K.I.S.S. in Rule Form, Part 2

Now for some nitty-gritty. Here’s language that fleshes out the first task of plan revision: “(1) Decide the vegetation management and timber harvest program, including the proportion of probable methods of tree removal.”

Most of the proposed rule is taken verbatim from the NFMA itself. The biggest change from the status quo is that vegetation management decisions would be made in the forest plan revision and not revisited in a second project-level decision and associated NEPA review. The proposed rule includes a strong incentive for doing so — it eliminates the site-specific notice, comment and appeals process for vegetation management/timber harvest activities. That’s because the forest plan revision would now make these site-specific decisions.

The vegetation management and timber harvest program component of forest plans would be revised more frequently (every 1 to 3 years) because the program makes site-specific decisions. But with only one NEPA document for each plan revision, this proposal would reduce by 90% (my guesstimate) the Forest Service’s vegetation-related NEPA document production.

36 CFR 219.2: Vegetation Management and Timber Harvest Program.

(a) The vegetation management and timber harvest program (“program”) shall include all 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.

9 thoughts on “K.I.S.S. in Rule Form, Part 2”

  1. I think I’m starting to get it.. it wouldn’t be intended to be a comprehensive plan, it would be a vegetation management three year plan?

    I guess a downside would be that the whole thing could get enjoined and no one’s fuel treatment projects could move forward.

  2. That’s right — the plan would do only what NFMA requires of it; nothing more, nothing less.

    Your downside would only be realized if the Forest Service broke the law. I prefer assuming that the Forest Service is a law-abiding agency.

  3. A key point here is what Andy said in an earlier post. We would need to redefine what is commonly thought of as a “unit of the National Forest System.” Right now, that means a proclaimed Forest or Grassland. It will be a challenge to get the necessary inventory for a forestwide 1 to 3 year veg management plan, and to collect all the cumulative effect information from past and reasonably forseeable future activities beyond the three years, at the level of detail necessary to meet the NFMA standards. Perhaps this could be a “rolling” cumulative effects analysis that is updated annually? This will need some field testing.

  4. A forest plan revision should be less burdensome than an original plan promulgation. In a legal sense, forest plans are informal agency rules. When an agency revises its rules, it doesn’t start over from the beginning. Instead, a sentence here or a word there is tinkered with to adjust the rules to today’s reality and, if the agency is naive, the “foreseeable future” (an oxymoron).

    So, too, the NEPA document that accompanies a forest plan revision builds upon, i.e., tiers, to the forest plans and other NEPA documents that preceded it. This greatly narrows the scope of the plan revision NEPA document to examining those effects of the vegetation management program not previously disclosed in an EA or EIS.

    In sum, the plan revision exercise hinges on the “Assessment of New Information and Changed Circumstances” to which I will devote Part 3 of the K.I.S.S. Rules.

  5. I talked with some NEPA folks and they think this can work. However, large-scale veg management EISs take at least two years to prepare. I think the key idea here is essentially to prepare a supplemental EIS on a 1 to 3 year basis (what I called a “rolling” cumulative effects analysis – today’s project is tomorrow’s past project, etc.) This needs to be carefully tracked in a GIS.

    How would appeals or objections fit into this? I guess you could drop proposed units and add them to next year’s supplement (or increment) if the objection is resolved.

    At some point, it really wouldn’t be a supplement any more, since there will be some scope creep from the original plan. This is what we’ve been talking about in our adaptive management discussions – when have thresholds been reached? If they are reached, then I assume this would be a new EIS instead of a supplement (or incremental EIS).

  6. Andy- we just spent time in the court room last week about the 2001 Rule. It has been in court more or less since 2001. Based on your argument, if it had been promulgated legally, we wouldn’t have to worry about spending nine years in court.

    So if we agree that litigation can occur even if environmental documents are excellent and we are law abiding, then analyzing a three year program when litigation and appeals can take nine years is a non-starter.

    We could still have individual projects and use a rolling cumulative effects analysis. But perhaps there is some advantage to be gained from letting the non controversial ones be analyzed and dealt with as a clump.

  7. Sharon – couldn’t we just drop controversial units during the objection process? That’s basically how HFRA objections work. They could be postponed to the next cycle.

    I’m also wondering how alternatives would work. I assume that the suitable timber base wouldn’t change much in an increment, so we’re basically talking about proposing specific vegetation treatments. I assume units would be batched up into a preferred alternative. Perhaps we could use the “options” approach in the new Forest Service NEPA regs to show alternatives considered and dropped as the projects are batched up. Besides the no action alternative, I don’t know how other alternatives would have to be developed, because the permutations of all the projects would get hard to track.

  8. John- I think this would be good for an experimental approach. It could be in situations like Ray Vaughan describes, there is a basis of agreement and once people reach agreement, there would only be a few projects that could easily be postponed.
    However, I could also imagine a situation where some people originally only object to a few, but ratchet up their requirements that more and more units become controversial. It might be interesting to test in real life- and whether it would really be less work at the end of a, say, five-year period.


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