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PLA 2008 NEPA Seminar

Pitfalls in Maintaining a NEPA Schedule

Joe Fetzer

Richard Bell

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Importance of the Schedule

• One metric, along with budget, showing the progress of the analysis

• Focuses attention on lagging project elements requiring corrective action

• Can assist in identifying critical path issues before they become a roadblock

• Can assist in identifying other compliance issues required for project approval

A NEPA analysis is a multi-faceted task commonly involving numerous players with many possibilities for distraction and delays.

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Building a Schedule

• Have a draft schedule for discussion at initial agency meeting

• If possible, include agreement on schedule and review times in the MOU

• Have roles and responsibilities indicated• Match the complexity of the schedule to that of the

project• Attempt to obtain investment in the schedule from all

parties• Finalize the schedule at the kickoff meeting

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Successful Schedules

• Have obtained commitment from Proponent and Agency to meet deadlines to the degree feasible to both parties

• Are used for progress review on a regular basis• Are updated in response to significant changes• Clearly indicate responsibilities • Provide time scales which allow sufficient detail while still

providing a longer-term view• Provide information additional to that of a standard Gantt

chart

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Avoiding Schedule Pitfalls

• Developing a comprehensive schedule is the first step• Many things during the process can go wrong, but

most crisis issues can be managed• NEPA almost always takes longer than expected

– Optimistic estimates– Failure to use a tracking schedule– Resulting failure to foresee roadblocks

• Permitting is often an afterthought, but one permit can hold up the project - have a comprehensive list and be sure it is included in the master schedule

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Successful Project Teams

• Have a mutual understanding of the agency's legal commitment to multiple use management and resource conservation and the proponent's legal and contractual rights to develop public resources

• Understand both that time is money and that agency staff are working on multiple projects

• Are active participants in following the schedule and providing input or completing tasks as required

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Proponent's Roles & Responsibilities

• Provides industry expertise and information• Alternatives development and review, to the extent

permitted– Proposed Action correctly described?– Would a draft alternative fail the P&N test?– Is an alternative technically incorrect?

• Active monitoring of the schedule and project progress in terms of budget and time

Proponent should ask questions, and pursue answers if explanations are not reasonable.

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Agency's Roles & Responsibilities

• To the extent feasible, provide an O&G-experienced ID Team leader and specialists

• Review and understand the project, including the P&N and the project design

• Work with contractor to determine need and nature of alternatives

• Provide direction and support to the contractor team• Support the process and schedule• Ensure a technically and scientifically sound analysis

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Contractor's Roles & Responsibilities

• To the extent feasible, provide a strong facilitation of a cooperative process between the proponent and agency

• Ensure development of a scientifically sound analysis addressing all identified issues

• Ensure that alternatives are technically sound and satisfy the Purpose & Need

• Closely monitor the schedule and provide updates on progress and delays to the proponent and agency

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Importance of the Process

Schedule is extremely important for both sides to maintain an efficient process. However, the schedule should not be emphasized above the integrity of the process.

The goal must be the production of a sound analysis which is legally defensible. If additional time is needed to produce a defensible document, it will be preferable to later legal fees and analytical fixes.

Degree to which the schedule is delayed to improve the defensibility of the analysis is not always an easy call.

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Avoid Piecemealing NEPA

• Using multiple NEPA actions to obtain approval of different facets of a project (exploratory wells, gathering lines, compressor and pipelines, etc.) can result in unnecessary delays and agency impatience

• Plan early for NEPA compliance and examine the totality of the project

• To the extent feasible, include as much of the necessary infrastructure in one analysis

• Comprehensive analyses may be enforced by the agency, so be proactive

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Minimize Connected Actions

• Project components required to achieve the Proposed Action, even if located on private surface, may be "connected actions" requiring inclusion in an expanded analysis

• Review the totality of the project and determine if parts of the project without federal involvement can be implemented, or at least permitted, prior to submittal of the Proposed Action, to minimize the extent, cost, and time required for the NEPA analysis

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Proposed Action Review by Proponent

• To the extent permitted, proponent should carefully review the latest version of the Proposed Action to ensure that it accurately defines the project

• Project needs change, and proponent needs to make sure these changes are incorporated in the analysis

• A careful review can avoid an incomplete analysis and subsequent supplemental NEPA

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Avoid Unnecessary Project Changes

• NEPA works best when changes to the Proposed Action are minimized

• Late changes can, and commonly do, result in revisions to the analysis and an additional round of agency reviews

• To the extent feasible, plan ahead and incorporate project needs into Proposed Action as early as possible, minimizing changes

• If changes must be made, be certain they have been incorporated into the Proposed Action analysis

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Don't Assume NEPA Compliance

• NEPA compliance for one project (exploratory well pad) does not imply coverage for other project components

• Addition of equipment (such as a compressor) to a site which has undergone previous NEPA compliance may or may not be covered, depending on potential environmental impacts

• Plan ahead to ensure coverage of project needs and check with the agency about added facilities

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New Issues and NEPA Trends

• Revisions to multiple RMPs throughout the West and the long lead times for RMP approvals– possibility of additional mitigations – potential impacts on long-term plans– potential for project exceedance of RFD projections

• Wilderness character and NEPA adequacy– major issue in Utah– successful litigations challenging adequacy of prior NEPA have

affected project approvals and leasing decisions– increasing project approval delays and leasing holdups

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New Issues and NEPA Trends (cont.)

• Increased emphasis on visual resources protection– increased public sensitivity to the "look" of oil and gas– inadequacy of VRM classification in some RMPs can lead to

interim classifications which may require modifications of proposed projects

• Increased emphasis on cumulative impacts analysis– response to high levels of oil and gas development– nebulous subject, often with inconsistent or contradictory agency

guidance– potential litigation issue

• Sensitivity to reclamation successes and failures

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Key Points

• Cooperatively-determined and maintained active schedule can act as a guide for a successful project

• Schedule issues should be included in the MOU, if possible, and accepted by all parties

• Participation in development and/or review of draft alternatives by proponent prior to release of the draft can facilitate the process

• Plan ahead and allow realistic time for NEPA compliance• Include all necessary project components, think long-

term, and avoid compliance piecemealing

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And Finally….

The NEPA compliance process can be arduous and frustrating for ALL the parties involved. Use of a cooperatively-developed schedule and awareness of potential pitfalls can make things work a lot more smoothly.