Proposed Rule

Squillace’s Thoughts on Proposed Rule –Post National Forum

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Professor Squillace, director of the Natural Resources Law Center at University of Colorado Law School, Professor Joe Feller, and Michael Saul from NWF and various law students came to visit us yesterday to discuss the proposed planning rule. Both he and John Rupe had been at the national forum.. so far I haven’t heard much from folks who had been there. He posted his thoughts here on the Red Lodge Clearinghouse blog. IMHO, his thoughts are worth reading and very comprehensive.

As he says

This current iteration of ideas was developed at the conclusion of the National Planning Rule Forum held in Washington, D.C. on March 10, 2011. To the extent possible, it reflects some of the comments and questions addressed at that forum.

I’d be interested in what others think- he’d also like to hear from you directly.

ENS Article on Planning Rule Forum- Expecting Too Much From a Planning Rule?

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Here it is, with some quotes below.

But Defenders of Wildlife says the draft rule ignores scientific recommendations on wildlife diversity protection.

Rodger Schlickeisen, president and CEO of Defenders of Wildlife said, “President Obama holds the future of our nation’s forests and wildlife heritage in his hands as his administration crafts the new rule governing national forest policy. His administration has an opportunity to lead us into a new century of forest management. Unfortunately, in its present form, the draft rule promises much more than it delivers, leaving the future of wildlife on 193 million acres of land belonging to the American people mostly up to chance.”

The nonprofit Sierra Forest Legacy, based in California, says, “At first reading, we note that the single most important measurable protection to ensure protection of wildlife, afforded by the 1982 regulations, has been removed entirely.”

The group is referring to the “Viability Standard” at 219.19 in the 1982 regulations, which states, “Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.”

The 1982 Viability Standard continues, “For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area.”

“In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area,” the Viability Standard concludes.

The Sierra Forest Legacy warns, “Without such clear direction for protecting wildlife, the new planning rule represents a step backward, suggesting that the agency has abdicated its long held responsibility for maintaining our national forests as the last refuge for the continent’s increasingly imperiled wildlife.”

Marty Hayden, vice president of policy and legislation with the public interest law firm Earthjustice, said, “The Forest Service’s draft rule shows that the Obama administration understands and supports the basic concepts of how to protect the indispensible watersheds on our National Forests, but, by failing to adopt enforceable standards, it falls short of guaranteeing the protections our country desperately needs.”

And

But conservationists are not convinced the draft planning rule will protect waters and wildlife. “It’s not just the streams, rivers, and wetlands outside my back door and yours that remain in trouble. Waters across the nation are threatened by a legacy of serious harm from forest and grazing land use on National Forest lands,” said Dr. Chris Frissell, director of science and conservation for the Pacific Rivers Council.

“This history is a principal reason why our native trout and salmon are in such tough shape today, and this means the new planning rule will need to take firm steps forward, not backward, to ensure the health of our watersheds and fisheries is restored,” he said.

“The rule still needs, among other things, clear direction to reduce harm to watersheds by removing and restoring forest roads, an established national minimum streamside buffer zone, and development and compliance with firm standards protecting waters and aquatic life,” said Dr. Frissell. “Good intentions are great, but in an ecosystem as complicated as a watershed, standards and a commitment to real monitoring are necessary to ensure that the agency’s actions in fact protect and restore the environment. This draft rule doesn’t get us there. ”

On the proposed rule’s treatment of science, Dr. Frissell said, “The rule still needs language to say it’s the Forest Service’s job to both bring the best available scientific information to the table and to actually use it as the basis for planning, and to implement and monitor the measurable standards that are necessary to ensure water resources and watershed health are in fact being protected and restored.”

I don’t know what Dr. Frissell means by using science as “the basis” for planning. But I also ran across testimony of Dr. Pielke, Sr. on climate change this week.

Decisions about government regulation are ultimately legal, administrative, legislative, and political decisions. As such they can be informed by scientific considerations, but they are not determined by them. In my testimony, I seek to share my perspectives on the science of climate based on my work in this field over the past four decades.

For those of you unfamiliar with his work, he describes other forcings than CO2 in a way accessible to the public (or at least, me) in his testimony here.

News (?) Article on Planning Rule Forum

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This is from the “Public News Service” whose mission is:

The Public News Service (PNS) provides reporting on a wide range of social, community, and environmental issues for mainstream and alternative media that amplifies progressive voices, is easy to use and has a proven track record of success. Supported by over 400 nonprofit organizations and other contributors, PNS provides high-quality news on public issues and current affairs.

Last year the Public News Service produced over 4,000 stories featuring public interest content that were redistributed several hundred thousand times on 6,114 radio stations, 928 print outlets, 133 TV stations and 100s of websites. Nationally, an average of 60 outlets used each story. This includes our bilingual content, which is growing rapidly as we strengthen relationships with Spanish media outlets.

In addition, about one-third of our stories are picked up by national networks and redistributed across the country.

Of course if we were looking for a plain old news story, they might have interviewed people with more than one point of view.

Forest Service Planning Rule Gets Lukewarm Reception

March 11, 2011

WASHINGTON, D.C. – Conservation groups are giving a lukewarm reception to the proposed planning rule that guides U.S. Forest Service policy and will affect much of Oregon when it becomes final.

The agency held a forum on Thursday in the nation’s capital to discuss a draft of the rule, which some say lacks enough “teeth” to protect water quality and wildlife. Concerns were also voiced about whether the focus on monitoring and adaptive management of public land can work for an agency that has been chronically underfunded. Chris Frissell, director of science and conservation for the Pacific Rivers Council, attended the forum.

“The Pacific Northwest, under the Northwest Forest Plan, is somewhat of an exception. But prior to that, and then pretty much everywhere else, the Forest Service has had great difficulty getting any sustained monitoring program off the ground and has not been able to keep it funded. Congress just hasn’t put money into those things.”

Watershed management is another concern, Frissell says, because the rule does not include buffer zones to limit some activities along streams and lakes. The current rule has been in place since 1982, and has been controversial over the years. If there’s one word for the new proposal, Frissell says, it’s “cautious” – and people interested in the various issues affected are taking note.

“It’s pretty much the full slate of issues – everything from restoration to forest fuels treatment and fire management, to timber. And in fact, a lot of the interest groups around that whole table had the same concerns, about uncertainty and vagueness in the rule and what the rule delivers for their interests.”

The draft planning rule is open for public comment until mid-May, and comments can be made online. Two forums will also be held March 25 in Portland to discuss the rule, both at the Sheraton Airport Hotel.

The draft rule, including comment instructions and a related Forest Service blog, are online at www.fs.usda.gov/planningrule.

Deja Vu, All Over Again

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While researching back issues of High Country News for a future post, I ran across this article..from 1995.. the year the original Toy Story was the #1 movie and Microsoft introduced Windows ’95.

– From the September 04, 1995 issue by Erik Ryberg

While reform of the Endangered Species Act captures headlines across the West, some conservationists say an equally important law is also in danger.

It is the National Forest Management Act, or NFMA, which has governed watersheds, soils and wildlife for nearly two decades. Forest Service officials now propose wholesale changes in the regulations that implement the 1976 law.

“The Endangered Species Act and the Clean Water Act get all the press, but really it’s the NFMA that’s been holding our forests together,” says Jennifer Ferenstein of Missoula’s Alliance for the Wild Rockies.

Ferenstein says the law’s current regulations specifically direct the Forest Service to maintain viable populations of native species throughout their ranges and protect water quality and soil productivity. “No other public-land law is so sweeping and so straightforward,” she says.

But the Forest Service, in a 35-page explanation, contends that these rules are difficult to understand and contain too much “language without real substance.” It says new rules are needed to give the agency greater flexibility, to streamline forest plans, and to allow for “adaptive management” necessary to implement ecosystem analysis.

Environmentalists fear the new regulations go far beyond streamlining.

“All the clarity in the current regulations has been removed,” says Ferenstein. “Wherever the current regulations say the agency “shall protect streams and streambanks,” or “shall provide for fish and wildlife habitat,” the proposed regulations substitute a lot of vague language about professional judgment and the need for flexibility.”

Ferenstein says when her group makes an administrative appeal on a logging project, it is almost always based on the act. “We use (it) to ensure that riparian areas are protected, to ensure that soil compaction doesn’t occur, and to ensure that regeneration needs are met,” she says. “All of that is going down the drain with these new regulations.”

Jeff Juel of the Inland Empire Public Lands Council in Spokane, Wash., says the new regulations amount to “total industrial dominion” over publicly owned forests. His group recently filed a legal challenge to a timber sale on the Kootenai National Forest, alleging the sale will threaten population viability of eight native species. The new regulations would prevent such court challenges on behalf of any species not already listed under the Endangered Species Act.

Speaking for the Forest Service in Washington, D.C., planning specialist Ann Christensen says the current regulations require her agency to perform unrealistic analyses. “The meaning of a term like population viability has evolved over the years,” she says. “Depending on the interpreter it can be beyond the grasp of anyone to implement the current regulations.”

But Kieran Suckling of the Southwest Center for Biodiversity in Silver City, N.M., says rules like the minimum viability requirement are essential. “With the current rules, you can measure the effect of Forest Service projects and hold the agency accountable for them,” says Suckling. “You can go out and count woodpeckers; you can judge the accuracy of a forest plan by acquiring data.”

The proposed rules, he says, reflect an “ethereal world with no measures and no accountability.”

Because grassroots groups across the West have used this law to shut down countless logging and grazing plans, adds Suckling, “It’s no surprise the Forest Service wants to get rid of it.”

A copy of the proposed regulations, which are scheduled to become final in early 1996, can be obtained at any forest supervisor’s office or by requesting them from the Forest Service at P.O. Box 96090, Washington, D.C. 20090.

HCN Story on Planning Rule: New National Forest Rule Lacks Rigor

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Camas blooming on the Malheur NF, by Dave Powell, USFS

Here’s the link.

Here is a quote.

But it’s precisely that flexibility that worries Peter Nelson, federal lands director at Defenders of Wildlife. “Flexibility absent consistent guidance can lead to a variety of outcomes for water and wildlife,” he says, “not all of them good.” For instance, “the proposal directs forest managers to provide for the viability of species” — to make sure, in other words, that no species is at risk of extinction. “But it also says that if you’re not able to, you don’t have to. And it’s not clear to me how forest managers are required to prove that they can’t.”

The proposed rule requires forest supervisors to develop plans that “maintain or restore the structure, function, composition, and connectivity of a healthy and resilient ecosystem,” writes Tony Tooke, the agency’s director of ecosystem management coordination, in an e-mail. Yet there’s little in the rule to define those terms.

“How will you or I know that we’ve walked into a resilient ecosystem?” Nelson says. “There’s no clear criteria set out in the draft to determine that.” Nor does it require proof in numbers that such an ecosystem is, as the proposal assumes, beneficial to a variety of wildlife. “I’m afraid the Forest Service thinks monitoring at the species level is burdensome,” Nelson says. “I think of it as a trust-building exercise.” With ecosystem protection as with nuclear arms control, it’s “trust, but verify.”

In short, the new rule leaves a lot up to the discretion of local forest managers. That’s not necessarily bad: Forest supervisors can observe changes at the local level that would elude bureaucrats in D.C. “It’s hard at the regulation level to provide any one-size-fits-all standard,” says Martin Nie, associate professor of natural resource policy at the University of Montana. “I can think of some forest supervisors who’ll go to town with this thing in terms of meaningful standards and requirements.”

Local supervisors under pressure from politics or industry, however, could theoretically veer in a less constructive direction. “The pushback is always economics,” says Congressman Raúl Grijalva, D-Ariz., who has criticized the proposal for weakening wildlife protection. “But when you have habitat shrinking, species disappearing and wild places not being protected, your decision-making can’t be subjected to biased outside pressure. You have to have strong federal oversight to make sure what you do is based on facts and science.”

Timber and other industry interests have not yet commented on the rule, except to say they’re watching it closely. Meanwhile, the Forest Service will take public comments through May 16.

Francis thinks everyone should consider contributing. For Westerners, “the planning rule affects everything from where you hike to the quality of your drinking water.” After all, it’s your plane the agency is piloting, he says, “and you need to have some way of knowing whether it’s staying on course.”

The funny thing about this to me is that I think I agree with Peter, for opposite reasons. He sees the FS requiring conceptual ideas like resilience as questionable, because he doesn’t know that the concept means what he wants (protecting species). I don’t like requiring concepts in regulations because judges will ultimately decide anything fuzzy based, more than likely, on their own views.

In any conflictual writing exercise (say legislation, writing plans), fuzzy and vague seems good at first because everyone seems to get what they want. It’s when the poor implementers take it forward (and get litigated) we realize that we just postponed, and changed the arena of, the conflict.

Here’s a quote from Martin in the same article:

In short, the new rule leaves a lot up to the discretion of local forest managers. That’s not necessarily bad: Forest supervisors can observe changes at the local level that would elude bureaucrats in D.C. “It’s hard at the regulation level to provide any one-size-fits-all standard,” says Martin Nie, associate professor of natural resource policy at the University of Montana. “I can think of some forest supervisors who’ll go to town with this thing in terms of meaningful standards and requirements.”

But it’s not the supes we really have to worry about.. at least according to Congressman Grijalva..

Local supervisors under pressure from politics or industry, however, could theoretically veer in a less constructive direction. “The pushback is always economics,” says Congressman Raúl Grijalva, D-Ariz., who has criticized the proposal for weakening wildlife protection. “But when you have habitat shrinking, species disappearing and wild places not being protected, your decision-making can’t be subjected to biased outside pressure. You have to have strong federal oversight to make sure what you do is based on facts and science.”

I guess it’s politicians ;).