Thanks to a TSW reader for links to this July 2022 letter. It’s located on the project website in the emergency response folder. It appears to take the least controversial parts of the multi-forest zone level EAs and ask for an emergency response. It appears to have been signed by the Chief on July 12. What I think is interesting about it is in the context of the larger discussion about NEPA for permitting, with regard to the future permitting deal associated with the IRA bill. Is inter-agency coordination slowing the EA down, or just regular “project planning” staffing, or other difficulties?. Also, I think there was a discussion about the proposed Save the Sequoias act, in which I think I remember someone suggested the FS already had these authorities, and so there might not be a need for changes found in that proposed legislation.
I wonder how often that the Chief approved “emergency response/alternative arrangements” have been used in practice, and to what extent they are used consistently for the same kinds of emergencies? I’m supposing this needs to be run by the Department and CEQ as well in practice but I don’t know for sure (nor whether this is consistent across administrations). What do you all know about these questions?
From the letter to the Chief (decision memorandum document):
BACKGROUND: Under Forest Service NEPA implementing regulations at 36 CFR 220.4(b)(2), the Chief or Associate Chief may grant emergency response or alternative arrangements for NEPA compliance when the responsible official finds that the nature and scope of proposed emergency actions are such that they must be undertaken prior to preparing any NEPA analysis and documentation associated with a Categorical Exclusion or Environmental Assessment (EA) and Finding of No Significant Impact (FONSI). This is not an alternative arrangement as defined by the Council of Environmental Quality in 40 CFR 1506.12.
California experienced record-setting wildfires in 2020 and 2021 that caused expansive stretches of fire-killed or damaged trees adjacent to roads, trails, and facilities which pose a threat to health, safety, and property. To address these hazards, the “R5 Post-disturbance Hazardous Tree Management Projects” were initiated, which propose the felling and removal of hazardous trees adjacent to roads, trails, and facilities within nine National Forests recently affected by wildfires. The project was initiated in October 2021 with the intent to issue final decisions in May 2022, in time to implement during the 2022 field season. However, project planning and Endangered Species Act (ESA) consultation is taking longer than anticipated. This along with the continued commitment to ensure adequate time for public involvement and accommodate the pre-decisional administrative review process have pushed anticipated decisions back to at least November 2022. Without an emergency response, most, if not all the emergency hazard tree abatement would be delayed until 2023. Trees will continue to deteriorate and fall, posing a serious risk of property damage, injury, or death as more time passes..
RECOMMENDATION
Approve the proposed emergency response for NEPA compliance under 36 CFR 220.4(b)(2) with associated conditions so that the Forests identified in the supporting documentation can immediately address the hazards to human health and safety in the highest priority portions of the project areas.Proposed Emergency Response:
1. Grant authorization to begin the emergency hazard tree abatement on approximately 167 road miles and 18 developed recreation sites (displayed in attached maps) prior to completion of the Environmental Assessments and FONSIs, and exclude the requirement at 36 CFR 220.7(c) to document a decision to proceed with an action in a Decision Notice if an EA and FONSI have been prepared.Associated Conditions:2. Ensure compliance with other laws, such as Endangered Species Act, National Historic Preservation Act, and Clean Water Act are in place before implementation of the emergency hazard tree abatement.
3. Ensure all required consultations and permitting are in place before implementation of the emergency hazard tree abatement. Emergency provisions may be employed where necessary, such as emergency consultation under ESA.
4. Implementation of emergency hazard tree abatement will address human health and safety and will be limited to treating imminent hazards (> 80 percent probability of mortality) and within 1 tree height striking distance of the specified roads and developed recreation sites prior to completion of the Environmental Assessments and FONSIs. Hazard trees would be identified in accordance with the Hazard Tree Identification and Mitigation Guidelines for Forest Service in the Pacific Southwest Region. The area assessed for hazard tree abatement would be within 300 feet of the centerline of roads (a 600-foot corridor), and around facilities and infrastructure.
5. Monitor the effects of the actions subject to this emergency response. Reconsult with my office through the Director of Ecosystem Management Coordination if monitoring reveals effects outside of those disclosed in the ongoing environmental analysis.
6. The Emergency Response for Emergency Hazard Tree Abatement is limited to the 2022 field season.
7. All other proposed actions in the EAs which are not part of this emergency response will follow the normal 36 CFR 220 and 36 CFR 218 process.
They also scoped the potential for using emergency authorities..
Both the scoping letter and comment period notice disclosed the possibility of utilizing emergency authorities to expedite hazard tree abatement on all or a portion of the project areas. There was some support for using emergency authorities, while others did not support this approach or suggested it be limited to addressing only imminent hazards.
In general, most of the public and tribes support hazard tree felling and removal near county roads, NFS Maintenance Level 3, 4, 5 roads, and developed recreation sites. While there is concern about the need for hazard tree removal near lower use ML 2 roads, there is general support for the ML 2 roads which access developed recreation sites, communities, or otherwise have more regular or moderate use. The emergency hazard tree abatement subject to the emergency response are focused on the imminent hazards in these higher priority areas where there is mostly general support.
And the problem with ESA consultation appears to be workload, and of course between USFWS and NMFS, the slowest would control the speed of the project.
In compliance with the Endangered Species Act (ESA), we have begun consultation with the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS). Consultation for the Central Sierra and Southern Sierra zones is anticipated to be completed in June 2022, though delays are possible due to USFWS and NMFS workload. Consultation for the North Zone is anticipated to be completed in August 2022. Emergency consultation will be employed to ensure compliance with ESA specific to the emergency actions if necessary.
Not unusual for the ESA consulting agencies be short on staff (I’ve wondered about the politics of not adequately funding that), and the Forest Service is only one of the many agencies they consult with. This prevalent problem was a reason why the FS and consulting agencies have/had “streamlining” agreements to consult on groups or types of projects, and use forest plan consultation (which everyone seems to hate now) to simplify project consultation. (If I’m remembering right, the Forest Service funded a position in the Montana FWS office for awhile to keep up with FS actions.)
Perhaps not funding consulting agencies enough is political, although it seems to be the case regardless of partisan persuasion of those in power. I do think, say, if renewable energy folks, for example were to fund a position, that there might be accusations of conflict of interest.