Warning: this post is for NEPA Nerds
On X, Nicholas Bagley posted this thread.. remember what we used to call the HFI CE’s or Category 10? I was working in WO NEPA at the time, and we did the Limited Timber Harvest and the HFI CE’s as I recall, the latter jointly with BLM. Shout out to Dave Sire, happily retired! Much excellent work went into both of them, but the HFI CE was litigated by the Sierra Club and was removed, at least for the Forest Service, not sure about BLM. Bagley raised a legal question about how easy it would be to get Category 10 back. The question is “would Category 10 add any value to the existing Categories?”, since Congress has stepped in several times since then. Tom Hochman asked specifically about the prescribed fire acreage limit (4500 acres in Category 10).
Nothing is simple. So I laid out below what I could find and I’m interested in what you all think.
There are several problems in comparing CEs. First, some apply to only some landscapes or condition classes or WUI. Second, they have different requirements for public engagement/collaboration. Third, they have a a variety of other requirements. But all have the same extraordinary circumstances and required scoping. I would hope the FS has a table somewhere of the different requirements, and someone will provide that.
But basically the question asked was, “would it be valuable to add back a CE that had up to 4500 acres for prescribed fire?”
- Can Category 6 Be Used? No Acreage Limit.
The first thing that occurs to me is “what is your position on Category 6?” Remember this case in which the 9th Circuit upheld the use of Category 6 on the Fremont-Winema:
The Ninth Circuit upheld the U.S. Forest Service’s use of the timber stand and/or wildlife habitat categorical exclusion (CE-6) under the National Environmental Policy Act (NEPA), rejecting the claims made by Oregon Wild and WildEarth Guardians that CE-6 has an implied acreage limitation.
The plaintiffs challenged the projects, which cover a total area ranging from 3,000 to 16,000 acres of commercial thinning, on the grounds that the Forest Service had misused CE-6. They argued that the categorical exclusion should not apply to “large-scale” projects like these.
Some of us are still a little hinky about this decision, so let’s let the legal experts weigh in.
2. Other Categories of Note
I haven’t played the CE game much, and I’m not going to be helpful – I’m just going to point out that the purpose/objectives of a project (I&D, resilience, fuels, restoration) shouldn’t have any bearing on whether a particular kind of treatment’s effects are significant. Category 10 is the only one that conceptually makes sense to me – prescribed fire (for whatever reason) may have significant effects beyond 4500 acres (based on experience with prescribed fire projects), and mechanical treatment may have significant effects beyond 1000 acres (based on experience with mechanical treatment projects). (The legal question with this CE was whether they had done the proper analysis to determine effects are not significant.)
Of course, statutory CEs don’t have to make sense from an effects standpoint, but it may make political sense to only make them available for certain objectives.