NEPA

Forest Service Wins- Fremont-Winema National Forest with CE 6

by

This is usually Jon’s round-up territory but I thought it was so interesting it deserved a post of its own, plus it’s my old stomping grounds. Thanks to a friend of The Smokey Wire, it came via a Law 360 article.

Law360 (August 7, 2023, 8:27 PM EDT) — An Oregon federal judge has thrown out environmentalists’ lawsuit attempting to block commercial lumbering in a national forest, ruling regulators properly determined the timber thinning projects were exempt from stringent environmental review.
The U.S. Forest Service correctly approved logging almost 30,000 acres in the Fremont-Winema National Forest over three projects aimed at improving wildlife habitat and timber stands, U.S. District Judge Michael J. McShane said in a Friday order granting the service’s motion for summary judgment. In the same ruling, Judge McShane turned down a summary judgment counter from the groups, Oregon Wild and Wildearth Guardians, ruling they hadn’t shown the USFS granted unlawful exclusions from environmental review for logging and waited too long to challenge the exclusion category itself.
The environmental groups sued last year, alleging the forest service used categorical exclusion six to create a loophole that let logging companies bypass impact analysis of the South Warner, Bear Wallow and Baby Bear projects in the national forest. The exclusion may also be invalid since it has now been used to approve big, commercial logging projects without considering their environmental consequences, the groups alleged.
But Judge McShane, in his Friday ruling, said the exclusion’s language permits commercial logging and has no limit on the size of timbering projects. Instead, it bars herbicide use and restricts road building, the judge added. The forest service explained how thinning the forest would improve habitat for birds, turtles and deer, cut back overcrowded conifer trees and reduce the risk of insect infestation, Judge McShane said.
The USFS, therefore “reasonably determined that thinning to improve wildlife habitat and favorable timber stand conditions” fell within the scope of the exclusion, the judge ruled.
Turning to the groups’ challenge to the exclusion itself, Judge McShane said opponents had missed the six-year deadline to get the 1992 rule overthrown. Conservation groups were not entitled to an exception from that deadline, the judge added.
Oregon Wild and WildEarth Guardians argued that the forest service never determined commercial logging had no significant impacts when it approved the thinning exclusion, a violation of the National Environmental Policy Act.
But in order to receive an exemption for the case under the Ninth Circuit’s decision 1991 decision in Wind River Mining Corp. v. United States , opponents had to make a substantive challenge that the forest service lacked legal authority to make the exclusions, Judge McShane said.
“The problem in plaintiff’s argument is that NEPA is a procedural statute,” the judge said. “NEPA directs agencies to create categorical exclusions and requires certain procedures for doing so. It does not dictate specific substantive results.”
The USFS declined to comment Monday. A representative for the environmental groups did nots represented by Natalie K. Wight and Sean E. Martin of the U.S. Attorney’s Office for the District of Oregon. The environmental groups are represented by Oliver J.H. Stiefel, Erin E. Hogan-Freemole and Meriel L. Darzen of Crag Law Center.

So that’s the legal side. I’m finding out more about the projects themselves. Interestingly the South Warner Project seems to be linked to MOG at least in the minds of some.

The South Warner Project includes commercial logging of large, old trees under the guise of “timber stand and wildlife habitat improvement,” said John Persell, Staff Attorney at Oregon Wild.  “It is yet another example of why a national rule protecting mature and old-growth forest stands is needed to address the climate and biodiversity crises.”

As a former NEPA practitioner, I wouldn’t have rolled the dice on Category 6, but if you’re going to roll the dice, you should go big, like 30K acres.

Court vacates Colville NF project and parts of its revised forest plan

by

This was going to be a “featured” case in a litigation summary post, but it turned out to be long enough for its own post.  Besides, forest plan litigation is rare, especially Forest Service losses, and this case covers a number of NFMA and NEPA issues that are frequent topics on this blog.  (And, full disclosure, I had something to do with it.)

  • Court decision in Kettle Range Conservation Group v. U. S. Forest Service (E.D. Wash):  Sanpoil clean

On the first day of summer, the district court vacated the decision for the Sanpoil Project on the Colville National Forest, and also vacated the relevant portions of the 2019 revised forest plan.  The portions of the revised plan at issue replaced the Eastside Screens 21-inch diameter limit with a guideline to protect large trees, but included many exceptions.  It also did not designate a minimum amount of old growth habitat to retain.

The court held that, “the agency failed to explain how the 2019 Forest Plan maintains the viability of old-growth-dependent species.”  More specifically, “the agency erred by failing to demonstrate that its data and methodology reliably and accurately supported its conclusions about the viability of old-growth dependent species under each planning alternative, and depicted the amount and quality of habitat.”  (Note that the Colville plan was revised under the 1982 planning regulations, which had somewhat different language describing wildlife viability.  However, this court did not rule on substantive compliance with the NFMA requirement, but rather found a failure to demonstrate compliance due to an inadequate administrative record based on the APA.)

The Forest stated that the selected alternative, Alternative P, provided a “high” viability outcome for these species and that the no-action alternative would not improve viability outcomes.  However, in the EIS, the data showed that “the No Action alternative provides more habitat than the selected alternative for three of the surrogate species,” and “creates the most late structure of any alternative.”  The Forest relied instead on an appendix in an associated Wildlife Report that employed a Bayesian belief model to assign letter grades to viability, which supported the rationale for selecting Alternative P.  The court explained:

Neither the EIS nor the Wildlife Report describe how the agency came to these scores for each species and action alternative. The agency did not define its methodology for assessing the letter grades, such as what factors it considered and the weight they were given. The grades assigned to each planning alternative lack explanation…  the agency acted arbitrarily and capriciously when it offered explanations that ran counter to the evidence before the agency and failed to satisfy the requirements of the NFMA.

The court also found that the Forest failed to discuss the amount and quality of habitat and population trends (a requirement of the 1982 regulations).

The court also held that the forest plan EIS violated NEPA by failing to meaningfully address the original Eastside Screens Report.  The Forest simply argued that it needed more flexibility to achieve the desired conditions, including avoiding numerous site-specific amendments to deviate from the diameter limit in the Eastside Screens.  The Forest failed to include the original Eastside Screens Report in its administrative record, and did not adequately respond to public comments about the Eastside Screens.  The court stated:

Its absence demonstrates that the agency failed consider the scientific rationale for adopting the 21-inch rule before deciding to discard it. The agency did not respond to viewpoints that directly challenged the scientific basis upon which the final EIS rests…  In doing so, the agency violated the NEPA. The absence of the Eastside Screens Report also demonstrates that the agency did not consider an important aspect of the issue, as required by the APA.

… the agency did not consider negative impacts, if any, from (1) elimination of the 21-inch rule or (2) retention of the exceptions in the new guideline. The NEPA requires the agency to discuss and not improperly minimize negative effects of a proposed action…  In this case, the EIS did not assess how often the new guideline’s exceptions will be invoked and how the exceptions may impact the agency’s conclusions about the environmental effects and species viability.”

The Sanpoil Project also violated NEPA.  The EA simply assumed that the new forest plan guideline would protect old-growth trees.  The court held:

This conclusion was contrary to the evidence. The Sanpoil Project EA did not specify the frequency of which the new guideline’s exceptions would be invoked, despite the 2019 Forest Plan’s stated objective of preserving old-growth trees. The agency is not required to catalogue specific trees that will be removed, but in this case, the agency was required to provide site-specific details at the project planning stage to provide a sufficient picture of the Sanpoil Project’s cumulative effects… Without sufficiently specific information about site impacts, the Sanpoil Project’s impact to old-growth trees and their dependent species is speculative.”

(This overlaps to some degree the issues surrounding “condition-based NEPA.”  The court even cites the Forest Service Handbook: “If the Agency does not know where or when an activity will occur or if it will occur at all[,] then the effects of that action cannot be meaningfully evaluated.”  It also is difficult to demonstrate consistency with the forest plan if the project documentation does not provide information about how a project is meeting forest plan requirements.)

The project also violated NEPA and NFMA by conducting “cursory analysis” of the effects of the project on gray wolves, wolverine, sensitive bat species, northern goshawk, and the western bumblebee.  Finally, the court found that NEPA requires an EIS for the Sanpoil Project because it “creates uncertain risks to old-growth forests and the wildlife dependent on them, and “sets a precedent for future actions that utilize the new old-growth guideline, each of which may be individually insignificant, but create a cumulatively significant impact when applying the new guideline.”  Moreover, the lack of quantified or detailed information about the Sanpoil Project’s impacts in this respect “is also highly controversial due to the same questions about its size and nature and effect of the action on old-growth dependent species.”

The court found that this “case” was ripe for judicial review “when the agency issued RODs for both agency actions” “because the Sanpoil Project is a site-specific action governed by the 2019 Forest Plan.”  The plaintiff had argued that forest plan decision challenge was ripe because it dealt with a forest-wide viability requirement rather than timber sale requirements found not ripe by the Supreme Court in its Ohio Forestry decision.  However, the plaintiff also argued that ripeness of forest plan issues could be based on this project decision implementing the plan.  It is not completely clear which rationale the court is employing.  The court also found that the plaintiff had exhausted administrative remedies by identifying large, old trees, wildlife viability and the Eastside Screens “thoroughly and consistently during the public comment process.”

Solar Industry Fried About Proposed BLM Reg (2): It’s a Big Change.. But No OIRA and a CX

by
As environmental compensation for several solar farms, renewable energy developer Avantus retired grazing rights on 215,000 acres of federal land in California’s Kern County, including some with Joshua trees.(Avantus via LA Times)

Apologies to all who are not interested in the proposed BLM regulation.  I haven’t seen anything much in the press on it so thought I would dive in. Plus we only have 15 more days, and it’s not an ANPR like the MOG for the Forest Service, meaning we all have another go at the MOG (when it is a proposed rule) but not this one.

Other than Sammy Roth at the LA Times, who has been covering the protection/renewable energy tension for some time, I haven’t seen much coverage of the details of the regulation other than a bit of “good people want it, bad people don’t”.

Back to the solar industry letter: they raised two points that are worth further examination.

Is it or Ain’t it… a Big Change, and if Not, Why Are We All Here?

Why No OIRA?

In addition to these potential unintended consequences, the Proposed Rule is a major agency action that would substantially alter the status quo of BLM’s management of federal lands and therefore should be scrutinized to examine its economic and environmental consequences. Among other things, the Proposed Rule:

• Requires OIRA Review. BLM’s effort to shield the Proposed Rule from OIRA review is inappropriate. At a minimum, it must be subjected to the detailed policy analyses required of “major rules” under the CRA, “significant regulatory actions” under Executive Order (EO) 12866, and “significant energy actions” under EO 13211.

Assuming that the solar folks did their homework (does anyone know where to look for this in the reg?), I guess that answers my question as to how the proposed regulation did not encounter some resistance from USDA about redefining “conservation” differently from long-standing and widely popular USDA programs.  In addition, it seems highly likely that DOE would be equally concerned about taking land off the table for solar and wind.  It seems to me that the Admin can’t argue that:

 By putting conservation on an equal footing with other uses, the proposal would help guide responsible development while safeguarding important places for the millions of people who visit public lands every year to hike, hunt, camp, fish, and more.

It’s a big thing that needs to be done, but not big enough to require OIRA.   As we used in say when working with Roadless, “they need to pick a lane.”  Except that politically generated proposals don’t have to.  Speaking with a forked tongue is an inherent tendency of all politicos, but I still think we need to point it out when it occurs.

A Categorical Exclusion?

Back to the solar folks.

• Requires Full NEPA Review. BLM proposes to comply with NEPA by applying a Departmental categorical exclusion (CX) typically used for “policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.” The Proposed Rule goes well beyond what is appropriate for consideration under a CX, and BLM should prepare an EIS analyzing the Rule’s environmental and economic impacts, including an evaluation of the potential negative consequences for renewable energy development on federally managed lands.

Some of us remember a NFMA Planning Rule that was required to have an EIS done when a CE was originally used.  I spent a large number of hours discussing this with lawyers so am hoping that some of them can shed some light on why or why not this kind of “procedures and definitions” only kind of reg deserves (or doesn’t) an EIS.

If a) the Proposed Rule is finalized with a CE and 2) people with funding for attorneys don’t like the Rule, it seems probable that, like the Planning Rule, an EIS would ultimately be required.

***********

More next time..

TGIF TSW Random News Roundup

by

F to WaPo on State Farm in California Story: A to  E&E News

WaPo is not the only one, but their “analysis” (?) tells us it’s all about climate change.  But no mention of California’s unusual legal requirements, and no skepticism about the insurance companies potentially using climate to pad their estimates.    Best coverage so far goes to E&E News, and special kudos to them for making that article public.

Pielke, Jr. on Hurricanes

In the WaPo article, they pivoted to hurricanes.  Which reminds me that Roger Pielke, Jr. had a Substack piece on hurricanes this week that rounded up some current information. There are National Forests that are affected by hurricanes, so it is part of TSW country.

Still No Articles on “Feds are already allowing proponents to fund NEPA”

I have seen many more articles on the Debt Ceiling NEPA changes, but none so far that address this.  If you have read one, please link in the comments.  Curious minds need to know..are all other agencies able to do this? What’s their track record.

Write Legislation  in Haste, Litigate at Leisure

Speaking of the Debt Ceiling NEPA, I asked Dan Farber of UC Berkeley Law, about some of Center for Biological Diversity’s claims.  Many thanks to him for answering my qeustions!  He wrote a post exploring some of the text (NEPA ites will find the entire post interesting)  it and concluded:

In addition, given the rest of the garbled language, it’s not clear whether dropping the word “potential” was just another glitch, or was done to make the definition more concise, or was really intended to change the meaning. It’s equally unhelpful to compare the rule to the current, post-Trump version, which is much simpler, does drop potential, but also revamped the rule in other ways different from the new bill.

I suppose the bill might be amended somewhere along the way to fix the problem. But given the lack of time, and the dangers of opening up the bill to changes, I’m not sure whether that’s at all feasible. A later “technical corrections” bill would also be possible, but I think Democrats would oppose any effort to redraft the section in a way that limited the application of NEPA, while Republicans might oppose any fix that restored the current status quo as a back step,

In the absence of a quick legislative fix. I predict lots of fun litigation. Maybe the upshot will be to ignore the definition entirely and only give effect to the exclusions. In the meantime, however, all that litigation is only going to increase delays, which is ironic given that the whole purpose the NEPA changes is supposed to be speeding up the process.

A final thought: I stumbled into this drafting disaster by chance. How many similar glitches are lurking in the bill?  The moral may turn out to be: “Draft in haste. Repent at leisure.”

Red line Analysis of Debt Ceiling NEPA by Bipartisan Policy Center.

Thanks to Xan Fishman..”We don’t need legislative doomerism any more than we need climate doomerism.”

Here’s a link to a red line analysis and it also points to BPC and One Federal Decision recommendations.

 Legislators (or Their Staff) Who Cry Wolf

There’s a reason The Boy Who Cried Wolf is such a longstanding and popular story. Aesop lived between 620 and 564 BC and the story is still popular today. Question: is there any change to  NEPA or to its implementing regulations that according to Grijalva’s office, does not “gut environmental laws”?  How would we know what a real “gutting” would look like, if everything is “gutting?”  What other adjectives might be left on the table for future use? Here’s their “fact sheet”. It’s interesting to contract with the Bipartisan Policy Center and Dan Farber’s analyses.

No Wolves for You, Colorado

Perhaps this has been resolved, but there is a complex story behind Colorado’s initiative based wolf reintroduction program. It wasn’t supported by CPW wildlife managers, but thrust upon them.  Then the state legislature and the Governor got involved in the 10j question. This article in Colorado Politics by Marianne Goodland was over my head about the 10j stuff so good for her, unless Jon and other experts think she missed something.

Context: wolves have been migrating down from Wyoming anyway.  So why reintroduce? Many of us asked the same question, but it was on a ballot initiative.

Back to reintroduction. Below is from an article in gohunt.com by Kristen Schmitt.

The draft wolf reintroduction plan includes sourcing wolves from Idaho, Wyoming and Montana; however, that’s where it gets a bit tricky. In fact, language within the plan states that “[s]pecific agreements regarding donor populations have been discussed with these three states but final agreements have not yet been concluded.”

But that doesn’t seem to be true.

“We have not been and are not in conversations about moving wolves to another state. To be clear, we have not talked and are not talking to Colorado about moving wolves,” said Greg Lemon, a spokesperson for Montana Fish, Wildlife and Parks.

Idaho noted that “the states have not had any formal conversations” and Wyoming Gov. Mark Gordon is against Colorado’s reintroduction effort, which means that they don’t plan on relocating any wolves to the Centennial State. Period.

“Our current wolf management plan is working, and it works because it is designed to manage wolves in biologically and socially suitable habitats and to keep wolves out of areas of the state where conflicts would be highest,” said Gordon. “Our border with Colorado is an unsuitable area for wolves, and that would mean more human conflicts. Resolution of conflicts are almost always deadly to wolves.”

Oregon and Washington are suggested as possible alternatives though no formal discussions have occurred, according to Channel 9 News. The same goes for Utah.

“There are currently no established wolf packs in Utah, which would likely not make us a viable candidate for providing wolves,” said a Utah Division of Wildlife Resources spokesperson.

********************

Feel free to add your own “news of the week” in the comments.

Dan Farber Weighs in on NEPA Permitting Reform

by

We had a good discussion here with LM and Jon, but I thought I’d post this one.

UPDATE: I heard back from Dan Farber on the “do these changes apply to NEPA for everything” question.. here is what he said.

 So far as I can tell, the NEPA-related provisions are all amendments to NEPA itself and aren’t limited to particular types of projects. Most of the changes seem pretty consistent, however, with caselaw and CEQ regs. So except in a few places, I don’t think they’re going to have substantive impact. The deadlines, page limits, and lead-agency requirements may make a difference at the operational level, however.

Here’s Dan Farber of Berkeley Law’s take .. he seems pretty level-headed on this, which is perhaps to say, I tend to agree with him :).

The original version of NEPA is very brief. It lacks definitions or any indication of the process to be used in deciding whether a project requires an impact statement. Over the years, those gaps have been filled in by a combination of court decisions and guidelines from the Council on Environmental Quality (CEQ) in the White House. In general, the FRA version of the Builder Act writes in the statute the rules worked out by courts and the CEQ.

There are some exceptions, however, where the changes may be more significant. Here are some significant changes that have been identified in discussions by legal scholars:

  • Extraterritoriality: No environmental review is required for actions or decisions with impacts entirely outside the U.S., such as funding a dam in another country. This appears to be a more rigid standard than courts have applied.

  • A somewhat more restrictive rule about how much control a federal agency has to have over a project before an environmental review is required.

  • A government agency considering a project can outsource preparation of the environmental review documents to the project sponsor, though the agency is required to exercise oversight. In practice, this would mean having the project sponsor pay for an independent consulting firm to do the work.

  • Page limits 150 or 300 pages depending on complexity and deadlines (2 years) for environmental impact statements. (Who uses page limits anymore instead of word counts?) One effect could be to discourage the use of graphics and maps that might actually make the statement much more understandable to the public.

  • Providing for appointment of a lead agency to be responsible for the impact statement when multiple agencies have jurisdiction over parts of the project. This is probably a good idea, but probably could have been implemented administratively even without a statute.

…..

How significant are the NEPA changes?

On the one hand, the NEPA provisions of the FRA seems fairly innocuous, and it may be helpful to have the rules clarified by statute. That provides a clear anchor point for judicial decisions and puts some limits on how much particular presidential administrations can play games with the statute. Thus, putting the rules into statutory form provides a bit of protection against the likes of Trump or Alito trying to gut longstanding practices.

SF- One person’s “playing games with the statute” or “gut longstanding practices” could be another’s “clarifying” such as BLM’s proposed rule and MUSYA. It’s all in your perspective..

On the other hand, it’s not clear how much the NEPA changes will actually speed up permitting. Deadlines for agencies to act sound good but experience has shown they’re very hard to enforce. The page limit is meaningless, since all the extra stuff will just go into the appendices.

In terms of speeding up permitting, the most promising change may be the ability to get applicants to pay for outside experts to draft the impact statement. The environmental review process is often slow simply because agencies don’t have the budget or staff to get it done faster. Outsourcing could really speed things up, but it will be crucial for agencies to exercise serious oversight. Otherwise, companies will find friendly consultants to paper over any environmental problems.

Overall, the NEPA provisions don’t seem to pose major problems. Or at least, none that we’ve been able to find so far. From an environmental perspective, that’s probably about the best we could expect from the fraught negotiations over the debt ceiling.

****************

My thoughts..

It seems like agency NEPA practitioners were not involved in many of these policy discussions. Wouldn’t they be the first people you would ask for ideas? Oh well.

I agree with Dan that page limits are pretty meaningless.

Don’t we already have the ability to have applicants pay for NEPA? I seem to remember a project (I’m sure Mike remembers) I used to call “Reasonable Access for Unreasonable People” with TetraTech as the contractor.  In my mind, and with decades of experience, it’s much easier and less time-consuming  to review someone else’s work than to do the initial work yourself. As long as the agency calls the shots on analysis, that should be the determining factor.  As I recall, the applicant was not allowed to communicate directly with the contractor.. anyway perhaps someone out there has more experience.  My point being 1) maybe that’s not as new as some people think and 2) maybe there are different ways of doing it, some that have worked out better than others.

It’s great to make a lead agency more accountable, if that would actually work.. except that when agencies disagree.. will only the lead agency have skin in the game?

It continues to sound as if these NEPA changes are more general than just energy projects, so I’m trying to find out more.

It also seems to me like OGC and FS NEPA folks have generated something on “what this means for the FS” which would be much better than my ramblings.. so if you run across this, please email me.

Finally.. a bit of cross-agency context.. one agency of DOI, the BOEM, used an EA for a 30 million acre swath of the Gulf of Mexico for wind energy, according to Greenwire.

House Bill and Permitting Reform

by

Anyone not doing something more enjoyable this weekend might want to take a look at this draft House Bill, specifically for us, “permitting reform”. I couldn’t spend much time on it.. but my first take was 1) it isn’t specific to energy permitting (could be wrong, so many clauses, so little time!) and 2) it’s mostly about getting federal agency practitioners to speed up- not so much about other sources of possible slowness, and 3)

‘SEC. 106. PROCEDURE FOR DETERMINATION OF LEVEL OF
11 REVIEW.
12 ‘‘(a) THRESHOLD DETERMINATIONS.—An agency is
13 not required to prepare an environmental document with
14 respect to a proposed agency action if—
15 ‘‘(1) the proposed agency action is not a final
16 agency action within the meaning of such term in
17 chapter 5 of title 5, United States Code;

I wonder whether that might apply to NFMA plans. Hopefully someone will have time to take a gander at all this. Maybe so much has been negotiated that the changes are relatively meaningless (other than shortening NEPA docs and accountability for timelines). I’d appreciate others’ thoughts on this (plus links to others’ analyses).

Holland Lake: The Forest’s Side of the Story

by

Thanks to an alert TSW reader who forwarded this link to the Flathead Q&A’s about the Holland Lake Special Use Permit. The process is complicated enough, and specific enough to recreation special uses, that there are plentiful opportunities for misunderstandings.  For one thing, the application for a new permit with the new company is still under review and hasn’t been approved.

I think the FAQs clarify what Anonymous said here.

“Those are the terms stated right on the face of the Holland Lake Lodge permit. The Forest Service ignored those terms and let the parties attempt to expand and upgrade by submitting an MDP and telling the public their preliminary decision would be to approve it as a categorical exclusion. The Forest Service accepted that MDP in April, 2022 but didn’t put it out for public comments until September, 2022, long after the permit had
been terminated. ”

It seems that there are three things that could easily be confused.

  1. The FS reviews a new permit (to a new party) for an existing site.
  2. The FS accepts an MDP.
  3. The FS makes a “NEPA decision” to allow a specific kind of expansion or change to the existing site.

So if we go back to Anonymous’s comment.

Those are the terms stated right on the face of the Holland Lake Lodge permit. The Forest Service ignored those terms and let the parties attempt to expand and upgrade by submitting an MDP and telling the public their preliminary decision would be to approve it as a categorical exclusion. The Forest Service accepted that MDP in April, 2022 but didn’t put it out for public comments until September, 2022, long after the permit had been terminated.

Here’s what the FAQ says about accepting an MDP:

A master development plan (MDP) is a conceptual guide encompassing the entire operation presently envisioned for potential long-term development in connection with use authorized by the permit. Upon acceptance by the authorized officer, the master development plan shall become a part of the permit. There is no public process for acceptance of the master development plan because this is a conceptual plan only and does not authorize any action. No proposal for changes to existing authorized use at the resort, including development or construction of improvements, will be authorized without the requisite environmental analysis and documentation needed to support that additional construction or development under the National Environmental Policy Act (NEPA).

Acceptance of the MDP does not constitute approval of its contents or provide any assurance that any item in the MDP will be authorized by the Forest Service or constructed by the holder. No rights or obligations of the holder or the Forest Service are determined by the authorized officer’s acceptance of the original or revised MDP, including the legal requirement to conduct environmental analysis under NEPA. Screening criteria are applied and if accepted as an application, subsequent NEPA analysis will occur when a proposal is brought forward for consideration.

(my bold).

It’s confusing because the “what is to be done” under the MDP may be similar, or identical, to a specific FS proposed action.  An MDP is a “might could” in the current regs between the FS and the permit holder.  The proposed action is a proposal for something to be done on the ground with environmental impacts, with all the public involvement and analysis requirements that need to be followed.

For those of us more used to the ski industry, an MDP is  a strategic document that outlines what might happen and what direction the Permittee wants to go.  Here’s an example of some coverage and here is a link to the Breckenridge 2022 MPD.

Here is a link to the Breckenridge 5-Chair Environmental Review, which  uses  similar language in terms of “it is anticipated but we are looking at scoping comments and further analysis.”  Shout out to Dillon Ranger District for their story map.

Categorical Exclusion

Based on resource information gathered to date, it is anticipated that the Proposed Action falls within a Forest Service category of actions under 36 Code of Federal Regulations (CFR) § 220.6 that may be excluded from documentation in either an environmental assessment or an environmental impact statement, and that no extraordinary circumstances exist that would preclude its use. Scoping comments along with a complete resource analysis will determine whether this project can be categorically excluded.

The proposed project is consistent with category 36 CFR § 220.6(e)(22): “Construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site, including infrastructure or improvements that are adjacent or connected to an existing recreation site and provide access or utilities for that site.” Activities within this category include but are not limited to “Replacing a chair lift at a ski area.”

(my bold)

Anyway, back to the Flathead FAQ’s.

What is the process if a new expansion proposal is submitted?

The permit holder must submit a proposal from the accepted MDP. The proposal will be reviewed under the screening process criteria (Title 36, Code of Federal Regulations, section 251.54). If formally accepted, the proposal will be processed as an application and analyzed through the NEPA process as a proposed action. If rejected the proposal will be returned to the proponent.

OK, so what about the old permit and the new permit?

What is the Forest Service’s authority when a business changes control or ownership?

While the Forest Service does not regulate or otherwise control privately owned improvements, it authorizes and regulates use of National Forest System lands in accordance with applicable federal laws and regulations.

Any transfer of title to the improvements covered by a Special Use Permit or a change in controlling interest triggers termination of the permit. When private improvements change ownership or a change in the controlling business entity takes place, it is Forest Service policy to issue a new special use authorization to the new owner/controlling business entity. The acquiring party or entity must submit an application for a new permit.

Has the existing permit been terminated due to change in control?

The Forest Service was formally informed of the change of control and an application for a new permit was submitted. Acquisition of a controlling interest in Holland Lake Lodge, INC. triggered termination of the existing permit; however, termination is not effective until/unless a new permit is issued.

*******************

So there seems to be a question, brought up by the letter by Save Holland Lake, CBD and AWR  as to whether the FS should authorize a new permit.  But to me, the permit and specific construction in any proposal are separate.

In their letter, they say they  “demanded it comply with mandatory regulations when determining whether to issue Utah ski giant POWDR a new term special use permit to triple the size of the lodge on the pristine mountain lake.”  But a permit by itself wouldn’t authorize any of those actions without a further NEPA decision.  So I’m still confused about that.

Senator Tester Spreads Misinformation About Forest Service Categorical Exclusions at Senate Hearing

by
“using a categorical exclusion that was meant for cutting trees not for recreational purposes” Sen. Tester

I was intrigued by the Senate hearing where Senator Tester of Montana grills Chief Randy Moore here. Yay! someone talking about FS categorical exclusions! On Youtube!.

We already have discussed the Holland Lake Project (which Senator Tester didn’t mention by name) here and here.

Senator Tester seemed to think that the fuels CE he had voted on had been used for recreation. Around 1 minute.

Hopefully his staff knew more but.. why would they allow him to say something that’s obviously out to lunch?

Tester states that a corporation will come in (to this recreation site) with “potentially devastating impacts”, and “no public input.”

As Randy answers, CEs in the FS don’t mean “no public input”- there is required scoping. Yay, Randy! Scoping is public input.

As to “no public comment” here’s the scoping letter:

The full public scoping package can be found on the Holland Lake Lodge Expansion project webpage at: https://www.fs.usda.gov/project/?project=61746.
The Flathead National Forest will be hosting a public meeting about the Holland Lake Lodge Facility Expansion Project on Thursday September 8th, 2022, from 5:00-7:00 pm MST on the Holland Lake Lodge grounds at 1947 Holland Lake Lodge Rd, Condon, MT 59826. The purpose for this public meeting is to engage in information sharing with the public on project activities and to answer questions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be considered part of the public record and will be available for public review. Electronic comments must be submit- ted through the project webpage at https://www.fs.usda.gov/project/?project=61746. On the right side of the project webpage there is a box “Get Connected” click on the ‘Comment/Object on Project’ link to submit your comment. The sender should receive an automated electronic acknowledgment from the agency as confirmation of receipt. If the sender does not receive an automated acknowledgment for receipt of comments, it is the sender’s responsibility to ensure timely receipt by other means. Acceptable formats for electronic submission are text or
html email, Adobe portable document format (PDF), and formats viewable in Microsoft Office applications (e.g., Word). Please address your written comments to Project Leader Shelli Mavor, Swan Lake Ranger District, 200 Ranger Station Road, MT 59911. The office business hours for those submitting hand-delivered comments are 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.

**************

“The CE was meant for cutting trees, not for recreational purposes.” That’s not the CE that was used, so, well, that’s a false statement.

For the curious, it wasn’t a legislated CE. According to this article:

Recreation Site and Administrative Site CEs, 36 CFR §§ 220.6(e)(21) and (22)

These two new CEs allow for construction, reconstruction, decommissioning, relocation, or disposal of buildings, infrastructure, or other improvements at recreation or administrative sites. The Forest Service foresees using these CEs to help restore its aging infrastructure at various administrative and recreational facilities, as well as allowing it to establish agency procedures for facility master planning.

For me, as we’ve discussed before, if a category fits, use it unless there are extraordinary circumstances as defined in the regs. And Jon well represented another point of view.

Here is what the Flathead folks said in their scoping letter:

Based on a preliminary assessment, intentions are to categorically exclude the proposed project from documentation in an environmental impact statement or an environmental assessment under 36 CFR 220.6(e)(22): Construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site, including infrastructure or improvements that are adjacent or connected to an existing recreation site and provide access or utilities for that site.

I’ll restate.. “based on a preliminary assessment, intentions are..”. In my experience in other Regions, this would have been met with “don’t use a CE” and “we think it’s overbuilding”,  not the level of outrage that this forest seems to have received.

Tester framed it as making corporations rich.. but on the other hand, no one is required to stay or eat there, so they must be providing a useful service to individuals and families. In fact, Tester started out in his statement with how important the recreation economy is to the State of Montana. Hopefully none of those folks are growing rich :).

The actions of the career feds.. er.. “Gives government a bad name,” according to Senator Tester. Actually, having watched some recent Congressional hearings, I would give Congress an 90/100 for “giving government a bad name”, and the Flathead a 0/100.
*********

Most irritating to me, Senator Tester even implied that the reason for the use of the CE was to sneak by and cut a deal with corporations.

It’s not really clear what kind of benefits would accrue to the employees of the Forest by “cutting a deal”. In my experience, when deals are cut, it’s at a much higher level than the Forest, even than the Chief.

I did get a laugh out of his next statement -“the government should never be cutting a deal”.

Indeed, folks in the Executive Branch cuts deals for corporations all the time- and indeed “make corporations rich off our public lands.” Here’s an example:

The Biden administration said on Wednesday it would cut in half the amount it charges companies to build wind and solar projects on federal lands, a move designed to encourage development of renewable energy.

The new policy comes after years of lobbying from clean power developers who argued that lease rates and fees for facilities on federal lands were too high to draw investment

It’s not clear from the newspaper articles if there was public comment on this change.
**********************

Anyway, I can hear it now, why pick on this guy? They all bloviate- it’s in the job description. Yes, I agree, but I’d like them all to be less casual with facts. And not punch down. Yes, it’s too much to ask, but I can still ask. Accountability- not just for agencies anymore.

DxP

by

 

Indianapolis Indiana Dead Tree Removal 317-783-2518

One of the threads of this discussion went off on a topic of how much discretion loggers should have in deciding what trees to cut down.  “Tricky Dick” offered that, “The USFS in its office attired lazyness doesn’t want to have to cruise the forest landscape piece by piece and thru honest Forestry discretion , uninhibited by profit motives, mark the bigger trees as ” leave or cut…”  Larry replied with regard to marked trees, but what if they are not marked?  I think there’s a name for that – “designation by prescription,” or DxP.  Here is how the Colville National Forest explains it (2020):

The Colville National Forest in Washington began using Designation by Prescription (DxP) in 2009 in order to become more efficient in timber sale preparation. Marking individual trees with paint in a sale area can be a time-consuming and costly process. DxP saves time preparing a timber sale and money spent on paint by allowing the logger to select which trees to harvest based on a timber stand prescription, which defines the desired condition after harvest.

With DxP, the operator may need to know tree species, how to measure tree diameters, forest health indicators, or how to achieve desired stocking level. This has the potential to initially slow operations. However, the flexibility that DxP provides (the contractor needs only to meet the prescription and that outcome can be accomplished in different ways) can create efficiencies for both the USDA Forest Service and the contractor

Is Tricky right?  But wouldn’t “allowing a logger to select which trees to harvest” allow them to do whatever they want within the broad confines of a “desired condition” in the “timber stand prescription?”  I have lots of questions about this.  How common is this?  Is the “timber stand prescription” part of the NEPA disclosure process in a way that all possible effects of the loggers’ decisions are accounted for?  If they only have to achieve the desired condition, could they do that in a way that is inconsistent with standards or guidelines in a forest plan?  Those aren’t included in the Colville’s “need to know” list above.

Asking for a friend.  Thanks.

Let’s Share CEQ Stories: and Why EPA May Not Give Retardant Regs the Attention They Deserve

by

Thanks to the many folks who have contacted me with their own concerns and observations about how the CEQ-Agency decision process is working. I had no idea that the concern was as widespread- and in areas I didn’t expect. So thank you all for reaching out!

My own CEQ Stories: Please Add Yours..

For me, I had expectations for the role of CEQ based on my own experiences. Absolutely each Admin can run things the way they want. Still, as it turns out, there is a vast body of people who work in and with government- what we might call Faithful Denizens of the Swamp- with many familial, friend and other connections who communicate with each other across party and other lines. I too was a Swamp Denizen and proud of the work I did as a career civil servant- trying to keep politicals from doing questionable things- and finding good ideas and floating them when different parties come into power. I I put the word faithful because most of us are faithful to values beyond a political party.. like good government, whatever that it. IMHO good government must be measured by trust, accountability, and the real-world effects on citizens (not hot air). As we used to say, the occupational disorder of DC is believing your own hype.

I have had three experiences of working directly with CEQ.
One was when I worked with Dan Magraw of EPA (assigned to CEQ) on regulation of genetically engineered organisms during the Clinton Administration. I was working at the Office of Science and Technology and the project was joint with CEQ. Dan and I were co-leads.
The second was working on the Limited Timber Harvest Categorical Exclusion during the Bush Administration (as the FS NEPA person). The third was as the FS NEPA person on the interagency NEPA group, but I’ve told that story before.

I was chuckling thinking that when I worked at OSTP (the White House Office of Science and Technology Policy, like CEQ, part of the White House, but not what you think of exactly as “the White House”) the 2001 Planning Rule came through to be cleared. I raised the issue with OMB as part of the clearance process that the costs might be.. well.. underestimated. I got one of the OMB staffers interested in that, until that was shut down by our then-undersecretary (if he needed additional clout to do this, I have no idea). The story goes the Undersec complained to my FS boss at the time (Bill Sommers) who told him “what did you expect when you sent her over there?”

When we finished our interagency report on GE organism regulation, our bosses presented it to George Frampton, the CEQ Chair, with us in the room. He said basically.. no. So I think the higher ups and others had a discussion with him prior to the meeting, and that was definitely a joint Administration decision. Somehow biotech companies had the ear of the powers that were.

When I worked on Limited Timber Harvest, CEQ folks raised lots of questions. Patiently Pam Gardiner and I would answer questions,  and this back and forth went on for months. At one point Pam and I went to a meeting with Mark Rey, our Undersecretary at the time, and as I recall, Jim Connaughton, the CEQ chair dropped in to say to the CEQ staff person “enough is enough” and that was that. Again, I don’t know if Mark, the Sec, Jim, and others had had some prior convo.

I know other readers have had their own experiences. Again, any Admin can organize the way it wants to. However, if one chooses to operate differently, it will raise eyebrows among those who are used to working within the system. And my experiences are old now, but my still-friends in the Faithful Denizens of the Swamp who have emailed and called me are concerned about this new role. At the same time, a big change since the old days  is where exactly climate concerns are interspersed in all this -who hold what “climate” cards, where and how is the climate game played exactly?

Why Not Give More Work to EPA?

Yes, let’s give those poor feds another task.. rulemaking for fire retardant to the EPA! Why not? This is not negative about EPA, but they seem to already have too much to do.

First,  they’re 20K people down and say that they can’t do what’s in the IRA and BIL … see Grist story here..

Today, the workforce is around the size that it was under President Ronald Reagan in the 1980s. The AFGE has said that the agency will need 20,000 full-time staff, a 40 percent increase, to carry out the programs it has been tasked with.

Nicole Cantello, who practiced as an EPA attorney for three decades before joining AFGE Council 238 full time in 2020, told Grist that the issue is not only with hiring, but also with retention. A dearth of promotional opportunities and limited work-from-home options have caused retirement-age employees to depart early. Roughly 20 percent of the EPA’s staff have been at the agency for 30 years or more and could elect to retire soon.

************

For members of AFGE, the staffing shortages are both personal and existential. A failure to address them could have repercussions for generations to come.

“Our mission has grown enormously, and climate challenges continue to escalate, but EPA’s inability to hire and retain staff has created a crisis,” said AFGE Council 238 President Marie Powell Owens in a statement. “We need to raise pay and restore career ladders now. The future of the EPA and our planet are at stake.”

The 2023 TSW Hyperbole Award may well go to Ms. Owens.

It’s also just too… hard… to keep track of all that money. Check out this non-paywalled story from Bloomberg Law. Et tu, Congresswoman DeGette?

The EPA’s inspector general raised concerns to House lawmakers Wednesday that his office can’t adequately track the tens of billions of dollars flowing into the agency from the infrastructure and climate laws under its current funding.

The comments from Sean O’Donnell and two other agency inspectors general come as some congressional Republicans’ concerns that the Biden administration is frittering away taxpayer dollars and increasing the national debt.

“Over the past two years, your federal government has been spending taxpayers’ dollars like it was Monopoly money,” said Rep. Morgan Griffith (R-Va.), chair of the House Energy and Commerce Oversight and Investigations Subcommittee.

But Rep. Kathy Castor (D-Fla.), the panel’s top Democrat, countered that funding from the infrastructure and climate bills is crucial to protect the environment and grow the economy. Rep. Diana DeGette (D-Colo.) said that, despite the financial risks of pushing billions of dollars out the door quickly, the risk of doing nothing is unacceptable.

Broadly, O’Donnell and the other inspectors general pointed to shortcomings in their offices’ ability to oversee government spending. O’Donnell said he wasn’t asking Congress for new money, but “to actually use the money that’s already been given to pay for that independent audit.”

It’s kind of sad to me, as a former Faithful Swamp Denizen,when oversight is seen (by some partisans) to be a partisan issue. Is the future of the planet at stake if billions don’t go out the door fast enough? I can sympathize with those who might wonder (given the non-ground-truthed maps) whether there might be some kind of well- directed- funding in all this? My view.. if people are not trusting, don’t call them names (tinfoil hatted and all that).. become more trustworthy.

EPA EJ Office has cash, staff but not boss.. (E&E News, 3/27/23)

And finally, GAO points out that EPA has not been playing well with land management agencies as reported here earlier.

What could possibly go wrong assigning a new retardant rule to EPA?