Navigating NEPA: DU Law Final Exam Questions – FALL 2021
Exam Page Limits: The overall exam page limit is 10 pages. The initial recommendation is that
responses to questions 1 and 4 should be up to 3 pages each and responses to questions 2 and 3
should be up to 2 pages each. However, it is up to each student to determine the length of each
response, as long as the overall responses do not exceed 10 pages total. Please use 1-inch margins
and 11 point font. This exam is open book.
Please use the current 2020 NEPA regulations that are now in effect; you may also use the 2021
NEPA Proposed Rule that addresses purpose and need and cumulative impacts. For any answer that
requires you to make an assumption, please state the assumption clearly.
Hypothetical #1: Seven Lakes National Recreation Area (Seven Lakes) is working on a houseboat management
plan. The number of houseboats on the main reservoir within Seven Lakes has increased dramatically in recent
years and there have been complaints from canoeists and kayakers who are concerned about pollution and
wakes from motorboats in general. Hikers and birdwatchers have also complained about noise and pollution
from boats on the lake. Seven Lakes’ staff and local environmental groups are concerned that houseboats can
be extremely loud, to the extent that they are affecting wildlife in the area. Houseboats are also known to leak
contaminants into the water, affecting water quality and aquatic organisms. While general information about
impacts of boats on wildlife and water quality exists and those impacts are well-established in the scientific
literature, there are no site-specific studies that indicate how houseboats are affecting resources within Seven
Lakes.
The Superintendent would like to ban houseboats from Seven Lakes completely, based on her familiarity with
the issues and existing literature. However, houseboat users make up the vast majority of visitors to Seven
Lakes, and local communities rely on money spent by houseboat users who rent the boats, fishing supplies,
and food. Furthermore, Congress stated in Seven Lakes’ enabling legislation that houseboats shall be allowed
within Seven Lakes. A grassroots organization, Houseboats United, was recently formed to advocate against
restrictions on houseboat use within Seven Lakes. The organization consists of houseboat owners and users,
and a number of local businesses. Several of the organization’s members have threatened to sue Seven Lakes if
any restrictions on houseboats, no matter how big or small, are implemented.
With a full understanding that there will be vocal opposition, the Superintendent has determined that the
proposed action should be to “eliminate houseboat use on the main reservoir” because she believes it is the
right thing to do. Seven Lakes has conducted preliminary planning and made a determination that it will
complete an EIS for the proposal. The purpose and need are stated as follows:
“Action is needed at this time to address recent increases in houseboats and related activities on
Seven Lake National Recreation Area’s main reservoir. The purpose of taking action is to minimize or
eliminate adverse effects of houseboats and related activities within the main reservoir.”
The alternatives under consideration are:
A. Continue the status quo (no-action alternative)
B. Close the main reservoir to houseboating altogether (proposed action)
C. Require houseboat users to take environmental education classes
D. Prohibit houseboats from specific areas of the main reservoir where impacts to natural resources,
such as shoreline vegetation and wildlife, are more prevalent
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Navigating NEPA: DU Law Final Exam Questions – FALL 2021
E. Restrict the overall number of houseboats permitted on the main reservoir
There is an adjacent state park that would likely see increased houseboat use if houseboat restrictions in Seven
Lakes are adopted, and a National Forest 45 miles away could also see increased use depending on what Seven
Lakes decides to do. Neither of these entities is subject to preservation mandates. Because the Superintendent
does not want to be compared to these two areas, and because she wants to keep politics out of the decisionmaking process to the extent possible, Seven Lakes has decided not to invite either entity to formally
participate in the NEPA process.
•
Question 1 (35%): Seven Lakes would like to publish a Notice of Intent to Prepare an EIS (NOI), and
formally begin the NEPA process. Before doing so, Seven Lakes staff check with you, their agency
counsel, for procedural and substantive advice regarding their path forward. What issues would you
discuss with them, what would you counsel them, and why? If there is additional information you
would like to have before giving them the green light to publish the NOI, please identify that
information and why it is important. At a minimum, you plan to discuss with them NEPA readiness,
scope of the analysis, potential alternatives, and whether there is a need to work with other
agencies.
Hypothetical #2: Just before Seven Lakes was due to publish the NOI for the scenario described in Hypothetical
#1, the Superintendent was reassigned and a new Superintendent was hired. The new Superintendent does
not want to kick off his tenure with a controversial proposal, but recognizes that something needs to be done
to protect Seven Lakes’ resources from the impacts of houseboats and related activities, and to provide
certainty to houseboat users planning to visit Seven Lakes. The park’s senior staff have reminded the
Superintendent that although Seven Lakes’ enabling legislation states that houseboats shall be allowed, it also
mandates preservation and conservation of Seven Lakes’ natural and cultural resources. Taking that into
consideration, the Superintendent directs Seven Lakes staff to come up with a limited number of specific
actions that can be taken to protect resources, rather than develop a full-blown management plan. After a
number of discussions, the staff recommends that Seven Lakes enact a few closures in areas that have the
most impacts to vegetation and wildlife, and that they conduct monitoring to demonstrate their seriousness in
addressing houseboat impacts. The staff recommend using categorical exclusions (CEs) to cover those actions.
Seven Lakes has two CEs that could apply; one for “minor changes to amounts or types of visitor use for
purposes of safety or resource protection” and another for “day-to-day resource management and
protection.” The extraordinary circumstances that Seven Lakes must consider when applying a CE to the
action include whether the action will:
A. have significant impacts on public health or safety;
B. have significant impacts on such natural resources and unique geographic characteristics as historic
or cultural resources; park, recreation, or refuge lands; wilderness areas; wild or scenic rivers; national
natural landmarks; sole or principal drinking water aquifers; prime farmlands; wetlands (EO 11990);
floodplains (EO 11988); national monuments; migratory birds; and other ecologically significant or
critical areas;
C. have highly controversial environmental effects or involve unresolved conflicts concerning
alternative uses of available resources (Sec. 102(2)(E));
D. have highly uncertain and potentially significant environmental effects or involve unique or
unknown environmental risks; or
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Navigating NEPA: DU Law Final Exam Questions – FALL 2021
E. have a disproportionately high and adverse effect on low income or minority populations (EO
12898).
•
Question 2 (15%) : A local environmental organization hears that Seven Lakes is considering this
narrower approach rather than the approach described in Hypothetical #1. The organization retains
you as their counsel to try to force Seven Lakes to stick with their original proposal to complete an
EIS. As counsel for the environmental organization, you begin to think about how to engage with
Seven Lakes, What are your next steps, and what would you argue to try to persuade Seven Lakes to
take on the broader plan and EIS approach detailed in Hypothetical #1, instead of the narrower
approach detailed in Hypothetical #2?
•
Question 3 (15%): While you are good at zealously representing your client’s interests, you believe it
is important to set proper expectations for your clients. What would you say to your clients
regarding the limits of what an agency can be forced to do under NEPA and what standard the
agency will be held to?
Hypothetical #3: Synergy Oil Corporation (Synergy) is developing a proposed natural gas pipeline that will carry
natural gas from shale-rich West Virginia to a new export facility in Wilmington, North Carolina. Synergy is
working to obtain permits and concurrences from multiple permitting and consulting authorities, including the
Federal Energy Regulatory Commission (FERC) for the overall pipeline permit, the Fish and Wildlife Service
(FWS) for a Biological Opinion on endangered goldenrod under Section 7 of the Endangered Species Act, State
Historic Preservation Offices (West Virginia, Virginia, North Carolina) for Section 106 consultation to resolve
adverse effects under the National Historic Preservation Act, the Corps of Engineers for a Section 404 Clean
Water Act permit, and the U.S. Forest Service (USFS) and National Park Service (NPS) for right of way permits
to construct a pipeline across their lands, as well as operations and maintenance permits. State permits will
also likely be required, but are still being sorted out. While the overall cost for a project this size can vary
greatly depending on both permitting and construction delays, the project is estimated to cost between 1 to 2
billion dollars once completed.
As part of its public scoping efforts, the lead agency, FERC has released the preliminary range of alternatives
and anticipated impacts. As a result, the project has now gotten the attention of a number of environmental
groups, whose membership is aghast that the pipeline’s proposed action will run adjacent to Sanders National
Historic Battlefield and across/under the Appalachian Scenic Parkway by using an underground direct pipe
drilling method. The group has submitted letters to FERC and the National Park Service encouraging a change
to the route, and if necessary, a land exchange, among other mitigation measures. You know that there are
other feasible routes, but they would cross hundreds of parcels of private land, and you would much rather
negotiate with Federal land management agencies than many different landowners. The environmental groups
have noted that not only will the pipeline occur in critical habitat for the endangered goldenrod, but that it will
also directly affect the Tarheel bat, a state-listed species in North Carolina. You know that there is some data
out there on the Tarheel bat based on previous projects, but you aren’t sure if it was related to pipeline
construction. Synergy’s biologist thinks that the Tarheel bats would not be disturbed by an underground
pipeline, but you are concerned about construction impacts.
Question 4 (35%): You are Synergy’s general counsel. You know that projects of this magnitude always
face litigation hurdles, but this project is part of a presidential infrastructure initiative, and you feel
confident that it will win approvals as currently proposed. Nonetheless, you are not naïve and know
that you will need to ensure that compliance is legally-sufficient and completed on time and within
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Navigating NEPA: DU Law Final Exam Questions – FALL 2021
budget. Your company’s investors are impatient to see natural gas flowing as soon as possible. Please
address the following:
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Describe the anticipated NEPA pathway for this project and what factors you would consider in
evaluating which pathway is most appropriate?
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What would a sufficient purpose and need, from your perspective, look like?
•
What might a reasonable range of alternatives include based on the purpose and need? Are
there any alternatives that should be considered but dismissed?
•
What advice do you have for your client regarding how to deal with the suggestion from
environmental groups that the pipeline route be changed?
•
What requirements govern the collection of additional information? How would you apply
them here?
•
How can you justify moving forward using the existing information available to you?
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