andystahl

K.I.S.S. in Rule Form, Part 4

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After a day listening to ecologists talk about landscape models, I am further inspired to urge planning rules that keep-it-simple-sweet.

There are three kinds of government rules. Most government rules regulate the behavior of private concerns, e.g., point-source pollution and building codes. A few regulate the behavior of other government agencies, e.g., Endangered Species Act consultation and CEQ NEPA process. Fewer still self-regulate an agency’s own behavior. The NFMA planning rule falls in this last category.

I don’t know about you, but if I wrote enforceable rules to regulate my own behavior, I’d make sure the rules were as spare and flexible as possible. Thus I offer the following rules to implement NFMA’s inventory and interdisciplinary mandates:

36 CFR 219.4: Inventories

The revision shall be based upon inventory data, maps, graphic material, and explanatory aids, of a kind, character, and quality, and to the detail appropriate for the land management plan revisions and vegetation management and timber harvest program decisions made.

36 CFR 219.5: Interdisciplinary Preparation

An interdisciplinary approach shall be used in the revision of the land management plan. The disciplines of the preparers shall be appropriate to: 1) the formulation of the vegetation management and timber harvest program; and, 2) the new information and changed circumstances and conditions in the unit that warrant revision of the plan.

K.I.S.S. in Rule Form, Part 3

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In an agency beset with feelings of process predicament and analysis paralysis, it would be cruel punishment indeed to suggest NFMA rules that add more analysis and process to the mix. The new rules should also be durable; that is, not chase after every cause de jour (e.g., climate change) or impose inflexible, one-size-fits-all analysis processes.

The following “Assessment of New Information and Changed Circumstances” is based on the fact that forest plans exist now that cover every acre of the National Forest System. Congress directed that these plans “be revised from time to time” when “conditions in a unit have significantly changed, but at least every fifteen years.” It makes sense that only those parts of a forest plan affected by changed conditions require revision.

It is with these principles in mind that I put forward Part 3 of the keep-it-simple-sweet NFMA rules:

36 CFR 219.3: Assessment of New Information and Changed Circumstances

The revision shall assess new information and changed circumstances and conditions in the unit that are relevant to the decisions made in the land management plan. If the new information or changed circumstances and conditions warrant amendments to the land management plan, the land management plan amendments shall be assessed as a part of the vegetation management and timber harvest program’s NEPA document. If the land management plan amendments, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., an environmental impact statement shall be prepared.

K.I.S.S. in Rule Form, Part 2

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Now for some nitty-gritty. Here’s language that fleshes out the first task of plan revision: “(1) Decide the vegetation management and timber harvest program, including the proportion of probable methods of tree removal.”

Most of the proposed rule is taken verbatim from the NFMA itself. The biggest change from the status quo is that vegetation management decisions would be made in the forest plan revision and not revisited in a second project-level decision and associated NEPA review. The proposed rule includes a strong incentive for doing so — it eliminates the site-specific notice, comment and appeals process for vegetation management/timber harvest activities. That’s because the forest plan revision would now make these site-specific decisions.

The vegetation management and timber harvest program component of forest plans would be revised more frequently (every 1 to 3 years) because the program makes site-specific decisions. But with only one NEPA document for each plan revision, this proposal would reduce by 90% (my guesstimate) the Forest Service’s vegetation-related NEPA document production.

36 CFR 219.2: Vegetation Management and Timber Harvest Program.

(a) The vegetation management and timber harvest program (“program”) shall include all site-specific vegetation management activities, including the sale of timber, purchase of vegetation management services by stewardship or other contractual method, and fire use necessary to meet the plan’s goals and objectives for a period of one to three years. An environmental impact statement shall be prepared for the program, if required by Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The program can be amended at any time. All amendments shall comply with NEPA procedures.

(b) A vegetation management activity included in the program shall not be subject to the notice, comment or appeal requirements of the Forest Service Decisionmaking and Appeals Reform Act, 16 U.S.C. 1612 (notes), but shall be subject to the objection procedures contained in this subpart.

(c) Program activities shall be conducted only on lands suitable for the activity.

(d) Program activities shall maintain viable populations of existing native and desired non-native species in the planning area.

(e) Program activities shall be consistent with the plan’s standards and guidelines, or the standard or guideline shall be revised pursuant to this subsection.

(f) Before stands of trees are harvested, the stand’s average annual growth shall have culminated calculated on the basis of cubic measurement or other method at the discretion of the responsible official. Stands can be thinned before growth has culminated. Salvage or sanitation harvesting of timber stands that are substantially damaged by fire, windthrow or other catastrophe, or that are in imminent danger from insect or disease attack, can be harvested before growth has culminated.

(g) Timber will not be harvested where soil, slope, or other watershed conditions will be irreversibly damaged.

(h) Timber will not be harvested where adequate restocking within five years is not assured.

(i) Timber will not be harvested where water conditions or fish habitat are likely to be seriously and adversely affected by detrimental changes in water temperatures, blockages of water courses, or deposits of sediments.

(j) The timber harvest system will be selected based upon meeting the plan’s goals and objectives and not primarily upon the greatest dollar return or the greatest unit of output of timber.

(k) Timber harvest designed to regenerate an even-aged stand of timber will be used only where:

(1) For clearcutting it is the optimum method to meet the plan’s goals and objectives;

(2) For other even-aged methods it is appropriate to meet the plan’s goals and objectives;

(3) The harvest activity is included in the program and has been assessed pursuant to this subpart;

(4) Cut blocks, patches, or strips are shaped and blended to the extent practicable with the natural terrain;

(5) The area to be cut in one harvest operation (e.g., one cut block) does not exceed the maximum size limit established by the land management plan. If the plan has no maximum size limits, even-aged harvest cannot proceed until the plan is revised to include maximum size limits. Maximum size limits may be exceeded after public notice and review by the responsible Forest Service officer one level above the Forest Service officer who normally would approve the harvest activity. Maximum size limits shall not apply to the size of areas harvested as a result of natural catastrophic conditions such as fire, insect and disease attack, or windstorm; and,

(6) The even-aged harvest protects soil, watershed, fish, wildlife, recreation, and esthetic resources, and assures the regeneration of trees.

K.I.S.S. in Rule Form, Part I

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Our task is to write regulations required by NFMA. Having proposed a framework in previous posts (K.I.S.S. and K.I.S.S. II), it’s time to put rubber to the road. Here’s the introductory framework. What have I missed?

36 CFR 219.1: Purpose and principles.

(a) The rules in this subpart set forth the process for revising land management plans for units of the National Forest System as required by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended. Land management plans shall be revised when conditions in a unit have significantly changed, but no less frequently than every fifteen years.

(b) A land management plan revision shall:

(1) Decide the vegetation management and timber harvest sale program and the proportion of probable methods of tree removal timber harvest (Sec. __);

(2) Include an assessment of new information and changed circumstances since adoption of the previous land management plan or revision thereof (Sec. __);

(3) Be prepared by an interdisciplinary team (Sec. __);

(4) Be based upon inventories appropriate to inform the decisions made by the plan revision (Sec. __);

(5) Involve the public in its promulgation (Sec. __);

(6) Provide for diversity of plant and animal communities and preserve the diversity of tree species (Sec. __);

(7) Ensure that, subject to valid existing rights, all outstanding and future permits, contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the revised plan (Sec. __); and,

(78) Review previous decisions to classify lands as suited or not suited for timber production if the prior classification decision is older than ten years (Sec. __).

QLG – Granddaddy of Place-Based Collaboration

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The granddaddy of place-based national forest legislation is the 1998 Herger-Feinstein Quincy Library Group Forest Recovery Act (“QLG”), which resulted from a 1993 collaborative group “community stability proposal.”  So how has the law worked out?  Here’s what the Forest Service reported in its latest QLG monitoring report:

Implementation of the Pilot Project continues to be affected by litigation and appeals. Court decisions are pending on cases that have been in litigation for up to four years. In FY08, approximately 90 percent of all timber sales or service contracts across the HFQLG Pilot Project area were stalled due to litigation or appeals. As a result, volume of both sawlogs and biomass sold declined by 50 percent from FY07 levels.

Since 1998, QLG-area sawlog volume sold averaged less than 20% of the 1992-1997 average level.  Forest Service expenses have stayed constant, but timber revenues have declined to 35% of pre-QLG law levels.  Forest industry jobs have dropped 25% and several of the area’s largest sawmills have closed.

The Forest Service bureaucracy is the major beneficiary, as QLG proved to be a magnet for federal spending.  But few would argue that the original “community stability” goal was realized, nor, perhaps, could changes in natural resource policy alone alter the downward economic trajectory suffered by most of the West’s rural communities.

Modern-day proponents of similar schemes, e.g., Beaverhead-Deerlodge and eastern Oregon legislative proposals, would do well to learn from QLG’s experience.

Project-based Forest Planning and Collaboration

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People collaborate best when they are in the woods talking about real forests and what to do with them.  On the other hand, put them in a conference room to debate the merits of hypothetical silvicultural standards and you end up with the sort of nonsense we are seeing in northern Arizona. There several prominent, litigious environmental groups have made peace with local timber mills and workers regarding which trees to log on several national forests.  The Forest Service, however, doesn’t want to play ball.  Instead, its regional staff in Albuquerque is busily re-writing northern Arizona NFMA plans to include silvicultural standards that are inimical to agreements reached in the woods between the green groups and industry.

This bureaucratic passion play could be avoided altogether if NFMA plans were based on projects, not standards.  Recall that NFMA requires only one thing of forest plans:  “the planned timber sale program and the proportion of probable methods of timber harvest within the unit necessary to fulfill the plan.”  Recall also that NFMA does not mandate one forest plan for each national forest.  The Forest Service has broad discretion to decide the geographic scope of each plan, i.e., a single national forest can be divided into several NFMA plans.

Under the current two-tier planning regime, the Forest Service and its protagonists get to fight twice over what to do with national forests.  The forest plan fight is all about the adequacy of standards, the aspirational zoning of land, and the magnitude of largely irrelevant allowable sale quantities.  The second fight, at the project level, often repeats all of the above (because forest plan standards become ripe for legal challenge only when implemented in a project), with plan-consistency arguments thrown in for good measure.

Let’s just cut out the middle man altogether.  A forest plan should be no more than the logging projects the Forest Service proposes for the next several years.  The plan’s NEPA document (probably an EIS, but an EA is not inconceivable if the logging projects are environmentally modest) would evaluate alternatives, disclose effects, and form the basis for any required inter-agency consultation.  The plan’s Record of Decision would set forth the site-specific projects to be undertaken,  eliminating separate project-based planning and decision-making.  Forest planning collaboration, if pursued, would consist of people talking in the woods about each of the projects.