Diversity and species conservation

A test of the 2014 insect and disease categorical exclusion

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The Center for Biological diversity is suing the Tahoe National Forest for its decision on the Sunny South timber sale. The sale is designed to “reduce the extent and risk of insect infestations, as well as to reduce the negative effects of those infestations on forest health and resilience.” Plaintiffs allege, “Six (California spotted) owl territories are slated to be logged …, all of which are important contributors to the overall owl population given the high degree of successful owl reproduction in these old forested areas.”

Section 603 of the amended Healthy Forests Restoration Act establishes a categorical exclusion for qualifying insect and disease projects in designated areas on National Forest System lands. An insect and disease project that may be categorically excluded under this authority is a project that is designed to reduce the risk or extent of, or increase the resilience to, insect or disease infestation in the areas.  The project must be located in an area designated pursuant to a Governor’s request for areas in their State that are experiencing, or at risk of, an insect or disease epidemic. The project must also meet other criteria, including these rather subjective ones:

  • The project was developed through a collaborative process that includes multiple interested persons representing diverse interests and is transparent and non-exclusive.
  • The best available scientific information must be considered to maintain or restore ecological integrity, including maintaining or restoring the structure, function, composition and connectivity.

We might find out a little more about what these things mean from this court.

There used to be a sort of rule of thumb that if a project looked controversial, the Forest Service wouldn’t pursue a categorical exclusion (in part because they may be difficult to defend in court). The new agency policy appears to be to thumb its nose.

 

Should the Forest Service intervene on the side of environmental groups?

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“Public interest groups filed a lawsuit Thursday, Sept. 15, challenging the city of Highland’s approval of the high-density Harmony development. The development sits at the confluence of Mill Creek and the Santa Ana River and is directly adjacent to San Bernardino National Forest lands and will bring more than 3,600 houses to 1,657 acres of land acquired by Orange County Flood Control in the Seven Oaks Dam project that are currently home to numerous endangered species, rare habitats, wetlands and crucial wildlife connectivity corridors, according to the suit.”

“The lawsuit was brought by the Center for Biological Diversity, San Bernardino Valley Audubon Society and the Greenspot Residents Association, who are represented by the law firm Shute, Mihaly and Weinberger. It argues the city of Highland’s City Council’s August approval of the project violates the California Environmental Quality Act.”

It sounds like potentially illegal local government actions could adversely affect national forest resources.  Shouldn’t the Forest Service be trying to protect those resources?  (Not to mention what this would add to fire management costs.)

http://www.highlandnews.net/news/political/lawsuit-challenges-high-density-harmony-housing-development/article_f36e5c3e-7cfd-11e6-845e-2bf853763e42.html

Another payoff from standards in forest plans

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This time mandatory standards ensure that a proposed pipeline project will protect water quality:

In Bath County, the Forest Service said an access road that impacts a wild brook trout stream, Laurel Run, “is unacceptable because it parallels the stream channel with the riparian corridor for much of its length and has numerous stream crossings.”

The letter says the access road is inconsistent with forest plan standards and best management practices concerning soil and water.

Why does the Forest Service want to get rid of standards when they revise their plans?  Do they think that some mealy-mouthed desired condition of “high quality water” in a forest plan would have the same effect?  That it would be legally sufficient to claim such vague, aspirational statements meet requirements to protect at-risk species?

Natural Range of Variation in the southern Sierra national forests

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So what did the Sierra, Sequoia and Inyo do to apply this planning rule requirement to terrestrial ecosystems?  I’ve just reviewed the draft plan and DEIS, and I don’t think I’ve got a good answer.  They don’t directly say what NRV is or how they determined it (at least in the places I’ve looked).

The Bio-Regional Assessment says this (p. 39):  “NRV only was not used because at this time conditions are far removed from them in terms of fire regime, and even a modest shift toward that level of resiliency would benefit ecological integrity and is more feasible in a short period of time. The planning rule specifically provides for using ecological integrity based on measures other than NRV where this is the case.”

This view is supported by the Planning Handbook (1909.12 FSH 12.14b) (but again, the Handbook does not appear to be supported by the Planning Rule): “In some situations, there is not enough information to understand the natural range of variation under past disturbance regimes for selected key ecosystem characteristics or the system is no longer capable of sustaining key ecosystem characteristics identified as common in the past based upon likely future environmental conditions. In these cases, the Interdisciplinary Team should establish an alternative ecological reference model for context for assessing for integrity by identifying the conditions that would sustain these key ecosystem characteristics.”  However no “alternative ecological reference model” was documented.

For terrestrial vegetation the Bio-Regional Assessment then apparently ignores itself (p. 98):  “Under the 2012 Planning Rule, “natural range of variability” is a key means for gauging ecological integrity. Ecosystem sustainability is more likely if ecosystems are within the bounds of natural variation, rather than targeting fixed conditions from some point in the past (Wiens et al. 2012, Safford et al. 2012). Safford et al. (2013a) compiled comprehensive, scientific literature reviews on natural range of variability, and these are the primary basis for the summary below.”  The summaries conclude whether ecosystems are within or outside of NRV, but they don’t say what NRV is.

The Sierra Assessment says this (p. 17):  “Comprehensive, scientific literature reviews on natural range of variability were compiled. The following is an overview. Consistent with trends across the entire assessment area, terrestrial ecosystems in the Sierra NF are predominantly outside the natural range of variability (NRV) for key indicators of ecological function, structure, and composition. First, nearly half (44 percent) of the area of the Sierra NF dominated by woody vegetation (or 76 percent of montane coniferous forests) is in a highly departed condition with respect to the historic fire return interval, burning at frequencies that are significantly longer than pre-settlement fire regimes (Safford and van de Water 2013). The Sierra NF has missed an average of three to four fire return intervals across all vegetation types dominated by trees or shrubs (Safford and van de Water 2013). Subalpine forests are the exception, burning at intervals that within one or two fire return intervals.”

The Bio-Regional Assessment describes fire history on p. 33, and the Sierra Assessment appears to use historic fire intervals as a reference, but what are the vegetation conditions that would produce the desired fire intervals (which would be the NRV for vegetation)?  I didn’t find a document that says what what vegetation NRV is or how it was determined, or even what the “key indicators” are.  The draft plan does have desired conditions for vegetation, and the DEIS says those are or are based on NRV.  The quickest way to get a feel for these DC=NRV is Tables 1-7 in the draft revised forest plan.

What is NRV for vegetation characteristics?  Are they based on the best available science? Did they properly use historic reference conditions?  What was the reference period? Did they consider climate change?  Are these sustainable desired conditions?  Do they comply with the requirement for ecological integrity?   Do they provide conditions needed for at-risk species? You’d think the answers to these important questions would be easier to find, but I’m out of time.  Maybe someone else can find some answers on the revision website somewhere.

Remember the “Shovel Brigade?” Court unsettles settlement.

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This was the Bundy gang of the 90s.  The Forest Service decided that it would not rebuild a washed out road along the Jarbridge River in Nevada to avoid impacting the now federally threatened bull trout.  The locals threatened to rebuild it themselves.  The issue in court became “who owns the road.”

Under the Bush Administration, the Forest Service agreed to not challenge the county’s ownership – a substantive concession that a federal district court has just reversed.  The judge said, “Without evidence that Elko County owns the right-of-way, the consent decree gives land of the United States to Elko County without following proper procedural requirements.”

This is how the discretion of federal agencies to settle lawsuits may be limited.

On the question of whether a “road” existed prior to establishment of a national forest, the court required “a demonstration of more than random or merely occasional use.”

Science consistency review on the southern Sierra national forests

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The draft revised Sierra, Sequoia and Inyo national forest plans include aggressive restoration programs across the forest, including logging areas of existing old forest structure to protect old forests and associated wildlife species.  The Forest Service has asked (unidentified) reviewers to look at the draft forest plans and draft EIS and address these questions in the first science consistency review conducted under the 2012 planning rule (it is an optional process under associated agency policy):

1. Has applicable and available scientific information been considered?

2. Is the scientific information interpreted reasonably and accurately?

3. Are the uncertainties associated with the scientific information acknowledged and documented?

4. Have the relevant management consequences, including risks and uncertainties, been identified and documented?

Here are some of the topics being addressed:

• Vegetation: Forest Resilience, Seral stage distribution, Effects of post-disturbance harvest, and Impacts on native vegetation.

• Fire and Fuels: Fuels management and community protection, Current fuel loading, Current and future wildfire trends, Effectiveness of treatments for fuel reduction.

• Wildlife and Habitat: Impacts to wildlife and their habitats, terrestrial and aquatic, Protection of old forest and associated species, Threatened and endangered species habitat requirements and availability, Species of Conservation Concern habitat requirements and availability.

• Climate Change: Current and projected trends, Effects on wildlife habitats and populations, Effects on carbon sequestration and carrying capacity

Given the debate on this blog surrounding these issues, the results should be interesting.  However there is no commitment here to any public release or discussion of the results.  The comment period on the draft EIS closes August 25th.  The results of this review were scheduled to be available in August.  “The technical experts (on the planning team) will review the report, consult and address any concerns from the review team, and incorporate any recommendations that would benefit the final EIS.” 

Given the debate on this blog surrounding these issues, the results should be interesting.  However there is no commitment here to any public release or discussion of the results.  The comment period on the draft EIS closes August 25th.  The results of this review where scheduled to be done in August.  “The technical experts (on the planning team) will review the report, consult and address any concerns from the review team, and incorporate any recommendations that would benefit the final EIS.”

Here is the revision website.

Timber numbers in revised forest plans

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If there is one thing the Forest Service should have learned from the last round of forest planning, it is that they should put realistic projections of timber volume in their forest plans.  These numbers are going to create expectations for the timber industry and Congress that will translate into pressure to produce that amount.  It’s when they try to plan timber programs and sales that are more intensive than are appropriate for other resources (i.e. wildlife) that they often end up in litigation.

Unfortunately, what I’ve seen in the few revised plans that have gotten this far looks like a continuing tendency to declare as many acres as possible to be suitable for timber management (defined as growing a regulated crop of trees), and to be evasive about how much future volumes would be reduced because of the presence of at-risk wildlife species (and the standards and guidelines required to provide their habitat).

In addition, there is a greater emphasis on the role of agency in budgets in determining the amount of timber that will be produced, to the point that forest plan alternatives may differ as much in their assumed budgets as they do in actual management direction.  This is despite the fact that forest plans do not make budget decisions.

I get the feeling that there is a lack of transparency developing about the real tradeoffs involved in national forest management so that the Forest Service can once again promise everything for everyone, and then give itself the most flexibility to find timber sales on the largest possible suitable land base.

Here is an article on how the Flathead National Forest is addressing these questions in its plan revision.

Court holds up mining project after fire affects sensitive plant

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On July 11, the Idaho federal district court reversed a Forest Service decision to approve a mining exploration project on the Boise National Forest. The legal issues arose when the Grimes Fire burned habitat for the Sacajawea bitterroot (abbreviated “LESA”), in an area supporting the largest population of a plant designated as a sensitive species by the Forest Service. The court found that the analysis of changed conditions was inadequate, leading to violations of both NEPA and NFMA (Idaho Conservation League v. U. S. Forest Service):

“The Forest Service recognizes the baseline data needs to be re-established following the 2014 Grimes Fire but instead of compiling and analyzing that data up front, the Forest Service has incorporated those NEPA steps into the Project itself. The selected Alternative B anticipates conducting a new baseline study during the Project and then monitoring and mitigating to protect the LESA species. (CU080344-51.) This approach puts the cart before the horse by prematurely asking for approval of the Project before the necessary baseline data and analysis are conducted. NEPA demands that the Forest Service analyze a project’s impacts before it is approved; not as part of the Project itself.

“The Defendants’ reliance on the Project’s design features, monitoring, and mitigation measures does not cure the failure to re-evaluate and analyze the Project’s impact on LESA following the Grimes Fire.  Without accurate baseline data before the Project begins, it is impossible to know whether and to what extent the Project’s activities will impact LESA even with the proposed design features, monitoring, and mitigation features. As thorough as these features of the Project appear to be, the Forest Service’s failure to re-evaluate LESA’s current baseline leaves too much unknown for the Forest Service to have concluded that the Project will not have a significant impact on the LESA population.

“Additionally, the Complaint alleges the Forest Service violated NFMA by failing to follow Guideline BTGU01 which requires it to conduct up-to-date surveys of Sacajawea’s bitterroot habitat and plant presence. (Dkt. 1 at ¶ 77.)  Consistent with its ruling on the NEPA claim, however, the Court finds the Forest Service failed to re-evaluate the baseline data for LESA following the Grimes Fire prior to approving the Project. Without an accurate baseline, the Project’s monitoring and mitigation measures will not be effective or accurate. Failing to obtain the necessary baseline is contrary to Guideline BTGU01 because the Forest Service did not determine the existing suitable habitat for and presence of LESA within or near the project area. (CU053833.) For these reasons, the Court finds the Forest Service was arbitrary and capricious and in violation of NFMA.”

Another way that fires make life hard for the Forest Service, and another example of how short-cutting the NEPA process makes it harder.  A “trust us” approach doesn’t sell well under NEPA or NFMA.

Fire planning in the southern Sierras

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This article describes the draft revised plans for the Inyo, Sierra and Sequoia national forests (from an ag industry perspective).  The way it characterizes the plans’ approach to fire, maybe this approach would make Robin Stanley happy:

The preferred alternative, known as Alternative B, would replace wildland-urban defense and threat zones with a “risk-based wildfire restoration zone and wildfire maintenance zone” to allow for “strategically located fuel reduction treatments along roads, ridgelines and connecting areas with lower fuels to support larger landscape-scale prescribed burning.”

Under the heading “Ecological Integrity,” the preferred alternative calls for improved habitat for endangered and protected species and old-growth forest areas. It also calls for removal of some large and old trees in areas designated as wildfire-protection zones.

This will hopefully lead to some scrutiny of the “best available scientific information” behind the strategy.  I find it hard to believe that the local residents could be convinced to give up their “wildland-urban defense and threat zones.”  And then there’s the question of whether this science has any relevance to the forests of Idaho or elsewhere.

And then there’s the question of whether this approach is consistent with the natural range of variation for ecological conditions for at-risk species so that it really does improve their habitat.   If so, it would be a win for everybody.   Except the timber industry doesn’t like it.

But – I commend the Forest Service for treating fire planning as a core element of these plan revisions, and putting this out in public for discussion.

Even the 9th Circuit piles onto plaintiffs

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On May 6, the Ninth Circuit Court of Appeals upheld the Montana district court’s opinion in Alliance for the Wild Rockies v. Weber.  The Flathead National Forest Precommercial Thinning Project would thin about 500 acres a year in bull trout grizzly bear and arguably lynx habitat, and the decision was based on a categorical exclusion.  This looks like one of those cases where the judges tried to make the law match what they saw as the facts – The Ninth Circuit took three days to decide and quoted the district judge: “[t]his Project is the most innocuous logging project to be challenged in this court to date.”  The district judge also said, “Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species.”

I think the judge played a little loose with the law (NFMA and NEPA) failed to appreciate the importance of one “procedural misstep.”  Specific locations of the thinning activities were not identified.  With regard to treatments in riparian areas (and bull trout habitat), decisions are said to be left to the future judgment of a “fisheries biologist.” With regard to meeting a forest plan requirement for maximum distance to cover, the decision document is apparently silent, but the court accepts an ambiguous statement in the biological assessment as assuring compliance with the forest plan. Where environmental effects or compliance with plan direction may be different depending upon project layout, then that layout should be part of the decision reviewed by the public and signed by the decision maker.

The judge also incorrectly stated that the forest plan’s 300-foot riparian buffer standard did not apply.  He should have said that it did, but that the requirements applicable to it were met.