Navigating the series of laws which govern public lands in the United States is a challenging task. There are many laws which apply solely to public lands, such as the Wilderness Act, other acts which seek to improve environmental quality throughout the United States, such as the Clean Waters Act, and a plethora of agencies which manage those lands, sometimes overlapping with regard to jurisdiction adding further to the confusion. In addition, public lands policy continues to be deeply impacted by “riders,” an inappropriate legislative tactic where amendments are tacked onto unrelated bills to avoid serious discussion and controversy over the matter. One notorious rider in the 1990s was the “salvage logging rider,” added to highly popular relief bills for victims of the Oklahoma City bombing and war-torn Bosnia, that allowed essentially unrestrained logging on public lands with no requirement to follow environmental laws. This rider was co-authored by former timber lobbyist and former President Bush’s Undersecretary of Agriculture, Mark Rey.
Public lands are owned by every citizen of the United States. We support their existence and upkeep with our tax dollars. Public lands are set aside for their scenic value, contribution to environmental quality such as clean air, wildlife value and contribution to our quality of life, among countless other reasons. The contention that public lands must financially support themselves with revenue from resource extractive industries such as logging, grazing and mining or recreational fees is contrary to their design. Undeveloped wild areas benefit a region in ways which cannot always be quantified. Commercial enterprises on public lands inherently exploit natural resources because wildland ecology isn’t governed by market forces, and they undermine the public’s right to enjoy public lands.
A somewhat recent piece of legislation effecting public lands is the absurdly and mistakenly named “Healthy Forest Restoration Act.” Following major forest fires since the fire season of 2000 in the West there was a move to capitalize on people’s pre-conditioned fear of large fires by creating legislation which claimed to prevent them by logging. Attempts to log burned, insect-infested, or simply old forests are nothing new. Although an extremely complex issue, fires are a natural part of western forests whose frequency and intensity are not helped with or mimicked by large-scale thinning.
The purpose of this piece is to provide basic descriptions of major legislation governing public lands, starting in 1964 until today, which are most applicable to the Clearwater Basin. Some legislation has been excluded due to space, such as the Organic Act, which created the National Forest Service, the Federal Land Policy and Management Act which deals mainly with public lands managed by the Bureau of Land Management (though important, these lands make up a very small percentage of public land in the Clearwater region) and the Alaska National Interest Land Conservation Act (ANILCA), intended to protect over 100 million acres of public lands in Alaska.
The Freedom of Information Act (FOIA) is worth a mention because it created unprecedented access to government documents for interested citizens. However, since September 11, 2001 the government has drastically curtailed public access to information for public documents using the claim of “national security risk” regardless of subject matter. In addition, there are innumerable court decisions which have refined the interpretation and enforcement of each Congressional Act.
Timeline of the Passage of Important Public Land laws in the U.S.
1964 – Wilderness Act
1968 – Wild & Scenic Rivers Act
1969 – National Environmental Policy Act (NEPA)
1973 – Endangered Species Act (ESA)
1976 – National Forest Management Act (NFMA) and Federal Land Policy Management Act (FLPMA)
1977 – Clean Water Act
♦ Wilderness Act, 1964
“A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”
♦ Wild & Scenic Rivers Act, 1968
“It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. The Congress declares that the established national policy of dams and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.”
The Act marked a change in policy and history, in that free-flowing rivers were for the first time able to be preserved in a natural condition by law. This greatly contrasted, and stopped in some site-specific instances, the dam building frenzy of the 20th Century. The law also created the National Wild & Scenic Rivers System, which is comprised of rivers that have been designated/protected by Congress or in some instances, the Department of Interior. Rivers can be designated as Wild, Scenic, or Recreation, depending on the degree of development existing at the time of designation.
♦ Wild – The Act defines wild rivers as “free of impoundments” and “essentially primitive” and representing “vestiges of primitive America.” In order to be designated wild, “no roads or other permanent structures should exist within the river corridor, and there should be little to no evidence of human activity.” Motorboat use may be permitted, but unless otherwise authorized by law, should be limited to the level of use that was occurring at the time of designation. Opportunities to phase out motorboat use should be pursued.
♦ Scenic – The Act defines them as “free of impoundments” and “largely primitive and shorelines largely undeveloped, but accessible in places by roads.” These river segments may have existing developments along side them; this does not permit construction of additional structures or roads, however. Motorboats may be allowed, but should be limited to the level of use occurring at the time of designation. Opportunities to phase out motorboat use should also be pursued.
♦ Recreation – The Act defines them as “free of impoundments” that “may have some development along their shorelines and may have undergone some impoundment or diversion in the past.” These rivers can exist within urban areas or intensive agricultural zones. Any management decisions affecting these segments and their corridor should “work towards restoring, to the extent possible, the river and its shorelines to natural conditions.”
♦ National Environmental Policy Act (NEPA), 1969
“The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment, to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish the Council on Environmental Policy.”
NEPA has been described as a planning statute. It established a policy for the environment, and has three main parts:
♦ To establish the Council on Environmental Policy (CEQ) which has been characterized as the “federal watchdog of environmental policy;”
♦ To require federal agencies to take into account environmental consequences when they make certain decisions. Before NEPA, most agencies could not, or did not, do this because it was not a factor in their decision making process. Although NEPA requires federal agencies to discuss publicly more environmentally sound alternatives, the agencies are not required to select those alternatives.
♦ To require federal agencies to prepare an Environmental Impact Statement (EIS) for every major legislative proposal or other federal agency action that has a significant impact on the human environment.
NEPA is the core environmental statute in the U.S. for two main reasons. First, it requires an analysis of environmental impacts of proposals that also considers alternatives to the proposal. Second, it mandates that the public be involved and have the opportunity to provide comments on the analysis in the Environmental Impact Statements (EIS) or the smaller Environmental Assessments (EA).
Notice of Intent (Scoping) Letter
This is a letter sent to all parties who have requested from the Forest Service the NEPA documents for a particular National Forest. It provides a vague description of the proposed agency action and requests citizen input within a 30-day comment period (sometimes the comment period is longer).
Step 1: Citizen Input.
Step 2: Categorical Exclusion. The agency can categorically exclude an area from detailed environmental analysis, meaning that the action is too small to have a significant effect on the landscape and hence no environmental assessment is needed. The agency pursues the project, and, there is no further opportunity for citizen involvement, except litigation. This was intended for small actions, such as campground revisions, but it is a qualitative judgment call that can easily be abused. For example, the Forest Service has exempted several small timber sales adjacent to one another from a complete environmental analysis rather than considering the environmental impacts collectively of the sales.
Draft Environmental Impact Statement
The Draft Environmental Impact Statement (EIS) is a detailed document about the proposed management activity and its impact on the natural resources, including biological and economical. This includes a detailed description of every proposed alternative for the management activity, mandated “No Action” alternative and biological opinions from relevant agencies when sensitive, threatened or endangered species may be impacted by the land use decision. Management activities could be a herbicide application, a timber sale, road construction, among other actions. Environmental Assessments (EA) are shorter documents.
Step 1: Citizen Input. Citizens have 45 days (again from the date of notice in the Federal Register, comment period can be longer) or, in the case of EAs, 30 days if a public comment period is provided.
Step 2: Incorporate citizen input. Management agencies are required to consider the concerns of all citizens who participate in the process. They are not required to weigh opinions like a democratic vote, but must use the best available science to help guide their decisions.
Final Environmental Impact Statement (FEIS)/Record of Decision (ROD)
Step 1: FEIS and ROD. The initiating agency will issue a FEIS, which incorporates citizen comments, and will typically issue a ROD giving their official decision for the proposed action. Occasionally a FEIS is issued and followed by an additional comment period before the ROD is determined. In the case of an EA, a decision notice and Finding of No Significant Impact (FONSI) are issued.
♦ Endangered Species Act (ESA), 1973
Anyone may petition the government to list a species as endangered or threatened. An endangered species is any species that is in danger of extinction through all or a significant portion of its range. A threatened species is any species that is likely to become an endangered species within the foreseeable future. The decision to list a species is designed to be based solely on science, not politics. However, political pressure can cause a species to sit on the species candidate list for years while waiting for adequate funding, as has been the case with the Florida Black Bear since 1992 among many others.
The ESA requires the designation of critical habitat for all listed endangered and threatened species. Defined by the ESA, critical habitat is the area occupied by the species at the time of listing and essential to its conservation. Typically, agencies do not designate critical habitat unless forced to by court orders.
This term has the developed meaning pertaining to the ESA as: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in such conduct. Taking has been further defined as an act which actually kills or injures wildlife including significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering.
Several federal agencies, including the Fish and Wildlife Service (USFWS), the National Oceanic and Atmospheric Administration (NOAA) Fisheries, the United States Forest Service (USFS), and the Bureau of Land Management (BLM) are affected by the ESA in that they are required to abide by the Act in the process of carrying out their actions. The Act is implemented by either USFWS or NOAA.
For proposed land use actions by agencies such as the USFS or the BLM that have the potential of affecting listed or candidate species under the ESA, consultation may be required. If so, either the USFWS or NOAA is responsible for issuing a “biological opinion” assessing the impacts to endangered and threatened species in the project areas and is known as an Environmental Impact Statement (EIS). If it is concluded that the agency actions are likely to adversely impact listed or candidate species, the agency preparing the EIS offers suggestions of conservation measures which will minimize the impact to the species and its critical habitat. The action agency is charged with carrying out these conservation measures which may include moving a planned road, waiting for the right season to construct structures or modifying dams. From 1979 through 1995, of 259,650 consultations on proposed agency actions, only 600 required significant changes, and only 118 were completely stopped.
For most of the endangered species located within the jurisdiction of the USFS and BLM, the management and conservation efforts belong to the agency presiding over the area in which the listed species is found. When dealing with coastal area fisheries, however, the jurisdiction is not so clear.
With the anadromous, or ocean-dwelling/freshwater spawning, salmon and steelhead, an overlap of jurisdictional boundaries is created as with the bull trout and the white sturgeon. In areas such as the Columbia River Basin, the bull trout and white sturgeon are full time residents, while salmon and steelhead share the same waters during certain times of the year while they make their voyages to and from the Pacific Ocean. Even though these four species share the same habitat, they are managed by different agencies. Because salmon and steelhead are anadromous, they fall under the jurisdiction of the NOAA, and the land-locked Bull trout and white sturgeon are managed by the USFWS. To ensure that all listed species are managed appropriately, NOAA and USFWS are required to work together to ensure that each species under their jurisdiction is being managed efficiently and effectively.
♦ National Forest Management Act (NFMA), 1976
Congress passed NFMA, which specified the basic rules and regulations the National Forests are legally binded to follow to manage public lands. The Act is intended to update laws governing logging, and create constraints on common practices such as clear cutting.
This Act calls upon the Forest Service to be a leader in resource conservation and to develop and encourage recycling of forest resources. It directs the Secretary of Agriculture to report to Congress on such topics as forest products diversification, efficiency, forest health, and reforestation. Detailed timber stand analyses are required and Congress is to receive regular reports on the costs of reforestation and other operations. This Act also defines “allowable sale quantities” for a National Forest, which courts have interpreted to mean the maximum amount of timber harvested from a National Forest annually and is not a target amount to be harvested.
To comply with NFMA, all National Forests and Grasslands are required to prepare Forest Plans. Each Forest Plan requires a minimum of three months of public scrutiny before their enactment, with public hearings in locations throughout the relevant area. Forest Plans set forth specific standards regarding wildlife, roads, water quality and other factors of a National Forest that each management plan must comply with. NFMA requires that resources be managed for sustained yield of timber harvests, and to not damage soils, slopes, and watersheds irreversibly. The Secretary of Agriculture is required to identify lands not suitable for timber harvest and review their status at least every ten years. Currently, the Nez Perce – Clearwater National Forests, along with other National Forests in north Idaho are in the process of updating their forest plans, pushing for vague standards that may not sustain the land. The Act directs the USFS to actively manage resources for optimum production, but must not consider only the economic return or total timber output.
NFMA requires that timber harvest roads be returned to their natural states of slope, vegetation, etc. within ten years after harvest, unless the roads are to become part of the National Forest road system. In practice, too few roads are ever recontoured due to the cost. Timber companies are required to construct roads suitable for harvest, although small companies can request that the Forest Service do the road construction for a sum. Historically, road construction has been heavily subsidized by government funds.
♦ Federal Land Policy Management Act (FLPMA), 1976
The purpose of FLPMA is “To establish public land policy; to establish guidelines for its administration; to provide for the management, protection, development, and enhancement of the public lands; and for other purposes.” It essentially serves as a multiple-use mandate for the Forest Service, National Park Service and Bureau of Land Management (BLM). ‘Multiple use’ is defined in the Act as “management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people.” The Act also addresses land acquisition, land use planning, fees/payments, federal land administration, range management, and right-of-ways issues on federal public land. It also supplies specific direction for BLM management of federal public lands, including recommending Wilderness.
♦ Clean Water Act, 1977
Its purpose is to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” It not only helps to protect areas threatened by future misuse, but also to restore abused areas to the most natural state possible. The goal set forth by the Act is to attain a sustainable environment for “beneficial uses” that is, for fisheries and recreational uses.
There are general requirements associated with the implementation of the Clean Water Act. It identifies two types of pollution, point source and non-point source. Point source is pollution discharged from any identifiable point including pipes, ditches, channels, sewers, tunnels and containers of various types. Non-point sources are defined as pollution discharged over a wide land area, such as agriculture, timberlands, and grazing allotments, not from a specific location. Non-point source pollution includes sediment loading and elevated temperatures as well as urban runoff.
The Environmental Protection Agency (EPA) is charged with the authority to regulate the programs to control pollution rates in a cooperative arrangement with each state. State governments are responsible for recognizing water quality problems within their state and creating programs to meet the requirements of the Clean Water Act. The EPA is instructed to intervene if a state fails to enforce the CWA, but in practice, the EPA rarely interferes.
When a body of water is labeled “water quality limited” by the State of Idaho (often due to litigation), the Department of Environmental Quality will establish a total maximum daily load (TMDL) for major pollutants to that waterway, which is the maximum level of a pollutant allowed on a waterway. TMDL designations essentially provide the minimum protection for ecological functioning such as salmon spawning. They do not maintain pristine waters. Idaho alone has hundreds of bodies of water described as “water quality limited” by the Clean Water Act.