US Forest Service proposes radical changes to NEPA, reaction from North Carolina and Nevada

by Brian Bahouth

A view of Reno from Tahoe National Forest land on the Hunter Creek trail - image - Brian Bahouth

Reno – On August 15 of 2017 President Trump issued the “Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure.” On January 3 of 2018, the US Forest Service published an Advanced Notice of Proposed Rulemaking in the Federal Register and thereby announced plans to make significant changes to the National Environmental Policy Act (NEPA). Approximately seventeen months later, on June 12 of 2019 the Forest Service published a suite of proposed rule changes to the way the agency administers NEPA when approving projects on federal land. The far-reaching proposal has raised the alarm among environmental watchdogs in Nevada and across the nation. Many contend that the proposed rule changes will allow potentially harmful projects on federal land to be rubber stamped without adequate environmental or public oversight.

What is NEPA?

The environmental ethic brewing throughout the 1960s in the United States resulted in the National Environmental Policy Act of 1969 (NEPA). Several highly visible ecological disasters corralled national opinion and spurred President Richard Nixon to sign the legislation into law on January 1, 1970. Since then the most comprehensive environmental protection law in US history required an Environmental Impact Statement for major projects on federal land. The fruits of analysis done for impact statements has been the basis for many successful challenges to projects deemed harmful to public lands and the environment. Depending on the project, the NEPA process can take several years to complete, and since its signing the law has been the source of controversy.

Why the proposed rule change?

According to the Trump executive order and the Forest Service, on average, the Forest Service receives 3,000 applications for new special use permits every year. There are more than 5,000 applications for new special use permits and renewals of existing permits awaiting environmental analysis and decision. According to the Forest Service, the backlog is said to affect some 120,000 jobs.

The Trump Executive Order reads, “Inefficiencies in current infrastructure project decisions, including management of environmental reviews and permit decisions or authorizations, have delayed infrastructure investments, increased project costs, and blocked the American people from enjoying improved infrastructure that would benefit our economy, society, and environment. More efficient and effective Federal infrastructure decisions can transform our economy, so the Federal Government, as a whole, must change the way it processes environmental reviews and authorization decisions.”

In the proposed rule change, the Forest Service under the Trump Administration and Secretary of Agriculture Sonny Perdue seem cowed and contrite and patently write in the proposed rule change that the agency is not meeting expectations. “The Forest Service is not fully meeting agency expectations, nor the expectations of the public, partners, and stakeholders to improve the health and resilience of forests and grasslands, create jobs, and provide economic and recreational benefits.”

The agency writes in the proposed rule change that it spends considerable human resources on the management of NEPA and combating wildfires. The agency says that the rapidly increasing demands of fighting, preventing and recovering from wildfires has eroded the agency’s ability to administer the NEPA process.

The Consolidated Appropriations Act of 2018 allocated $20 billion dollars to fighting wildfires this season. The Forest Service acknowledges that the funding will help relieve their personnel shortage but that the agency still needs to make, “the most efficient use of available funding and resources to fulfill its environmental analysis and decision making responsibilities.”

According to Forest Service data, in 1995, fire management funding made up 16 percent of the Forest Service’s annual spending, compared to 57 percent in 2018. Along with a shift in funding, there has also been a corresponding shift in staff from non-fire to fire programs, with a 39 percent reduction in all non-fire personnel since 1995.

For Sam Evans, national forest and parks program leader for the Southern Environmental Law Center, the Trump Administration is scapegoating the Forest Service NEPA process when the real problem is adequate financial support and personnel.

“What I’ve learned is that the main impediments to getting work done are its budgets and its lack of good training mechanisms for getting its staff up to speed on how to work with the public. But instead, we’re seeing a rulemaking that scapegoats the environmental review process that really has very little to do with the delays that the Forest Service often experiences when it’s trying to get a decision done.”

The Forest Service press liaison in Nevada promptly returned our call but was not authorized to comment on the proposed rule changes. After speaking with 2 public information officers for the Forest Service national press desk, they referred Nevada Capital News to their website for answers. A press officer suggested a knowledgeable source may be available next week.

John Hadder is the director of Great Basin Resource Watch based in Reno, Nevada. Hadder agrees with Evans’ assessment and adds that the solution to speeding up thorough and much-needed environmental assessments is to hire more people.

“They talk about the justification and the need for what they call a more efficient process around NEPA and they pin it to increasing resources that are needed to fight wildfires, a lot of emphasis on the need to deal with wildfires and how much greater percentage of their staff has gone to wildfire abatement and wildfire fighting. My response to that at first is, well, hire more people to deal with NEPA instead of just trimming it back. Protection of our environment in the communities that depend on it is critical, and I would argue that probably some of the very projects that might slip through could actually affect fire issues. It’s mismanagement of our land in part, and that has resulted in increasing wildfires. If we’re going to spend more money on things then we certainly should spend a little more money on processing projects on public land,” Hadder said.

Categorical Exemptions

Minor projects on Forest Service land that ostensibly pose little environmental threat are granted what are known as categorical exemptions (CEs). Such exemptions enable the Forest Service to conduct routine maintenance like paving parking lots or road maintenance without having to develop an environmental impact statement or environmental assessment.

In the proposed changes, the Forest Service has added several new CEs and made revisions to a few existing CEs.

When processing a CE, a public hearing is not mandated and is held at the discretion of the Forest Service.

The Forest Service offers examples of how CEs are typically used. They show people riding horses on trails that are apparently maintained or created without an EA or EIS. The agency refers to small maintenance and restoration jobs in their description of categorical exemptions, but in the proposed rule changes, Forest Service officials could allow decisions to permit the removal of trees on up to 4,200 acres at a time with a CE. For environmental advocates like Sam Evans, the proposed rule changes would create loopholes for big projects that should require greater scrutiny. Evans is based in North Carolina and said if the proposed suite of new rules becomes law as written, any form of public oversight of logging activities in his state would be over.

“Just to give you a sense of the scale of the logging projects that we’re talking about in the southeast where I live and work, the projects on our local national forest range from about 300 acres on the small to medium side to about six to 700 acres on the big side. There are some outliers on either end, but that’s sort of the size that we’re talking about for a normal project. The new categorical exclusion, the new loophole would allow the Forest Service to do 4,200 acres at a time. That would entirely devour the timber sale program in the southeast, which means that in the future, the public wouldn’t be involved in any of the decisions to cut trees on the national forests.”

In western states, while logging allotments are generally larger than in the east where forests are mostly privately held, a large portion of Forest Service logging allotments would still fall under the 4,200 acre threshold.

In Nevada, mining activity is largely conducted on Bureau of Land Management land, but when licensing mines, the proposed rule change would allow the Forest Service to use a categorical exemption to authorize mining activity of up to 640 acres of surface disturbance. A football field is 1.32 acres in size.

“Six hundred and forty acres is not a large area, but the concern is, once a mining project gets started, it often goes through a number of expansions, so this is a way of kind of leapfrogging in,” said John Hadder of Great Basin Resource Watch. “Starting out with a small operation, no environmental analysis, and then they begin to expand. And even though the expansion process may require an EIS (Environmental Impact Statement) they’ve already got the mine there. Putting controls on what happened at that point is a lot more limited once the mine is in place already, especially if you want to try to oppose it in any kind of a high level.

“The mining companies will argue that we’d have to lay off people to stop the mine that is already existing. So that is a problem in itself already,” Hadder said.

Another large red flag for Hadder is that the proposed rule change as written could authorize a massive underground mine with a categorical exemption because it disturbs less than 640 acres on the surface. Underground mines often require deep groundwater pumping operations, so miners can access ore deposits, but according to John Hadder, these types of mines have the potential to significantly affect ground and surface water with no public oversight if approved with a CE.

“There are mines that tend to go underground that often have a lot less surface disturbance,” Hadder said when asked how the proposed rule changes could affect the licensing of mines in the state. “The example that I was looking at is the Hollister underground mine project, which in the draft EIS would only disturb 220 acres (on the surface). So that one would be excluded from an EIS in the future, however, an underground mine has significant impacts on the groundwater that we noted in our comments.”

Even though the Hollister mine, located just outside Winnemucca, Nevada recently closed for lack of profitability, Hadder said small mines can have significant environmental and cultural impacts.

“The Hollister mine actually infringes upon Western Shoshone cultural areas, the Tosawihi quarry, and so in an EIS process you look at how the mine affects the whole region, so even though the mine footprint itself may be fairly small, you have to look at cumulative impact. And so this is where this 640 (acres) is really a too narrow a scope. Even a small mine could have significant regional impact depending upon where it’s located. So that’s the clause we definitely want to see removed,” Hadder said.

Five Tahoe National Forest employees constructed the stairs and platforms that enable easy access to the fire tower lookout high atop the Sierra Buttes not too far from Sierraville, California. Howard Welch, Elmer (Don) Hoskin, Waletr Huson, Norman Ellis, and Edward Forsthoff constructed the stairway in 1964 – image – Brian Bahouth

Roads

The proposed rule change would allow under varying circumstances the construction of up to 5 miles of new road and the reconstruction  up to 10 miles of existing road on Forest Service land as a categorical exemption. Sam Evans argues that the Forest Service cannot maintain the roads it has now.

“I’m sitting here next to the Cisco National Forest, which has only about 12 percent of the budget that it needs to maintain the existing roads that it has. But in this rule making the Forest Service is proposing that it can construct 5 new miles of roads or reconstruct 10 miles of existing roads at a time without any review, without considering how that’s going to affect its ability to keep roads maintained, to protect water quality, and to keep roads open for the public to use.”

John Hadder said Great Basin Resource Watch pays careful attention to new roads.

“One of the first things that happens in public lands, certainly with the work that we do in terms of mineral exploration, is the creation of roads to get to do the exploration,” Hadder explained. “Any kind of exploration process, you have to analyze what are the effects of those roads, so 5 miles, 10 miles, bit by bit this really could eat away at areas which are roadless areas, and there’s essentially no public notification that they’re going to put in these roads, that they’re going to do this reconstruction.

“Once you put a road in for mineral exploration, and even if they reclaim it, you create a path in the woods so to speak, and people will use it. This is a big problem,” Hadder said.

Condition-based management

The proposed changes to the NEPA process would codify and encourage the use of what is known as condition-based management. The Forest Service defines it as “a system of management practices based on implementation of specific design elements from a broader proposed action, where the design elements vary according to a range of on-the-ground conditions in order to meet intended outcomes.”

For environmentalists, condition-based management is a loophole for oversight and scientific rigor.  Because a “broader proposed action” guides the project under the condition-based management scheme, the Forest Service is then able to conduct land management actions, typically timber harvests with no deference to specific conditions on the ground like insect outbreaks or high fuel loads, for instance.  Site-specific analysis would not be required under condition-based analysis. Since its inception in 1970, the environmental analysis process as laid out in NEPA has been centered on the development of more environmentally friendly alternatives to proposed projects, but for Sam Evans, the shift toward conditions-based management undermines the heart of NEPA compromise.

“So the way this rulemaking looks at the National Forest is it says that one acre is no different than another acre and one logging project over here is no different than another logging project over there. But we know the different areas on the National Forest are really special for different reasons and special to different people, so the process that we’ve always used to figure out where are good places to go and do logging projects and where not, that’s the process that’s being proposed to eliminate.”

Public comment

The public comment period for the Advanced Notice of Proposed Rulemaking (ANPR) occurred from January 3 to February 2, 2018. During this time, the Forest Service received 34,667 responses (excluding duplicate submittals) and 1,229 unique responses.

A 60-day comment period began on June 13, 2019 when the proposed rule was published in the Federal Register. There is also a minimum 120-day tribal consultation period.

How to comment:

1. Public participation portal (preferred): https://www.regulations.gov/
2. Mail: NEPA Services Group, c/o Amy Barker; USDA Forest Service, 125 South State
Street, Suite 1705, Salt Lake City, UT 84138.
3. Email: nepa-procedures-revision@fs.fed.us.

The National Environmental Policy Act (NEPA) Services Group is a specialized Forest Service unit that analyzes public comment on federal land and resource management agency assessments and proposals. According to the Forest Service website, this systematic process is “designed to provide specific demographic information, establish a mailing list of respondents, identify individual comments by topic in each response, evaluate similar comments from different responses, and summarize like comments as specific concern statements. The process also provides a relational database capable of reporting various types of information while linking comments to original letters.”

The agency writes that the goals of comment analysis are to ensure that every comment is considered, to identify the concerns raised by all respondents, to represent the breadth and depth of the public’s viewpoints and concerns as fairly as possible, and to present public concerns in such a way as to facilitate the Forest Service’s consideration of comments.

The agency is explicit in saying that public comment is not a vote. “Because respondents are self-selected, their comments may not necessarily represent the sentiments of the public as a whole. This analysis attempts to provide a fair representation of the wide range of views submitted, but it does not attempt to treat input as if it was a vote or a statistical sample. In addition, many of the respondents’ reasons for voicing these viewpoints are varied, subtle, or detailed. In an effort to provide a succinct summary of all of the concerns raised, many subtleties are not conveyed in this summary.”

There were three form letter campaigns in response to the Advanced Notice of Proposed Rulemaking. Approximately 33,000 form letter comments came from two form letter campaigns, which urged the Forest Service to reject any proposal to weaken the agency’s NEPA process. The Forest Service received about 600 comments from a third form letter campaign in favor of the Agency’s efficiency goals as stated in the ANPR.

The Forest Service expects to publish the rule revising the NEPA regulations in summer 2020. For Sam Evans, a lot hangs in the balance between now and the time the Forest Service makes a final decision.

“This rule just opens the door for them (the Forest Service) to do anything at all that they might want to do, and the sad truth is that the Forest Service often proposes bad work,”Evans said. “Logging projects in my region are often targeting things like rare old growth forests or rare habitats for endangered species. That’s the kind of thing that we’re often able to talk them out of when the public is at the table, but without public involvement, those things will be lost, and we won’t ever know exactly how much has been lost.”