Our Klamath Basin Water Crisis
Upholding rural Americans' rights to grow food,
own property, and caretake our wildlife and natural resources.
NEPA Task Force
by Family Farm Alliance 2/2/06
As you know, the Alliance continues to work in Congress and with the Bush Administration toward finding ways to streamline regulatory processes associated with new water supply enhancement projects. Last December, an important set of draft congressional recommendations was released by the National Environmental Policy Act (NEPA) Task Force which has a flavor that is very similar to NEPA problems and solutions identified by the Alliance.
The following transmittal and attached letter were sent to the NEPA Task Force earlier today. Feel free to distribute this letter; it is intended not only for the NEPA Task Force, but also for Western irrigators, water managers, and professionals who may be interested to see how Congress is trying address regulatory streamlining.
If you have any questions about this letter, please do not hesitate to call me at 541-850-9007.
February 6, 2006
The Honorable Cathy McMorris
Re: NEPA Task Force Draft Report
Dear Representative Morris:
Thank you for your proactive efforts to review and find ways of improving the National Environmental Protection Act (NEPA). On behalf of the Family Farm Alliance (Alliance), I would like to express further appreciation for the opportunity provided by the NEPA Task Force to review the December 21, 2005 initial findings and draft recommendations released by the Task Force.
The Family Farm Alliance is a grassroots organization of family farmers, ranchers, irrigation districts and allied industries in 16 Western states. The Alliance is focused on one mission: To ensure the availability of reliable, affordable irrigation water supplies to Western farmers and ranchers.
The Family Farm Alliance believes that without new sources of water, increasing urban and environmental demands will deplete existing agricultural supplies and seriously threaten the future of Western irrigated agriculture. The often slow and cumbersome federal regulatory process is a major obstacle to realization of projects and actions that could enhance Western water supplies. The Family Farm Alliance wants to work with Congress, federal agencies and other interested parties to build a consensus for improving the regulatory process.
The Task Force draft report represents an important step towards addressing a law that has drawn scrutiny from many western water users: the National Environmental Protection Act. As you have likely heard during the course of your field hearings conducted throughout the country last year, NEPA implementation can have a direct bearing on the success or failure of critical water supply enhancement projects.
Regulatory Impediments to Progress on Western Water Supply Projects
Last year, we surveyed irrigators and water managers throughout the West and asked them to identify the regulatory impediments they most frequently encounter as they seek to construct projects that enhance water supplies. NEPA "horror" stories were abundant, and the impediments related to NEPA implementation are listed later in this letter.
In April 2005, Alliance Chairman of the Board Bill Kennedy testified on behalf of the Alliance before the NEPA Task Force in Spokane, Washington. While Mr. Kennedy’s testimony focused on an unusual NEPA application – a decision by federal agencies not to prepare full NEPA documentation for the Klamath Project in 2001, when irrigation supplies were curtailed – he also provided recommendations to streamline NEPA regulations as they relate to new water supply and conservation projects. These recommendations are outlined below.
Assessment of Task Force Report
We have reviewed the Task Force draft report and are generally in agreement with its findings and recommendations. In assessing the Task Force report, we compared it to the problems identified by the Alliance’s survey and to recommendations presented to the Task Force in Mr. Kennedy’s testimony. Of course, our focus was more specifically directed at how the Task Force recommendations would contribute to a more streamlined regulatory process for water supply enhancement projects. We understand that the Task Force report provides recommendations intended for a much broader application than just water projects.
Beneficial NEPA Task Force Recommendations
The following section shows how NEPA Task Force recommendations address the specific problems identified by the Family Farm Alliance West-wide survey.
Problem #1: The alternatives proposed for assessment by NEPA regulators are frequently inappropriate, unrealistic, difficult-to-implement, and often in conflict with state law. The NEPA Task Force offers five recommendations to address this concern:
We are particularly encouraged about Task Force Recommendation 1.3, which would amend NEPA to create unambiguous criteria for the use of CEs, EAs and EISs. As these criteria are clarified, it will force policymakers to also address the confusion that currently exists relative to what exactly constitutes a "significant" impact. The definition of "significant impact to the human environment" needs to be clarified to minimize confusion and varying interpretations between various local and regional federal agency staff. Ultimately, proper implementation of this recommendation has the potential to reduce future litigation costs.
Problem #2: Federal regulators take a long time making decisions on projects, and at times they seem unable to even make decisions. The NEPA Task Force report identifies three recommendations to address this concern:
Problem #3: USFWS and NOAA Fisheries are not compelled to consult with other agencies in a timely fashion, and frequently do not begin work on ESA biological opinions until after the NEPA process has been completed. The Task Force report includes two similar recommendations:
The following section compares NEPA Task Force recommendations with the recommendations proposed by the Family Farm Alliance.
Alliance Recommendation #1: Anything that can be done to streamline the overall permitting process (NEPA, ESA, Clean Water Act, etc.) should be encouraged. Related Task Force recommendations include:
Alliance Recommendation #2: Agency work on biological opinions should be required to keep pace with development of NEPA compliance documents. The NEPA Task Force report, as previously noted above, recommends a CEQ study of NEPA’s interaction with other Federal environmental laws.
Alliance Recommendation #3: The state’s legislative and planning process should be considered in establishing purpose and need for construction of dam and reservoir projects. While not specifically addressing new storage projects, Task Force Recommendation 3.2 directs CEQ to prepare regulations that allow existing state environmental review process to satisfy NEPA requirements.
Alliance Recommendation #4: Develop a reasonable range of alternatives to facilitate project planning and the NEPA process. NEPA documents should only pertain to the proposed action and only address issues raised in public scoping that are directly tied to the proposed action. A common ploy of certain activist groups is to throw a "laundry list" of issues and concerns at a federal agency, knowing full well it will distract, confuse, and lengthen the process, thereby creating a document with potential loop holes that might later be appealed. We believe alternatives should be limited to the proposed action being analyzed. The number of alternatives should be constrained only to the range of activities and associated impacts of the proposed action.
NEPA Task Force Recommendation 5.1 would amend NEPA to require that "reasonable alternatives" analyzed in NEPA documents be limited to those which are economically and technically feasible.
Alliance Recommendation #5: Encourage cooperative efforts to move projects through the NEPA and permitting processes. The Task Force report has two recommendations that promote increased cooperation in NEPA implementation:
Other Positive Task Force Recommendations
We were pleased to see that the Task Force proposed several other recommendations that addressed concerns not identified by our membership. We support the following recommendations and believe they will provide beneficial results if implemented:
Concerns with NEPA Task Force Recommendations
We are, for the most part, in full agreement with the Task Force recommendations. However, we do have a few concerns.
First, Recommendation 1.1 would enhance NEPA to create a new definition of "major federal action" that would only include new and continuing projects that would require substantial planning, time, resources, or expenditures. We have concerns that NEPA should apply to "continuing" projects. The current application of NEPA generally does not pertain to ongoing actions, such as the operation of a reservoir from year to year under the normal range of operating parameters.
Second, the footnote on page 22 under the "Public Participation" section of the draft report contains an error. "Bureau of Land Management" should be changed to "Bureau of Reclamation". Also, additional explanation of the government’s decision not to proceed with a full-blown EIS for the Klamath Project in 2001 – as noted briefly in the footnote - might be justified. The ultimate NEPA lesson learned from the 2001 Klamath water crisis is that NEPA should apply to and precede a regulatory action that disrupts communities of humans and wildlife.
The Klamath example demonstrates that NEPA –like so many federal laws and regulations – can be applied to any situation in a manner that is largely dependent on the demeanor of the agency staff that has jurisdiction in the manner. A consistent problem noted by several Western water users who have worked in NEPA processes are decisions made by the lead agency staff, who, due to perceived bias or lack of ability to adequately administer NEPA, routinely and habitually instigate "pre-decisional" actions. For example, during the scoping phase of a recent coal bed methane project in Wyoming, local project proponents voiced their expectations that a comprehensive water management plan would be analyzed and included in the NEPA documentation. Instead, the lead federal agency - with no public disclosure or participation by cooperating agencies - internally decided on one course of action and required the methane production companies to re-inject all the co-produced water. This pre-decisional action by the federal agency was seen by local irrigators as a gross violation of NEPA.
Additional Issues Not Addressed by NEPA Task Force
As outlined earlier, the Alliance offered eight recommendations to the Task Force at its Spokane hearing last April. The above summary demonstrates that, clearly, many of our concerns are positively addressed in the Task Force draft report. However, a few were not, which might be expected, given that the Task Force is looking at more general, "big picture" fixes to NEPA. We reiterate here our water supply-specific recommendations, which we feel are not fully addressed in the draft report.
We understand that these water-specific recommendations may be too narrowly focused for the purposes of your report. Nevertheless, they do represent measures intended to address the concerns identified by Western irrigators and rural water managers.
Thank you for this opportunity to provide input on this matter, which is very important to the family farmers and ranchers of our membership. We are hopeful that a concerted good-faith effort to address the problems identified by the Task Force will result in a streamlined regulatory process that will be efficient, fair and effective. We look forward to working with you toward that goal.
If you have any questions about this letter, I encourage you or your staff to contact me at (541)-850-9007.
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