NEPA Rule Revisions Comments Needed by March 10, 2020

To: The Friends of New Hampshire Archeology, From: Richard Boisvert, Secretary, NHAS Action Alert: NEPA Rule Revisions Comments Needed by March 10, 2020

From time to time the federal government proposes changes to regulations that implement various laws in our country. The National Environmental Policy Act, NEPA, is undergoing such a process now.

The Act has been a wide ranging piece of legislation and is considered to be the primary means of managing impacts to the environment through federal actions including expenditure of federal funds, issuance of federal permits or licenses and other direct or indirect federal actions. While there are other pieces of federal legislation that are designed to protect archeological and other cultural resources, NEPA also provides significant protection for archeology.

When the natural environment is protected archeological resources are often also protected. A good example is the Potter Site in Randolph, NH where an effort spearheaded by the Nature Conservancy resulted in the purchase of a conservation easement that explicitly provides protection for this large and clearly significant Paleoindian site. Clearly, protecting the environment protects our archeological heritage.

The proposed changes to NEPA have raised alarm in archeological circles and the Society for American Archaeology has taken a lead in objecting to these changes. To get a sense of the impacts you can go directly to their website (you do not need to be a member to access the site) and click on https://www.saa.org/government-affairs/take-action#/ . It will lead you to a sample letter (which you can personalize if you wish) and provide a means to send the letter.

COMMENTS MUST BE POSTED NO LATER THAN MARCH 10, 2020.

You also can submit comments in one of three additional ways. Be sure to indicate that they relate to docket number CEQ-2019-0003.

• You can submit by the Federal eRulemaking Portal by going to https://www.regulations.gov and follow the instructions for submitting comments.

• You can fax your comments to 202-456-6546.

• You can mail your comments to: Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503

All submissions must include the agency name - Council on Environmental Quality - and docket number - CEQ-2019-0003.

Below is the sample letter provided by the Society for American Archaeology. Feel free to modify the letter or craft your own personal statement.

I am writing in strong opposition to the Council on Environmental Quality's proposed changes [Docket No. CEQ-2019-0003-0001] to the regulations implementing the National Environmental Policy Act (NEPA). These revisions, should they be implemented, would greatly reduce the consideration that project planners must give to historic resources impacted by federally-supported undertakings.

The following sections of the draft proposal are particularly troubling:

Changing the definitions of "Scope" and "Significance"--the proposed rules changes would drastically alter the definitions of "Scope" and "Significance" for use in the implementation of NEPA, to the extent that the areas of disturbance and the number of potential impacts of projects will be so narrowed as to be practically useless. In some ways, it would be like not having a NEPA review at all. These proposed definitions simply cannot be supported by the letter or spirit of the statute.

NEPA Threshold Applicability Analysis--this is a new concept that establishes a trigger to determine if NEPA analysis and related activity should be required at all. It creates a "minimal government funding or involvement" threshold, below which project planners would, presumably, not engage in a NEPA review. The key terminology used in the proposal is not defined. This exemption could expose cultural resources at projects that fall below this line of federal funding or involvement to damage or destruction with no recourse.

Clarifying the Meaning of "Effect"--the proposed changes seek to remove references in the current regulations to direct, indirect, or cumulative effect, and replace them with a consolidated definition. While it is true that the NEPA statute itself does not subcategorize "effect," the current regulations include the separate references because of the recognition that project planning is a complex process that often results in unforeseen consequences, and that individual direct effects often constitute only a small part of the overall and ongoing impacts, and the ongoing changes that the activity will set in motion. I am very concerned that the planned consolidated definition will effectively take only direct effects into account, thus limiting the assessment of project effects on cultural resources.

Limiting public input--the draft revisions to the NEPA regulations seek to limit potential litigation following the review and consultation process to only those parties that participated in the public comment period. One of the main reasons NEPA was enacted was to give as many voices as possible a chance to be heard in the planning of publicly-funded and permitted projects. Limiting access to legal remedies runs counter to one of the fundamental tenets of transparent government. This is an especially devious move because the White House has only provided a sixty day public comment period.

It has also become apparent that little to no government-to-government consultation with federally-recognized Indian Tribes, which is required by law, was carried out in the formulation of this regulatory action. On this basis alone a postponement in this rulemaking should take place in order to properly discuss the matter with the Tribes.

I strongly urge that these draft changes to the NEPA regulations be withdrawn.