Standards in Planning

The question of standards in forest planning has emerged as a central issue in the proposed NFMA regulations.  It seems that a common narrative by the press in covering the story thus far is the amount of discretion afforded in the proposed rule versus its lack of “musts and shalls.”

Here is the definition of standards in the proposed regulations: “A standard is a mandatory constraint on project and activity decisionmaking, established to help achieve or maintain the desired condition or conditions, to avoid or mitigate undesirable effects, or to meet applicable legal requirements.” (76 Fed. Reg. 8517).

I have made my pro-standards case in various places, hitting on the usual theme of accountability, while others like Professor Mark Squillace have thoughtfully criticized their use at the forest plan level.  I hear similar complaints about standards from others participating in the draft regulations as well. 

This is an important debate.  But my sense is that we might not all be that clear about the variety of ways in which standards are used in planning.  Maybe we all have different conceptions based on our interactions with forest planning in various parts of the country.  So before making an argument for standards, allow me to first explain what I mean by the term.

Types of Standards Used in Forest Planning 

Different types of standards are used in forest planning.  They can differ in scale, specificity, and complexity.  Some administrative regions of the USFS, for example, use standards cutting across multiple National Forests (this being very relevant to Melissa’s point about standards and scale–many of us agreeing that some standards might best be applied at larger spatial scales).

National Forest plans have also used forest-wide standards that vary in detail and complexity.  Take, for example, the forest-wide range standard in the 1986 Lolo National Forest Plan:

Conflicts between livestock and big game will be resolved so big game are allocated the forage required to meet their needs.  Domestic livestock will be allowed to utilize any forage surplus not conflicting with the planned expansion of big-game populations.  Reductions in livestock numbers will be avoided if possible, but will be acceptable to meet management goals. (II.9). 

To me, this seems more like a nudge than a clear unequivocal standard, but it still provides some direction. 

Forest-wide standards can also be more complicated, such as the Lolo’s forest-wide “snag standard.” This standard requires sufficient snags and dead material to be provided in order to maintain 80 percent of the population of snag-using species.  More detailed prescriptions are provided in this forest-wide standard, such as specifying the number of big snags needed per acre on different forest types on the Lolo.  (I get the sense that critics of standards are thinking about this sort of example). 

Standards are also used for particular management areas or zones as identified in a forest plan.  These sorts of standards can be very straightforward and basically state what is allowed to happen in a particular area. They specify allowed uses, prohibitions, and constraints.  The Lolo Plan, for example, divides the forest into 28 management areas, each with a different set of standards.  Consider the following examples:

Standards used for a municipal watershed area state that “livestock grazing permits will not be issued” and that “chemical herbicides and pesticides will not be used within the Ashley Creek Watershed.” 

A management area including significant historical, archeological, paleontological, and cultural sites uses a timber standard stating that “timber removal will be limited to that necessary to enhance historic values and provide for public safety” and that “timber removal will be under administrative use rather than commercial sale authority.”

A management area consisting of large roadless blocks of land contains standards that disallow most types of motorized access, the construction of developed recreation facilities, and commercial logging. 

These are straightforward, meaningful standards playing an important role in forest planning.  They are not hyper-complex nor do they require super-human analytical abilities to write and implement them.  Nor is there any evidence, that I’m aware of at least, showing that the writing of such standards is what bogs down the forest planning process. 

Why Standards?

The use of standards in a forest plan should be required under the NFMA regulations for several reasons.  We have discussed a few of these already on the blog, often in the context of what is required by NFMA and the importance of accountability.  I’d like to discuss a few issues that have not received as much attention but are very relevant to the proposed rule:

1.  Standards help differentiate one management (planning/zone) area from another.  The above example from the Lolo demonstrates the important relationship between standards and the designation of management areas/zones.  The former gives meaning to the latter.  Why would the Lolo National Forest designate a management area if that area had no different allowed uses or prohibitions than some other area? Or why would the proposed rule require the identification of priority watersheds for maintenance or restoration if those areas had no meaningful prohibitions?  If the agency is going to draw lines on a map, then those lines should mean something. 

2.  Standards facilitate the effective use of adaptive management—one of the principles of the proposed rule.  Standards help define the purpose and boundaries of adaptive management and planning.  After all, adaptive management is a means to an end, and that end needs to be clearly articulated.  Without standards, adaptive management is too susceptible to political exploitation and the dodging of tough political choices. 

A commonalty found in most adaptive management literature is the need for a structured decision making process and the identification of clear and measurable management objectives.  The Interior Department’s Technical Guide (as discussed at the Science Panel) emphasizes both as crucial to the success of adaptive management:

If the objectives are not clear and measurable, the adaptive framework is undermined…Objectives need to be measurable for two purposes: first, so progress toward their achievement can be assessed; second, so performance that deviates from objectives may trigger a change in management direction.  Explicit articulation of measurable objectives helps to separate adaptive management from trial and error, because the exploration of management options over time is directed and justified by the use of objectives.  U.S. Department of the Interior, Adaptive Management: The U.S. Department of the Interior Technical Guide (2009), at 11. 

Standards can be used to help define these objectives while providing a relevant metric in determining their achievement.  More basic is the fact that adaptive management projects will take place in particular management areas of a National Forest, as identified in a forest plan, and these zones/standards will guide the questions and purpose of any adaptive management project. 

3. Standards can help the USFS, and other federal agencies, meet the goals and mandates of other environmental laws. There are important interconnections between NFMA and other laws like NEPA and the ESA and CWA.  NFMA regulations should thus be considered as part of a larger regulatory framework.  And these environmental laws and regulations should be viewed as goals, not constraints. 

Consider, for example, the role standards play vis-à-vis the ESA.  The proposed planning regulations properly emphasize the agency’s obligation to conserve endangered and threatened species.  The proposed rule “would require the responsible official to explicitly recognize the recovery of T&E species as an important part of land management plans…” (76 Fed. Reg. 8494). 

Standards can play an important role in this regard.  Consider, for example, the unsuccessful delisting of grizzly bears in the Greater Yellowstone region.  At issue in this case was the Grizzly Bear’s Conservation Strategy, which included the amending of multiple national forest plans.  The Court found the Conservation Strategy short of being an “adequate regulatory mechanism,” as required by the ESA, partly because the forest plan amendments included few meaningful standards and too many discretionary and unenforceable guidelines.  Cases like these demonstrate how meaningful standards can help the USFS meet all of its legal obligations, not just NFMA.(see Greater Yellowstone Coalition v. Servheen, 672 F. Supp. 2d. 1105, (D. Mont. 2009).

10 Comments

  1. I believe that standards are useful in public decision-making and disclosure. But I believe that problems arise in forest-level planning and associated “rule-making”, i.e. development of NFMA rules. In short I believe that the Forest Service continues to ask too much of forest-level teams. Each public decision ought to point to standards. But a question arises as to where such standards are developed and when they ought to be revised.

    I believe that standards are generally better developed in places other than at a forest-level, and generally not developed by forest-level personnel. Still, forest-level practitioners have responsibility to identify which standards attach to decision made on a national forest or a district.

    Let’s use some of your examples. You say,

    why would the proposed rule require the identification of priority watersheds for maintenance or restoration if those areas had no meaningful prohibitions? If the agency is going to draw lines on a map, then those lines should mean something.

    In my opinion identification of “priority watersheds” involved water-quality and other standards developed apart from forest-level consideration. While the “lines on the map” might be developed as part of a forest plan, or at least incorporated as part of a forest-level “decision”, I’m not convinced that what we might want to call “standards” are in play here. I think this is decision-making, trying to develop categories that fit into pre-defined standards. But maybe in just confusing things here.

    Let’s try another. You say ,

    … the Lolo’s forest-wide “snag standard.” This standard requires sufficient snags and dead material to be provided in order to maintain 80 percent of the population of snag-using species.

    Here again I think that this is a standard that likely applies more broadly than the Lolo.

    Let’s try another:

    A management area consisting of large roadless blocks of land contains standards that disallow most types of motorized access, the construction of developed recreation facilities, and commercial logging.

    Yep. But aren’t these “standards” also the stuff that apply more broadly, therefore ought to be developed elsewhere?

    Finally, you say,

    The Court found the Conservation Strategy short of being an “adequate regulatory mechanism,” as required by the ESA, partly because the forest plan amendments included few meaningful standards and too many discretionary and unenforceable guidelines.

    OK.. But that doesn’t necessarily mean that a forest-level team ought to come up with the standards. Does it?

    I’m not against standards, but I do believe that we are once-again overburdening plannning teams with work rightfully done elsewhere.

    • I’m with Dave when he said:

      I’m not against standards, but I do believe that we are once-again overburdening planning teams with work rightfully done elsewhere.

      A standard for snags or for implementing a conservation strategy on the Lolo should be consistent with a standard on the Bitteroot, if the same species and ecological conditions are found there. It may make the most sense to develop this standard at a higher scale, then apply it through revision or amendment of the appropriate forest plans. And if it’s a standard, not a guide, the FWS will view it as an adequate regulatory mechanism.

      Prioritization of watersheds makes sense as a tool for getting the most important work done at Forest, Regional, and National scales as opposed to just sending some money out to every unit to go forth and “improve watersheds.” It doesn’t have to be about prohibitions.

    • Dave,

      I agree that some standards should be applied at larger spatial scales, cutting across multiple national forests (see our discussion about “musts and shalls”–seemed like a rare agreement/kumbaya moment on the blog, Brian Hawthorne notwithstanding). But as my examples show, some standards are more applicable to particular management areas/zones. They help differentiate how one place is managed in contrast to another.

      I don’t understand the argument for the designation of management areas that don’t have any standards. What’s the point?

      As for burdening planning teams, there is a counter-argument to be considered: providing relevant standards at the plan level saves ID teams the trouble of always having to negotiate them at the project level or ad hoc basis. Simple but significant standards at the forest plan level, as Ray Vaughn points out, doesn’t necessarily lead to the total loss of discretion and place-specific expertise at the project level. This is a false choice.

      Consider also how standards in the forest plan can save the agency time and resources in other planning processes, such as travel management (see e.g., comment of John Gatchell http://ncfp.wordpress.com/2011/02/15/mark-squillace-reviews-draft-rule/#comment-3398).

      Despite our differences, I think Ray and Marek emphasize the right point: there are different types of standards so we should all be specific about what types we like and dislike and why.

      • I guess we likely agree in principle. But I like to keep the word “standards” for things like, e.g., engineering design standards, clean air and water standards, etc.

        I like to call some things you call “standards” either “decisions” (to get technical/reductionistic we might be talking: “decision criteria”), or “policy.”

        For Example, one thing John Gatchell talks about is a “forestwide standard requiring motor vehicles remain on DESIGNATED (legal-established through nepa) roads and trails.” I’d call that a policy.

        Call in the lawyers! Anybody want to bounce this off OGC?

        My bigger issue, is that we have framed Forest Planning to try to contain too many decision at one time/one place. Worse, it is the wrong place for most of the decisions, e.g. Gatchell’s “motor vehicles” decision that ought to be made system wide, else at minimum at scales above the forest. The whole thing gets too messy — “wicked” really — too fast. But that is a conversation for another post, another time.

    • Dave, all of the examples I used from the Lolo Plan were called “standards” in that plan. They were clearly listed as such, along with a description of the area and goals for the area. The Lolo Plan seems shorter and more simple than other more recent plans. But I reviewed some of these as well, such as the 2008 Tongass Land Management Plan. Much more complicated, but here too standards are often used in very site-specific and simple ways: specifying what is allowed to happen, use restrictions, constraints, project parameters, etc.

  2. I think that this discussion nails the standards issue. In the past, plans got larded up with standards of nth detail. Example: to protect water quality, a plan would have 20-30 or more standards such as “all motorized equipment must operate more than 66 feet from the stream bank,” “no motorized equipment can be used on slopes greater than 40 degrees,” etc. This made forest-level planning take on the details of project-level design, as Dave points out. As Martin points out, this lead to an expectation, both on the part of the USFS and with enviros, that standards HAD to be at that level of detail or could be at no level of detail.

    Thus, we have this proposed rule–the agency wants to get rid of the super-detailed standards in plans and therefore has language that supports having a plan totally lacking in requirements for meaningful standards at all. So, enviros now demand that the super-detailed standards be put back in. The USFS will resist and stick with no meaningful standards in plans. This discussion shows that what is needed in plans are general standards that will enable the agency to develop specific standards and operational requirements at the project level which will meet the broad plan goals and areas of different management drawn on the map. It is not an “all or nothing” situation, but history and fears from both sides are making it that.

    I see no reason why a plan could not have a goal like “Maintain water quality or, where appropriate and possible, enhance water quality” and a companion standard like “Projects and ground operations shall not degrade water quality.” Period. No distances imposed. No pages of details on what can and cannot be done, regardless of whether it fits the ecosystem and landscape at issue or not. Then, at the project level, the staff who are working in that place would develop operational standards in the project documents that would ensure that the plan goal of maintaining water quality is met through requirements that fit that piece of land and what is there. I know plenty of places where staying 66 feet from the stream is not nearly enough and others where you can work (and need to work) a skidder 10 feet from the stream and do no harm. Why not let the staff who are putting together that project do what is needed to be done to get the work done and to protect the resources while also giving an enviro lawyer like me a general legal hook to hold them accountable?

    I guarantee that I can have a court enforce a standard like “shall not degrade water quality” just as easily as one that says “stay 66 feet or more away.” Sure, a “66 feet’ standard is a clearly enforceable standard such that when they hit 65 feet, I can sue and win, but it is not appropriate for every place, if any places. But, what enviros arguing to keep the old way of nth detail do not realize, or will not admit, is that a general standard of “no degradation” is just as enforceable. It is not as specific, true, but it is legally enforceable nonetheless. And it gives more flexibility to the USFS to do what needs to be done IN THE PLACE AT ISSUE, while still being held accountable if they screw up. I have seen plenty of places where the operations stayed more than 66 feet away and they decimated water quality, and the specificity of the standards prevented me from suing to stop it. I know other places where good work was needed 10 feet from a stream but could not be done because the specificity of the standards prohibited it.

    Let’s keep plan standards general and aspirational, but nonetheless enforceable by making them mandatory. If they are general and unenforceable, they are meaningless and a waste of all our time, and the new rule will get struck down in court. With meaningful general standards in the plans, the detailed operational standards can be developed when and where they should be, at the project level. I am sure this would give the USFS the flexibility and discretion it is seeking while also giving folks like me the legal handles necessary to make sure bad things do not happen.

    • Ray said:

      I see no reason why a plan could not have a goal like “Maintain water quality or, where appropriate and possible, enhance water quality” and a companion standard like “Projects and ground operations shall not degrade water quality.”

      This sort of approach would be a great leap forward. A forest would need to establish monitoring to assess water quality over time. If it’s staying the same or improving, fine. If water quality was not maintained, further monitoring would be needed to determine the cause (i.e. was it a Forest Service activity?). We are now measuring the direct outcome of plan and project implementation rather than measuring how well a set of rules is being followed. The standard would really be an outcome measure and as such would need to both practical to measure and be quantifiable. For example: “Projects and ground operations shall not degrade water quality more than XXX.”

      Also:

      But, what enviros arguing to keep the old way of nth detail do not realize, or will not admit, is that a general standard of “no degradation” is just as enforceable. It is not as specific, true, but it is legally enforceable nonetheless

      Which is why it does have to be specific. Otherwise, if a project degrades water quality by the slightest measurable amount, the standard has bee violated. There needs to be allowance for a project that say improves fish passage and reduces long term erosion by removing a culvert, but puts a few pounds of dirt in the creek in the short term.

  3. Thanks Martin for this post. We have discussed this issue before and I continue to appreciate (and agree) with your perspective. The use of standards and guidelines was an issue that we (TNC) wrestled with at length in our comments on the NOI, having a variety of experiences (positive and negative) with forests across the country. In the end, we recommended their inclusion, but suggested two types of standards: prescriptive and outcome. Prescriptive standards would be similar to the stream buffer or snag examples cited above, but be developed for/at the appropriate scale and be based on well-established and documented regional, state and/or local best management practices. In some cases, these would definitely be more appropriate at the project level. Outcome standards would probably be similar to Ray’s “no degradation of water quality” example and closely reflect desired conditions for a particular management area, yet be linked to measurable indicators in a monitoring plan.

    Before commenting further, I am curious as to why many are concluding as Ray has:

    Thus, we have this proposed rule–the agency wants to get rid of the super-detailed standards in plans and therefore has language that supports having a plan totally lacking in requirements for meaningful standards at all.

    My read requires standards as a plan component (not optional) and the definition specifically states “mandatory constraint,” so what am I missing?

  4. Sorry I’m late to this discussion, have been attending planning rule public meetings. I agree with Martin that dividing up standards is the way to talk about them.

    Putting lines on maps with what you can do and not do is perhaps our most important activity (to the public) for forest planning and relates to subsequent decisions like oil and gas leasing and travel management. But some folks call that management areas, some call zoning, some call it suitability. Whatever you call it turns out that it is not clear to some folks in the public that we still intend to do it. This is one of those cases where I think the rule intends to allow/encourage it where it is appropriate, but because of our language we are not clear what “it” is (I’ll call it lines on maps for short).

    Ray- my concern with the more general “standard” is that I would prefer the aficionados and experts to arrive at a number rather than defer it to a judge and lawyers talking about these details. I know they might not fit all situations, but when natural resource details go to judges I don’t think it’s the best use of our time, the lawyers’ time nor the judges’ time to debate whether 33 50 or 76 feet is the right distance.

    Jim, I agree with the regulatory certainty idea, but that is simply done by 1) developing an approach that makes sense at the right scale (say grizzly bear) and 2) amending plans. Don’t know that the regulatory kind of standards need to be part of plan revision; those standards accumulate over time and change based on larger forces than one forest.

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