This Montana Public Radio article does more than look at one proposed project. “Those familiar with NEPA say categorical exclusions are an essential tool in any federal agency’s kit. But, some environmental advocates say they’re concerned that tool is being used too often and out of proportion with its original purpose.”
The story features comment from our own Sharon Friedman, plus mention of The Smokey Wire, and from TSW contributor Susan Jane Brown.
Nowhere in the article do they talk about the significant difference between CE’s and EA’s/EIS’s and that is the potential for an objection. This is huge. If you have a number of concerns during scoping for a CE and you submit those, it is totally up to the FS as what they do with that. They can completely blow you off and you never hear another word about your concerns. Ideally, your concerns would be addressed in the content of the CE, but there is requirement for that and there is no way to hold the FS’s feet to the fire.
With EA’s and EIS’s, you have an opportunity to comment on the draft and also file an objection. That’s a big deal if you are truly concerned about a given project. In reality, the prevalence of CE’s is practically making NEPA irrelevant. Your only option if you feel that the FS has not addressed your concerns is a lawsuit and you would have to be pretty upset to do that.
Significant public controversy is one of the factors that can bump it from a CE to an EA. I would think 6,600 comments would probably justify that.
Thank you.
Dave Mertz you are wrong to think number of comments equals significant controversy. Nice try inventing more bureaucracy from your retiree armchair. Thanks for your service, but times have changed rather rapidly. Susan Jane Brown and other lawyers offer nothing more than self serving opinions about intent of NEPA. Martin Nie who wants to invent new extraordinary circumstances is ignorant. Tester is a foolish blowhard, if he really cares he should seek to amend the statute. I am proud of the Forest Service for finally using the tools they were given. Nobody in this discussion has noted the increased number of CE’s in 2013 and 2020 – both of which went through rigorous rule making process with ample opportunity for public comment. Do you not understand that more CE’s will of course increase their percentage of overall decisions ? The argument over examples is a waste of time. “Including but not limited to” is pretty straightforward. NEPA is a box to check, it’s the work on the land that matters. The FS is not perfect and you will find many dumb decisions, like accepting a master development plan before issuing a permit to the new owner. The fact is expansion to 15 acres still fits the CE which is anything under 20. I believe the trend toward more CE’s is good. It lets hardworking and dedicated people do their jobs not push endless paperwork. It seems logical to me that most of what the agency does truly does not have significant environmental impacts, especially when you consider the increased scope of environmental regulation over the years at all levels of government.
In your opinion, what would amount to significant controversy? Here is what I have learned about the Forest Service since I retired. If they do not have someone riding herd on them, challenging them, they have a tendency to follow the path of least resistance. If that path means keeping politicians and businesses with power and influence happy, they will follow it. Often, just the real threat of a lawsuit may be what makes them do the right thing. I know this for a fact as I have read communications received through FOIA’s. I am sorry to say this, but you are being somewhat naive if you think that the Forest Service is always doing the right thing, that interested publics are just a nuisance, and that NEPA is just another bureaucratic
hoop to jump through. I used to think that way when I was working, but since I retired and have seen another perspective, I think differently. Trying to get the Forest Service to do the right thing when you have no political influence or no means to file a lawsuit, is a very tough thing to do. Perhaps, in the future, you will also experience this. Maybe you will also be willing to use your name when you disparage retirees.
You are legally correct that the number of public comments shouldn’t be the basis of significant controversy under NEPA; it is supposed to about scientific controversy related to environmental effects. But I think it is a great example of “dumb decisions” (or at least disrespectful) to try to use a CE for a proposal that you should know a lot of the public is strongly against.
I don’t. I think you propose what’s in the regs and scope- otherwise you’re being disrespectful to the people who wrote and commented on the regs. When you scope if you find out that there’s lots of call for an EA instead, then you move up. Same with EA to EIS. Otherwise you would have to do an EIS for every project that has pushback.
Well, I kind of agree with both you and Jon. Sure, you can start off with the minimal level of a NEPA document and then bump it up from there. However, if you already have a good idea that what you are proposing will get a lot of people shook up, wouldn’t it be prudent to start with an EA?
Would you agree that the use of a CE really limits people’s ability to interact in the process? One used to be able to file an appeal on CE’s, then that went away. I guess the thinking was that these CE’s are covering activities that are so routine and mundane, that have happened over and over again with no significant effects, that there would be no need for people to file an objection? Would that be accurate? So, there is the letter of the law and then there is the spirit of the law. If you are a Line Officer, shouldn’t you consider the spirit of the law as well?
The spirit of the law would be that, with the exception of a few outliers, most people would be at least accepting of this action. One should think that because any option beyond simply commenting during scoping (other than a lawsuit) has been removed.
The increased use of CE’s is a good thing in most cases, I believe. As in all things, there is abuse. As this article shows, CE’s are being used a lot. However, NEPA is still being used as a boogeyman for things not getting done.
I’m just curious. Have you actually ever BEEN to Holland Lake? Or lived in Montana? Have you studied POWDR’s Master Development Plan? Were you at the meetings where FS leadership pretended they didn’t know that the existing permitted acreage was 10.53? And where they pretended not to know that control of the business entity had changed? Did you read the emails that prove they did indeed know all of this? Did you see the work trailer erected on site last summer or the amendment for new wells dated 8/22/22… both of which occurred PRIOR to public scoping? Did you read the FOIA emails where several… SEVERAL… current Forest Service employees rightfully questioned what’s going on here?
I get that there’s a time and a place for Categorical Exclusions. But adding a 13,000 sf Lodge, a 3,000 sf restaurant, a welcome center, 26 cabins and “bunkies”, employee housing, parking lots, additional storage buildings, and floating docks on the shoreline of a small, pristine mountain lake at the gateway to the Bob Marshall Wilderness is NOT what CEs were intended for. If POWDR’s permit is approved and they move forward with expansion plans, it WILL have significant negative impacts, no question. And I honestly can’t think of a single thing the public stands to gain from it.
You want a random sampling? The public comment period was open to all. Over 6,500 people commented in about a month’s time and 99% were opposed. Anyone could have commented during that time, but folks overwhelmingly turned out in droves to say, “nope, this isn’t right, this isn’t in the public interest.” A grassroots movement grew pretty much overnight and is now several thousand solid members strong. I mean, honestly, what more proof do you want that the public overwhelmingly opposes this? (Except for those few who stand to make big bucks off of it.)
What the bureaucracy seems to have forgotten is that they don’t actually own this land. It belongs to the American people. The FS is simply tasked with managing it. I’m sorry if you feel you have a lot of unnecessary paperwork and red tape. But that’s not what’s happening here. What’s happening here is the FS tried to quickly and quietly ram POWDR’s expansion plans through on the previous owner’s permit and they tried to use a CE to limit public input. That’s not how the process is supposed to work. The public caught on and called it out and, personally, I’m proud of that.
Look. There are a lot of good, upstanding folks in the FS who are trying to do the right thing. But the way that FS leadership has handled this whole Holland Lake situation is much MUCH more than just “dumb decisions.” It would be downright naive to think otherwise.
The FS has worked hand in hand with POWDR for over two years on this, but has pretty much completely shut the public out. It’s no wonder the public is demanding some accountability, transparency and respect. Will the public actually get that? I guess that remains to be seen, but I sure hope so.
Thank you!
Dave you confuse disagreement with disparagement. And who decides what is right ? Apparently you think it should be retirees. It is right IMO to minimize process and time in accordance with the law so agency business partners can imptove infrastructure meant to serve the public and generate a profit, as the law not only allows and intends but encourages. Jon what is really dumb to me is the idea that someone who doesn’t like a project may like it if there is more paperwork and a time sucking objection process that rarely changes the ultimate outcome, except in cases of FS incompetence which I admit is out there. One of the best features of NEPA is that it is not a project popularity contest. If you actually did a random sample of people and told them the unbiased facts about the benefits and impacts of any project I think you would find much support along with opposition most of the time.
I think hindsight shows that this was a dumb decision that has at least delayed, and possibly reduced the likelihood of, the original proposal. The lesson might be that it is not good management to cut corners just because the book says you can do it.
Funny, when someone says.. ” Based on a preliminary assessment, Intentions are to categorically exclude”.. at Holland Lake, you think it’s “cutting corners”.. but Dillon Ranger District, when it uses “it is anticipated” is not.. https://usfs-public.app.box.com/v/PinyonPublic/file/1126970275379
“Based on resource information gathered to date, it is anticipated that the Proposed Action falls within a Forest Service category of actions under 36 Code of Federal Regulations (CFR) §220.6 that may be excluded from documentation in either an environmental assessment or an environmental impact statement, and that no extraordinary circumstances exist that would preclude its use. Scoping comments along with a complete resource analysis will determine whether this project can be categorically excluded.”
So.. both proposals are using scoping comments to determine whether an EA is necessary. At Holland Lake, they decided it is worthy of an EA. I think the system is working fine.
Ok, I’ll clarify – this was a brilliant decision if the goal was to unite the grizzly bear-loving left with the government-hating right. (Pretty much every property along the highway hosts these signs.)
https://forestpolicypub.com/wp-content/uploads/2023/05/IMG_4080-scaled.jpg
It’s a decent question. What is right? I don’t think that retirees have all the answers. I should have clarified what I meant by “”right”. I mean complying with the law. I won’t go into it, but I know of a number of instances where the Forest Service is not following the law. Almost always, this is due to pressure from the WO and/or RO. When I was working, I tried to do my best to follow policy, regulations, and the laws that governed the Forest Service. I always thought that if we didn’t, there would be a price to be paid for that. Turns out that is not true. If the Forest Service decides to not follow policy, regs, and laws, the only real way to hold them accountable is a lawsuit.
Look, I don’t know what your job is, but I am sure it is not easy, and you are doing your best to get things done and do the right thing. It can be discouraging when people, and yes, even retirees, think they know better. I remember those days. I was a NEPA Coordinator for five years and it was often very discouraging. I would have loved to have had all of these CE’s that you now have. I viewed all of those know-it-alls out there that gave me a hard time, as just a pain in my rear. Towards the end of my career and now in retirement, I look back at them differently. They were serving a function. Many times, they made us think about what we were doing, and things turned out for the better because of it. Our National Forests belong to the public and the Forest Service is entrusted with the management of them. Consequently, the public gets a say.
Hang in there, don’t get discouraged, do the right thing, and thanks for what you do.
Dave Mertz thanks a lot. I really do respect retirees and you are a classy guy. I appreciate your experiences and wisdom. Your kind words in the face of my overt sarcasm are a testament to your continued service. I know I too will someday see it different after I have retired. Cheers.
It is a bit different after you retire; you begin to see (and experience) the frustrations of trying to deal with a bloated bureaucracy when it comes to projects. Also, having been one to do whatever to “checkmark” a particular project through planning, I understand the paper shuffle, or as one of our former Chiefs said, “analysis paralysis”.
I’m dealing now with a particular project that is trying to push a recreation decision making process using adaptive management, where it clearly does not fit! The FS has an excellent opportunity to do the right thing, but seems blind to seeing the actual potential. Now here, it is controversial!! I do not think the number of objections means a whole lot; individual letters or comments surely do but the volume of form letters is useless to me.
I don’t see how the FS is going to move any “stick”, be it recreation, forest management special uses or fuels work without being bludgeoned bloodily in the process. Damn, I’m glad I am retired……🤣🤣