abandoned mine land site 

might be that the current conditions are dangerous because the highwall is adjacent to a public 

facility with uncontrolled access to the area; the “purpose” is to remove the danger that the 

highwall poses to the public.

Regardless of whether the “purpose” and the “need” are treated as distinct or synonymous, the 

purpose and need statement as a whole must describe the problem or opportunity to which 

OSMRE is responding and what the parties involved intend to accomplish by the action. The 

purpose and need is specific to OSMRE and not the project proponent’s purpose and need. 

8.2.1 The Role of the Purpose and Need Statement

A carefully crafted purpose and need statement can be an effective tool in controlling the scope 

of the analysis and thereby increasing efficiencies by eliminating unnecessary analysis and 

reducing delays in the process. The Office of the Solicitor will be consulted during the 

development of the purpose and need statement for an EIS and should be consulted, during the 

development of the purpose and need statement for an EA. 

The purpose and need statement defines the reasons for the action, helps identify what problems 

need a solution, and is the first step in developing a range of alternatives because action 

alternatives are not “reasonable” if they do not respond to the purpose and need for the action 

(see section 8.6.1, Reasonable Alternatives). The broader the purpose and need statement, the 

broader the range of alternatives that must be analyzed. However, agencies must not put forward 

a purpose and need statement that is so narrow as to “define competing ‘reasonable alternatives’ 

out of consideration (and even out of existence)” (CEQ Guidance).

EXAMPLE

In the highwall removal at an AML project, reasonable alternatives might include fencing the 

area instead of limiting alternatives to only the removal of the highwall. Depending upon the 

how broad the purpose and need statement is, a fencing alternative may or may not meet the 

purpose and need. 
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Draft the purpose and need statement early in the NEPA process. Including a draft purpose and 

need statement with scoping materials will help focus internal and external scoping comments. If 

necessary, you can reexamine and update your purpose and need statement after scoping and if 

additional needs are realized during the NEPA review. 

8.2.2 Identifying the Decision to be Made

You may include in the purpose and need statement a description of the decision(s) to be made 

based on the NEPA analysis. Tying the purpose and need of the proposal to the decision helps 

establish the scope of the NEPA analysis. A clear explanation of the decision(s) at hand is also 

helpful in public involvement; it helps to set expectations and explain the focus of OSMRE 

NEPA analysis. It is important to note the regulatory requirements for the decision to be made. 

For externally generated actions, the description of the decision(s) to be made helps differentiate 

your role in the action from the external proponent’s role. For NEPA documents prepared with 

cooperating agencies with jurisdiction by law, we recommend that you explicitly identify the 

decisions to be made by each agency (see Chapter 12 Coordinating with Cooperating Agencies, 

Joint Lead Agencies, and Advisory Committees during the NEPA Process). 

8.3 Scoping 

Scoping is the process of gathering internal (OSMRE) and external (other federal and State 

agencies, the public, and other interested stakeholders) input to identify issues, impacts, and 

potential alternatives that will be addressed during the NEPA process (40 CFR 1501.7). Scoping 

can be a useful tool for discovering alternatives to a proposal or potentially significant impacts 

that may have been overlooked. The scoping process stresses early consultation with resource 

agencies, other State and local agencies, tribal governments, and any federal agency whose 

approval or funding of the proposed project will be required for completion of the project. 

Scoping is considered an effective way to bring together and resolve the concerns of other 

agencies potentially affected by the project as well as other interested persons, such as the 

general public. Additionally, scoping can help provide a rationale for eliminating topics from 

further analysis (40 CFR 1500.4(g)).

Scoping for an EIS is a formal process that must be done in compliance with the specific 

requirements established in the implementing regulations for NEPA (see Section 10.3.1, 

Scoping). Formal scoping requirements do not apply to EAs or CEs; however, “scoping” in 

these contexts could be thought of as all of the interactions with external stakeholders, including 

potential informal public scoping (40 CFR 46.305(a)(2)). See section 9.3.1, Scoping for a 

discussion of when external scoping is appropriate for an EA. 

8.4 Issues

Although the CEQ regulations do not define this term, CEQ’s regulations often refer to “issues.” 

For example, in order to prepare NEPA documents that are “concise, clear, and to the point,” 

analyses must “focus on significant environmental issues and alternatives” and should be 

discussed in proportion to their significance (40 CFR 1501.7(a)(2), 40 CFR 1501.7(a)(3), 40 
8-4 

CFR 1502.1, 40 CFR 1502.2(b)). Similarly, NEPA reviews should focus on the issues that are 

truly significant to the action in question, “rather than amassing needless detail” (40 CFR 

1500.1(b)). Thus, the description of the affected environment must be no longer than is necessary 

to understand the effects of the alternatives. As such, insignificant issues or unaffected resources 

should only be discussed briefly to explain why further analysis is not warranted (40 CFR 

1502.2(b)). Discussion of both significant and insignificant issues should be written in plain 

language to be useful to both decision-makers and the general public.

Although not defined in the CEQ regulations, an issue: 

● has a cause and effect relationship with the proposed action or alternatives; 

● is within the scope of the analysis; 

● has not been decided by law, regulation, or previous decision; and 

● is amenable to scientific analysis rather than conjecture.

Identifying significant issues related to a proposed action is an important part of scoping (40 

CFR 1501.7(a)(3)). In the context of NEPA reviews, “issues” or “environmental issues” can be 

problems, concerns, conflicts, obstacles, or benefits that would result if the proposed action or 

alternatives, including the no-action alternative, are implemented. Issues point to environmental 

effects; as such, issues can help shape both the proposal and the alternatives. Issues may also 

lead to the identification of design features that are then incorporated into the proposed action or 

to development of mitigation measures (see Chapter 11). Identification and discussion of issues 

can greatly help to focus the discussion contained within the NEPA document and identify where 

greater analysis is warranted.

8.4.1 Identifying Issues for Analysis

Preliminary issues are frequently identified during the development of the proposed action 

through internal and external scoping. Additionally, other authorities that provide procedural or 

substantive responsibilities relevant to the NEPA process may help identify issues requiring 

analysis including, but not limited to, Endangered Species Act, Clean Water Act, National 

Historic Preservation Act. Issues not relevant to the proposal at hand should not be addressed. 

Issues may be raised by OSMRE, other agencies, tribal governments, or the public. You should 

use an interdisciplinary approach to identify issues during internal scoping and throughout the 

analysis. In many cases, it may be helpful to begin thinking about issues in terms of what 

resources would be affected by the proposed action and alternatives under consideration. 

Identifying issues will allow you to emphasize the important environmental concerns related to a 

proposal and will help focus your impact analysis. When describing issues, you should do so in 

terms of the relationship between the potential impacts of an action and specific resources that 

would be affected.
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As a general rule, issues should be retained for consideration and discussed in detail if: 

● the environmental impacts associated with the issue are central to the proposal or of 

critical importance; 

● a detailed analysis of environmental impacts related to the issue is necessary to make a 

reasoned choice between alternatives; 

● the environmental impacts associated with the issue are a big point of contention among 

the public or other agencies; or 

● there are potentially significant impacts to resources associated with the issue.

Public opposition to a project, when the environmental effects are relatively undisputed, should 

not be considered an environmental issue. However, if the public is opposed to a project because 

of concerns about certain environmental impacts, such as impacts to water quality or increased 

traffic in a neighborhood, the NEPA review should consider those issues. 

Ultimately, it is important for decision-makers and the public to be able to understand the 

impacts that each of the alternatives under consideration would have on specific resources. 

Therefore, even though a NEPA review should focus on significant issues, when preparing a 

NEPA document, you should clearly indicate those resources that would be affected by each 

issue and organize the discussions of the affected environment and environmental consequences 

by resource. 

EXAMPLE

OSMRE is analyzing the effects of proposed designation of an area as unsuitable for mining. 

“Wildlife” is not considered an issue – this is too broad for reasonable analysis, and it is not 

clearly related to the effects of the action. Instead, an explicit statement of one of the wildlife 

related issues might be: “Would prohibiting mining in the petition area cause more mining 

activity in designated critical habitat for a listed species outside the petition area?”

8.4.2 Issues Not Analyzed

If none of the considerations in Section 8.4.1 apply to an identified issue, you should dismiss it 

from detailed analysis. When dismissing an issue, you will indicate those specific resources or 

impact topics that were dismissed for that issue. While you may decide not to carry an issue 

forward for detailed analysis, environmental impacts to specific resources can still be discussed 

in some detail in your dismissal, as appropriate. The level of detail for a dismissal will vary 

according to the nature of the issue, but remember that the CEQ regulations emphasize that 

NEPA reviews should be focused on the important issues and that the treatment of issues 

dismissed should be limited to a brief discussion of why related environmental impacts do not 

warrant detailed analysis. 

8.5 Proposed Action

The CEQ regulations state that a “proposal” exists at that stage in the development of an action 

when an agency subject to NEPA 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 
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evaluated (40 CFR 1508.23). The phrase “proposed action” suggests that an identified need(s) is 

to be met via a proposed policy, plan, program, project, or permit. For example, where OSMRE 

is the regulatory authority, an administratively complete permit application may be considered a 

proposal; however, the proposed action would be developed through the review process and 

finalized with issuance of a permit after the application is considered technically adequate.

When developing the proposed action, it is important to understand how it will be used in the 

environmental analysis. A preliminary description of the proposed action can be used during 

scoping to focus public involvement. The proposed action is generally only one possible option 

to meet the purpose and need. Alternatives are also developed to meet the purpose and need of 

the proposed action. 

8.5.1 Description of the Proposed Action

A detailed description of the proposed action at the outset of the analysis process is beneficial for 

many reasons. Clearly described proposed actions can result in: 

● more focused and meaningful public input; 

● more focused and meaningful internal discussions; 

● more complete identification of issues;

● development of reasonable alternatives;

● sound analysis and interpretation of effects; 

● focused analysis; and

● a sound and supportable decision. 

Detailed descriptions of proposed actions typically include five elements: 

1. “Who” is the federal agency that is going to guide the analysis and make the decision. If 

there is more than one federal decision, there could be multiple federal agencies 

identified. Even for externally generated projects, such as mining plans or federal 

permitting, OSMRE will make the decision to recommend or authorize an action. For 

externally proposed projects, it is important to identify the external proponent and their 

role in implementing the decision.

2. “What” is the specific activity or activities proposed. You must provide sufficient detail 

in the description of the activities so that the effects of the proposed action may be 

compared to the effects of the alternatives, including the No Action alternative (40 CFR 

1502.14(b)). That comparison provides a clear basis for action chosen by the decisionmaker.

3. “How” relates to the specific means by which the proposal would be implemented. 

Include applicable project design features, including construction activities, operations, 

schedules, and sufficient history of proposal development. It may also be appropriate to 

include maps, photographs, and figures. Means, measures, or practices to reduce or avoid 

adverse environmental impacts may be included in the proposed action as design 

features.
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4. “When” is the timeframe in which the project will be implemented and completed. If the 

proposed action has identifiable phases, describe the duration of those phases. The timing 

related to monitoring is integral to the proposed action and should also be described. 

5. “Where” is the location(s) the proposed action will be implemented and should be 

described as specifically as possible. Provide maps at a relevant scale to support the 

narrative.

8.5.2 Defining the Scope of Analysis of the Proposed Action

After the initial development of the proposed action, evaluate whether connected or cumulative 

actions exist that must be considered in the same NEPA document (40 CFR 1508.25). In 

addition, evaluate whether similar actions exist that you wish to discuss in a single NEPA 

document. When defining the scope of a NEPA analysis, the CEQ regulations specify that 

agencies shall consider connected actions, cumulative actions, and similar actions in addition to 

the Federal action(s) that triggered the NEPA analysis.

Additionally, the defined scope may also depend on the level of federal “control” over any “nonfederal” aspects of the larger underlying project. When the components of the action, including 

those that are not under federal control, are highly interrelated and functionally interdependent, 

the entire project needs to be assessed under the NEPA mandate. Whether a non-federal activity 

is connected is highly fact-specific. If you are unsure, contact the Office of the Solicitor. 

8.5.2.1 Connected Actions

Connected actions are those actions that are “closely related” and should be analyzed in the same 

NEPA document (40 CFR 1508.25(a)(1)). Actions are connected if they automatically trigger 

other actions that may require an EIS; cannot or will not proceed unless other actions are taken 

previously or simultaneously; or if the actions are interdependent parts of a larger action and 

depend upon the larger action for their justification (40 CFR 1508.25(a)(1)). Connected actions 

are limited to actions that are currently proposed (ripe for decision). Actions that are not yet 

proposed are not connected actions but may need to be analyzed in cumulative effects analysis if 

they are reasonably foreseeable.

Connected actions, regardless of who proposes them, must be considered as part of the broader 

proposed action analyzed in a single NEPA document (40 CFR 1508.25(a)(1)). When the 

connected actions are the responsibility of a federal agency other than OSMRE, consider the 

timing of the other agency action and the capabilities of the other agency to act as a cooperating 

agency or joint lead agency (see Sections 12.1 and 12.3). 
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EXAMPLE

OSMRE proposes to approve a permit that allows surface mining, the coal from the action will 

be transported via railway. Any improvements or new construction such as a railroad spur to the 

transportation system by State or federal government entities that would not happen without this 

mining activity are considered connected actions and should be included in the proposed action. 

The non-OSMRE agencies involved should participate in the NEPA process of the proposed 

action as joint leads, where appropriate, or cooperating agencies.

Describe all connected actions and their relationship to the proposed action, including the extent 

to which the connected action and its effects can be prevented or modified by OSMRE decisionmaking on the proposed action. If timing or other reasons have resulted in the connected action 

being addressed in a separate NEPA document, it may be useful to incorporate by reference 

portions of the NEPA document completed for the connected action, if available, into the NEPA 

document of the proposed action. (See Section 5.5 for more information on incorporation by 

reference.)

8.5.2.2 Cumulative Actions 

Cumulative actions are proposed actions that potentially have a significant impact when 

considered together with other proposed actions and should be analyzed in the same NEPA 

document (40 CFR 1508.25(a)(2)).

If the cumulative action is an OSMRE or other federal proposed action, you may include both 

actions as aspects of a broader proposed action, analyzed in a single NEPA document, as 

described above for connected actions. 

EXAMPLE

OSMRE proposes reclamation of an abandoned mine land site to remove dangerous highwall 

conditions and improve the public safety and environmental conditions. The removal of the 

highwall requires site disturbance that would contribute sediment to a nearby stream. The site 

adjacent to the AML site is a public school facility that proposes to construct a new ballfield 

during the same timeframe that reclamation activities will occur at the AML site. The ballfield 

construction would contribute sediment to the same stream. The ballfield replacement and the 

AML project would therefore have cumulative impacts on the stream.

At a minimum, demonstrate that you have considered all cumulative actions in the NEPA 

document for the proposed action by describing the cumulative actions and analyzing the effects 

of the cumulative actions in the cumulative effects analysis of the proposed action. 

It may be useful to incorporate by reference portions of the NEPA document completed for the 

cumulative actions, if available, into the NEPA document for the proposed action. 

Non-federal actions which potentially have a cumulatively significant impact together with the 

proposed action, must be considered in the same NEPA document (40 CFR 1508.25). Identifying 

an action as a cumulative non-federal action is a component of your cumulative effects analysis 

of the proposed action. 
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8.5.2.3 Similar Actions

Similar actions are proposed or reasonably foreseeable federal actions that have similarities that 

provide a basis for evaluating their environmental consequences together with the proposed 

action (40 CFR 1508.25(a)(3)). Similarities are not limited to the type of action and can include 

common timing, geography, or purpose. 

EXAMPLE

OSMRE is required to evaluate a mining plan in accordance with the Mineral Leasing Act to 

provide a recommendation to the Assistant Secretary for Lands and Mineral Management on 

Federal lands. If two mining plans are identified within the same general area and considered 

to be reasonably foreseeable, OSMRE’s analysis could encompass both mining plans within the 

same NEPA analysis. Therefore, the NEPA analysis would be more comprehensive in evaluating 

all environmental consequences of the mining plans in the same analysis.

You may include similar proposed actions as aspects of a broader proposed action, analyzed in 

the same NEPA document if a single NEPA document would improve the quality of analysis and 

efficiency of the NEPA process, and/or provide a stronger basis for decision-making. 

Similar actions are those that can proceed independently from the proposed action. If other 

federal actions with a common timing or geography are interdependent with the proposed action, 

they are considered as connected actions. If other federal actions with common timing or 

geography have a cumulative effect together with the proposed action, they are considered as 

cumulative actions.

If you include similar actions as aspects of a broader proposal, analyzed in a single NEPA 

document, evaluate the purpose and need and the range of alternatives to ensure that they 

adequately address the similar actions.

8.6 Alternatives Development

The alternatives represent different means of solving problems and meeting the goals articulated 

in the purpose and need for the action. Alternatives are distinguished from each other based on 

differences in their approach to resolving the purpose and need for the action and the 

environmental impacts of implementing each of them. Alternatives should not be distinguished 

merely on differences in cost or technical elements.

8.6.1 Reasonable Alternatives 

Reasonable alternatives are those alternatives that meet the purpose and need for the action and 

are feasible (43 CFR 46.420(b)). An alternative is not considered reasonable if technical, 

economic, or jurisdictional obstacles make the ability to implement the alternative remote and 

speculative. 
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Reasonable alternatives must be rigorously explored and objectively evaluated during the 

decision-making process (40 CFR 1505.1(e); 43 CFR 46.420(c)). When developing alternatives, 

you should not exclude an alternative because it is not the easiest, cheapest, or most popular 

solution. An alternative is not rendered unreasonable simply because it would be challenging or 

expensive to implement. In some situations, it may be appropriate for you to consider a proposed 

action or alternative that may be outside OSMRE jurisdiction. 

For externally generated actions, the range of alternatives will typically include at least a No 

Action alternative that would proceed without approval of the proposed action, the applicant 

proposed alternative (proposed action), and other alternatives that would meet the purpose and 

need.

EXAMPLE

An EIS for a proposed mining plan modification has a purpose and need to determine whether to 

approve mining operations conducted in a certain manner on federal coal within the project 

area consistent with existing leases and the permit application package. The EIS may analyze the 

following alternatives: 

 • No Action, which would entail no new mining of federal coal beyond what is currently 

covered by the previous mining plan; 

 • The proponent’s proposal for revision of the mining plan; and 

 • The proponent’s proposal with additional or different design features to reduce 

environmental effects. This alternative would include design features that differ from the 

proponent’s proposal, such as alternative access routes, additional timing or spacing 

constraints, offsite mitigation, different methods for treating produced water, different 

planting and site preparation techniques during reclamation, or other technologies.

8.6.2 No Action Alternative 

A No Action alternative must always be evaluated. Because the No Action alternative is the basis 

to which all other alternatives are compared, it is often presented first, so the reader can easily 

compare the other alternatives to it. “No Action” represents a projection of current conditions 

and reasonably foreseeable actions to the most reasonable future responses or conditions that 

could occur during the life of the project without implementation of any action alternative. 

The No Action alternative provides a useful baseline for comparing environmental effects 

(including cumulative effects) and reveals the expected outcomes of the status quo or failure to 

meet the purpose and need of the action (see Section 9.4 for further discussion of the No Action 

alternative).

The No Action alternative should not automatically be considered the same as the existing 

condition of the affected environment because reasonably foreseeable future actions may occur 

whether or not any of the project action alternatives are chosen. When the No Action alternative 

is different from the existing condition, as projected into the future, the differences should be 

clearly defined. 
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The description of the No Action alternative depends on the type of action proposed: 

● For OSMRE-generated actions: the No Action alternative is maintaining the status quoto not take the action. For example, regulatory actions that propose to continue 

implementing the regulatory program but revise the regulations, either through regulatory 

revision or change in guidance or policy, should be treated as an action alternative, not as 

the No Action alternative.

● For externally generated proposals or applications: the No Action alternative is generally 

to reject the proposal or deny the application. (The sole exception may be for renewal of 

a SMCRA permit because the successive right of renewal in SMCRA means that the No 

Action alternative would be issuance of a new permit with the same terms and conditions 

as the expiring permit). The analysis of the No Action alternative must only analyze what 

is reasonably foreseeable if the application is denied (see Question 3, CEQ, Forty Most 

Asked Questions Concerning CEQ's NEPA Regulations, March 23, 1981).

The No Action alternative may constitute a benchmark at one end of the spectrum of alternatives. 

Therefore, defining the No Action alternative might require reference to the action alternatives 

that will be analyzed. A No Action alternative that is outside of OSMRE jurisdiction or contrary 

to law or regulation might be useful to consider as a baseline for comparison. The analysis of 

such an alternative provides a benchmark, enabling decision-makers to compare the magnitude 

of environmental effects of the action alternatives (see Question 3, CEQ, Forty Most Asked 

Questions Concerning CEQ's NEPA Regulations, March 23, 1981).

EXAMPLE

When revising a permit for an active operation, the revision application does not include design 

features that would return the permitted area to approximate original contour. This revision 

application has a deficiency. Analysis of the application package including the cut and fill 

grading plan, with the approximate original contour deficiency, may provide useful insight 

between the action alternatives under consideration and the No Action because an explanation 

will need to be provided to explain how the action alternative was developed including the 

resolution of the approximate original contour deficiency.

If the proposal is to improve existing conditions, the impacts of No Action are particularly 

important to describe because they help to define the need for OSMRE action. If implementing 

the No Action alternative would “result in predictable actions by others,” this impact should be 

part of the effects of No Action (see Question 3, CEQ, Forty Most Asked Questions Concerning 

CEQ's NEPA Regulations, March 23, 1981).
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EXAMPLE

If your document analyzes the impact to wildlife of a proposal to reclaim an abandoned mine site 

that has re-vegetated and is currently supporting wildlife use, the impacts to wildlife of No 

Action (e.g., from the vegetation remaining undisturbed by construction and wildlife continuing 

to use the site) are distinctly different from the temporary impacts that would occur during the 

clearing, site work, and replanting of the site under the reclamation project. Compared with the 

expected impacts of the proposed action, the unreclaimed site in the first case may have less of a 

temporary adverse impact than in the second but would probably have less beneficial impact 

over the long-term.

Impacts of No Action also provide an assessment of absolute, or total, impact to a resource. In 

the example above, the impacts of the proposed reclamation project, when added to those of 

habitat enhancement projects nearby, may provide greater benefits for wildlife than the proposed 

reclamation project by itself.

Accurately and completely describing existing impacts is critical to understanding the context, 

duration, and intensity of new impacts. For this reason, all OSMRE EISs and EAs must contain a 

full analysis of the No Action alternative even when no other unresolved or resolved conflicts 

exist concerning alternative uses of available resources that may require consideration of 

additional alternatives.

8.6.3 Alternatives Considered but Eliminated from Detailed Analysis

If you consider alternatives during the NEPA analysis but opt not to analyze them in detail, you 

must identify those alternatives and briefly explain why you eliminated them from detailed 

analysis (40 CFR 1502.14). If an alternative is proposed by the public or another agency, explain 

why you eliminated that alternative from detailed analysis. We recommend you do the same in 

an EA.

You may eliminate an action alternative from detailed analysis if it:

● is ineffective (it would not respond to the purpose and need); 

● is technically or economically infeasible (consider whether implementation of the 

alternative is likely given past and current practice and technology; this does not require 

cost-benefit analysis or speculation about an applicant’s costs and profits); 

● is inconsistent with the basic policy objectives for the management of the area (such as, 

not in conformance with surface owner’s land management plan); 

● is speculative or remote in its implementation; or

● is substantially similar in design or effects to an alternative that is analyzed.

8.7 Affected Environment and Use of Relevant Data 

The affected environment serves as the baseline for predicting changes to the human 

environment that could occur if any of the alternatives under consideration, including the No 

Action alternative, are implemented. The affected environment is separate and distinct from the 

No Action alternative, and it too, must be based upon relevant data. 
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8.7.1 Affected Environment

The affected environment section succinctly describes the existing condition of the human and 

natural environment that may be affected by implementing the proposed action or an alternative. 

The CEQ regulations defines “human environment” to include the natural and physical 

environment and the relationship of people with that environment; the term broadly relates to 

biological, physical, social, and economic elements of the environment (40 CFR 1508.14). Your 

descriptions of the specific elements should be quantitative wherever possible and be of 

sufficient detail to serve as a baseline against which to measure the potential effects of 

implementing an action. 

The affected environment section is defined and limited by the identified issues. In other words, 

there is no need to discuss a resource in the affected environment unless it is directly or 

indirectly related to an identified issue or a major resource that could be affected. 

Describe the baseline condition of the affected resources within the identified geographic scope 

to provide a reference condition for the cumulative effects analysis. The boundaries of the 

geographic scope will vary depending on the resource under consideration. For example, you 

should base the spatial extent of the wildlife resource discussion on the species and habitats 

present within the defined geographic scope but the area of concern for the water quality 

discussion may be a larger, smaller, or different geographic area and may be confined to a 

particular watershed.

Identifying past and ongoing actions that have contributed to existing conditions will be helpful 

in the cumulative effects analysis. Additionally, identify any applicable regulatory thresholds and 

characterize what is known about stresses affecting the resources and biological or physical 

thresholds. These biological or physical thresholds are often poorly understood. It is helpful to 

identify, as part of the analysis, the resource threshold conditions beyond which change could 

cause significant impacts, although it may not be possible for many resources due to incomplete 

or unavailable information (40 CFR 1502.22). 

Your descriptions of the affected environment must be no longer than is necessary to understand 

the effects of the alternatives. The level of data and analyses in a statement must be 

commensurate with the importance of the impact; with less important material, you may 

summarize, consolidate, or simply reference the material (40 CFR 1502.15).

Below are two examples from a mining plan decision document that addressed the affected 

environment as it relates to prime farmland soils. The first example provides too much irrelevant 

detail; while the second is a streamlined version that provides just the necessary information. 
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LONG EXAMPLE

Existing soil resources within the proposed project area are mapped by the United States 

Department of Agriculture–Natural Resources Conservation Service (NRCS) as CarnasawClebit 8 to 30 percent slopes, Carnasaw-Clebit –Pickens 30 to 45 percent slopes, CarnasawPirum complex 3 to 8 percent slopes, Carnasaw-Pirum-Clebit 3 to 12 percent slopes, Counts silt 

loam 1 to 3 percent slopes, Neff and Rexor silt loams, frequently flooded, Shermore fine sandy 

loam, and Stigler silt loam 1 to 3 percent slopes. Only Caransaw-Clebit, Caransaw-Clebit –

Pickens, Neff and Rexor silt loams, Shermore fine sandy loam, and Stigler silt loam are located 

within the area to be disturbed. Carnasaw-Pirum complex, Carnasaw-Pirum-Clebit, and Counts 

silt loam are located within the permit boundary, but outside the disturbance boundary, and 

should not be impacted. 

The most common use of the soil mapping units in the permit is undeveloped woodland. None of 

the soils show signs of recent intensive management. 

Even though the NRCS classifies Stigler silt loam as Prime Farmland (PFL) soil, this soil has a 

“negative determination” for SMCRA prime farmland reclamation requirements. Prime 

farmland is defined at 30 CFR 701.5 as “lands which are defined by the Secretary of 

Agriculture...and which have historically been used as cropland.” Land historically used for 

cropland is defined under the same section as “lands that have been used for cropland for any 5 

years or more out of 10 years immediately preceding the acquisition...of the land for the purpose 

of conducting or allowing...the conduct of surface coal mining and reclamation operations....” 

State regulation parallels these definitions. This soil has not been recently managed as cropland. 

None of the soils in the proposed project have cropland as a pre-mining or post-mining land use.

SHORT EXAMPLE

Current soil classifications are depicted in the figure below. The most common use of the soil 

mapping units in the permit is undeveloped woodland. None of the soils show signs of recent 

intensive management and these soils provide a negative determination for SMCRA’s prime 

farmland reclamation requirements; therefore, none of the soils in the proposed project have 

cropland as a pre-mining land use.

8.7.2 Use of Relevant Data 

The CEQ regulations require federal agencies to obtain information “relevant to reasonably 

foreseeable significant adverse impacts,” if it is “essential to a reasoned choice among 

alternatives,” and if “the overall cost of obtaining it is not exorbitant” (40 CFR 1502.22). If 

information essential to a reasoned choice is unavailable or if the costs of obtaining it are 

excessive or beyond reason, you must provide an explanation in the EIS or EA. The explanation 

must discuss what effect the missing information may have on your ability to predict impacts to 

the particular resource. If the information relevant to reasonably foreseeable significant adverse 

impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means 

to obtain it are not known, you must include within the EIS or EA: 

● a statement that this information is incomplete or unavailable; 
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● a statement of the relevance of the incomplete or unavailable information to evaluating 

reasonably foreseeable significant adverse impacts on the human environment; 

● a summary of existing credible scientific evidence relevant to evaluating the reasonably 

foreseeable significant adverse impacts on the human environment; and 

● an evaluation of these impacts based upon theoretical approaches or research methods

generally accepted in the scientific community. 

The term “reasonably foreseeable” includes impacts that have catastrophic consequences even if 

their probability of occurrence is low. But the analysis of the impacts must be supported by 

credible scientific evidence, must not be based on pure conjecture, and must be within the rule of 

reason (40 CFR 1502.22(b)).

For additional information about the use of relevant data, please contact OSMRE Scientific 

Integrity Officer (see Section 1.5). 

8.8 Environmental Effects

To focus your analysis of effects, you will rely on the identified issues. Early identification of the 

issues will help to determine the scope of the effects and analysis. Additionally, early 

identification of issues will help focus the analysis on factors that help discern differences 

between alternatives.

To help decision-makers completely understand how a resource will be affected, you must 

consider context, intensity, duration, and timing (40 CFR 1508.27). Analyze relevant short-term 

and long-term effects and disclose both the beneficial and adverse effects in the NEPA analysis. 

We recommend defining the duration of long-term and short-term effects, as those categories can 

vary depending on the action and the scope of analysis. You must consider and analyze three 

categories of effects for any OSMRE proposal and its alternatives: direct, indirect, and 

cumulative (40 CFR 1508.25(c)).

The effects analysis must also identify possible conflicts between the proposed action (and each 

alternative) and the objectives of federal, State, regional, local, and tribal land use plans, policies, 

or controls for the area concerned (40 CFR 1502.16(c)).

And finally, beneficial effects are also important to disclose, particularly when they may assist in 

the comparison between the alternatives (40 CFR 1508.8); however, disclosure of effects should 

discuss both positive and adverse impacts. The balance should not be tilted in favor of 

disclosing only the positive impacts.

8.8.1 Analyzing General Effects

The effects analysis must demonstrate that OSMRE thoroughly analyzed the potential impacts of 

the proposed action and alternatives. The level of detail must be sufficient to allow the decisionmaker to make reasoned conclusions by comparing the amount and the degree of change 

(impact) caused by the proposed action and alternatives (40 CFR 1502.1).
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Avoid making conclusory statements; always provide the rationale for conclusions even if that 

rationale is merely qualitative. The hypothetical conclusion below needs additional support on 

effects to wildlife habitat from an AML project.

EXAMPLE

The proposed action would have minor impacts on wildlife because the effects would be 

temporary.

The scientist in this example may know this to be true because of her experience with similar 

projects in similar areas, but the document needs to explain why. 

Here is an example of what the supporting statements might include: 

EXAMPLE

The proposed action would have minor impacts on wildlife due to temporary displacement, 

noise, and loss of habitat. Displacement of wildlife during the window of site clearing and 

construction activity would occur but the areas immediately adjacent to the site contain similar 

habitats therefore displaced animals may relocate to these adjacent areas. No protected species 

or rare ecosystems exist within the project boundaries. Consequently, the incidental loss of 

individual plants or animals would not threaten the continued existence of a rare species or 

ecosystem. Noise impacts to animal behaviors, such as resting and feeding, would be limited to 

the most intense periods of operation linked to earth moving and would affect only a very limited 

area immediately adjacent to the site. Long-term effects would be positive through the 

restoration of grassland habitat (the original habitat type) and developing habitat of higher 

quality than is now present.

This example also shows why it is important to identify issues early in the discussion. For 

example, a project may involve using explosives or operating equipment over an extended time 

period. In these instances, you would need to address proximity to sensitive receptors, noise, and 

safety in terms of the effects on both people and wildlife. If, for instance, blasting was not 

anticipated, there is no need to analyze the effects of blasting on people or wildlife. 

In analyzing environmental effects, incorporate the elements listed below. Use the introduction 

of the environmental effects section to describe how and why your analysis was conducted for 

each resource as explained below: 

● Methodology - Your NEPA document must sufficiently describe the analytical 

methodology that you used so that the decision-maker can understand how the analysis 

was conducted and why the particular methodology was used (40 CFR 1502.24). This 

explanation must include a description of any limitations inherent in the methodology or 

data. If substantial dispute exists over models, methodology, or data, you must recognize 

the opposing viewpoint(s) and explain the rationale for your choice of analysis. You may 

place discussions of methodology in the body of the document or in an appendix. We 

recommend, to the extent possible, that you quantify the analysis of impacts. This 

section is also a good place to define or explain to the reader how to interpret the data. In 

other words, you should define terms such as “minor,” “major,” “short-term,” or “long-
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term” for a particular impact. If relevant, explain the reasoning behind this interpretation. 

For example, why might 100 ppm of a particular analyte be a “major” impact but 50 ppm 

of another a “minor” impact? To help explain these terms, your discussion might present 

applicable state water quality standards to help provide the context and help the reader 

understand the difference. 

● Assumptions - We recommend your NEPA document describe the analytical assumptions 

that you used, including the geographic and temporal scope of the analysis, which may 

vary by issue, the analysis baseline, as well as the reasonably foreseeable future actions. 

You must explain any assumptions you make when information critical to the analysis 

was incomplete or unavailable (40 CFR 1502.22). See Section 8.7.2 for more discussion 

of incomplete or unavailable information. 

● Regulations and Policies Section - Following the discussion of analytical assumptions, 

you should include a separate section that details relevant laws, regulations, or policies 

pertinent to each impact topic. This section should clarify why a particular impact topic is 

important to discuss and help support the reasoning used in the impact threshold 

discussion of the methodology section. This section should be placed in the Alternatives 

chapter or, if more appropriate, in the Purpose and Need chapter. 

8.8.2 Analyzing Direct and Indirect Effects

A NEPA document must identify, analyze, and describe the direct and indirect effects of the 

proposed action and alternatives on the quality of the human environment (40 CFR 1508.8).

Direct Effects are those effects of the proposed action and alternatives “which are caused by the 

action and occur at the same time and place” (40 CFR 1508.8(a)).

Indirect Effects are those effects “which are caused by the action and are later in time or farther 

removed in distance, but are still reasonably foreseeable. Indirect effects may include growth 

inducing effects and other effects related to induced changes in the pattern of land use, 

population density, or growth rate, and related effects on water and air and other natural systems, 

including ecosystems” (40 CFR 1508.8(b)).

EXAMPLE

Effects occurring within the SMCRA permit boundary, and during the mining and reclamation 

activity, are obvious direct effects because they occur at the same place and time. Effects 

occurring after bond release are “later in time” and may be more appropriately considered as 

indirect. 

Indirect effects of the mining operation, those farther removed in distance, could include effects 

occurring outside the SMCRA permit boundary. Examples include increased turbidity 

downstream, noise and dust associated with transporting coal from the mining operation along 

public routes, or air and water emissions associated with the transport or burning of the coal.

It is also important to distinguish between effects closely connected to the proposed action and 

those actions that occur as an indirect effect of the proposed action. This distinction helps 

determine how far “downstream” the analysis should look. 
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EXAMPLE

For an analysis of a mining action where the coal is transported to a power plant that is not 

dependent on the mining action to continue but where there is no federal action at the power 

plant, including funding or permitting: 

 • Estimate emissions of all construction activities on the permitted site, including 

transportation to the power plant. 

 • Estimate emissions only from combustion of the coal from the action (and not all 

emissions associated with the total plant operation) and provide that information for 

each alternative to allow comparison of the alternatives. 

 • The effects of the emissions from the power plant are an effect of the total power plant 

operation which is not a federal action or a connected action. 

For federal actions with a federal action at the power plant (like the Four Corners Power Plant 

and Navajo Mine Energy Project EIS) or in which the power plant would not continue to operate 

but for the proposed action, your analysis of the mining action must: 

 • Estimate emissions of all construction activities on the permitted site, including 

transportation to the power plant; 

 • Evaluate the combustion of the coal at the power plant and the effect of the emission, 

and; 

 • Consider the effects of the emissions because they are indirectly related to the proposed 

action.

In either instance, the analyses are still limited by the completeness and availability of the 

information (40 CFR 1502.22). CEQ regulations demand information that is of “high quality” 

and professional integrity (40 CFR 1500.1, 1502.24). When information is incomplete or 

unavailable, the document must explain that fact, must summarize existing credible science 

relevant to the potentially significant foreseeable impacts, and must evaluate the impacts based 

on accepted theoretical or research based approaches (40 CFR 1502.22(b)).

For example, we often will not know the ultimate disposition of the coal mined under a proposed 

action. The ultimate end use might include combustion at a number of different power plants or 

export overseas. In these instances, it is appropriate to use existing data and models (such as data 

from the U.S. Energy Information Administration) to support assumptions and make projections. 

As required by 40 CFR 1502.16, the environmental effects discussion in an EIS should include 

information on any irreversible or irretrievable commitments of resources that cannot be 

avoided, should the proposed action or reasonable alternative(s) be implemented. A commitment 

of a resource is considered irreversible when the primary or secondary impacts from its use limit 

the future options for its use. It applies primarily to the impacts of use of nonrenewable 

resources, such as minerals or cultural resources, or to those factors, such as soil productivity, 

that are renewable only over long periods of time. An irretrievable commitment refers to the use 
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or consumption of a resource that is neither renewable nor recoverable for use by future 

generations. This discussion is not required in an EA. 

8.8.3 Determining Level of Analysis 

For every proposed project, site- or resource-specific issues may exist, requiring a more intense 

or focused analysis to enable a determination on the significance of impacts to particular 

resource(s). The main impetus of focusing or intensifying an analysis on a particular issue or 

resource correlates with the potential for a proposed project to have significant impacts on a 

resource. Issues or resources that are of great concern to the public (identified through the 

scoping process) may also warrant an additional analysis of potential impacts associated with 

that issue or resource. Court decisions pertaining to a particular aspect of an impacts analysis 

may be another reason to complete a more robust analysis of particular impact. If you think a 

court decision may affect your document, please consult with the Office of the Solicitor. 

As a best practice, quantitative data (when available) should support the analysis of all three 

levels of effects. In general, a direct effects analysis should be highly quantitative because it is 

likely that the required data may be more readily available. An indirect effects analysis may be 

more qualitative due to the fact that, while caused by the proposed project, indirect effects are 

removed in distance or time resulting in the likelihood that the data is not readily available. A 

cumulative effects analysis is usually more qualitative as data for reasonably foreseeable 

developments can be difficult to obtain and is likely to be less applicable. However, the level of 

analysis ultimately depends on the intensity of the potential impacts and impacts should be 

analyzed appropriately regardless of whether or not the impact is direct, indirect, or cumulative. 

To the extent possible, we recommend that the analysis of impacts be quantified. We recommend 

that your NEPA document also state the analytical assumptions, including the geographic and 

temporal scope of the analysis (which may vary by issue), the baseline for analysis, as well as 

any reasonably foreseeable future issues.

8.8.3.1 Determining Whether to Analyze Issues in Detail

Analysis in an EA or EIS should focus on significant issues (meaning pivotal issues or issues of 

critical importance) and only discuss insignificant issues briefly. Therefore, you should 

determine whether issues that are identified should be retained for detailed analysis or dismissed. 

When doing so, you should use an interdisciplinary approach to ensure that all relevant concerns 

are considered. During scoping, you may initially identify numerous issues associated with a 

proposal and will make an initial determination regarding whether or not to retain them for 

detailed analysis. It is important as you progress through the NEPA review to revisit issues, as 

necessary, to determine whether you should reconsider your initial determination based on new 

information. Likewise, you should consider whether there are additional issues associated with 

the proposal that were not identified during the scoping phase that should be addressed. 

As a general rule, issues should be retained for consideration and discussed in detail if: 

● The analysis of that issue is necessary to make a reasoned choice between alternatives; 
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● The analysis is needed for the decision-maker to fully understand trade-offs between 

alternatives and make a reasoned choice;

● The issue is “significant” or where analysis is necessary to determine the significance of 

impacts; or

● There is a disagreement about the best way to use a resource, or resolve an unwanted 

resource condition, or potentially significant effects of a proposed action or alternative. 

Other considerations may include if there is a cause and effect relationship with the proposed 

action and alternatives and the issue; if the issue is within a geographic and temporal scope of the 

analysis; if the issue has not already been decided by law, regulation, or previous decision; if it is 

possible to analyze rather than simply speculate on the potential effects; if the analysis was not 

sufficient in a previous document to which you are tiering; or if the environmental impacts 

associated with the issue are central to the proposed action or of critical importance. 

If none of the considerations above apply to an issue, you should dismiss it from detailed 

analysis. When dismissing an issue, you should be sure to indicate which specific resources or 

impact topics are included in the dismissal for that issue. While you may decide not to carry an 

issue forward for detailed analysis, environmental impacts to specific resources can still be 

discussed in some detail in your dismissal, as appropriate. Not all issues discussed by an 

interdisciplinary team need to be explicitly dismissed in a NEPA document. You should only 

include a dismissal of the issues that were initially thought to be relevant to your NEPA review 

but were later determined to be insignificant. Under such circumstances, you should document 

your rationale for that dismissal in the decision record

EXAMPLE

If an AML construction project is reclaiming a dangerous highwall in a highly disturbed area, 

the project team may have briefly discussed whether hunting opportunities would be impacted 

during construction; however, there is no need to explicitly dismiss impacts to hunting 

opportunities if there are no issues or impacts related to hunting opportunities from the proposed 

reclamation because all work would be conducted outside of hunting seasons. Nonetheless, you 

should consider documenting that rationale in the decision record, especially if you receive a 

public comment on impacts related to hunting opportunities.

8.8.4 Cumulative Effects

The CEQ regulations define cumulative effects as “the impact on the environment which results 

from the incremental impact of the action when added to other past, present, and reasonably 

foreseeable future actions regardless of what agency (federal or non-federal) or person 

undertakes such actions” (40 CFR 1508.7). The CEQ’s Considering Cumulative Effects Under 

the National Environmental Policy Act provides steps to guide the process of thinking through 

cumulative effects.

The following sections lay out steps in the cumulative effects analysis. This is not a required 

format for documentation but is a useful way to think through the process ensuring an adequate 

and robust analysis. 
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8.8.4.1 Cumulative Effects Issues

A cumulative effects issue only exists if a proposed action or alternative under consideration 

impacts the same resource as another separate, outside action or actions. Therefore, the 

cumulative effects discussion need only discuss those resources that are impacted by the 

proposed action or alternatives. Be aware that minor direct and indirect effects can potentially 

contribute to synergistic cumulative effects and may require a more robust analysis.

EXAMPLE

OSMRE could revise its regulations to specifically address the placement of coal combustion 

residues (CCRs) on SMCRA sites. In that event, the NEPA document must analyze the direct, 

indirect, and cumulative effects of CCR placement under the proposed regulatory alternatives 

versus the No Action alternative of continuing under existing regulations. An alternative that 

would place the CCR material well below the depth of biological activity in soils would result in 

no uptake of the CCRs into plants growing on the surface and is not expected to have any 

impacts surface waters available for wildlife, thereby eliminating indirect effects on wildlife from 

browsing on the plants or water consumption. For this alternative, the NEPA document would 

not need to discuss cumulative effects on wildlife from other actions that would affect wildlife.

8.8.4.2 Geographic Scope of the Cumulative Effects Analysis 

Establish and describe the geographic scope for each cumulative effects issue (see Section 8.7.1). 

Describe in your EA or EIS the rationale for establishing the geographic scope. The geographic 

scope is generally based on the natural boundaries of the resource affected rather than 

jurisdictional boundaries. The geographic scope will often be different for each cumulative 

effects issue. The geographic scope of cumulative effects will often extend beyond the scope of 

the direct effects but not beyond the scope of the direct and indirect effects of the proposed 

action and alternatives. As noted above, if the proposed action and alternatives will have no 

direct or indirect effects on a resource, you need not analyze cumulative effects on that resource.

EXAMPLE

If a proposal affects water quality and air quality, the appropriate cumulative effects analysis 

areas may be, respectively, the watershed and the airshed.

8.8.4.3 Time Frame of the Cumulative Effects Analysis

Establish and describe the time frame of each cumulative effects issue—that is, define long-term 

and short-term, and incorporate the duration of the anticipated effects into the cumulative effects 

analysis. Long-term could be as long as the longest lasting effect. Time frames, like geographic 

scope, can vary by resource. For example, the time frame for economic effects may be much 

shorter than the effects time frame for vegetation. Base the time frames on the duration of direct 

and indirect effects of the proposed action and alternatives, rather than the duration of the action 

itself. Always explain the rationale for the time frame you choose.

8.8.4.4 Past, Present, and Reasonably Foreseeable Actions 
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The cumulative effects analysis considers past, present, and reasonably foreseeable future actions 

that affect the resource of concern within the geographic scope and analysis time frame. In your 

analysis, you must consider other OSMRE actions, other federal actions, and non-federal 

(including private) actions (40 CFR 1508.7).

You must consider past actions within the geographic scope to provide context for the 

cumulative effects analysis (40 CFR 1508.7). Past actions can usually be described by their 

aggregate effect without listing or analyzing the effects of individual past actions (CEQ, 

Guidance on the Consideration of Past Actions in Cumulative Effects Analysis, June 24, 2005). 

Summarize past actions adequately to describe the present conditions (see Section 8.7.1). 

In some circumstances, past actions may need to be described in greater detail when they bear 

some relation to the proposed action. For example, past actions similar to the proposed action 

might have some bearing on the anticipated effects from the proposed action or alternative(s). 

You should clearly distinguish between the analysis related to direct and indirect effects from 

past actions and cumulative effects from past actions. 

You must also consider the effects of present actions occurring within the defined geographic 

scope (40 CFR 1508.7). Present actions are actions that are ongoing at the time of your analysis.

You must include reasonably foreseeable future actions within the geographic scope and the 

analysis time frame (40 CFR 1508.7). You cannot limit reasonably foreseeable future actions 

only to those that are approved or funded. On the other hand, you are not required to speculate 

about future actions. Reasonably foreseeable future actions are authorized by existing decisions, 

that have funding, those for which there are formal proposals, or that are highly probable, based 

on known opportunities or trends. Considering reasonably foreseeable development scenarios 

may greatly assist OSMRE in its cumulative effects analysis. When considering reasonably 

foreseeable future actions, it may be helpful to ask the following questions: 

● Is there an existing proposal, such as the submission of permit applications? 

● Is there a commitment of resources, such as funding? 

● If it is a federal action, has the NEPA process begun (for example, publication of an 

NOI)?

Analyzing future actions, such as speculative developments, is not required but may be useful in 

some circumstances. Including assumptions about possible future actions may increase the 

longevity of the document and expand the value for subsequent tiering. 
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EXAMPLE

An EA for an AML construction project may exceed current funding levels and may be phased 

through several years of construction. The EA would need to include all reasonably foreseeable 

future phases of the construction in one NEPA analysis, not just the current year’s proposed 

phase. There may exist other AML features within the general area that are outside the 

reasonably foreseeable future and may be considered speculative. Analyzing those speculative 

future actions is not required but may be useful in increasing the longevity of the document that 

could be tiered to for these speculative future actions.

8.8.4.5 Analyzing the Cumulative Effects

For each cumulative effects issue, analyze the direct and indirect effects of the proposed action 

and the alternatives together with the effects of the other actions on the same resources, 

regardless of who is taking or proposes to take the other action. Cumulative effects analysis will 

usually be addressed separately for each alternative because each alternative will have different 

direct and indirect effects.

CEQ regulations do not support agencies segmenting their proposals into pieces that result in a 

lower potential for significant impact if analyzed alone rather than cumulatively – the 

requirement to analyze cumulative impacts is more comprehensive. A complete picture of the 

past, current, reasonably foreseeable future, and cumulative influences acting upon a particular 

environmental resource is essential in making reasonable decisions about the management of that 

resource. If impact sources currently exist (on public or private land) when combined with 

impacts from the proposed action, provide both decision-makers and the public with a clear 

understanding of the “absolute” impact on the resource. 

Although a multitude of actions may contribute infinitesimal impacts to a resource that the 

proposal is expected to affect, only include those with clear impact contributions, or those that 

can feasibly be analyzed. As a general rule, the farther removed an action is from the project area 

or the project start date, the less need there is for detailed and exact analysis of the action’s 

cumulative impacts.

The following format may be used in constructing the cumulative effects analysis. 

For each cumulative effect issue describe:

● the existing condition (see Section 8.7.1); 

● the effects of other present actions;

● the effects of reasonably foreseeable actions;

● the effects of the proposed action and each action alternative;

● the interaction among the various effects described above; and

● the relationship of the cumulative effects to any technical or regulatory thresholds. 

The existing condition is defined as the combination of the natural condition and effects of past 

actions. The natural condition is the naturally occurring resource condition without the effects of 

human actions. Detailed description of the natural condition may not be possible for some 
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resources because of incomplete or unavailable information (40 CFR 1502.22) or may not be 

applicable for some resources. Describe the effects of past actions, either individually or 

collectively, to understand how the existing condition has been created. 

The analysis of the No Action alternative describes the cumulative effect of past, other present, 

and reasonably foreseeable actions, without the effect imposed by the proposed action or action 

alternative(s). The analysis of the proposed action will include the current cumulative effects, as 

well as the effects of the proposed action, and should demonstrate the incremental difference 

resulting from the proposed action. Regardless of how you present the analysis, you must be able 

to describe the incremental differences in cumulative effects as a result of the effects of the 

proposed action and alternatives (40 CFR 1508.7).

The cumulative effects analysis provides a basis for evaluating the cumulative effects related to 

any regulatory, biological, socioeconomic, or physical thresholds. Describe how the incremental 

effect of the proposed action and each alternative relates to any relevant thresholds.

BEST PRACTICES

Case law related to the level of NEPA analysis for direct, indirect, and cumulative impacts 

related to climate change and greenhouse gas emissions continues to evolve. The Office of the 

Solicitor has experience and knowledge of the latest trends in this area, and the project solicitor 

should be consulted in developing an appropriate NEPA analysis for direct, indirect, and 

cumulative impacts related to climate change and greenhouse gas emissions.

8.8.5 Mitigation and Residual Effects

Mitigation measures and environmental commitments needed to reduce impacts below 

significance should be incorporated into the alternatives, where appropriate. These mitigation 

measures then become an integral part of the alternative. In other words, if mitigation measures 

are needed to implement the alternative, the alternative needs to describe the mitigation 

measures. See Chapter 11 of this handbook for a more detailed discussion of mitigation. 

EXAMPLE

Stream/wetland mitigation in response to U.S. Army Corps of Engineers Clean Water Act 404 

permitting would be included in the proposed action for a permit or AML construction project; 

whereas, a reduced area of impact on a mining plan to reduce environmental impacts may not be 

part of the proposed action.

In an EIS, you must develop and analyze mitigation “even for impacts that by themselves would 

not be considered significant” (see Question 19a, CEQ, Forty Most Asked Questions Concerning 

CEQ’s NEPA Regulations, March 23, 1981). All “relevant, reasonable mitigation measures that 

could improve the project are to be identified,” even if they are outside the jurisdiction of the 

agency (see Question 19b, CEQ, Forty Most Asked Questions Concerning CEQ’s NEPA 

Regulations, March 23, 1981). You must also analyze the effectiveness of mitigation measures 

proposed, and the resulting impacts if the project were to proceed without mitigation. For 

instance, it should be clear whether mitigation is integral to the project and therefore included as 
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part of the alternative or is dependent on factors such as funding or permission from another 

agency. 

CEQ (40 CFR 1508.20) defines mitigation measures as:

● avoiding the impact altogether by not taking a certain action or parts of an action; 

● minimizing impact by limiting the degree of magnitude of the action and its 

implementation;

● rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

● reducing or eliminating the impact over time by preservation and maintenance operations

during the life of the action; and 

● compensating for the impact by replacing or providing substitute resources or 

environments. 

Because EAs and EISs are analytical documents, simply identifying mitigation measures does 

not commit OSMRE or other involved agencies to adopt or implement them. If mitigation is 

integral to an alternative, and that is clearly stated, adopting the alternative in the FONSI 

automatically means the mitigation is required. Any mitigation that is dependent on funding or 

other factors must be identified as such in the FONSI. Attach a matrix or table to the FONSI to 

itemize mitigation measures, critical milestones, and identify the responsible party. 

Requirements of NEPA other laws such as and SMCRA or MLA should be differentiated. 

Although including mitigation in the FONSI may not create a legally binding requirement, 

including it in a SMCRA permit or mining plan decision document will make the requirement 

legally binding. 

8.9 Issue-Based Environmental Analysis 

An “issue-based” environmental analysis refers to the process OSMRE uses to identify and 

eliminate issues from detailed analysis in a NEPA document. The determination is based on each 

issue’s significance or importance to the decision. Issue-based environmental analysis 

concentrates the analysis on issues that are most germane to the decision-maker, namely those 

that are of interest to the public or otherwise central to the proposed decision, and deemphasizes 

analysis on secondary resources and issues. Using this approach can help meet the page limits 

and time goals associated with NEPA document preparation established by S.O. 3355. 

When conducting an issue-based analysis, it is important to ensure a focused view on an issue 

identified through internal and external scoping and not a resource (see Section 8.3). An issue is 

a very specific concern regarding effects to a resource from a proposed action, not the resource 

itself (see Section 8.4). An identified issue must relate directly to the purpose and need of the 

action. This will help guide your analysis in identifying significant issues. As such, issues of 

critical importance require detailed analysis; where insignificant issues may be eliminated from 

further detailed analysis (see Section 8.8.3.1). Insignificant issues should be summarized within 

the NEPA document and an explanation provided as to why they were eliminated from further 

detailed analysis (see Section 8.8.3.3) Linking the proposed action, identified purpose and need, 

and alternatives, with the issue(s) at hand is vitally important in developing a defensible 

environmental analysis. 
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List of Appendices

NONE
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CHAPTER 9: ENVIRONMENTAL ASSESSMENT

An EA will provide sufficient information to determine if an EIS or a FONSI is needed. An EA 

should be written in a clear, concise fashion based on the necessary environmental analysis and 

kept as brief as possible, using referenced and incorporated material as practicable. Every 

attempt should be made to avoid overly technical language. The text, appropriate tables, and 

figures should be presented so the decision-makers and the public can readily understand them. 

It is rare that an EA will be finalized if it indicates that significant effects will result from the 

proposed action. Typically, once it is determined that a proposed action will have significant

impacts that cannot be mitigated, the EA will be stopped and an EIS initiated. The EIS process is 

discussed in considerable detail in Chapter 10. When this occurs, any analysis prepared for the 

EA may be used in the EIS and be independently evaluated by OSMRE. 

OSMRE is responsible for the adequacy, completeness, and processing of all EAs involving 

OSMRE decisions. In instances where proponents require OSMRE approval, the proponent will 

normally supply the appropriate information for any required NEPA document. If a contractor 

develops an EA for the proponent, OSMRE should participate in the consultation with the 

contractor before the EA is prepared. In addition, the EA must meet OSMRE standards. The 

CEQ provides guidance for contracting EAs and EISs at 40 CFR 1506.5(b) and (c). When a 

contractor prepares an EA, OSMRE must independently evaluate the information submitted and 

the environmental analysis for accuracy as the responsible party for the content of the EA. While 

the CEQ only requires a conflict of interest disclaimer for EISs, we recommend including such 

statements in your contractor prepared EAs as well. 

9.1 When to Prepare an EA

An EA must be prepared when the proposed action cannot be statutorily or categorically 

excluded, when it is unknown whether or not the proposed action would result in potentially 

significant impacts, or when the proposed action does not meet the EIS criteria listed in 516 DM 

13 (see Chapter 10 of the handbook for a more detailed discussion of when an EIS is required). If 

the proposed action would clearly result in significant impacts to one or more resources in the 

analysis area, you will prepare an EIS without preparing an EA first. 

9.2 Page Limitations and Timeline for an EA 

Per the direction in the August 6, 2018 Deputy Secretary Memorandum - Additional Direction 

for Implementing Secretarial Order 3355 Regarding Environmental Assessments, developing an 

EA should start as early as possible following definition of the proposed action and can be 

developed concurrently with other data-gathering activities such as surveying and monitoring 

(Refer to Chapter 7 for a more detailed description of information gathering practices). If a party 

other than a Federal agency proposes an action, you must work with that party to develop a 

schedule with sufficient time for EA preparation and develop a budget for the completion of the 

EA. The schedule you develop must conform with the time frame for the EA process dictated by 

Secretarial Order 3355 and its relevant guidance, which is described in greater detail in Chapter 1 

of this handbook. EA guidance for implementation of S.O. 3355 directs that all EAs be 

completed in 180 days. According to this guidance, the 180-day timeline can begin either once 
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OSMRE receives a completed application from a project proponent or receives or obtains 

sufficient information to analyze the proposed action; or publishes a Notice of Proposed 

Rulemaking in the Federal Register; or internally determines to pursue action planning. 

Keep in mind that an EA’s timeline may be significantly affected by the separate processes 

associated with NHPA compliance, Fish and Wildlife Conservation Act requirements, 

consultation under the ESA, and others. These factors need to be considered when developing an 

EA timeline. EA schedules must be entered into the DOI Tracking Database if it is known or 

expected that the project cannot be completed within the 180 day Departmental requirement or 

exceed the required 75 page limit (not including appendices) (See Section 1.6.3 OSMRE 

Streamlining Requirements for more detailed information on page and time limits). 

9.3 Public Involvement Requirements for an EA

The following sections describe public involvement requirements for an EA including scoping, 

public review of the EA and distribution of the EA. 

9.3.1 Scoping

EA scoping should be separated into two categories: internal (or informal) scoping and external 

(or formal) scoping. Internal scoping should be conducted by the lead agency to define the 

potentially significant issues raised by the proposed project and help define the analysis scope of 

the EA. Internal scoping helps you to formulate the purpose and need; identify connected, 

similar, and cumulative actions associated with the proposed project; begin preparation of the 

cumulative effects analysis; determine the appropriate level of analytic documentation; and 

prepare a public participation strategy. Such informal scoping should always involve appropriate 

resource specialists within the lead agency as well as other federal, tribal, state, and local 

government agencies depending upon the complexity of, and issues raised by, the proposed 

project. 

External scoping, or formal public scoping, and associated public review is not required for an 

EA (40 CFR 1501.7), but the lead agency is directed by CEQ (40 CFR 1506.6) to, at a minimum, 

provide public notice that environmental documents are available for review upon completion. 

At the EA scoping stage, no document is available; therefore, public notice is not required. If 

deemed necessary, the agency may publish a notice informing the public that it is preparing an 

EA for a proposed action. The notice is published in venues such as local newspapers and/or the 

agency’s website.

It is up to the lead agency to determine the need for external scoping and the level at which it is 

conducted. If the proposed action is likely to generate high levels of opposition, substantial 

public interest, or one that usually requires an EIS, formal public scoping may include notice and 

a public comment period, public scoping meeting, or both. When evaluating the need for 

scoping, consider factors such as: the size or scale of the proposed action; whether the proposal 

is routine or unique; who might be interested or affected; and whether or not external scoping has 

been conducted for similar projects and what the results have been. The EA should include the 

agency’s rationale for determining whether or not to conduct external scoping. 
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If you conduct external scoping, document the process, comments received, issues identified, and 

how issues and comments were addressed in the development of the EA. You must ensure the 

public involvement strategy is sensitive to language or cultural barriers of the local communities, 

which can include holding meetings in ways that accommodate cultural traditions, values, and 

methods of communication (e.g., visual aids, in-person meetings, interpreters, etc.) You may 

summarize numerous comments; however, be sure to retain the comments and document their 

disposition in the Decision File. 

All potentially significant issues identified during internal and external scoping should be 

considered to determine whether or not the issue will be analyzed fully in the EA. In the EA, you 

must explain your rationale for selecting the scoping issues you carry forward and those issues 

you have chosen to dismiss. 

9.3.2 Review and Distribution of the EA

Similar to scoping, review of the completed EA is separated into two categories: internal and 

external. Internal review is conducted with a preliminary assessment of impacts on resource 

areas and helps define the scope of geographic and analytical scope of the proposal. No 

requirement exists for external or public comment of an EA, but the lead agency is required to 

provide a public notice that the NEPA document is completed and available for review (40 CFR 

1506.6(b)). 

The distribution of a completed EA can be a formal or informal process. For example, an EA for 

a minor routine action may be published via a Notice of Availability (NOA) but without any 

formal public review process. However, the action may still warrant consultation with various 

agencies and affected interests, including Indian tribes. For an EA on a complex action with 

substantial public interest it may be advisable to engage in one or more of the public involvement 

actions, such as: 

● News releases through newspapers, newsletters, and the Internet; 

● Allowing the public to comment on the EA and FONSI; and/or 

● Public meetings. 

Before the release of the EA, the relevant lead agency specialists, cooperating agencies with 

special expertise or jurisdiction over a part of the proposed project, and other interested federal, 

tribal, state, and local agencies should conduct an internal review of the document. The agency 

should make an effort to address all comments received during the internal review and document 

any associated revisions made to the EA in the Decision File. 

The lead agency has the discretion to publish the EA for public review and comment. No 

minimum number of days is required for the public comment period for an EA, but 30 days is 

common. As with scoping, the need for a public comment period depends on factors such as: the 

size or scale of the proposed project; whether the proposal is routine or unique; who might be 

interested or affected; and whether or not a public review has been conducted of similar projects 
9-4 

and what outcomes were realized by the public comments. Holding public meetings for the 

proposed project may be advisable if there is a high level of public interest. 

Your goal should be to ensure that all interested parties are notified, regardless of the mechanism 

used. Generally, the NOA for an EA and the request for comments are published in local 

newspapers, the agency website, social media, and/or mailed as letters to stakeholders requesting 

project notifications. A public notice can be as informal as a press release or as formal as a 

Federal Register notice, depending upon the specific situation. The EA must be made accessible 

to the public either through hard copies at pre-identified public locations, hard copies mailed 

upon request, digital media provided upon request, by a digital format that is compliant with 

Section 508 of the Rehabilitation Act of 1973, such as a PDF that can be downloaded from 

OSMRE’s website, or other accessible means, as appropriate.

The EA should summarize the public involvement and should include, if applicable, a summary 

of the public comments received with the total number of comments and main points of concern. 

A table describing the substantive comments in more detail and agency’s responses should be 

included as an appendix to the EA. The agency should make every effort to respond to all 

substantive comments received during the public comment period. Any revisions made to the EA 

as a result of public comments should be noted in the associated responses in the substantive 

comments appendix. All revisions to the EA should be made before signing the FONSI. 

9.4. Contents of an EA (40 CFR 1508.9 and 43 CFR 46.310) 

CEQ and DOI regulations require that the EA include, at a minimum, a brief discussion of: 

● the proposal; 

● the need for the proposal; 

● the environmental impacts of the proposed action; 

● the environmental impacts of the alternatives considered; and 

● a list of agencies and persons consulted. 

The EA should be prepared by an interdisciplinary team rather than a single individual. If it is 

not possible to assemble a team, a range of applicable disciplines should be contacted to provide 

appropriate information and analysis. This team may include a Project Solicitor.

An EA will reach a conclusion as to whether an EIS or a FONSI should be prepared. An 

unmitigated FONSI must not contain any statement that describes any impact as significant.

The level of detail and depth of the impact analysis should be no more than that needed to 

determine if significant impacts will occur. Only those factors of the existing environment that 

might influence or be significantly affected by the proposed action needs discussion. A statement 

identifying why other factors were not discussed should be included. 
9-5 

Conclusions and analysis should be based upon an unbiased, objective evaluation of data and 

information presented in the EA. Opinions, justifications, and unsupported “statements of fact” 

should be avoided. 

Information not considered to be general knowledge should be supported by: 

● information that can be found in published material; 

● information readily available for review in the area or regional office; 

● data collected by OSMRE, other Federal agencies, contractors, or other technically 

qualified agencies or organizations; and/or 

● information incorporated by reference (40 CFR 1502.21). 

You must review the accuracy of all information submitted by applicants, petitioners, 

proponents, or OSMRE officials. For example, permit application packages contain information 

on the existing environment and direct and indirect impacts in accordance with permitting 

requirements found in SMCRA and the Mineral Leasing Act. (See OSMRE regulations, 30 CFR 

740.13(b)). After drafting the proposed action, you may want to contact the proponent, as 

necessary, to ensure the EA accurately describes the proposed action and request additional 

background information if needed. 

When preparing an EA, you should draw upon existing analysis by reviewing previous EAs or 

EISs and tiering or incorporating them by reference as appropriate (see Chapter 5 for a more 

detailed description for using existing environmental documents). Material incorporated by 

reference should be summarized as appropriately as possible to provide clarity and continuity 

(40 CFR 1502.21). In certain cases, you may adopt an existing NEPA document (40 CFR 

1506.3) even if the adopted EA needs to be augmented or supplemented. Reviewing existing 

NEPA documents also may help you identify issues, provide relevant analysis, and allow you to 

be technically consistent with comparable situations.

Besides existing NEPA documents, there are other potential sources of information for preparing 

an EA. These include, but are not limited to: 

● A proponent’s permit application package (PAP);

● BLM Resource Recovery and Protection Plan (R2P2); 

● BLM Maximum Economic Recovery Report;

● Documentation demonstrating compliance with the applicable requirements of federal 

laws, regulations, and executive orders other than NEPA;

● Comments, recommendations, or concurrence of other federal agencies and the public; 

● Findings, recommendations, and contractual commitments and requirements of BLM 

with respect to the Federal Coal Lease, the R2P2, and the Mineral Leasing Act;

● Findings and recommendations of the SMCRA state regulatory authority with respect to a 

permit revision application; 

● AML priority documentation forms; 

● e-AMLIS problem area descriptions; 

● AML eligibility criteria;

● AML project description; 
9-6 

● Site investigation reports; or 

● Findings and recommendations of OSMRE with respect to the additional requirements of 

30 CFR Chapter VII, Subchapter D (30 CFR Parts 740 to 746); 

9.5 Structural layout of an EA 

The following is a format template:

● Title page;

● Table of contents; 

● Purpose and Need for the Proposal; 

● Proposed Action and Appropriate Alternatives; 

● Affected Environment; 

● Environmental Impacts;

● Consultation and Coordination; and 

● References Cited.

Cases may occur in which a modified outline would facilitate the presentation of environmental 

information and analyses. Any format, however, must include the required elements discussed in 

Section 9.4 of this handbook and may be limited to just those five required elements. 

9.5.1 Suggested Organization and Content of an EA 

Below you will find an example of how to organize your EA by chapter. Under each chapter 

heading you will find suggestions for content to include in that chapter. 

● Chapter 1: 

o The proposed action: The EA should give a succinct description of the proposed 

project and any relevant project history. 

o Listing the following information in Chapter 1 of the EA is optional, but may be 

helpful to fully define the need: Required federal permits, licenses, approvals, and 

entitlements necessary to implement the project, and ongoing actions that may affect 

or be affected by the proposed project. This discussion should be kept brief and 

focused on the need. 

o The need for the Proposed Action: Every EA must contain a statement identifying 

the need for the proposal (Refer to Section 8.2 of this handbook for a more detailed 

description of the purpose and need). This section will present a brief statement of 

what the proposal is and why the action is being considered (i.e., what the underlying 

needs are to which the agency is responding). You must include the agency’s need for 

the action, and it may be helpful to identify the purpose of the action as well as the 

proponent’s need for the action if the proponent’s proposal is triggering the agency 

action.

o Once developed, the need statement serves as an important screening criterion for 

determining which alternatives are reasonable. See Chapter 8 Section 2 for a detailed 

description of the role of the need statement. Develop the agency’s need statement 
9-7 

very early in the NEPA process and include it in scoping. All reasonable alternatives 

examined in detail must meet the defined purpose and need. 

o It can be helpful to include a section in the EA that describes the “Decision(s) to be 

Made.” Describing the decision to be made clearly spells out OSMRE’s decision 

space and the focus of the NEPA analysis. In addition, it may serve as a vehicle for 

describing the nature of other decisions that will be made by other entities in order to

implement the proposed action and alternatives. 

o If an EA was released for public comment, this chapter should also include a 

summary of substantive comments and a description of how OSMRE disposed of 

those comments, including whether any changes were made to the EA before the 

FONSI was signed.

● Chapter 2: 

o Chapter 2 should include a description of the Proposed Action and Alternatives, 

including: 

• No Action Alternative (See Section 8.6.2 of this handbook for a more detailed 

description of the No Action Alternative);

• Proposed Action (See Section 8.5 of this handbook for a more detailed description 

of the Proposed Action and Alternatives); and 

• Other Reasonable Alternatives (See Section 8.6 of this handbook for a more 

detailed description of reasonable alternatives);

o Alternatives outside the agency’s authority to implement may be considered if 

reasonable. If such an alternative becomes the preferred alternative, implementation 

would depend on a change in authorization, a change of the lead Federal agency to 

one with the appropriate authority, or a transfer of the project to a non-Federal entity. 

It could also lead to the cancellation of the project. When describing the alternatives, 

including the No Action alternative, you may discuss one or more of the following 

items where appropriate: 

• Geographic location of alternatives if substantially different than the Proposed 

Action and differentiating project features of the alternatives, including legal 

description, aerial photography, and a map; 

• Amount and ownership of lands to be affected; 

• Area to be disturbed if substantially different than the Proposed Action; 

• Numbers, locations, and photographs or drawings of structures to be constructed, 

including utilities; 

• Description of project operations; 

• Mitigation and/or restoration plans; and 

• Modifications or removal of existing facilities or structures. 

o Mitigation measures and environmental commitments needed to reduce impacts 

below significance should be incorporated into the alternatives, where appropriate. 

These mitigation measures then become an integral part of the alternative. In other 

words, if mitigation measures are needed to implement the alternative, the alternative 

needs to describe the mitigation measures. See Chapter 11 of this handbook for a 

more detailed discussion of mitigation.

o Alternatives Considered but Eliminated from Detailed Analysis: The EA should 

contain a description of alternatives to the proposed action that were considered but 
9-8 

not analyzed in detail, which may include alternatives recommended by the public or 

other agencies. You will also explain the reasons for dismissing an alternative in the 

EA.

● Chapter 3: 

o Affected Environment (see Chapter 8 of this handbook for a more detailed description 

of the affected environment): An “Affected Environment” section is not required for 

an EA. However, you may include this section because of its usefulness in analyzing 

the context and intensity of the impacts. The affected environment chapter explores 

the existing condition of the human environment in the affected areas. In describing 

the affected environment, care should be taken to identify the environmental trends 

that currently exist and the areas of concern that may be impacted by the action or 

alternatives. The discussion of the affected environment should not simply be an 

inventory of resources. 

o The affected environment discussion should describe only those resource areas that 

may be impacted by the proposed project and only to the extent necessary to enable 

an understanding of the intensity of anticipated impacts. A brief discussion of critical 

environmental issues—such as Historical Properties, Indian sacred sites, 

environmental justice, cultural resources, and threatened and endangered species—is 

necessary to show that these issues have been considered, even if there are no impacts 

or only minor impacts. Where ongoing activities have effects in these areas, the 

discussion should summarize both the context and intensity of the ongoing effect and 

what specific ongoing activity is causing the effect. 

● Chapter 4: 

o Environmental Consequences (see Chapter 8 of this handbook for a more detailed 

description of environmental consequences): The “Environmental Consequences” 

chapter forms the scientific and analytic basis for the comparison of alternatives, 

including the proposed action and No Action alternative. The analysis should briefly 

describe facts and information but avoid conclusions about significance; conclusions 

about significance should be found either in a FONSI or an EIS. It is important that 

analyses are presented in a clear, concise discussion, and only for meaningful project 

impacts. If the project will have no impact on critical environmental areas or such 

issues as those involving wetlands and endangered species, this information should 

also be stated. Note that all impacts to Cultural and Historical resources, and 

Environmental Justice need to be considered and addressed, whether minor or 

potentially significant, in accordance with OSMRE’s Directive REG 18 procedures, 

and guidance. 

o The impact analysis should focus on those resources that may be affected in a 

significant way by the proposed action. Other resources may need examination as 

well, depending upon the site-specific nature of the proposal. 

o Potential beneficial and adverse impacts should be presented. The EA should address 

short- and long-term impacts, direct and indirect impacts, irreversible and 

irretrievable commitments of resources, and residual or net (those remaining after all 

mitigation measures are implemented) impacts. If appropriate, the EA should also 

discuss potential cumulative impacts resulting from actions taken by OSMRE, other 
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Federal agencies, and State and local agencies, and how those impacts relate to the 

action being considered. See Chapter 8 of this handbook for a more detailed 

discussion of direct, indirect, and cumulative impacts. 

o Mitigation should be addressed following the review of impacts for each resource 

component being evaluated and presented for each alternative. Mitigation measures

address impacts not eliminated through avoidance of adverse effects. Mitigation 

measures necessary to reduce impacts should be considered environmental 

commitments and should be clearly integrated into the alternatives. See Chapter 11 of 

this handbook for a more detailed discussion of mitigation.

● Chapter 5: 

o A list of agencies and persons consulted: This section must include a list of parties 

consulted including Federal agencies, States and Tribes, cooperating agencies, and 

other members of the public (43 CFR 46.155). It should also document field reviews 

of the project site or location of proposed development, as appropriate. See Chapter 1 

of this handbook for a more detailed discussion of potential stakeholders to be 

consulted. 

o This section should include a record of compliance with other applicable statutes 

(ESA, Clean Water Act, etc.) and any public involvement activities. To the extent 

practicable, efforts should be made to involve appropriate Federal, tribal, State, and 

local governmental entities, as well as private organizations and individuals with an 

interest in the proposal (40 CFR 1506.6 and 43 CFR 46.305). This section should 

document, in chronological order, the meetings, news releases, and other consultation 

and coordination activities leading to the selection and development of the action or 

project. 

o To the maximum extent possible, an EA should integrate any surveys and studies 

required by the National Historic Preservation Act, Fish and Wildlife Conservation 

Act, ESA, other environmental laws and Executive Orders, and other appropriate 

tribal, State, and local laws. A discussion of related laws and Executive Orders should 

be included either as an attachment or in Chapter 1. The discussion of related laws 

and Executive Orders should be integrated with the description of the respective 

impacted resources. 

o A table listing required permits (Federal, tribal, State, and local) necessary to carry 

out each alternative, along with a determination of who will be responsible for 

obtaining these permits, should be included in this section of the EA or as an 

appendix to the EA. Some of the actions that may require permits are as follows: 

• Impacts to water quality; 

• Changes to nonpoint sources of pollution from agriculture, silviculture, mining, 

and construction; 

• Storage of oil and hazardous substances; and 

• Placing fill in waters of the United States.

● References and Appendices:

o Bibliography or References Cited: A bibliography or references cited section is 

encouraged. The EA should refer to any methodologies used and should make 

explicit reference to any scientific or other sources used. Citations of specific topics 
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should include the pertinent page number and follow American Psychological 

Association style guidelines.

o List of Environmental Commitments: A list of environmental commitments for the 

proposal should be prepared and included in the EA. This list is usually included as 

an appendix to the EA and contains all mitigation measures integrated into the 

proposed action. Refer to Chapter 11 of this handbook for a more detailed discussion 

of mitigation.

o Distribution List: A distribution list may be included in the consultation and 

coordination section or as a separate attachment or appendix. The affected and 

interested parties should be placed on the distribution list. In identifying the 

“affected” parties, those individuals should be considered who are directly or 

indirectly affected, as well as those who have expressed an interest in the action.

9.6 Content of a FONSI 

CEQ regulation 40 CFR 1508.13 defines a FONSI as a: “document by a Federal agency briefly 

presenting the reasons why an action, not otherwise categorically excluded, will not have a 

significant effect on the human environment and for which an EIS therefore will not be 

prepared.” 

The FONSI is an agency finding supported by the impacts discussion in the EA. The FONSI 

does not authorize implementation of the proposed action; it merely states the decision about the 

significance of impacts. The FONSI should explicitly address every impact identified in the EA 

and present reasons why those impacts are not significant for the preferred alternative. It can be 

useful to discuss significance in terms of the context and intensity of the impact (40 CFR 

1508.27). Conclusions about the intensity of impacts should be expressed as briefly and 

concisely as possible and should cover the major issues found in the EA. 

Topics not covered by the analysis in the EA should not be introduced in the FONSI. If 

significant new environmental information is developed or plans are substantially changed 

between the time the EA is prepared and the FONSI is scheduled to be signed, the EA should be 

revised to include the new information before the FONSI is signed. Once the FONSI is signed, 

new information or a modification to the proposal before the action is completed should trigger a 

review of the EA/FONSI. This review could result in a determination that no new analysis is 

needed, otherwise known as a finding of no new significant impact (FONNSI), a revision of the 

existing EA/FONSI, a new EA, or (very rarely) an EIS, depending upon the site-specific 

circumstances. 

Mitigation measures and other environmental commitments should be described in the FONSI 

(See Section 9.7 When to Prepare a FONSI for more detailed information on the mitigated 

FONSI). The FONSI must note any other relevant environmental documents related to the 

findings and must be signed and dated by the decision-maker (40 CFR 1501.7(a)(5) and 40 CFR 

1508.13). No action can be taken until there is a final FONSI that addresses the entire proposed 

action. 

FONSIs may be approved and signed by the Field Office Director (OSMRE Directive OPM-5) 
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9.7 When to prepare a FONSI

If, based on the EA, the responsible official decides that the impacts of the proposed action are 

not significant and do not warrant preparation of an EIS, a FONSI will be prepared. 

There are three situations when a FONSI is prepared:

● EA analysis shows that the action would have no significant effects. 

● EA analysis shows that the action would have no significant effects beyond those already 

analyzed in an EIS to which the EA is tiered (see Chapter 5 for a more detailed 

description of tiering). You may find that your action has significant effects and still 

reach a finding of no new significant impact (FONNSI), provided that those significant 

effects were fully analyzed in the EIS to which your EA tiered. See Chapter 5 of the 

handbook for a more detailed discussion of tiering. In this case, a FONNSI would be 

prepared, and it is recommended that you state in the FONNSI that there are no 

significant impacts beyond those analyzed in the EIS to which this EA is tiered. 

● EA analysis shows that mitigation measures are available, can be enforced, and will 

reduce effects below significance.

An agency can also use mitigation allowing the agency to comply with NEPAs’ procedural 

requirements by issuing an EA and FONSI, or “mitigated FONSI,” based on the agency’s 

commitment to ensure the mitigation that supports the FONSI is performed, thereby avoiding the 

need to prepare an EIS (40 CFR 1508.20).

9.8 Public involvement requirements for a FONSI

You must notify the public of the availability of an EA and any associated FONSI once they 

have been completed. (43 CFR 46.305(c); 40 CFR 1506.6(b)). A signed FONSI, including the 

attached EA, should be distributed to appropriate Federal, State, and local agencies; Indian 

tribes; affected Indian Tribes; individuals; organizations; and agencies involved in the 

preparation of, or who commented on, the EA, and to the general public, upon request. This 

notice may be accomplished by posting the FONSI in a version that is compliant with Section 

508 of the Rehabilitation Act of 1973 to the OSMRE website, if appropriate. However, the 

methods for providing public notification and opportunities for public involvement are ultimately 

at the discretion of the Responsible Official. (43 CFR 46.305(a); 43 CFR 46.30).

Except in limited circumstances described below, comments on a FONSI do not need to be 

solicited. (43 CFR 46.305(c)). Moreover, neither scoping on an EA, nor publication of a “draft” 

EA are required. (43 CFR 46.305(a)(2); (b)). Notwithstanding, you may seek comments on an 

EA if you determine it to be appropriate, such as when the level of public interest or the 

uncertainty of effects warrants, and you may revise the EA based on comments received without 

need of initiating another comment period. (43 CFR 46.305(b)). If, based on your EA, you 

anticipate issuing a FONSI, you may also release an unsigned FONSI with the EA, if you choose 

to release the EA for public comment. If you choose to release an unsigned FONSI with the EA 

for public comment, you should make clear that no final decision on a FONSI will be made until 
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the public review is completed and all comments considered. 

The regulations do not specify the length of time that the EA or FONSI should be made available 

for public comment; you should use your discretion to base this decision on project specific 

factors. Consider the complexity of the project and issues, as well as the level of public interest, 

in determining the length of review and comment period. Under typical circumstances, an 

appropriate length of time for a public comment period for an EA would be no less than 7 days 

and no more than 30 days. 

In limited circumstances, some FONSIs must be made available for a 30-day public review 

before the determination of whether to prepare an EIS. Those circumstances exist when: 

(1) The proposed action is, or is closely similar to, one which normally requires the preparation 

of an EIS under the procedures adopted by the agency pursuant to 40 CFR 1507.3, or (2) The 

nature of the proposed action is one without precedent. (40 CFR 1501.4 (e)(2); 40 CFR 1501.4 

(e)(1)) and CEQ “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate 

Use of Mitigated Findings of No Significant Impact” (Jan. 14, 2011). A 30-day minimum public 

review is also recommended if or when:

● The proposal is a borderline significant (such as when there is a reasonable argument for 

preparation of an EIS); 

● It is an unusual case, a new kind of action, or a precedent-setting case, such as a first 

intrusion of even a minor development into a pristine area; 

● Scientific or public controversy exists over the effects of the proposal; 

● The proposal would require the use of a mitigated FONSI; or 

● It involves a proposal that is similar to one that normally requires preparation of an EIS. 

You must also allow a period of public review of the FONSI if the proposed action is constructed 

in a wetland or is located in a floodplain. (Question 37b, CEQ, Forty Most Asked Questions 

Concerning CEQ’s NEPA Regulations, March 23, 1981, citing E.O. 11990, sec. 2(b) and E.O. 

11988, sec. 2(a)(4)). 

9.9 Structural Layout of a FONSI 

The following organizational structure can be used to ensure that all the necessary elements are 

included to allow the agency to show the decision-maker and interested public that the preferred 

alternative would not result in significant impacts.

● Introduction - Succinctly describe the project history/background to include, but not 

limited to, the most current description of the proposal. 

● Statement of Environmental Significance of the Preferred Alternative - Succinctly 

disclose that the preferred alternative would not have significant impacts and that an EIS 

is not required. The FONSI must also disclose all action alternatives evaluated in the EA 

and how the preferred alternative was selected.

● Reason - Re-state the need. Provide a brief description of the preferred alternative. 

Describe the context and intensity (per CEQ) and provide an explanation for each of the 

10 significance criteria defined in 40 CFR 1508.27(b). Rationale and supporting 
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information must be incorporated by reference into the FONSI from the EA (See Chapter 

8 for a more detailed description of supporting information). 

● Mitigation Measures - Any mitigation measures that OSMRE has committed to 

enforcing should be described in this section. 

● Signature Block - The appropriate official’s signature must be placed here to complete 

the NEPA process.

List of Appendices

NONE
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CHAPTER 10: ENVIRONMENTAL IMPACT STATEMENT

An EIS provides the decision-maker and the public with a fair and full discussion of significant 

environmental impacts, both beneficial and adverse, that would result from a proposed action 

and its reasonable alternatives (40 CFR 1502.1). An EIS should provide concise, clear, and to the 

point analyses and conclusions that are helpful to the decision-maker. Technical analyses and 

data may be an important part of EIS preparation but generally are not included in the text; you 

should summarize such material in the text and place any material needed to substantiate 

statements in an appendix. 

Once you determine that an EIS will be prepared, you should designate a Project Manager who 

will be responsible for managing the EIS preparation. You should then assign an 

interdisciplinary team of resource specialists to assist with EIS preparation. The Project Manager 

should contact the HQ NEPA Coordinator (s) and Regional or Field Office Solicitor’s Office

about the decision to prepare an EIS. 

If you plan to use a third-party contractor to prepare the EIS, see Chapter 4 for more details on 

acquiring a contractor to assist with preparation of the EIS. 

10.1 When to Prepare an EIS

OSMRE will prepare an EIS in three situations. 

● First, if you expect a proposed action to have significant impacts not fully covered in an 

existing EIS, you must analyze those impacts in a new or supplemental EIS. The actions 

in the list below have been identified by OSMRE as normally requiring preparation of an 

EIS due to their potential to have significant impacts (516 DM 13.4(A)). Although this 

list describes actions normally requiring an EIS, you may choose to prepare an EA for 

any of these actions if “it is anticipated that an EIS is not needed based on potential 

impact significance[.]” (516 DM 13.4(B)).

o Approval of a proposed mining and reclamation plan that includes any of the 

following: 

• Mountaintop removal operations; 

• Mining within high use recreation areas; 

• Mining that will cause population increases that exceed the community’s ability 

to absorb the growth; or 

• Mining that would require a major change in existing coal transportation facilities.

o Approval of a proposed mining and reclamation plan for a surface mining operation 

that meets the following:

• The environmental impacts of the proposed mining operation are not adequately 

analyzed in an earlier environmental document covering the specific leases or 

mining activity; and

• The area to be mined is 1280 acres or more, or the annual full production level is 

5 million tons or more; and 

• Mining and reclamation operations are proposed to occur for 15 years or more. 
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● Second, you must also prepare an EIS if, after preparation of an EA, you determine that 

the effects of the proposed action would be significant and cannot be mitigated below the 

level of significance. If you determine during preparation of an EA that the proposed 

action would have significant effects and those effects cannot be mitigated below the 

level of significance, you should not finish the EA before beginning preparation of an 

EIS.

● Third, OSMRE may elect to prepare an EIS for an action that does not have significant 

effects if the EIS would assist in planning or decision-making. In such cases, you will 

explain in the Notice of Intent and the EIS why you are electing to prepare an EIS. 

10.2 Time Frame for an EIS

You will begin preparing an EIS as early as possible after you have a defined proposed action. 

Once a clear proposed action has been developed OSMRE should begin reviewing existing data 

and reports, identify data gaps, and begin any necessary data collection. If the EIS analyzes a 

project submitted by a proponent, or if a party other than a Federal agency proposes an action, 

you must work with that party to develop a schedule with sufficient time for EIS preparation and 

develop a budget for the completion of the EIS. The EIS timeframe process is dictated through 

Secretarial Order 3355 and the Department of the Interior NEPA Streamlining Initiative, which 

is described in greater detail in Chapter 1 of this handbook. In accordance with Secretarial Order 

3355, an EIS must take no more than one year to complete (through issuance of the ROD) from 

the release of the NOI. The time frame can be significantly affected by the separate processes 

associated with NHPA compliance, consultation under the ESA, and others. These factors should 

be taken into consideration when developing a timeline. OSMRE is required to upload all EISs 

into the Office Of Environmental Policy And Compliance Environmental Management 

Information System (EMIS). In order to enter a new EIS into EMIS you will need login 

information which can be requested for first time users through the EMIS Login page. The 

NEPA database requires you to enter the following information for a new EIS including, but not 

limited to:

● Project Title;

● Bureau/Office;

● Project Location;

● Project Status;

● Project Manager Contact Information; 

● Brief Project Description;

● Bureau NEPA Team Members; and

● Important EIS Milestones (NOI, DEIS, FEIS, ROD). 

The NEPA practitioner will be responsible for ensuring that the information in EMIS remains up 

to date.

10.3 Public Involvement Requirements of an EIS

NEPA requires that environmental information is available to public officials and citizens before 

decisions are made or before actions are taken (40 CFR 1500.1). NEPA requires that agencies 
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make diligent efforts to involve the public in preparing and implementing their NEPA 

procedures. The level of public involvement will vary depending on the geographic location, 

size, and type of project OSMRE is analyzing. Commonly in EISs, public involvement includes 

scoping, release of the Draft EIS, release of the Final EIS, and release of the ROD (40 CFR 

1506.6).

10.3.1 Scoping

Scoping is the process required by CEQ that obligates OSMRE to solicit input on the issues 

raised by and effects of a proposed action. The intent of scoping is to focus the analysis in the 

EIS on significant issues and reasonable alternatives, to eliminate extraneous discussion, and to 

reduce the length of the EIS. 

EIS scoping should be separated into two categories: internal (or informal) scoping, and external 

(or formal) scoping. Internal scoping should always involve appropriate resource specialists 

within the lead agency as well as other federal, tribal, state, and local government agencies 

depending upon the complexity of, and issues raised by, the proposed project. Internal scoping 

helps you to formulate the purpose and need; identify connected, similar, and cumulative actions 

associated with the proposed project; begin preparations for the cumulative effects analysis; 

determine the appropriate level of documentation; and prepare a public participation strategy. 

Internal scoping should include the project solicitor. External scoping should always involve 

notification of the project to the public and solicitation of comments on the scope of analysis and 

potential alternatives through issuance of an NOI. 

The CEQ regulations at 40 CFR 1501.7 require the OSMRE to do the following actions in 

connection with the scoping process: 

● Invite participation from affected federal, state, local, and tribal organizations and 

interested persons; 

● Determine the scope or extent of the EIS and the significant issues to be analyzed 

(scoping is valuable in identifying connected, cumulative, and similar action); 

● Eliminate those issues raised that are not related to potentially significant impacts or 

those that have been covered in other environmental documents; 

● Make assignments for EIS preparation between the lead and cooperating agencies;

● Identify any environmental documents being prepared that have relevance to, but are not 

part of, the scope of the potential EIS; 

● Identify other environmental review and consultation requirements related to peripheral 

regulations, directives, and/or policies; and 

● Discuss the relationship between the timing of the EIS preparation and the agency’s 

tentative planning and decision-making schedule.

Internal Scoping - Develop Work Plan - Internal scoping is an opportunity for OSMRE to begin 

collecting information about existing environmental documentation, the proposed action and 

alternatives, and to outline how the entire EIS process should be conducted. A useful tool during 

internal scoping is a work plan (See Section 4.3.1 Work Plan and Schedule of this handbook for 

more detailed information on the work plan). 
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Internal Scoping - Develop a Strategy for Public Involvement and 

Interagency/Intergovernmental Coordination and Consultation - Public involvement and an 

interagency or intergovernmental coordination and consultation strategy is an integral part of the 

EIS process. Informal internal scoping may occur before the formal scoping period begins. 

Your public involvement strategy will identify: tribes, states, local governments, individuals, 

organizations (and other agencies known to be interested or affected by the proposed action); 

possible cooperating agencies (see Chapter 12); schedules for scoping (including public meetings 

and timing for electronic and postal mail notifications); the process for tracking and recording 

public involvement; and contact lists. You must ensure the public involvement strategy is 

sensitive to language or cultural barriers of the local communities, which can include holding 

meetings in ways that accommodate cultural traditions, values, and methods of communication 

(e.g., visual aids, in-person meetings, interpreters, etc.). 

In preparing your public involvement strategy, you must also be aware of the requirements of the 

Federal Advisory Committee Act of 1972 (FACA). See Chapter 12 for additional information on 

the FACA or contact the Office of the Solicitor. 

The public involvement strategy will likely be updated during the EIS process.

External Scoping - Scoping provides valuable information in identifying issues related to 

cumulative effects. CEQ regulations at 40 CFR 1501.7 require OSMRE to hold an “early and 

open process for determining the scope of issues to be addressed and for identifying the 

significant issues related to a proposed action.” Formal public scoping begins following 

publication of an NOI for an EIS. Public notice must be provided for any EIS-related meetings or 

hearings (40 CFR 1506.6(b)). No guidance is provided by the CEQ on the length of scoping 

periods; however, OSMRE should exercise its discretion in determining the appropriate amount 

of time for a comment period, and articulate its rationale for why that amount of time chosen is 

appropriate. 

In addition to publishing the NOI in the Federal Register, a notice announcing the beginning of 

the formal scoping process should be posted on the agency website, published in local 

newspapers, announced on local radio stations, flyers posted in local community, and mailed to 

interested agencies, organizations, and other stakeholders. OSMRE must develop a mailing list 

for interested agencies, organizations, and other stakeholder letters. The mailing list can be 

developed using previous OSMRE project mailing lists, public comments received on similar 

OSMRE projects, and from cooperating agency mailing lists. The mailing list should be updated 

to reflect any recent changes (including changes to elected leaders) before distribution and be 

continually updated throughout the project based on new information or requests from the public. 

In addition, you may announce the comment period through social media platforms. OSMRE 

must prepare a communications plan and press release for the OSMRE Office of 

Communications. The communications plan outlines the date of release, notification letters, 

OSMRE tweets, newspaper notices, and press releases to be issued. The OSMRE Office of 

Communications is responsible for coordinating the release of the tweet(s) and press release. 
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External Scoping - Publish the Notice of Intent (NOI) to Prepare an EIS - The NOI process 

begins with a determination that an EIS will be prepared. The Project Manager must prepare a 

Notice of Intent for publication in the Federal Register (40 CFR 1501.7 and 1508.22). The NOI 

must be published before the formal scoping process for the EIS begins (40 CFR 1501.7). The 

NOI is published by OSMRE and is not filed through EPA (unlike the filing of the Notice of 

Availability (NOA) for the Draft and Final EISs). The preparing office will send a copy of the 

NOI to DOI’s OEPC. The NOI should be sent to sister bureau agencies pursuant to page 3 of 

ESM 13-2. Note that non-delegated EIS notification to OEPC should occur. The Project 

Manager will send a copy of the NOI to OSMRE HQ, which will then send the NOI to DOI’s 

OEPC. The NOI documentation must contain:

● the EA, if prepared;

● other supporting analyses or documents, if prepared; and 

● the Federal Register NOI.

The NOI may be combined with other notices related to the proposed action if such notices are 

published in the Federal Register. 

Publishing a NOI in the Federal Register begins the formal scoping process and serves as the 

official legal notice that OSMRE, and other agencies if there are cooperators, are preparing an 

EIS. As required by 40 CFR 1508.22, the NOI must include: 

● A description of the draft proposed action and possible alternatives, if available. For 

some OSMRE-initiated actions, where the proposed action has not yet been developed in 

detail, the reason for initiating the EIS must be clearly stated.

● A description of the agency’s proposed scoping process; this should include, when and 

where any scoping meetings will be held. If the time and place of scoping meetings is not 

yet known, the NOI must state how the time and place will be announced. 

● The name and address of the OSMRE contact for the proposed action and EIS. 

A revised NOI may be required if any substantial changes are made to the proposed action or if 

substantial new circumstances or information arise that relate to the proposal or its impacts, such 

that OSMRE would essentially be starting over with the NEPA process. Minor changes may be 

addressed in the NOA for the Draft EIS. 

The DOI Memorandum, “NEPA Document Clearance Process, April 27, 2018,” outlines the 

process for submitting the NOI and associated materials for review and approval to obtain 

clearance to publish the NOI in the Federal Register. Any proposed agency action that is 

determined to require agency review under NEPA must be reviewed according to the procedures 

outlined in the memorandum. In accordance with the memorandum, the NOI is under Stage 2: 

Notice of Intent. Stage 2 Clearance requires the Project Manager to share the following items 

with the DOI Review Team:

● NOI text; 

● Briefing PowerPoint presentation; 

● Maps; 
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● 1-2 page project description consistent with the briefing materials; and 

● Draft congressional notification letter. 

The DOI Review Team has 3 business days to provide comments on the NOI or object to its 

publication. 

10.3.2. Distribution of the Draft EIS and the Departmental Document Clearance Process

You must provide public notification of the Draft EIS availability, and the notification must 

include publication of a NOA in the Federal Register (40 CFR 1506.6(b)). DOI’s Memorandum 

“NEPA Document Clearance Process, April 27, 2018” outlines the process for submitting the 

Draft and Final EIS and NOA and associated materials for review and approval to obtain 

clearance to publish the NOA in the Federal Register. Any proposed agency action that is 

determined to require agency review under NEPA must be reviewed according to the procedures 

outlined in the memorandum. In accordance with the memorandum, the Draft EIS is under Stage 

3: Draft EIS Development Briefing and Stage 4: Draft EIS and NOA Clearance. Under Stage 3 

Clearance, following the close of the scoping period the project lead must prepare and schedule 

an oral briefing to the inform the DOI Review Team of the planned development of the Draft 

EIS. “The briefing shall be held either in person or via teleconference and should highlight the 

opportunities and challenges presented in moving forward with the EIS process.” Under Stage 4 

Clearance, after completion of the administrative Draft EIS, the Project Manager will provide the 

DOI Review Team with an electronic copy of the Draft EIS and schedule an oral briefing. The 

briefing will include an overview of the following:

● Proposed action; 

● Purpose and need; 

● Alternatives; 

● Salient environmental impacts and resource conflicts; 

● Significant opportunities and hurdles that exist in completing the project; 

● The Secretary’s priorities and how they relate to the proposed action; 

● Resolution of resource conflicts; 

● Land-use restrictions; 

● Transportation or access limitations; 

● Elected official views; and

● Inter-jurisdictional considerations. 

No content or format requirements exist for an NOA other than those associated with the 

preparation of notices for publication in the Federal Register. In addition to announcing the 

availability of a document and the public review period, where applicable, the NOA generally 

identifies the purpose and need of the action, describes the proposed action and alternatives, and 

indicates the dates and location of public meetings on the document. 

The public comment period for a Draft EIS must be at least 45 days (40 CFR 1506.10 (c)). A 

press release is usually prepared for national media, local media, or both to announce the 

availability of the Draft EIS and to announce any public meetings or hearings. The OSMRE 

Project Manager must prepare a communications plan and press release for the OSMRE Office 
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of Communications. The communications plan outlines the date of release, notification letters, 

OSMRE tweets, newspaper notices, and press releases to be issued. The OSMRE Office of 

Communications is responsible for coordinating the release of the tweet(s) and press release. The 

OSMRE regional office is responsible for coordinating the release of the letters, radio 

announcements, community flyers, and newspaper notices. 

You may hold public meetings or hearings to receive comments on the Draft EIS. You must 

maintain records of public meetings and hearings, including a list of attendees (as well as 

addresses of attendees who wish to be added to the mailing list) and notes or minutes of the 

proceedings in the decision record. Public meetings are the most common type of public 

outreach conducted by OSMRE for a Draft EIS. There are various ways to organize public 

meetings to suit the needs of the individual project. Consult 455 DM 1 for procedural 

requirements related to public hearings. The Department Manual states that notice of a meeting 

should be published in the Federal Register at least 30 days before the date of the meeting; 

OSMRE should thoroughly consider all aspects of the meeting and project in order to obtain the 

maximum amount of information and views from the public with reasonable dispatch which will 

afford maximum participation by the public. Also check individual program guidance to 

determine any program specific requirements for public meetings and hearings (e.g., NEPA 

related public meetings can be coordinated to occur at the same time as public hearing requests 

for SMCRA significant revisions or BLM Fair Market Value). 

Provide hard or electronic copies (such as DVDs, flash drives, or other electronic media) of the 

Draft EIS according to the planned distribution as outlined in the project’s work plan (e.g., 

mailing to local repositories for the public to read and for those on the mailing list that have 

indicated they require a hard copy or a certain type of electronic media). Plan to distribute hard 

or electronic copies of the Draft EIS before or on the same day copies are published in the 

Federal Register by EPA and OSMRE. OSMRE HQ Program Support Division (PSD) will file 

the Draft EIS with the EPA for publication in the Federal Register. The Draft EIS is filed with 

the EPA through the e-NEPA portal. The EPA has specific filing guidance on its website. 

Requirements include: 

● PDF files submitted must be no greater than 50MB (if they are larger they will need to be 

broken down into smaller files by chapters or subchapters); 

● Use the Full EIS Title as the File Name; and

● All documents must be searchable, contain metadata, and include bookmarks. 

The date the EPA notice appears in the Federal Register initiates the public review period. 

OSMRE will issue its own NOA in the Federal Register the same day as it is published by EPA. 

To allow posting on the OSMRE website, ensure that the NEPA documents are fully compliant 

with Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. § 794d). 

Issuing the Final EIS - Once the Final EIS is prepared, you must print it, file it with the EPA, 

and distribute it to the public. You must provide public notification of the availability of the 

Final EIS, and that notification must include publication of a NOA in the Federal Register for 

actions with effects of national concern (40 CFR 1506.6(b)). The date the EPA notice appears in 

the Federal Register initiates the required minimum 30-day availability period. Although this is 
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not a public comment period, you may receive comments. If you receive any comments during 

the availability period, you should review them to determine if they have merit. For example, if 

any of the comments identify significant new circumstances or information relevant to 

environmental concerns that affect the proposed action, the decision-maker must determine 

whether to supplement the Draft or Final EIS or if minor changes can be made to the FEIS. In 

addition, you may choose to respond to comments in the ROD. All comments received on the 

Final EIS should be retained in the Decision File.

Also note that while you may have requested comment from cooperating agencies during 

internal reviews of the administrative Draft EIS and Final EIS, you do not need to delay 

preparation and issuance of the Final EIS when such agencies do not comment within the 

prescribed time frame (43 CFR 46.415).

10.4 Content and Structural Layout of an EIS

This section outlines a suggested EIS format, although the specific elements and their order 

should remain flexible. For example, in some instances it may be desirable to combine chapters 

three and four into a single chapter. 

Per the DOI’s Memorandum “Additional Direction for Implementing Secretary’s Order 3355, 

April 27, 2018,” the text of an EIS should not exceed 150 pages. For proposals of unusual scope 

or complexity, the lead agency can submit a page-limit waiver requesting approval to increase 

the page limit of the EIS to a maximum of 300 pages. See Chapter 1 of the handbook for a more 

detailed discussion of the Memorandum. 

Front Page - The front page will not exceed one page and will include: 

● Name of Lead Agency(s);

● Project Title;

● Stage of EIS (Draft or Final);

● Date (Month/Year);

● Lead Agency(s) Address; and

● Cost and hours of preparing the EIS (includes cost of Applicant, Contractor, and 

Agency). 

Cover Sheet - The cover sheet will not exceed one page and will include:

● List of responsible agencies including the lead agency and any cooperating agencies; 

● Title and location of the proposed action that is the subject of the EIS; 

● Name, address, and telephone number of the OSMRE contact person; 

● Designation of the EIS as a draft, final, or supplemental; 

● One-paragraph abstract of the EIS that identifies significant impacts and alternatives to 

the proposed action or proposal; and 

● Date by which comments must be received. (40 CFR 1502.11) 

You may choose to include the name and title of the person responsible for preparing the EIS 
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(i.e. OSMRE Project Manager) and the decision-maker for the action.

Dear Reader Letter - You may use a letter signed by the decision-maker responsible for 

preparing the EIS to request review and comment on the draft. You may use this letter to inform 

the reader of other details pertinent to the review. For example, if you anticipate an abbreviated 

Final EIS, the letter may suggest that the reader retain the draft for reference. Make sure you 

include the appropriate privacy language. Be specific about what you want the reader to focus 

on. 

Executive Summary - An EIS must contain a summary identifying the areas of controversy 

(including issues raised by agencies and the public), the issues to be resolved (including the 

preferred choice among alternatives), and the major conclusions of the analysis. The summary 

normally must not exceed 15 pages, and will focus on the key points of each section (40 CFR 

1502.12). A suggested format for the Executive Summary: 

● Section 1 Background and Overview 

● Section 2 Purpose and Need 

● Section 3 Agency Authority and Actions 

● Section 4 Alternatives Analyzed

● Section 5 Protective Measures, Standard Operating Procedures, and Best Management

Practices Applicable to All Action Alternatives

● Section 6 Comparison of Potential Environmental Effects of Each Alternative 

● Section 7 Mitigation Measures

● Table: Impacts of Alternatives by Resource Area

Table of Contents - Ensure that the table of contents is sufficiently detailed to allow the reader to 

quickly locate major subject matter in the EIS, particularly specific impact topics and alternatives 

analyzed in the document. This section should list Chapters and Sections, Appendices, Tables, 

and Figures. 

Chapter 1 Purpose and Need - This chapter includes the following: 

● Purpose and need and identification of the decisions to be made. See Chapter 8 of the 

handbook for a more detailed discussion of purpose and need; 

● General project location, including maps when appropriate; 

● Major authorizing laws and regulations; 

● A brief summary of the scoping report should be included in Chapter 1. After scoping has 

finished, you will prepare a scoping report that discusses the issues raised during the 

scoping process, the issues identified in scoping that will be addressed in the EIS, the 

issues identified in scoping that will not be addressed in the EIS and why they will not be 

addressed, a list of participants in the scoping process, and a summary of the substantive 

comments raised of those participants; 

● Explanation of the relationship of the proposed action to OSMRE policies, plans, and 

programs and to non-OSMRE policies, plans, and programs—including discussions of 

any land use planning or zoning statutes or requirements that may affect or limit the 

proposal. You must identify or reference any germane land use planning or zoning 
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statutes or requirements (40 CFR 1502.16(c), 40 CFR 1506.2(d)). An exhaustive list of 

all applicable laws and regulations is not appropriate; 

● List of all federal permits, licenses, and other entitlements that must be obtained in 

implementing the proposal (40 CFR 1502.25(b)). You may also list authorizing actions 

by State and local entities. To the fullest extent possible, the environmental analyses for 

these related permits, licenses, and approvals must be integrated and performed 

concurrently (40 CFR 1502.25, 40 CFR 1506.2(b)); and

● Table listing the issues considered for analysis (and issues identified, but not analyzed) 

which may be raised by the public, other agencies, or OSMRE. Issues identified but not 

carried forward for analysis should include a brief statement or reference to supporting 

documentation on why they were not analyzed. 

A suggested format includes: 

● Section 1.1 Introduction 

● Section 1.1.1 Document Structure 

● Section 1.1.2 Permit Review Process 

● Section 1.2 Project Location 

● Section 1.3 Background and Overview 

● Section 1.4 Purpose and Need, Decision to Be Made 

● Section 1.5 Agency Authority and Actions 

● Section 1.6 Public Participation (Scoping and Outreach) 

● Section 1.7 Issues 

Chapter 2 Proposed Action and Alternatives - An EIS must describe the proposed action and 

alternatives (40 CFR 1502.14). See Chapter 8 of the handbook for a more detailed discussion of 

the Proposed Action and Alternatives. The EIS must consider a range of reasonable alternatives, 

including the Proposed Action and No Action alternative, and provide a description of 

alternatives eliminated from further analysis (if any exist) with the rationale for elimination (40 

CFR 1502.14(a)). The CEQ regulations direct that an EIS include a description of the No Action 

alternative (40 CFR 1502.14(d)). See Chapter 8 of the handbook for a more detailed discussion 

of the No Action Alternative. The No Action alternative is the only alternative that must be 

analyzed in an EIS that may not respond to the purpose and need for the action. 

This chapter must also document: 

● Design features that would minimize potentially significant impacts (40 CFR 1502.14(f));

● The Agency’s preferred alternative or alternatives, if one or more exists, in the draft 

statement and identify such alternative in the final statement unless another law prohibits 

the expression of such a preference (40 CFR 1502.14(e)); and

● Summary of effects (usually in a table) (40 CFR 1502.14) 

A suggested outline: 

● Section 2.1 Current Operations 

● Section 2.2 Alternative 1 – No Action
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● Section 2.3 Alternative 2 – Proposed Action 

● Section 2.4 Alternative 3 

● Section 2.5 Alternatives Considered but Eliminated from Further Analysis 

● Section 2.6 Regulatory Framework, Protective Measures, Standard Operating Procedures, 

and Best Management Practices Applicable to All Action Alternatives 

● Section 2.7 Summary of Impacts by Alternative (Table), Identification of Preferred 

Alternative

Reasonable Alternatives for an EIS - The CEQ regulations direct that an EIS “rigorously 

explore and objectively evaluate all reasonable alternatives, and for alternatives that were 

eliminated from detailed study, briefly discuss the reasons for their having been eliminated” (40 

CFR 1502.14(a)); see also 42 U.S.C. § 4332(2)(C)(iii)).

The CEQ regulations also direct that an EIS “include reasonable alternatives not within the 

jurisdiction of the lead agency” (40 CFR 1502.14(c)). See Chapter 8 of the handbook for a more 

detailed discussion of Reasonable Alternatives. 

When multiple agencies are cooperating to develop a single EIS for several agency-specific 

decisions, the alternatives should be developed to ensure that each agency will be able to develop 

a joint or its own ROD from the joint Final EIS.

Features Common to All Alternatives - Describe features that are common to all alternatives.

These features need only be described in detail once. For example, identify common features in 

the description of the proposed action and cross-reference the discussion of each alternative to 

which they apply. Another option is to describe common features under a separate heading.

Common features typically include standard operating procedures and other OSMRE 

requirements prescribed by law, regulation, or policy. This may also include a description of 

relevant laws, regulations, required permits, licenses, or approvals. 

Agency Preferred Alternative - The Draft EIS should identify the preferred alternative, and the 

Final EIS must do so (see 40 CFR 1502.14(e), 43 CFR 46.425). 

The identification of a preferred alternative does not constitute a commitment or decision in 

principle, and no requirement exists to select the preferred alternative in the ROD. The 

identification of the preferred alternative may change between a Draft EIS and Final EIS. 

Selection in the ROD of an alternative other than the preferred alternative does not require 

preparation of a supplemental EIS if the selected alternative was analyzed in the EIS. In any 

case, you must provide the rationale for choosing the alternative selected in the ROD (40 CFR 

1506.2(b)).

Various parts of separate alternatives analyzed in the Draft EIS can also be “mixed and matched” 

to develop a complete alternative in the Final EIS as long as the reasons for doing so are 

explained and the effects are adequately covered in the Final EIS.

When an EIS is prepared jointly with another agency, the lead agency with responsibility for 

preparing the EIS, and ensuring its adequacy, is responsible for identifying the agency’s 
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preferred alternative (see Question 4c, CEQ, Forty Most Asked Questions Concerning CEQ's 

NEPA Regulations, March 23, 1981). Similarly, when OSMRE as the lead agency works with 

cooperators and other interested parties, OSMRE’s goal is to select an alternative that is 

acceptable to all cooperating agencies; however, the selection of the preferred alternative in the 

EIS is ultimately OSMRE’s decision (see Chapter 12). Cooperators and other interested parties 

can express their preferences about the alternatives through scoping and comments on the Draft 

EIS. When working with other federal agencies, OSMRE may occasionally prepare an EIS as a 

“joint lead” agency (40 CFR 1506.2(b)). In such circumstances, the joint lead agencies should 

attempt to reach a consensus about the preferred alternative. If consensus cannot be reached, we 

recommend that each joint lead agency clearly identify their preferred alternative and explain the 

basis for their preference and why consensus could not be reached. See Chapter 12 of the 

handbook for a more detailed discussion of coordination with other entities during the NEPA 

process. 

Chapter 3 Affected Environment - You must provide a brief description of the environment 

likely to be affected by the proposed action or alternatives. Limit the description of the affected 

environment to that information relevant to understanding the effect(s) of the proposed action or 

alternative. See Chapter 8 of this handbook for a more detailed discussion of the Affected 

Environment and Use of Relevant Data. You may present the affected environment description 

as its own section, or combined with the environmental effects section. If the EIS will be used to 

document compliance with any supplemental authorities, it may be necessary to provide a 

description of the resources of concern. A general outline: 

● Section 1 General Setting

● Section 2 Description of Current Environment for Resources to be Analyzed (Baseline). 

(Those issues identified in the above Chapter 1 example as “not be analyzed further”, do 

not need to be described in this Section.) 

o Topography and Physiography 

o Geology, Minerals, and Paleontology 

o Air Quality

o Hydrology 

o Alluvial Valley Floors

o Wetlands and Riparian Zones

o Soils

o Public Health and Safety

o Vegetation

o Fish and Wildlife

o Special Status Species (including threatened and endangered species)

o Land Use

o Cultural Resources

o Visual Resources

o Noise

o Transportation 

o Hazardous and Solid Waste 

o Climate Change

o Socioeconomics 
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o Environmental Justice 

o Short Term Uses and Long Term Productivity 

o Unavoidable Adverse Effects

o Visual Resources

o Prime Farmlands

Chapter 4 Environmental Effects/Consequences - An EIS must describe and provide a detailed 

environmental effects analysis of the proposed action and each alternative (40 CFR 1502.16). 

Describe the assumptions and assessment criteria used in analyzing impacts. Identify any timeframes, rates of change, and other common data pertinent to the analysis. Explain assumptions 

used when information critical to the analysis was incomplete or unavailable. Include relevant 

reasonably foreseeable development scenarios for certain programmatic EIS and for cumulative 

effects analysis. See Chapter 8 of the handbook for a more detailed discussion of the Affected 

Environment and Use of Relevant Data. NEPA regulations outline what to include in Chapter 4: 

“the environmental impacts of the alternatives including the proposed action, any adverse 

environmental effects which cannot be avoided should the proposal be implemented, the 

relationship between short-term uses of man’s environment and the maintenance and 

enhancement of long-term productivity, and any irreversible or irretrievable commitments of 

resources which would be involved in the proposal should it be implemented” (40 CFR 1502.16).

Discussion of impacts may either be organized by alternative with impact topics as subheadings 

or by impact topic with alternatives as subheadings. Generally, if impacts to a particular resource 

for one alternative are the same as another alternative, you should refer to that section in the EIS 

rather than repeating the information. A suggested outline (if other alternatives are analyzed, 

those need to be included for each resource as well):

● Section 4.1 Introduction

● Section 4.1.1 Criteria for Impact Intensity

● Section 4.2 Topography 

● Section 4.2.0 Significance Criteria 

● Section 4.2.1 Proposed Action - Direct Effects to Topography 

o No Action - Direct Effects to Topography 

● Section 4.2.2 Proposed Action – Indirect Effects to Topography 

o No Action - Indirect Effects to Topography 

● Section 4.2.3 Proposed Action – Cumulative Effects to Topography 

o No Action - Cumulative Effects to Topography 

Based on the effects analysis in this chapter, develop a summary comparison of effects by 

alternative and include the summary in the section that describes the alternatives in Chapter 2. 

You must describe direct, indirect, and cumulative impacts of each alternative (40 CFR 

1508.25(c)). We recommend that you quantify the effects analysis as much as possible and 

describe effects in terms of their context, duration, and intensity. 

Base the analysis of impacts on the assumption that all regulations, standard operating 

procedures, and other standard OSMRE-wide requirements will be followed in implementing the 

proposed action and alternatives unless changes in such practices are specifically being 

addressed in the analysis or considered in an alternative.
10-14 

You must consider long-term impacts and the effects of the project in narrowing the number of 

future options (e.g., project impacts related to soils such that it would prevent the land from 

being used for agriculture in the future). Describe the relationship between short-term uses of the 

environment and the maintenance and enhancement of long-term productivity, and any 

irreversible or irretrievable commitments of resources that would be involved in the proposal if it 

is implemented (40 CFR 1502.16). 

All “relevant, reasonable mitigation measures that could improve the project are to be 

identified,” even if they are outside the jurisdiction of the agency (See Question 19b, CEQ, Forty 

Most Asked Questions Concerning CEQ’s NEPA Regulations, March 23, 1981). See Chapter 11 

of this handbook for a more detailed discussion of mitigation. If mitigation measures are 

identified, those measures must be analyzed “even for impacts that by themselves would not be 

considered significant” (See Question 19a, CEQ, Forty Most Asked Questions Concerning 

CEQ’s NEPA Regulations, March 23, 1981). Analyze and compare the effectiveness of 

mitigation measures proposed and the effects if the project were to proceed without mitigation. 

Include an assessment of any residual direct, indirect, or cumulative effects that will remain after 

application of the mitigation measures.

Chapter 5 Consultation/Coordination (Tribes, Individuals, Organizations, or Agencies) -

Include a brief history of the public involvement (including scoping) undertaken, a list of 

agencies (including cooperating agencies), and organizations consulted, a list of preparers and 

their expertise, and a list of recipients of the EIS. In an Appendix to the Final EIS, you must 

include a response to comments section.

Public Involvement and Scoping

● Summarize the scoping process, including efforts to involve the public in EIS 

preparation. Briefly describe the scoping meetings (when, where, how many, topics), the 

major issues that arose during scoping if they have not been discussed in Chapter 1, and 

the comments received. 

● Include names of any federal, state, or local agencies, major organizations, or individuals 

consulted. 

● Identify any unresolved environmental issues or conflicts discovered during scoping. 

● Include a list of all agencies, organizations, and people to whom you will send copies. 

This list may be organized alphabetically under “Federal agencies,” “State and local 

agencies,” “Indian tribes,” “organizations,” and “individuals.” If this list of individuals is 

excessively long, you may place it in the Decision File instead of the EIS but note in the 

EIS that a complete list is found in the Decision File. In the Final EIS, provide an updated 

list of recipients, as necessary, to indicate who will be receiving the Final EIS.

Chapter 6 List of Preparers/Contributors - An EIS must include a list of individuals, including 

names and qualifications, primarily responsible for preparing the document or significant 

supporting reports (40 CFR 1502.10(h) and 40 CFR 1502.17)). As noted in Chapter 9, the CEQ 

provides guidance for contracting EAs and EISs at 40 CFR 1506.5(b) and (c). The conflict of 

interest disclaimer for EISs should be included in Chapter 6. 
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Other Material - The last section of an EIS may include a bibliography, a glossary, a list of 

acronyms, an index of key words, and appendices. 

● The bibliography includes a list of references cited in the EIS, including written material 

and personal communications. 

● The glossary would define, using plain language, any technical or other terms not 

understandable to an average lay reader. 

● An alphabetically ordered index should contain enough key words from the EIS to allow 

the reader to find the information (see Questions 26a and 26b, CEQ, Forty Most Asked 

Questions Concerning CEQ’s NEPA Regulations, March 23, 1981). 

● Appendices should support critical analyses in the EIS. An appendix is not a data bank or 

library for total reference support but contains major substantiating data, essential 

relevant descriptions of environmental components, or other information necessary for 

complete use of the EIS for analytical or decision-making purposes. You may keep other 

supporting material in the Decision File and make it available if requested. 

Finalizing the EIS - When the public comment period for the Draft EIS ends, the lead agency 

prepares a Final EIS (unless a decision is made to terminate the EIS). There are two common 

approaches when finalizing the EIS based on the level of changes required from Draft to Final: 

(1) Abbreviated Final EIS and (2) Full Text Final EIS. 

Abbreviated Final EIS - In deciding whether an abbreviated EIS is appropriate, you should 

consider the extent of the changes that will need to be made to the EIS as a result of comments 

on the Draft EIS. If only minor changes are expected to the Draft EIS in response to comments, 

you may prepare an abbreviated Final EIS. An abbreviated Final EIS only contains a cover sheet, 

a summary of, and reasoning for, the issues analyzed in the abbreviated EIS, copies of 

substantive comments received on the Draft EIS, responses to those comments, and an errata 

section with specific modifications and corrections to the Draft EIS made in response to 

comments (40 CFR 1503.4). An abbreviated Final EIS requires the reader to have access to both 

the Draft EIS and the Final EIS. Because a Draft EIS is usually required to understand changes in 

an abbreviated Final EIS, provide files for the Draft EIS with the abbreviated Final EIS for efiling with EPA (e.g., Mountaintop Mining/Valley Fills in Appalachia Final Programmatic EIS).

Full Text Final EIS - If you make major changes to the Draft EIS, the Final EIS should be a 

complete full text document, though you have discretion to use a full text Final EIS even if there 

are not major changes to the Draft EIS. The content of a full text document is substantially the 

same as the corresponding Draft EIS except that it includes copies of substantive comments on 

the Draft EIS, responses to those comments, and changes in or additions to the text of the EIS in 

response to comments (40 CFR 1503.4). A full text Final EIS may incorporate by reference some 

of the text or appendices of the Draft EIS. See Chapter 5 of the handbook for a more detailed 

discussion of incorporation by reference.

Supplementing a Draft or Final EIS - The standard procedural and documentation requirements 

for preparing an EIS described in this chapter also apply to supplementing an EIS, except that in 

the case of a supplement, conducting additional scoping is optional (40 CFR 1502.9(c)).
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The supplement should address the following two elements:

● Identify the EIS being supplemented, and explain the relationship of the supplement to 

the prior analysis early in the text; and

● Identify the changes in the proposed action, the new information, or changed 

circumstances that require OSMRE to supplement the EIS. 

The OEPC (516 DM 1.14) and the Office of the Solicitor must be consulted before proposing to 

prepare a final supplement without first preparing an intervening draft. 

You must circulate a supplement in the same manner as a Draft or Final EIS (40 CFR 1502.9(c)). 

If good reason exists to believe the interested and affected public will have a copy of the Draft or 

Final EIS, you only need to circulate the supplement. If you do not include the EIS being 

supplemented with the supplement, the EIS must be reasonably available for public inspection 

(40 CFR 1506.6(f)).

Terminating the EIS Process - When you terminate an EIS process without completing a 

Record of Decision, complete your Decision File, and document the reason or reasons for ending 

the process. You will publish a notice in the Federal Register referring to the relevant Notice of 

Intent to prepare the EIS and state that you are terminating the EIS before completion and your 

reasons for doing so. If you have already published a Draft EIS, we recommend that you inform 

all who commented on the Draft EIS that you are ending the process and briefly explain why.

10.5 When to prepare a Record of Decision (ROD)

A ROD is prepared for actions covered by a Final EIS. The ROD may be integrated into any 

other record prepared by OSMRE, such as the decision document for a permit application 

package, a final rulemaking package, the preamble discussion of a final rule, or a statement of 

reasons for an unsuitability petition. 

The ROD should: 

● State the decision; 

● Identify all alternatives considered by the agency in reaching its decision, specifying the 

alternative or alternatives designated environmentally preferable. This may be different 

from the agency’s preferred alternative; and

● State whether all practicable means to avoid or minimize environmental harm from the 

alternative selected have been adopted and, if not, why they were not. (40 CFR 1505.2).

DOI’s Memorandum “NEPA Document Clearance Process, April 27, 2018” outlines the process 

for submitting and acquiring clearance approval for the ROD and associated materials. Any 

proposed agency action that is determined to require Departmental review under NEPA must be 

reviewed according to the procedures outlined in the memorandum. The ROD is covered under 

both the Stage 5: Final EIS and NOA Clearance and the Stage 6: ROD and NOA Clearance. 

Under Stage 5 Clearance, OSMRE will submit a Draft ROD to the DOI Review Team and 
10-17 

present the content of the ROD at the DOI Review Team briefing. Under Stage 6 Clearance, 

OSMRE submits a one-page notice to the DOI Review Team seeking objections to the Final 

ROD approval. The one-page notice must include the following: 

● A brief discussion of any substantive issues that arose during the Final EIS notice period; 

● The Final ROD text; and

● Confirmation that the text did not change from what was initially reviewed, or advise of 

any outstanding issues that need to be addressed. 

10.6 Public Involvement Requirements for a ROD

OSMRE will provide the appropriate public notice that the ROD is available for public review as 

required by 40 CFR 1506.6(b). However, no specific requirement exists to publish the ROD 

itself, either in the Federal Register or elsewhere. The ROD may be integrated with any other 

record prepared by the OSMRE (40 CFR 1505.2). Examples of this integration include 

incorporation of the ROD into the Federal Register notice for a final rule or a decision on a 

petition to declare lands unsuitable for mining (30 CFR 769.18). No action concerning a proposal 

may be taken until the ROD has been issued, except under the conditions specified in 40 CFR 

1506.1. 

Except as described below, the ROD cannot be issued until the later of the following dates: 

● 90 days after the publication of the EPA’s notice of filing of the Draft EIS. 

● 30 days after publication of the EPA’s notice of filing of the Final EIS (40 CFR 

1506.10(b)). 

You must provide public notification of the availability of the ROD, and that notification must 

include publication of a NOA in the Federal Register for actions with effects of national concern 

(40 CFR 1506.6(b), Question 34a, CEQ, Forty Most Asked Questions Concerning CEQ's NEPA 

Regulations, March 23, 1981). You must mail notices to those who have requested such (40 CFR 

1506.6(b), Question 34a, CEQ, Forty Most Asked Questions Concerning CEQ’s NEPA 

Regulations, March 23, 1981). You may provide a copy of the ROD or a postcard notifying the 

reader of availability of the posted document, to all substantive commenters on the Draft or Final 

EIS and to others known to have a strong interest in the proposal(s).

10.7 Content of a ROD 

Introductory Material - You may prepare a cover sheet that provides introductory material. The 

cover sheet should have a title and display the EIS number, preparing office and office location, 

cooperating agencies, signatures, date of signatures, and the titles of the responsible and 

concurring officials.

Summary - A summary is needed only if the ROD exceeds 10 pages. 

Decision - Include a concise description of the approved action. Identify all important aspects 

and details of the decision. Provide a clear description of what is and what is not being approved. 
10-18 

Attach to the ROD, stipulations and other design features that are part of the decision or 

incorporated by reference. Present any committed mitigation measures and related monitoring 

and enforcement activities, if any, for the selected alternative. See Chapter 11 of this handbook 

for a more detailed discussion on mitigation. Indicate whether all practicable mitigation 

measures have been adopted. You must identify any mitigation measures that were not selected 

and give a brief explanation of why such measures were not adopted (40 CFR 1505.2(a)).

Alternatives - Identify all of the alternatives considered. You must identify the environmentally 

preferable alternative in this section (40 CFR 1505.2 (b)). The environmentally preferred 

alternative best promotes the national environmental policy in Section 101 of NEPA. The 

environmentally preferred alternative is ordinarily the alternative that causes the least damage to 

the biological and physical environment and best protects, preserves, and enhances the resources 

that are present. (See Question 6a, CEQ, Forty Most Asked Questions Concerning CEQ's NEPA 

Regulations, March 23, 1981). You may discuss preferences among alternatives based on 

relevant factors including economic and technical considerations and agency statutory missions. 

Management Considerations - Provide the rationale for the decision. You must identify and 

discuss all such factors including any essential considerations of national policy which were 

balanced by the agency in making its decision and state how those considerations entered into its 

decision (40 CFR 1505.2 (b)). Explain how the alternatives respond to the purpose and need for 

the action. You must also state whether all practicable means to avoid or minimize 

environmental harm from the alternative selected have been adopted, and if not, why they were 

not. (40 CFR 1505.2 (c)).

Public Involvement - Briefly describe efforts to seek the views of the public throughout the EIS 

process.

10.8 Structural layout of a ROD 

A suggested format which satisfies the ROD content requirements specified in 40 CFR 1505.2, is 

provided below. 

Chapter 1. Introduction

 1.1 Background and Overview 

 1.2 Purpose and Need for the Action 

 1.2.1 Purpose 

 1.2.2 Need 

 1.3 Agency Authority and Actions 

 1.3.1 Lead Agencies

 1.3.2 Cooperating Agencies 

 1.4 Key Scoping Issues Considered and Addressed 

Chapter 2. OSMRE Decision and Basis for Decision

 2.1 Decision 

 2.1.1 Conditions 

 2.2 Description of the Selected Alternative 

 2.3 Environmentally Preferred Alternative
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 2.4 Other Alternatives Considered 

 2.4.1 Alternative 1 – No Action

 2.4.2 Alternative 3 – Proposed Action Plus Environmental Protection Measures 

 2.4.3 Alternatives Considered but Eliminated from Further Analysis 

 2.5 Basis for Decision 

 2.5.1 Purpose and Need

2.5.2 Selected Alternative Compliance with State and Federal Laws

 2.5.3 Environmental Effects 

Chapter 3. Public Involvement

 3.1 EIS Scoping Period 

 3.2 Draft EIS Public Meeting and Public Review 

 3.3 Notice of Acceptability 

Chapter 4. Additional Information

Chapter 5. Approval

List of Appendices

NONE
11-1 

CHAPTER 11: MITIGATION, MONITORING AND ADAPTIVE MANAGEMENT

NEPA promotes efforts to prevent or eliminate environmental harm. In order to meet this 

objective, OSMRE should consider using mitigation, monitoring, and adaptive management 

strategies when evaluating potential impacts of alternatives within each resource area. 

11.1 Mitigation 

Mitigation often plays a central role in the avoidance or minimization of adverse environmental 

impacts. The CEQ regulations define mitigation as including (40 CFR 1508.20): 

● avoidance of an impact through not taking an action or parts of an action; 

● minimizing impacts by limiting the degree or magnitude of an action; 

● rectifying impacts by repairing, rehabilitating, or restoring the affected environment;

● reduction or elimination of impacts by preservation and maintenance operations during 

the life of the action; and

● Compensating for the impact by replacing or providing substitute resources or 

environments. 

The CEQ regulations require inclusion of appropriate mitigation measures in alternatives (40 

CFR 1502.14(f)). In most cases, mitigation measures should be developed and incorporated as 

integral elements of the alternatives. Often, mitigation consists of best management practices 

designed to minimize impacts that are included as elements common to all alternatives. Although 

not common, it is possible to develop a “mitigation alternative” for consideration and analysis in 

the NEPA process. 

When developing mitigation measures, an expectation exists that OSMRE has the authority to 

carry out the measures and that human and capital resources are available to perform the 

mitigation and monitoring. The mitigation measures that you develop should be reasonable, 

effective, and feasible ways to reduce, eliminate, or compensate for impacts to one or more 

affected resources. Where appropriate, mitigation measures should include contact information 

of responsible parties to the action, monitoring and reporting requirements, physical location of 

documents for review, and any applicable deadlines pertaining to implementation. 

EXAMPLE

 • The construction personnel will be required to use personal protective equipment during 

reclamation operations. 

 • Dust produced during excavation activities will be minimized using water for wetting the 

haul roads and excavation areas during construction activities, as necessary.

The CEQ regulations also define mitigation as providing compensation for impacts by replacing 

or providing substitute resources or environments (40 CFR 1508.20); however, in accordance 

with the Secretarial Order No. 3360, Rescinding Authorities Inconsistent with Secretary’s Order 

3349 “American Energy Independence,” the following documents were rescinded and should not 

be used when developing potential mitigation measures for OSMRE actions: 
11-2 

● Departmental Manual Part 523, Chapter 1: Climate Change Policy, dated, December 20, 

2012; 

● Departmental Manual Part 600, Chapter 6: Landscape-Scale Mitigation Policy, dated, 

October 23, 2015; 

● Bureau of Land Management, Manual Section 1794 - Mitigation, dated, December 22, 

2016; and 

● Bureau of Land Management, Mitigation Handbook H-1794-1, dated, December 22, 

2016. 

One of these rescinded documents, Departmental Manual Part 600, Chapter 6: Landscape-Scale 

Mitigation Policy, previously included an outline on how compensatory mitigation is used and 

implemented within DOI. Compensatory mitigation is distinct from mitigation because 

mitigation seeks to minimize impacts at the site of the proposed action whereas compensatory 

mitigation seeks to reduce impacts by having the project proponent compensate for the impacts 

from the project by replacing or providing substitute resources or environments through the 

restoration, establishment, enhancement, or preservation of resources and their values, services, 

and functions (40 CFR 1508.20). Compensatory mitigation is generally no longer considered 

when outlining specific mitigation measures for OSMRE actions. If you are considering 

compensatory mitigation measures which are voluntary from the applicant, are pursuant to 

another law, or are due to extraordinary circumstances you will need to consult with the Project 

Solicitor. Voluntary mitigation measures from an applicant and mitigation measures imposed by 

the regulatory authority for the Permit Application Package are still valid.

11.2 Monitoring

Monitoring can be used to ensure compliance with decisions, measure the effectiveness or 

overall success of decisions, and to determine whether or not decisions need to be modified if the 

desired outcomes are not being achieved. 

11.2.1 Purposes of and Requirements for Monitoring

The level and intensity of monitoring varies according to the purpose being served. In 

developing a NEPA-related monitoring program, carefully consider the following purposes of 

monitoring. 

To Ensure Compliance with Decisions - Monitoring will be used to ensure that actions taken 

comply with the terms, conditions, and mitigation measures identified in the decision and 

supporting documents (e.g., biological opinion). This monitoring may identify underlying 

reasons for non-compliance. You must provide compliance monitoring where mitigation 

measures are required to reach a FONSI.

To Measure the Effectiveness or Success of Decisions and the Accuracy of Analysis - While 

not required by NEPA, monitoring can be implemented to determine if the decisions are 

achieving intended environmental objectives, and whether predicted environmental effects were 

accurate. This could include the validation of conceptual models and assumptions used in the 

analysis. Results of monitoring could also support future CEs.
11-3 

To Determine How to Modify Decisions if the Purpose and Need or Desired Outcomes Are Not 

Being Achieved - If decisions are not meeting the purpose and need or achieving desired 

outcomes, you may use monitoring to identify necessary changes to the project.

In a ROD, a monitoring and enforcement program must be adopted and summarized where 

applicable for any mitigation identified as part of the EIS (40 CFR 1505.2(c)). The ROD must 

identify the monitoring and enforcement programs that became part of the decision and plainly 

indicate they were adopted in the agency’s decision (see Question 34c, CEQ, Forty Most Asked 

Questions Concerning CEQ’s NEPA Regulations, March 23, 1981). The ROD must delineate the 

monitoring measures in sufficient detail to constitute an enforceable commitment, or incorporate 

by reference the portions of the EIS that do so (see Question 34c, CEQ, Forty Most Asked 

Questions Concerning CEQ’s NEPA Regulations, March 23, 1981).

A FONSI may also impose requirements for mitigation and related monitoring and enforcement 

activities. Monitoring activities that are adopted in a FONSI must be implemented as specified in 

the FONSI. 

11.2.2 Developing a Monitoring Plan or Strategy 

Except for monitoring activities specifically addressed in the decision document, the responsible 

decision-maker has discretion in scheduling monitoring activities, determining monitoring 

approaches or methodologies, and establishing monitoring standards. You will develop a written 

monitoring plan that incorporates monitoring schedules, approaches, and standards. 

You will also consider the following factors when developing a monitoring plan: 

Coverage –You should tailor the scope of monitoring activities to meet the intended purpose of 

monitoring. 

GENERAL PRINCIPLES

Monitoring activities may be limited to determining if the action is implemented as planned 

(compliance monitoring), or designed to determine if the action is meeting goals and objectives 

(effectiveness monitoring).

Frequency – The establishment of specific time frames are recommended for each monitoring 

activity. 

Intensity/Complexity – The intensity and complexity of monitoring activities will vary according 

to the issues at hand and with the purpose of the monitoring. 
11-4 

GENERAL PRINCIPLES

Compliance monitoring to determine if an action is being implemented as described in the 

decision document may be relatively simple. However, determining whether implementation of 

an action is achieving complex ecological objectives will involve more complex monitoring 

techniques and analysis.

11.2.3 Implementing Monitoring

It is important that managers establish priorities for implementing monitoring activities. The 

following are situations or circumstances in which it is particularly important to require 

monitoring: 

● A ROD adopts mitigation measures to reduce environmental impacts (monitoring 

required).

● A decision authorizing an action involves new or untested procedures or methods, or 

involves a high degree of uncertainty about the effects of the procedure or method. 

● Effects are based on incomplete or unavailable information.

● Uncertainty exists about the interactive effects of multiple resources or uses.

● The decision may affect highly sensitive or important resource values. 

11.3 Adaptive Management 

Adaptive management is “a system of management practices based on clearly identified 

outcomes and monitoring to determine whether management actions are meeting desired 

outcomes; and if not, facilitating management changes that will best ensure that outcomes are 

met or re-evaluated” (43 CFR 46.30). Adaptive management addresses the fact that our 

knowledge of natural systems is incomplete and uncertainty often exists with respect to whether 

actions will achieve desired outcomes. Through use of adaptive management, it is possible to 

adjust management actions over time as knowledge of the natural system is gained through 

monitoring, thereby, allowing management actions to more fully achieve the intended results. 

Adaptive management is a structured and iterative process. It is not “trial and error” 

management. 

An adaptive management framework should include a variety of components. Several central 

components are described below. [See Adaptive Management: The U.S. Department of the 

Interior Technical Guide.] At a minimum, an adaptive management framework must include: 

● desired outcomes of the management actions that are clearly defined; 

● initial management actions aimed at achieving the desired outcome; 

● activities that are monitored to determine whether the desired outcome is being achieved; 

and 

● adaptive actions that will be taken if monitoring indicates that desired outcomes are not 

being achieved. 

You should use adaptive management as appropriate (43 CFR 46.145). Adaptive management is 

most appropriate in situations when significant uncertainties exist pertaining to the long-term 
11-5 

implications of management actions. In these situations, monitoring can be used to determine if 

adjustments should be made to future implementation decisions. For example, if you are 

preparing a wildlife management plan and a close relationship exists between deer browsing and 

vegetation regeneration, using adaptive management is likely appropriate. As part of the plan, 

you might define a particular level of vegetation regeneration as the key desired outcome of deer 

management activities. An adaptive management framework describes how monitoring would be 

used to determine if initial management actions achieve desired outcomes, and evaluate the 

environmental impacts of additional management actions needed if desired outcomes are not 

met. 

Adaptive management is less appropriate in situations where the impacts of management actions 

are relatively certain or little opportunity exists to adjust the future action implementation. For 

example, for a proposal involving construction of a new surface facility (e.g., office building) at 

the mine, you are not likely to use adaptive management because the impacts of the action are 

likely well understood and the action, once taken, does not easily lend itself to subsequent 

adjustments. 

If you propose using adaptive management, an adaptive management framework should be 

incorporated as an element of one or more of the alternatives under consideration. Regardless of 

whether adaptive management is included in multiple alternatives or exists as a stand-alone 

alternative, you should ensure the description and analysis of the adaptive management 

framework in your NEPA document describes and analyzes the central adaptive management 

components discussed above. 

If the adaptive management framework and its impacts, including those of potential subsequent 

actions, are clearly pre-specified and described, then in most cases actions may be adjusted 

during implementation without the need for further NEPA review (43 CFR 46.310(d); 43 CFR 

46.415(b)(3)). OSMRE does not typically prepare adaptive management plans for our actions; 

however, existing adaptive management plans would likely be discussed if adaptive management 

plans are currently being used to manage resources impacted by OSMRE actions. As shown in 

the example, the resource being impacted by the OSMRE action is part of an adaptive 

management program through the National Park Service which was evaluated in an 

Environmental Impact Statement. 
11-6 

EXAMPLE

KAYENTA MINE ENVIRONMENTAL ASSESSMENT (2017)

For the purposes of recovery goals for humpback chub, the upper and lower basins are divided at 

the Glen Canyon Dam in Arizona. Separate objective, measurable recovery criteria were 

developed for each of the recovery units (i.e., the upper basin including the Green River and Upper 

Colorado River subbasins; and the lower basin including the mainstem of the Colorado River and 

its tributaries downstream to the Lake Mead National Recreation Area) to address the unique 

threats and use site-specific management actions necessary to minimize or remove these threats. 

The recovery units encompass three management areas under three separate recovery or 

conservation programs: Upper Colorado River Endangered Fish Recovery Program, the Glen 

Canyon Dam Adaptive Management Program, and the Lower Colorado River Multi-Species 

Conservation Program. Humpback chub will be considered eligible for downlisting from 

endangered to threatened and for removal from ESA protection when all the following conditions 

are met:

• Maintain six self-sustaining populations;

• Essential habitats, including required instream flows, are legally protected; and 

• Other identifiable threats that could significantly affect the population are removed.

List of Appendices

NONE
12-1 

CHAPTER 12: COORDINATING WITH COOPERATING AGENCIES, JOINT LEAD 

AGENCIES, AND ADVISORY COMMITTEES DURING THE NEPA PROCESS

The CEQ and DOI regulations emphasize the importance of consulting, coordinating, and 

cooperating with other agencies during the NEPA process (40 CFR 1501.6; 43 CFR 46.155). 

Federal agencies must consult, coordinate, and cooperate with other federal, state, local, and 

tribal governments and other bureaus and federal agencies whenever possible concerning actions 

and environmental impacts within the jurisdictions of, or of interest to those entities (40 CFR 

1506.2, 43 CFR 46.155). This chapter describes OSMRE’s roles and responsibilities when 

serving as a cooperating agency or joint lead agency within DOI and with other federal agencies 

and state agencies. In addition, this chapter provides instructions for working with the Federal 

Advisory Committee Act (FACA) and other advisory committees. 

12.1 Working with Other DOI Bureaus as a Cooperating Agency to Develop NEPA 

Documents

Certain differences exist when cooperating agencies are within DOI versus when they are 

external to DOI. Consequently, DOI has issued specific guidance for bureaus who serve as 

cooperating agencies with one another in DOI’s Memorandum, Standardized Intra-Department 

Procedures Replacing Individual Memoranda of Understanding for Bureaus Working as 

Cooperating Agencies. The memorandum states that individual MOUs between bureaus (who 

qualify as a cooperating agency under 42 U.S.C. § 4332 and 40 CFR 1501.6), will not be 

developed when bureaus are asked to participate in the NEPA process where the DOI bureau is 

the lead agency.

12.1.1 Determination of Lead Agencies When Working with Other DOI Bureaus

When a project proponent or agency proposes an action as defined by 40 CFR 1508.18, lead and 

cooperating agencies must be determined as soon as practicable (40 CFR 1501.5 and 40 CFR 

1501.6). The lead and cooperating agency must immediately designate a Point of Contact (POC) 

to represent each agency in consultations about that project or action. In instances where 

agencies are co-leads, the decision must be made as to which agency will act as the 

administrative lead agency with final responsibility to complete the NEPA process. 

When OSMRE is the Lead Agency, OSMRE will: 

● Request the participation of each cooperating agency in the NEPA process at the earliest 

practicable time;

● Use the environmental analysis and proposals of cooperating agencies with jurisdiction, 

by law or special expertise, to the maximum extent possible, consistent with its 

responsibility as the lead agency; 

● To the extent possible: 

o Recover costs from project proponents; and 

o Fund major activities or analyses it requests from cooperating agencies, and include 

such funding requirements for NEPA analysis in project budget requests, to the extent 

that project proponents are not already paying for the analysis. 
12-2 

● Organize the NEPA review for a proposed project or action, including assigning a Senior 

Executive Service (SES) official to lead the NEPA review process and identifying a 

primary POC at each cooperating or participating agency;

● Meet with a cooperating agency when requested;

● Prepare and coordinate Federal Register notices and Environmental Impact Statement 

(EIS) filing with EPA;

● Prepare the sole NEPA analysis for the project in coordination with the cooperating 

agencies. All NEPA analyses should include an adequate level of detail to inform 

decision-makers about the environmental impacts of a proposed project or action while 

maintaining the DOI’s document and timeline standards;

● Inform cooperating agencies of new information and changes related to the project or 

action;

● Review and consider comments submitted by cooperating agencies;

● If required, develop the NEPA document’s purpose and need, identify the range of 

alternatives to be analyzed, identify the preferred alternative(s), and determine whether to 

develop the preferred alternative to a higher level of detail;

● Provide cooperating agencies the opportunity to review and contribute to all relevant and 

substantive phases of the NEPA analysis and its preparation; 

● If required by One Federal Decision (OFD), prepare and publish a single ROD for all 

cooperating agencies responsible for the project or action to support any necessary 

authorization decisions. The ROD will incorporate the decisions of each such agency; 

and

● Maintain a contemporaneous Decision File of the information assembled and used by the 

cooperating agencies as the basis for their NEPA review.

When OSMRE is a Cooperating Agency, OSMRE will:

● Participate in the NEPA process beginning at the earliest practicable time;

● Participate in the scoping process, attend regularly scheduled meetings, and engage in 

any other activity necessary to efficiently conduct a project’s NEPA analysis;

● Upon the request of the lead agency, assume responsibility for developing information 

and preparing environmental analyses including portions of an EA or EIS in which 

OSMRE has jurisdiction or special expertise;

● Review and submit comments to the lead agency on the environmental analysis 

performed by the lead and other cooperating agencies within the specified timeframe;

● If required by OFD, participate in the preparation of a single ROD by providing technical 

drafting assistance and comments that support the underlying authorization decision; 

● Compile a contemporaneous Decision File composed of all documents and 

communications that inform OSMRE’s analysis, and systematically provide those 

documents to the lead agency; and 

● Make staff support available at the lead agency’s request, within the OSMRE’s available 

resources.
12-3 

12.1.2 Dispute Resolution Between OSMRE and Other DOI Bureaus

Any disputes arising among lead and cooperating agencies in the NEPA review process will be 

promptly brought to the attention of the appropriate first line SES member with authority over 

the project, or the office responsible for the NEPA review, and be resolved by them. 

● In the event that first line SES members are unable to resolve such disputes, the issue will 

be raised to the appropriate Bureau directors for resolution; 

● In the event that Bureau directors are unable to resolve such disputes, the issues will be 

raised to the appropriate Assistant Secretaries for resolution; and 

● In the event that Assistant Secretaries are unable to resolve such disputes, the issue will 

be raised to the Office of the Deputy Secretary for resolution.

12.2 NEPA Timelines, Schedules, and Document Page Counts for Cooperating Agencies

When conducting a NEPA analysis, all cooperating agencies and DOI will strive to meet the 

page count and timelines, consistent with S.O. 3355 and accompanying guidance. This is best 

accomplished by agreeing upon a timeline or schedule of milestones. 

● If a proposed project or agency action qualifies as a Fixing America’s Surface 

Transportation Act (FAST) or OFD action, then agencies within DOI will comply with 

the timelines set forth in the OFD MOU;

● To comply with agreed upon timelines, agencies within DOI will cooperate, 

communicate, share information, and resolve conflicts that could prevent timely 

completion of the NEPA review; and 

● Each agreed upon project or action schedule will be uploaded to the NEPA and Permit 

Database by the lead agency, and where appropriate, the Federal Permitting Dashboard, 

as soon as is practicable based upon the timely filing of the project or action’s NOI. 

12.3 Cooperating Agency Status with Entities External to DOI in the Development of 

NEPA Documents

Cooperating agencies have jurisdiction by law or special expertise (40 CFR 1508.5) where: 

● Jurisdiction by law means the other agency has authority to approve, veto, or finance all 

or part of the proposal (40 CFR 1508.15). 

● Special expertise means “statutory responsibility, agency mission, or related program 

experience” (40 CFR 1508.26).

We must consider a request by any federal agency to participate as a cooperating agency (43 

CFR 46.225(3)(c)). If we decide to deny the request, we must inform the other agency of our 

reasons for such denial in writing (separate from the EIS) and document our decision in the EIS. 

Working with cooperating agencies during preparation of an EA is not required but could 

certainly be beneficial.
12-4 

For entities external to DOI, cooperating agency relationships, including the respective roles and 

commitments, should be established in writing through a memorandum of understanding (MOU) 

(43 CFR 46.225(d)). In the case of a cooperating relationship with a non-federal agency, the DOI 

NEPA regulations require that an MOU be developed and adopted and require that it include a 

commitment to maintain confidentiality of documents and deliberations before the NEPA 

document’s public release (43 CFR 46.225(d)). However, it should be noted that the commitment 

to maintain confidentiality cannot supersede federal, state, or tribal open records laws. A 

cooperating agency is normally expected to use its own funds to carry out its responsibilities 

(40 CFR 1501.6(b)(5)).

12.3.1 OSMRE as the Lead

When the OSMRE is the lead agency for an EIS, it must (according to 42 U.S.C. § 4332 and 

40 CFR 1501.6) invite qualified governmental entities to participate as cooperating agencies (43 

CFR 46.225(b)). When preparing an EA, OSMRE may invite eligible governmental entities to 

participate as cooperating agencies (43 CFR 46.225). OSMRE may invite non-federal entities to 

be cooperating agencies (e.g., state agencies, local agencies, and tribal governments) where they 

have special expertise or jurisdiction related to the EIS or EA. Cooperating agencies should be 

involved early in the process and be used to provide information and technical expertise on the 

project, review NEPA documents in a timely manner, and participate in relevant project 

meetings as needed. Lead agencies are responsible for consideration of the cooperating agency 

comments and how they are resolved, implementing the project timeline and milestones, 

retaining final responsibility for the content of all NEPA documents, and maintaining the 

Decision File.

In cases where more than one federal agency is involved in the same proposal, a single NEPA 

document should be prepared. In most cases, a single agency should be designated as the lead 

agency with any other involved agencies designated as cooperating agencies (40 CFR 1501.5; 

43 CFR 46.220(a); 516 DM 1.9 D). Generally, the lead agency should be the one with the 

greatest level of involvement with the proposal (40 CFR 1501.5(c)).

A non-federal agency may have an action to approve that is connected to the OSMRE proposal. 

That non-federal agency must comply with any state or local requirements that are comparable to 

NEPA. Under these circumstances, OSMRE and the non-federal agency may act as joint lead 

agencies (43 CFR 46.220(b)).

In situations where a state requires the cooperation of another federal agency or another DOI 

Bureau in order to obtain approval from OSMRE for a proposal, the state should not sign an 

MOU without including OSMRE. OSMRE would be the lead agency for these types of 

proposals. For example, a State AML program may seek to create an MOU with its SHPO in 

order to expedite Section 106 reviews. In that situation, OSMRE is still the lead agency and 

responsible for NEPA compliance, including consultations, even though OSMRE has provided 

the State AML program authority to carry out consultations on its behalf; therefore, OSMRE 

must be involved throughout the development of the MOU and be a signatory to the MOU to 

ensure effective implementation of the MOU.
12-5 

12.3.2 Deciding Whether to Be a Cooperating Agency 

When a federal agency outside of DOI intends to prepare a NEPA analysis document, and you 

have a related decision to make, you will formally ask to be a cooperating agency as early as 

possible. If another agency asks you to be a cooperating agency for the preparation of a NEPA 

document for an action in which the OSMRE has jurisdiction by law, you must be a cooperating 

agency (40 CFR 1501.6). If another agency asks you to be a cooperating agency in the 

preparation of a NEPA analysis document in which the OSMRE has special expertise, you may 

elect to be a cooperating agency. In deciding whether to accept in such situations, consider the 

resource commitments related to the document preparation. 

OSMRE must inform OEPC of our decision whether or not to be a cooperator on an EIS (516 

DM 1.10.B). 

12.3.3 OSMRE as a Cooperating Agency 

Functioning as a cooperating agency in the preparation of an EIS or EA provides you several 

advantages:

● You may adopt the EIS without recirculating it when, after an independent review of the 

analysis, you conclude that your comments and suggestions have been satisfied (40 CFR 

1506.3(c)).

● You, and the lead agency, may save staff time and dollars because you did not have to 

prepare separate documents. 

● You can ensure the NEPA analysis document meets all DOI and OSMRE requirements 

or standards. 

● Expanding the scope of a NEPA analysis to incorporate, into a single document, all 

connected and cumulative actions of all cooperating agencies improves overall 

interagency coordination.

● Agencies working cooperatively help the public to participate effectively and efficiently. 

The public involvement in the NEPA process takes place in the larger context of multiple 

agencies. Thus, the public can better understand the entire scope of a proposal, rather 

than being fed information piecemeal through time. The public can participate effectively 

and efficiently with fewer meetings and letters to write.

● You can ensure the NEPA analysis specifically addresses the action that you must 

consider before making your decision. This avoids the struggle to adapt another agency’s 

documentation to fit our proposed action. 

12.3.4 Procedures for Working as a Cooperating Agency 

An interagency MOU between the OSMRE and the lead agency must be prepared (43 CFR 

46.225(d)). It must identify an OSMRE contact and specify any special resource needs, data 

requirements, and issues that need to be addressed in the analysis. The MOU must also identify 

the responsibilities of the lead and cooperating agencies. 
12-6 

OSMRE should be identified as a cooperating agency in the NOI published in the Federal 

Register, and OSMRE should be identified as a cooperating agency on the cover sheet of the 

NEPA analysis document.

OSMRE must issue its own decision (and FONSI for an EA) (Question 30, CEQ, Forty Most 

Asked Questions Concerning CEQ’s NEPA Regulations, March 23, 1981), CEQ Guidance 

Regarding NEPA Regulations, 48 Fed. Reg. 34263 (July 28, 1983) (see Section 5.3). This may 

be done in an individual decision document or in a decision document signed by more than one 

agency, as long as it is clear that only the OSMRE decision-maker is making a decision about 

resources under OSMRE’s jurisdiction or authority. 

12.4 Joint Lead Agencies in the Development of NEPA Documents

When two agencies have responsibility over two approximately equal components of a proposal, 

they may opt to become joint lead agencies rather than cooperators. In cases involving a state 

agency, consult with the Office of the Solicitor because some states may have a NEPA 

equivalent law, but that law may differ significantly from its federal counterpart. An MOU that

clearly defines roles and responsibilities must be signed by both agencies (516 DM 2.5(G)). 

In addition to an MOU, an EIS work plan (see Chapter 4) should be developed and signed by 

both agencies, and identify such things as: the decisions to be made by each agency, the make-up 

of the core and interdisciplinary team and associated responsibilities, estimated budget and 

financial obligations of each agency, document review responsibilities, and tentative schedules. 

Only one agency can be identified as the agency responsible for filing the EIS with the EPA. 

The NOI and NEPA documents will identify the agencies as joint leads. At the conclusion of the 

process, OSMRE may jointly sign the decision document with the other agencies or may issue 

our own ROD for an EIS, and FONSI and decision record for an EA. (Question 30, CEQ, Forty 

Most Asked Questions Concerning CEQ’s NEPA Regulations, March 23, 1981, and CEQ 

Guidance Regarding NEPA Regulations, 48 Fed. Reg. 34263 (July 28, 1983)). This applies to 

any Federal lead or cooperating agency, and all other cooperating agency procedures apply as 

well. Also be careful to ensure that the decision document is clear and states that OSMRE 

decisions pertain only to resources under OSMRE authority. 

12.5 Working with Advisory Committees and the Federal Advisory Committee Act

The Federal Advisory Committee Act (FACA) was enacted to reduce narrow special-interest 

group influence on decision-makers, to foster equal access to the decision-making process for the 

general public, and to control costs by preventing the establishment of unnecessary advisory 

committees. The FACA applies whenever a statute or an agency official establishes or uses a 

committee, board, commission, or similar group for the purpose of obtaining advice or 

recommendations on issues or policies within the agency official’s responsibility.
12-7 

If meetings are exclusively held between Federal officials and elected officers of Tribal, State, or 

local governments (or their designated employees with authority to act on their behalf) acting in 

their official capacities, the group is exempt from the administrative requirements of FACA. 

Alternatively, if you wish to have a central role in the formation and agenda of the group, 

consider pursuing a charter for a FACA committee. Consult the Office of the Solicitor to see 

when you need a charter and to get details on how to charter a FACA committee. 

12.5.1 Guidance for Meeting with Groups

If participants include nongovernmental members and they will meet regularly or formally, there 

are a number of circumstances that will require a FACA charter. 

● OSMRE establishes, manages, or controls the group. A FACA charter is usually 

necessary if the OSMRE will be making decisions on or otherwise controlling group 

membership, sending out meeting invitations, or hosting the meeting. 

● OSMRE also manages or controls the group’s agenda, takes a leadership role in the 

group, and facilitates the meetings. Funding the group or holding a disproportionate 

number of the group’s meetings on OSMRE property may also be seen as indicators of 

management or control. 

● A FACA charter may be necessary if OSMRE is seeking group advice or specific group 

recommendations to the agency from a nongovernmental group. 

If OSMRE wishes to have a central role in the formation and agenda of the group, consider 

pursuing a charter for a FACA committee. Refer to the Office of the Solicitor for additional 

information. 

To avoid the need for a FACA charter, publicize the meetings of the group, and keep the group 

membership open to all. Invite the public to meetings; publish timely notice in local forums; 

accept public comments; and keep records of group meeting minutes, attendance, and other 

documents used by the group. 

12.5.2 Alternatives to Chartered Groups

OSMRE can establish a working group with solely governmental entities—other Federal, State, 

tribal, and local government employees working in their official capacities.

● A non-Federal entity participant can lead, organize and set up the group. The FACA only 

applies to Federal agencies, so if a tribal, state, county, or local agency or public interest 

group is willing to put the collaborative group together, control membership, and set up 

meetings, OSMRE can participate without violating the FACA.

● In some situations, OSMRE can form a working group as a subcommittee of a 

preexisting FACA-chartered advisory committee. Ensure the working group always 

reports to the chartered committee and not directly to the OSMRE.
12-8 

OSMRE needs to educate the community about its programs and decisions and needs public 

stakeholder input. Here, the best approach may be to hold town hall-style meetings with open 

public participation. Such meetings will not violate the FACA as long as OSMRE is not seeking 

group advice but rather is sharing information or seeking a range of advice from individuals.

List of Appendices

NONE
R-1 

REFERENCE LIST

OSMRE, 1979. Permanent Regulatory Program Implementing Section 501(b) of the Surface 

Mining Control and Reclamation Act of 1977: Final Environmental Statement OSM-EIS-1, 

January 1979. Office of Surface Mining Reclamation and Enforcement. 

OSMRE, 1980. Implementation of Program Policies for Federal, State, and Indian Abandoned 

Mine Land Reclamation under Title IV of the Surface Mining Control and Reclamation Act of 

1977: Final Environmental Statement, OSM-EIS-2, March 1980. Office of Surface Mining 

Reclamation and Enforcement.

OSMRE, 1983. Approval of State and Indian Reclamation Program Grants under Title IV of the 

Surface Mining Control and Reclamation Act of 1977: Final Environmental Impact Statement, 

OSM-EIS-11, November 1983. Office of Surface Mining Reclamation and Enforcement.