NEPA

How Does The Forest Service Scope Today, and What is Required? : Draft NEPA Regs

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I’d like to thank Susan Jane Brown, Anonymous, and others for engaging deeply and thoughtfully on the proposed NEPA regs. They’ve brought up many good points, which I’m going to try to separate into different threads. This one is about scoping. I’m hoping we can all get on the same page about what is required by the current scoping, and what practices are actually used.

One of the main talking points against the proposed reg is reducing public involvement. So we can look into exactly what happens now, and how that might change. I found this helpful information in the Forest Service (2012) NEPA Handbook. Note: my understanding of why the Forest Service developed their own NEPA regs in 2008 was so that they would have more legal oomph. The Forest Service’s sister agency in multiple use, the BLM, does not have NEPA regs but operates from a Handbook.

Here’s what the Handbook says about scoping:

Although the Council on Environmental Quality (CEQ) regulations require scoping only for environmental impact statement (EIS) preparation, the Forest Service has broadened the concept to apply to all proposed actions. Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS (§220.6). (36 CFR 220.4(e)(1))

A reasonable argument could be made that (all) other agencies scope without it being a requirement. Agencies like the BLM, for example. So the idea that the Forest Service would never scope without the requirement seems, to me, to be unlikely. Why did the Forest Service decide to do this when no other agencies do? Maybe someone out there knows that history and would share their knowledge.

So what does the scoping requirement require exactly? Here’s what the Handbook says:

The process of scoping is an integral part of environmental analysis. Scoping includes refining the proposed action, determining the responsible official and lead and cooperating agencies, identifying preliminary issues, and identifying interested and affected persons. Effective scoping depends on all of the above as well as presenting a coherent proposal. The results of scoping are used to clarify public involvement methods, refine issues, select an interdisciplinary team, establish analysis criteria, and explore possible alternatives and their probable environmental effects.

The methods and degree of the scoping effort undertaken for a given project vary depending on scope and complexity of the project (see the CEQ scoping guidance).
Scoping shall be carried out in accordance with the requirements of 40 CFR 1501.7. Because the nature and complexity of a proposed action determine the scope and intensity of analysis, no single scoping technique is required or prescribed. (36 CFR 220.4(e)(2))

Selection of scoping techniques should consider appropriate methods to reach interested and affected parties. For example, a project with potential localized effects to a small community might consider posting fliers at locations where they are likely to be seen.

This is all very interesting, as when CEQ talks about scoping, they are not thinking about the Forest Service, but are thinking about EIS’s, so it is the first step of a very long and complicated process with lots of requirements (doing an EIS).

At the same time, there don’t seem to be any specific requirements in the Handbook, other than “no single scoping technique is required or prescribed.” If it is “use your common sense” then what difference does it make to have the requirement? Note: I could argue this either way, if there’s a requirement to “use your common sense” versus just “using your common sense.”

(1) I could argue that having the requirement is suitably innocuous, so why get rid of it? How many court cases have there been about scoping? (I have no idea). The other point of view would be “why have an extra requirement that no other agency has?”. I couldn’t tell what the rationale was from the discussion on page 27545 of the proposed Rule, so we can only assume that it was to simplify the requirements. While this has been portrayed by some as being about “more logging” there are many CE’s that are much less likely to cause concern (and some, like the oil and gas one that we seldom hear about in op-eds) that might cause more concern.

(2) Given that, one could have another alternative in which scoping could be kept for some subset of CE’s, especially the new restoration CE (26) since the 3000 acre legislative CE’s require collaboration.

(3) It seems to me that there are solutions that could actually be better than just scoping. It seems like the idea of putting a project on the SOPA, with a name to submit comments to is seen to be not enough, but I think it may be just right for something like “shoulder widening or other safety improvements within the right-of-way for an NFS road.” But maybe the whole SOPA could be made more user-friendly. For example, people might fill out a form so that they could be notified of all projects and an email sent to them. And it might be handy for regional or national groups for this to be made so that they could sign up for all the relevant forests. We discussed these kinds of things about 15 years or so ago when the E-gov initiative was going on and the PALS database developed. It makes sense to me that notification and commenting could be streamlined and that responsibility for giving input could be shared somehow between the agency and interested parties.

Initiation of “Moving Toward Resiliency Within the Mokelumne to Kings Landscape” (MOTOR M2K) Project

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Thanks to Sue Britting for bringing this to our attention. Below are links to the information presented at the public meeting with regard to the large landscape NEPA project currently being initiated on the Stanislaus and Sierra National Forests.

Their argument seems to be that they want to work towards NRV, and based on historic conditions and acres burned, that will take doing more than they currently are doing. They have this interesting table in their briefing paper (attached below). Note that the total acreage of both forests is approximately 2,200,000 acres (not sure that is exactly the right denominator to use) so treating 20K acres per year, as they are currently doing, would be about 1 percent. Please feel free to check my math. Based on this table, their desire is to treat 10% of the Yellow Pine Mixed Conifer, but that 100K per year would be about 5%/year  of the acres on the two forests. I agree with others the this is perhaps overly ambitious personnel and funding-wise, but I also don’t see that it hurts to be ready NEPA-wise for some unknown increased level of activities and to be able to take advantage of opportunities as they occur.

Please check out all the NRV documentation, maps and photos in the Powerpoint 2019-0711_MOTOR_M2K_JUL 11 Presentation_V5revised. The 2019-0702_MOTORwithinM2K_Project_Brief describes the idea and the process. The BP also has links to other landscape-scale NEPA projects.

One suggestion for discussing this.. doing things differently is not necessarily a highly valued trait in Forest Service culture. I can’t remember who said something like “organizational antibodies to change attack new ideas, and suck the life out of them until they are dried up husks and blow away”. In my own experience, it can be hard on employees to be asked to devote their attention to something new, that isn’t “the way we’ve always done it”, and might not work out. So let’s try to assume the best about their intentions, and not give these human beings any unnecessary grief.

If SOPA Plus Comments is Not Enough, Then What Is a Reasonable Minimum Public Involvement Requirement?

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We’ve discussed the draft NEPA regs previously here and here. Right now they don’t include REQUIRING scoping for CE’s and EA’s, and I can understand that as I don’t think many other agencies require it (although they still do it). Here’s an interesting BLM document that talks about internal and external scoping. I tend to be for ideas that harmonize BLM and FS procedures as they make life easier for employees to go back and forth and for the public to understand on interspersed ownerships.

I think, based on the draft reg, that what they are REQUIRING is posting on the SOPA, and the ability for people to comment on the projects in the SOPA by writing in (aided possibly by an email list to interested folks when a new SOPA is posted) (but I could be wrong). But I think it might be useful to look at a real SOPA (the last one I looked at happened to be for the Stanislaus) and here’s the link.

What exactly does the requirement for scoping add, or not, that FS folks would not otherwise do? It seems to me that there are at least three schools of thought (1) line officers will always do the right thing (2) line officers will never do the right thing (that’s how TWS came up with 93.5% with no public involvement, although SOPA plus comments could be considered public involvement), and (3) there is a base level that is more than SOPA plus comments, but less than requiring scoping, that we can imagine and describe, that would leave flexibility but not allow the minimalist line officers to get out of things they should be doing to involve the public.

Given this real world SOPA, what do you think/imagine would be a good minimum requirement? Or do you think it should vary by category of CE or ???

Large-Scale NEPA and Specificity: Tennessee Creek Project Litigation

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Note, this might not be the final map.

I’m pretty sure we’ve talked about these landscape NEPA documents before. They have been questioned for lack of site specificity for treatments. Here’s another one that’s been successful, with an endangered species involved.

It’s the Tennessee Creek Project on the PSICC National Forest. The project area is 16,450 acres, and activities are expected to occur over 10- 15 years. Actions are a mix of thinning, clearcutting (lodgepole) and prescribed burning. Here are the acres treated:

Regenerate lodgepole pine through mechanical means on 3,790 acres.
Thin 2,685 acres of mature lodgepole pine stands. Pre-commercial thin 345 acres of advanced regeneration of lodgepole pine (3,030 acres total would be thinned).
Improve the health of aspen stands through prescribed fire and/or mechanical means on 180 acres.
Utilize prescribed fire on 5,485 acres.

I think it will be interesting to compare this with other successful landscape projects. We could track two things about them, project area, and acres treated divided by years, in this case about 10K/10 years or a “1K a year project.” Due to the number of acres treated this wouldn’t fit into the restoration CE. It’s interesting to speculate if you were a NEPA practitioner and had that CE possible, would you reduce the number of acres to fit, and how much work would that save (knowing that you still wanted to do more acres), with perhaps another future CE? Or is the limiting factor the budget, and your District’s budget allows a certain number of acres treated per year, and then you would decide how many years the work approved in a restoration CE would last?

From a Colorado Springs Gazette story here:

But the plan, known as the Tennessee Creek Project, which targets more than 16,000 acres of the Pike and San Isabel National Forests, hit a snag a few months after its final approval. On April 23, WildEarth Guardians, a nonprofit environmental advocacy group, sued the Forest Service, claiming that the agency’s plan has miscalculated the harm that would be done to the habitat of the threatened Canada lynx.

The project also represents what could be a disturbing trend in Forest Service practice, where logging projects are approved without specific details about areas that will be logged, said John Mellgren, an attorney with the Western Environmental Law Center that represents WildEarth Guardians.

“The real problem with the project is the Forest Service just drew a big circle on the map,” Mellgren said. “(They) are going to log some part of this circle, but won’t tell you where they are going to log. If they stayed out of those areas, we might not have a problem with the project right now.”

This quote raised some questions for me, because it seems to me that part of a landscape scale project would be to say what treatments would go where, not spatially, but say in terms of lynx habitat. Note: lynx was reintroduced to Colorado.

Sure enough, Judge Hartz did not agree with WEG, and also not on their idea that the project required an EIS. Note to Jon: SRLA figured prominently in the Judge’s discussion.

Here’s a link to his decision. With regard to “site-specific”

But Richardson did not hold that an agency’s EA or EIS always must specify the precise locations within a project area that will be affected. The problem in Richardson was simply that there had been no environmental assessment of the ultimate plan. The earlier assessment contemplated a significantly different project from what was later selected. That is hardly the case here. The EA analyzed what could happen whatever sites were eventually chosen for treatment by the Project, so long as the Project restrictions were satisfied. The Service’s analysis accounted for the uncertainty about treatment locations by evaluating the Project’s effects on lynx in a worst-case scenario in which all the mapped lynx habitat in the Project area is treated, and by including conservation measures to protect high-quality lynx habitat, such as not treating healthy spruce-fir stands or any stands with greater than 35% dense horizontal cover. Moreover, the Service had a valid reason for not identifying specific treatment sites in its EA: it intends to select treatment units based on changing on-the-ground conditions over the 10 to 15 years of the Project. NEPA leaves “substantial discretion to an agency to determine how best to gather and assess information” about a project’s environmental impacts. Biodiversity Conservation Alliance v. U.S. Forest Serv., 765 F.3d 1264, 1270 (10th Cir. 2014). The Service used that discretion reasonably, assessing the Project’s maximum possible effect on lynx habitat while also conserving agency resources and retaining flexibility to respond to changing conditions. See Utah Shared Access Alliance, 288 F.3d at 1213 (“By conducting an EA, an agency considers environmental concerns yet
reserves its resources for instances where a full EIS is appropriate.” (internal quotation marks omitted)). We note that the Service was not postponing the requisite environmental analysis until it picks the specific sites for treatment under the Project; rather, it was saying that such future analysis would be unnecessary because, in its expert opinion, whatever sites it ultimately chooses (within the constraints imposed by the
Project), there would not be a negative impact on the lynx.

The latest multiple-use

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Pop-up shops!  What is a pop-up shop?  They are defined by someone who provides them as “temporary retail spaces that sell merchandise of any kind … Pop-up shops are taking over the retail world and rethinking traditional brick-and-mortar and big-box stores…”    The National Forest Foundation apparently had to jump on this bandwagon with Busch beer.  So here you go …. ,  a pop-top pop-up shop, coming to a national forest near you.

Conservation lands in many places have been overrun by crowds attracted by social media.  This seems like it has the same potential.  It would be interesting to look at the NEPA analysis for these permits.  (Do you suppose it’s in grizzly bear habitat?)

Forest Service Draft NEPA Regulations- Restoration CE

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From the FS Restoration website https://www.fs.fed.us/restoration/

You can find out the rationale for this proposed CE in a (very nicely explained IMHO) document here. Kudos to the EMC staff! I also liked their benchmarking with other agencies’ CE’s- not sure that that’s been done before.

Here’s the text:

36 CFR 220.5(e)(26). Ecosystem restoration and/or resilience activities on NFS lands in compliance with the applicable land management plan, including, but not limited to the plan’s goals, objectives, or desired conditions. Activities to improve ecosystem health, resilience, and other watershed conditions cannot exceed 7,300 treated acres. If commercial/non-commercial timber harvest activities are proposed they must be carried out in combination with at least one additional restoration activity and harvested acres cannot exceed 4,200 of the 7,300 acres.
(1) Restoration and resilience activities include, but are not limited to:

(i) Terrestrial and aquatic habitat improvement and/or creation,
(ii) Stream restoration, aquatic organism passage, or erosion control,
(iii) Road and/or trail decommissioning (system and non-system),
(iv) Control of invasive species and reestablishing native species.
(v) Hazardous fuels reduction and/or wildfire risk reduction,
(vi) Prescribed burning,
(vii) Reforestation,
(viii) Commercial harvest, and/or
(ix) Non/pre-commercial thinning.

(2) Road and trail limitation. A restoration/resilience activity under this category may include:
(i) Construction of permanent roads up to 0.5 miles.
(ii) Maintenance or reconstruction of NFS roads and system trails, such as relocation of road or trail segments to address resource impacts.
(iii) Construction of temporary roads up to 2.5 miles. All temporary roads constructed for a project under this category shall be decommissioned no later than 3 years after the date the project is completed.

Definition of Restoration
The Forest Service defines restoration in its Ecosystem Restoration Policy (FSH 1909.12 and 36 CFR 219.19) as “the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed. Ecological restoration focuses on reestablishing the composition, structure, pattern, and ecological processes necessary to facilitate terrestrial and aquatic ecosystems sustainability, resilience, and health under current and future conditions. Functional restoration focuses on the underlying processes that may be degraded, regardless of the structural condition of the ecosystem.”

It seems to me that the activities have to meet the legal bar of “activities to improve ecosystem health, resilience, and other watershed conditions”. I don’t really understand what viii means.. as I think the environmental impact is from the removal of trees, and not whether it’s commercial or not.

Here’s what the analysis Matthew posted here says about this:

Broadly defined “ecosystem restoration and/or resilience activities” on up to 7,300 acres, including commercial logging of up to 4,200 acres, as long as it includes at least one restoration add-on (e.g., replacing a culvert to restore fish passage). The CE could be used to authorize up to 6.6 square miles of logging with no public input or environmental analysis.

I actually disagree with the “no environmental analysis”. The deciding official generally lays out the approach to a project from the ID team. You can find your own examples of categorical exclusion decision memos, I collected them for a while. Here’s an example. But I’m talking what the FS actually does and perhaps the folks who wrote this analysis are thinking “the worst that possibly could be done.” But they still have to document why the CE is appropriate in the DM.. so?

Would people like it better if the maximum were say 1000 acres of thinning (no regeneration harvests of living trees?). I think it’s partially a “not trusting that the FS won’t do something really bad with this flexibility”. How could that be reduced? Another collaborative requirement (similar to the legislative CE’s)?

New Forest Service research confirms that today’s wildfires moderate future fires

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“The research results clearly indicate that wildland fire regulated the ignition and spread of later wildfire in all study areas.” This might tend to produce a “duh” response, but apparently nobody had really studied it.  Here is the Forest Service overview of their research project.

Here is what I found most interesting – the Forest Service recognizes that, “Those responsible for managing wildland fires often face extreme pressure to quickly extinguish blazes due to short-term impacts such as smoke pollution or lost timber resources,” and “Parks’ research serves as a reminder that wildland fire, under the right fuel and weather conditions, can act as an effective fuel treatment to improve forest health and prevent future blazes from becoming large, costly and more dangerous” (my emphasis).

It should also be a reminder that when the Forest Service designates an area as suitable for timber production, and bases timber targets on that, it creates an incentive to put fires out, which increases the likelihood of more costly, dangerous fires.  This cause and effect relationship needs to be disclosed in the environmental analysis for forest planning, where the timber suitability decision is made.

The effects (NEPA) of bake-sale (timber-sale) funding of restoration

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I  said here: “NEPA documents have started saying that cutting down trees is beneficial for the environment because it produces funding to replace culverts and the like. That may not be a defensible effects analysis.”

Sharon asked: “I don’t see why people need to say that at all in NEPA docs. Do you have examples?”

I do.  I’ll provide two here that I have encountered with forest plan revisions.

The Flathead revision FEIS provided very little useful information about aquatic effects, but it revealed this as part of their logic (p. 131, but their point seems to be that it doesn’t matter):

Although alternative D proposes more timber harvest and the potential to generate more Knutsen-Vandenberg revenue for restoration actions such as best management practices, road decommissioning, and culvert replacements that would benefit aquatics, it is anticipated that money would still be available from partnerships and appropriated watershed dollars to implement restoration projects regardless of how much money is generated from timber sales.

The Helena-Lewis and Clark was more to the point that it DOES matter in their revision DEIS (p. 71):

Alternative E would result in the highest volume of timber production and therefore have the potential to generate more money from timber receipts for restoration projects for watershed and fisheries. If more money is available from alternative E then there would be more short-term impacts from restoration projects but there would be more long-term gains

I think I have seen other better examples for projects that have stated that the proposed action is better for the environment than no action because the timber sale revenues will be used for restoration activities.  Maybe I’ll run across more examples, but I wanted to post this now so that others could contribute examples they are aware of.

So no, I don’t think they should include this in NEPA documents.  The problem is that effects disclosed in an EIS must be reasonably foreseeable.  If the funding process works in a way that makes money available but does not commit it to a specific use, then any effects are not reasonably foreseeable.  This is more obvious in the forest planning context because restoration is only a “potential” (to quote both examples above).  The result of including this kind of poorly substantiated assumption in an effects analysis is to distort the comparison of alternatives and to provide less meaningful information for the decision-maker and the public.  This tends to subvert the core purpose of NEPA.

A big timber project gets a big lawsuit

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(Clear-cutting in the Tongass Forest, Alaska | by musicwood)

 

Over the years, the Forest Service has dreamed of being able to do “big gulp” projects, or in contemporary terms, “landscape scale” projects. These essentially amount to doing one EIS for a large area and a long time period before the actual locations and treatments have been determined. There are many of these in progress now across the country, and the approach is being tested (again) in court in Alaska on the Tongass National Forest. This Earthjustice news release includes a link to the complaint (filed May 7), which includes the following:

The Prince of Wales Landscape Level Analysis Project (the Project) in the Tongass National Forest includes extensive old-growth and second-growth logging. The project area is roughly 2.3 million acres. The project area contains about 1.8 million acres of national forest land. The Project authorizes logging of up to 656 million board feet (mmbf) of timber. The U.S. Forest Service (Forest Service) estimates that this logging would occur on over 42,000 acres. The Forest Service estimates about 164 miles of roads associated with the logging would be constructed as part of the Project. The Record of Decision authorizes implementation of the Project to take place over a span of fifteen years.

The Forest Service has authorized this Project using an approach that has been soundly rejected by the courts. The agency authorized the Project before identifying specific locations for logging or road construction. As a result, the FEIS does not adequately describe the direct, indirect, or cumulative impacts of the Project on the human environment or on subsistence uses.

In the 1980’s, the Forest Service lost at least two court decisions for failure to provide adequate site-specific information and analysis in the environmental impact statements (EISs) for Tongass timber sales. City of Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985); City of Tenakee Springs v. Courtright, No. J86-024-CIV, 1987 WL 90272 (D. Alaska June 26, 1987). In subsequent Tongass timber sale EISs, the Forest Service began including comprehensive, detailed quantitative and qualitative descriptions of the logging and road access plans for each harvest unit proposed for sale. When it did so, the courts upheld the adequacy of the site-specific information. Stein v. Barton, 740 F. Supp. 743, 748-49 (D. Alaska 1990).

The FEIS’s Response to Comments states that “it is not possible to determine all of the direct, indirect, or cumulative impacts to wildlife habitat or connectivity that could result from this project before implementation.” Implementation of a particular part of the project has begun, apparently with no project-specific NEPA planned to determine those effects. Plaintiffs necessarily are challenging the entire project decision for violation of NEPA (and ANILCA) procedures.

There is a related NFMA issue that results from the Tongass forest plan imposing data requirements on projects that are hard to meet at this large scale, making the project inconsistent with the forest plan.  While this involves specific language in the Tongass plan, all forest plans explicitly or implicitly require certain analysis prior to projects.  The bigger the area, the harder that is to do.  And the trend of recent plan revision documents is to put off decisions about things like ecological integrity until project planning.  If successful, this could create an imposing analytical burden for large-scale projects like this one.

They are still going to have to do a site-specific NEPA analysis somewhere. The end result of all this may be that the Forest Service will create another level of planning and NEPA for “timber programs.” Just like the old days, except now added to the existing current plan and project level processes.

State “primacy” for NEPA documents

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Second maybe to only Utah for creative ways to privatize federal lands, the State of Wyoming has come up with another scheme. This article reports on “a conversation between Gov. Mark Gordon and Secretary of the Interior David Bernhardt about how Wyoming could assume a role that’s now the purview of federal agencies.”

“The notion here would be could the state have more of a primary role in establishing the beginning steps of [the] NEPA [process],” Gordon told WyoFile in late March. “In other words, could the state organize the NEPA effort and kind of walk through it and deliver [results]” to a federal agency.

Following Gordon’s lead, the Wyoming Legislature expects to study over the next nine months “state primacy and oversight of environmental assessments and environmental impact statements …”

“The Committee would study enacting a legislative framework to assert primacy over these [environmental impact] assessments,” the Legislature’s assignment reads. The goal is “a memorandum of understanding with the Department of the Interior to assume the responsibilities of these assessments that are currently required under the National Environmental Policy Act,” state documents say.

The states are already given a front row seat in federal NEPA processes, and the federal government can contract for NEPA services; it is the apparently new concept of “primacy” that is going to run into legal problems. It’s not clear from the examples provided whether the issue is decision-making authority, or to get “more of this work done in a timely manner.” If it’s the latter, I’m sure the feds would be happy to have state volunteers or state dollars (but isn’t this the focus of the “Good Neighbor” program?), though increased legal scrutiny of potentially biased NEPA products should be expected. If “primacy” means “the final word” on anything in a NEPA product they should probably spend their committee time elsewhere (like Congress).