How to write an effective Comment Updated 6/27/07

 
Here is some very useful information for folks who want to write a comment that will help keep trails open. This may be a lot of work, but isn't keeping your favorite trails open for you, your family & future generations worth it!
 
Thanks to Bruce Whitcher our Director Of Land Use for putting this very useful guide together
 
Writing substantive comments on an NOI
 
A Notice of Intent (NOI) is posted by a public agency when it plans to prepare an EIS. An EIS must be prepared whenever a government agency plans to carry out “ground disturbing activity that significantly affects the human environment”. The NOI usually begins with a “statement of purpose and need” which identifies the goal to be achieved and a “proposed action” which is the means of achieving this goal. Possible alternatives to the “proposed action” are developed during the “scoping” process and are analyzed in the draft EIS.
 
The posting of a NOI opens the “scoping period” during preparation of an EIS. “Scope” is defined as “the range of actions, alternatives, and impacts to be considered in an EIS”. Scoping allows the agency to identify “significant issues” for analysis as well as “non-significant” issues that will be eliminated from further study. (40 CFR 1508)
 
Written comments made in response to an NOI are part of the scoping process and the first opportunity the public has to give formal input to the agency on their plan of action. The agency may or may not respond to scoping comments, but they are obligated to respond to comments on the draft EIS. That comes later in the NEPA process.
 
The agency will usually also gather information during public scoping meetings to help with the development of alternatives, but this is less formal than written commentary. It is difficult to know whether or not the agency has responded to verbal comments.
 
Written comments on the proposed action are most likely to be considered if they meet the conditions stated in the NOI.
 
“Comments must be specific to the proposed action, within the scope of the proposed action, or directly related to the proposed action and accompanied by supporting information for the responsible official to consider.”
 
In the most recent NOI from Sequoia the language has been changed to:
 
“Substantive comments may include things other than thoughts or feelings; they may also be factual, new information, corrections, etc. Comments will be most helpful if they are within the scope of the proposed action, specific to the proposed action, have a direct relationship to the proposed action, and include supporting reasons for the responsible official to consider".
 
1. “Comments must be specific to the proposed action” - The comments must be specific. Broad, general statements are not likely to be considered. Statements based on opinion or conjecture are usually not accepted.
 
2. “Comments must be within the scope of the proposed action” This means that comments must fall within “ the range of actions, alternatives, and impacts”. Further defined, actions may be “connected, cumulative, or similar”, alternatives are “reasonable courses of action or no action”, and impacts are “direct, indirect, or cumulative”. (40 CFR 1508) Comments must therefore address issues or concerns regarding each of the proposed action statements in terms that meet these definitions.
 
3. “Comments must have a direct relationship to the proposed action” - Comments must be pertinent and related to a cause or effect of the proposed action, as it is described in the NOI.
 
4. “Comments include supporting information” - Comments must have a factual basis and should reference Forest Service documents such as Forest plans, the Forest Service Handbook or Manual, governmental documents such as NEPA regulations, or scientific studies.
 
The agency may or may not respond to written comments furnished during the 30 day period with remarks as to whether or not they have identified a significant issue and are within the scope of the proposed action. They may also indicate that they will consider the information at a different time during the NEPA process.
 
Comments must raise a point of “disagreement, debate, or dispute with the proposed action”. Although one can disagree with or dispute the findings of a Forest Service specialist, one must be aware that the agency is very reluctant to disregard the findings of its own staff and such claims must be substantiated by scientific studies or other documentation of the disputed finding.
 
It must be possible to resolve “significant issues” through “alternatives or mitigation.” It is not enough to simply raise an issue, there must also be a solution to the problem or a better way to accomplish the action. This is one of the purposes of the NEPA process. But be aware that alternatives and mitigation are developed as part of the DEIS.
 
Let’s look at some examples of how the Forest Service has responded in the past.
 
 
Significant Issues:
 
1. access to dispersed camping sites, if addressed in specific terms ( area, location)
 
2. issues or concerns regarding specific routes – “attributes or issues” - see TE forms
 
3. seasonal closure
 
4. statements in agency documents that are “a matter of opinion, conjectural in nature, or not supported by scientific evidence”
 
5. corrections
 
6. new information
 
 
Non-significant issues
 
1. ADA access – not an issue under FS regulations
 
2. monitoring and law enforcement – part of implementation, not an alternative
 
3. results of previous decisions – do not have to be revisited
 
4. previous decisions superceded by a later decision
 
5. volunteer activities – part of implementation
 
6. new trail construction, reconstruction, or decommissioning- outside scope
 
7. environmental, social, and economic effects - addressed in the DEIS, outside scope
 
8. need to address increasing demand - outside scope, see 7.
 
9. impact of trail closures on users – social consideration see 7.
 
10. mitigation – part of the EIS, not included in the proposed action (40 CFR 1508)
 
As we can see, “significant issues” used to determine scope are very narrowly defined. The NEPA process must start with a limited number of issues or it would not be possible to complete an EIS
 
Examples: Most of these examples are responses by the Forest Service to comments made at a scoping meeting.
 
Exercise: Read these over and try writing your own comments, then ask yourself, “how would my comments be viewed by agency staff?” This should greatly improve your ability to write substantive comments!
 
Example: “We need more trails because trends show increased demand for OHV recreation.”
 
Response: Not an Issue
 
1. General statement
 
2. Not within the scope of the proposed action
 
Comment: Federal law, regulations, and Forest Service direction do not require that the allocation of land available for specific recreation uses be based on recreational needs, nor that there be balance in the sense of equal distribution of land or opportunities for different recreation uses (Forest Service Chief's Appeal Decision of the Eldorado National Forest 1989 Land and Resource Management Plan, Nov. 7, 1995). Instead, the Multiple-Use Sustained-Yield Act (MUSYA) of 1960 requires the management of renewable surface resources "so that they are utilized in the combination that will best meet the needs of the American people" (16 U.S.C.531). In the context of national forest management, the courts have uniformly held that the Forest Service "has wide discretion to weigh and decide the proper uses within any area" of the national forests (Big Hole Ranchers Ass'n v. United States Forest Service, D. Mont. 1998).
 
Example: “Seasonal closures will restrict activity and lead to overcrowding.”
 
Significant issue – seasonal issues are significant and related to the proposed action
 
This is a general statement – effects of seasonal closures will be considered in the DEIS
 
Not an Issue
 
Example: “If the Forest Service does not designate routes to dispersed camping areas it will lead to creation of new camping areas and dispersed camping areas.”
 
1. Not a point of disagreement, debate or dispute with the Proposed Action.
 
2. General comment, not specific as to route or area
 
3. Not related to the current Proposed Action's effects (statement doesn’t address the actual effects of the proposed action)
 
4. Cannot be resolved through an alternative or mitigation (the comment is too general)
 
However, specific routes to dispersed camping areas ARE a significant issue, so the problem with this statement is lack of specificity, not intent.
 
Non significant issue
 
Example: “The total footprint of the trail system is less than one percent of the land area of the Forest. OHV use should be allowed because it occupies such a small amount of the total available land.”
 
1. Not a point of disagreement, debate, or dispute with the proposed action
 
2. General comment (not specific)
 
3. Not related to the current proposed action’s effects
 
4. The environmental, social, and economic effects will be addressed in the DEIS
 
 
Significant Issue
 
Example: “Trail XX should be included in the system because it allows green sticker vehicles to avoid the level 3 road from point x to point y. Significant issue – travel on level 3 roads is not allowed under FS regulation; ( Trail XX is an alternative to the proposed action. The statement addresses alternatives or mitigation)
 
FS comment – A list of trails with attributes and issues will be compiled for analysis by the ID team.
 
Example: “The area of erosion on trail XX that is listed as a significant impact can be mitigated by construction of water bars. This trail should be included in the system”
 
Rationale 1: not a point of disagreement, debate or dispute with the proposed action
 
Rationale 2: outside scope of proposed action
 
FS Notes: Mitigation options will be addressed in the DEIS. A list of trails with attributes and issues will be compiled for analysis by the ID team.
 
Example: I have found a few "significant issues" on your list that seem to be "conjectural in nature or not supported by scientific evidence." Examples are: (1) designation of 590 miles of maintenance level 1 roads may lead to illegal construction of loops; (2) designation of dead end routes may increase user created routes; and (3) designation of routes that are user created, damage riparian habitat, cause significant damage to…
 
FS Notes: After review of this comment, it does appear that these statements are conjectural in nature. The effects of designating maintenance level 1 roads, dead end routes, and unauthorized routes have yet to be analyzed by the Interdisciplinary Team. In addition, we cannot predict the future success of our outreach, education, and enforcement efforts during implementation. These issues will be removed from the list of significant issues.
 
 
Non-significant issue
 
Example: All existing inventoried routes indicate public need, and they need to be the starting point of route designation evaluation, not system road inventory. You cannot ignore the need of today, let alone the future needs.
 
Rationale 1: Is not a point of disagreement, debate or dispute with the Proposed Action.
 
Rationale 2: General comment received that is not related to the current Proposed Action's effects and cannot be resolved through an alternative or mitigation.
 
FS Notes: Federal law, regulations, and Forest Service direction do not require that the allocation of land available for specific recreation uses be based on recreational needs, nor that there be balance in the sense of equal distribution of land or opportunities for different recreation uses (Forest Service Chief's Appeal Decision of the Eldorado National Forest 1989 Land and Resource Management Plan, Nov. 7, 1995).
 
 
Significant issue
 
Comment: The existing non-system road/trail from Bear River Lake Resort 1/2 mile to the combined use road to the west is not addressed in the proposed action. This is an extremely important access route for all users. Without this route all routes to the south side of the lake do not have access from this popular resort. This needs to be included in the proposal.
 
Rationale 1:
 
Rationale 2:
 
FS Notes: The Bear River Bypass Trail, NST1640-A, has been identified through Ranger District and public input is being considered and evaluated for designation.
 
 
Significant issue
 
Comment: Mud lake road should be a maintenance level 2 road at a minimum to connect State Highway 88 to 09N04. Otherwise, there is no way to drive a 4WD from the end of 09N04 to Hwy 88. Mud Lake road is a public road across private property at Hwy 88. It was originally the emigrant road and has been in existence for approximately 150 years. The road is shown on the August 1877 GLO Survey. Also shows on USGS Quad Sheets. The road existed before the property was deeded from the federal government to private ownership.
 
Rationale 1:
 
Rationale 2:
 
FS Notes: At the present time the segment of trail 17E24 from Highway 88 to 09N04, known as Mud Lake Road, is included in the Eldorado National Forest transportation system as a 4WD trail open to all vehicles. As part of the designation project, recommendations from the Ranger District, the public, and others are being considered in the designation of Mud Lake Road.