Attendees: Chick Fagan, Chris Shaver, Madoline Wallace, Sarah Bransom, Sue Jennings, Don Owen, Gary Johnson, Joan Darnell, Gary Candelaria, Steve Petersburg, Marv Jensen, Jake Hoogland, Randy Jones, KC Becker, Nat Kuykendall, Jay Goldsmith, Frank McManamon, Ann Brazinski, Chris Turk, Peri Eringen, Carol McCoy, Jami Hammond, Dick Sellars, Pat Tiller
[Note: The regional environmental coordinators had met immediately prior to the no-impairment work group. Since they will play an important role in implementing the policy, they were asked to stay and participate in the work group session.]
[Assignments and "to do's" are shown in bold, italic, with brackets.]
November 28, 2001
1. Why We Are Here: Reviewed how the Southern Utah Wilderness Alliance (SUWA) lawsuit at CANY prompted an examination of how the NPS deals with the Organic Act's prohibition on impairment of park resources. The examination culminated in a clearer statement of NPS policy, first articulated in Director's Order #55, which was then superseded by section 1.4 of Management Policies. But section 1.4 doesn't go far enough in helping NPS employees understand how to implement the policy, and some people are misinterpreting what the policy means. This group's task is to provide the additional guidance necessary to ensure a more consistent application of the policy.
Reviewed the "Service-wide Strategy for Implementing the No-Impairment Policy." The strategy was approved by the NLC. One key element is to focus on developing criteria that will help us recognize impairment when we see it. Nearly a year has passed since section 1.4 was adopted, and we have not produced much additional tangible guidance.
2. What We Hope to Accomplish: The specific goals of the meeting was to gain common understanding of concepts, challenges, roles and responsibilities, and to develop consensus on a few case studies. Want to develop template for framing how to do other case studies. Also want to address questions and discuss answers, as well as identify other questions with as yet unknown answers.
To help the group in developing the template for case studies, we looked at a product that Jake Hoogland's office produces, called "Lessons Learned." These brochures provide brief summaries of court cases that are instructive for NPS managers. We also looked at the pamphlets produced by Heritage Preservation Services on "Interpreting the Secretary of the Interior's Standards for Rehabilitation."
3. Where the Service is Now on the Impairment Issue, and How We Got Here: [This evolved into a lengthy discussion on a range of related issues.] It was explained that, even before Director's Order #55 was adopted, there was a recognition that more detailed "how to do it" guidance would be needed. As the NPS embarked on trying to develop more detailed guidance, a "No-impairment Coordinating Committee" (NICC) was formed. NICC's purpose is to try to coordinate all efforts at developing further guidance and to bring any proposed policies and procedures to the NLC for consideration. Separate work groups were also formed for the natural and cultural resource disciplines. During one of the NICC's meetings, it became apparent that it would be better to, at least initially, get both groups together so that everyone starts out on the same footing (and that is what this meeting does).
With regard to how we got here, KC Becker, staff attorney in the Solicitor's Office, reviewed the SUWA case. We actually won on all counts except management of Salt Creek Canyon road. The administrative record showed that ORV traffic would cause harm to the area. District Court said NPS decision to allow continued ORV use was not supported by the administrative record, and that "permanent impairment" of park resources was not permissible under the Organic Act. Although NPS did not appeal, an appeal was filed by ORV interests, and we decided to join the process. The Circuit Court remanded the case back to District Court. The park is now doing a new EA with impairment analysis. Things have become more complicated because of the RS- 2477 roads issue. [Those who wish to know more about the details of the SUWA case may visit the No-impairment web site at www.nps.gov/protect.]
KC added that the Solicitor's Office is not routinely involved in all impairment determinations, and she doesn't know if regional solicitors are tied in. Q: Do solicitors review all of the NEPA documents? A: Not routinely. The NPS is doing lots of EAs that mention impairment, but if it seems like there truly may be impairment, then an EIS is done and we refer the park to WASO-EQD. KC pointed out that it's important to have consistency - watchdog groups are looking for that. The NPS needs to have some kind of database or other means of tracking how we've dealt with the impairment issue in our GMPs and decision-making documents. Probably don't want to funnel everything through one person, but maybe the case studies would help in bringing some consistency to what we say and how we say it. We need to provide examples. Sarah had volunteered to do that for the Regional Environmental Coordinators, but she hasn't had much referred to her yet.
We should be tracking how we're doing it. How broad is our perception of impairment? Are we looking at actions outside the park? Management Policies are vague on whether they apply, although there was a discussion on external threats. Even if we can't stop the timber companies from logging Redwoods, we do have an obligation to identify the impairment that may result. Other agencies don't have the mandate to not impair park resources under the Organic Act; it applies only to actions that the NPS has some means of controlling (although some have argued that the Organic Act and Redwood Act amendment give the NPS a degree of control over the activities of other agencies that would impair or derogate park resources). Some perceive the NPS as placing more emphasis on the conservation aspect of our mission, rather than the enjoyment aspect, but we still have an obligation to provide opportunities for enjoyment. The NPS is not obligated to allow any and all forms of enjoyment. [Chapter 8 of the new version of Management Policies speaks to the "appropriate" use of the parks.]
Q. What about existing actions? Are we legally vulnerable if we don't act in a certain time frame? A: It would depend on the facts of the case. We can only fix things within the constraints of available funding and staffing. Section 1.4.7 of Management Policies addresses this. When challenges go to court, it will come down to what's in the administrative record.
We need to be mindful of statements made about impairment in PMIS, etc. Warren Brown has mentioned that some parks are using the term "impairment" in project statements when trying to get funding. We need to create more awareness Service-wide about the significance of the term and the need to be careful in the way we use it. Using the word "impairment" too loosely can create unnecessary and unjustified problems for the Service. Chick Fagan agreed to propose wording to make it clear in the PMIS instructions that an impairment conclusion can be reached only after performing the appropriate environmental analysis.
Q: So who can make the impairment decision? A: Whoever signs the environmental document. (For park projects, the regional director, following recommendation by the superintendent.) What about in PMIS statements? A: Anyone who approves a PMIS statement that claims there will or may be an impairment must be sure that the claim is based on an approved environmental assessment or impact statement and addressed in an appropriate decision document. We may need to review older PMIS statements to make sure any impairment claims are supported by environmental analysis.
When considering whether there may be an impairment, managers must take into account the expert advice of their resource managers and subject matter experts. Must have-and document for the administrative record-a sound reason for dismissing park staffer's identification of impairment. We have seen where some subject matter specialists have misinterpreted the no-impairment policy. The NPS can make decisions that have adverse effects on park resources, provided that the adverse effects are not so bad that they cross the threshold into impairment. Decision-makers who are not comfortable with staff recommendations should get second opinions. Might even get into alternative dispute resolution types of scenarios.
Another way to address this is, if impairment is a management judgment made by a regional director, scientists provide management with enough information to make an informed decision, not to make the call themselves. In these discussions, we are presuming we use a process driven by NEPA. In fact, superintendents are making decisions daily-without benefit of an EA or EIS-not to do something because it might impair resources. These decisions are not typically documented, nor do they need to be.
May want to see if there is a parallel with FWS determinations under section 7 of the Endangered Species Act. Another model to look at is the FWS compatibility determinations. Q: Does FWS have some kind of step-by-step process they work through that we could consider adopting pieces of that process? A: Chick has reviewed FWS consultation process - although it includes criteria that help guide the decision, the process still relies ultimately on the expert biologists to know a "jeopardy" situation when they see it. It seems to suffer from the same difficulty we are now facing. Regarding the compatibility determinations, the parallel is more along the lines of how the new chapter 8 of Management Policies emphasizes "appropriate" use of the parks. The difference is that FWS has clear statutory support for "compatible" use of refuges, whereas the NPS does not have clear statutory support for "appropriate" use of parks. While the NPS guidance on determining what is or is not appropriate might benefit from an examination of how FWS does compatibility determinations, it's not likely that we would find it helpful in dealing with the impairment question.
Early in the development of the no-impairment policy we decided there was no need to create a new process; we can work the impairment considerations into our existing NEPA and section 106 processes. Since the processes are already well-established, we can focus on how to determine when adverse effect becomes impairment. Blueberry patch example: need to build parking lot, will sacrifice one acre of blueberries. Is it an impairment? Maybe, if it's the only blueberry patch you have. If not, it's much more likely not to be an impairment. Q: Do we have a time frame? Organic Act says future generations, so do we emphasize long-term effects? A: Not necessarily, because a future generation may begin with those who are born tomorrow.
Organic Act says enjoyment, not recreation. This means you don't have to be physically present within a park. You can enjoy it from afar. Some parks' enabling legislation may have other language.
Q: Is impairment to enjoyment part of what we're talking about here? A: No, impairment relates to the resources and values. As with socio-economic resources, we don't do impairment determinations on visitor use and enjoyment. But the impairment factor does come into play if the opportunity to enjoy park resources or values is significantly diminished as a result of the harmful impacts to park resources or values caused by a park management decision.
4. The Guidance That We Already Have in Place:
The main sources of guidance we have are found in:
5. The Processes That We Already Have in Place:
Analysis of impacts through the NEPA process (using DO-12 and its handbook): Jake explained that there had been discussions of how and where to address the question of impairment, and decided we could use the NEPA process. NEPA looks at environmental impacts, as well as sociological and visitor use. We look at context and intensity both by resource topic and in an overall cumulative way. Impairment is a subset of major impact; not all major impacts are impairment. Intensity level definitions should take into account the context (a minor effect in Denver could be a major effect in a national park). If we define the levels up front, then determining the level is easier. In NEPA documents, we first describe the impacts, then reach conclusion on level of effect. We will include the impairment determination in that conclusion. You also make the impairment determination on a cumulative basis. Q: Shouldn't we be making only a summary determination for each alternative, rather than impact topic by impact topic? Aren't we concerned about ecosystems? A: Yes, we are, but we can have an impairment, like at Canyonlands in the SUWA case, on one resource (riparian habitat). Q: Why do we go impact topic by impact topic? A: So that we can set the stage and carefully build the case in a trackable record. It also enables us to assess the cumulative impact. There was a concern about making negative determinations; we might not know enough to make that call. Q: Can an answer be "we don't know"? A: Yes, that can be an answer. Then you have to decide whether you are able to make a well-reasoned decision without the information. Q: Can there be a situation where none of the individual impacts reach the level of impairment, but on the aggregate they do? A: Yes. Also discussed how impairment issue played out in scenarios such as the removal of cyclorama building at Gettsyburg and shooting deer at Valley Forge. While in some other scenario the loss of the cyclorama building might be an impairment, in the GETT case the building was itself an impairment to the integrity of the battlefield.
The threshold concept now being used in EA's and EIS's: Sarah described in a PowerPoint presentation how the impact analysis process deals with impairment. Discussed development of impact thresholds. Based on the impacts, we document in writing whether the proposed action will impair resources or values. Peer review is a tool to help with disagreements, as is alternative dispute resolution (single or multiple resource driven). IMR requires peer review of all planning documents, EISs, and EAs where there is a deviation from policy or controversy (peers are defined as superintendents from neighboring parks or parks with the same kinds of issues). Ran through the impact process (describe affected environment, consider context, intensity, duration). Described chapter organization (methodology, regulations and policy, analysis, cumulative effects, conclusion). Discussed some examples of impact thresholds (species of special concern, and water quality, in personal watercraft analysis).
Yellowstone Winter Use and Bison records of decision have good discussion of impairment.
November 29, 2001
Attendees: Chick Fagan, Chris Shaver, Madoline Wallace, Sarah Bransom, Sue Jennings, Don Owen, Gary Johnson, Joan Darnell, Gary Candelaria, Steve Petersburg, Marv Jensen, Jake Hoogland, Nat Kuykendall, Jay Goldsmith, Frank McManamon, Ann Brazinski, Chris Turk, Carol McCoy, Dick Sellars, Pat Tiller, Randy Jones, KC Becker, John Karish
Cultural Resources Flowchart: Pat Tiller reviewed the flowchart he developed to show how impairment could be blended into the section 106 review process. The flowchart was previously reviewed by the NLC and Cultural Resources Advisory Group. Basically, take adverse effects and apply an impairment analysis. NEPA approaches things a little differently than §106, and we want to do a better job of blending the processes together. There are challenges: perception that NEPA takes longer; project-specific details are often not captured. Intermountain has experience since 1988 in trying to combine the NEPA and 106 process. There are many individuals in parks, clusters, regions, etc. involved in 106 decisions who should also be involved in the impairment decision. Might be a good idea to find out how many 106 actions also involve NEPA documents.
Natural Resources Flowchart: Chris Shaver reviewed two charts: one a flowchart, and one a list of steps. First determine whether the activity is appropriate. If not, just stop. Continued discussion of flowchart. Maybe we should try to add vital signs to chart? Legal standards may be a lower standard than we want in vital signs. [Need Q and A on how qualitative standards are reconciled with impairment.] Just because we violate a standard doesn't necessarily mean its an impairment (sewage treatment example). We will still need to deal with the standard violation, whether or not its an impairment. Just because we label something as an impairment doesn't mean that we have to shut operations down. Suggestion that final box read "alternative environmentally acceptable" rather than Project Approved or Project Denied.
Now working on ecological effects, wildlife, vegetation, air, and water in a guidance document that could either go into DO-12 field guide or somewhere else. They reflect applicable laws, etc., information you'd need to make rational decision, how to get it and where, what else you can use instead, then section on questions and criteria needed for each topic. Tried to put numbers in where they could and would then give some examples. Short discussion of what to do where information is lacking. Also section on what is meant by "best professional judgment." Will try to describe what you might want to monitor after the fact. Still working on it; it's not been shared or reviewed, but Chris said she would be happy to share it with the REC's for review.
Chris was asked to start coming up with experts who could be good sounding boards and helpful from a technical standpoint. Goal would be to put that up on web site. Sarah was working on an NRAG list for line item construction; lists should be combined.
What do we do about scenery? Some parks have done quite a bit of work on that topic (BLRI, Appalachian Trail). We have done many viewshed analyses. Aesthetics is important in cultural resources too.
Q: Would we involve SHPO, FWS, et al in making impairment determination? A: No, they would be experts providing us with review and give us their advice; but we would be making the impairment determinations.
Don't forget night sky, geology, etc.
The Importance of FONSI, ROD, Administrative Record. Jake said that all these things are very important, and the crux of lawsuit pattern. That's why we integrate NEPA and impairment into one unified administrative record. If you can't put together a paper trail that explains how you made the decision, you have a problem. Q: What about if there is disagreement in the record? Does that poison the well? A: No, but you need to explain how disagreements were resolved. There needs to be a rationale explaining how we got to the decision.
Went back again to discussion of how far resource professionals should go. Should they just say it's a major adverse effect? Or should the staff recommendations talk about impairment? Are resource professionals qualified to make the legal determination? One attorney in the Solicitor's Office has made the argument that staff shouldn't be making determination on impairment-that it's exclusively a management call. Our response was that many managers who are charged with making the ultimate decisions do not have the personal expertise on biological resources, historic resources, etc.; they have to rely on professional staff for advice. So it's okay for staff to offer their professional opinion on whether an impact may constitute an impairment. A manager who questions or has concerns about that advice can get peer or other review. Managers sometimes don't rely totally on staff specialist to make recommendation because the specialists usually do not know about or consider the full range of other factors. Not troubled legally by staff using word "impair," as long as the superintendent explains that, in consideration of all of these other factors and total effects, I conclude it's not an impairment.
There is tremendous responsibility in making the impairment determination. If challenged, staff person could be vigorously questioned in a deposition. If specialist knows enough to make an impairment determination, that's okay (if there is an explanation later). We shouldn't be throwing the term around loosely. Q: Is there a distinction between making an evaluation and the decision? A: Yes, staff can make an evaluation based on stated criteria, but the superintendent and the regional director sign the FONSI or ROD. Q: If staff specialist warns superintendent that there is impairment, based on certain standards, do other factors like politics have a bearing on whether it's impairment? A: Politics should not be a factor; but the superintendent must make the call as to whether violating the standards would necessarily result in an impairment. Good model would be to have staff make recommendation on level of effect (minor, moderate, major), then work cooperatively with managers to decide on impairment.
Is there a small "i" impairment and big "I" impairment? Can you impair one resource and not the park? Q: If both taking an action and failure to take the action would cause an impairment, can you choose between the two? A: Yes, according to section 1.4.5 of Management Policies. This was an issue regarding removal of the GETT cyclorama. In another vein, a jeopardy opinion would not automatically mean that there would be impairment; we would need to look at the integrity of the ecosystem.
When do various cumulative impacts then turn into impairment (death by 1000 cuts)?
6. Thorny Problems We Still Have to Work Out
[Note: This is a compilation of issues that were identified during the course of the meeting, and for which the group felt there was a need for further guidance. Several of the issues would be useful additions to the Question and Answer document posted on the www.nps.gov/protect web site. Chick agreed to add them to that document. They will be further edited for that purpose.]
a. How will we track decisions for consistency? Database? Sarah has volunteered to maintain a database; we have many examples of non-impairment, fewer of impairment. [REC's were asked to send good EAs with impairment to Sarah. There was also a suggestion that we make a 1-page case study that would then link to the actual impact/impairment.] Chick suggested we need more examples in the template format. We suggested that it might be a good idea to post examples of good EAs on the web site, rather than just the templates. (Chris Shaver volunteered to help Chick with that). [Jake suggested we might need to put a small group together to help ensure consistency.]
b. Inappropriate use of the word "impairment." (e.g., in PMIS) Some seem to try to raise their project's priority by claiming impairment. You should not make that statement unless you've gone through an environmental analysis that substantiates that claim. [We need to search the PMIS database for impairment. If abuse of the word "impairment" is a big problem, we need to issue PMIS guidance to the field describing the appropriate use of the word.] Documentation on that can be different on the cultural side. Needs to be looked at more.
c. The manager makes the decisions, but needs to collaborate with staff experts. Second opinions and ADR are okay (peer review). What about the manager who summarily dismisses staff advice? If there is a conflict, can call for second opinions or alternative dispute resolution. [Need to provide guidance on who is authorized to say "impairment" and when.] Say to staff experts who are crafting pieces of environmental documents that the word "impairment" not be used in those sections; that determination goes in the conclusion or the record of decision. Role of the manager is to take expert opinions/ perspectives and use them to make a decision, even if it isn't the decision staff wants to hear. There are all kinds of variations of that: sometimes good technical advice is ignored; sometimes staff with strong personal philosophy but without good science to support their opinion will take it to the press. Open communication helps with the latter. We shouldn't try to organize around the minority of problems because that creates bureaucratic inertia. Generational shift is helping; imperial superintendents are disappearing. We should focus on the positive examples of how superintendents have successfully resolved conflicts of opinion. Staff experts need to focus on the actual effects without making the impairment determination.
d. How high (or low) should the bar be set? This basically requires that our resources not be broken because of the actions we take. Sometimes the bar may be high, and sometimes it may be low. Although consistency is desirable, there will be different factors to consider at different parks with different circumstances. Bar is higher with PWC's because otherwise we'd have to shut parks down to all boats. The argument is that boating is generally consistent with the park's purpose at seashores and large reservoirs. Bar might be different for other types of parks. Thresholds as shown for PWC's will be slightly adjusted for each park to deal with park's enabling legislation. Impact thresholds are developed by park resource specialists with an understanding of the park's purpose. Okay to have different bars at different parks for different resources; it would be a good idea to have a sampling of impact thresholds in the database.
e. How do we address no action when taking no action would impair? Section 1.4.7 speaks to what we do about ongoing impairment activities which could be the subject of a no action alternative (must take appropriate action, to the extent possible within authorities and available resources, to eliminate the impairment as soon as reasonable possible). Need to remember that an impact doesn't have to rise to the level of impairment before we take action. Should we be surveying our resources to see if they are being impaired? Discussed the SUWA case - one question is should the damage be compared to a certain baseline condition we got the resource in? Actually the resource is in overall better shape since NPS got control because we eliminated grazing and mining. And the level of vehicle use proposed by the park and which the court found unacceptable would have been much less than previously allowed. There is increasing importance in what is said in the GMP, because the GMP defines in large measure how we interpret the park's enabling legislation and what we identify as being critically important to the integrity of the park. We need also to remember that we also have an obligation to minimize adverse effects too, not just impairment (MP section 8.1 says adverse impacts are never welcome in parks, even when they fall far short of impairment.)
f. Can you impair enjoyment? Link it to values? We make management decisions on the kind of visitor experience we want. Can we be sued if we have high encounters between park users when we called for low encounters? If it's overlain by the Wilderness Act, maybe yes. If you take the Organic Act verbiage, you can't impair enjoyment in the same way that you impair park values. But if we allow enjoyment to deteriorate, we have a secondary consideration. Our visitors may enjoy park resources and think of them as unimpaired. But our visitors don't necessarily have the expertise to know that the scenery they are seeing, while appearing good, is full of exotics and so may be impaired. [This question will be re-worked for the Q&A.]
g. Can "I don't know" be a valid answer? (If so how to do it?) Yes, it is often okay to say "I don't know" and still do something, provided that you document a rational and reasonable explanation for why you did it. However, if the missing information is essential to making a reasoned decision, or if the information is relevant to reasonably foreseeable significant adverse impacts (which would include an impairment), then CEQ regs say we are supposed to get it. In Glacier Bay, the court rejected our argument that we were going to monitor after the fact and take the action even though we didn't know the impacts. Indicate that potentially significant impacts were "unknown" and still sign a FONSI. If you cannot make a rational and well justified decision without the information, then you have to change your proposal to avoid the action causing the unknown impact. DO-12 gives guidance on what information we need.
h. Should we make just one summary statement on impairment, or make an impairment determination for each topic? DO-12 says you do it topic by topic, and then in the cumulative impact analysis. We should be saying for each topic that it's likely or not likely to be impairment, and then make the comprehensive statement at the end.
i. Impairing one resource type vs. impairing the park as a whole. Lots of discussion on this topic, refer to earlier notes. A very serious impact on one particular resource does not necessarily have a serious impact on the overall integrity of the park, and thus would not be an impairment. However, if a particular resource type (e.g., geological formations) were the focus of the park's legislation, then that resource type would have to be diligently protected.
Because we seem as a group to not be able to reach consensus on when something becomes an impairment, may be a good idea to require a peer review (or some other form of review) of impairment determinations.
j. Is it appropriate for a subject matter expert to make an impairment finding without first addressing or understanding the broader context? No superintendent should control what a subject matter expert puts in a document as impact analysis. Some discomfort with a SME making the impairment call without considering the entire context. The ultimate decision rests with the superintendent, with the approval of the regional director.
k. Can you impair park resources through benign neglect? Benign neglect is an adverse effect according to the Advisory Council on Historic Preservation, if it is done intentionally. Absent a mention in the GMP or other documents to justify why we would neglect a historic resource, it's a problem. It's hard to know what to do with that. Sometimes we can mitigate the intentional loss by thoroughly documenting the resource (e.g., measured drawings). No court cases on section 110 of the NHPA or on benign neglect. You could defend yourself against accusations of neglect if you had submitted proposals that weren't funded, or if you had something in the administrative record about wanting to do the stabilization or preservation work but not having funding. When discussing "benign neglect," the concept could probably apply to natural resources as well as to cultural resources
7. Group Discsussion of Case Studies
[Note: Although one of the goals of this meeting was to reach consensus on a few specific case studies, we were unable to do so. It became apparent during the discussion that more information than what the group had on hand would be necessary in order to come to any conclusions. There was also a general discomfort in passing judgment without the benefit of a personal familiarity with the situation. There was a general feeling that the case study template we use should not necessarily conclude "yes" or "no" with regard to impairment. The consensus was that it would be better to conclude with a list of questions or concerns that the decision-maker should take into account in making the impairment determination. Also felt that some case studies should be after-the-fact, and conclude with a list of factors that the decision-maker actually did take into account.]