A test of the 2014 insect and disease categorical exclusion

The Center for Biological diversity is suing the Tahoe National Forest for its decision on the Sunny South timber sale. The sale is designed to “reduce the extent and risk of insect infestations, as well as to reduce the negative effects of those infestations on forest health and resilience.” Plaintiffs allege, “Six (California spotted) owl territories are slated to be logged …, all of which are important contributors to the overall owl population given the high degree of successful owl reproduction in these old forested areas.”

Section 603 of the amended Healthy Forests Restoration Act establishes a categorical exclusion for qualifying insect and disease projects in designated areas on National Forest System lands. An insect and disease project that may be categorically excluded under this authority is a project that is designed to reduce the risk or extent of, or increase the resilience to, insect or disease infestation in the areas.  The project must be located in an area designated pursuant to a Governor’s request for areas in their State that are experiencing, or at risk of, an insect or disease epidemic. The project must also meet other criteria, including these rather subjective ones:

  • The project was developed through a collaborative process that includes multiple interested persons representing diverse interests and is transparent and non-exclusive.
  • The best available scientific information must be considered to maintain or restore ecological integrity, including maintaining or restoring the structure, function, composition and connectivity.

We might find out a little more about what these things mean from this court.

There used to be a sort of rule of thumb that if a project looked controversial, the Forest Service wouldn’t pursue a categorical exclusion (in part because they may be difficult to defend in court). The new agency policy appears to be to thumb its nose.


8 thoughts on “A test of the 2014 insect and disease categorical exclusion”

  1. Dealing with the growing insect and disease issue and using the tools provided through a Categorical Exclusion are not thumbing ones nose, but doing what is needed for forest and watershed health as well as providing a measure of protection for the spotted owl and other species. The Tahoe NF as well and several other National Forests have and continue to lose spotted owl habitat due to wildfire and total lose of forests due to insect and disease. The Tahoe has lightly treated old growth stands and other viable stands to return overall health and historic conditions and have not destroyed the owl habitat. In addition, there are studies on private forest lands that have proven that forest management has not destroyed, but often increased owl populations. By doing nothing and not using the tools provided to the agency, our National Forests will continue to decline and species protection and habitat will continue to disappear due to unnatural wildfire and insect and disease epidemics. This specific project was done collaboratively and was transparent. Often those who differ, do not participate with the larger group of citizens, but stand off to the side and request a separate meeting of the Agency. In addition, the project does address restoring the historic forest structure, function, composition and connectivity. The Agency is not charged with backing down from doing the right thing just because there may be controversy, but to manage our public lands for all of society and species. To fear litigation from the Center for Biological Diversity is not the mission of the Forest Service and to continue with this transparent project is not thumbing ones nose at a tool that was provided by our political representatives.

    • Bill – well said

      This quote from you is well worth repeating: “there are studies on private forest lands that have proven that forest management has not destroyed, but often increased owl populations”

      Though my reference link no longer exists, it is my understanding that those intensively managed stands and their environs are the only place where the NSO is holding its own. It would seem to me, that they provide a heathier balance between foraging & nesting habitat. Foresters tried to tell those setting up the NSO recovery plan about the success in plantations but we’re ignored. The wildlife people instead focused entirely on nesting habitat in old growth & doomed the recovery plan to failure.

  2. My sense after watching CBD for two decades is that they (somehow) make money from litigation. If something is being logged, they will file a suit. In his 2001 series on “Environment, Inc.” Tom Knudson
    Sacramento Bee Staff Writer, said, “[T]oday [environmental] groups prosper while the land does not. Competition for money and members is keen. Litigation is a blood sport. Crisis, real or not, is a commodity. And slogans and sound bites masquerade as scientific fact.”

  3. Seems to me like this is a rule that’s well-intentioned but could be exploited, and having CBD around to litigate and keep USFS/industry on the straight-and-narrow is probably an useful thing.

  4. If a stand is no longer functioning as nesting habitat, due to massive mortality, there is precedent for designating the next best areas as part of the core habitat. Once that has happened, the former habitat should be salvaged responsibly, leaving a snag component in place, as well. Since there has been a ban on old growth harvesting, as well as clearcutting, it isn’t all that hard to move chunks of land, in and out of “protection”, regarding spotted owl habitat. The bark beetles probably prefer spotted owl habitat, over all stand types in the Sierra Nevada.

  5. The Tahoe got stung, back in the late 80’s, with its salvage program. I worked on the neighboring Eldorado, and our salvage plans skipped through before the eco-groups could react. They did, however, intervene on the Tahoe’s plans. When I worked on the Tahoe, in 96 and 97, we did a lot of salvage. When you combine blowdown, hazard tree and bark beetle salvage together, your volume is going to be impressive.

  6. Anyone interested in the use of CEs should look at the February 13, 2014 R5 Forester Letter Clarification on Categorical Exclusions. It is often assumed that impacts to T&E species necessarily trigger an EA or EIS-level analysis, but the USFS maintains that the standards for ESA impacts are different and distinct from the standards for NEPA impacts.

    The USFS has won and lost cases of this type before, usually based on the quantity and quality of their reasoning in the document in question. If they can adequately justify their decision in a CE and FONSI, than they don’t need to go through an EA.

  7. The standard for consultation under ESA is “may affect;” for formal consultation (BA/BO) it’s “likely to adversely affect.” The bar for “likely” has been interpreted to be a very low. So some form of consultation under ESA doesn’t require much in the way of effects.

    Under NEPA, for an EIS (or an EA to determine the need for an EIS), it is that effects “may be significant.” That is a higher bar than likely to occur. So it’s quite possible that a project with a CE could still require ESA consultation.

    On the other hand, the effects of a project on listed species are more likely to be significant than other kinds of effects because NEPA significance is based in part on the “context.” The context for listed species is that they are already at-risk. This brings in the other CE consideration of “extraordinary circumstances” which recognizes that higher risk situations may warrant a fuller analysis than a CE provides. (I don’t know whether this is a consideration in this particular statutory CE.)


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