Forest Supervisors1

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/ Forest Service / Rocky Mountain Region / 740 Simms Street
Golden, CO 80401
303-275-5350
FAX: 303-275-5366

Forest Supervisors1

File Code:1950;2720Date:April 14, 2016

Route To:

Subject:National Environmental Policy Act (NEPA) Third-Party Contracting

To:Forest Supervisors

Purpose: Update guidance on the role of the Forest Service for NEPA documents prepared by third-party contractors

Policy/Action: The use of applicant funded third party consultants can be a useful tool in facilitating the NEPA analysis for applicant initiated proposals. However, there are concerns about the quality and integrity of the analyses prepared by third party consultants. The NEPA regulations address this concern by mandating that the agency “independently evaluate the statement prior to its approval and take responsibility for its scope and contents (40 Code of Federal Regulations (CFR) 1506.5).” Additional direction on third party NEPA in the Rocky Mountain Region (R2) was provided by the Rocky Mountain Regional Office in 2009.

Several years of hands-on experience with the 2009 Regional Office direction has revealed the need for further improvements. I have determined that an update to the previous direction is appropriate in order to enhance the role of local line officers and facilitate a more streamlined and efficient third party NEPA process.

The updated direction for future third party NEPA work in the Rocky Mountain Region is:

  • For Environmental Impact Statements (EISs) a formal Third Party Memorandum of Understanding (MOU) (or in cases where a special use Cost Recovery Agreement (CRA) is being issued, an attachment to that agreement) is required.
  • For Environmental Assessments (EAs) either an MOU/CRA or the attached Third Party Compliance guidance will be required. The responsibility for selecting a formal MOU or the Third Party Compliance guidance rests with the responsible official. It is recommended that a formal MOU be developed for major or controversial Environmental Assessments (EA). Examples of major or controversial EISs and EAs include transmission lines, major ski area improvements, energy projects, and hard rock mining. Criteria to determine if a NEPA document is major or controversial: 1) It is precedent setting; 2) It is an unusual case or a new kind of action; 3) It is controversial.
  • The Office of General Counsel (OGC) reviews and Forest Service approvals of contracts between applicants and their third party contractors are optional at the discretion of the responsible official. OGC reviews would be most appropriate in cases that involve a high level of controversy.
  • Communication restrictions between applicants and third party consultants are optional at the discretion of the responsible official.
  • In order to mesh the third party NEPA analysis most effectively with the objection process and maintain the integrity of decision making, it is appropriate to use third party consultants to prepare NEPA documents up to the start of the objection period. Objection resolution and finalization of decision documents are Forest Service responsibilities.

The purpose of the attached Third Party Compliance guidance and MOUs/CRAs is to spell out the roles and responsibilities of the applicant and consultant to ensure the integrity of the NEPA process. All third-party consultants must submit disclosure statements that they have no financial or other interest in the outcome of the project (40 CFR 1506.5(c)(3)).

In all cases, the Forest Service is responsible for making all decisions as to whether and how to carry out proposed federal actions, and is responsible for ensuring that any environmental analysis relied upon by decision makers complies with the requirements of NEPA. For third party NEPA, the President’s Council on Environmental Quality (CEQ) requires federal agencies to “independently evaluate the statement prior to its approval and take responsibility for its scope and contents (40 CFR 1506.5).” CEQ provides for federal agency approval of third party NEPA analyses as the primary tool to ensure the integrity and quality of the NEPA analysis.

An example Third Party NEPA template for cost recovery projects can be found on the Non-Recreation Special Uses site at:

An example template for non cost recovery projects can be found on the R2 Grants and Agreements Sharepoint site. See:

For more information, please contact Dave Loomis, Regional NEPA Program Leader at 303-275-5008, or .

/s/ Jacqueline A. Buchanan (for)

DANIEL J. JIRÓN

Regional Forester

Enclosure

cc: Forest Admin Officers, Deb Ryon, Diane Hitchings, Don Dressler