NEPA

Cherokee National Forest objects to objection

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Plaintiff environmental groups expressed concerns from the beginning of the Dinkey Project about the effects on water quality because of erosion caused by previous nearby timber projects in similar terrain.  After the Forest released the draft EA on the Project it also released a monitoring and evaluation report that revealed the erosion problems caused by the earlier projects and included recommended mitigation measures.  The EA and Decision Notice for the Dinkey Project failed to acknowledge this information and relied on mitigation measures that had failed in the earlier projects.  The complaint alleges violations of NEPA and also NFMA because the Project would be inconsistent with the forest plan requirements for soil protection and would cause irreversible resource damage.

The plaintiffs also filed an administrative objection to the Dinkey Project raising these concerns.  The Forest Service dismissed the objection, citing failure to comply with the requirements for objections as follows:

“Based on the information provided in your objection, the issues raised do not demonstrate connection to prior comments with specific violations of law, regulation, or policy. In addition, no specific proposed remedies are stated for consideration by the Reviewing Officer for resolving the objection. Therefore, the objection does not comply with 36 CFR 218.8(d)(5) and (6).”

Here are those requirements:

(5) A description of those aspects of the proposed project addressed by the objection, including specific issues related to the proposed project; if applicable, how the objector believes the environmental analysis or draft decision specifically violates law, regulation, or policy; suggested remedies that would resolve the objection; supporting reasons for the reviewing officer to consider; and

(6) A statement that demonstrates the connection between prior specific written comments on the particular proposed project or activity and the content of the objection, unless the objection concerns an issue that arose after the designated opportunity(ies) for comment (see paragraph (c) of this section).

The complaint describes how plaintiffs have met these requirements.  In my experience, it is unusual for the Forest Service to nitpick an objection like this, especially in a case where the parties have consistently described what their concerns are and what they would like the agency to do.  It’s certainly not consistent with the idea that pre-decisional objections are more collaborative than post-decisional appeals.  Is this a unique situation or is it a manifestation of Trump Administration policies to get rid of barriers to “getting the cut out” (again, “GTCOA”)?

National monument planning on a fast track

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The BLM will hold four scoping meetings the week of March 26  to identify key issues and planning criteria for two environmental impact statements (EIS) for the Bears Ears and Grand Staircase-Escalante national monuments, “but monument supporters say the BLM should holster its planning process until the courts resolve lawsuits seeking the monuments’ restoration…  Culver and other critics fear Interior is rushing to get lands holding fossil-fuel deposits back under lease to private industry quickly, before the courts have a chance to revoke Trump’s action and put the minerals off limits again…  Those deposits were reopened to mineral entry beginning Feb. 2, but BLM officials say they cannot be leased for development until a new management plan is in place for the 862,000 acres removed from the monument.”

So there is a planning process for lands removed from the GSE monument that were discussed here.  A new plan might authorize the chaining project that would be prohibited by the current plan, but it seems premature for the BLM to be developing that project assuming the plan would be changed to allow it.

Rural New Mexico for wilderness?

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Grant County New Mexico ranchers have sued the Forest Service over grazing rights and the county commissioners are considering suing over a travel plan.  However, they have recently aimed their fire in another direction, at the Air Force, apparently to protect the Gila National Forest from planned overflights.

The Air Force is in the early stages — what lead airspace analyst Alan Shafer called “the end of the beginning” — of developing an environmental impact statement, as required by the National Environmental Policy Act, for three alternative areas in which to fly the F-16s. One of those alternatives is located over a vaguely defined swath of airspace over the Gila National Forest, near Grant County communities as well as over sections of the Gila and Aldo Wilderness areas.

When area residents discovered this alternative was being considered, hundreds quickly took up a call against the possibility. Shafer said so many Grant County residents commented, in fact, that their numbers overshadow those from anywhere else in the state — whether those commenters live near identified alternatives or not.

“We have, probably by a factor of ten, more comments from this area than any other,” Shafer told the large crowd on Thursday, which filled one of the ballrooms at the Grant County Veterans Memorial Business and Conference Center. “I understand what you’re saying and how important the Gila National Forest and wilderness area are to you.

It sounds like the Air Force was successful at getting a wide range of national forest interests to come together and fight a common enemy.  (Or maybe the “airspace analyst” just wasn’t very good at reading the crowd’s interests.)  Interestingly, there was nothing on the Gila National Forest website about it, including any indication of their role or whether they would take a position.

EADM- Process Predicament Redux?

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Andy Stahl reminded me of the Forest Service’s previous work on Process Predicament. It’s a 40 page paper, and it is interesting to reflect on what has changed and what hasn’t in the last 16 years. Here’s what they said in 2002:

Unfortunately, the Forest Service operates within a statutory, regulatory, and administrative framework that has kept the agency from effectively addressing rapid declines in forest health. This same framework impedes nearly every other aspect of multiple-use management as well.
Three problem areas stand out:

1. Excessive analysis—confusion, delays, costs, and risk management associated with the required consultations and studies;

2. Ineffective public involvement—procedural requirements that create disincentives to collaboration in national forest management; and

3. Management inefficiencies—poor planning and decision-making, a deteriorating skills base, and inflexible funding rules, problems that are compounded by the sheer volume of the required paperwork and the associated proliferation of opportunities to misinterpret or misapply required procedures.

These factors frequently place line officers in a costly procedural quagmire, where a single project can take years to move forward and where planning costs alone can exceed $1 million. Even noncontroversial projects often proceed at a snail’s pace.

Forest Service officials have estimated that planning and assessment consume 40 percent of total direct work at the national forest level. That would represent an expenditure of more than $250 million per year. Although some planning is obviously necessary, Forest Service officials have estimated that improving administrative procedures could shift up to $100 million a year from unnecessary planning to actual project work to restore ecosystems and deliver services on the ground.

…..

It is time to tailor the Forest Service’s statutory, regulatory, and administrative framework to the new era of public land management. Part of the solution will be internal. However, the problem goes far beyond the range of control of any single agency, or a single branch of the government.
The Forest Service will need to work with partners, both in and out of government, to establish a modern management framework. By working together with partners to create and operate within such a framework, the Forest Service can focus more of its resources on responsible stewardship and thereby improve public trust and confidence in the agency’s ability to care for the land and serve people.

Some of the efforts to improve NEPA included more contracting, better IT support for applications and a variety of other things (many of which our blog regulars were involved with). It sounds like EADM is covering some of the same territory. I’d be interested in the views of others on 1) what has been improved in this time period, and 2) what challenges remain.

Environmental Analysis and Decision Making (EADM) – Regional Partner Roundtables This Month- Be There or ???

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Jasper Mountain Case Study

People on this blog tend to have more interest than the average (Smokey?) bear in NEPA and NEPA improvements and challenges. This seems to be an opportunities for “partners” to participate in Regional (and there are also Forest roundtables). In case you have not been invited, I think you can call and invite yourself. It would be interesting to hear back from attendees and your impressions.

Here’s a handy description, thanks to the National Forest Foundation (page here):

The Forest Service is undertaking an Agency-wide effort to improve processes related to environmental analysis and decision making (EADM). The agency’s intent is to gain efficiencies and effectiveness in these processes while continuing to value diverse stakeholder perspectives.

Join us as we explore challenges and opportunities for improvement and innovation. We invite partners to identify issues and concerns they experience and share their creative ideas and concerns they have about this effort.

The Forest Service will host Regional Partner Roundtables in every region and the Washington Office by March 31, 2018. For more information on your Region’s specific roundtable, click the respective link to the right.

Roundtables Objective:

Collect diverse partner feedback to inform EADM processes on local, regional and national scales.

Purposes of EADM Partner Roundtables:

Share why changes are important for achieving the USDA Forest Service mission
Identify, discuss, and capture partner perceptions on barriers and solutions
Explore what roles partners can play moving forward
Support dialogue to strengthen relationships between partners and the USDA Forest Service
Explain how partner inputs will be incorporated from the Roundtable and from participation in the formal rulemaking process

Support Materials
The Why, What and How of the Regional Partner Roundtables

Forest Service EADM Website

As far as I can tell, there is a Sharepoint site to share information and case studies (like the Jasper Mountain case in the photo above), but that is only open to employees?

Has “energy dominance” lost a battle?

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Opponents of fracking on the Wayne National Forest filed a lawsuit last spring alleging the failure of the BLM and Forest Service to comply with NEPA and the Endangered Species Act in authorizing oil and gas leasing.  They argued that when the forest plan was revised in 2006 it didn’t address the effects of fracking.  Plaintiffs suggest that is the reason why the Forest has now decided to again revise it forest plan.   (Which would make it one of a very few forests to re-revise, so it is noteworthy that the Wayne was put in the queue ahead of many forests that have not been revised at all.)

The Forest says this:

For years, the USDA Forest Service, Ohio Department of Natural Resources (ODNR), and USDA Natural Resources Conservation Service (NRCS) have been innovating ways to collaborate in the restoration of southeast Ohio’s oak and hickory forest ecosystems. The next step to realizing that objective is having compatible long-term management plans that allow the organizations to work together more efficiently. With ODNR’s intention of revising their State Action Plan by 2020, the Wayne National Forest decided the time is right to revise its Land Management Plan, to facilitate collaborative work efforts with the State.

That’s a worthy goal, but not one I would have expected to get it to the top of the Forest Service’s priority list for plan revisions.  Let’s see if they argue in court that starting revision would moot the lawsuit.  Regardless, “The public can now demand a plan that bans fracking in the Wayne.”

What if forest plans were a blank check?

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There’s an interesting observation in this opinion piece about the process for amending the Allegheny forest plan to allow construction of the Atlantic Coast Pipeline. It required replacing standards in the forest plan for this “project” – here’s one of them:

“Standard SW06: Severe rutting resulting from management activities shall be confined to less than 5 percent of an activity area with the exception of the construction of Atlantic Coast Pipeline, where the applicable mitigation measures identified in the COM (Construction Operations & Maintenance) Plan and SUP (Special Use Permit) must be implemented.”

The problem this author points out is that the COM was written by the permittee and it wasn’t written when the public NEPA process was going on. The result was the Forest essentially writing a blank check for plan components that the Forest did not evaluate the effects of and the public did not get a chance to comment on. I think there’s some (legal) problems here.

This story got my attention because I’ve been looking at a lot of plan components being proposed for forest plans being revised under the 2012 Planning Rule.  One common theme is to not make any commitments in a forest plan, often using language that says essentially, “we’ll figure it out later,” often project-by-project.  It’s kind of hard to evaluate the effects of that forest plan decision. Sometimes it’s kind of like this example – where the forest plan defers to someone else, for example the states to tell them how to manage for wildlife. But there’s an even bigger problem when there are legal requirements that a forest plan must meet, particularly those related to plant and animal diversity.  A plan component that writes a blank check for a future decision does not demonstrate legal compliance.

New mountain top radio tower causes static

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The Humboldt-Toiyabe National Forest has gone a century (or however long it’s been since they invented radios) without radio service on some of its lands, but has decided that it needs it now, and that it requires the use of a mountain top with no development on it yet, and that there is no impact on the environment of doing that.  They say it technically fits a categorical exclusion because it involves less than 5 acres of land, and there are no extraordinary circumstances.  But it’s on the top of a pristine scenic mountain, and there is apparently an alternative location that is already developed?  And it sounds like it might require a forest plan amendment (meaning they told the public they intended to keep the mountain top pristine).  No wonder people are complaining.  It sounds like the kind of tone-deaf action that makes the agency look bad.  Do the EA; consider alternatives.

Forest Service to revise NEPA procedures

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The Forest Service is proposing to revise its NEPA procedures (including its regulations at 36 CFR part 220, Forest Service Manual 1950, and Forest Service Handbook 1909.15) with the goal of increasing efficiency of environmental analysis. The Forest Service’s NEPA procedures were last reviewed in 2008 when the Agency moved a subset of its NEPA procedures from the Forest Service Manual and Handbook to the Code of Federal Regulations. However, the Agency’s NEPA procedures still reflect in part the policies and practices established by the Agency’s 1992 NEPA Manual and Handbook.

The Agency is seeking public comment on the following:

  • Processes and analysis requirements that can be modified, reduced, or eliminated in order to reduce time and cost while maintaining science-based, high-quality analysis; public involvement; and honoring agency stewardship responsibilities.
  • Approaches to landscape-scale analysis and decision making under NEPA that facilitate restoration of National Forest System lands.
  • Classes of actions that are unlikely, either individually or cumulatively, to have significant impacts and therefore should be categorically excluded from NEPA’s environmental assessment and environmental impact statement requirements, such as integrated restoration projects; special use authorizations; and activities to maintain and manage Agency sites (including recreation sites), facilities, and associated infrastructure.
  • Ways the Agency might expand and enhance coordination of environmental review and authorization decisions with other Federal agencies, as well as State, Tribal, or local environmental reviews.

Bigger projects, more categorical exclusions, shorter timelines, but “The Agency will continue to hold true to its commitment to deliver scientifically based, high-quality analysis to decision makers that honors its environmental stewardship responsibilities while maintaining robust public participation.”

Earth Island Institute v. Elliott (E. D. California)

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This case was decided on November 16, but has not yet been included in a Forest Service litigation summary. At issue is the Bull Run project, a fire salvage restoration project to treat a strip of land along an area of roadways affected by the Cedar Fire on the Sequoia National Forest. The court denied the motion for a preliminary injunction. The Forest determined that the project could be categorically excluded from an EIS, and that there were no extraordinary circumstances that would prevent the use of a CE.

The court determined that the main issue involving the use of a CE was “whether it is reasonable to interpret a project that “salvages” hazard trees on a large scale as “routine road maintenance.”  Here is the CE:

(4) Repair and maintenance of roads, trails, and landline boundaries. Examples include but are not limited to:

(i) Authorizing a user to grade, resurface, and clean the culverts of an established NFS road;

(ii) Grading a road and clearing the roadside of brush without the use of herbicides;

(iii) Resurfacing a road to its original condition;

(iv) Pruning vegetation and cleaning culverts along a trail and grooming the surface of the trail; and

(v) Surveying, painting, and posting landline boundaries.

After reviewing several similar cases, the court concluded, “the Court cannot determine with certainty at this stage of the case to what extent the Bull Run project is a true commercial “salvage” operation or whether it is, in practice, more like the Nez Perce project (which denied it was a salvage project), or whether, possibly, this is a distinction without a difference.” The court held: “For purposes of this motion for a preliminary injunction, the Court need not definitively determine the issue on the merits; it is enough to conclude that success on the merits as to the CE issue is unclear.” Thus plaintiffs had not made their case for likelihood of prevailing. (I think the FS got away with one here, especially because there is another CE for salvage projects, but for limited acreage; maybe it will become more “clear” at trial.)

The court found no extraordinary circumstances with regard to the federally endangered mountain yellow-legged frog and the Pacific fisher and California spotted owl (both designated as sensitive species by the Forest Service). For the spotted owl, the court determined that the Forest had adequately considered information about their use of post-fire areas (including submissions from the John Muir Project and Chad Hanson). Lack of quality fisher habitat swayed the court to accept the FS explanation regarding fisher connectivity. The project included 30 “site-specific measures” designed to minimize the risks to the frog, and the court cited the FWS conclusion that the resulting risk to individuals was low. (These measures would be good candidates for forest plan components when the Sequoia revises its forest plan.)