Note deadlines

There should be something in or on the document you're reviewing -- probably a cover letter, maybe an introductory page -- that provides deadlines for comments. Try to make sure your comments get to the agency by the deadline. If you're going to miss the deadline with written, hard-copy comments, try e-mail or fax followed up with a snail-mail copy. Some agencies (not all) are very sticky about deadlines, and in contentious cases that may go to court, an agency may have to be sticky about them to avoid being accused of giving undue attention to a particular party.

What are you reviewing?

Is what you're reviewing an EIS, or something else? It's not always clear, but you should be able to tell from the title and introductory material. It matters, because there are points you can make with regard to an EA that aren't relevant in review of an EIS, and some things you can say about an EIS that aren't relevant to an EA, a CatEx screening document, or some other NEPA-like document.

• If it's actually an Environmental Assessment, then you should review the EA section and its Reviewer's Tips.
  
  
• It may be an EIS that's also designed to satisfy a State environmental policy act (SEPA) or "little NEPA. In this case it may present particular material, or address particular issues, in a way that's designed to address State requirements. This may create a flaw in the document, that you should be alert to.

  For example, suppose that the SEPA requires only that project proponents consider impacts on historic properties listed in the State Historic Property Inventory (or State Register, or whatever it's called). The EIS, probably drafted by a contractor used to working under the SEPA, may address only such listed properties in the document's section on historic properties (or worse, on "cultural resources"). NEPA and Section 106, of course, both require that impacts be considered both on listed properties and on those that may be eligible for the National Register. NEPA and other laws require that impacts be considered on cultural resources other than historic properties. Be alert to the possibility that the narrow requirements of the SEPA have caused the agency to ignore the broader requirements of NEPA, NHPA, and other Federal laws.

• The document may be some sort of report prepared to support categorically excluding a project from detailed NEPA analysis. Many agencies, quite properly, prepare such reports as part of their screening to make sure that projects regarded as "CatEx" are really not likely to have significant impacts. Such documents go under many names, and there are no generally applicable standards for their preparation, content, or format -- except that, if they don't lead to doing an EA, they need to demonstrate that no "extraordinary circumstances" exist that kick the project out of the "CatEx" category and into the need for higher-level NEPA review. If it looks like this is the kind of document you're dealing with, review the section of this site on CX projects.

Are cultural resources defined too narrowly?

The EA will contain some kind of description of the affected environment. How is the cultural component of that environment defined? There's an excellent chance that there will be no clear definition; it will just be assumed that the reader knows what's meant by "cultural resource," or "historic property," or whatever term is used.

If your concern is about historic properties, check to make sure that the full range of historic property types -- or at least those types you're concerned about -- are included. Sometimes only archeological sites may be discussed, sometimes only historic buildings or urban neighborhoods. Occasionally historic landscapes and traditional cultural properties will be included. There's obviously no reason for an agency to discuss types of historic properties that don't exist in the area -- no need for an EA on a rural project to address impacts on urban historic districts, for example -- but it should discuss all those types of historic properties that one might reasonably expect to exist in the vicinity. If it doesn't, that's something to question.

If your concern is about other kinds of cultural resources -- traditional lifeways, for example, or cultural uses of the biophysical environment, then you need to question the agency if all it's looked at are historic properties. If all the "cultural resources" part of the EA talks about are historic properties, or archeological sites, then the document clearly isn't addressing the whole cultural environment, and you may want to point this out. If the kind of resource you're concerned about it has a specific legal authority that requires its consideration -- AIRFA for Indian tribal religious practices, for example, or Executive Order 12898 for environmental resources important to minority and low income communities -- then by all means ask the agency how it has addressed these requirements, or why it has failed to.

Is there evidence of professional bias?

If all the cultural resource discussion is focused on archeological sites, it's a good bet that an archeologist has written the discussion, and may not have thought about anything else. If only old buildings are discussed, you're probably dealing with an architectural historian. There's nothing wrong with archeologists and architectural historians, but if they've done all the cultural resource work without involving people from other disciplines, they may well have missed resource types that are important. Be alert for evidence of professional bias, and be prepared to comment on it.

How have extra-NEPA cultural resource requirements been addressed?

Is it likely that resources that are the subjects of specific cultural resource laws -- NHPA, NAGPRA, Executive Order 13006, FRA -- may be subject to effect? If so, how are these requirements addressed in the EA. Does it look like the agency has complied with the extra-NEPA cultural resource requirement? Have they completed Section 106 review? Developed a Plan of Action under NAGPRA?

Of course, not all laws apply to all projects; you don't have a NAGPRA issue if there's no potential for dealing with Native American cultural items, for example. And the agency may not be able to demonstrate full compliance with a cultural resource authority -- indeed, in some cases they shouldn't. If Section 106 of NHPA applies, for example, then the agency should be able to report identification of historic properties and effects in the DEIS, but it may be appropriate NOT to conclude Section 106 review with a Memorandum of Agreement before the EIS has been reviewed, because the reviewing public may have something to contribute to the MOA consultation. But the DEIS should document that processes like Section 106 review have been initiated, and carried to the point at which resources (if any) have been identified and effects (if any) described. Things like MOAs and conditional No Adverse Effect determinations under section 106 should be concluded and documented in the FEIS, however, and should be reflected in the ROD.

Is a sufficient range of reasonable alternatives addressed?

Is the range of alternatives considered in the EIS wide enough to embrace reasonable ways that impacts on cultural resources could be avoided or reduced? In thinking about alternatives, be sure you understand the purpose of, and need for, the action that's proposed. Do you think the action's really needed? Would the alternative of taking no action be a reasonable one to consider? Has it been effectively considered? If you think the action is not needed, muster your arguments against it, because there obviously must be people who think the project is needed, or it wouldn't be under consideration. If you think that some action is needed, think about alternative ways of accomplishing the action's purpose, and propose them in your comments. Describe them, and your rationale for thinking they're preferable, as fully and objectively as you can.

Are impacts adequately described and balanced?

Have impacts that you think will occur not been identified in the EIS? Your comments should explain what these impacts are likely to be, why you think they will happen, and what you think the agency should do to get the information necessary to analyze them.

Have the impacts of the different alternatives been accurately and fairly compared? Are the impacts of the "do nothing" or "no action" alternative overblown? Are the impacts of the preferred alternative downplayed? Identify any problems and explain what they are.

Has there been adequate consultation?

Have concerned stakeholders and relevant review agencies been adequately contacted and consulted? The SHPO? The THPO? Indian tribes or Native Hawaiian groups? Minority groups? Low income groups? Historical organizations? Neighborhood organizations? Archeological groups?

Have these groups been consulted as they are supposed to be under applicable regulations, executive orders, standards and guidelines -- the Section 106 regulations, NAGPRA, Executive Order 12898, Executive Order 13084, Executive Order 13007? Caution: make sure any such authorities you cite actually apply to the case at hand. There's nothing that will make you look stupider than citing something that's not relevant. Calling on an agency to pay attention to Executive Order 13007 when Federal lands aren't involved, for example, or for a
non-transportation agency to follow Section 4(f) of the Department of Transportation Act. Hint: If you can find internal agency procedures that apply -- for example, the agency's own public participation policy, or policy for consulting with Indian tribes, or historic preservation procedures -- and show that the agency hasn't followed them, that can be very powerful.

If impacts will occur, is there a firm commitment to adequate mitigation?

If adverse or negative impacts are identified in the EIS, then the ROD should set forth ways that they will be mitigated. In fact, the ROD must either document that all practicable mitigation measures have been adopted, or document the rationale for NOT adopting them (40 CFR 1505(c)). Look carefully at the mitigation measures proposed, either in the EIS or in the ROD (if in the former, they should be adopted by reference in the latter, since it's the ROD that's the action document). Do you think the measures proposed are adequate? Why or why not? Discuss your views in your comments. Bear in mind that with an EIS and ROD, the agency doesn't have to demonstrate that there will be no significant impact, as it does with an EA and FONSI. It's sufficient to reveal the impacts and either adopt all practicable mitigation measures or explain why it's in the public interest not to do so.

Does the EIS lead to a ROD based on deferred Section 106 review?

Does the EIS say that whatever impacts may occur on historic properties will be taken care of in subsequent Section 106 review, and leave it at that? This means that for all practical purposes, impacts on historic properties aren't even considered in deciding on the environmentally preferable alternative, or in making a decision about which alternative to select. This is contrary to the intent of NEPA, and it results in last-minute, difficult-to-resolve conflicts between projects and historic properties. The DEIS should document completion of at least scoping, identification, and initial effect determination under Section 106. If adverse effects are identified, the DEIS should also spell out how the agency thinks they should be mitigated, subject to completion of Section 106 consultation. Section 106 consultation should be completed before the FEIS is issued, with the resulting Memorandum of Agreement or conditional no adverse effect determination included the FEIS and/or referenced in the ROD.

Caution: Agencies often feel forced to defer Section 106 review until after NEPA analysis is complete, because they can't afford to do detailed identification and effect determination on the multiple alternatives they are (preferably) examining in the NEPA process. This particularly happens in states with very rigorous survey "requirements." If the SHPO is insisting that 100 percent archeological field study be done to identify every single archeological site, and that every site be tested to determine eligibility (or something equivalent for other resources, though it's in archeology that this kind of "requirement" is most often articulated), and you're trying to insist that all five alternative project impact areas be examined, the agency may find itself between a rock and a hard place. You may not care about this, but understand that frustration over this state of affairs may cause the agency to give your comments short shrift. If you can work with your SHPO to encourage more flexible
standards, it's probably a good idea. If you are an SHPO, you ought to think about whether your standards inadvertently cause agencies to defer historic preservation review until late in planning, and think about what changes may be in order.

Be as dispassionate and objective as possible

It's all right -- and usually desirable -- to express your outrage about the project if that's what you feel, but don't let it run away with you. Try to be objective, try to seem reasonable, express understanding for the agency's position, and try wherever you can to relate your comments to specific requirements of the NEPA regulations (especially Sections 1502 and 1505.2) and other legal authorities.