NEPA

Collaborating on national forest exploitation – an oxymoron?

by
“Attendees engaged in fruitful conversations during the Green Mountain and Finger Lakes National Forests hosted Environmental Analysis and Decision Making collaboration summit. USDA Forest Service photo.”

“Before retiring, James Burchfield worked as a field forester for the Forest Service and served as dean of the W.A. Franke College of Forestry and Conservation at the University of Montana.”  Where our careers overlapped, he was known for his support of and expertise in collaboration in national forest management.  We have argued on this blog about the proper role of collaboration (it flared up again in the Rim Fire recent example), but in this Missoulian column he points out what I think most would agree is an improper role (on his way to making another point about adequately funding the Forest Service).

In 2002, former Chief Dale Bosworth, who now resides in Missoula, reminded the agency of the concept of stewardship, where the focus is not what we take from the land but what we leave on the land. I fear we may be forgetting these vital lessons.

The June 12 visit to Missoula by Agriculture Secretary Sonny Perdue to announce his Secretarial Memorandum on new agency priorities reminds us how easily we may be lured in the wrong direction. His mandate to “increase America’s energy dominance” and “reduce regulatory burdens” comes on the heels of a June 4 Presidential Executive Order that orders federal agencies to set aside environmental impact requirements because of the economic downturn caused by the COVID-19 pandemic. Certainly, the nation must take assertive measures to restore the economy, but a command to exploit complex ecological systems without appropriate environmental reviews, guaranteed by the National Environmental Policy Act (NEPA), abandons the sound principle of “look before you leap.” Further, forcing the Forest Service to meet production targets on a narrow range of resource benefits — those that can be commodified in the marketplace — discounts other critical resource values such as clean water, wildlife habitat and recreation opportunities that are well-recognized as central to Montana’s economic vitality.

Moreover, the Forest Service has learned its best outcomes emerge only after ongoing deliberations among partners and local residents to apply their nuanced knowledge and experience. This process actually happens in Montana via the decades of efforts by the 20-plus voluntary groups known as forest collaboratives that regularly engage with agency staff to improve project design, build understanding, and help get work done. These collaborative groups do not enter their deliberations with presupposed notions of resource exploitation. They want the best for the land.  

(My emphasis.)  I was always skeptical that including those with strictly monetary interests in collaborative efforts comported with this principle.  I assumed that there would have to be collaborative agreement with the desired outcome as step 1.  (This is also where forest plans should make an important contribution by defining the desired condition of the land.)  After Perdue’s announcement, it’s hard to see how any truly collaborative effort today could get past that step.

 

 

Trump’s latest marching orders on public lands

by
Trump – Nailed it

The Trump Administration declared the coronavirus pandemic to be a “national emergency” in March. On June 4, the president issued an executive order on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”  It has been characterized as “waiving environmental protections,” in particular the National Environmental Policy Act and the Endangered Species Act, and would include actions taken on public lands. This has been condemned in the usual places.

It will be interesting to see how this plays out on federal lands, and whether it makes any difference.  Trump already has the pedal to the metal on development activities, so I wonder what more they could do – without actually violating a law.  Maybe we should expect more lawsuits.

Here’s some of the key language in the EO (with my emphasis):

Sec. 2.  Policy.  Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  (I assume that means other non-emergency authorities, and not other unlawful authorities 🙂 )

Sec. 5.  Expediting the Delivery of Infrastructure and Other Projects on Federal Lands

b)  To facilitate the Nation’s economic recovery, the Secretary of Defense, the Secretary of the Interior, and the Secretary of Agriculture shall use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance.

Sec. 6.  National Environmental Policy Act (NEPA) Emergency Regulations and Emergency Procedures.

b)  To facilitate the Nation’s economic recovery, the heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.

Sec. 7.  Endangered Species Act (ESA) Emergency Consultation Regulations.

(b)  The heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, the ESA regulation on consultations in emergencies, to facilitate the Nation’s economic recovery.

Sec. 10.  General Provisions

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Of course an executive order can’t change the law or regulations, and this one explicitly refers to existing procedures that can be used in emergencies.  All I see Trump doing here is pointing out that there are existing authorities to expedite projects, and agencies should be using them.  But maybe the intent might be to expand the situations that are considered emergencies to include an economic recession.  I doubt that could be done “consistent with applicable law” related to emergency determinations.  Here is the language applicable to Forest Service NEPA (36 CFR §220.4):

The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources.

If there is a need to mitigate immediate harm to life, property or important resources, it would be consistent with applicable law to use the established emergency procedures.  There is either nothing new in the executive order, or if there is, we should expect it to be challenged.  (And then there is the question of why he waited three months to address this “emergency.”)

But these are dark days.  The Washington Post quoted an attorney at a large national law firm (Perkins Coie) that doesn’t usually represent environmental plaintiffs.  He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. “I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,” Jensen said, referring to actions in a Washington park this week. “It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.”

 

Has the Helena-Lewis and Clark got jobs for you

by
source: gustavofrazao / Getty

The Helena-Lewis and Clark National Forest revised forest plan was released recently and is now in the objection period.  A local newspaper decided to profile the benefits of the revised forest plan to “jobs” – 400 new ones are projected as a result of the revised plan.  As a former forest economist, I know how meaningless the economic analysis of forest plans can be, and this seemed a little far-fetched, so I thought I would take a look at it.

The EIS discloses the number of jobs resulting from recreation, grazing, timber, minerals, transfer payments and Forest Service expenditures.  That last item (which I think is mostly federal employees) makes up about half of the total employment benefit depending on alternative.  Actually, the number of jobs is the same for all of these categories in all alternatives, except for jobs related to timber harvest.  There, the preferred alternative (F) increases the timber jobs by five times over current levels (EIS Table 243, I get an increase of 497 from current levels), while roughly doubling the projected timber harvest volume over that resulting since 1980.  Elsewhere the EIS says, “An estimated 804 private industry timber jobs exist in this multi-county area.”  That doesn’t match the 119 shown in this table, but would mean the Forest would only increase industry employment by 50% or so, but still …  My point is just that this is suspicious and confusing.

The reality is that jobs created by Forest Service outputs are usually a very small part of a regional economy (the total number of jobs in this region is over 100,000, so that the total timber-related jobs is less than 1%) and the actual number of jobs will usually vary because of many factors that that Forest Service has no control over.  This is a good example of stuffing an EIS with information that does not help with the decision, and in fact may confuse it.

Then there is the question of why should we care.  The “regulatory framework” for social and economic benefits (p. 189 of the EIS) provides no authority for “creating jobs.”  (I doubt if there is one for doing something about “poverty levels” either, as Mac McConnell intimated here.)   The “findings required by other laws” included in the draft ROD do not include any related to social or economic growth.   And under NEPA, creating jobs would be a bad thing, since indirect adverse effects “may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems” (40 CFR §1508.8).

Of course, considering a specific effect on a specific industry or employer, might be a reasonable and relevant factor to consider for a long-term planning decision, if it were related to meaningful criteria about the “right” number of jobs and why, and properly disclosed in a record of decision.  I’m just not seeing that here, in this draft ROD:

The Plan also contributes to social and economic sustainability by providing plan components that collectively support an array of public benefits including jobs and income, … (p. 20)

This statement would have been true for any alternative, so the economic analysis contributed nothing.  It’s unfortunate that this was picked out as “news,” giving the wrong message about what our national forests are for, as well as raising questions about what is really going to happen.

NEPA for the 21st Century Papers: Mortimer et al. 2011- Environmental and Social Risks

by

 

If you look at the history of the need for NEPA improvements (currrently EADM), we need to look at the results of the NEPA for the 21st Century project.  It was an effort funded by the Forest Service specifically to look at NEPA improvements.  Since it can be difficult to find all of the papers,   I thought it might be useful to post them and discuss them again in light of the  recent Fleischman et al. paper and ongoing NEPA discussions.  Dave Seesholtz was the leader of this effort, and also produced a very useful annotated bibliography of the journal articles, so many thanks to him for this work.

Let me make my point of view perfectly clear here.  There can be many improvements to the way NEPA is done, as evidenced by the suggestions in the EADM process, and by my own experience with Process Predicament (a previous NEPA improvement effort). Nevertheless, litigation and litigation prep is one of many factors that can slow projects, especially certain kinds of projects, in certain places.  To me there is a difference between what we might call NEPA  “a”  involve the public, assess the impacts, and tell people why you made the decision, or  “b” make a document that is legally defensible.  For me, once you go down the road that “a  group with a litigation history has expressed serious concerns” you are inevitably into “b” which tends to take much extra work.  Your target audience has shifted from the broader public to a judge, and your required level of explanation expanded mightily.  And finally, if litigation didn’t slow down or stop projects, why would people keep spending money on doing it?

So I think the time has come, at the risk of boring everyone else who isn’t interested in discussions of improving NEPA, to post each paper in the N21C collection and have a discussion about each. We can include the approaches, how that fits with our own experience, and so on. If you want to skip these discussions, just avoid posts withe the N21C title.

I’ll start with Dave’s summary of the 2011 Mortimer et al. paper.

Mortimer, M. J., Stern, M. J., Malmsheimer, R. W., Blahna, D. J., K, C. L., & Seesholtz, D. N. (2011). Environmental and Social Risks: Defensive National Environmental Policy Act in the US Forest Service. Journal of Forestry, 27-32.

This article presents findings from three research efforts—interviews with federal land agency employees; an online survey to USFS ID team leaders; and an analysis of federal court cases—that suggest USFS leaders base project decisions more often on process-related risks than on the likelihood of significant environmental impacts. CEQ regulations state that an Environmental Impact Statement (EIS) should only be triggered by possible significant environmental impacts; however, this research demonstrates that potential socioeconomic and cultural impacts are just as likely as environmental impacts to trigger an EIS process instead of an EA process. The authors point out that these represent two different types of risk: resource risk, those impacts that threaten the natural resource, and process risk, which threaten the USFS’s work through increased public opposition. The latter should not be considered as a reason to do one type of NEPA process over another, and yet, this research shows that the choice to do an EIS process might be driven by perceived process risks. From the 106 ID team leader respondents, 72% ranked “degree of public interest/controversy” and 49% ranked “likelihood of litigation and appeals” as one of their top three reasons for having chosen to do an EIS process instead of an EA process. Only 31% ranked “likely environmental impacts” as one of their top reasons to do an EIS, despite the fact that statutorily this is supposed to be the primary, if not only, reason to do an EIS instead of an EA. The authors also confront the prevailing perception that EISs are more defensible in court due to their more thorough level of analysis. Evaluating the outcome of lawsuits against the USFS in which the plaintiff alleged that the agency had violated NEPA in land-management projects from 1989-2006, the authors found that the EAs are no less successfully defended than EISs. Pulling these findings together, the authors note that USFS personnel might be losing sight of the forest for the procedural trees as they base their decisions on perceived process risks rather than furthering NEPA’s underlying purpose to generate more environmentally sound decisions. Pragmatically, this excessive risk aversion is likely leading to excessive and unnecessary analysis, which, in addition to being time-consuming and expensive, causes “unintelligible” documents that are more likely to obfuscate than disclose decision making.

Main Finding: USFS decides to do Environmental Impact Statements because of potential public controversy and perceived litigation threats, not because of potential environmental impacts. Court decisions show that EISs are not more legally defensible than EAs—suggesting that decision making around NEPA processes is misguided and is causing unnecessary project expenditures and delays.

Recommendation: continued research on how ecological and social risks are used to make decisions

Methods: amalgam of three research efforts; interviews, survey, and court records review

Research Perspective: analysis type

Themes: document creation, litigation avoidance, risk management

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

Sharon’s thoughts: if you read the paper itself, there’s a lot to discuss. But here are some quotes from interviews: “25 respondents in the US Forest Service
(n = 8), the National Park Service (n = 6), the Bureau of Land Management (n = 9); and the US Army Corps of Engineers (n =2) in the winter of 2006-2007. ”

Reasons for doing an EIS

• The threat of litigation and the ability to withstand legal challenges:
Our solicitors push us to, they would much prefer us to do an EIS because it’s easier to defend in court.
The decision with sometimes doing an EIS is whether it’s going to litigation or not …

• The desire or ability to incur or demonstrate significant environmental impacts on the landscape with an E1S:
If you really want me to have an EIS, then 1’m going to go for the gusto and have some significant impacts.
We had no idea what the outcome was going to be, hut with an EI5 you can have a significant effect. And we wanted to have a significant effect on the landscape.

• The level of public controversy:
If you have more than a 30% suspicion t.�at if you try to go the EA route someone is going to stop you or threaten to sue you, you’re better to … put your Notice of Intent out, circulate a draft EI5.

How many times have we heard “the FS should have done an EIS for this project.” Most recently, Jon said this about the Crystal project on the Mt. Hood.

“Under NEPA, evidence of scientific controversy requires an EIS to fully explore how the use of that science may be important to determining environmental impacts.” As I said in comments on that thread, if that’s the criterion “scientific controversy” then every controversial project will need an EIS.

What do you think of the ideas in this paper?

 

Fleischman et al NEPA Paper: Discussion

by

This paper was published in the Journal of Forestry, and I received an e-reprint from the first author, Forrest Fleischman. What is very (very!) cool is that the raw data is also available to the public in the University of Minnesota repository here.

The authors downloaded the entire Multi-year Trend Report, as they had access. Which is somewhat frustrating for me, as I was told I couldn’t access the database when I wanted to look at CEs, as I wasn’t an internal person. I could have FOIA’d it like Wild Earth Guardians, but really? So let’s talk about PALS for a minute. When E-Gov came around, the NEPA shop in DC (of which I was the lead at the time, but the immensely wonderful and capable Reta Laford did most of the work) was challenged to make NEPA more efficient, and getting a database to be able to ask questions like “how long does it take?” seemed like low-hanging fruit. Our intention at the time was to get it up and running, and then open it to the public. This seems to be one of those things that is good for the public, but never attracts the attention of any kind of Administration, so it never happens. We can put it on the The Smokey Wire Transition Team list of Things That People Who Otherwise Disagree, Agree Should Be Implemented.

Anyway, I have prowled around looking for objection letters, and I’m not sure that everyone is entering everything. So I’d greatly appreciate some feedback from current employees on how accurate they think the data are for NEPA, objections, and litigation. Here’s what Fleischman said about the data issue:”We found a lot of missing data, but think we have a pretty good sense of what it is from cross checking with other sources (e.g. individual national forest websites, library archives, etc.).” IMHO, shouldn’t have to do that.

And here is a link to their award from the National Science Foundation.

Here’s the abstract:

Abstract
This paper draws on systematic data from the US Forest Service’s (USFS) Planning, Appeals and Litigation System to analyze how the agency conducts environmental impact assessments under
the National Environmental Policy Act (NEPA). We find that only 1.9 percent of the 33,976 USFS decisions between 2005 and 2018 were processed as Environmental Impact Statements, the most
rigorous and time-consuming level of analysis, whereas 82.3 percent of projects fit categorical exclusions. The median time to complete a NEPA analysis was 131 days. The number of new projects
has declined dramatically in this period, with the USFS now initiating less than half as many projects per year as it did prior to 2010. We find substantial variation between USFS units in the number of projects completed and time to completion, with some units completing projects in half the time of others. These findings point toward avenues for improving the agency’s NEPA processes.

For me, most of it, given all the previous “NEPA for the 21st Century” research, not too much was surprising, except this observation the decline in projects over time:

Several potential causes of the declines in Figure 7 can be easily eliminated. The trends are fairly consistent over the last 14 years, suggesting that no one
administration or Congress is responsible for lower levels of activity, although the sharp drop in CEs from 2007 to 2008 may be due to court cases lost by the Bush Administration that year that invalidated some CEs. (Sharon: were those the HFI CE’s?) Similarly, the decline appears similar across regions and activities. There are no major changes in NEPA regulations during this time that can account for this large shift in the number of projects. Yet whereas the number of projects signed by district rangers has declined by approximately 40 percent since the early years of our study, the decline in projects signed by higher level officials (e.g., forest supervisors, regional foresters) is only about 15 percent. This could indicate that the decline in number of projects is partly a result of consolidation of NEPA analyses into a smaller number of larger, landscape-scale programmatic EISs (Council on Environmental Quality 2014), although if this were the case, we would also expect an increase in the number of EAs and CEs that implement the programmatic EIS, but instead we observe a decrease. (Sharon: but maybe they are not programmatic but just larger landscapes for analysis)

On the other hand, it could also indicate that higher-level officials have more access to resources and/or pursue projects that are less likely to be cancelled in times of fiscal stress.

Perhaps people currently working could comment on their observations on their own districts/forests as to reduction in NEPA docs? Is it perhaps associated with lower budgets and/or fewer people?

Let the discussion (and different ways of analyzing the data) begin! If you want to ask a question of the data, and don’t have the skills, maybe we can help each other figure it out.

Forest planning for mechanized use in recommended wilderness

by

We’ve talked about whether mountain bikes should be allowed in areas recommended for wilderness designation by the Forest Service in a forest plan, for example, here.  Most of the angst has been related to a policy adopted by Region 1 that many interpret as excluding this use because allowing it would reduce the likelihood that an area would actually be designated.  Here’s an example from another region of how a forest plan would address this question.  This language is from the draft EIS for the Nantahala-Pisgah National Forest revised plan (North Carolina). While this is written about the effects of wilderness designation, the DEIS also makes it clear what activities the Forest thinks would create a risk to future wilderness designation options.

Wilderness recommendation and designation would remove the potential to generate revenue from timber production, forest product sales, and other land uses which support surrounding development such as utility or transportation corridors. No new mineral claims would be filed, but valid existing claims would be allowed to operate.

Existing roads within recommended areas would either continue to be maintained as linear wildlife fields or decommissioned and allowed to return to a natural state. No new wildlife fields would be created nor any timber harvest activities allowed. Restoration activities where the outcomes protect wilderness characteristics would be allowed to continue, including monitoring, relocation of animals, habitat improvements such as removal of nonnative fish species and nonnative invasive plant species, stream improvements, and rehabilitation of recreation impacts.

Existing trails would continue to be maintained to allow for hiking and equestrian use per current trail-use designations, but mechanized transport such as bicycles or carts would be prohibited in all recommended areas (with exception of approved mobility devices for the impaired). Commercial collection of non-timber forest products such as galax or ginseng, would not be permitted; however, collection for non-commercial or tribal purposes would be allowed. Other commercial activities such as recreation special-use events would also be prohibited in areas recommended for wilderness designation.

The mountain bike decision by the Forest was the followed discussions with a public working group, which also included consideration of whether future wilderness recommendations could be conditioned on providing adequate mountain bike trails.  The location of the trails was potentially less important than the amount, but it is unknown at this time where additional trails might be and how that might affect wilderness boundaries.  Consequently, trails in a potential wilderness area could be managed to phase out the existing but unauthorized mechanized use gradually after providing other comparable opportunities, and when certain conditions were met, appropriate areas would be formally recommended, with the full support of both mountain bike and wilderness groups.  But the Forest ended up recommending the area for wilderness, which would exclude the use.
In effect, the Forest appears to have considered an alternative that would have not recommended an area, but committed to a process that would recommend some or all of it as wilderness in the future (presumably with a plan amendment) when certain objectives are achieved.  You don’t find this alternative mentioned in the DEIS, though, as one considered but eliminated from detailed study.
Back in R1, the Nez Perce-Clearwater draft revised plan includes a suitability designation regarding mechanized use in all areas recommended for wilderness designation in a particular alternative.  Of the four action alternatives, one has no recommended wilderness and one would allow mechanized use in the areas recommended.  (The DEIS does not say what the current direction for recommended wilderness is.)  There is no preferred alternative.

 

Let’s Talk About Specific CE’s in the Rissien Report: III. Pine Valley Wildlife Habitat Improvement Project

by
Front page of CE documentation.

This CE is particularly interesting because the scientific basis for treatment is right upfront.

The TNC analysis used a reference baseline concept referred to as Natural Range of Variability (NRV) to look at ecological departure for each ecological system on the district. The current condition of ecological systems was derived using the metric known as Unified Ecological Departure. This is a single measure that integrates concepts of: (1) ecological departure in the traditional sense, (2) high risk vegetation classes, and (3) acceptable amounts of certain unharmful or benign uncharacteristic vegetation classes. Twelve ecological systems on the
district were selected for simulations of likely future conditions under various regimes of active management.
Nine of these systems are brought forward in this analysis (Table 1 and Figure 1). A full breakdown of ecological departure by structural stage for each of the nine systems is available in Appendix 2.

How Many Acres?

320,000 acres are under review for treatments including the 250,000 acres in IRA outside of wilderness areas. Treatments would not occur in areas where vegetation is within a desired NRV or in areas where it is determined that restoration would not be successful.

Note: The TNC analysis maps show where treatments are outside NRV.

Purpose and Need

The purpose and need for the proposed project include:
 Improve and/or maintain wildlife habitat across the Pine Valley Ranger District including habitat for Threatened and Endangered species, Forest sensitive species and Forest focal species and species of concern (California condor, peregrine falcon, northern goshawk, Townsend big-eared bat, spotted bat, elk, mule deer, wild turkey, flicker, grey vireo, broad-tailed humming bird, Virginia’s warbler and brewer’s sparrow).
 Improve and/or maintain stand conditions in mature and old growth pinyon-juniper stands.
 Restore ecosystem composition and/or structure, to reduce the risks of uncharacteristic wildfire effects, and to conditions within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period (36 CFR 294.13 (b)(1)).

Note: the last bullet is language directly from the 2001 Roadless Rule.

Proposed Action

Based on findings from the Landscape Conservation Forecasting and project design features (Table 2) the Dixie NF proposes the following actions to improve wildlife habitat and select vegetation community conditions on the Pine Valley Ranger District:
1. Trend vegetation communities towards the Natural Range of Variability (NRV) as identified in the TNC Landscape Forecasting report (2014) using the most appropriate tool or suite of tools such as: mastication, harrow, seeding (rangeland drill and/or aerial), chipping, lop and scatter, cut/pile, and prescribed burning.

2. Modify existing conditions to improve wildlife habitat and reduce the threat of uncharacteristic wildfire across the landscape by manipulating vegetation age class and species diversity distribution across the project area.

There are 32 pages of detailed documentation, including design criteria. I didn’t see anything about later site-specific analysis on this one. Page numbers would have been helpful.

Again, here is the plain English of this category: 36 CFR 220.6(e)(6) “Timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction”. This one seems to fit wildlife habitat improvement. Would you agree with the use of the category if they did the same activities in the same places, but had documentation and scoping separate for each site? Would you agree if they took some activities (say PB) and used a different category for PB? Based on this reading I don’t see any timber harvest (not pinyon or juniper).

Let’s go back to the way the news story was written: “Under this administration, there’s really only one goal and that’s measured in board-feet,” Rissien said. Uh..I wouldn’t go looking for board feet in PJ in Region 4, myself.

Here’s another quote: “Rissien and others question how the Forest Service can know that such large projects won’t have detrimental environmental effects. By using a CE, the Forest Service doesn’t have to conduct an environmental study, so the public has no information to know if the forest or wildlife is affected.” I’m just pointing out that the condensed info in these CE’s, that is the three we’ve looked at so far, is equivalent to that required in an EA. From CEQ’s guidance here:

While the regulations do not contain page limits for EA’s, the Council has generally advised agencies to keep the length of EAs to not more than approximately 10-15 pages. Some agencies expressly provide page guidelines (e.g., 10-15 pages in the case of the Army Corps). To avoid undue length, the EA may incorporate by reference background data to support its concise
discussion of the proposal and relevant issues.

Let’s Talk About Specific CE’s in the Rissien Report: II. White River Forest Health and Fuels Management Project

by
A high-density stand of young lodgepole pine (Pinus contorta) that regenerated following a 2003 wildfire in Montana’s Bob Marshall Wilderness, pictured here in 2015. CREDIT: ANDREW LARSON
(couldn’t find a photo of dense LPP regen on the White River).

What’s interesting about this project on the list is that it appears to involve neither what we would call “logging” nor “burning”. I haven’t contacted the Forest yet to find out the current status. There are ten pages in this proposed action that, again, go into a great amount of detail about what is proposed. Here’s the link.

The purpose and need is:

The purpose of the proposed action is to:
Improve forest health:
o Improve individual tree growth, vigor and resiliency through reducing densities in young stands of lodgepole pine.
o Improve or maintain forest health by reducing the extent of insects or diseases present in regenerating lodgepole pine stands.
Maintain past management objectives:
o Maintain existing fuel breaks with the Wildland Urban Interface (WUI) through managing live and down fuels.
o Continue to enhance diversity through maintaining and protecting young Engelmann spruce trees planted in areas affected by past spruce beetle outbreak.

Actions:
Hand Treatments – Lop and Scatter
Thinning treatments would be conducted by hand crews utilizing chainsaws or similar hand operated equipment. Activity slash would be bucked into lengths less than 6 feet and scattered to a depth less than 18 inches.
Hand Treatments – Pile and Burn
Thinning treatments would be conducted by hand crews utilizing chainsaws or similar hand operated equipment. Activity slash piles would be created by hand and burned by the Forest Service.
Mechanical Treatment – Mastication or Chipping
Thinning treatments would be conducted using ground based mechanical equipment that may be wheeled or tracked. Activity slash would be chipped, mowed or masticated and left on site. Desired fuel depth would be less than 3 inches.
Mechanical Treatment – Removal
Thinning treatments would be conducted using ground based mechanical equipment that may be wheeled or tracked. Activity slash would be removed.

I suppose that you could read into this that some material might be commercial. Based on the descriptions it seems unlikely (they have specific prescriptions and examples in the text). They do have an acreage limit (1000 acres per year).

They also have an implementation plan that tells about how they are going to handle each site:

Implementation Process
The Proposed Action does not identify specific treatments areas, is based on the condition of the forest stand and not on specific identified treatment areas, and a well-defined process for
implementation is needed. The following steps have been identified for implementation:

Prior to implementation the forester or silviculturist will identify areas for treatment and prepare draft silvicultural prescriptions that document the chosen prescription, the
desired residual stocking levels, and the preferred implementation method.
Treatment areas and silvicultural prescriptions are presented to an interdisciplinary team (IDT) of resource specialists for completion of any necessary field surveys, such as cultural resource inventories or wildlife habitat surveys.
The IDT will meet to discuss field survey findings and resource specialist recommendations. A pre-implementation checklist will be completed, documenting the resource review and compliance with design features. Silvicultural prescriptions are finalized.

A news release will be prepared to inform the public about upcoming treatments.
Feedback from the public concerning the specific treatment areas, or input concerning future treatment areas would be welcome.
Projects will be implemented through appropriate mechanisms which may include service contracts, Forest Service employees or stewardship contracts. Whichever mechanism is chosen to implement the silvicultural prescription, an employee would oversee implementation to ensure compliance with design features and contract provisions.

Post treatment surveys that monitor compliance with the silvicultural prescription will be conducted. Findings may be used to inform future treatments approved by the Decision. Annual monitoring results would be published on the forest’s project webpage.

To me this addresses the question of site-specificity pretty thoroughly. What do you think of this approach?
I don’t think this is “using CE’s to avoid the public process normally required by law.” I think there are two key ideas 1) rounding up some activities that people (especially people who litigate) generally have no problem with, and 2) giving people a chance to comment on each site, that I think makes sense. It gives the forest the flexibility to talk to the public about an annual workplan without having an individual CE for each project, which makes sense to me, unless there is a trust issue. If there is a trust issue, I think more sideboards and open discussion of the issue makes more sense than making folks do individual CEs for each project.

I suppose they might have been more specific about not selling trees, but otherwise I don’t see any “logging” or PB here.

Mt. Hood (lack of) science loses in 9th Circuit

by

The way courts approach scientific controversy is a common thread on this blog.  We happen to have a perfect example from the Ninth Circuit Court of Appeals (link to the opinion included) last week.  And it happens to involve the science of “variable density thinning” to reduce wildfire threats, another popular topic here.

The Project is the Crystal Clear Restoration Project on the Mt.  Hood National Forest.  The stated primary purpose of the Project is to reduce the risk of wildfires and promote safe fire-suppression activities.  It would use “variable density thinning” to address wildfire concerns, where selected trees of all sizes would be removed.  According to the plaintiffs, it  would encompass nearly 12,000 acres and include almost 3000 acres of logging of mature and old-growth forests along with plans to build or re-open 36 miles of roads.  The court held that an EIS was required because of scientific controversy about the effects of variable density thinning on what plaintiffs characterized as “mature, moist forest.”  The court also found that the Forest failed to show that cumulative effects would not be significant.

In both cases, the court found that the Forest “did not engage” with the information provided by the plaintiffs after, “The plaintiffs, especially Bark, got people out into the landscape and spent thousands of hours collecting information about what was going on in the land and gave that information to the Forest Service,” said attorney Brenna Bell, who spent four years on the case.  Failing to engage is a common reason for the Forest Service failing to win in court, especially when under pressure to meet “timber volume targets imposed by President Donald Trump’s administration.”

The EA stated that the Project would assertedly make the treated areas “more resilient to perturbations such as . . . largescale high-intensity fire occurrence because of the reductions in total stand density.”  Plaintiffs had provided “substantial expert opinion” that disputed that outcome.  As plaintiffs point out in their victory notice, here is how the court viewed it:

“Oregon Wild pointed out in its EA comments that “[f]uel treatments have a modest effect on fire behavior, and could even make fire worse instead of better.” It averred that removing mature trees is especially likely to have a net negative effect on fire suppression. Importantly, the organization pointed to expert studies and research reviews that support this assertion

Oregon Wild also pointed out in its EA comments that fuel reduction does not necessarily suppress fire. Indeed, it asserted that “[s]ome fuel can actually help reduce fire, such as deciduous hardwoods that act as heat sinks (under some conditions), and dense canopy fuels that keep the forest cool and moist and help suppress the growth of surface and ladder fuels . . . .” Oregon Wild cited more than ten expert sources supporting this view.”

Even the fuels report by the Forest Service acknowledged the possibility of increased fire severity. The court held (emphasis added):

“In its responses to these comments and in its finding of no significant impact, the USFS reiterated its conclusions about vegetation management but did not engage with the substantial body of research cited by Appellants. Failing to meaningfully consider contrary sources in the EA weighs against a finding that the agency met NEPA’s “hard look” requirement as to the decision not to prepare an EIS. This dispute is of substantial consequence because variable density thinning is planned in the entire Project area, and fire management is a crucial issue that has wide-ranging ecological impacts and affects human life.”

The opinion is short and worth reading as a good example of how not to approach NEPA effects analysis (i.e. “let’s make this fit into an EA instead of an EIS”).  The court cited 9th Circuit precedent for this requirement: “To demonstrate a substantial dispute, appellants must show that “evidence from numerous experts” undermines the agency’s conclusions.” The court is not choosing the science; only faulting the Forest Service for ignoring conflicting views that it found rose to a level of scientific controversy.  Under NEPA, evidence of scientific controversy requires an EIS to fully explore how the use of that science may be important to determining environmental impacts.

Let’s Talk About Specific CE’s in the Rissien Report: I. Ecotonal Habitat Restoration Project

by

It seems to me that the Forest Service does projects in a variety of ways, and they are criticized for the way they do them. This is particularly interesting with CE’s, because you can criticize 1) their use in a given situation, 2) the amount of public involvement and/or 3) the level of analysis 4) probably other things. But I think it would be more useful, perhaps, to look at the use of specific CE’s in specific places and ask the question “what would you have done instead?”. We have all kinds of people, from all kinds of backgrounds, on The Smokey Wire and so I think it will be interesting to see how much we agree, or not. I wrote to Adam Rissien, the author of the report, and he gave me information on five projects he highlighted (he will send us the report when it’s available). One more point that I think is important. The Missoulian story as posted by Jon here, said:

Rissien used Forest Service postings to tally all the logging and/or burning projects proposed for the past quarter – January through March – where forest managers had applied a “categorical exclusion” to avoid the public process normally required by law.

It seems to me that logging probably needs a definition (usually commercial, so selling of trees), but I don’t know that many people who are against prescribed burning. I’m sure folks want to be involved in reviewing PB projects, sure, but I wonder how many PB projects without mechanical treatment have actually been litigated? So that’s probably worth looking at also- what activities are actually included in the project. Since Rissien had added up acres, and some projects did not mention acres, this was a problem for him.

So let’s start with the Ecotonal Habitat Restoration Project on the Custer Gallatin National Forest in Region 1. Here’s a link to the scoping notice, it’s seven pages and has a great deal of concise information in tables. They took public comment via the scoping notice, and expect a decision in May or June. Many folks who use CE’s write a short response to comments, but we don’t have that nor the analysis documentation yet.

Purpose: Bringing ecotonal communities toward NRV

What activities?

Management options (Figure 2) that would be available to maintain or restore ecotonal ommunities across the CGNF could include but are not limited to:
* Removal and/or piling and burning of small conifers with hand crews
* Using mechanical equipment to cut and pile conifers: followed by pile burning. Alternately, mechanical equipment could be utilized to masticate(chip) conifers
*Girdling (killing the tree but leaving it standing) larger conifers –
*Prescribed fire (preceded by cutting down conifers where allowed but leaving them
laying within the stand for fuel to carry a fire)
* Patch cutting or thinning; this could include piling and burning or removal of commercially sized conifers using a service or timber sale contract
* Cutting hardwoods to stimulate suckering, daylight, and/or provide physical barriers protecting hardwoods from browsing where needed
* Root separation (break up lateral roots at some distance from the parent aspen trees using mechanical equipment and a single shank ripping attachment run along the contour on
suitable sites)
* Protection from browsing (including, but not limited to fencing or directional felling) –
* Re—activating floodplains and elevating water tables in waterways using natural materials and accepted methods to restore or enhance riparian vegetation, floodplain function, and
stream bank stability (6.g. simulated beaver dams (beaver dam analogs), large woody debris introduction, and bioengineering techniques).

Project implementation would be ongoing and could span 10to 15 plus years. We expect this management decision will result in 6-10 specific projects implemented annually across the
forest. Projects would typically range in size from several acres to a few hundred acres. It is anticipated some projects could cumulatively exceed a thousand or more acres for the following
reason(s):
* Lower intensity habitat management activities could be pursued over a larger area versus higher intensity treatments within smaller areas.
* Topography, aspect,or the existence of natural barriers enables prescribed fire to accomplish multiple treatments/objectives over a larger area.
* Funding opportunities make it possible to pursue larger restoration efforts.

In the scoping notice, they quoted the CE category:

36 CFR220.6(e)(6)
“Timber stand and/0r wildlife improvement activities which do not include the use of
herbicides or do not require more than one mile of low standard road construction”.
Examples include but are not limited to:
a. Girdling trees to create snags.
Thinning or brush control to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand
c. Prescribed burning to control understory hardwoods in stands of southern pine.
d. Prescribed burning to reduce natural fuel build—up and improve vigor.

And mentioned extraordinary circumstances:

If it is determined that the degree of potential effects of approving this programmatic would result in the existence of extraordinary circumstances, further environmental analysis and documentation may be warranted.

What would you do differently? Are your concerns about the acreage (seems to be open for prescribed burning opportunities)? Having PB or commercial timber harvest as a part of this decision? Which activities? Programmatic nature? Amount of public involvement? What do you think is “just right” analysis and public involvement? Do you think it would be OK to use this CE for these projects, but not as programmatic? Do you think the activities should be grouped differently for analysis? Or different activities should be analyzed at different spatial scales? Do you think it would make sense to standardize the way these analyses are done, by district, forest, region, FS and BLM or ??