2012 Planning Rule

This week in forest planning

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There just seemed to be a lot of forest planning news …

The Rio Grande National Forest plan revision objection period ends soon (article).

Some of the major changes that will be implemented once the 60-day objection period is complete will include going from 17 management areas to nine, larger management areas. The purpose of the decrease in management areas is so that the Forest Service can manage areas in a more organized manner. The plan also altered the Southern Rockies Lynx Amendment to include the dead tree habitat. The original amendment only included green and healthy forest. This change would now include the dead and beetle kill tree habitat in the Rio Grande National Forest. The plan also includes two wildfire management areas, a smaller portion of new recommended wilderness areas near the Sangre De Cristo Mountains and tree harvesting plans that will be spread out over several years to help utilize the beetle kill in the area.

The Inyo National Forest is releasing their final revised land management plan and environmental impact statement for review and possible objections (press release).

The plan recognizes that fire is integral to forest health, while still taking proactive measures to protect communities and mitigate smoke impacts, which affects residents, visitors, and tourism. The plan also strikes a balance of treating fuels, protecting our communities from wildfire, and allowing fire to provide ecological benefits, including fuel reduction, when safe to do so.

The Sierra and Sequoia National Forests are in the last week of public comments on their second draft revised plan and EIS (announcement).

Earlier versions of these draft documents were released in 2016. We have since revised the draft documents to address changed conditions across the landscape, including extensive tree mortality, and other concerns brought up through public participation.

The Carson National Forest is taking comments on its draft plan and EIS (commentary from New Mexico Wild).

The protection and restoration of watersheds, wetlands and riparian areas will ensure that our forests continue to provide cold, clean water. It will benefit our fish and wildlife and maintain habitat connections across the landscape. This is one place where the draft forest plan falls short – protections for wetlands and riparian areas are too few and fail to fully recognize the benefits of intermittent and ephemeral waters and their intimate connection to water that flows on the surface.

The Salmon-Challis National Forest is going to prepare separate revised forest plans (article).  NFMA requires a forest plan for “each unit of the National Forest System,” so there may be a reason the forest supervisor “can’t think of another forest that’s gone this route.”  I think NFMA might also answer his question about “whether a full-on revision of both plans needs to occur or whether revisions can be made by amending the plans” (the former).

Mark said he has learned that some people on the Challis end of the forest feel that “they were left behind,” when the forests were combined and there was no longer a forest supervisor based in Challis. The supervisor is based in Salmon, with two district rangers based in Challis. Some people have said they feel the emphasis on the forest and its management is focused on the Salmon side because of where personnel are based.

The Custer Gallatin National Forest plan revision is implicated in a private land development (article).

While the public has little recourse to protest what happens on private land in the high Crazies, Cleveland said, the Forest Service could incorporate protections for public lands in the range into the revised Custer Gallatin Forest plan…  It would be a lot less likely for them to build a road if the public sections get recommended wilderness designation.

The National Forests and Grasslands in Texas are proposing to amend their forest plan to identify areas available for oil and gas leasing (press release).  This will be done in accordance with the amendments to the 2012 Planning Rule that will likely require them to address ecological integrity and species viability.

The USDA Forest Service, National Forest and Grasslands in Texas (NFGT), is beginning the preparation of an environmental impact statement (EIS) to analyze and disclose the effects of identifying NFGT lands administratively available for oil and gas leasing. The proposed action will identify lands available for leasing, leasing stipulations, and necessary amendments to the 1996 NFGT Forest Plan.

Forest planning for wildlife corridors

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The 2012 Planning Rule requires that forest plan revisions address wildlife habitat connectivity. In fact it is one of the “dominant ecological characteristics” that must occur with the “natural range of variation” in order to meet the substantive regulatory requirement for “ecological integrity” and the NFMA statutory requirement for “plant and animal diversity.” The Rio Grande National Forest doesn’t seem to want to take this seriously in its revised forest plan, as recounted here:

“At the federal level, New Mexico Sen. Tom Udall and others have proposed a Wildlife Corridors Conservation Act to create more tools for protecting migration routes. Our neighbors in New Mexico passed a state wildlife corridors act earlier this year. Colorado Parks and Wildlife has emphasized the need to ratchet up awareness and protection of corridors. And even former Interior Secretary Ryan Zinke issued an order to conserve big-game migration corridors and winter range.

“Hence, with all of this activity agitating for increased concern and elevated action to protect wildlife corridors, the new management plan just announced by the Rio Grande National Forest is astonishingly tone deaf. Our national forest neighbors to the east finalized their long-awaited 20-year vision and ignored widespread calls for action to elevate wildlife corridors.

“It’s a disappointing example of compartmentalization taken to the extreme. Immediately adjacent across the state line in New Mexico, the Carson National Forest unveiled its draft plan and highlighted extraordinary wildlife values there around San Antonio Mountain with a dedicated Wildlife Management Area.  But it’s as though an administrative wall exists at the state line.”

“Having the Interior Department and state wildlife agencies and elected officials and some national forests all calling for action to protect wildlife corridors isn’t enough if one critical player, like the Rio Grande National Forest, is missing in action.”

It only takes one bad actor to ruin a wildlife corridor. That is a reason why connectivity was given such a high profile in national forest planning for diversity (I was there). The Rio Grand is currently taking objections to its final revised plan, which will be reviewed by someone at the regional level to determine if the Forest is meeting its connectivity/diversity obligations.  However, this is a cross-regional problem (Region 2 and Region 3), which is why the national office of the Forest Service needs to look at why forests in two regions can’t get their acts together on what conditions are needed for connectivity.

Maybe they should also take a look at a recent example in Region 4. This is a case where a state-recognized wildlife corridor led to changes in a trail project on the Bridger-Teton National Forest.

“The now-scrapped trail could have interfered specifically with the Red Desert-to-Hoback mule deer migration corridor, which was the first route designated by the state of Wyoming. An estimated 4,000 to 5,000 deer pass through the narrow bottleneck at the Fremont Lake outflow, according to a 2016 assessment of the migration path.”

‘The “desired future conditions” — a U.S. Forest Service equivalent for zoning — for where the trail would have gone are “developed and administrative sites” and “special use/recreation.” Those classifications would have allowed for new trails, and the Bridger-Teton’s forest plan easily predates the discovery of the migration route, which wasn’t until 2013. Outside of those processes, the forest sought input before proceeding with the plans.”

It’s great that the project decision is considering this new information and the new state designation.  I hope the Forest also recognizes the implications for any future projects in this area where it looks like they have decided that the desired condition is now something else.  The discovery of the migration route should have led to another look at the forest plan desired condition, and a plan amendment if they are deciding that it is no longer appropriate based on this new information.

 

 

 

 

Forest Plan Revision Update

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Since planning is where this blog started, and is arguably where most of the things discussed here should be addressed and resolved at a national forest level, and is what I did in the Forest Service, I would be remiss if I didn’t provide an occasional status update, especially because three national forest are at key points in their plan revisions (below).  Here is the the summary provided by the Forest Service in March.

Most of the interest going forward is in how the 2012 Planning Rule would be implemented, and there are three national forests that have completed their revisions under that regulation:  Francis Marion, Flathead and El Yunque.  The Flathead has two pending lawsuits.

The Inyo has completed is objection process and the Forest is completing the assignments from the reviewing officer.  Here is the reviewing officer response to the objections.  The wildlife section illustrates what I think is a problem with the objection process – where the reviewing officer identifies a problem there is no follow-up to determine if what a forest says or does actually fixes the problem; even though the record is inadequate, the regional forester basically trusts the forest supervisor.  Examples:

Finding: The ROD states that the plan components meet the diversity requirement, but it does
not appear to meet the planning rule requirement to provide an explanation of how the plan
meets the diversity requirements of 36 CFR § 219.9.

Instruction: Include a summary in the ROD that provides an explanation of how the plan
components meet the diversity requirements.

What if the explanation reveals that the plan doesn’t actually meet the diversity requirements?

Finding: The record lacks scientific rationale for why 3 years of surveys are sufficient to determine that PACs are no longer occupied (SPEC-CSO-GDL 02).

Instruction: Clarify the record related to removing PACs.

Finding: Much of the management direction from the lengthy Humboldt-Toiyabe National Forest Land Management Plan Amendment related to sage grouse are reflected in the Revised Inyo Plan, but several standards and guidelines were not brought forward into the Revised Plan. While the record states that the revised plan is consistent with the Humboldt-Toiyabe Amendment regarding sage grouse, some Humboldt-Toiyabe Amendment plan components were not included, and there is a lack of rationale for which plan components were and were not included.

Instruction: Clarify in the record how the sage grouse related plan components from the Humboldt-Toiyabe Amendment were incorporated, or were not incorporated, and why.

What if the rationale is arbitrary, and the plan components are wrong?

Sometimes the Forest could actually change a decision, with apparently no recourse for the public but to sue:

Finding: It is not clear in the project record why the Destination Recreation Area is exempt from the California Spotted Owl plan components.

Instruction: Unless a clear rationale can be provided, remove the Destination Recreation Area exemption language.

And what if a “clear rationale” is not provided in the other examples where the instructions were to “clarify the record?”

And then there’s this “suggestion for the responsible official.”  “Consider including the list of species of conservation concern in the plan.”  Since the monitoring plan program must be explicitly tied to SCC (36 CFR §219.12(a)(5)(iv)), how could the plan not mention the relevant species?

The next forest expected to complete its revision is the Rio Grande.  It has released its final EIS and draft ROD and is in its 60-day objection period.  Here’s some more about that.

The plan also altered the Southern Rockies Lynx Amendment to include the dead tree habitat. “The original amendment only included green, healthy forest habitat, so we modified it to include our dead tree habitat which allowed for better management strategies,” said Perez.

The “original amendment” was also based on the best available scientific information about lynx and their habitat.

The Sierra and Sequoia national forests have issued a revised draft EIS and its public comment period closes September 26.  Maybe they have addressed the “burning” issues we’ve discussed on this blog?

 

Out with the new and in with the old

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Here’s some well-known quotes from former Forest Service Chief Dale Bosworth in 2003. He was trying to sell the idea that the agency was no longer timber-first. This was the “new” Forest Service; “caring for the land” comes first.

Twenty years ago, we focused primarily on outputs, measured in terms of board feet; today, we focus primarily on outcomes, measured in terms of healthy ecosystems.

So our mission focus has shifted away from past levels of timber production.

This concept was embedded in the 2012 Planning Rule, with desired landscape conditions being the basis for vegetation management projects. From the Preamble:

“However, land management planning today focuses on managing toward desired conditions, or outcomes, rather than focusing simply on outputs.”

Today it looks like we have the new “new” Forest Service.  At least on the Olympic National Forest:

Members of the collaborative and non-voting members from the Olympic National Forest, Olympic Natural Resources Center (ONRC) and several other entities said Tuesday that the common goal is to increase timber harvest and aid the local economy while also protecting the forests.

Reta Laford, Olympic National Forest supervisor said her agency’s current emphasis within the restoration framework will treat more acres and increase volume using congressional appropriations as well as timber sales that retain the funds created to use for North Olympic Peninsula projects.

Paul Bialkowsky, timber manager for Olympic Peninsula Operations for Interfor and a collaborative member, said the group is working for a shared goal among industry, government, and environmentalists to increase timber harvest while maintaining forest and watershed quality.

The only person to say anything about ecosystems was the meeting facilitator. And there was no mention of desired conditions. It looks like the agency may be returning to its roots (or stumps).  Also that potential collaborators who don’t share this new/old goal may have a reason to be not be much interested in collaborating.

When Do Old Forest Plans “Need” To Be Revised?

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The Circle of Life- Plan Revision Style without the Litigation Loop

Recently I was asked to speak to students at neighboring Colorado College, a liberal arts school in Colorado Springs. They asked me questions about why a neighboring forest was still operating with a 1984 plan and is only now starting plan revision. I agree with Susan Jane Brown that “you can’t live with an outdated plan forever”  comment here. That is true, but where should we be between 15 years, 35 years and forever.  I notice that no ecosystems have unraveled the PSICC with its 1984 plan, that is 35 years old now.  If we think about the 2012 Rule, and that this is now 2019, and relatively few plans have actually finished being revised (Flathead? El Yunque? Francis Marion?), perhaps the plan revision process has gotten so cumbersome that it is even more unlikely that forests will revise every 15 years.  And if we use the “latest science” in project decisions, it’s a bit awkward to be roped into keeping plan decisions for 20-30 years. That was the idea behind the concept of a forest plan as a loose-leaf notebook of the most current decisions,  rather than a process that is so lengthy that conditions change while the process is ongoing.

The Smokey Wire was originally started to have public conversations when the 2012 Rule was being developed, and Andy Stahl presented the KISS rule linked here. Clearly you can make plan revision more or less complicated (the Rule and Directives are a certain level of complicated, and then forests can do their own processes on top of that). Then ultimately case law will come about that may require even more complicated analysis.

The following is only my opinion, so I welcome discussion and others’ views.

What do current NFMA plans do? They develop desired conditions, objectives, standards and guidelines, and management areas.  Desired conditions IMHO tend to be either rainbows and unicorns, or detailed vegetation conditions designed to replicate the past with the idea of “natural range of variation.”  Objectives are always a function of budget and over 15 years tend to change, but they may be useful guidance. Still, wouldn’t it be better for the Forest to sit down with their program of work and budget through time and involve stakeholders?  Management areas- tends to be about making more areas Wilderness,  and as we’ve discussed before, that is essentially a political decision- except for how you manage them in the interim. I’ve been at public meetings about plan revisions in which this is basically all people care about.. who in the recreation sector is allowed to continue doing what where.  Many members of the public could care less about DCs, objectives, standards and guidelines.

If there is a specific reason that the “old plan” isn’t working, you can amendment it surgically and remove that reason.  Transportation planning? New endangered species? Oil and gas leasing decision? Wildland fire use? New standards?

So here are my reasons not to revise, or at least not to get in line early on a new Rule.

  1. There is not a pressing reason. No one is knocking on your door. You don’t have enough $$ in your budget to do what is crying out to be done.
  2. It’s a lot of work and uses much time that could be used for other potentially more useful/important to stakeholder activities (although planning is funded separately, it tends to draw in everyone else to the effort, and many of those dragged in lack enthusiasm for planning.)
  3. The 82 Rule had so much case law behind it that you could be relatively sure of what you were doing.  Do you want to be the forest that is in litigation for years while case law is being made? And do you want to go back and redo that EIS two or more times?
  4. Some Forests used some energy on the 2005 Rule, and found that opening the can of worms of revision (e.g., some groups say you need to analyze an alternative that takes all the cattle off the grassland and get a free roaming herd of bison- will a judge agree that that’s reasonable?) only got (some) stakeholders excited about shutting down activities, and others dismayed by the first groups efforts to shut down their activities (you can think about mountain bikes here). There is lots of emotions released on both sides and to what end? You are most likely to end up somewhere in the middle and the groups may have made some serious enemies of each other in the meantime. If you are basically at some kind of equilibrium, why disrupt it?  What situation would be bad enough to require disruption?
  5. Related to #4, no matter what you do, some people are going to hate it.  If you are a big contentious forest, you will have threats of litigation.  You’ll attract media attention. Of course, part of that is the cost of doing business, but do you have to do it ( a plan)? After all that, will the forest, the employees or the stakeholders be better off in any way?

Forest Planning update – Custer Gallatin releases draft

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There might be a few folks who signed onto this list because they wanted to follow the “new century of forest planning.”  Forest plan revisions are finally/still happening.  The Custer Gallatin became I believe the 7th forest plan to reach the draft stage under the 2012 Planning Rule.  (It’s got some wilderness issues!)  The Forest Service revision schedule hasn’t been updated since last June, but here it is. The Chugach National Forest was the 6th draft.  There are a number of draft plans that were expected to be out about now, but I haven’t seen anything.  Two revised plans are complete.  There’s been a noticeable slowdown in forest planning recently: there was only 1 new start in 2018, and 2 in 2017.

Northern Region Regional Forester talks about bikes in recommended wilderness

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I’ve excerpted the portion of the Regional Forester’s objection decision on the revised forest plan that addresses this issue, dated August 15, 2018 (p. 46).  It upholds the Flathead Forest Supervisor’s decision to designate recommended wilderness as not suitable for mountain bikes.  I’ve highlighted the language in the regulation that addresses the question about whether the only concern should be physical impacts.  The objection decision also indicates that the decision to recommend wilderness or not took into account existing mountain biking.  It also addresses the alleged bias towards this solution in the Northern Region.  This probably pretty much summarizes the current state of the debate from the Forest Service perspective.

Some objectors requested that bicycle use (mechanized transport) be allowed in recommended wilderness, along with chainsaws (motorized equipment) for the development and maintenance of trails, as long as these uses do not preclude wilderness designation.

The areas recommended as additions to the National Wilderness Preservation System are allocated to management area 1b. This management area has plan direction in the form of desired conditions, standards, guidelines, and suitability to “provide for…management of areas recommended for wilderness designation to protect and maintain the ecological and social characteristics that provide the basis for their suitability for wilderness designation” as required at 36 CFR 219.10(b)(iv).

The suitability component MA1b-SUIT-06 indicates, “Mechanized transport and motorized use are not suitable in recommended wilderness areas” as a constraint on these uses to help achieve desired condition MA1b-DC-1 that states, “Recommended wilderness areas preserve opportunities for inclusion in the National Wilderness Preservation System. The Forest maintains and protects the ecological and social characteristics that provide the basis for wilderness recommendation” (revised plan, p. 9).

As one of the key issues identified from the public scoping comments, the draft EIS analyzed a range of alternatives for managing mechanized transport and motorized use in recommended areas. Alternative C included the suitability component MA1b-SUIT-06 and alternative B did not. The intent of varying the direction was to assess how this plan component would help the Forest achieve the desired conditions for recommended wilderness. After considering the analysis and the public comment on the draft EIS, Forest Supervisor Weber found the MA1b-SUIT-06 component analyzed in alternative C was the appropriate first step in ensuring the protection and maintenance of the areas he decided to recommend in the draft decision (draft ROD p. 19).Therefore, he modified alternative B to include MA1b-SUIT-06.

The intent of suitability component MA1b-SUIT-06 is to not establish or authorize continued uses that would affect the wilderness characteristics of these areas over time (draft ROD pp. 18-19). By deliberate design, the areas being recommended for wilderness in alternative B modified do not currently have significant mechanized transport use occurring. Per public comment on the draft EIS, boundary adjustments were made in the final EIS to remove areas from recommended wilderness that currently allow mechanized transport and over-snow motorized vehicle use (FEIS, pp. 27-28). As there is some over-snow motor vehicle use allowed in one recommended wilderness area (Slippery Bill-Puzzle) (FEIS, section 3.15.3; appendix 8, p. 8-261), Forest Supervisor Weber has endeavored to accommodate this desired recreation opportunity by changing the desired recreation opportunity spectrum in another area of the forest for potential site-specific designation of additional snowmobile areas 2. With these changes between draft and final EIS, the decision maker found that the eight areas recommended represent high-quality areas on the Forest capable of maintaining their unique social and ecological characteristics, while considering the tradeoffs regarding public desires for other uses of the land.

At the resolution meeting, some expressed a concern regarding an “unwritten rule” in the Northern Region that precluded Forest Supervisor Weber from exercising his discretion to choose the appropriate management of recommended wilderness on the Forest. Although previous Northern Region staff drafted guidance for management of recommended wilderness during land management planning, this was prior to the 2012 planning rule and associated implementing directives. I would like to assure objectors and interested parties that I allowed and encouraged Forest Supervisor Weber the discretion to determine management direction for the Forest per the forest-specific conditions, public engagement, law, regulation, policy, and the direction in FSH 1909.12, chapter 70. As a result, per the discretion described in the Agency’s direction at FSH 1909.12 chapter 74.1, option 2, Forest Supervisor Weber did analyze allowing existing uses to continue (DEIS, p. 26). However, as indicated in the draft ROD, he found the best strategy to protect the wilderness characteristics was to eliminate existing uses per chapter 74.1, option 4.

Andy Stahl’s KISS Planning Rule

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This is a Certified NCFP/Smokey Wire Classic.  It used to be a tab at the top of the site. I’m moving it to this one very long post so that it can continue to be found and we have more space for tabs. The idea was (although Andy can certainly say so himself) to meet the requirements of NFMA without unnecessary (analysis? drama?). Now that we have the 2012 Rule and are implementing it, does the KISS Rule look any different than during the development of the 2012?

Andy’s Keep-It-Simple-Sweet proposed NFMA rules are contained in the following posts together with associated commentary:

K.I.S.S. Part I

K.I.S.S. Part II

K.I.S.S. Rule Language, Purpose and Principles

K.I.S.S. Vegetation Management and Timber Harvest

K.I.S.S. Assessment of New Information and Changed Circumstances

K.I.S.S. Inventories and Interdisciplinary Process

K.I.S.S. Public Participation

K.I.S.S. Plant and Animal Diversity

K.I.S.S. Plan Consistency

K.I.S.S. Assessment of New Information, Continued

K.I.S.S. Maps

K.I.S.S. Conclusion

K.I.S.S. Word Count

Here is the complete K.I.S.S. rule text:

36 CFR 219.1: Purpose and principles

(a) The rules in this subpart set forth the process for revising land management plans for units of the National Forest System as required by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended. Land management plans shall be revised when conditions in a unit have significantly changed, but no less frequently than every fifteen years.

(b) A land management plan revision shall:

(1) Decide the vegetation management and timber harvest program and the proportion of probable methods of tree removal;
(2) Include an assessment of new information and changed circumstances since adoption of the previous land management plan or revision thereof;
(3) Be prepared by an interdisciplinary team;
(4) Be based upon inventories appropriate to inform the decisions made by the plan revision;
(5) Involve the public in its promulgation;
(6) Provide for the diversity of plant and animal communities and preserve the diversity of tree species; and,
(7) Review previous decisions to classify lands as suited or not suited for timber production if the prior classification decision is older than ten years.

36 CFR 219.2: Vegetation Management and Timber Harvest Program.

(a) The vegetation management and timber harvest program (“program”) shall include the site-specific vegetation management activities, including the sale of timber, purchase of vegetation management services by stewardship or other contractual method, and fire use necessary to meet the plan’s goals and objectives for a period of one to three years. An environmental impact statement shall be prepared for the program, if required by Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The program can be amended at any time. All amendments shall comply with NEPA procedures.

(b) A vegetation management activity included in the program shall not be subject to the notice, comment or appeal requirements of the Forest Service Decisionmaking and Appeals Reform Act, 16 U.S.C. 1612 (notes), but shall be subject to the objection procedures contained in this subpart.

(c) Program activities shall be conducted only on lands suitable for the activity.

(d) Program activities shall maintain viable populations of existing native and desired non-native species in the planning area.

(e) Program activities shall be consistent with the plan’s standards and guidelines, or the standard or guideline shall be revised pursuant to this subsection.

(f) Before stands of trees are harvested, the stand’s average annual growth shall have culminated calculated on the basis of cubic measurement or other method at the discretion of the responsible official. Stands can be thinned before growth has culminated. Salvage or sanitation harvesting of timber stands that are substantially damaged by fire, windthrow or other catastrophe, or that are in imminent danger from insect or disease attack, can be harvested before growth has culminated.

(g) Timber will not be harvested where soil, slope, or other watershed conditions will be irreversibly damaged.

(h) Timber will not be harvested where adequate restocking within five years is not assured.

(i) Timber will not be harvested where water conditions or fish habitat are likely to be seriously and adversely affected by detrimental changes in water temperatures, blockages of water courses, or deposits of sediments.

(j) The timber harvest system will be selected based upon meeting the plan’s goals and objectives and not primarily upon the greatest dollar return or the greatest unit of output of timber.

(k) Timber harvest designed to regenerate an even-aged stand of timber will be used only where:

(1) For clearcutting it is the optimum method to meet the plan’s goals and objectives;
(2) For other even-aged methods it is appropriate to meet the plan’s goals and objectives;
(3) The harvest activity is included in the program and has been assessed pursuant to this subpart;
(4) Cut blocks, patches, or strips are shaped and blended to the extent practicable with the natural terrain;
(5) The area to be cut in one harvest operation (e.g., one cut block) does not exceed the maximum size limit established by the land management plan. If the plan has no maximum size limits, even-aged harvest cannot proceed until the plan is revised to include maximum size limits. Maximum size limits may be exceeded after public notice and review by the responsible Forest Service officer one level above the Forest Service officer who normally would approve the harvest activity. Maximum size limits shall not apply to the size of areas harvested as a result of natural catastrophic conditions such as fire, insect and disease attack, or windstorm; and,
(6) The even-aged harvest protects soil, watershed, fish, wildlife, recreation, and esthetic resources, and assures the regeneration of trees.

36 CFR 219.3: Assessment of New Information and Changed Circumstances.

(a) The revision shall assess new information and changed circumstances and conditions in the unit that are relevant to the decisions made in the land management plan. If the new information or changed circumstances and conditions warrant amendments to the land management plan, the land management plan amendments shall be assessed as a part of the vegetation management and timber harvest program’s NEPA document. If the land management plan amendments, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., an environmental impact statement shall be prepared.

(b) The assessment shall determine whether new information or changed circumstances warrant a review of lands the Forest Service has classified as suitable or unsuitable for timber production. The review shall focus on, but is not limited to, lands proposed for timber harvest in the plan revision’s vegetation management and timber harvest program.

36 CFR 219.4: Inventories.

The revision shall be based upon inventory data, maps, graphic material, and explanatory aids, of a kind, character, and quality, and to the detail appropriate for the land management plan revisions and vegetation management and timber harvest program decisions made.

36 CFR 219.5: Interdisciplinary Preparation.

An interdisciplinary approach shall be used in the revision of the land management plan. The disciplines of the preparers shall be appropriate to: 1) the formulation of the vegetation management and timber harvest program; and, 2) the new information and changed circumstances and conditions in the unit that warrant revision of the plan.

36 CFR 219.6: Public Participation.

(a) The revised land management plan shall be made available to the public electronically and at convenient locations in the vicinity of the unit for a period of at least three months before the revised plan is adopted. During this three-month period, public meetings at locations that foster public participation in the plan revision shall be held.

(b) If the land management plan revisions, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the public participation process set forth in Council on Environmental Quality regulations, 40 CFR Part 1500 et seq., shall be followed.

(c) In addition to the requirements of (a) and (b) above, other processes suited to the decisions made in the plan revision, including the vegetation management and timber harvest program, may be used to involve the public.

36 CFR 219.7: Plant and Animal Community Diversity.

(a) Plan revisions and the vegetation management and timber harvest program shall ensure habitat sufficient to support viable populations of existing native and desired non-native species in the planning area. Methodologies for assessing and ensuring species viability shall consider and be appropriate to 1) the scope and scale of the plan revision and program decisions made; 2) the ecology of the plan area; and, 3) the biology of the species.

(b) Plan revisions and the vegetation management and timber harvest program shall, to the degree practicable, preserve the diversity of tree species similar to that existing in the plan region.

Another gas pipeline down the tubes?

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Since the NFS litigation reporter is apparently furloughed, here is something you might not want to miss …

In July the 4th Circuit Court of Appeals ruled against the Jefferson National Forest for improperly amending its forest plan to create an exception to forest plan standards to allow the construction of the Mountain Valley Pipeline (reported here and discussed here).   On December 13, the same court ruled against the George Washington and Monongahela National Forests for improperly amending their plans to create exceptions to 13 forest plan standards to allow the construction of the Atlantic Coast Pipeline.  Cowpasture River Preservation Association v. Forest Service again involved interpreting a 2016 amendment to the Planning Rule that governs the application of the 2012 Rule to forest plan amendments. It also again involved circumstances where the Forest Service reversed itself regarding its concerns about the effects of a pipeline without justification.

Forest plan amendments to existing plans (that were not prepared pursuant to the 2012 Planning Rule) are subject to the substantive requirements of the 2012 Planning Rule when those requirements are directly related to the amendment. This may occur when the requirements are related to either the purpose or effects of the amendment(in a “substantial” way). The Forest Service found that relevant effects on soil, water, riparian, threatened and endangered species, and recreational and visual resources were mitigated, but ignored the purpose of the amendment, which was (as stated in the NEPA documents) to reduce the protection of those resources so the Pipeline could proceed. As stated by the court, “To say that a 2012 Planning Rule requirement protecting water resources (as one example) is not “directly related” to a Forest Plan amendment specifically relaxing protection for water resources is nonsense.”

The court rejected the argument that it is the purpose of the project that should be considered rather than the purpose of the amendment, and rejected the idea that these requirements do not apply to amendments limited to an individual project. It found, “If the Forest Service could circumvent the requirements of the 2012 Planning Rule simply by passing project-specific amendments on an ad hoc basis, both the substantive requirements in the 2012 Planning Rule and the NFMA’s Forest Plan consistency requirement would be meaningless.” The court also suggested that there would be “substantial” adverse effects of this project that should lead to a conclusion that the amendments are “directly related,” and the 2012 Planning Rule requirements would apply. The court held: “The lengths to which the Forest Service apparently went to avoid applying the substantive protections of the 2012 Planning Rule — its own regulation intended to protect national forests — in order to accommodate the ACP project through national forest land on Atlantic’s timeline are striking, and inexplicable.”

The court also found a violation of forest plan goals, “because it failed to demonstrate that the ACP project’s needs could not be reasonably met on non-national forest lands.”   The FEIS did not address this question, but instead found that no national forest avoidance alternative “confers a significant environmental advantage over the proposed route.”   The court held that consistency with plan goals is required by the 2012 Planning Rule (even though the goals were not written when that Rule was in effect). The Forest had included the goals (which are also found in the Forest Service Manual) in its scoping material for the Pipeline project. The court held that the Forest Service “is not free to disregard the goal entirely — as the Forest Service apparently wishes to do here.”

The court also found violations of NEPA. The EIS was prepared by the Federal Energy Regulatory Commission (FERC), but the Forest Service had duty to independently review it. The Forest Service never explained why it was satisfied with the lack of off-forest alternative routes after it had said they were required. The Forest Service also failed to explain why it lost interest in landslide risks, erosion control and aquatic species that it had previously expressed concerns about. The court found, “the record before us readily leads to the conclusion that the Forest Service’s approval of the project “was a preordained decision” and the Forest Service “‘reverse engineered’ the [ROD] to justify this outcome.”

The court remanded the Forest Service decisions to grant the right of way to address these legal shortcomings. However, the court also found a potentially bigger problem: the Forest Service does not have the authority to grant a right of way across the Appalachian National Scenic Trail (necessary for the routes considered) because it is administered by the National Park Service, and the Park Service does not have authority to grant such a right of way at all. Thus this part of the Trump Administration’s “energy dominance” program could now be in the hands of a divided Congress.

Here is the line from the court that got the most media attention (includes a link to the opinion):

“We trust the United States Forest Service to “speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”

Greater sage-grouse amendment amendment

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Three years ago the Forest Service had this to say about the greater sage-grouse:

Two US Forest Service Records of Decision and associated land management plan amendments are the culmination of an unprecedented planning effort in cooperation with the Bureau of Land Management to conserve greater sage-grouse and its habitat on National Forest System lands and Bureau of Land Management-administered lands.

Last week it was this (and they initiated a public comment period):

Since approving the plan amendments in 2015, the Forest Service has gathered information and determined that the conservation benefits of Forest Service plans in Nevada and other states can be improved. That is, through repeated scoping, close collaboration with state and other federal agencies, and internal review, the Forest Service has identified proposed changes in the text of the greater sage-grouse plan amendments which would improve their clarity and efficiency and better align them with the Bureau of Land Management and state plans.

Specifically, the Preferred Alternative makes modifications to land management plans within the issue areas of: Habitat management area designation, including designating sagebrush focal areas as Priority Habitat Management Areas compensatory mitigation and net conservation gain; minerals plan components and waivers; exceptions and modifications; desired conditions; livestock grazing guidelines; adaptive management; treatment of invasive species; and changes to clarify text and eliminate errors and redundancies.

Oddly, it sounds like all of the new information must say that sage-grouse are doing better than we thought three years ago and/or they are less vulnerable to oil and gas drilling than we thought three years ago. The most important change in forest plans is probably this one (from an AP article):

The Obama administration created three protection levels for sage grouse. Most protective were Sagebrush Focal Areas, followed by Primary Habitat Management Areas and then General Habitat Management Areas. The Forest Service plan reclassifies the 1,400 square miles (3,600 kilometers) of Sagebrush Focal Areas as primary habitat.

The focal areas allowed no exceptions for surface development, while primary habitat allowed for limited exceptions with the agreed consent of various federal and state agencies. Under the new plan, the cooperation of states and some federal agencies to exceptions in primary habitat will no longer be needed for some activities but can be made unilaterally by an “authorized officer,” likely an Interior Department worker. That appears to be an avenue for opening focal areas to natural gas and oil drilling.

This amendment decision will be subject to the 2012 Planning Rule requirements for species viability and species of conservation concern (SCC) (from the DEIS):

… the FS is considering the effect on the greater sage-grouse as a potential SCC for each LMP that would be amended by this decision. The analysis in this DEIS shows that the amendments maintain ecological conditions necessary for a viable population of greater sage-grouse in the plan area for each LMP to which the amendments would apply.

Recall that the current conservation strategy was “generally viewed as keeping the bird from being listed for federal protections under the Endangered Species Act.”  What will the Zinke that is charge of the Fish and Wildlife Service have to say to the Zinke that is in charge of the BLM (and apparently the Forest Service)? Why does this remind me of political appointee Julie McDonald’s interference with decisions about lynx? Is it more about a new boss than about new science?  “A federal lawsuit is likely.”

Some more background is provided here.