NEPA

CEQ Issues Final Guidance on Monitoring of Mitigation, Use of CEs

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The Council on Environmental Quality (CEQ) issued two final guidance documents today, one which requires monitoring of any mitigation included in an environmental document, and the other governing the use of categorical exclusions.

It will take a few weeks to fully digest what the guidance will mean for Forest Service planning and implementation of projects.  Both guidance papers are an outcome of CEQs outreach in 2004 to “modernize” NEPA implementation, and last year’s “40th anniversary of NEPA” review.  CEQ is saying that these guidance documents are not rules or regulations, and are not legally binding requirements or legally enforceable.  Nevertheless, the guidance expresses the intent of the Administration, and will likely be used in reviews of agency procedures and NEPA documents.

The mitigation and monitoring guidance paper reemphasizes the importance of mitigation under NEPA to minimize the potential adverse environmental impacts by avoiding, minimizing, rectifying, reducing, or compensating for an impact.  Mitigation (like requiring best practices or staying out of a particular area) is often incorporated into the proposed project design or one of the alternatives.  Sometimes, mitigation might be used to reduce the impact such that a “finding of no significant impact” is made.  CEQ wants Federal agencies to ensure that mitigation commitments are actually implemented, and that monitoring is accomplished to provide feedback on those determinations.

The guidance for categorical exclusions (from NEPA documentation like an EIS or EA) places additional requirements on agencies when they establish categories or use categories already in existence.  CEQ is encouraging agencies to provide guidance on the level of documentation required when CEs are used.

Cumulative Effects and the Five Buttes Project

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This article is provided thanks to the good folks at the Society of American Foresters (SAF) and the Forestry Source.

Here’s Five Buttes 9th Circuit Appeal – Text-1 the article.

And a quote:

Cumulative Effects
Michael Mortimer, director of the Natural Resources Program at Virginia Polytechnic Institute and State University, is working on a study of judicial deference to agency expertise in cases against the US Forest Service in US district and appeals courts. The Five Buttes case, he said, is a good example of how the court had “reset the bar” to the appropriate legal standard for deference to agencies. However, the court engaged in the same level of fine-grained analysis of scientific and procedural detail that the court addressed in Lands Council.

“I see both the majority and dissenting opinions getting into what I think is fairly high-resolution detail on many of the issues that the agency dealt with in the case,” he said. “This notion of judicial deference can be a little bit of a trap. In court cases like these you have competing expert opinions, facts that may be presented out of context, and inherently complex scientific issues, so even if the court gives a high level of deference to the agency, they are tempted to get into the details of what the agency did, wading through agency science and process.”

Such was the case with the agency’s analysis of the cumulative effects of the Five Buttes project.

“Cumulative effects is a difficult scientific concept, it’s a difficult administrative concept, and it’s a difficult legal standard to define. And yet, both the majority opinion and the dissent were focused on cumulative effects analysis,” Mortimer said. “Instead of simply determining whether or not the agency had examined cumulative effects, the court looked at exactly what the agency did, what actions it took, how many pages they devoted to it, and so on. It’s a little troubling to see a court trying to unpack the adequacy of this type of analysis, because that’s inherently a very difficult thing for a court to get its head around.”

The Forestry Source- This is my favorite SAF publication and often has articles of interest. You don’t have to be a member of SAF to subscribe. Anyone wishing to subscribe can go to this page: and click on Subscribe. Costs $42 for individuals, $79 for institutions. This page has info for all of SAF’s publications.

The Montana Conundrum II- Joint Fact Finding

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Matthew Koehler had a very thoughtful response to the original post here.

In continuing the dialogue, there are two main topics, what we might call developing an index of vegetation treatment intensity for each forest, and a discussion of why litigation rates are relatively high in Montana (or probably, more specifically Region 1 of the Forest Service). This first post is about developing the index.

How the need for an index originally came up was my question about why some might think we need more costly and time-consuming prospective environmental analysis, if we are simply doing less of what we used to do a lot of. In other words, we have plenty of timber sales and fuels treatment projects over the past years and should have some idea of the real environmental impacts (not projected, but observed). And conceivably, some impacts should be a function of the size of the acreage treated and proximity of those treatments.

The other opportunity that we might have from these data would be to compare forests with the same levels of activity and ask the question “do their levels of appeals and litigation differ, and if so, why?”

So I think it would be enlightening to do some joint fact- finding about what the actual treatment acres are relative to the total forested acres by forest across the country.. or at least for forests in the Rocky Mountain west.

If we could agree on some key data, I would be willing to try to extract it from the relevant databases. There seem to be three main questions:

What should we use as a baseline? It would have to be total forested acres because we are using these numbers in the context of understanding the environmental impacts. Take forest X with 1 million acres and 200 K acres of suitable timber, compared to forest y with the same total number of acres and 900 K suitable acres. If we are talking about the environmental impacts of cutting, say, 10K acres on a million acre forest, the impacts should be the same. Suitability is merely a human construct and does not tell us anything about impacts.

During the development of the 2005 Rule, Chris Iverson used to call this the Chugach/Tongass difference- you don’t need to analyze as much when you don’t do as much. The concept seems pretty straightforward. I was just trying to quantify “not doing as much” by looking at acres.

What counts as a vegetation treatment?
Here’s a possible list: prescribed burns, mastication, felling without removal (precommercial thinning might fall in here), felling with removal, felling with removal using temporary roads (commercial thinning would fall in here). As a person who has spent recent weeks reviewing a roadless EIS, I can tell you they all have different impacts. I would tend to stick to counting felling with removal and using temporary roads. Another topic is whether the treatment “counts” if the trees are dead. It seems like sedimentation effects of temporary roads would be more or less the same, but dead trees will fall anyway. Then, often, more trees die while people are planning projects. So to make counting easier, I would argue that a good estimate for our purposes (how much are our treatments impacting the land?) would be the acreage of all projects that have felling with removal, either live or dead trees.

What length of time should be analyzed? Probably the last 10 years would give us a good estimate of what we are currently doing, although some might argue for five. If we go too far back, we get to a time when the world was different. If we take too few years, we could allow unusual years to unduly influence the total.

The Montana Conundrum- Guest Post by Derek Weidensee

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All decked out but no place to go: photo of roadside hazard tree removal in bark beetle country.

And then we come to Montana, which still has a timber industry. Even though many environmentalists have stopped litigating, some groups still litigate even “healthy forest” timber sales. Why hasn’t Montana succeeded in ending litigation where the other areas have? The majority of the public in Colorado, Arizona, and Lake Tahoe tend to consider themselves “environmentalists”. The majority in Montana wouldn’t. Could it be that we have a very ironic anomaly where increased logging can only occur where the majority consider themselves to be environmentalists?

Sometimes in order to better understand a hotly debated issue such as logging we get sucked into the details. This has the unfortunate result of losing sight of the “big picture”. We get so lost in the micro, we lose sight of the macro. Big numbers by themselves don’t mean anything, only percentages can lead us to perspective.

Perhaps it would be informative to discuss how much has been logged. The following percentages come from the USFS forest inventory analysis (FIA) reports (can you find the misspelling on this web page?) and the USFS “cut and sold” reports which list harvest acreage for every national forest for every year back to 1945. The following percentages are based on “forested acreage”. No water, rock, or grass acres were used in my calculations.

The following table represents the amount of “forested acres” that were logged in the past 50 years: Lolo…………………………………..17%
Kootenai……………………………..25%
Beaverhead-Deerodge……………5%
Helena………………………………..7%
Flathead…………………………….13%
Gallatin……………………………….7%
Let’s focus on the 5% that was logged on the Beaverhead Deerlodge National Forest since it’s the focus of Tester’s Beaverhead Partnership collaboration. 5% sounds pretty sustainable to me. I mentioned the above numbers to two prominent Montana environmentalists. It was the first they heard of it. I think it would help us all to learn together to start from a joint basis of facts.

The Partnership plan proposes to log 70,000 acres in ten years. Sounds like a lot-until you find out it’s only 2.5% of the “forested acreage”. If you projected that out 50 years, that would mean that 18% would be logged in 100 years. By that time the sapling that grew up in a clearcut done in 1960 would be ready for harvest. If 80% of the landscape for natural processes is not enough, what is?

In the five years ending in 2008, the BDNF logged an average of 500 acres/year. That’s .02% of the forested acreage. At that rate it’ll take 50 years to log 1%! In the last five years the Lolo harvested 2500 acres/year. At that rate it’ll take 50 years to log 7%. A lot of these groups had, in the past, advocated a “zero cut” on national forests. Isn’t 500 acres per year close enough to zero?

On forests that aren’t litigated, the NEPA mandated EA’s get pretty small. I compared one in Montana to one in Colorado. They were both MPB salvage timber sales. The one in Montana treated 1300 acres and ran to 200 pages, the one in Colorado treated 4,000 acres and ran to 57 pages!

Finally, the biggest cause of all should be knowing that environmentalists are good people at heart. They’re not evil. They’re good fathers and husbands. I’ve read the 1985 Lolo forest plan. There’s no doubt they planned to convert 90% of the Lolo to a tree farm by the year 2050. I’ve read USFS inventories from 1950. A third of NW Montana was old growth. There’s no doubt there’s less today. You’ve stopped old growth logging. You’ve set aside roadless. Our life ambition is to be successful at our work. You have been successful.

I also know that the pendulum of public policy in this country swings to the extremes. I’m sure the “zero cut” groups never dreamed they would have stopped all logging so easily. The USFS responded to “changing public values” in the 90’s by scaling back timber harvest. I’m sure they never dreamed it would go too far (I’ve always wanted to ask Jack Ward Thomas where he wanted it to be). Let’s hope the pendulum stops somewhere in the middle.

Note from Sharon. I tried to check Derek’s facts on the internet, but it wasn’t as easy as a person might think without going into corporate databases.

Montana has more litigation and appeals (as described in the GAO study) due to (here are a variety of hypotheses):

Venue shopping by organizations who want to win
The old timber industry built up an associated appeals and litigation industry which is continuing
People only trust that fuels treatments are needed if they aren’t sold to the timber industry.
People in Colorado just want those dead trees outta there and don’t care who takes them.
Other hypotheses?

I also tried to run down all the ongoing litigation of timber and fuels projects in Colorado. I could only find two. One deals with a lawyer/neighbor of the project; the other is a law school class project. So litigation does not seem like a serious problem here.

I also attended a speech by Secretary Vilsack and one by Governor Ritter on Friday in Fort Collins who were both very strongly for using the dead trees that we have everywhere in stacks in bark beetle country. If it is about using wood, as opposed to cutting trees, a biomass industry could start the litigation dynamic all over again. Yet those hazard trees in the photo could be used for various purposes, including to reduce fossil fuel usage. That’s why it would be good to understand the real reasons behind litigation in different areas of the country.

Finally, while trying to check on acreages, I ran across this link to a study that described 8-10 K acres of treatment on the San Juan (this study is entirely very interesting) with the goal of getting up to 20-30 K (only 10% mechanical, most prescribed burning). My colleagues assure me that there are plenty of environmental lawyers in Durango, yet they are not litigated on fuels treatment projects.

Also I see this AP report of a hazard tree removal project along roads on the Helena that is about 10K acres on the Helena over 5-7 years. Will the advent of bark beetle mortality make Montana become more like Colorado in terms of appeals and litigation?

What do you think about the Montana Conundrum? Is your state more like Montana or Colorado?

Ski Area Development NEPA- Two or Three Layer Process?

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Here’s a story from the Aspen Daily News about a recent case on a specific ski area development, a ski trail on Burnt Mountain East at Snowmass Ski Area.

In discussing forest planning, we talk about doing NEPA at a more conceptual level, and then at a project level (oil and gas leasing decision, travel management, fuel treatments, etc.). Here is some of the same conversation around two layers of ski area NEPA- which leaves, including forest plans, actually a three- layer analysis. Could this decision process be designed better?

Cumulative Effects Analysis – A Guest Post by Courtney Schultz

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Attached is a piece I wrote that came out of my dissertation research on how the Forest Service handles cumulative effects analysis, particularly when it involves resources that see effects over long temporal and broad geographic scales. This article came out in Bioscience this month and is a short piece that focuses especially on the limitations of how we do the analysis for wildlife species. My intention was to look at the requirement and at current practice and provide a critical assessment of where/how it falls short, where it works, and what are impediments to and opportunities for improvement. I’d be interested to hear what you all think. Having worked as a PMF (Presidential Management Fellow) for the last year, a question that looms large for me and that I would like to have addressed more is: What could practitioners (from district to regional offices) do to improve analysis with the resources available? I touch on this to some extent, but I’d like to keep exploring it. I look forward to hearing any of your thoughts and feedback.

Courtney Schultz is currently a Presidential Management Fellow with the U.S. Forest Service. She completed her Ph.D. at the University of Montana in the College of Forestry and Conservation and this fall will begin work as an assistant professor of forest and natural resource policy at Colorado State University.

Rethinking Forest Planning – Guest Post from Mark Squillace

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Mark Squillace is a law professor and the Director of the Natural Resources Law Center at the University of Colorado Law School. Some of his views on the process-related issues surrounding the current round of forest planning are set out in a post titled Engaging the Public in the Latest Round of Rulemaking on Forest Planning on the Red Lodge Clearinghouse blog.

After two days of intense discussion about the forest planning process at the May 11-12, 2010 workshop in Rockville, Maryland, I’d like to offer these observations while they are fresh in my mind. First, kudos to the Forest Service and the Meridian Institute for establishing such an open and effective process for engaging the public. I have written more specifically about the process on the Red Lodge Clearinghouse website and those comments can be found here. In this post, I would like to suggest a few principles that I believe should govern the rulemaking process for forest planning and a few ideas for establishing a process that reflects those principles.

First and foremost, the Forest Service must not lose sight of the fact that the central problem with the current framework for forest planning is that it is too complex. As a result of this complexity, plans often take many years to develop, and their very complexity invites appeals and litigation. Let’s not ask too much of our forest plans. They should offer a vision for the future management and use of discrete areas and not much more. They should be simple enough that they can be completed within a year – two at the very outside. They should be relatively short – no more than 150 pages, and they should be accessible to the general public so that the general public can meaningfully participate in the planning process. Plans are likely to be most accessible if the alternatives that are being considered can largely be understood by looking at series of maps reflecting the alternative visions for forest management.

The complexity contained in most of our current plans relates largely to the fact that the Forest Service has historically used the plans to establish detailed standards and guidelines for managing particular forest resources. My sense is that this largely traces back to the Forest Service’s belief back in the early 1980’s that forest plans developed under the 1982 rules could essentially govern all future decisions on the forest, at least until a new forest plan was developed. I think we know now that this model does not work. Yet the Forest Service still seems to cling to the belief that more complex forest plans will make project level decisions easier. If they stepped back and thought about this they would surely realize that more complex plans do not make anything easier.

This leads to my recommendation that the planning rules should establish a process for “tiered planning.” Tiered planning borrows a concept from NEPA. Under a tiered planning regime the Forest Service would first develop a large scale, “bird’s eye” vision for the forest that would meet the basic legal requirements of NFMA for land and resource management plans. This would involve a NEPA process that considers various alternative visions for a forest, before a final vision is chosen. Among the decisions to be made at this large scale level would be what resources on that particular forest required separate resource specific plans. The large scale plan would guide the Forest Service in the development of these sub-level, tiered (and integrated) plans for the particular resources identified during the land use planning process. These tiered resource-specific plans would be accompanied by separate NEPA processes and separate opportunities for review. Different forests would need different resource plans. Project level decisions that relate to particular resources studied in a sublevel plan would then fall under a third tier, but since not all forest resources would necessarily require a sub-level plan, some project level proposals might simply flow from the large scale plan itself.

Breaking down plans into component parts, as the proposed tiering process would do, will not necessarily lead to less work for the Forest Service up front. But it will allow the basic plan – the vision document – to be developed more easily and more quickly, and it will allow conflicts and controversies to be better isolated to particular resources While tiered planning might be criticized for failing to promote sufficient integration of resource-specific assessments with land use decisions as required by NFMA, the Forest Service can address this problem simply by adhering to the basic principles of tiering articulated in the Council on Environmental Quality rules implementing NEPA. In particular, those rules describe “tiering” as appropriate when “it helps the …agency focus on issues that are ripe” and “exclude[s] from consideration issues … not yet ripe.” 40 CFR 1508.28(b). By divorcing the planning choices from the choices relating to specific resources, the Forest Service can put off consideration of those resource specific issues until the agency is ready to consider whether and how specific resources should be used.

Another great advantage of tiered planning is its potential for engaging the public in a more meaningful way. Tiered planning can achieve this goal because it allows interested parties to be involved at whatever level of detail they desire. Those most interest in the particular type of land uses that are going to be allowed on particular tracts of lands (or perhaps over the entire forest landscape) can participate only on the land use level decisions, with some confidence that the choices made during this large scale planning process will be honored as sub-level decisions are made. Those interested in the development, use, or management of particular forest resources can focus their attention on particular resource plans or project level decisions involving those resources and those lands where particular resources are authorized for use.

I want to conclude with one general observation about the current process. Even as I applaud the Forest Service for initiating this ambitious exercise in civic engagement, the agency should recognize that one of the risks associated with this process is that it invites even greater complexity in planning. The natural tendency of participants asked to consider ways to improve forest plans is to suggest additional requirements that might be imposed on forest planners. For all of the reasons expressed above, making forest plans more complex than they already are would be a huge mistake, even if, in the abstract, we might agree on an idea for further improving forest plans. A great example of this comes from the workshop and concerns the request to participants that they consider “restoration and resiliency” as one of six issues for forest plans. Understandably, most people think that restoration of degraded forest resources and managing forest resources to promote resiliency are generally good things. I don’t disagree. But restoration and resiliency cannot and should not be treated as ends in themselves. Indeed, it is generally accepted that restoration of degraded lands to their original condition is probably not possible, and maybe not even desirable. More importantly, restoration and resiliency should be seen for what they are – tools that might (or might not) help to achieve the goals and objectives established in a forest plan.

The elusive goal of finding a better way to do forest planning will only be achieved if we come to grips with the fundamental problem associated with the current process. It’s too complex. We need to rethink forest planning in ways that will allow forest plans to be concise, accessible to the general public, and developed and implemented within a reasonable period of time. I appreciate the fact that it won’t be easy. But I nonetheless believe that it can be done.

What Have We Learned Since the COS Report?

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Thanks to the generosity of the Society of American Foresters, we can post articles from the Journal of Forestry May 99 edition on this blog. This edition of the journal focused on the COS Report. Today I’ll post the Norm Johnson article here.

Since 1999, we have tried many of the ideas that the COS brought forward. I would be interested in how you all think these ideas have worked.

I will post later this week on my experience with trying out some of these concepts.

CEQ Guidance Comment Period

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Since we spend some quality time on this blog talking about NEPA, you might be interested in commenting on this draft CEQ guidance. the climate change and mitigation and monitoring might be particularly relevant to our discussion, since the draft guidance seems to extend the NEPA regs to past implementation of the decision. Here are some questions relevant to federal land management, and the bolded ones seem to have to do with LMPs:

CEQ also requests comment on land and resource management issues, including:
1. How should NEPA documents regarding long-range energy and resource management programs assess GHG emissions and climate change impacts?2. What should be included in specific NEPA guidance for projects applicable to the federal land management agencies?
3. What should be included in specific NEPA guidance for land management planning applicable to the federal land management agencies?4. Should CEQ recommend any particular protocols for assessing land management practices and their effect on carbon release and sequestration?
5. How should uncertainties associated with climate change projections and species and ecosystem responses be addressed in protocols for assessing land management practices?
6. How should NEPA analyses be tailored to address the beneficial effects on GHG emissions of Federal land and resource management actions?
7. Should CEQ provide guidance to agencies on determining whether GHG emissions are “significant” for NEPA purposes. At what level should GHG emissions be considered to have significant cumulative effects. In this context, commenters may wish to consider the Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497, 524 (2007).

Here’s the link.

New CEQ NEPA Guidance In conjunction with NEPA’s 40th Anniversary Celebration, CEQ is publishing three draft NEPA guidance documents for review and comment. Below are links to the draft guidance documents and instructions for submitting comments:

– ESTABLISHING AND APPLYING CATEGORICAL EXCLUSIONS

Comments are due 45 days after publication of the Federal Register notice.

Submit Comments to http://www.whitehouse.gov/ceq/initiatives/nepa

– MITIGATION AND MONITORING

Comments are due 90 days after publication of the Federal Register notice.

Submit Comments to http://www.whitehouse.gov/ceq/initiatives/nepa

– CONSIDERING GREENHOUSE GAS EMISSIONS AND CLIMATE CHANGE

Comments are due 90 days after publication of the Federal Register notice.

Submit Comments to http://www.whitehouse.gov/ceq/initiatives/nepa

Additional information is available at www.whitehouse.gov/administration/eop/ceq/initiatives