Another detailed story from Jack Igelman of Carolina Public Press on the litigation against the new Forest Service NEPA Regulations. I’d like to discuss the NEPA attitude question that Sam Evans brought up in post 2 on this. This one will just focus on “how different is the new CE from current legislative CE’s?” and “what do we know about how the Forest Service has used those?”
We had an interesting discussion about the fact that there are existing legislative CE’s that already allow more acres than the Resilience CE. Those legislative CE’s require both scoping (as do all the relevant CEs), as well as a collaborative process.
Here’s what the new Restoration CE requires in addition to scoping:
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
It turns out that parts of the North Carolina forests are allowed to use CEs 603 and 605 due to the HFRA mapping. In fact, they have done so.
As explained by Sam Evans in the story:
In fact, the Forest Service used categorical exclusions for North Carolina timber projects before the rule change, including the 2017 Crawley Branch Southern Yellow Pine Restoration Project in the Grandfather Ranger District in Caldwell County.
The purpose of the project was to reduce the risk of Southern pine beetle infestation, and, using a categorical exclusion created to expedite threats caused by invasive pests and the rising risk of catastrophic wildfire, the Forest Service bypassed an environmental assessment.
“It’s a good project and it’s having good results on the ground,” Evans said. “The reason for that, however, is because you have a very capable district ranger who relied on a well-established, formally convened collaborative process.”
Although the categorical exclusion used for the Crawley Branch restoration has a limit of 3,000 project acres, it’s more limited than the recent restoration categorical exclusion, since it addresses very specific needs, such as wildfire suppression and pest infestations.
“(The categorical exclusion) also has important strings attached,” Evans said. “They don’t allow harvest of old-growth or large trees, for example. Congress gave the Forest Service the authority to take action for high priorities with limitations to prevent abuse so it could move ahead without consulting the public.”
However, the new categorical exclusion rules allow the Forest Service to reject the limits imposed by Congress, he said.
“The Forest Service wants to be able to move forward even with low-priority, high-controversy projects without consulting the public,” he said.
To me, the consultation is in the requirement for scoping and in the requirement for collaboration. Do to say that the FS wanted to move forward with high-controversy projects “without consulting the public” seems like a bit of a stretch. Here’s a link to the documents (including scoping and DM) for the Crawley Branch project.
I don’t see many other “important strings” other than the old growth requirement in Categories 603 and 605.
Unfortunately I’ve never been able to find a simple CE table that shows all vegetation CE’s and the restrictions so here are the 605 ce’s.. “wildfire resilience”. You have to look in the NEPA Handbook, so I’ve quoted 605 below:
4. Wildfire Resilience. The Consolidated Appropriations Act of 2018 (Public Law 115-171) amended Title VI of the Healthy Forests Restoration Act of 2003 (HFRA) (16 U.S.C. 6591 et seq.) to add Section 605. Section 605 establishes a categorical exclusion for hazardous fuels reduction projects in designated areas on National Forest System lands. A hazardous fuels reduction project that may be categorically excluded under this authority is a project that is designed to maximize the retention of old-growth and large trees, to the extent that the trees promote stands that are resilient to insects and disease, and reduce the risk or extent of, or increase the resilience to, wildfires (HFRA, Sections 605(b)(1)(A)).
This categorical exclusion may be used to carry out a hazardous fuels project in an insect and disease treatment area that was designated by the Secretary under HFRA section 602(b) by March 23, 2018. (HFRA, Section 605(c)(2)(C)) Within designated landscape scale areas, projects carried out under this authority are:
Prioritized in the wildland-urban interface; or
If located outside the wildland-urban interface, limited to Condition Classes 2 or
3 in Fire Regime Groups I, II, or III that contain very high wildfire hazard
potential.
(HFRA, Sections 605(c)(2)(A) & (B))
Projects carried out under this authority may not be implemented in any of the following
areas:
a component of the National Wilderness Preservation System;
any Federal land on which, by Act of Congress or Presidential proclamation, the removal of vegetation is restricted or prohibited;
a congressionally designated wilderness study area; or an area in which activities… would be inconsistent with the applicable land and resource management plan.
CHAPTER 30 – CATEGORICAL EXCLUSION FROM DOCUMENTATION
(HFRA, Sections 605(d)(1) – (4))
A project under this authority must either carry out a forest restoration treatment that:
complies with the eligibility requirements of the Collaborative Forest Landscape Restoration Program under section 4003(b) of the Omnibus Public Land Management Act of 2009 (16 U.S.C. 303(b)).
(HFRA, Sections 605(b)(2))
Or, a project under this authority must carry out a forest restoration treatment that:
maximizes the retention of old-growth and large trees, as appropriate for the forest type, to the extent that the trees promote stands that are resilient to insects and disease, and reduce the risk or extent of, or increase the resilience to, wildfires;
considers the best available scientific information to maintain or restore the ecological integrity, including maintaining or restoring structure, function, composition, and connectivity; and
is developed and implemented through a collaborative process that— includes multiple interested persons representing diverse interests; and is transparent and nonexclusive; or meets the requirements for a resource advisory committee under subsections (c) through (f) of section 205 of the Secure Rural Schools and Community Self-Determination Act of 2000 (16 U.S.C. 7125).
(HFRA, Sections 605(b)(1)(A) – (C)).
Projects carried out under this authority are subject to the following size limitation on the number of acres treated:
may not exceed 3000 acres.
(HFRA, Section 605(c)(1))
Projects carried out under this authority are subject to the following limitations relating to roads:
A project . . . shall not include the establishment of permanent roads.
The Secretary may carry out necessary maintenance and repairs on existing permanent roads for purposes of this section.
The Secretary shall decommission any temporary road constructed under a project under this section not later than 3 years after the date on which the project is completed.
(HFRA, Section 605(c)(3))
All projects and activities carried out under this authority:
shall be consistent with the land and resource management plans…”
(HFRA, Section 605(e))
For projects and actions carried out under this authority:
The Secretary shall conduct public notice and scoping for any project or action.
(HFRA, Section 605(f))
Document this category in a decision memo (FSH 1909.15, 33.2 – 33.3) and include it on the
Schedule of Proposed Actions (36 CFR 220.4 (d)). The decision memo should include a
description of the efforts taken by the Agency to meet the collaborative process
requirements in HFRA, Section 605(b)(1).
Cite this authority as Section 605 of HFRA (16 U.S.C.6591d)