NEPA

As far as I know,  this is the current list of CEs (the last perhaps adopted from the BLM?).   It is confusing to talk about them (and the numbers have changed), so I have given them names. See if you like the names,  or would prefer other ones.

Is the list complete? I seem to remember that some insect and disease ones (13 and 14?) once existed.  I’d like to keep a complete list and keep it updated so we would be all operating from the same set of information.

If your organization (including the FS) has your own list, please send or link below.

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I’d like to give a shout-out to the Sierra National Forest for one of the most extensive CE public involvement processes (HFRA 605)  I’ve ever read of for the Gigantea Fuels Reduction and Restoration Project (photo above). The below is from the (32 page) DM. And there’s a separate (27 page) response to comments, with about six pages of scientific citations. It seems to me that, say, if they had used an EA, and the John Muir Project had provided an objection, the context of the discussion would not be all that different from the original public comment.

SCOPING AND PUBLIC INVOLVEMENT
In 2022, scoping for the Sierra National Forest Emergency Giant Sequoia Fuel Reduction Project
initiated the environmental review process for treatments in both Nelder Grove and McKinley
Grove. Scoping to the public began November 8, 2022, with multiple stakeholders and interested
parties invited to collaborate in the planning phase of the Sierra National Forest Emergency
Giant Sequoia Fuel Reduction Project. One scoping response related to the Gigantea Project was
received from SFL with a subsequent meeting held to address concerns raised (see above.)
In early 2023 a decision was made to analyze the two sequoia groves in different project
documents and therefore the Sierra National Forest Schedule of Proposed Actions entry for the
Sierra National Forest Emergency Giant Sequoia Fuel Reduction Project was canceled and
replaced with two new projects. Two separate processes continued, one for the Nelder giant
sequoia grove (that used the July 2022 Emergency Response Authorization (USDA Forest
Service. 2022b)) and another, this separate process for the McKinley Giant Sequoia Grove. This
project is listed as “Gigantea Fuels Reduction and Restoration Project” in the Sierra National
Forest Schedule of Proposed Actions, where it has been updated periodically. Due to increases in
the scale of the Gigantea Project and its activities, a second scoping took place between
December 21, 2023, and January 22, 2024. Response to the second scoping was more robust
with six comments received from seven institutions. Fresno County Board of Supervisors,
Stewards of the Sierra National Forest, California Four Wheel Drive Association Sierra Forest
Legacy, and the John Muir Project submitted comments before January 22, 2024. The former
four institutions expressed support for project actions to reduce fuel loading, accomplish
landscape restoration, and reduce wildfire risk for people and nature (including the McKinley
grove). The latter, John Muir Project, was opposed to the project.

The comments received included but were not limited to the following issues: 1) protection of
road and trails during project activities; 2) keeping temporary roads that are constructed during
the project open after the project; 3) ensuring adequate protection of sensitive resources
(including threatened and endangered species, their habitat, and Sierra National Forest sensitive
species/species of conservation concern), and archaeological site/historic/cultural properties).
Sierra Forest Legacy was concerned that the project does not impact sensitive resources to the
point where extraordinary circumstances would arise, necessitating an Environmental
Assessment or Environmental Impact Statement. These comments were all reviewed, considered,
and addressed in a document titled Consideration of Scoping Comments (USDA Forest Service
2024a). Where appropriate, their constructive suggestions have been assimilated in the project’s
proposed actions (including the design criteria developed to protect sensitive resources). Roads
and trails will be protected, as will all categories of sensitive resources. Taking into consideration
the comments that we received, the project’s design criteria to protect sensitive resources, and
our formal consultation with the USFWS (U.S. Fish and Wildlife Service 2024), I have
determined that the project will not generate Extraordinary Circumstances.
Subsequently, John Muir Project, Sierra Club Tehipite Chapter, and Sequoia Forest Keepers
(JMP et al.) submitted a collective letter January 26, 2024, opposed to the project. The comments
received from the John Muir Project singly, and then collectively with the Sierra Club and
Sequoia Forest Keepers expressed concerns about a large number of issues that included but
were not limited to the following: 1) the status of the Categorical Exclusion and compliance with
its terms/requirements: 2) adherence to current Forest Service old growth forest protection
Gigantea Fuels Reduction and Restoration Project policy; 3) potential impacts to Pacific fisher and California spotted owl; 4) the commenters’
issues with Forest Service interpretations of giant sequoia fire ecology and management; and 5)
the commenters’ issues with fuels reduction and restoration projects. These commenter’s
expressed assertions that included but were not limited to the following: a) the Categorical
Exclusion we were considering had expired: b) thinning increases fire severity; c) higher-density
closed canopy forests are less prone to severe fire than semi-open canopies; d) tree removal is
not necessary prior to conducting prescribed burns: and e) commercial thinning and post-fire
logging/clearcutting makes wildfires spread fast and/or burn more severely, and this puts nearby
communities at risk. We carefully reviewed all the comments and reviewed the best available
science for each issue raised. We also reviewed the status of the Categorical Exclusion with the
Washington office of the USFS and established that it is current. The record of our review and
consideration of the range of issues raised by the JMP et al. can be found in the document titled
Consideration of Scoping Comments (USDA Forest Service 2024a).

 

We’ve been having an interesting discussion about the Fre-Wi’s use of Category 6, which has expanded into other areas.  Many thanks to John Persell, who engaged with us and reminds me how much I miss learning from, and strategizing with, my OGC colleagues when I was with the FS.    Here’s a link to his comments directly.

Yes, this case took a long time from when it was first filed until this decision on Tuesday. That included a trip up to the Ninth Circuit and back to the district court on remand. The AFRC press release you link to does not appear to acknowledge that remand. On remand, Judge McShane finally reached the merits of plaintiffs’ claim:

When the Forest Service promulgated CE-6, did it provide findings that supported a “no significant impacts” determination for commercial logging of unlimited acreage?

Judge McShane examined the record and determined the agency had not done so, and thus invalidated this particular CE’s use, including for the three logging projects on the Fremont-Winema National Forest.

John explains why it took so long. That is very helpful to understand.  And if no one could find the record supporting the category, that would be a problem. That’s one of the reasons folks (when I was in NEPA) were cautious to use it.  Without reading the FS arguments (are they available somewhere?) it’s hard to tell what the record for the category was or wasn’t.

Regarding the Trump Administration’s role here, during the most recent round of briefing the Forest Service argued it needed CE-6 to implement Executive Order 14225 (Immediate Expansion of American Timber Production). That EO, of course, directed the Forest Service to identify any and all ways “to fully exploit our domestic timber supply” by avoiding NEPA and ESA “burdens.”

I want to stress that the Forest Service does not choose its litigators, which are provided by the Department of Justice and do not necessarily reflect the views of anyone in the FS.  It’s a bit of a silo wherein DOJ and the FS have separate missions and goals, with separate bosses, albeit always in the same Admin.

Now I am the least litigation-oriented  person imaginable, but I would not be making the argument in a 9th Circuit courtroom that something was necessary for a Trump Admin agenda item.  I can only imagine that there is some context for the DOJ attorney’s comments that we might be missing.   We could check, if we knew where those briefings were filed.

As to “what verbiage” our groups would be seeking regarding logging projects of this scale, it’s important to recognize that a brief scoping notice and a brief CE decision memo do not provide the same consideration and disclosure of impacts and project features as an environmental assessment or environmental impact statement.

I agree that the public needs to see the proposal in more detail to comment.  This would be the “draft EA”.  On the other hand, I’ve seen EAs and CE analysis of about the same length and depth of analysis. And there’s one more tweak.. if the public can see and comment without litigation being possible.. as in CBM (condition based management).

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That’s why I’d like to open up submissions of  “favorite EA”… we could bring individual EAs up for discussion.  The presenter would give their views on what they like about it- think about criteria like conciseness, readability, visuals, and looking at all the right things in the right depth -and see where we agree.  So please submit yours.. and I will take a look at some in the interim.   During the Process Predicament period, we had an internal FS competition and gave out NEPA awards to units.  I can’t really do that in terms of financial awards to the team, but maybe someone with better funding sources will help out.

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In addition, commercial logging inherently has greater impacts on environmental values like habitat and soils than non-commercial treatments, which involve less heavy equipment, less use of roads, and generally lighter-touch prescriptions.

I’m not sure that’s always true, depending on where you are. Here in Colorado, for example, I see private folks doing fuel treatments using the same kinds of equipment even when they can’t sell their trees.   They need to remove larger trees and there aren’t many alternatives.  If the ground is flat enough, people bring in harvesting equipment and pile the logs along the road, whether they are sold to sawmills, given away as firewood, or chipped.

I’m a fan of the Bear Wallow Design Criteria document.  I like how it has columns for objective, design features, locations and justification.  Most of the justifications point to the Forest Plan, where the design criteria were no doubt already analyzed in the EIS.

 So we feel full NEPA analysis through an EA or EIS is warranted for commercial logging projects of this scale due to their potential for significant impacts.

The Bear Wallow DM says that commercial thinning “could take place on up to 10,000 acres.”  Interesting that in this letter on FOFA from Megafire Action.

The State of California has requested that Congress “Expand US Forest Service Categorical Exclusion authority from 3,000 to 10,000 acres for fire-prone areas in the western US.” 3 This request was borne out of the success California had with the 2016 Water Infrastructure Improvements for the Nation Act, which created a 10,000 acre CE for fuels reduction projects in the Lake Tahoe Basin. This enabled more land to be treated faster, helping to maintain forest health, create defensible space, and protect communities.

I don’t know that FOFA won’t be/has been changed or passed, but at the time, Megafire Action said:

Under FOFA, forest management projects receiving up to a 10,000 acre CE must first be identified by a fireshed assessment. FOFA mandates that fireshed assessments comply with applicable forest plans which are developed with community input, incorporate the best available science and traditional ecological knowledge from Indian Tribes, and allow for local government participation in their formulation. These added guardrails ensure that CEs will not be used for projects that harm our forests.

So our friends in Congress are discussing almost this very question.. what kind of sideboards to put on a larger CE.

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Last, Judge McShane’s ruling does not affect any existing contracts related to these projects: “Existing contracts regarding the sale of commercially thinned timber from the Projects are not affected by this Order.” We only know of a few small GNA contracts related to these projects.

FWIW I put in a request to the FS (the Fre-Wi folks have been extremely helpful) to find out how much work had been done and contracts awarded on the three projects.

 

Here’s the press release:

The U.S. Department of Agriculture’s Forest Service today announced plans to prepare a national environmental assessment to expedite post-fire recovery work on national forests and grasslands. The Notice of Intent is now open for public comment in the Federal Register.

Because severe wildfires are larger, more complex, and burning longer, recovery efforts have become more challenging and expensive. Burned landscapes are susceptible to hazards like erosion and flooding, which threaten lives, damage property, contaminate drinking water and destroy communities. This new approach aims to streamline work to reduce these post-fire hazards by planting trees, repairing infrastructure, safeguarding water quality and performing other critical stabilization work.

“Restoring forests after a wildfire is not something we can delay, especially when public safety is at stake,” said Forest Service Chief Tom Schultz. “Post-fire recovery actions need to be immediate and comprehensive to protect the future of our forests and the people who depend on them.” 

This action aligns with President Trump’s Executive Orders on Unleashing Prosperity Through Deregulation, Immediate Expansion of American Timber Production, and Empowering Commonsense Wildfire Prevention and Response. This action also aligns with USDA’s interim rule, which improves how its agencies implement the National Environmental Policy Act.

“This effort is about resilience,” added Chief Schultz. “We’re not just recovering from a fire. We’re building landscapes that can withstand the next one.” 

Public comments are open until January 26, 2026. More information and progress updates are available online at https://www.fs.usda.gov/managing-land/disaster-recovery/post-fire-recovery.

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It sounds like a Programmatic EA, to which project documents could be tiered. Other TSW folks may remember other programmatics, I recall a Western Spruce Budworm and maybe a Seed Orchard Insecticide. It sounds like the FS thinks “much of the analysis in these documents is repetitive and could be done once, with local folks adding the site-specific requirements and concerns later in each project document. In addition to being an info-roundup for later decisions, there might be some kind of extra legal force attached to a programmatic? Perhaps our legal friends can fill us in.

I tend to think “the permitting problem is not NEPA, it’s litigation on NEPA, because analyses can be endlessly poked at, and so litigation-proofing leads to extra, potentially unnecessary, work and expanded uncertain timelines.” When something is not controversial to people or groups with lawyers, teams do the work, take comments, review and get the decision out. Of all the activities mentioned here, I think the previously most litigated have been salvage and hazard trees. I also wonder whether an advantage of a national approach is to work out some kind of national consistency in approach with regulatory agencies. Even if those projects continue to be litigated, the FS will still have saved time by tiering from the programmatic.

Here’s what NASA says about programmatics (interestingly for the Mars Sample Return Flight Elements- who knew they did NEPA for that?):

Programmatic National Environmental Policy Act (NEPA) documents are typically used to assess the environmental impacts of proposed policies, plans, programs, or projects for which subsequent actions will be implemented based on the programmatic analyses. Program-wide NEPA compliance allows for greater efficiency in preparing NEPA compliance documentation for individual projects by reducing repetitive analysis. The programmatic document provides the foundation for subsequent specific actions that “tier” from the programmatic document. Tiering allows reference to broad analyses in the programmatic document, thereby streamlining the subsequent NEPA analyses in an efficient manner as a good steward of federal funding.

Most of the programmatics I know have been EIS’s but I don’t see a reason it couldn’t be an EA. Ilooked around and the BLM has a Statewide Wildland-Urban Interface Fuels Treatments Programmatic EA for the State of California.

For NEPA nerdly types, there’s a discussion of programmatics in this “Final Guidance for the Effective Use of Programmatic NEPA Reviews”. The discussion is interesting but the guidance may not be current based on the current judicial and executive branch NEPA shuffling. Anyway…

The Forest Service develops post-fire recovery projects and routinely conducts individual environmental reviews for these projects. A national review of Forest Service post-fire recovery analyses under the National Environmental Policy Act shows that, regardless of location, these projects occur in a relatively similar manner and have similar environmental effects across the agency (timing, impacts, and methods of implementation), with the most noticeable differences being site specific design criteria or mitigation measures. As such, the Forest Service is preparing an environmental assessment to analyze the effects of general post-fire recovery actions on National Forest System lands in the continental United States to help facilitate subsequent site specific analysis if needed. The agency recognizes the need for:
• Appropriate standardization of project design and implementation, while providing flexibility to address local conditions;
• More rapid, efficient, and effective response by local managers to quickly changing post-fire conditions; and
• Strategic use of limited resources (for example, staff and budget).

There generally is a need to address burned areas in an expedited manner to accelerate post-fire recovery to restore safer, healthier forests in a timely manner at a
landscape scale. The purpose of proposing this action is to analyze actions that are common to post recovery to facilitate more efficient site specific analysis that allows the agency to more timely:
• Mitigate hazards to infrastructure;
• Reduce combustible materials, such as trees damaged by fire, and woody debris;
• Harvest fire-killed and damaged trees before they lose their economic value; and
• Establish restored forest conditions after a fire.
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It’s confusing, for sure, as to what changes in the NEPA process are due to the new USDA NEPA regs, ESD determinations, alternative arrangements, and possibly others. We’ll try to keep track of them here so folks can understand.

Shout-out to Nick Smith for forwarding, the Stanislaus Forest, the Forest Supervisor and public affairs folks, and reporter Tracey Petersen of local newspaper The Mother Lode, for this story.

This not about ESD, it’s about asking CEQ for what is known as “alternative arrangements”

The Stanislaus National Forest (STF) has continued the push to fast-track Rim Fire recovery timber efforts. Forest officials asked for special authority from the President’s Council on Environmental Quality (CEQ) to streamline National Environmental Policy Act procedures. The council gave its approval on Friday.

“It is unusual for the Forest Service to seek this expedited process,” says STF Forest Supervisor Susan Skalski. “Our work is urgent because the burned timber will rapidly deteriorate and lose its commercial value. The authority to move more quickly will allow us to take advantage of the fall 2014 harvest season so that we can get on with the rest of the recovery process on the Stanislaus National Forest.”

Due to the scope of the Rim Fire, an Environmental Impact Statement (EIS) which requires a period for public comment must be done, but this exemption shortens that time frame.

Forest Spokesperson Maria Benech explains, “When we release the draft EIS sometime this spring, it will cut the comment period from 45 days down to 30 days, so there’s a 15 day savings there. Also, what it allows us to do is release the Record of Decision at the same time as the final EIS. Normally, there would be a 45 day waiting period between those two as well.”

Benech says this is the first exemption of its kind in the past five years.

I looked for the CEQ letter online and found one from 2013, saying basically the same thing and includes all the letters back and forth between CEQ and the FS.

So, no, it isn’t a Trump- Admin- specific thing.

You might have run across this story in which a Forest Supervisor was quoted as saying that the Forest was going to switch from email lists for notification of projects to folks having to check the website.

This seems like it lies at the intersection of “what the FS is required to do” vs. “what the FS should do to make life easier for the public.” But there is more information in this later story in the Hungry Horse News.

The Forest confirmed Tuesday that few people were notified of a proposed timber project near Blacktail Mountain that was released during the government shutdown.

Flathead National Forest spokeswoman Kira Powell said the Forest Service had switched over to a new third-party vendor for bulk email distribution and it was unavailable during the government shutdown.

So just a few people on an email list that the Swan Ranger District had were notified of the timber harvest project.

The Forest Service has about 13,000 emails on a database that’s used to notify people of projects.

That database was not used in this instance, but will be moving forward, Powell noted, making it clear that the Forest Service is interested in public comments.

People can also still sign up for email notifications on projects if they haven’t done so previously.

Having said that, Powell noted that the primary source of information on Forest Service projects is still on the Flathead National Forest website, www.fs.usda.gov/r01/flathead. Click on “projects” at the top of the page.

The West Truman project is a logging and timber harvest project on the Swan Lake Ranger District near Blacktail Mountain.

It was released in mid-October during the government shutdown and the comment period ended Nov. 1 before the shutdown was over.

The shutdown ended just last week. It was the longest shutdown in U.S. history.

Powell said the intent is notify people of most projects, but not all projects will see a notification under a new executive order by President Donald Trump issued in July.

Inquiring minds would want to know… “if I’m on the email list, what kind of projects should I look for on the website?” Does this new EO say “you can’t” or “you don’t have to.”

Another thought, in the ancient times when I worked in NEPA and on E-Gov, keeping up mailing lists was enough of a workload that it was on our list to address making it easier via some national application.

Finally, I do think that there is a middle way.. conceivably there are nuggets of info that might not be in the info and maps presented during scoping that people think are important to give them context to comment. These could potentially be identified and included in scoping documents.

Here’s what the actual Dashboard looks like for a sample project:

 

There’s an interesting article in E&E News (not paywalled) with an interview with:

Emily Domenech, a Hill veteran and executive director of the Federal Permitting Improvement Steering Council, is also calling some of the hundreds of thousands of furloughed workers back to ensure Trump’s priority projects — including mines in Idaho and Utah — move forward.

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How are you making projects move faster?
In many cases, a number of our transparency projects have been waiting for years for some of these permits. Transparency works both for the public, but also for federal agencies to see which priorities are being identified by the White House, by the permitting council. It makes it harder for a project to sort of get lost in the pile of applications in a field office.
We just finished permitting … the Perpetua stibnite gold project in Idaho, they had been waiting for their last permit for almost a decade with not a lot of real information
on why it wasn’t getting done. … We listed it … in May and completed federal permitting in July, and then moved forward to the construction phase in these last few weeks.
Almost entirely, we were able to finish that project in that time frame, almost entirely because it had been sitting in a pile of projects in a field office, and the field staffer thought they were going to get sued and didn’t want to put the work into completing that project.

This sounds like a fairly common prioritization..”thankless tasks that will likely be litigated ad infinitum with ever more peculiar analysis requirement by judges”.. but in my experience, minerals folks in the FS and BLM tend to just march forward on those.

Sometimes we fund [full-time employees] to do work on the ground to help a project move faster if there aren’t available staff to do the work they need. A good example is the U.S. Forest Service, which has really been building out its mining review capacity.  In some cases, they needed to hire contractors to do that. Sometimes we fund technology improvements to reduce man hours and make projects move forward faster.

What about roadblocks?
I’m a longtime congressional staffer. I worked on permitting for a really long time. You could always come up with a litany of potential roadblocks, but I think it’s the same
things you always hear.
Much of what the permitting council solves is agencies that are just simply not on the same page … doing redundant reviews, not coordinating, not sharing their best practices, or not sharing what their findings are in a timely manner, and that just slows down the process.
We’re doing environmental reviews that are required by the law in the most efficient way possible. And frankly, you kind of need a task master to keep people focused on that. Otherwise it’s really easy to get stuck in the federal system.

I don’t think her observation of interagency lack of coordination and something of a bias toward inaction will surprise anyone here. That reminds me of my old boss at EMC, Fred Norbury, who wanted to “make NEPA more like a NIKE factory and less like a cobbler shop.” Or a group of cobbler shops (agencies) with different priorities and views.

What do you think will happen on Capitol Hill?

It’s wonderful to see folks like [House Natural Resources Chair Bruce Westerman (R-Ark.)] really moving the needle early to get their legislation out into the public, to get comments, get input, to start that legislative process.
I think there’s a lot of interest in solving the permitting challenges that we can’t solve from the executive [side]. There’s a lot we can do to move things forward and to ensure things get built during President Trump’s term. But … we can’t fix judicial review, and Congress needs to address that issue.

There is definitely much interest and many ideas and people working on it.

So I took a look at the FAST 41 Dashboard to see what FS projects are on it. The screenshot is above as is a sample of the dashboard. I’d add another linked “litigation dashboard” so that the timeframes from ROD being issued to on-the-ground implementation would be more transparent.  I’ve been involved in projects that for various reasons seemed to take more time to litigate than to permit.

There’s much (potential for) change bubbling away in the NEPA-sphere, but like improving various aspects of the Forest Service, these ideas and concerns have been in the air for awhile.  Here’s a letter in Science from Sally Fairfax in 1978 (yes, almost 50 years ago…). P.S. If you have a copy of her paper on RPA and the Forest Service, or know how to contact her, please let me know.

E&E News had an article that included information about this. There was an interesting quote from our friend Ted Zukoski:

“This proposal will bar the American people from offering input on the vast majority of massive logging projects that will be approved under Trump’s ‘log, baby, log’ plan,” said Ted Zukoski, a senior attorney at the Center for Biological Diversity, about USDA’s proposal in a statement.
He added, “The public’s ability to hold federal agencies accountable is the crucial foundation of America’s environmental laws and we’re going to use every tool in our arsenal to defend it.”

Here’s a link to the document. I’m hoping that people who are paid to do so, possibly including the people who worked on it,  will provide a summary of the general changes and the changes specific to the FS and what that means now and in the future for agency practitioners, contractors and partners involved in the work.

Please add any analysis you find, as well as your own views, in the comments.