Office of Enforcement EPA/300/R-92/002 Washington, DC 20460 April 1981 Scoping Guidance ------- EXECUTIVE OFFICE OF THE PRESIDENT COUNCIL ON ENVIRONMENTAL. QUALITY 7a JACKSON PLACE. N. w. WASHINGTON. 0. C. ZOOM April 30, 1981 MEMORANDUM FOR GENERAL COUNSELS, NEPA LIAISONS AND PARTICIPANTS IN SCOPING SUBJECT: Scoping Guidance As part of its continuing oversight of the implementation of the NEPA regulations, the Council on Environmental Quality has been investigating agency experience with scoping. This is the process by vhich the scope of the issues and alternatives to be examined in an SIS is determined. In a project led by Barbara Bramble of the General Counsel's staff, che Council asked federal agencies to report their scoping experiences; Council scarf held meetings and workshops in all regions of the country to discuss scoping practice; and a contract study was performed for the Council to investigate what techniques work best for various kinds of proposals. Out of this material has been distilled a series of recommendations for successfully conducting scoping. The attached guidance document consists of advice on what works and what does not, based on the experience of many agencies and other participants in scoping. It contains no new legal requirements beyond those in the NEPA regulations. It is intended to make generally available the results of the Council's research, and to encourage the use of better techniques for ensuring public participation and effici- ency in the scoping process. NICHOLAS C. YOST General Counsel ------- INDEX I. Introduction 1 A. Background of this document • 1 B. What scoping is and what it can do 2 II. Advice for Government Agencies Conducting Scoping 3 A. General context 3 B. Step-by-step through the process 4 1. Start scoping after you have enough information 4 2. Prepare an information packet 4 3. Design the scoping process for each project 3 4. Issuing the public notice 7 S. Conducting a public meeting 8 6. What to do with the comments 10 7. Allocating work assignments and setting schedules .. 12 8. A few ideas to try 12 a. Route design workshop 12 b. Hotline 12 c. Videotape of sites 13 d. Videotape meetings 13 e. Review committee 13 f. Consultant as meeting moderator 13 g. Money savings tips 13 C. Pitfalls 13 1. Closed meetings 13 2. Contacting interested groups 14 3. Tiering 15 D. Lead and Cooperating Agencies IS III. Advice for Public Participants 17 A. Public input is often only negative 18 B. Issues are too broad 18 C. Impacts are not identified 18 IV. Brief Points for Applicants 18 ------- SCOPING GUIDANCE I. Introduction A. Background of this document. In 1978, with the publication of the proposed NEPA regulations (since adopted as formal rules, 40 C.F.R. Parts 1500-1508), the Council on Envi- ronmental Quality gave formal recognition to an increasingly "*«K3 term — scoping. Scoping is an idea that has long been familiar to those involved in NEPA compliance: In order to manage effectively the preparation of an environmental impact statement (EIS), one must determine the scope of the document — that is, what will be covered, and in what detail. Planning of this kind was a normal component of EIS preparation. But the consideration of issues and choice of alternatives to be examined was in too many cases completed outside of public view. The innovative approach 03 scoping in the regulations is that the process is open to the public and state and local governments, as well as to affected federal agencies. This open pro- cess gives rise to important new opportunities for better and more effici- ent NEPA analyses,' and simultaneously places new responsibilities on public and agency participants alike to surface their concerns early. Scoping helps insure that real problems are identified early and properly studied; that issues that are of no concern do not consume time and effort; that the draft statement when first made public is balanced and thorough; and that the delays occasioned by re-doing an inadequate draft are avoided. Scoping does not create problems that did not already exist; it ensures that pro- blems that would have been raised anyway are identified early in the Many members of the public as well as agency staffs engaged in the NEPA process have told the Council that the open scoping requirement is one of the most far-reaching changes engendered by the NEPA regulations. They have predicted that scoping could have a profound positive effect on envi- ronmental analyses, on the Impact statement process itself, and ultimately on decisionmaking. Because the concept of open scoping was new, the Council decided to encour- age agencies' innovation without unduly restrictive guidance. Thus the regulations relating to scoping are very simple. They state that "there shall be an early and open process for determining the scope of issues to be addressed" which "«*vll be termed scoping," but they lay down few spe- cific requirements. (Section 1501.7*}. They require an open process with public notice; identification of significant and insignificant issues; allocation of EIS preparation assignments; identification of related analy- sis requirements in order to avoid duplication of work; and the planning of a schedule for EIS preparation that meshes with the agency's decisionmaking * All citations are to the NEPA regulations, 40 C.F.R. Parts 1500-1508 unless otherwise specified. ------- schedule. (Section 1501.7(a)). The regulations encourage, but do not require, setting time limits and page limits for the EIS, and holding scop- ing meetings. (Section 1501.7(b)). Aside from these general outlines, the regulations left the agencies on their own. The Council did not believe, and still does not, that it is necessary or appropriate to dictate the specific manner in which over 100 federal agencies should deal with the public. Bowever, the Council has received several requests for more guidance. In 1980 we decided to investigate the agency and public response to the scoping requirement, to find out what was working and what was not, and to share this with all agencies and the public. The Council first conducted its own survey, asking federal agencies to report some of their scoping experiences. The Council then contracted with the American Arbitration Association and Clark McGlennao Associates to survey the scoping techniques of major agencies and to study several innovative methods in detail.* Council staff conducted a two-day workshop in Atlanta in June 1980, tao discuss with federal agency NEEA staff and several EIS contractors what if.trm to work best in scoping of different types of proposals, and discussed scaping with federal, state and local officials in meetings in all 10 federal regions. This document is a distillation of all the work that has been done so far by many people to identify valuable scoping techniques. It is offered as a guide to encourage success and to help avoid pitfalls. Since scoping meth- ods are still evolving, the Council welcomes any cements on this guide, and may add to it or revise it in cming years. B. What scoping is and what it can do. Scoping is often the first contact between proponents of a proposal and the public. This fact is the source of the power of scoping and of the trepi- dation that it ^nmetimn evokes. If a scoping meeting is held, people on both sides of an issue will be in the sane roan and, if all goes well, will speak to each other. The possibilities that flow from this situation are vast. Therefore, a large portion of this docanent is devoted to the pro- ductive management of meetings and the de-fusing of possible heated dis- Even if a meeting is not held, the seeping process leads EXS preparers to think about the proposal early on, in order to explain it to the public and affected agencies. The participants respond with &**JT own concerns about significant issues and suggestions of alternatives. Thus as the draft SIS is prepared, it will include, from the beginning, a reflection or at least an acknowledgement of the cooperating agencies' and the public's This reduces the need for changes after the draft is *M «*•*,. because it • The results of this examination are reported in "Scoping the Content of EZSs: An Evaluation of Agencies' Experiences,* which is available fron the Council or the Resource Planning Analysis Office of the O.S. Geological Survey, 750 National Center, Reston, Va. 22092. ------- reduces the chances of overlooking a significant issue or reasonable alter- native. It also in many cases increases public confidence in NEPA and thedecisionnaking process, thereby reducing delays, such as front litigation, later on when implementing the decisions. As we will discuss further in this document, the public generally responds positively when its views are taken seriously, even if they cannot be wholly accomodated. But scoping is not simply another "public relations" meeting requirement. It has specific and fairly limited objectives: (a) to identify the affected public and agency concerns; (b) to facilitate an efficient SIS preparation process, through assembling the cooperating agencies, assigning EIS writing tasks, ascertaining all the related permits.and reviews that must be scheduled concurrently, and setting time or page limits; (c) to define the issues and alternatives that will be examined in detail in the EIS while simultaneously devoting less attention and time to issues which cause no concern; and (d) to save time in the overall process by helping to ensure that draft statements adequately address relevant issues, reducing the possibility that new comments will cause a statement to be rewritten or supplemented. Sometimes the scoping process enables early identification of a few serious problems with a proposal, which can be changed or solved because the pro- posal is still being developed. In these cases, scoping the CIS can actu- ally lead to the solution of a conflict over the proposed action itself. We have found that this extra benefit of scoping occurs fairly frequently. But it cannot be expected in most cases, and scoping can still be consid- ered successful when conflicts are clarified but not solved. This guide does not presume that resolution of conflicts over proposals is a principal goal of scoping, because it is only possible in limited circumstances. Instead, the Council views the principal goal of scoping to be an adequate and efficiently prepared CIS. Our suggestions and recommendations are aimed at reducing the conflicts among affected interests that impede chis limited objective. But we are aware of the possibilities of more general conflict resolution that are inherent in any productive discussions among interested parties. We urge all participants in scoping processes to be* alert to this larger context, in which scoping could prove to be the first step in environmental problem-solving. Scoping can lay a firm foundation for the rest of the decisionmaking pro- cess. If the EIS can be relied upon to include all the necessary informa- tion for formulating policies and making rational choices, the agency will be better able to make a sound and prompt decision. In addition, if it is clear that all reasonable alternatives are being seriously considered, the public will usually be more satisfied with the choice among them. II. Advice for Government Agencies Conducting Scoping A. General context. Scoping is a process, not an event or a meeting. It continues throughout the planning for an CIS, and may involve a series of meetings, telephone conversations, or written comments from different interested groups. Because it is a process, participants must remain flexible. The scope of an SIS occasionally may need to be modified later if a new issue surfaces, ------- no matter how thorough the scoping was. But it makes sense to try to set the scope of the statement as early as possible. Scoping may identify people who already have knowledge about a site or an alternative proposal or a relevant study, and induce them to make it avail- able. This can save a lot of research time and money. But people will not come forward unless they believe their views and materials will receive serious consideration. Thus scoping is a crucial first step toward buil- ding public confidence in a fair environmental analysis and ultimately a fair decisionmaking Cne farther point to remember: the lead agency cannot shed its responsi- bility to assess each significant impact or alternative even if one is found after scoping. But anyone who hangs back and fails to raise aoma thing that reasonably could have been raised earlier on will have a hard time prevailing during later stages of the NEEA process or if litigation ensues. Thus a thorough scoping process does provide sane protection against subsequent lawsuits. B. Step-by-step through the process. 1. Start scoping after you have enough information. Scoping cannot be useful until the .agency knows enough about the proposed action to identify most of the affected parties, and to present a coherent proposal and a suggested initial list of environmental issues and alterna- tives. Until that time there is no way to explain to the piM<«- or other es **** you "a** ttneffl tt 9** involved _in. So the first stage is to pp •Ti^i n»yy ]]\[qfiit*(+]fn teif tjs* applicant, or to comcose a ^a*f picture of your proposal, if it is being developed by the agency. 2. Prepare an information packet. In many cases, scoping of the EXS has been preceded by preparation of an environmental assessment (EA) as the basis for the decision to proceed with an EXS. In such cases, the EA will, of course, include the preliminary information that is needed. If you have not prepared an EA, you should put together a brief information packet consisting of a description of the proposal, an iMtial list of impacts and alternatives, maps, drawings, and any other material or refer- ences that can help the interested public to understand what is being pro- posed. The proposed work plan of the EXS is not usually sufficient for this purpose. Such documents rarely contain a description of the goals of the proposal to enable readers to develop alternatives. At this stage, the purpose of the information is to enable participants to make an intelligent contribution to scoping the EXS. Because they will be helping to plan what will be examined during the environmental review, they need to know where you are now in that planning process. Include in the packet a brief explanation of what scoping is, and what pro- cedure will be used, to give potential participants a context for their involvement. Be sure to point out that you want comments from participants ------- on very specific matters. Also reiterate that no decision has yet been made on the contents of the EIS, much less on the proposal itself. Thus, explain that you do not yet have a preferred alternative, but that you may identify the preferred alternative in the draft EIS. (See Section 1502.14(e)). This should reduce the tendency of participants to perceive the proposal as already a definite plan. Encourage them to focus on recom- mendations for improvements to the various alternatives. Some of the complaints alleging that scoping can be a waste of time stem from the fact that the participants may not know what the proposal is until they arrive at a meeting. Even the most intelligent among us can rarely make useful, substantive comments on the spur of the moment. Don't expect helpful suggestions to result if participants are put in such a position. 3. Design the scoping process for each project. There is no established or required procedure for scoping. The process can be carried out by meetings, telephone conversations, written Garments, or a combination of all three. It is important to tailor the type, the timing and the location of public and agency ccranents to the proposal at hand. For example, a proposal to adopt a land management plan for a National Forest in a sparsely populated region may not lend itself to calling a single meeting in a central location. While people living in the area and elsewhere may be interested, any meeting place will be inconvenient for most of the potential participants. One solution is to distribute the information packet, solicit written comienLa, list a telephone number with the name of the scoping coordinator, and invite comnents to be phoned in. Otherwise, small meetings in several locations may be necessary when face-to-face communication is important. In another case, a site-specific construction project may be proposed. This would be a better candidate for a central scoping meeting. But you must first find out if anyone would be interested in attending such a meeting. If you simply assume that a meeting is necessary, you may hire a hall and a stenographer, assemble your staff for a meeting, and find that nobody shows up. There are many proposals that just do not generate suffi- cient public interest to cause people to attend another public meeting. So a wise early step is to contact known local citizens groups and civic leaders. In addition, you may suggest in your initial scoping notice and information packet that all those who desire a meeting should gal] to request one. That way you will only hear from those who are seriously interested in attending. The question of where to hold a meeting is a difficult one in many cases. Except for site specific construction projects, it may be unclear where the interested parties can be found. For example, an EIS on a major energy development program may involve policy issues and alternatives to the pro- gram that are of interest to public groups all over the nation, and to agencies headquartered in Washington, D.C., while the physical impacts might be expected to be felt most strongly in a particular region of the country. In such a case, if personal contact is desired, several meetings ------- would be necessary, especially in the affected region and in Washington, to enable all interests to be heard. As a general guide, unless a proposal has no site specific impacts, scoping meetings should not be confined to Washington. Agencies should try to elicit the views of people who are closer to the affected regions. The key is to be flexible. It nay not be possible to plan the whole scop- ing process at the outset, unless you know who all the potential players are. You can start with written ccnnents, move on to an informal meeting, and hold further meetings if desired. There are several reasons to bold a scoping meeting. First, some of the best effects of scoping stem from the fact that all parties have the oppor- tunity to meet one another and to listen to the concerns of the others. There is no satisfactory substitute for personal contact to achieve this result. If there is any possibility that resolution of underlying con- flicts over a proposal may be achieved, this is always enhanced by the development of personal and working relationships among the parties. Second, even in a conflict situation people usually respond positively when they are treated as partners in the project review process. If they feel confident that their views were actually heard and taken seriously, they will be more likely to be satisfied that the decisionnaking process was fair even if they disagree with the outcome. It is much easier to show people that you are listening to them if you hold a face-to-face meeting where they can see you writing down their points, than if their only con- tact is through written If you suspect that a particular proposal could benefit from a meeting with the affected public at any tine during its review, the best tine to have the meeting is during this early scoping stage. The fact that you are willing to discuss openly a proposal before you have cconitted substantial resources to it will often enhance the chances for reaching an accord. If you decide that a public meeting is appropriate, you still must decide what type of meeting/ or how many meetings, to hold. We will discuss meet- ings in detail below in •Conducting a Public Meeting.* But as part of designing the scoping process, you must decide between a single meeting and multiple ones for different interest groups, and whether to hold a separate meeting for government agency participants. The single large public meeting brings together all the interested parties, which has both advantages and disadvantages. If the meeting is efficiently run, you can cover a lot of interests and issues in a short time. And a single meeting does reduce agency travel time and expense. In some raises it may be an advantage to have all interest groups hear each others' con- cerns, possibly promoting compromise. It is definitely important to have the staffs of the cooperating'agencies, as well as the lead agency, hear the public views of what the significant issues are; and it will be diffi- cult and expensive for the cooperating agencies to attend several meetings. But if there are opposing groups of citizens who feel strongly on both sides of an issue, the setting of the large meeting may needlessly create tension and an emotional confrontation between the groups. Moreover, seme ------- people may feel intimidated in such a setting, and won't express themselves at all. The principal drawback of the large meeting, however, is that it is gener- ally unwieldy. TO keep order, discussion is limited, dialogue is diffi- cult, and often all participants are frustrated, agency and public alike. Large meetings can serve to identify the interest groups for future discus- sion, but often little else is accomplished. Large meetings often become "events" where grandstanding substitutes for substantive comments. Many agencies resort to a formal hearing-type format to maintain control, and this can cause resentments among participants who come to die meeting expecting a responsive discussion. fox these reasons, we recommend that meetings be kept anall and informal, and that you hold several, if necessary, to accomodate the different inter- est groups. The other solution is to break a large gathering into snail discussion groups, which is discussed below. Using either method increases the likelihood that participants will level with you and coimunicate their underlying concerns rather than make an emotional statement just for effect. Moreover, in our experience, a separate meeting for cooperating agencies is quite productive. Working relationships can be forged for the effective participation of all involved in the preparation of the EIS. work assign- ments are made by the lead agency, a schedule may be set for production of parts of the draft EIS, and information gaps can be identified early. But a productive meeting such as this is not possible at the very beginning of the process. It can only result from the same sort of planning and prepa- ration that goes into the public meetings. We discuss below the special problems of cooperating agencies, and their information needs for effective participation in scoping. 4. Issuing the public notice. The preliminary look at the proposal, in which you develop the information packet discussed above, will enable you to tell what kind of public notice will be most appropriate and effective. ion 1501.7 of the NEPA regulations requires that a notice of intent to prepare an CIS must be pibli^*^ in the Federal Register prior to initia- ting scoping.* This means that one of the appropriate means of giving Several agencies have found it useful to conduct scoping for environ- mental assessments. EAs are prepared where answering the question of whether an CIS is necessary requires identification of significant environmental issues; and consideration of alternatives in an EA can often be useful even where an CIS is not necessary. In both situations scoping can be valuable. Thus the Council has stated that scoping nay be used in connection with preparation of an EA, that is, before pub- lishing any notice of intent to prepare an EIS. As in normal scoping, appropriate public notice is required, as well as adequate information on the proposal to make scoping worthwhile. But scoping at this early stage cannot substitute for the normal scoping process unless the ear- lier public notice stated clearly that this would be the case, and the notice of intent expressly provides that written comments suggesting impacts and alternatives for study will still be considered. ------- 1502.10 Recommended Format Agencies shall use a format for environmental impact statements which will encour- age good analysis and clear presentation of the alternatives including the proposed action. The following standard format for environmental impact statements should be followed unless the agency determines that there is a compelling reason to do otherwise: (a) Cover sheet. (b) Summary. (c) Table of contents. (d) Purpose of and need for action. (e) Alternatives including proposed action (sections 102(2)(C)(iii) and 102(2)(E) of the Act). (f) Affected environment. (g) Environmental consequences (especially sections 102(2)(C)(i), (ii), (iv), and (v) of the Act). (h) List of preparers. (i) List of Agencies, Organizations, and persons to whom copies of the statement are sent. (j) Index. (k) Appendices (if any). If a different format is used, it shall include paragraphs (a), (b), (c), (h), (i), and (j), of this section and shall include the substance of paragraphs (d), (e), (f), (g), and (k) of this section, as further described in 1502.11 through 1502.18, in any appropriate format. Source: 40 CFR Ch. V (7-1-91 Edition), page 665. ------- public notice of the upcoming scoping process could be the sane Federal Register notice. And because the notice of intent oust be published anyway, the scoping notice would be essentially free. But use of the Federal Register is not an absolute requirement, and other means of public notice often are more effective, including local newspapers, radio and TV, posting notices in public places, etc. (See Section 1306.6 of the regulations.) vtiat is important is that the notice actually reach the affected public. If the proposal is an important new national policy in which national environ- mental groups can be expected to be interested, these groups can be con* »-agty3 by fora letter with ease. (See the Conservation Directory for a list of national groups.**). Similarly, for proposals that may have major implications for the business coanunity, trade associations can be helpful means of alerting affected groups. The Federal Register notice can be relied upon to notify others that you did not know about. But the Federal Register is of little use for reaching individuals or local groups inter- ested in a site specific proposal. Therefore notices in local papers, let- ters to local government officials and personal contact with a few known interested individuals would be more appropriate. Land owners abutting any proposed project site should be notified, individually. that issuing press releases to newspapers, and radio and TV sta- tions is not enough, because they may not be used by the media unless the proposal is considered "newsworthy.* If the proposal is controversial, you can try alerting reporters or editors to an upcoming scoping meeting for coverage in special weekend sections used by many papers. But placing a notice in the legal notices section of the paper is the only guarantee that it will be published. 5. Conducting a public, meeting. In our study of agency practice in conducting scoping, the most interesting information on what works and doesn't work involves the conduct of meet- ings. Innovative techniques have been developed, and experience shows that these can be successful. One of the most important factors turns out bo be the training'and experi- ence of the moderator. The O.S. Office of Personnel Management and others give training courses on how to run a meeting effectively. Specific tech- niques are taught to keep the meeting on course and to deal with confron- tations. These techniques are sometimes called "meeting facilitation skills." When holding a meeting, the principle thing to remember about scoping is that it is a process to initiate preparation of an EIS. It is not con- cerned with the ultimata decision on the proposal. A fruitful scoping pro- cess leads to an adequate environmental analysis, including all reasonable ** The Conservation Directory is a publication of the National Wildlife Federation, 1421 16th St., N.W., Washington, D.C. 20036, S4.CO. ------- alternatives and mitigation measures. This limited goal is in the interest of all the participants, and thus offers the possibility of agreement by the parties on this much at least. To run a successful meeting you must keep the focus on this positive purpose. At the point of scoping therefore, in one sense all the parties involved have a cannon goal, which is a thorough environmental review. If you emphasize this in the meeting you can stop any grandstanding speeches with- out a heavy hand, by simply asking the speaker if he or she has any con- crete suggestions for the group on issues to be covered in the EI3. By frequently drawing the meeting back to this central purpose of scoping, the opponents of a proposal will see that you have not already made a decision, and they will be forced to deal with the real issues. In addition, when people see that you are genuinely seeking their opinion, some win volun- teer useful information about a particular subject or site that they may know better than anyone on your staff. As we stated above, we found that informal meetings in snail groups are the most satisfactory for eliciting useful issues and information. Small groups can be formed in two ways: you can invite different interest groups to different meetings, or you can break a large number into snail groups for discussion. One successful model is used by the Army Corps of Engineers, among others. In cases where a public meeting is desired, it is publicized and scheduled for a location that will be convenient for as many potential participants as possible. The information packet is made available in several ways, by sending it to those known to be interested, giving a telephone nunber in the public notices for use in requesting one, and providing more at the door of the meeting place as well. As participants enter the door,.each is given a nuaber. Participants are asked to register their name, address and/or telephone number for use in future contact during scoping and the rest of the NEPA process. The first part of the meeting is devoted to a discussion of the proposal in general, covering its purpose, proposed location, design, and any other aspects that can be presented in a lecture format. A question and answer period concerning this information is often held at this time. Then if there are more than 15 or 20 attendees at the meeting, the next step is to break it into small groups for more intensive discussion. At this point, the numbers held by the participants are used to assign them to snail groups by sequence, random drawing, or any other method. Each group should be no larger than 12, and 8-10 is better. The groups are informed that their task is to prepare a list of significant environmental issues and reasonable alternatives for analysis in the EZS. These lists will be pre- sented to the main group and combined into a master list, after the discus- sion groups are finished. The rules for how priorities are to be assigned to the issues identified by each group should be made clear before the large group breaks up. Sam* agencies ask each group member to vote for the 5 or 10 most important issues. After tallying the votes of individual members, each group would only report out those issues that received a certain number of votes. In this way only those items of most concern to the members would even make the list compiled by each group. Some agencies go further, and only let ------- 10 each group report out the top few issues identified. But you must be careful not to ignore issues that may be considered a medium priority by many people. They may still be important, even if not in the top rank. Thus instead of simply voting, the members of the groups should rank the listed issues in order of perceived importance. Points may be assigned to each item on the basis of the rankings by each member, so that the group can compile a list of its issues in priority order. Each group should then be asked to assign cut-off numbers to separate high, medium and low prior- ity items. Each group should then report out to the main meeting all of its issues, but with priorities clearly assigned. Cne member of the lead agency or cooperating agency staff should join each group to answer questions and to listen to the participants' expressions of concern. It has been the experience of many of those who have tried this method that it is better not to have the agency person lead the group dis- cussions. There does need to be a leader, who should be chosen by the group members. In this uay, the agency staff member will not be perceived as forcing his opinions on the others. If the agency has a sufficient staff of formally trained "meeting facilita- tors," they may be able to achieve the same result even where agency staff people lead the discussion groups. But absent such training, the staff should not lead the discussion groups. A good technique is to have the agency person serve as the recording secretary for the group, writing down each impact and alternative that is suggested for study by the partici- pants. This enhances the neutral status of the agency representative, and ensures that he is perceived as listening and reacting to the views of the group, frequently, the recording of issues is done with a large pad mounted on the wall like a blackboard, which has been well received by agency and public alike, because all can see that the views expressed actu- ally have been heard and understood. When the issues are listed, each must be clarified or combined with others to eliminate duplication or fuzzy concepts. The agency staff person can actually lead in this effort because of his need to reflect on paper exactly what the issues are. After the group has listed all the environ- mental impacts and alternatives and any other issues that the members wish to have considered, they are asked to discuss the relative merits and importance of each listed item. The group should be reminded that one of its tasks is to eliminate insignificant issues. Following this, the mem- bers assign priorities or vote using one of the methods described above. The discussion groups are then to return to the large meeting to report on the results of their ranking. At this point further discussion may be useful to seek a concensus on which issues are really insignificant. But the moderator must not appear to be ruthlessly eliminating issues that the participants ranked of high or medium importance. The best that can usually be achieved is to "deemphasize" some of them, by placing them in the low priority category. 6. What to do with the comments. After you have comments from the cooperating agencies and the interested public, you must evaluate them and make judgments about which issues are in ------- 11 fact significant and which ones ace not. The decision of what the EIS should contain is ultimately made by the lead agency. But you will now know what the interested participants consider to be the principal areas for study and analysis. You should be guided by these concerns, or be prepared to briefly explain why you do not agree. Every issue that is raised as a priority matter during scoping should be addressed in some man- ner in the EIS, either by in-depth analysis, or at least a short explana- tion showing that the issue was examined, but not considered significant for one or more reasons. agencies have complained that the time savings claimed for scoping have not been realized because after public groups raise numerous minor matters, they cannot focus the EIS on the significant issues. It is true that it is always easier to add issues than it is to subtract them during scoping. And you should realize that trying to eliminate a particular environmental Impact or alternative frcm study may arouse the suspicions of some people. Cooperating agencies may be even more reluctant to eliminate issues in their areas of special expertise than the public participants. But the way to approach it is to seek concensus on which issues are less important. These issues may then be deemphasized in the EIS by a brief discussion of why they were not examined in depth. If no concensus can be reached, it is still your responsibility to select the significant issues. The lead agency cannot abdicate its role and sim- ply defer to the public. Thus a group of participants at a scoping meeting should not be able to "vote* an insignificant matter into a big issue. If a certain issue is raised and in your professional judgment you believe it is not significant, explain clearly and briefly in 'the EIS why it is not significant. There is no need to devote time and pages to it in the EIS if you can show that it is not relevant or important to the proposed action. But you should address in some manner all matters that were raised in the scoping process, either by an extended analysis or a brief explanation showing that you acknowledge the concern. Several agencies have made a practice of sending out a post-scoping docu- ment to make public the decisions that have been made on what issues to cover in the EIS. This is not a requirement, but in certain controversial cases it can be worthwhile*. Especially when scoping has been conducted by written comments, and there has been no face-to-face contact, a post- scoping document is the only assurance to the participants that they were heard and understood until the draft EIS comes out. Agencies have acknow- ledged to us that "letters instead of meetings seem to get disregarded eas- ier." Thus a reasonable quid pro quo for relying on comment letters would be to send out a post-scoping document as feedback to the carmen tors. The post-scoping document may be as brief as a list of impacts and alterna- tives selected for analysis; it may consist of the "scope of work" produced by the lead and cooperating agencies for their own EIS work or for the con- tractor; or it may be a special document that describes all the issues and explains why they were selected. ------- 12 7. Allocating work assignments and setting schedules. Following the public participation in whatever fora, and the selection of issues to be covered, the lead agency oust allocate the EIS preparation work among the available resources. If there are no cooperating agencies, the lead agency allocates work among its own personnel or contractors. If there are cooperating agencies involved, they may be assigned specific research or writing tasks. The NEPA regulations require that they normally devote their own resources to the issues in which they have special exper- tise or jurisdiction by law. (Sections 1501.6(b) (3), (5), and 1501.7(a)(4)). In all cases, the lead agency should set a schedule for completion of the work, designate a project manager and assign the reviewers, and must set a tine limit for the entire NEPA analysis if requested to do so by an appli- cant. (Section 1501.3). 8. A few ideas to try. a. Itoute design workshop As part of a scoping process, a successful innovation by one agency involved route selection for a railroad. The agency invited representa- tives of the interested groups (identified at a previous public meeting) to try their hand at designing alternative routes for a proposed rail segment. Agency staff explained design constraints and evaluation criteria such as the desire to minimize damage to prime agricultural land and valuable wild- life habitat. The participants were divided into snail groups for a -few hours of intensive work. After learning of the real constraints on alter- native routes, the participants had a better understanding' of the agency's and applicant's viewpoints. Two of the participants actually supported alternative routes that affected their own land because the overall impacts of these routes appeared less adverse. The participants were asked to rank the five alternatives they had devised and the top two were included in the EIS. But the agency did not permit the groups to apply the same evaluation criteria to the routes proposed by the applicant or* the agency. Thus public confidence in the process was not as high as it could have been, and probably was reduced when the applicant's proposal was ultimately selected. The Council recommends that when a hands-on design workshop is used, the assignment of the group be expanded to include evaluation of the reason- ableness of all the suggested alternatives. b. Botline Several agencies have successfully used a special telephone number, tially a hotline, to take public comments before, after, or instead of a public meeting. It helps to designate a named staff member to receive these calls so that seme continuity and personal relationships can be developed. ------- 13 c. Videotape of sites A videotape of proposed sites is an excellent tool for explaining site dif- ferences and limitations during the lecture-format part of a scoping meeting. d. Videotape meetings One agency has videotaped whole scoping meetings. Staff found that the participants took their roles more seriously and the taping appeared not to precipitate grandstanding tactics. e. Review ccnmittee Success has been reported from one agency which sets up review committees, representing all interested groups, to oversee the scoping process. The committees help to design the scoping process. In cooperation with the lead agency, the committee reviews the materials generated by the scoping meeting. Again, however, the final decision on EIS content is the respon- sibility of the lead agency. f. Consultant as meeting moderator In some hotly contested cases, several agencies have used the EIS consul- tant to actually run the scoping meeting. This is permitted under the NEPA regulations and can be useful to de-fuse a tense atmosphere if the consul- tant is perceived as a neutral third party. But the responsible agency officials must attend the meetings. There is no substitute for developing a relationship between the agency officials and the affected parties. Moreover, if the responsible officials are not prominently present, the public may interpret that to mean that the consultant is actually making the decisions about the EIS, and not the lead agency. g. Money saving tips that money can be saved by using conference calls instead of meet- ings, tape-recording the meetings instead of hiring a stenographer, and finding out whether people wont a meeting before announcing it. C. Pitfalls. Vfe list here some of the problems that have been experienced in certain scoping cases, in order to enable others to avoid the same difficulties. 1. Closed meetings. In response to informal advice from CEQ that holding separate meetings for agencies and the public would be permitted under the regulations and could be more productive, one agency scheduled a scoping meeting for the coopera- ting agencies some weeks in advance of the public meeting. Apparently, the lead agency felt that the views of the cooperating agencies would be more candidly expressed if the meeting were closed. In any event, several mem- bers of the public learned of the meeting and asked to be present. The lead agency acquiesced only after newspaper reporters were able to make a ------- 14 story out of the closed session. At the meeting, the members of the public were informed that they would not be allowed to speak, nor to record the proceedings. The ill feeling aroused by this chain of events may not be repaired for a long tine. Instead, we would suggest the following possibilities: a. Although separate meetings for agencies and public groups may be more efficient, there is no magic to then. By all means, if someone insists on attending the agency meeting, let him. There is nothing as secret going on there as he may think there is if you refuse him admittance. Better yet, have your meeting of cooperating agencies after the public meeting. That may be the most logical time anyway, since only then can the scope of the SIS be decided upon and assignments made among the agencies. If it is well done, the public meeting will satisfy most people and show them that you are listening to them. b. Always permit recording. In fact, you should suggest it for public meetings. All parties will feel better if there is a record of the proceeding. There is no need for a stenographer, and tape is inexpensive. It may even be better then a typed transcript, because staff and decision- makers who did not attend the meeting can listen to the exchange and may learn a lot about public perceptions of the proposal. c. When people are admitted to a meeting, it makes no sense to refuse their requests to speak. However, you can legitimately limit their state- ments to the subject at hand—scoping. You do not have to permit some participants to waste the others' time if they refuse to focus on the impacts and alternatives for inclusion in the EZS. Having a tape of'the proceedings could be useful after the meeting if there is some Question that speakers were improperly silenced. But it takes an experienced moder- ator to handle a situation like this. d. The scoping stage is the tine for building confidence and trust on all sides of a proposal, because this is the only tine when there is a cannon enterprise. The attitudes formed at this stage can carry through the project review process. Certainly it is difficult for things to get better. So foster the good will as long as you can by listening to what is being said during scoping. It is possible that out of that dialogue may appear recommendations for changes and mitigation measures that can turn a controversial fight into an acceptable proposal. 2. Contacting interested groups. Some problems have arisen in scoping where agencies failed to contact all the affected parties, such as industries or state and local governments. In one case, a panel was assembled to represent various interests in scoping an EIS on a wildlife-related program. The agency had an excellent format for the meeting, but the panel did not represent industries that would be affected by the program or interested state and local governments. As a result, the EIS may fail to reflect the issues of concern to these parties. Another agency reported to us that it failed to contact parties directly ise staff feared that if they missed someone they would be accused of ------- 15 favoritism. Thus they relied on the i ggnanra of press releases which were not effective. Many people who did not learn about the meetings in time sought additional meeting opportunities, which cost extra money and delayed the process. In our experience, the attempt to reach people is worth the effort. Even if you miss someone, it will be clear that you tried. You can enlist a few representatives of an interest group to help you identify and contact others. Trade associations, chambers of ccnmerce, local civic groups/ and local and national conservation groups can spread the wo*"* to meubers. 3. Tiering. Many people are not familiar with the way environmental impact statements can be "tiered* under the NEPA regulations, so that issues are examined in detail at the stage that decisions on them are being made. See Section 1508.28 of the regulations. For example, if a proposed program is under review, it is possible that site specific actions are not yet proposed. In such a case, these actions are not addressed in the EIS on the program, but are reserved for a later tier of analysis. If tiering is being used, this concept must be made clear at the outset of any scoping meeting, so that participants do not concentrate on issues that are not going to be addres- sed at this tine. If you can specify when these other issues win be addressed it will be easier to convince people to focus on the matters at hand. 4. Scoping for unusual programs. One interesting scoping case involved proposed changes in the Endangered Species Program. Anong the impacts to be examined were the effects of this conservation program on user activities such as mining, hunting, and timber harvest, instead of the other way around. Because of this reverse twist in the impacts to be analyzed, some participants had difficulty focusing on useful issues. Apparently, if the subject of the EIS is unusual, it will be even harder than normal for scoping participants to grasp what is rted of them. In the case of the Endangered Species Program EIS, the agency planned an intensive 3 day scoping session, successfully involved the participants, and reached accord on several issues that would be important for the future implementation of the program. But the participants were unable to focus on impacts and program alternatives for the EIS. We suggest that if the intensive session had been broken up into 2 or 3 meetings separated by days or weeks, the participants might have been able to get used to the new way of thinking required, and thereby to participate more productively. Pro- grammatic proposals are often harder to deal with in a scoping context than site specific projects. Thus extra care should be taken in explaining the goals of the proposal and in making the information available well in advance of any meetings. D. Lead' and Cooperating Agencies. Some problems with scoping revolve around the relationship between lead and cooperating agencies. Some agencies are still uncomfortable with these ------- 16 roles. The NEPA regulations, and the 40 Questions and Answers about the NEPA Regulations, 46 Fed. Beg. 18026, ( March 23, 1981) describe in detail the way agencies are now asked to cooperate on environmental analyses. (See Questions 9, 14, and 30.) We will focus here on the early phase of that cooperation. It is important Cor the lead agency to be as specific as passible with the cooperating agencies. Tell than what you want them to contribute during scoping; environmental impacts and alternatives. Seme agencies still do not understand the purpose of scoping. Be sure to contact and involve representatives of the cooperating agencies who are responsible for NEPA-related functions. The lead agency will need to contact staff of the cooperating agencies who can both help to identify issues and alternatives and commit resources to a study, agree to a sched- ule for EZS preparation, or approve a list of issues as sufficient. In sane agencies that will be at the district or state office level (e.g., Corps of Engineers, Bureau of Land Management, and Soil Conservation Serv- ice) for all but exceptional cases. In other agencies you must go to regional offices for scoping cements and commitments (e.g., EPA, Fish and Wildlife Service, Hater and Power Resources Service). In still others, the field offices do not have NEPA responsibilities or expertise and you will deal directly with headquarters (e.g., Federal Energy Regulatory Gonmis- sion. Interstate Commerce Commission). In all cases you are looking for the office that can give you the answers you need. So keep trying until you find the organizational level of the cooperating agency that can give you useful information and that has the authority to make coamitincnts. As stated in 40 Questions and Answers about the NEPA Regulations, the lead agency has the ultimate responsibility for the content of the £15, but if it leaves out a significant issue or ignores the advice and expertise of the cooperating agency, the EZS nay be found later to be inadequate. (46 Fed. Reg. 18030, Question Lib.) At the sane time, the cooperating agency will be concerned that the EIS contain material sufficient bo satisfy its decisionnaking needs. Thus, both agencies have a stake in producing a doc- ument of good quality. The cooperating agencies should be encouraged not only to participate in scoping but also to review the decisions made by the lead agency about what to include in the EIS. Lead agencies should allow any information needed by a cooperating agency to be included, and any issues of concern to the cooperating agency should be covered, but it usually will have to be at the expense of the cooperating agency. Cooperating agencies have at least as great a need as the general public for advance information on a proposal before any scoping takes place. Agencies have reported to us that information from the lead agency is often too sketchy or cones too late for informed participation. Lead agencies must clearly explain to all cooperating agencies what the proposed action is conceived to be at this time, and what present alternatives and issues the lead agency sees, before expecting other agencies to devote time and money to a scoping session. Informal contacts among the agencies before scoping gets underway are valuable to establish what the cooperating agencies will need for productive scoping to take place. ------- 17 Some agencies will be called upon to be cooperators more frequently than others, and they may lack the resources to respond to the numerous requests. The NEPA regulations permit agencies without jurisdiction by law (i.e., no approval authority over the proposal) to decline the cooperating agency role. (Section 1501.6(c)). But agencies that do have jurisdiction by lav cannot opt out entirely and may have to reduce their cooperating effort devoted to each EXS. (See Section 1501.S(c) and 40 Questions and Answers about the NEPA Regulations, 46 Fed. Reg. 18030, Question 14a.) Thus, cooperators would be greatly aided by a priority list fron the lead agency showing which proposals most need their help. It"'** will lead to a more efficient allocation of resources. Some cooperating agencies are still holding back at the scoping stage in order to retain a critical position for later in the process. They either avoid the scoping sessions or fail bo contribute, and then raise objections in ccranents on the draft EXS. We cannot emphasize enough that the whole point of scoping is to avoid this situation. As we stated in 40 Questions and.Answers about the NEPA Regulations, "if the new alternative (or other issue] was not raised by the commentor during scoping, but could have been, coanentors may find that they ace unpersuasive in their efforts to have their suggested alternative analyzed in detail by the [lead] agency." (46 Fed. Reg. 18035, Question 29b.) IU. Advice for Public Participants Scoping is a new opportunity for you to enter the earliest phase of the decisionmaking process on proposals that affect you. Through this process you have access to public officials before decisions are made and .the right to explain your objections and concerns. But this opportunity carries with it a new responsibility. No longer may individuals hang back until the process is almost complete and then spring forth with a significant issue or alternative that might have been raised earlier. You are now part of the review process, and your role is to inform the responsible agencies of the potential impacts that should be studied, the problems a proposal may cause that you foresee, and the alternatives and mitigating measures that offer promise. As noted above, and in 40 Questions and Answers, no longer will a comment raised for the first time after the draft SIS is finished be accorded the sane serious consideration it would otherwise have merited if the issue had been raised during scoping. Thus you have a responsibility to come forward early with known issues. In return, you get the chance to meet the responsible officials and to make the case for your alternative before they are committed to a course of action. To a surprising degree this avenue has been found to yield satis- factory results. There's no guarantee, of course, but when the alternative you suggest is really better, it is often hard for a decisionmaker to resist. There are several problems that commonly arise that public participants should be aware of: ------- 18 A. Public input is often only negative The optimal timing of scoping within the NEPA process is difficult to judge. Cn the one hand, as explained above (Section II.B.l.), if it is attempted too early, the agency cannot explain what it has in mind and informed participation will be impossible. On the other, if it is delayed, the public may find that significant decisions are already made, and their connents may be discounted or will be too late to change the project. Sane agencies have found themselves in a tactical cross-fire when public criti- cism arises before they can even define their proposal sufficiently to see whether they have a worthwhile plan. Understandably, they would be reluc- tant after such an experience to invite public criticism early in the plan- ning process through open scoping. But it is in your interest to encourage agencies to come out with proposals in the early stage because that enhan- ces the possibility of your Garments being used. Thus public participants in scoping should reduce the emotion level wherever possible and use the opportunity to make thoughtful, rational presentations on impacts and alternatives. Polarizing over issues too early hurts all parties. If agencies get positive and useful public responses from the scoping process, they will more frequently come forward with proposals early enough so that they can be materially improved by your suggestions. B. Issues are too broad The issues that participants tend to identify during scoping are much too broad to be useful for analytical purposes. For example, "cultural impacts" — what does this mean? What precisely are the impacts that.. should be examined? When the EZS preparers encounter a Garment as vague as this they will have to make their own judgment about what you meant, and you may find that your issues are not covered. Thus, you should refine the broad general topics, and specify which issues need evaluation and analysis. C. Impacts are not identified Similarly, people (including agency staff) frequently identify "causes" as issues but fail to identify the principal "effects" that the EIS should evaluate in depth. For example, oil and gas development is a cause of many impacts. Simply listing this generic category is of little help. You must go beyond the obvious causes to the specific effects that are of concern. If you want scoping to be seen as more than just another public meeting, you will need to put in extra work. IV. Brief Points For Applicants. Scoping can be an invaluable part of your early project planning. Your main interest is in getting a proposal through the review process. This interest is best advanced by finding out early where the problems with the proposal are, who the affected parties are, and where accomodations can be made. Scoping is an ideal meeting place for all the interest groups if you have not already contacted then. In several cases, we found that the com- promises made at this stage allowed a project to move efficiently through the permitting process virtually unopposed. ------- 19 The NEPA regulations place an affirmative obligation on agencies to "pro- vide for «•»«?•« where actions are planned by private applicants" so that designated staff are available to consult with the applicants, to advise applicants of information that will be required during review, and to insure that the NEPA process ccnnences at the earliest possible tine. (Section 1501.2(d)). Ibis section of the regulations is intended to ensure that environmental factors are considered at an early stage in the appli- cant's planning process. (See 40 Questions and Answers about the NEPA Regulations, 46 Fed. Reg. 18028, Questions 8 and 9.) Applicants should take advantage of this requirement in the regulations by approaching the agencies early to consult on alternatives, mitigation requirements, and the agency's information needs. This early contact with the agency can facilitate a prompt initiation of the scoping process in cases viiere an EIS will be prepared. You will need to furnish sufficient information about your proposal to enable the lead agency to formulate a coherent presentation for cooperating agencies and the public. But den't wait until your choices are all made and the alternatives have been eliminated. (Section 1506.1). During scoping, be sure to attend any of the public meetings unless the agency is dividing groups by interest affiliation. You will be able to answer any questions about the proposal, and even more important, you will be able to hear the objections raised, and find out what the real concerns of the public are. This is, of course, vital information for future nego- tiations with the affected parties. .S. GOVERNMENT PRINTING OFFICE: 1992 - 650-224 ------- |