In this post, we talked about the FS reducing public involvement with the new regulations. But then as we explored the actual current NEPA regs in this post, we found out that removing the scoping requirement appears to mean that the change to the regs goes from
(e)Scoping (40 CFR 1501.7).
“(1) Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS (§ 220.6).
(2) Scoping shall be carried out in accordance with the requirements of 40 CFR 1501.7. Because the nature and complexity of a proposed action determine the scope and intensity of analysis, no single scoping technique is required or prescribed.
(3) The SOPA shall not to be used as the sole scoping mechanism for a proposed action.”
I’ll call the old regs, notification = SOPA plus one.
(d) Scoping and public notice. Minimum requirements for scoping and public notice are listed below, except where specified by applicable statutes or regulations (for example, 36 CFR part
218). Additional public involvement is at the discretion of the local responsible official.
(1) The Forest Service will publish to the Schedule of Proposed Actions (SOPA) all proposed actions that will be documented with a decision memo, environmental assessment, or environmental impact statement. The local responsible official shall ensure the SOPA is updated and notify the public of the availability of the SOPA.
(2) Scoping is required for all Forest Service environmental impact statements (40 CFR 1501.7)
The new regs are Notification=SOPA
This doesn’t actually answer any questions about changes to “public involvement”. A minimalist might still not do enough notification under the previous reg (SOPA plus one) if they pick the a suboptimal “plus one,” say, a newspaper people don’t read, or a homeowner’s association Facebook page.
Now if changing projects that otherwise would be EA’s to CE’s gets rid of the notice, comment and appeal requirements for EA’s and that’s the problem, that’s indeed a different kettle of fish. But that is only relevant to the new categories.
As Sam Evans says in his op-ed “Under current law, new roads and all but the smallest and least consequential timber sales require, at a minimum, advance public notice and the opportunity for the public to comment and suggest improvements.” He seems to be saying that categories 12, 13 and 14 are OK (well, they were also litigated at the time), but 4200 is a bridge too far. The legislative CE’s require collaboration, and the case law for what that means is being established.
I would argue that if that is the concern, write in and say “I think that new categories 24, 26 (and others) should have required public notice (SOPA plus one as old regs), plus a minimum 30 day comment period on a proposed action defined in enough detail for reasonable public comment.” (I’m sure there are more appropriate legal terms).
Next post: Other comments we might agree on.