New Forest Management Plan Rules

[Jim]

With little fanfare, as usual, the Bushies have instituted a new rule regarding the update of Forest Management Plans. They now consider these updates Categorically Excludedfrom the National Environmental Policy Act (NEPA). Basically this means they do not have to go through a NEPA process when they update their Forest Plans.

 

What does this mean to you as a climber or other National Forest user? It means you now have little voice in how Forest Plans are updated. The U.S. Forest Service will not have to have any public meetings, will not have to make drafts of the Plans available for the public, and does not have to "show their work" on how alternatives were weighed against one another. They can do the work in-house with no public input.

 

This goes for any amendments to the plans. So changes in climbing access, closures for cultural or environmental reasons, or because of policy changes can be completed without any public notice that a changes is being considered. WTF? Public dicourse is not on the menu.

[mattp]

I sure wouldn't put it past Bush and Co. to want to keep the public out of any planning process for "public" lands, but I'm not sure that an exemption from NEPA completey defeats any requirement for any public input.

 

However, as a practical matter, we climbers have been pretty poor about participating in forest planning processes anyway, such as the Middle Fork planning process were mountain bikers, horseback riders, kayakers and hiking groups participated but climbers almost not at all.

[sobo]

mattp is mostly correct, and it seems that Jim may not have completely understood the nuances of the NEPA process. The plans are to be considered Categorically Excluded under NEPA, not from NEPA. There is no such thing as being Categorically Excluded from NEPA (Jim), nor being "exempted from NEPA" (mattp). The lead agency is still obligated by law to provide an opportunity for public input/comment. It does not mean that the plans do not have to go through the NEPA process.

 

From one who deals with NEPA/SEPA/ECS issues every day as part of my real job (when I’m not spraying here), a ranking of Class II - Categorically Excluded (or “CE” for NEPA), or Categorically Exempt - Determination of Non-Significance (or “CE-DNS” for SEPA), does not mean that the programs or projects represented by the document can continue on full speed without public comment. What it does mean is that the lead agency, in this case the Forest Service, has reviewed their document/plan/project/action/update and have made a preliminary determination that it falls within the bounds of CE (for NEPA). The only thing this means is that the Forest Service has determined (internally) that they do not need to write an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). They must now consult with other potentially affected agencies (Corps of Engineers, Fish & Wildlife, Ecology, OAHP, EPA, NMFS, NOAA, tribes, counties, etc.), and the review by those agencies may change that preliminary determination.

 

The preliminary determination must now be published in a newspaper of general circulation in the affected area, and/or by the local governmental clearinghouse for such things (a Council of Governments or some such thing). The publication must include a general description of the project, the agency’s preliminary determination, and how and where to make comment upon the preliminary determination if you do not agree with it. The time limit is set by WAC 197-11 in the case of SEPA, and is a minimum of 15 days from the date of first publication. The lead agency may extend the comment period on its own. The time limit for NEPA is set by Part 23 CFR 771, and is a minimum of 30 days.

 

After the time period for comment, the lead agency must address each and every comment received, regardless of who made it. Only then is the preliminary decision finalized either as the same, or it may be revised to a more strict determination if warranted. Let me clarify here that in the SEPA process, the lead agency makes an “estimate” of what the determination will be before publication, then sends out the document for comment. In the NEPA process, the Class of the determination is determined by the lead agency (whether or not an EIS or an EA is warranted), then the comment period opens and closes, review/revision of the plan/project takes place to address the comments received, the revised document is recirculated to agencies so that they may assure themselves that their comments have been addressed, then a final determination (such as a FONSI - Finding Of No Significant Impact) is issued by the reviewing agencies, not the lead agency. Reviewing agencies may object to what the FS thought when it submitted the document to them for review, but ultimately it is up to the reviewing agencies to police the lead agency (in this case, the FS). And there is still the public input issue. And of course there is the appeal process, which can go on for years (take the White Pass Expansion to Hogback proposal, for instance).

 

The bottom line is that the public still has, has never lost, and will not lose, the opportunity to comment. That opportunity has not been skirted in the least by ranking Forest Management Plans as Categorically Excluded under NEPA. Fish & Wildlife, NMFS, tribes, or anyone may decide that an EA or an EIS is required (and have the documentation/evidence to prove it). Then you get another opportunity to comment upon that document. It pays to understand how the process works.

 

In closing, I would reiterate mattp’s comment that we, as climbers, have not taken much notice of forest planning.

 

Thus endeth the lesson. Class dismissed.

[Luna]

Sobo - you're correct in that one syntax of Jim's but you are otherwise wrong. You are refering to the inital CatEx determination not the actions that occur after a determinatin is made on a programmatic scale. The USFS has published their determination - that they believe Forest Plan updates are now CatEx. Sure they will take comments and consult with the agencies, and then ignore those comments.

 

INDIVIDUAL actions under the blanket of CatEx require no public input - Jim is correct if this is what he means. I've been working on a number of geotechnical projects for FEMA, and other agencies, that are listed as CatEx under earlier determinatins. Guess what - no NEPA forms to fill out except the CatEx form, which is one sheet of paper. No public involvement, no publication in the paper, no agency coordination. I've worked with these over the years and you're wrong - they can, and will (that's the idea!) do more behind closed doors.

[Luna]

Here's a link to the analysis. Again for clarification, not exempt from NEPA, you still have to fill out one lousy form - but no EA or EIS proces, no public input.

 

http://www.wilderness.org/Library/Documents/upload/NFMA-Final-Regs-Analysis.pdf

[Jim]

Sorry for the confusion over not being precise. Sobo is correct they are not exempt from NEPA but from doing an EA or EIS. Sorry to turn this into a NEPA seminar but here is what the FS is proposing.

 

They want to have Forest Plan updates included in a list of Categorical Exemptions (CE). These are usually applied to routine work that has little or no impact, so it is a paperwork saver. Once a project type is listed as CE they only have to fill a short CE form to comply with NEPA. No public notice is needed and there is no avenue for public input - unless you specifically ask for information on recent CE actions, and there is little recouse but court.

 

The FS is proposing to classify Forest Plan updates as CE, will get public comments and agency comments, and then initiate the rule making. Once that happens then Forest Plan updates will be in their list of CE activities. They can work on them in house with no public input.

 

I have several CE projects on my desk right now in the Skagit and Sauk River drainages. The only reason I'm working on them is because there are endangered fish issues, under the Endangered Species Act. All the federal agency has to do is fill out a one page CE checklist to meet NEPA needs. No public input, no review of alternatives. This is what the Bushies want, and unless the attempt to list Forest Plan updates under CE is derailed, that's what will happen. Luna is correct -it will definately signficantly reduce public input on Forest Plans.

[sobo]

Luna,

I would not agree that I am "otherwise wrong" on all accounts. The process I outlined above generally works for project actions, which is what I've been dealing with for the last 15+ years. You're referring to programmatic actions. I should have been more clear.

 

After reading Jim's latest post on this subject ^^ I would agree that the process is correct, and is being implemented as intended, as scary as that sounds. I would also agree that it's a sneaky way to get around public comment on FMPs.

[Jim]

The Bushies legacy is going to take a long time and energy to un-do. They are very good at what they do, which is consistently underhanded, and sneaky.

[Winter]

Shit, what are you guys, a bunch of radical environmental lawyers or something?!

[sobo]

Check the bios, Winter... an ecologist, a civil engineer, and a geomorphologist.

 

Nope! No lawyers here (except mattp)!