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. .� . Scott T. Anderson, File, ay T. Squires May 24, 2007 Page 2 of 3 an '`environmental assessment worksheet or an environmental impact statement is required for governmental action ... a project inay not be started and a final governmental decision may not be made until there has been a dismissal of the petition; a negative declaration of a need for an EIS, or an EIS has been determined to be adequate.'' Additionally, subd. 4(a) indicates that the Board shall by rule identify alternative forms of environmental review to address the same issues and utilize similar procedures as an EIS to be utilized in lieu of an EIS. Subd. 5(a) gives the Board quite a bit of leeway in promulgating rules in conformity with the chapter, including the broad statement of the promulgation of any "additional rules which are reasonably necessary to carry out the requirements of this section." The point here is that the alternative forms of environmental review are meant to substitute for an EIS. Thus, when the prohibition in subd. 2(b) speaks to an EIS being completed prior to any governmental decision to grant a permit or approve a project, coupled with the powers given the EQB for rule-making, there is a good argument that the AUAR is nothing but standing in the stead of and place of the EIS, and any statutory prohibition applicable to an EIS is applicable to an AUAR. The 4410 Rules support this analysis. Rule 4410.3100, subp. 1, parrots the language of Minn. Stat. § 116D.04, subd. 2(b). That rule states that if an EAW or an EIS is required, or if a petition for an EAW is filed, a project may not be started nor may final governmental decision be made on a permit until the petition is dismissed, a negative declaration is made on the need for an EIS, or an EIS is determined adequate. Rule 4410.3610, the rule on AUARs, specifically cites to this rule and states in subpart subp. 2 as follows: "The prohibitions of part 4410.3100, subparts 1 to 3, apply to all projects for which review under this part substitutes for review under parts 4410.1100 to 4410.1700 or 4410.2100 to 4410.3000. These prohibitions terminate upon the adoption by the RGU of the environmental analysis document and plan for mitigation under subpart 5." Thus, the AUAR rule seems to state that once the AUAR process is undertaken, the prohibitions of a final governmental action on a permit apply. The key language in Minn. Stat. § 15.99 is whether a"statute" requires a process to occur before a decision on the permit. And, here we do not have a statute requiring it. We have a rule promulgated under the statute requiring it. One could argue that that distinction brings it out of the coverage of the tolling provision of the 60-day rule. I do not think that is a particularly strong argument given rule-making authority and rules promulgated pursuant to statute, as well as the analysis that seem to be employed in the Allen court.