Every agency must comply with the National Environmental Policy Act (NEPA). This statute fosters informed decision-making because it forces agencies to consider the environmental impacts of their actions. The process ensures that high-quality information and accurate scientific analysis are provided to the public before an agency decides to act on a proposal. While the Council on Environmental Quality (CEQ) created a set of umbrella regulations by which all agencies must abide, agencies may additionally pass their own agency-specific additions. The Forest Service has proposed amending its NEPA regulations with the stated goal of making its process more efficient. The full gamut of what the Forest Service has proposed may be found in its official notice in the Federal Register here. Friends of the Clearwater has reviewed these proposals, and we have found that these amendments make it more difficult for the public to participate and allows the Forest Service to categorize activities so as to avoid acknowledging, much less analyzing, potentially adverse impacts.
Under current regulations, there are three basic avenues that the Forest Service can take to satisfy the National Environmental Policy Act when it proposes a project or action. If the action has the potential to significantly impact the environment, the Forest Service must consider and analyze these impacts in an environmental impact statement (EIS). If there is uncertainty as to whether the action will significantly impact the environment, the agency may conduct an environmental assessment (EA). If the EA demonstrates that there is a potential for a significant impact, the agency must go back and do an EIS. If the EA demonstrates there will be no significant impact, the Forest Service can issue a decision notice and proceed with the project. And, the Forest Service is allowed to create categorical exceptions for actions that do not have individual or cumulative impacts on the environment. These are called categorical exclusions (CEs), and if a proposed action fits this category, the Forest Service is excused from completing an EA or an EIS.
Each agency may choose its own categorical exclusions. But, each agency must also delineate circumstances—called extraordinary circumstances—where a normally excluded action may actually impact the environment. Extraordinary circumstances are the exceptions to the exceptions, and the Forest Service cannot use a CE when an extraordinary circumstance creates a question as to whether the proposed action will impact the environment. The Forest Service must at least complete an EA. This chart shows how the Forest Service might comply with NEPA:
In the Forest Service’s proposed NEPA regulations, it has proposed some very questionable changes to CEs and has proposed other regulations that will complicate or eliminate participation the public currently has under NEPA regulations. Although most of these proposed amendments are bad, we have tried keep to the most problematic proposals outlined below.
Perhaps the single most problematic CE proposal is the “Ecosystem restoration and/or resilience activities on NFS lands.” This CE allows projects up to 7,300 acres in size. The proposal allows for activities that the Forest Service calls “restoration and resilience activities.” One of the activities that the Forest Service categorizes as “restoration and resilience” is logging. Proposed CE section 220.5(e)(26)(i)(H)(“Commercial harvest”) and (I)(“Non/pre-commercial thinning”) is cutting down trees—it is logging. And in this proposed CE, out of a 7,300-acre restoration project, up to 4,200 of those acres can be logged without an EA or an EIS to analyze the impacts of removing trees from the size of 4,200 football fields.
Another problematic proposed CE, section 220.5(e)(24), which allows the Forest Service to construct up to five miles of roads or to reconstruct up to ten miles of roads. Roads are problematic, especially in Clearwater Country. Roads drive away wildlife because they provide less cover and more interaction with noisy and dangerous vehicles. Roads deliver sediment (i.e., dirt) to streams, which choke out fish spawning and habitat by filling dirt into the space between gravelly streams where fish lay eggs. Clearwater Country have many steep slopes, and roads contribute to landslides, which can also pile into streams below. The Forest Service already has so many roads on national forests that the agency does not have money to upkeep them all. And this CE will allow the Forest Service to keep adding roads.
The Forest Service has proposed another CE, 220.5(e)(25), for converting an unauthorized or non-Forest System Road into an authorized one. So illegal motorized use, which happens regardless of location or impact to natural resources, can become a legal road and increase the impact.
These CEs are problematic because the Forest Service has not provided factual support that such grand projects, or the combination of these proposed actions, could not have any individual or cumulative impacts on the environment. The Forest Service has cited other NEPA analyses in other forests for other projects as evidence that these actions will never have environmental impacts. The problem with this logic is that NEPA analyses are forward looking. The Forest Service has not provided post-project evidence—such as monitoring—that these types of proposed actions have no impact. Without such evidence, it’s as if the agency never went back to check on the correctness of its assumptions.
The Forest Service has proposed to give itself the ability to combine CEs if the project cannot be covered by one CE. Using the above proposed CEs, say the Forest Service has proposed a project that is 4,300 acres of logging, but it needs five miles of new roads, which the “restoration” CE does not allow. The Forest Service can add together CE 220.5(e)(26) and CE 220.5(e)(24) to avoid having to review environmental impacts. And the Forest Service could even add another CE, such as 220.5(e)(25), if it wanted to add on more roads to this project and there happened to be an illegal motorized trail where the agency could use a road.
The Forest Service has also proposed regulations that will make it less accountable to you, the public. Currently, scoping is required for all Forest Service proposed actions, including actions for which the Forest Service is considering using a CE. Scoping is supposed to be an early and open process where the public can comment on the issues that the Forest Service should consider for a proposed project. The Forest Service has proposed a new regulation to scope only projects where the Forest Service is considering an EIS. So, that “restoration” CE above, the one where the Forest Service can approve 4,300 acres of logging? You would no longer have the right to comment as you currently do—this opportunity would become at the whimsical discretion of the local responsible official. Additionally, the Forest Service uses many means to get out the word about most projects projects—it uses the newspaper, social media, and a “Schedule of Proposed Actions” (SOPA), which the Forest Service issues quarterly and contains actions that will begin soon or are currently undergoing environmental analysis. While the current regulations prohibit the Forest Service from only using SOPA to inform the public on projects under analysis, the new regulations would permit the Forest Service to only use the quarterly SOPA.
Although this grab at pulling the veil over transparency and legitimate environmental analysis is scary, there is something to be done—comment to the Forest Service on it! You have until August 26, 2019 to do so.
Under the law, the Forest Service must explain its rationale for these new regulations, the rationale has to be reasoned, and new regulations must be based on factual support. In your comment, consider including questions that demand an answer from the Forest Service.
In your own words, consider raising some of the below questions and requests in your own comment:
*Ask how much monitoring the Forest Service is using to support its conclusory assumption that logging is restoration with case studies, post-project monitoring, and evidence. Ask the Forest Service to disclose factual support for this assumption.
*Ask the Forest Service to factually support its conclusion that a project in no way can have a significant impact when multiple CEs can be combined to approve one project.
*Tell the Forest Service that other NEPA analyses is not good enough to support the categorical exclusions because NEPA analyses is forward-looking projections, not actual measurements done after project implementation.
*Tell the Forest Service how much transparent public involvement means to you.
*Tell the Forest Service that the entire public should be informed about the projects that the Forest Service is considering under categorial exclusions or environmental assessments.
*Tell the Forest Service if you are more likely to learn about a project through a newspaper or online as opposed to a Schedule of Proposed Actions (SOPA). (If you don’t know what SOPA is, discuss your familiarity with that in your comment. Ask the Forest Service why the agency is proposing to completely reverse an existing regulation by limiting its public notice to one means.)
There are four ways to comment:
1. Submit a comment online: https://www.regulations.gov/document?D=FS-2019-0010-0001
2. Mail a comment to
NEPA Services Group, c/o Amy Barker
USDA Forest Service
125 South State Street, Suite 1705
Salt Lake City, UT 84138
3. Email firstname.lastname@example.org
4: Submit a comment through our easy comment form
End the attack on NEPA
This comment form is now closed.
End date: Aug 26, 2019
Signatures collected: 10
Comments are due by August 12, 2019. If you cite to anything, such as a newspaper article or a scientific article, include a copy of that article with your comment.