Let’s Discuss: The New Forest Service NEPA Regulations

Ya gotta love the Washington Post..or not. Here’s their story.

In a last minute change before leaving office, the Trump administration finalized a rule Wednesday that will allow the U.S. Forest Service to log and otherwise manage 2,800 acres of forest in the West without an environmental review.

I sometimes wonder if the people quoted in these stories even actually read the regulations.. of course, Sam Evans and Bill Imbergamo did, but ..

“Categorical exclusions are a “permission slip” for loggers to cut trees and developers to build roads without informing local communities of the work, Flint said. Forests are a source of drinking water for more than 150 million people..”

But… scoping requires informing local communities.. and there’s a requirement for collaboration, which I think would be difficult without informing people.. oh well.

We were working on comments on the proposal in August of 2019, so I also don’t think it was really “last minute.” I don’t know what held them up. Of course the new CE doesn’t just apply to the West, and there is environmental review in a CE.. it has to be documented that it fits the CE which, of course, requires some environmental review. I’ve seen 30 pages in Farm Bill CE documentation.

As a person who spent time discussing and preparing a joint comment letter, I was hoping not to have to read it again and figure out which changes fell in line with our comments. Fortunately, the Forest Service came out with this handy table that shows the old reg, the proposed reg and the final reg. What’s great about the table is that you can clearly see what has changed. Changes to scoping, for example, which had raised much concern, was left alone. Here’s a link to all the NEPA regs information.

But let’s focus on the changes from the current regulations:

Clarifies required elements from proposed rule. Clarifies that DNAs require inclusion on the SOPA, are subject to scoping, administrative review processes (including public notice and comment
periods) that were applicable to the prior decision, and include issuance of a new decision document.

RESTORATION CE Allows 2,800 acres of activities (which may include commercial/noncommercial timber harvest). Primary purpose of all activities must be achievement of restoration objectives.
Salvage harvest is not allowed under this category. Requires project development via a collaborative process.

ROADS CE Split into 2 CEs: Road management activities on up to 8 miles of NFS roads. Construction and realignment of up to 2 miles of NFS roads.

SPECIAL USE AUTHORIZATIONS CE: Retains the combined CE from proposed rule with minor modification. Expanded 5-acre CE to 20 acres and updates the list of examples.

RECREATION SITES AND ADMINISTRATIVE SITES: N/A Allowed construction, reconstruction, decommissioning, relocation, or disposal of buildings, infrastructure, or other improvements at recreation sites. Parallel CE for administrative sites

If you want more detail and don’t quite want to read the reg itself, here’s an analysis on JDSupra that talks in more detail about the CE’s, so you can see the ones you might be interested in and read that part of the reg.

It seems like the FS has stepped way back from the original proposal, based on public comment.

What I was thinking about the restoration CE is that we already have the Farm Bill CE with up to 3K acres, with restrictions like insect and disease and WUI or condition class. It would be interesting to see a side-by-side of the Farm Bill CE and this new one. The challenge would seem to be to be able to prove in court that “activities litigators don’t like” are really “restoration.”

Note that there’s an informational webinar listed on the home page.

Please post other analyses below.

10 thoughts on “Let’s Discuss: The New Forest Service NEPA Regulations”

  1. One thing I’ve been trying to figure out with these, there is a new CE that allows for decommissioning of both non-system AND SYSTEM Forest Service roads. Before it only allowed decommissioning of non-system roads. There’s a clarifying blurb in the supporting statement saying CEs don’t make travel management decisions and don’t decide public access, which says this:

    “Prior to use of the CEs defined in the rule, the identification of an NFS road or trail as unneeded
    and eligible for decommissioning or of a road needing to be constructed would occur through the
    travel analysis and travel management decision processes. The CEs do not make access
    decisions; access decisions for NFS roads and trails are made through the travel management
    process. The CEs do not involve decisions to add roads to the forest transportation system.
    Rather, once the Agency has determined that a road needs to be constructed through travel
    management, a CE could be used to comply with NEPA to support the decision to authorize the
    actual road construction.”

    This makes it sound like decommissioning an open system road would still require a travel management EA or EIS. But then what’s the point of having a CE for decommissioning system roads? If there’s already been a travel management decision to decommission the road, it would no longer be a system road. So what does this change to the CE actually do? On the other hand, if they can simply decommission (ie. obliterate) a system road with a CE, then that seemingly negates the travel management rule, since it would no longer be a system road open to the public when they are done with that.

    Can anyone shed some light on this? Perhaps I am getting confused by the dual use of the word “decommission?” In CO, the Forest Service uses that word both for removing a route from the National Forest road system, and for the physical obliteration of the route from the ground. The documentation seems to say this CE only applies to physical obliteration, but if they can obliterate system routes with a CE, I don’t see how that wouldn’t also include the decision to remove it as a system road as well.

    • Here is something from the Response to Comments.. does this help? I guess the travel management rule identifies things that need to be done but doesn’t do the site-specific NEPA. (???)

      “Proposed actions covered by this CE would be developed in compliance with the travel analysis process and the travel management rule. The Agency uses travel analysis to identify the minimum road system, including unneeded NFS roads and NFS trails. Travel analysis is a dynamic, interdisciplinary, science-based process that examines ecological, social, cultural, and economic concerns. Information from the travel analysis process is used to inform future travel management decisions at the project level. In particular, travel management decisions identify whether a route needs to be added or removed, if an NFS trail or NFS road needs to be constructed, or if a route needs to be decommissioned.

      Prior to determining if an NFS road or NFS trail could be decommissioned using this CE, the NFS road or NFS trail would need to be identified as unneeded and eligible for decommissioning through the travel analysis and travel management processes. Appropriate compliance with the requirements of the National Historic Preservation Act is independent of compliance with NEPA, and not dependent on whether a CE, EA, or EIS is prepared for the latter.

      This CE will not be used to make access decisions about which roads and trails are to be designated open for public use, or which will be closed from public use. This CE will allow the Forest Service to restore, rehabilitate, or stabilize lands more efficiently where public access is not currently permitted, e.g., for roads and trails that are already closed. This approach is consistent with the initial development and establishment of this CE (see 78 FR 56157).”

  2. For starters, the FS has bet the farm on “2800 acres of restoration” — about 4 sq miles, with possibility of up to 2 miles of rd constr. Question #1: 2800 acre threshold must be based on some non-arbitrary criteria (as I recall, FS did some kind of analysis to get here. Is the supporting analysis credible?) Society for Ecological Restoration has established criteria for what qualifies as “restoration” and I doubt FS uses their int’l stds. Why not? At least, why not thoroughly discuss why not? Mandatory collaboration is great, but FS often selects “collaborators” and there has been friction about who’s in or out. I don’t the term “activities litigators” is appropriate to cast a net over parties that genuinely care about FS actions, but I agree that interpreting restoration will be key to future legal battles. My hunch is that the FS will consider this new reg a VERY BIG barn door. And BTW, what will incoming D admin do with this, which I’m sure they will consider a poison pill just like Tongass Roadless exclusion?

  3. Jim, here’s a link to the analysis.
    As a veteran of CE production, I can say that whether the analyses are credible usually depends what “side” you are on. But they are standard ways of analyzing for CE’s.

    Here’s the response to comments re restoration:
    ” Following the public comment period, the Forest Service convened a group of Agency scientists to review the body of literature submitted in public comments specific to the proposed restoration CE. This review, combined with input from other Agency subject matter experts in the watershed, wildlife, and forest management program areas, resulted in changes to the restoration CE in the final rule.

    In the final rule, the Agency has narrowed the scope of the category of permissible activities. The final rule requires all activities conducted under the CE have a primary purpose of meeting restoration objectives or increasing forest and grassland resilience. “Primary purpose” is a well understood operational term both within the Agency and by the public. This adjustment is responsive to concerns that the category focus on outcomes, as well as concerns regarding the use of certain tools that may be used to achieve restoration and resilience goals.

    The primary purpose requirement is further amplified in paragraph (ii)(B), which limits qualifying thinning and harvesting activities to those designed to achieve ecological restoration or resilience objectives. Permissible projects may generate secondary or ancillary multiple use benefits other than restoration and resilience. Such is the nature of multiple use management. However, restoration and resilience must be the project’s primary objective. Because the final rule adopts a primary purpose requirement, the final rule removes the provision that would have required commercial or non-commercial timber harvest activities to be carried out in combination with at least one additional restoration activity.

    The Agency will rely on its standard definition of restoration in applying the category. (Restoration is “the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed. Ecological restoration focuses on reestablishing the composition, structure, pattern, and ecological processes necessary to facilitate terrestrial and aquatic ecosystems sustainability, resilience, and health under current and future conditions. Functional restoration focuses on the underlying processes that may be degraded, regardless of the structural condition of the ecosystem.” (FSH 1909.12 and 36 CFR 219.19)).

    The final rule clarifies the list of activities to meet restoration and resilience objectives at paragraph (i). These include stream restoration, aquatic organism passage rehabilitation, or erosion control; invasive species control and reestablishment of native species; prescribed burning; reforestation; road and/or trail decommissioning (system and non-system); pruning; vegetation thinning; and timber harvesting. The restoration CE allows timber harvest because timber harvest is a general term that encompasses removal of trees for a variety of purposes. The restoration CE requires harvest activities to be designed to achieve ecological restoration objectives. The CE will not be available for projects designed primarily to achieve economic returns. The Start Printed Page 73628commercial sale of timber harvested via use of the CE is permissible, but as discussed above, only where commercial value is a secondary or ancillary benefit to the primary restoration activity.

    Similarly, the Agency has added a limitation to the vegetation thinning and timber harvesting activities provision disallowing salvage harvesting under the restoration and resilience CE. The Agency defines salvage harvest as the removal of dead trees or damaged or dying trees due to injurious agents other than competition, to recover value that would otherwise be lost (FSM 2470). The effects of salvage harvest and its relation to restoration and resilience depend on a variety of factors. The exclusion of salvage harvest from the restoration CE does not mean that salvage harvest cannot be used to achieve restoration or resilience objectives in other contexts or under other categorical exclusions (see, for example, the existing salvage harvest CE at § 220.6(e)(13)). Nor does it imply that the effects of salvage harvest are significant under NEPA.”

    I definitely wouldn’t call this a “poison pill”. Also you have friends of the new Admin (Outdoor Recreation folks) who wanted the special uses CE’s..

    • It looks like the definition of “restoration” they use is the one in the Planning Rule. On the other hand, they manage to not use the key planning term “ecological integrity,” nor refer to forest plan “ecological restoration objectives” as prerequisites for qualifying projects, substituting the more subjective and open-ended “resilience” (which I don’t believe is defined). Typical of the FS tendency to marginalize the relevance of forest plans to the real world.

  4. I think they should of allowed salvage logging. To me it only makes sense to try and capture some economic value if possible from these logs during restoration activities. It is unfortunate that timber harvesting is view by many as a detrimental action on the forest. Removal of a reasonable amount of marketable timber when appropriate only makes sense. To limit off hand any salvage is wasteful.

    • I’m sure that they specifically ruled out salvage logging, as it is more complicated than a thinning project. In the Sierra Nevada, we have ‘sensitive species’ which prefer burned areas. The USFS is mandated to accommodate their minimum needs, and they have, to a great extent, winning in Appeals Court against Hanson and his cohorts. Hanson and others have changed how salvage logging happens. Helicopter logging seems to have become de-emphasized. Only concentrated timber, on tractor ground, gets included. Chasing down scattered ‘turns’ across a vast scorched landscape seems a thing of the past. On the Rim Fire, only about 16,000 acres of timber were salvaged, and the rest was in 45 year old plantations. At least one of those projects didn’t sell.

      One avenue could be consensus on policies, in order to speed up the harvest of small diameter sawlog salvage. I do think both sides can agree that this one idea is a good one. Create some sort of basic salvage ‘template’, which, if a project meets the agreed-upon ‘template’, it can accelerate through the system and be implemented without fear of litigation. Not a CE but, a gate that needs a pass-key. (Of course, some in the USFS don’t want to change the policies and documentation they have worked on for decades, winning salvage cases in the Ninth Circuit Court.)

  5. The more things change, the more they stay the same…. we got an email from the RO yesterday saying use of the new CEs would require RF approval, which is their way of saying “don’t use them”.

    Only “interim” direction, I guess until the new admin can change them.

    • I’ve always found FS folks to be conservative about the use of new CE’s or other authorities. That’s why “the sky is falling” narratives don’t seem realistic to me.


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