Updated August 2007

The Impairment Issue: Questions and Answers

1.   Why is the "impairment" issue so important?
2.   Why are we now focusing so intensely on the no-impairment clause of the Organic Act?
3.   Since similar lawsuits have been adjudicated before, why has the SUWA case been singled out?
4.   Where does this now leave the rest of the NPS?
5.   What does section 1.4 of Management Policies say?
6.   How will we implement this new policy?
7.   Does this mean that everything we do will be an impairment, and therefore we cannot do anything that will affect park resources or values?
8.   Does this mean it is okay to pursue activities that adversely impact park resources and values, as long as we do not impair them?
9.   Will implementing this new policy require complicated new procedures?
10. How do we distinguish an impact that is adverse from one that would constitute an impairment?
11. What role does the administrative record play in this?
12. What steps has the National Leadership Council taken regarding the impairment issue?
13. What role do resource managers play in making impairment determinations?
14. How will the Service help employees understand this issue and implement it effectively?
15. Does our increased focus on avoiding impairment mean that we are de-emphasizing visitors and the "enjoyment" part of the Organic Act?
16. How can we ensure Service-wide consistency in evaluating whether proposed actions would or would not cause impairment?
17. How should park managers deal with existing impairments, or conditions that would cause impairment if allowed to continue?
18. Will an activity necessary to avoid or eliminate impairment automatically have a high priority for Service-wide funding?
19. How should an EIS or EA address "no action," when taking no action would cause impairment or allow an existing impairment to continue?
20. Is the impairment of enjoyment prohibited?
21. Can an action be taken if you don't know an answer regarding impacts?
22. Should we make just one summary statement on impairment, or make an impairment determination for each topic?
23. Can an NPS staff member who is a subject matter expert make an impairment finding?
24. Can park resources be impaired through benign neglect?
25. Does the prohibition on impairment apply only to units of the national park system, or does it apply to heritage areas, affiliated areas, or any other parks?

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1. Why is the "impairment" issue so important?

Ninety years ago, President Wilson signed into law the NPS Organic Act. There is an important provision in the law that tells us the purpose for which we manage the national parks:

…which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

This is our core mission in managing the parks. Since passage of the act, we have had recurring discussions among ourselves-and with others-over what it means. We have often characterized the Organic Act as giving us a "contradictory mandate" that requires us to perform a "balancing test"-balancing between resource protection and public enjoyment. But we have argued at other times that it is not a balancing test-that resource protection is paramount. In short, we have not had within the Service a common and consistent interpretation of our mandate under the Organic Act. This has led to inappropriate and, at times, illegal decisions being made with respect to park resources and values.

2. Why are we now focusing so intensely on the no-impairment clause of the Organic Act?

Arguments about the "contradictory mandate" have sometimes led us into the courtroom. One of the more recent court cases occurred at Canyonlands and Glen Canyon, where the parks had prepared a Backcountry Management Plan (BMP). Informally referred to as the "SUWA" case, it has caused us to scrutinize, perhaps more closely than we have in the 85 years preceding SUWA, each and every word in the Organic Act. The following is a very brief summary:

District Court. In these kinds of cases, the court applies what the Supreme Court has established as the "Chevron 2-step test" (named for the case known as Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.) to determine whether an agency's reading of a statute it administers is correct. Under step 1, if Congress has spoken to the precise question at issue, then that controls the court-and agency's-interpretation of the statute. At that point, there is no need to go to step 2. However, if the statute is silent or ambiguous, the court defers under step 2 to the agency's interpretation so long as it is a reasonable interpretation of the statute. Our defense contended that Canyonlands was a "Chevron 2" case, whereby we are allowed to strike a balance between competing mandates of resource conservation and visitor enjoyment. The District Court ruled where there is "permanent impairment of unique park resources," then the Organic Act is not ambiguous: the activity cannot be allowed. The District Court ordered that the park could not allow motorized vehicle use on the 10-mile section of trail.

The Appeal. The ORV groups then appealed the district court's decision. This caused the Service to consider whether the court had properly articulated the standard for determining when the NPS is in violation of the Organic Act. The timing of the ruling allowed the Assistant Secretary's Office and NPS to consider the issue in the context of the revision of Management Policies (in which Chapter 1 outlines the legal and philosophical foundations of the national park system) and use SUWA as an opportunity to articulate an official DOI/NPS interpretation of the Organic Act. So we filed a brief to advise the court of the DOI's views on the proper interpretation of the Organic Act. This interpretation was different than the interpretation we had offered previously, wherein we contended that the law authorizes the NPS to balance between competing mandates of resource conservation and visitor enjoyment.

Since the policy interpretation offered by DOI was technically still in draft form (Management Policies had not yet been approved), the Court of Appeals did not consider the position we offered. But it also said that the District Court erred in its decision, and found that:

The court also said "we read the Act as permitting the NPS to balance the sometimes conflicting policies of resource conservation and visitor enjoyment in determining what activities should be permitted or prohibited." But the court added: "The test for whether the NPS has performed its balancing properly is whether the resulting action leaves the resources 'unimpaired' for the enjoyment of future generations."
The park is now re-working that portion of the BMP addressing Salt Creek Road in light of the court's decision. It has closed the road pending a new Environmental Assessment. The EA will consider the ongoing studies and monitoring which have taken place on the road since the district court closed the road in 1998. The EA will also include an impairment finding, as required by the Management Policies and Director's Order #12.

3. Since similar lawsuits have been adjudicated before, why has the SUWA case been singled out?

The SUWA case (or "SUWA v. Dabney") has become the focal point for the no-impairment issue mainly because it is the first case to find that the Service's actions in a park had violated the Organic Act. And, in doing so, it articulated a new standard for finding such a violation. It also became a focal point of the no-impairment issue because the court's decision coincided with our re-drafting of Management Policies, allowing us to focus on how we should interpret and implement the Organic Act's no-impairment standard.

In considering the SUWA case, we must resist the temptation to be overly judgmental. The decisions that were made there, and the political realities and tensions that the superintendent had to deal with, are mirrored all across the national park system. Making the right decisions under those circumstances is difficult at best. But because park-level decisions sometimes have Service-wide repercussions, we all must learn as much as we can from lessons of this sort.

4. Where does this now leave the rest of the NPS?

Even though the interpretation of the Organic Act we offered the Court of Appeals was not considered because it was not final, we continued to work on it, under the leadership of the Assistant Secretary's office. Initially, we adopted our interpretation as Directors Order #55. But that was superseded by section 1.4 (Park Management) of the new Management Policies, approved December 22, 2000. [This section was not substantively changed in the 2006 edition.] Thoughtful consideration was given to virtually every word in section 1.4, and the policy's wording was selected-or not selected-for important reasons, namely:

5. What does section 1.4 of Management Policies say?

Section 1.4 tells us that:

6. How will we implement this new policy?

For many in the Park Service, this interpretation is not really "new." They have operated under the assumption that the law means what it says-we cannot take actions that impair park resources. But section 1.4 formally adopts a single interpretation that everyone must live by. And the basic framework has been in place for a long time.

But section 106 and NEPA require merely that we fully analyze and disclose the adverse consequences of our proposed actions. As long as we take all the steps required under those laws, and do the best we can to mitigate or avoid adverse impacts, they allow us to pretty much do whatever we want. And that is why this clear, unequivocal interpretation is so important to us-it requires one more critical step in the decision-making process. We must ask the question: Is the impact of this action going to be so bad that it will impair park resources or values? If the answer is "yes," then we cannot take the action.

7. Does this mean that everything we do will be an impairment, and therefore we cannot do anything that will affect park resources or values?

No, it does not mean that. As stated in section 1.4.3 of Management Policies:

[T]he laws do give the Service the management discretion to allow impacts to park resources and values when necessary and appropriate to fulfill the purposes of a park, so long as the impact does not constitute impairment of the affected resources and values.

Furthermore, section 8.1.1 of Management Policies states:

The fact that a park use may have an impact does not necessarily mean it will impair park resources or values for the enjoyment of future generations. Impacts may affect park resources or values and still be within the limits of the discretionary authority conferred by the Organic Act.

We must recognize that there are many types and degrees of impact. Some impacts are beneficial while others are adverse. Some of the adverse impacts may be so adverse as to significantly affect the quality of the human environment. When they reach that level, NEPA requires that an environmental impact statement be prepared. When a significant adverse impact reaches the level of impairing park resources or values, it is prohibited under the Organic Act. If it is not so adverse that it would cause impairment, then the NPS decision-maker may approve the action.

8. Does this mean it is okay to pursue activities that adversely impact park resources and values, as long as we do not impair them?

No, it does not mean that. As stated in section 8.1.1:

Impacts may affect park resources or values and still be within the limits of the discretionary authority conferred by the Organic Act. In these situations, the Service will ensure that the impacts are unavoidable and cannot be further mitigated. Even when they fall far short of impairment, unacceptable impacts can rapidly lead to impairment and must be avoided. For this reason, the Service will not knowingly authorize a park use that would cause unacceptable impacts.

9. Will implementing this new policy require complicated new procedures?

No. As stated in paragraph 6, above, under NEPA and the NHPA we have been evaluating the impacts of our proposed actions for more than 35 years. And for more than 90 years we have been trying to avoid taking actions that would impair park resources. Under the Administrative Procedure Act, we are required to have a well documented record of the information we considered and the rationale for our decisions. [Note: the APA is only about 45 years old.] The only thing that is really new is that we will now explicitly certify in our environmental documents that the adverse impacts caused by our actions will not cross the threshold into impairment. This certification must be included in the Finding of No Significant Impact (FONSI) or the Record of Decision (ROD). [This is addressed in more detail in the handbook that accompanies Director's Order #12.]

10. How do we distinguish an impact that is adverse from one that would constitute an impairment?

This is the most difficult task we now face. Section 1.4.5 says the impairment that is prohibited:

[I]s an impact that, in the professional judgment of the responsible NPS manager, would harm the integrity of park resources or values, including the opportunities that otherwise would be present for the enjoyment of those resources and values. Whether an impact meets this definition depends on the particular resources and values that would be affected; the severity, duration, and timing of the impact; the direct and indirect effects of the impact; and the cumulative effects of the impact in question and other impacts.

...An impact would be more likely to constitute impairment to the extent that it affects a resource or value whose conservation is:

An impact would be less likely to constitute an impairment if it is an unavoidable result of an action necessary to preserve or restore the integrity of park resources or values and it cannot be further mitigated.

Rarely will there be clear-cut evidence that impairment will occur. Superintendents and other decision-makers must apply their professional judgment to the facts of each case, taking into account technical and scientific studies and other information provided by subject matter experts within and outside the service. The Service is continually trying to develop, on an interdisciplinary basis, criteria and understandings necessary to carry out this responsibility efficiently.

11. What role does the administrative record play in this?

When a decision made by an NPS manager faces legal challenge, the courts rely on the administrative record as evidence that the Service adhered to applicable law(s) and regulations, followed proper procedures, and reached a reasonable decision. The administrative record is the paper trail that documents the Service's decision-making process and the basis for the decision. It consists of all documents and materials directly or indirectly considered by persons involved in the decision-making process. This includes all documents, regardless of whether they favor the decision that was finally made, favor decisions other than the final decision, or express criticism of the final decision.

Among the materials included would be a finding that there would not be impairment, and any documents that helped lead to that conclusion. If there are documents that contend the decision that was made would lead to impairment, then there must be other evidence refuting that contention, and an indication of how the decision-maker weighed the competing evidence. As one court has described its review process:

Generally, an agency decision will be considered arbitrary and capricious if the agency had (1) relied on factors which Congress had not intended it to consider, (2) entirely failed to consider an important aspect of the problem, (3) offered an explanation for its decision that runs counter to the evidence before the agency, or (4) is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

12. What steps has the National Leadership Council taken regarding the impairment issue?

The NLC held a seminar March 20, 2001, on the impairment issue, with Dr. Robin Winks as the featured speaker. At the conclusion of the seminar, the NLC:

13. What role do resource managers play in making impairment determinations?

Resource managers and others with specialized natural or cultural resource expertise play a critical role in helping decision-makers identify alternative courses of action and analyze the environmental consequences of those alternatives. Resource managers should ensure that the results of scientific study are made available to the decision-makers so that this important information may be fully and properly utilized in the decisions, as required by law. A full understanding of the environmental consequences leads to well-informed decisions.

One aspect of environmental analysis is to determine whether an impact is so severe as to constitute an impairment. Resource managers and subject-matter experts should participate in impairment-related discussions, and decision-makers should carefully evaluate their advice and recommendations. But it is the superintendent's role, not the staff expert's, to make the decision, even if it is not a decision that staff agrees with. Staff experts are not authorized to make final impairment determinations, only to suggest whether there appears, or does not appear, to be an impairment. The decision-maker should view staff recommendations within the broader context of all factors that must be taken into consideration, and include their final determination in the conclusion section of the environmental document or in the record of decision. If there is disagreement or uncertainty about the nature or severity of impacts, the decision-maker should seek additional opinions and thoroughly document the administrative record as to how they took staff advice-and other sources of information-into account in reaching their decision. "Alternative Dispute Resolution" techniques may also be used if the decision-maker believes it would be helpful.

14. How will the Service help employees understand this issue and implement it effectively?

Several steps have been taken in that direction:

15. Does our increased focus on avoiding impairment mean that we are de-emphasizing visitors and the "enjoyment" part of the Organic Act?

No, it does not mean that. While the NPS Management Policies emphasize the need to avoid impairment, there are other statements that clearly reflect our ongoing responsibility and commitment to provide for public enjoyment of the parks. For example:

For many decades the Service has provided opportunities for enjoyment without impairing park resources and values, and we will continue to do so.

16. How can we ensure Service-wide consistency in evaluating whether proposed actions would or would not cause impairment?

We will try to make sure that Service-wide guidance is reasonably clear and unambiguous. We will also post case studies to use as examples. A database containing good examples of environmental impact statements and assessments will be developed as a reference source. The examples will be available on the www.nps.gov/protect web site. Regional Environmental Coordinators will help in this effort by sending good examples to the Environmental Quality Division. WASO staff in policy, planning, and program disciplines will monitor environmental documents to promote consistency. All NPS staff-especially those who prepare environmental documents-can help by contributing to the database, by consulting the database for insights on what types of impacts have been viewed as impairing or not impairing park environments, and by sharing their questions or concerns with the No-impairment Coordinating Committee.

17. How should park managers deal with existing impairments, or conditions that would cause impairment if allowed to continue?

Existing conditions or ongoing activities that may cause impairment may be revealed while analyzing a no action alternative in an EA or EIS. Or they may be revealed through less formal means-for example, through routine resource monitoring, or through casual observation. Section 1.4.7 of Management Policies speaks to how we should deal with ongoing or impending impairment: "[T]he decision-maker must take appropriate action, to the extent possible within the Service's authorities and available resources, to eliminate the impairment. The action must eliminate the impairment as soon as reasonably possible, taking into consideration the nature, duration, magnitude, and other characteristics of the impact to park resources and values…." To determine the relative urgency of corrective action, the superintendent should ask questions such as: How extensive is the impairment? Will a delay in resolving it cause progressively more harm? What are the alternatives for arresting it or preventing it? What financial and other resources are available for dealing with it? The existing impairment should be addressed through the park's resource management planning process.

Sometimes impairment may be present before the NPS assumes responsibility for managing a park. The park's legislative history should be reviewed to see if it contains some indication of whether Congress intended that the Service would take remedial action, or that the apparent impairment would be tolerated or "grandfathered." The NPS no-impairment policy takes into account the provision of the 1978 "Redwood amendment" which recognizes that the conditions that create an impairment are sometimes "directly and specifically provided by Congress."

18. Will an activity necessary to avoid or eliminate impairment automatically have a high priority for Service-wide funding?

When a project is proposed that might cause impairment, steps must be taken to avoid or to mitigate so that the impairment will not occur. The need to take those steps does not automatically ensure high funding priority; the project must be viewed in its entirety as it competes for Service-wide funding. If the costs of avoiding impairment are unacceptably high, an obvious solution is to revise the project or activity to eliminate the action that would cause impairment, or abandon the project altogether. In the case of existing or ongoing impairments, section 1.4.7 of Management Policies requires appropriate action, to the extent possible within the Service's authorities and available resources, to eliminate the impairment as soon as reasonably possible. Managers should therefore use their existing funds or, if necessary, apply for Service-wide funding to cover the cost of remedial action.

Because of the serious implications associated with the term "impairment," project justifications must not state or imply that there is or will be impairment unless the real or potential impairment has been documented in an approved environmental assessment or environmental impact statement, and addressed in an appropriate decision document.

19. How should an EIS or EA address "no action," when taking no action would cause impairment or allow an existing impairment to continue?

Taking no action would usually mean that ongoing conditions or trends would continue on their normal course. If ongoing conditions have caused, or will cause, impairment, then that must be documented in the EA or EIS. Section 1.4.7 of Management Policies requires that we take appropriate action, to the extent possible within the Service's authorities and available resources, to eliminate the impairment as soon as reasonably possible. The EA or EIS should describe what the "appropriate" remedial action(s) would be, and any funding, timing, legal or other constraints that would influence our ability to take the remedial action. The Service's ultimate course of action must include a remedial action, unless remedial action is not possible (e.g., where a particular structure or feature has been damaged beyond repair), in which case the reason it is not possible should be explained

Managers should use their existing funds or, if necessary, apply for Service-wide funding to cover the cost of remedial action. In some cases, it may not be possible to eliminate an existing impairment.

20. Is the impairment of enjoyment prohibited?

No, at least not in the same way that impairment of resources and values is prohibited, for it is the impairment of the "opportunity" to enjoy park resources and values that is prohibited. When "enjoyment" is directly dependent upon park resources or values, the loss of enjoyment may be an indication that a resource or value has been impaired. Future generations should be able to experience the same enjoyment that a park visitor can experience today (although a park's resource attributes may naturally evolve to be different from what they are today). If the future visitor cannot experience enjoyment because the resources or values have been degraded, then it may mean that impairment of the opportunity for enjoyment has been allowed to occur.

A somewhat related issue is that the casual visitor may not have sufficient knowledge to recognize when park resources have been degraded. For example, a park visitor may be favorably impressed to see wildlife or wildflowers in a park, not knowing that they were exotic species which, perhaps, displaced native plants and animals. A park's interpretive program should help visitors learn to distinguish a healthy park environment from what merely appears to be healthy.

21. Can an action be taken if you don't know an answer regarding impacts?

Yes, it is often okay to say "I don't know" and still take action, 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) and the cost is not prohibitive, then CEQ regulations say we must first get the answer to the question if the cost of doing so is not exorbitant. You cannot indicate that potentially significant impacts are "unknown" and still sign a FONSI. In Glacier Bay, the court rejected our argument that we could take the action and monitor after the fact, even though we didn't know the impacts of the action. If you cannot make a rational and well justified decision without the information, then you should change your proposal to avoid the action causing the unknown impact. Director's Order #12 gives guidance on what information we need.

22. Should we make just one summary statement on impairment, or make an impairment determination for each topic?

Director's Order #12 says to do it topic by topic, and then in the cumulative impact analysis. Generally, we should be saying for each topic or resource type that it's likely or not likely to be impairment, and then make the comprehensive statement at the end. It is possible that there would not be impairment for any individual topic but, cumulatively, the integrity of the park would be compromised and thus constitute impairment.

23. Can an NPS staff member who is a subject matter expert make an impairment finding?

No, the impairment determination rests with the superintendent, subject to approval by the regional director. Staff members should be encouraged to freely offer their expertise in identifying impacts, including possible impairments, and it is generally appropriate to include their points of view in the impact analysis. (Their written views, even if not included in the EA or EIS, would always be a part of the administrative record.) If the staff expert believes there may or will be impairment, their views should be considered as a recommendation to the superintendent, not an absolute finding of impairment. NPS policy recognizes that staff experts are not always aware of all the facts of a situation or the full context in which a decision must be made.

24. Can park resources be impaired through benign neglect?

Under regulations issued by the Advisory Council on Historic Preservation to implement section 106 of the National Historic Preservation Act, intentional neglect which causes the deterioration of a property significant in American history (which includes pre-history) is considered an "adverse effect." As a world leader in historic preservation, it is NPS policy to always seek to avoid harm to significant historic resources. But that is not always possible, due to lack of funding, conflicts with competing and equally valid objectives, or some other compelling reason. When a park superintendent decides not to schedule a historic resource for preservation, rehabilitation or restoration, that decision should be identified in the park's GMP or other planning documents, along with the justification for the decision. If a resource is not critical to the integrity of the park, then its loss or degradation would not likely be an impairment.

NEPA and section 106 processes must be followed in documenting adverse effects on historic resources. Park managers must always try to mitigate an unavoidable loss, which can sometimes be done by thoroughly documenting the resource (e.g., measured drawings). The park should keep records of any requests made to fund stabilization or preservation efforts.

25. Does the prohibition on impairment apply only to units of the national park system, or does it apply to heritage areas, affiliated areas, or any other parks?

The Organic Act's prohibition on impairment applies only to units of the national park system. It does not apply to heritage areas, affiliated areas, or other parks that are not part of the national park system. As defined in the 1970 General Authorities Act, the national park system includes "any area of land and water now or hereafter administered by the Secretary of the Interior through the National Park Service." The same law specifically excludes "miscellaneous areas administered in connection therewith" (i.e., those properties that are neither federally owned nor directly administered by the NPS, but which utilize NPS assistance).

It should be noted, however, for an area to be eligible for "affiliated area" status, the NPS expects the responsible management entity to manage the area in accordance with the policies and standards that apply to units of the national park system, including the no-impairment standard. But there is not a legally binding mechanism in place that empowers the NPS to enforce this. Should the NPS become aware that the integrity of an affiliated area's resources have been or are being harmed, the NPS could take steps to have the affiliated area designation withdrawn, which could include the loss of any funding or technical assistance that the Service had been providing.