Forest Service proposed rules on NEPA procedures and NFMA Planning

September 6, 2007

From:   Mike Anderson, The Wilderness Society

Following is a preliminary summary and analysis of two proposed rules that the Forest Service released for public comment in August.  The two proposals involve Forest Service procedures implementing the National Environmental Policy Act (NEPA) and the planning process required by the National Forest Management Act (NFMA).  Both proposals have 60-day public comment periods - ending on October 15 for the NEPA rule and October 22 for the NFMA rule.    

NEPA Rule

The first proposal, published in the Federal Register on August 16 (72 Fed. Reg. 45998), would move the agency's NEPA implementing procedures from the Forest Service Handbook (FSH) to the Code of Federal Regulations (CFR) and make several changes in the procedures.  A new section of the CFR -- 36 CFR 220 -- would be created.  The full text of the proposed rule is available on the Forest Service website at

http://www.fs.fed.us/emc/nepa/nepa_procedures/.

Comments can be emailed by October 15 to:  fsnepa@contentanalysisgroup.com

Moving the NEPA procedures from the FSH to the CFR would be a positive action, from the standpoint of public access and legal enforceability.  The FSH, along with the Forest Service Manual, is part of the Forest Service's labyrinthine internal directives system.  Prior to the internet, the FSH was housed exclusively in massive binders located in Forest Service offices and was practically inaccessible to the general public.  On the other hand, the CFR is the federal government's official collection of agency regulations, similar to the organization of Congressional statutes in the United States Code.  

Equally important, moving the NEPA procedures to the CFR will ensure that they are legally enforceable.  Federal courts have often dismissed claims that the Forest Service violated its own NEPA procedures in the FSH.  For example, in Southwest Center for Biological Diversity v. Forest Service , 100 F.3d 1443 (9th Cir. 1996), the Ninth Circuit rejected an effort to enforce the Forest Service NEPA procedures, stating, "Southwest Center cannot rely on the Forest Service Manual and Handbook, as this court has determined that it does not have the independent force and effect of law. Western Radio, 79 F.3d at 900-01 (denying claim that the Forest Service acted arbitrarily and capriciously by following a procedure that did not comply with the guidelines in its Manual and Handbook)."  In contrast, courts routinely view agency regulations in the CFR as legally binding, tantamount in legal effect to Congressional statutes.    

However, besides simply moving its NEPA procedures from FSH to the CFR, the Forest Service also proposes several significant changes in the procedures that could weaken the NEPA process.  Notable changes include the following:

  • The regulations would allow the Forest Service to use "alternative arrangements" for NEPA compliance in response to "emergencies" that do not threaten life, property, or important resources (Sec. 220.4(b)).  This authority to short-cut NEPA procedures in the event of "emergencies" is especially worrisome since the Forest Service has begun classifying post-fire salvage logging as "economic emergencies" pursuant to its recently amended appeal regulations at 36 CFR 215.    

  • The regulations would limit the extent to which past actions would have to be evaluated by incorporating excerpts from a 2005 Bush Administration guidance memo regarding cumulative effects analysis (Sec. 220.4(f)).  This appears to be a blatant effort to get around recent court rulings on NEPA requirements for evaluating cumulative effects.    

  • The category of actions requiring preparation of an environmental impact statement (EIS) is described as actions that "normally" require an EIS (Sec. 220.5).  This could be viewed as increasing the agency's discretion to avoid preparing EISs for environmentally damaging actions, such as mining in roadless areas.    

  • While the Forest Service claims that it is proposing no changes in current categorical exclusions (CEs) from NEPA, the draft rule includes two previously proposed and very controversial CEs for revising NFMA regulations (Sec. 220.6(d)(2)(vi)) and for revising forest plans (Sec. 220.6(e)(16)).

  • The regulations would eliminate the requirement to consider a "no action" alternative in an Environmental Assessment (EA) if the Forest Service believes there are "no unresolved conflicts" (Sec. 220.7(b)(2)).   

In addition, the proposed regulations modify NEPA procedures to provide greater flexibility "to facilitate collaborative processes" and to incorporate "adaptive management strategies" (Sec. 220.5(e)).  For collaboration, the regulations would allow the agency to make "incremental changes" in a proposed action and to prepare a "preliminary EIS" for discussion before officially issuing a draft EIS (Sec 220.3).  Adaptive management strategies could be included in a proposed action to allow for "adjustment of the action during implementation," provided that the adjustments are "clearly articulated and pre-specified" and "fully analyzed" (Sec. 220.5(e)(3).    

NFMA Rule

    The second proposal is the proposed rule and draft EIS on the agency's regulations to guide the forest planning process under the National Forest Management Act (NFMA)

The proposed rule and DEIS are available on the Forest Service website at:   http://www.fs.fed.us/emc/nfma/2007_planning_rule.html.

Comments on both NFMA documents can be emailed by October 22 to:

planningrule@fscomments.org

As discussed in more detail in my May 23 memo on the status of the NFMA planning regulations, the Forest Service's 2005 planning rule was struck down by a federal court on March 30, 2007 in Citizens for Better Forestry et al. v. USDA (C05-1144 (N.D. Cal.).  The court ruled that the Forest Service had violated NEPA by failing to prepare an EIS and violated the Endangered Species Act by failing to undertake Section 7 consultation.    

The draft NFMA rule, which was published in the Federal Register on August 23 (72 Fed. Reg. 48514), is essentially identical to the 2005 rule.  The only changes are in the effective date and in a previously adopted amendment allowing the Tongass National Forest plan revision to use the 1982 regulations.  For a summary and analysis of the 2005 rule, see http://www.wilderness.org/OurIssues/Forests/nfma.cfm.

The draft EIS on the planning rule is a feeble effort to comply with the court's decision regarding failure to comply with NEPA.  The EIS  considers 5 alternatives: 

A.     the Bush Administration's 2005 rule (the proposed action),

B.     the Clinton Administration's 2000 rule (the no-action alternative),

C.     the Reagan Administration's 1982 rule,

D.    the 2005 rule without the environmental management system (EMS) requirements, and

E.     a modification of the 2005 rule that requires plans to include mandatory standards
        and that adds NFMA requirements regarding timber management.  

Incredibly, the EIS provides essentially no analysis of the environmental effects of the alternatives.  The Chapter 3 description of the affected environmental and environmental consequences is merely 33 pages long - far shorter than the description found in most timber sale EAs.  In fact, the EIS contains no environmental impact analysis at all.    

The Forest Service's excuse for failing to undertake any impact analysis in the EIS is essentially the same as the legal/ideological position that the agency's attorneys have unsuccessfully argued in the court case on the 2005 rule.  In the agency's view, forest plans do not make any decisions that affect the environment:  "Plans developed under the proposed rule and alternatives typically cannot be linked in a cause-effect relationship over time and within a geographic area to effects on the human environment.." (DEIS, p. 40).   The DEIS goes to considerable length in trying to justify this position, arguing that there is no "chain of causation" between the NFMA regulations, forest plans, and management activities:  "These events are not dominoes, certain to fall in line as the one before it topples. These events are separate and independent."  (DEIS, p. 43).    

Conservationists have strongly disagreed with the Forest Service's characterization of the NFMA's forest planning process as a fundamentally meaningless and inconsequential exercise with no real impact on the national forests.  It is absurd and disrespectful to the public for the Forest Service to present an EIS that fails to acknowledge the obvious differences among the alternative approaches to land and resource management planning.    

For example, the alternatives clearly provide widely differing degrees of protection for fish and wildlife.  The 1982 regulations (Alternative C) require that plans ensure viable, well-distributed populations of all vertebrates and desired non-vertebrate species.  The 2000 regulations (Alternative B) require a high likelihood of persistence for all species - including non-vertebrate animals and all plants - with certain exceptions. In contrast, the 2005 regulations (Alternative A) drop the species viability requirement altogether and replace it with vague direction for plans to "establish a framework to provide the characteristics of ecosystem diversity in the plan area" (36 CFR 219.10(b)(1)).    

Yet, the DEIS states at the conclusion of Chapter 3 (p. 72), "When considered in conjunction with applicable laws, regulations, and Forest Service directives, all alternatives would result in similar resource protection."  By failing to acknowledge the significant differences among the regulatory alternatives in protection for wildlife and other resources, the DEIS is fatally flawed and needs to be redone.