This question came up in the fuel treatment post yesterday, but it is worthy of its own post (wonky as it is). I think there are some misconceptions out there about sensitive species. This is without refreshing my memory (which I should do more often any more), but I was heavily involved in lots of this.
NFMA does not require identification or protection of sensitive species. NFMA requires plant and animal diversity. Habitat for viability is a requirement for diversity in the planning regulations (old and new). Sensitive species have never been found in the planning regulations. To the extent there was an implied regulatory requirement in the 1982 regulations, it was for viable populations of management indicator species (MIS).
“Sensitive species” was apparently created by the Forest Service (I’m guessing the Wildlife staff) as a means of both meeting the NFMA viability requirement and preventing listing under ESA, and requirements for sensitive species (including preparation of a Biological Evaluation) were to be applied to both plans and projects. The details may be found in FSM 2670 (which also addresses ESA requirements) and FSM 2620. The current version of these is dated 2011, prior to the 2012 Planning Rule. (The agency has frozen up in its efforts to update this manual direction.)
This led to a lot of confusion, even by judges, regarding what was required at the project level. It sometimes appeared that parties/judges were saying that the NFMA viability requirement applied to each project (like ESA). At one point (2004ish?), the Forest Service, issued an interpretive rule to clarify that the viability requirement in the 1982 planning regulation applied only to forest plan decisions (unless the plan imposed its own viability requirement on projects, which some did).
It also made this problem a focus of its efforts to produce a new planning rule. Language now makes it clear that nothing in the 2012 Planning Rule applies to projects, and specifically the new requirements for species of conservation concern (SCC) apply only to forest plans (and projects must be consistent with what the plan says).
Meanwhile, forest plans that are being revised are following the new requirements for species of conservation concern. The Forest Service issued an internal letter to regional foresters on June 6, 2016 explaining that it would phase out the sensitive species designation. It recognized that, “As noted in the preamble to the 2012 planning rule, “[Regional Forester Sensitive Species] are…similar to species of conservation concern.” It also stated that, “Applying both systems on the same administrative unit would be redundant.” Consequently, “Once a revised plan is in effect, the Regional Forester’s Sensitive Species list no longer applies to that unit.”
The letter acknowledges that a biological evaluation must still be prepared for a revised forest plan. The letter doesn’t specifically instruct forests that have not revised their plans to keep preparing BEs for projects, but the Manual direction is still in place, so it is still official policy.
One observation I’ve made in reviewing forest plans revised under the 2012 Planning Rule is that sensitive species are often NOT considered “similar to species of conservation concern.” Many sensitive species (with “viability concerns”) have not been designated SCC (“substantial concern about the species capability to persist over the long term in the plan area”) during forest planning. Why is that?
The other thing I’ve seen when forest plans are being revised is that the Forest Service is not doing a very good job of explaining to the public that they are no longer going to have project analysis requirements for at-risk (but not listed) species separate from NEPA, and that some species they used to address at the project-level may not be addressed at all after the forest plan is revised.
Thanks for writing this, Jon! This explains very clearly… why it’s so confusing to any of us who don’t deal with it every day.
So how do you think this works?
1. SCCs in 2012 plan
2. Plan components designed to protect them
3. So projects are designed to protect them, using those plan components, so don’t need project level review?
Conceivably the project would be reviewed so folks knew if that was a given SCC habitat, and at that point design would follow the rules set out by the Plan for that species? Does this question make sense?
That’s pretty much the theory, but the practice sounds more like what Anonymous describes below. It is even possible that a plan could use only ecosystem plan components to protect SCC (no species-specific components), so SCC might not even be mentioned in a plan, and project planners wouldn’t necessarily be alerted to that need. This all likely shifts the burden to the NEPA process, where effects on a particular at-risk species should be identified as an environmental issue, and dealt with accordingly.
The 2011 Manual states that the purpose of a Biological Evaluation is:
1. To ensure that Forest Service actions do not contribute to loss of viability of threatened, endangered, proposed, or sensitive plant and animal species, or contribute to a trend towards Federal listing under the Endangered Species Act of any species.
4. To incorporate concerns for sensitive species throughout the planning process, identifying opportunities for enhancement and reducing any potential negative impacts.
The fact that the new planning rule and new directive do not require project-specific viability and analysis for SCCs is a terrible change/oversite/crime against wildlife, when one considers that the agency has gone to great lengths to water down the standards and guidelines for wildlife to be extremely flexible. I have caught the agency red-handed doing some pretty egregious things of late regarding management of SCCs, re-interpreting management direction that had been in place for more than a decade, due increased flexibility included in a revised plan, without a single shred of new science or data to support the change…of course it allowed for a lot more commercial logging. I have never witnessed a USFS “whoops” that favored species conservation and managers will go through great mental gymnastics to defend their BS.
The idea that the agency can be trusted to appropriately implement flexible standards and guidelines where management for the SCCs conflicts with extractive resource uses is disingenuous at best, a bold face lie at worst. Sure, there are districts and forests that will do a better job with flexibility, but all too often there are districts and forests that will not. There are powerful lobbies vying for their “thing” to rise to the top, the 2012 rule and subsequent directives crippled the ability for wildlife to compete.
This is why it is so important to pay close attention to what is being done in forest plans to protect SCC. The new project process will make it much more important to have clear, unambiguous, specific and often mandatory requirements in plans so that plans actually meet their obligations to provide the necessary habitat for SCC. What we’re seeing so far is often quite the opposite – trying to maximize project discretion. I think that is contrary to NFMA. I have expected to see this issue in court, but so far only the pending Rio Grande case does so (and it deals with the requirement to contribute to recovery of listed species rather than SCC).
I concur with your position, Jon…more specific plan components that are clearly understood would be more effective in both managing species and meeting the NFMA’s species diversity expectations.
However, with line officers desiring less constraints and more flexibility in plans, the ability for this agency to meet the above objectives remains fleeting.
Finally, I must say I was deeply disappointed in how the internal debate about sensitive species/MIS vs. SCCs played out. The “us” (biologists) vs. “them” (planners) dynamic missed an excellent opportunity to provide an coherent approach to species management in light of a mulitple-use mandate. The turf that was being protected on both sides was both embarrassing to witness and participate in. Much work is left to be done to resolve the distrust that has intensified.
Hi A, could you give a specific example? I’m assuming you are talking about a 2012 Planning Rule revision?
My own experience was that folks would wrassle about standards and guidelines and rewrassle at the project level during project design- changes based on what appeared to be personal beliefs and dynamics within the District. Which I guess is OK except that the new info could never make something less restrictive than the Plan (revision occurs so seldom) only more restrictive.
So to my mind it makes sense to round up info say once every five years and make a call on what should be done re protection. Especially with climate change. And yes, this could be a set of wildlife plan amendments for SCCs.
The spirit & intent of addressing sensitive species is based on the reality that protecting threatened and endangered species is not good enough if your activities lack enough forethought and ultimately turns sensitive species into ones that become threatened and endangered in the future. And as always the forest service hates forethought and due diligence when it comes to preventing sensitive species from becoming worse off even though they constantly lose the argument Sharon is making.
Up here in PNW region judge Dwyer ruled the NW Forest Plan was barely legal enough to end the injunction. But soon after logging of old growth returned, we were back in court arguing that the forest plan requires the phasing in of “survey and manage” of rare & sensitive species but the forests service was insisting on logging old growth forests without doing these surveys because of the usual stall, delay and ignore requirements to get the cut out routine. And as often is the case the judge ruled against them and told them to start phasing in surveys as directed by the approved plan.
This led to old growth timber sales already sold and ready to be cut that we had blocked roads to and put up treesits in being surveyed for Red Tree Voles, which resulted in the cancelation of the timber sales and a huge victory for us after chasing the cops and loggers out of our still standing forests for several years.
Back then I remember the lead Tree Vole expert for the BLM pulling me aside and saying thank you for all our protests. He explained that when he was in meetings arguing for the surveys the main point he kept making to his bosses was how much law enforcement costs to log out a publicly contested timber sale. He was so grateful that while we waited for the judge to rule in our favor, he had that big stick to hit em with and he said I got huge areas excluded from logging plans because of our resistance!