USFS’s “Bold” NEPA Implementation Rule Changes

June 12 press release:

USDA Proposes Bold Moves to Improve Forest, Grassland Management

The U.S. Department of Agriculture’s (USDA) Forest Service (USFS) released proposed changes to modernize how the agency complies with the National Environmental Policy Act (NEPA). The proposed updates would not only give the Forest Service the tools and flexibility to manage the land and tackle critical challenges like wildfire, insects, and disease but also improve service to the American people. Revising the rules will improve forest conditions and make it simpler for people to use and enjoy their national forests and grasslands at lower cost to the taxpayer. The revised rules will also make it easier to maintain and repair the infrastructure people need to use and enjoy their public lands—the roads, trails, campgrounds, and other facilities.

While these proposed changes will save time and resources, they are ultimately intended to better protect people, communities and forests from catastrophic wildfire and ensure a high level of engagement with people and communities when doing related work and associated environmental analyses.

From the FAQ:

The CEs covered in the proposed rule fall into three general categories: (1) those covering restoration activities, (2) those covering infrastructure activities, and (3) those covering special uses. Some examples of the types of work that could be approved, based on hundreds of analyzed environmental assessments, are listed below.

Restoration projects— Removing trees affected by insects or disease through commercial timber harvest in combination with stream restoration in a 4,200-acre area to improve forest health and watershed conditions is one example of a restoration project. Restoration projects could also include reducing overgrown areas around a community and improving wildlife habitat through mechanical thinning and use of prescribed burning. 

18 thoughts on “USFS’s “Bold” NEPA Implementation Rule Changes”

  1. There are some webinars if folks want to find out more…

    “On June 13, 2019 the USDA Forest Service published a proposed rule to update its National Environmental Policy Act regulations (36 CFR 220). The Forest Service is hosting two information-sharing webinars so that you can learn about the changes in the proposed rule. The same content will be presented on each webinar; they also will be recorded and posted online for later viewing.

    Webinar #1
    Date: June 25, 2019 Time: 3:30-5:00pm (EDT)
    Audio: 1-877-369-5243 or 1-617-668-3633
    Access Code: 0524699##
    Adobe Connect URL:

    Webinar #2
    Date: July 12, 2019 Time: 3:30-5:00pm (EDT)
    Audio: 1-877-369-5243 or 1-617-668-3633
    Access Code: 0849770##
    Adobe Connect URL:

    Maybe we can sit in on the webinar and start discussing afterwards?

  2. That’s really good news, if the Forest Service manages to carry out what it proposes to do—

    “The updates would create a new suite of ‘categorical exclusions,’ a classification under the NEPA excluding certain routine activities from more extensive, time-consuming analysis under an environmental assessment or environmental impact statement. The proposed categorical exclusions would be for … roads and trails management ….”

    Maybe it’s a prelude to or would be accompanied by abolishing the Forest Service’s laughable policy, not at all mandated by the Wilderness Act, which requires that only tools from the time of Hammurabi and Ashurbanipal be used to maintain Wilderness trails.

    Why is this needed? Check out this video, which is both funny and revealing:

    It should also mean that frivolous NEPA lawsuits that would otherwise arise if Congress overturns the agencies’ bans on mountain biking (see newly introduced S.1695) and some national forests start allowing mountain biking would be quickly tossed out by the courts.

    • Thank you for this. I thought the plans were too vague when I read them, and watched various videos about them. What else looks suspicious is the “you can cut timber if you remove a culvert” deal. Are we really that desperate for more timber? Guessing this is what they meant by “cost saving” measures because if you can pay your crew partly in timber value…

      As far as trail clearing, to me, deadfalls are part of the fun of being out there. The problems aren’t all solved for you. Part of the point of being there is the danger. It taught me respect for circumstances as a kid. The fact that you can get hurt if you’re not smart is part of the effect of “wilderness” on people. I’d rather have a trail that’s hard to walk than the sound of chainsaws. If I’m that far out, I’ve taken time off work, and one day of noise, or a few days is destructive. I’d rather clamber over deadfalls.

      Prefer horses to mountain bikes because there are two brains, not one. Not sure why people think bikes are somehow safer. You’re not likely to bike up a trail, but when you come down, gravity will be forever trying to pull you into danger. Hikers coming the other way might not hear you until it’s too late. Horses will sense people ahead and they don’t move this fast:

      Though honestly I can count on the fingers of one hand the times I’ve seen horses on the trail I was on.

      I definitely think scientists should continue to be involved in decisions. To reduce their input isn’t common sense. Why do we bother to train scientists if we don’t use them? I can see the wisdom of not continually using EIS for every trail clearing, but I doubt if that’s the problem they’re trying to solve anyway.

      • “What else looks suspicious is the “you can cut timber if you remove a culvert” deal. Are we really that desperate for more timber?”

        What if we’re desperate for a new culvert but there is no funding to replace it? If an needed and justifiable thinning can provide the funding, then that’s a win-win.

      • It is always fascinating when people, such as Angelica, share videos or photos of mountain bikers enjoying ski lift assisted biking in a ski resort bike park to justify prohibiting mountain biking in Wilderness or anywhere else they’d prefer to never see a bicyclist.

        This is much more what the experience of take a bike into the backcountry looks and feels like:


  3. I like the idea of ‘rubber-stamping’ projects like salvage, thinning and roadside hazard trees. Of course, there must be limitations and oversight, to make Agencies ‘Walk the Talk’. Full and open transparency is also a must.

    Any “timber sale” that is more controversial or intensive should not be included under a CE, and should still have to go through full NEPA, IMHO. I’m sure that some units will test those limits, insisting that they have the authority use their discretion. The limits should be designed to reduce or eliminate the discretion part, when it comes to CE’s. Some people don’t want to hear that but, I’d like to see the courts and the public siding with the Forest Service, for a while.

  4. You have to ask why, if a timber project is controversial, the Forest Service would want to limit public involvement. And if the public involvement identifies potential environmental effects, why they would not want to analyze them. (And last I heard, funding/staffing problems are not a justification for creating or using a CE.)

    • I hear you, Jon, but it depends on why a timber project is controversial. The Crystal Clear timber sale on the Mt. Hood National Forest, for example, is controversial because 3 environmental groups challenged it in court. Thinning, fuels reduction, habitat restoration, no clearcuts, no NSOs present, etc.). This doesn’t seem to be controversial among the folks who live near the project area, including in a watershed that is important to residents, farmers, and ranchers, and including the people of the Warm Springs Indian Reservation, who are actively managing their forests without being sued.

      Who decides what “controversial” means and at what level a change in action is warranted?

          • I know that. Thanks. That’s why I thought we should link to their page about the timber sale, since Steve brought them and the lawsuit up. If you want to link to the judge’s decision, great. Please share that link. It may be at the link at BARK’s site, I’m honestly not sure.

            • According to BARK, there is no written opinion. In any case, this case is not controversial “because 3 environmental groups challenged it in court.” It is controversial to them because of the effects they perceive it would have. From their website, that is primarily about critical habitat for spotted owls, which is something there is a lot of public controversy about, and scientific controversy about the effects on it of vegetation management. That normally should have the Forest Service thinking about an EA. On the other hand, it sounds like BARK was able to participate in and influence the final decision here. I gather that is the part of the process the Forest Service would like to cut back on.

              • There is actually a written opinion:

                The decision was based on an EA, and one of the issues was “controversy,” as defined by NEPA to be one of the reasons an EIS would be required. My point above was different – that if a project attracts enough attention, the FS should not use a CE or avoid public input.

                For the record, the court held: “Even considering the locale to be the area that will be thinned, which is itself only one percent of the MHNF, any controversy regarding thinning to reduce the risk of fire is limited to a small portion of the locale.” (So, the larger you define your project area, the less controversial any affected area would be; kind of a strange result of the “context” criterion in NEPA.)

                Scale was also implicated in a second question about controversy. The court held: “The NSO Recovery Plan analyzes effects at the subunit and unit scales, which I find to be appropriate contexts in which to evaluate whether the CCR Project is highly controversial. On either scale, the effect is so small that there are no substantial questions as to whether the Project may cause significant degradation of the NSO or its habitat.”

                So what about cumulative effects? The court also upheld that analysis by the Forest Service, and rejected plaintiff’s argument that the subunit scale should have been used. The court does not discuss the apparent inconsistency between these holdings.

              • The district court ruled in favor of the USFS on June 18:

                “I find that the USFS did not violate NEPA, the NFMA, or
                the TMR in approving the CCR Project. Therefore, the USFS’s Motion for Summary Judgment
                [29] and High Cascade’s Motion for Summary Judgment [30] are GRANTED. Bark’s Motion
                for Summary Judgment [18] is DENIED.”

  5. What I don’t understand is what is different this time about any new CE proposals. It seems like every time the FS revises the regs and has new CEs those are rapidly lost when the FS gets sued. A lot of it is because someone takes a risk with a CE that backfires…Is the FS really ready to handle more CEs? Has anything been learned from these past snafus? And why anyone would propose to eliminate scoping is beyond me. I understand what they are trying to do, but you have never been required to do the same amount of scoping for each and every project. And it seems silly too to base the decision to eliminate scoping on “limited resources”. Decision makers have always had the ability to limit (but not eliminate) scoping based on the particulars of the project.

    • Anon: When I worked in NEPA in DC, we had two major CE’s we worked on, what was known as “Limited Timber Harvest” and one known as “the HFI CE’s for fuels reduction”(these were joint with Interior). Even though the way we worked on both was approximately the same, and you would think the record would have been about the same, one won in court and one lost (due to apparently random legal factors). But the beat goes on… the same ideas that were in the “lost in court” CE’s were later put into statutory CE’s. The executive, legislative and judiciary sausage is being made.

      As to not requiring scoping, I would think that the reason would be to not require it in some form when no one really cares about a project. Like so many things, it would be interesting to try it and see how well it works and if it makes a difference (if anyone actually doesn’t scope, and when and why).

      • “I would think that the reason would be to not require it in some form when no one really cares about a project.” That was pretty much my point. But there are enough lawsuits on use of CEs that we know that’s not the policy. Of course, how do you know if anyone cares without asking them (which is what scoping does)?


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