USFS NEPA Study: Fast, Variable, Rarely Litigated, and Declining

The July edition of the Journal of Forestry will have a paper of interest here: “US Forest Service Implementation of the National Environmental Policy Act: Fast, Variable, Rarely Litigated, and Declining,” be Forrest Fleischman et al. I don’t have permission yet to post the full text (it’s open to SAF members), but here’s the abstract and Management and Policy Implications — grist for the discussion mill. The last sentence in the Implications is perhaps the root of many of the agencies challenges: “This may suggest that USFS no longer has the resources to conduct routine land-management activities.” But of course there’s much more to the story.

This paper draws on systematic data from the US Forest Service’s (USFS) Planning, Appeals and Litigation System to analyze how the agency conducts environmental impact assessments under the National Environmental Policy Act (NEPA). We find that only 1.9 percent of the 33,976 USFS decisions between 2005 and 2018 were processed as Environmental Impact Statements, the most rigorous and time-consuming level of analysis, whereas 82.3 percent of projects fit categorical exclusions. The median time to complete a NEPA analysis was 131 days. The number of new projects has declined dramatically in this period, with the USFS now initiating less than half as many projects per year as it did prior to 2010. We find substantial variation between USFS units in the number of projects completed and time to completion, with some units completing projects in half the time of others. These findings point toward avenues for improving the agency’s NEPA processes.

Management and Policy Implications

There has been much public debate on how the US Forest Service (USFS) can better fulfill its National Environmental Policy Act (NEPA) obligations, including currently proposed rule-making by the agency and the Council on Environmental Quality; however, this debate has not been informed by systematic data on the agency’s NEPA processes. In contrast to recently publicized concerns about indeterminable delays caused by NEPA, our research finds that the vast majority of NEPA projects are processed quickly using existing legal authorities (i.e., Categorical Exclusions and Environmental Assessments) and that the USFS processes environmental impact statements faster than any other agency with a significant NEPA workload. However, wide variations between management units within the agency suggest that lessons could be learned through more careful study of how individual units manage their NEPA workload more or less successfully, as well as through exchanges among managers to communicate best practices. Of much greater concern is the dramatic decline in the number of NEPA analyses conducted by the agency, a decline that has continued through three presidential administrations and is not clearly related to any change in NEPA policy. This may suggest that USFS no longer has the resources to conduct routine land-management activities.

14 thoughts on “USFS NEPA Study: Fast, Variable, Rarely Litigated, and Declining”

  1. Using PALS data revealed “wide variations between management units within the agency suggest that lessons could be learned through more careful study of how individual units manage their NEPA workload more or less successfully, as well as through exchanges among managers to communicate best practices.” We already do this. All the time. The variations between units have a lot to do with so many other things beyond who’s good at managing a workload. Resources (people, money), management environment (mostly wilderness or a million acres of plantations to tend to?), how many objectors to each decision, litigation risk (it’s not the same everywhere!), wildfire and other setbacks. I could go on. When the Forest Service WO began using “statistics” out of PALS to make decisions on where our NEPA procedures were falling short, these variables were not part their thinking and they’re not included in this paper’s analysis either.

    • I’m outside the agency so I can’t speak about what WO has done with PALS data, nor what NEPA folks inside the agency do to try to improve their processes and learn from each other. If you already do that, its great! I’d like to learn more about it. It is obvious that there are a huge number of variables that determine the length of time an individual project takes. For example, in addition to the ones you mention, there may be some offices that tend to cut corners, some offices that are perfectionists, etc. As the author of the paper in question, I tried to be really careful in not equating speed with success. Fast might mean sloppy. It might mean making the wrong decisions because you didn’t engage enough with stakeholders or gather the right scientific information. Including the variables you mentioned is not really possible in a large-scale quantitative assessment like the one we published. We know “litigation risk” varies but how would you measure it at a national level? I have thought alot about that, and I haven’t found an answer I can convince myself is credible. The obvious next step is qualitative research that examines a number of cases in depth, trying to understand why they were relatively successful or not, and how information on how to do things is shared. I’d love to learn more about what you do.

      • I would recommend looking at the *size* of veg management projects that have been approved over time in addition to the number of decisions. One would expect “time to completion” to be longer for complex, large-landscape projects that contain both restoration and development-oriented objectives. A metric like “days of analysis per project acre” may allow a more accurate assessment of the expediency of agency analyses.

        • Its a great idea but not possible for 2 reasons. First, the Agency does not collect metadata on project size. So to get project size we’d have to scroll through thousands of documents to find “acres treated.” Second, Not all project acres are equivalent. A typical large landscape-scale EIS might make a statement that the project “area” is 100,000 acres. But much of this is not treated. Just for the sake of example, let’s say that 25,000 acres is actually undergoing treatment. There are 1000 acres of commercial timber harvest, 2000 acres of precommercial thinning, 3000 acres of mechanical brush removal, and 19,000 acres of prescribed fire. Which one of these numbers do we use? Is an acre of commercial timber harvest equal to an acre of brush removal or an acre of prescribed fire? Another project is a mine. The proposed mine area is 100 acres, so the treatment area is 100 acres, but those 100 acres are going to be blasted apart by the mine, and the acid mine drainage might affect hundreds of miles of downstream waterways. Is the 100 acre mine equivalent to 100 acres of prescribed fire?
          When I realized this, I decided I was not going to read through thousands of NEPA documents to get a project size variable. I don’t know what it would mean. I think we can all recognize that some projects are inherently larger than others, but I have not been able to come up with a defensible way to quantify “size.”

          • Forrest, that’s why I think I would stick to one kind of project (e.g. fuels treatment). Because if you’re trying to answer the question “does the production of NEPA docs present an impediment to fuels projects/ or “increasing the pace and scale of restoration?” you can drill down in a way that you can’t when you have mines, dams, land exchanges, cell phone towers, timber sales, grazing permits, summer camps, and so on. There’s also the case that decisions like o&g and coal permitting, and dams, for example, require interacting with other agencies (e.g, BLM and FERC) IMHO, if you wanted to focus on the question of FS and NEPA, you would want to remove extraneous variables.

            We wanted to include the acreage figures in PALs, and the only way I know is to look at each NEPA decision document. This is perhaps one of those “it sure would be nice to have this info more readily accessible’ kinds of things. Commercial acres/ mechanical but non-commercial/PB.

            But I think the absolute key thing is framing the question in the first place.
            Your previous summary said ” In contrast to recently publicized concerns about indeterminable delays caused by NEPA, our research finds that the vast majority of NEPA projects are processed quickly using existing legal authorities.” I think I’d go back and interview the people with the concerns (recently publicized). I would agree with the finding that most simple CE projects that aren’t controversial go along nicely.

            Again, I’d bet cooperators, practitioners and others might have different ideas of what the problem is. And some of them think that it litigation or bullet-proofing for litigation, rather than NEPA itself. But this is a great discussion to have.

            • I think direct analysis of PALS data is extremely useful and seems quite novel, but failure to control for the complexity and scope of an analysis limits the utility of these findings. I don’t have any great suggestions on how to do this but I do agree that limiting the sample to vegetation management projects seems like the right place to start.

  2. The situation with special use permits adds evidence that the problem is resources not regulations (and this has been going on since before I retired).

    “We have a backlog of special use permits that are just expired permits up for renewal somewhere in the 5,000-to-10,000 range,” Deputy Chief French said. “We’re hiring strike teams just to process those permits.

    But I have to assume that most of these are eligible for categorical exclusions. In particular, there are several categories that address amending or updating existing permits. These are for new ones:
    §220.6(d)(8): “Approval, modification, or continuation of minor, short-term (1 year or less) special uses of NFS lands.” (project or case file and decision memo not required)
    §220.6(e)(3): “Approval, modification, or continuation of minor special uses of NFS lands that require less than five contiguous acres of land.” (project or case file and decision memo required)

    This feels more like a management problem, so maybe having the boss put you on the spot is the right approach.

    On the other hand, the push for broadband facilities on public lands sounds like an expanded workload, with possibly significant implications for the environment (depending on the location) and probably not warranting categorical exclusions. But the focus seems to be appropriately on changing how this program is administered.

    … said Deputy Chief of the Forest Service Chris French. “Specifically, we’ve been working on an initiative that aligns our processes for folks to apply for permits that’s simpler and more consistent with other agencies, so companies have a more stable environment to work in.”

  3. Forrest, Here’s my 2 cents..

    Forrest.. maybe we (current and former practitioners) can help you dive down into some hypotheses… There are at least three sources who know quite a bit that I can think of. I think being open to a variety of disciplinary approaches (management, anthropology, and so on) might also help.

    1. Historical NEPA Improvement Efforts. I was the NEPA WO lead during Process Predicament, twenty years ago. The Director of EMC then questioned “how do we know NEPA “takes too long and costs too much ” if we don’t know how long it takes and how much it costs?” So we traveled down the quantification path and ended up with him saying “we manage the production of NEPA documents like a cobbler shop (artisan-ly) instead of a Nike factory.” This ended up with the idea of contracting more, which was culturally a dead end. Here I think anthropology may have helped more than a focus on metrics and “efficiency.”

    2. Other Experts Who Have Been Talking About It -The EADM work.. there’s a lot of management stuff there about FS employees going off on details, fires, new line officers who don’t agree with previous direction, and so on. Another thing about the EADM work (at least in Colorado) is the participation of contract NEPA folks, who have loads of experience plus their own angle on how the FS could do better. Shipley hires a bunch of former feds who have proven to be successful at NEPA and can perhaps be more open now that they are retired. Then there’s folks from collaborative groups and interest groups on each side (who also showed up at the EADM meetings but perhaps an interview with them could go deeper).

    3. Don’t forget to interview people currently doing the work (like Beth above)and ask them about what group 2 above says the problems are…At the EADM meetings there was no back and forth on this (for good reason) but that would be very enlightening.

    4. I think that if you started with this approach, you could get a bunch of hypotheses. But you are still not likely to be able to say “NEPA is a problem” or “NEPA is not a problem.” The history of regulatory and Congressional CE’s is an ongoing “improving how NEPA is done” effort- when an admin or Congress defines a certain kind of project NEPA as a problem, they figure out ways to make it easier, which then go to court, and if they succeed they can help. My point being that for some kinds of projects, the situation changes through time.
    5. Given all the above, I would argue that perhaps you should focus on fuels treatment/timber projects, as NEPA for renewing a scout camp is a different kettle of fish. We’ve spent at least 30 years discussing what sounds like the same thing so and fuel treatment projects aren’t going away… so….
    6. There are many interesting things to explore and many good sources of knowledge. If I or TSW can help in any way, please let us know.

    Thanks for responding, Forrest!

    • Thanks for this comment Sharon. I’m in the beginning stages of exploring this topic, in the sense that we’re still going full bore on our project examining the use of science. Right now I’m looking for funding to work on the NEPA issues. When I do have the time/funds I will reach out to you here specifically to understand the history of NEPA improvement efforts, including EADM. For and outsider to the agency (i.e. me) its difficult to trace what has happened, what has been tried, and what has been documented (since much of the interesting stuff is not published outside of internal guidance, whitepapers, etc.)

      • IMHO too bad there isn’t money to study NEPA just when your work gets deep enough to go beyond scratching the surface. Who’s funding the “use of science” project?


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