[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
MANAGEMENT BY EXCLUSION:
THE FOREST SERVICE
USE OF CATEGORICAL
EXCLUSIONS FROM NEPA
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON NATIONAL PARKS, FORESTS
AND PUBLIC LANDS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Thursday, June 28, 2007
__________
Serial No. 110-31
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Bobby Jindal, Louisiana
Dan Boren, Oklahoma Louie Gohmert, Texas
John P. Sarbanes, Maryland Tom Cole, Oklahoma
George Miller, California Rob Bishop, Utah
Edward J. Markey, Massachusetts Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon Dean Heller, Nevada
Maurice D. Hinchey, New York Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island Doug Lamborn, Colorado
Ron Kind, Wisconsin Mary Fallin, Oklahoma
Lois Capps, California Kevin McCarthy, California
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS
RAUL M. GRIJALVA, Arizona, Chairman
ROB BISHOP, Utah, Ranking Republican Member
Dale E. Kildee, Michigan John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Chris Cannon, Utah
Donna M. Christensen, Virgin Thomas G. Tancredo, Colorado
Islands Jeff Flake, Arizona
Rush D. Holt, New Jersey Stevan Pearce, New Mexico
Dan Boren, Oklahoma Henry E. Brown, Jr., South
John P. Sarbanes, Maryland Carolina
Peter A. DeFazio, Oregon Louie Gohmert, Texas
Maurice D. Hinchey, New York Tom Cole, Oklahoma
Ron Kind, Wisconsin Dean Heller, Nevada
Lois Capps, California Bill Sali, Idaho
Jay Inslee, Washington Doug Lamborn, Colorado
Mark Udall, Colorado Don Young, Alaska, ex officio
Stephanie Herseth Sandlin, South Kevin McCarthy, California
Dakota Don Young, Alaska, ex officio
Heath Shuler, North Carolina
Nick J. Rahall II, West Virginia,
ex officio
------
CONTENTS
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Page
Hearing held on Thursday, June 28, 2007.......................... 1
Statement of Members:
Bishop, Hon. Rob, a Representative in Congress from the State
of Utah.................................................... 2
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 1
Statement of Witnesses:
Jensen, Thomas C., Sonnenschein, Nath & Rosenthal LLP,
Washington, D.C............................................ 42
Prepared statement of.................................... 44
Lawrence, Nathaniel, Senior Attorney, Natural Resource
Defense Council (NRDC)..................................... 66
Prepared statement of.................................... 68
Menlove, Mark, Executive Director, Winter Wildlands Alliance. 57
Prepared statement of.................................... 59
Nazzaro, Robin, Director of Natural Resources and
Environment, U.S. Government Accountability Office......... 12
Prepared statement of.................................... 13
Noon, Dr. Barry R., Professor, Department of Fish, Wildlife,
and Conservation Biology, Colorado State University........ 62
Prepared statement of.................................... 63
Pollak, Harrison M., Deputy Attorney General, State of
California................................................. 22
Prepared statement of.................................... 23
Rey, Mark, Under Secretary, Natural Resources and
Environment, U.S. Department of Agriculture................ 4
Prepared statement of.................................... 5
Stavros, John, New Harmony, Utah............................. 92
Prepared statement of.................................... 94
Vaughan, Ray, Executive Director, WildLaw.................... 76
Prepared statement of.................................... 78
OVERSIGHT HEARING ON ``MANAGEMENT BY EXCLUSION: THE FOREST SERVICE USE
OF CATEGORICAL EXCLUSIONS FROM NEPA''
----------
Thursday, June 28, 2007
U.S. House of Representatives
Subcommittee on National Parks, Forests and Public Lands
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:03 a.m. in
Room 1334, Longworth House Office Building, Hon. Raul M.
Grijalva [Chairman of the Subcommittee] presiding.
Present: Representatives Grijalva, Bishop, Holt, DeFazio,
Herseth Sandlin, Sali, Lamborn and McCarthy.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Let me call the Subcommittee on National
Parks, Forests and Public Lands oversight hearing to order on
``Management by Exclusion.'' Welcome to all our witnesses and
thank you very much for being here. Today's hearing involves a
very, very important topic, and so I appreciate very much the
presence of our witnesses today, both on the first panel and
the second panel.
The Forest Service use of categorical exclusions from the
National Environmental Policy Act or NEPA is in serious need of
oversight. Under the Bush Administration, the Forest Service
has vastly expanded the use of categorical exclusions from
NEPA. This includes categorical exclusions both at the planning
and project levels. In fact, the Forest Service made more
administrative changes to NEPA procedures than any other
Federal land management agency.
NEPA is important because it sets up a process to protect
ordinary citizens from harm by Federal agencies. NEPA is a
tool, but perhaps it is a shield to force Federal agencies to
assess the consequences of its actions and stop and listen to
the advice of average Americans. The title of this hearing is
``Management by Exclusion'' because by categorically excluding
forest plans and projects from NEPA, the Forest Service is
excluding the ability of the public to be involved in the
management of their publicly owned national forests.
Furthermore, by categorically excluding forest plans and
projects from NEPA, the Forest Service is excluding the
cumulative analysis of land management decision. In December
2006, the Forest Service announced a finalization of their
forest planning rule to categorically exclude forest plans from
NEPA. The proposal took two years to be finalized based on
strong concerns raised by the Council on Environmental Quality
and numerous other individuals and organizations.
The forest planning rule is premised on a narrow
interpretation that forest plans do not constitute a Federal
action triggering NEPA. I believe that both the public
involvement and environmental analysis requirements of NEPA are
critical to providing the balanced use of Federal lands.
Furthermore, categorically excluding forest plans from NEPA
will likely result in the failure to evaluate the cumulative
effects of and impacts of land management decisions, which was
a clear intent of the National Forest Management Act.
The Forest Service has justified the categorical exclusion
of forest plans from NEPA by claiming that NEPA analysis should
be undergone at the project level not the plan level. However,
the Forest Service has also expanded the use of categorical
exclusions for forest projects dealing with timber, oil and gas
and grazing. Today we are joined by Robin Nazzaro from the
Government Accountability Office. The GAO found that nearly
three-quarters of Forest Service vegetation management projects
are categorically excluded from NEPA. This accounts for nearly
half of the acreage treated for vegetation management
nationwide.
My strong concern is that the whole picture shows a
weakening of the NEPA process forest-wide under the Bush
Administration. The result is less public involvement in their
publicly owned national forests, less analysis of decisions
affecting individual national forests, and the National Forest
System as a whole. I share the concerns with many others.
Today we are joined by Deputy Attorney General of
California, recreationists, conservationists and scientists to
share their concerns with us about this topic. I would add that
it is clear that the Forest Service is overreaching. If their
policies were sound and valid, they would not be continuously
losing in the Courts. The Courts have enjoined the forest
planning rule, overturned Forest Service efforts at limiting
public comment and appeal.
I look forward to hearing from all our witnesses and thank
those who have traveled from afar to be here today. I would now
recognize the Ranking Member Bishop for any opening statements
he may have. Sir.
STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF UTAH
Mr. Bishop. Thank you, Mr. Chairman and members of the
Committee who are here. The title of today's hearing suggests
that the Forest Service uses categorical exclusions to exclude
decisions from analysis that were required by the National
Environmental Policy Act, otherwise known as NEPA, or to
exclude public involvement from project planning. The Majority
has a steep burden to prove that.
The fact is--and I think the facts will show--that
categorical exclusions do not eliminate the NEPA analysis. They
are part of the NEPA analysis process. They merely serve as an
initial screen in determining what level of environmental
analysis is appropriate for individual projects.
Categorical exclusions is a tool. It is neither inherently
good or evil. It can be abused. It can be used properly. I
think history will be on the side of the agency's use. Nothing
is perfect. No one is perfect, and if that indeed was the
standard, I do not think Congress would be here today. But we
will hear testimony from those who prefer to say no to any land
management activity. These individuals will say that the use of
categorical exclusions prevents members of the public from
becoming involved in NEPA analysis of individual projects. All
NEPA analysis completed by the Forest Service, including those
completed under categoric exclusions from documentation in
environmental assessments or environmental impact statements,
must include some form of public involvement.
Further, public involvement is documented in the final
agency decisions. Mr. Chairman, just last week we heard almost
unanimous statements from members of this subcommittee
regarding the need to quickly reduce wildfire hazards. The
Chair called for the need for more thinning in order to reduce
fire loads. He was impeccably correct in his statements.
Congratulations. You got it right, Mr. Chairman. The use of
categorical exclusions though is needed to do these projects.
You cannot have one without the other.
I would like to remind the Committee that in the 109th
Congress, Mr. Udall introduced H.R. 4875, a bill that
recognized the efficiency of categorical exclusions by
including one of those, one that promoted treatment of forest
insect infestations. Use of categorical exclusions is a
valuable tool that allows efficient use of the government,
financial and human resources.
Today we will hear testimony from Mr. Stavros from Utah
about how the effectiveness of a hazardous fuel treatment
project analyzed under a categorical exclusion and quickly
implemented was able to protect his home and community from a
wildfire. Mr. Stavros' testimony offers an example of how our
actions here in this committee directly affect the lives of
millions of people.
We often go off on esoteric flights of fancy where
decisions are based on dogma that actually hurt people. Our
goal ought to be to eliminate that harm done from individuals.
The situation in Lake Tahoe is a reminder to us all of what
happens when the Forest Service is prevented from acting. I am
required to look forward to today's hearing, and the
testimony--much of which will rehash the obvious--regarding the
use of categorical exclusions by the Forest Service, and I
would like to thank all of our witnesses--regardless of what
they may say--for coming here today.
It is not easy to be a witness before this committee and
come to this city of excessive humidity for anyone, and I do
appreciate your kindness in coming here and sharing your
efforts and testimony with us here today. Thank you, Mr.
Chairman. I will yield back.
Mr. Grijalva. Thank you, Mr. Bishop. Let me begin with the
first panel. Under Secretary Rey, Director Nazzaro, Deputy
Attorney General Pollak, and I will begin with the Under
Secretary, Mr. Rey, and I should note for the record that all
written testimony and extraneous material that will be
submitted by the witness will be accepted as part of the
record. With that, Under Secretary.
STATEMENT OF MARK REY, UNDER SECRETARY, NATURAL RESOURCES AND
ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE
Mr. Rey. Thank you, Mr. Chairman. As defined in the Council
on Environmental Quality Regulations, a categorical exclusion
is a category of actions which experience has indicated will
not have a significant environmental effect on the environment,
and can be categorically excluded from additional
documentation, an environmental assessment or an environmental
impact statement. Categorical exclusions are an integral part
of the implementation of NEPA and promote the cost effective
use of agency NEPA related resources.
The Forest Service implementation of categorical exclusions
considers effects, including cumulative effects which result
from implementation of management actions. The important
distinctions for categorical exclusions is that the agency has
determined in establishing the categorical exclusion that these
effects for the category of actions are not significant absent
extraordinary circumstances.
Using the terminology of the Council on Environmental
Quality Regulations, a categorically excluded project is exempt
from the more lengthy analysis and documentation in an EA or
EIS because it does not have significant effects. When using a
categorical exclusion, Federal agencies must still comply with
all of the requirements of any applicable laws, regulations and
policies, including NEPA and including the separate and more
extensive public participation regulations of the National
Forest Management Act.
My statement for the record describes the administrative
process the Forest Service uses to create categorical
exclusions generally and specifically. Let me give you one
example as to how we arrived at a particular categorical
exclusion. Under the healthy forest initiative, the Forest
Service and the Department of the Interior administratively
created two new categorical exclusions in 2003 for fire
management activities.
The activities permitted under these categories include
hazardous fuel reduction and post fire rehabilitation. These
categories were published as proposals for notice and comment
on December 16, 2002. The comment period was open for 45 days,
and nearly 39,000 comments were received and evaluated. In
developing this proposal, the Forest Service and the Department
of the Interior reviewed over 2,500 hazardous fuel reduction
and fire rehabilitation projects to establish the basis for
proposing these categorical exclusions.
Of those preexisting 2,500 project records, 28 were
documented with an environmental impact statement, 1,434 were
documented with environmental assessments, and 1,097 were
documented under existing categorical exclusions. In addition
to reviewing the over 2,500 existing projects, the agencies
also reviewed 153 peer reviewed scientific publications and
analyzed the influence of forest structure on wildfire behavior
and the severity of its effects.
So you can see that the development of a categorical
exclusion administratively is an exhaustive process that does
involve a substantial amount of public involvement.
Additionally, Congress has seen fit to legislatively create
categorical exclusions. Recently enacted laws have established
or directed the establishment of several categorical exclusions
including the Energy Policy Act of 2005 with regard to certain
oil and gas development projects and the Fiscal Year 2005 of
Consolidated Appropriations Act with regard to the development
of grazing lease renewals.
In these cases and in others, Congress has stated
legislatively that the effects of particular activities are
insignificant and so that therefore a legislative categorical
exclusion has been created. Even though Congress rendered the
agency's responsibility largely ministerial in making those
determinations, we still do a considerable amount of analysis
on the projects covered under those legislative categorical
exclusions.
These binders are the analytical record for one grazing
lease renewal under the legislative categorical exclusion.
Under administrative categorical exclusions there would be more
binders. Under an environmental assessment, there would be many
more binders, and under an environmental impact statement there
would be a record that would start on the floor and be about
this high.
Typically to do this costs us about $50,000 on the average.
To do an environmental assessment costs us $200,000 on the
average, and to do an environmental impact statement costs us a
million dollars on the average. That, given the analysis in
defining the categories covered by categorical exclusions, is I
think ample justification in these times of budget needs and
the need for quick action to reduce environmental risks to use
the processes provided by NEPA wisely and fairly.
Again, categorical exclusions are an integral part of the
National Environmental Policy Act. They do not absolve the
agency from doing scoping, cumulative effects analysis or
public participation. Indeed the public participation
requirements of the National Forest Management Act, which
passed seven years after NEPA, were modeled after NEPA and made
more specific with regard to what the Forest Service must do to
involve the public however we organize our obligations to
comply with NEPA. With that I would be happy to answer any
questions you have after the panel is completed.
[The prepared statement of Mr. Rey follows:]
Statement of Mark Rey, Under Secretary for Natural Resources and
Environment, U.S. Department of Agriculture
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to discuss Forest Service use of categorical exclusions. I
am pleased to be here with you today.
First, I would like to clarify that categorical exclusions (CEs)
are a part of National Environmental Policy Act implementation, not an
exclusion from NEPA, as provided for by the Council on Environmental
Quality (CEQ) regulations. The purpose of a categorical exclusion is to
eliminate the need for unnecessary paperwork and effort to assess the
environmental effect of actions that normally do not warrant
preparation of an Environmental Assessment (EA) or Environmental Impact
Statement (EIS).
As defined by the CEQ regulations, a categorical exclusion is a
category of actions which experience has indicated will not have a
significant environmental effect on the environment and can be
categorically excluded from documentation in an Environmental
Assessment or Environmental Impact Statement (40 CFR 1508.4).
Categorical exclusions (CEs) are an integral part of the implementation
of NEPA and promote the cost-effective use of agency NEPA related
resources.
The Forest Service implementation of categorical exclusions
considers effects, including cumulative effects, which result from
implementation of management actions. The important distinction for
categorical exclusions is that the agency has determined, in
establishing the categorical exclusion, that these effects for the
category of actions are not significant, absent extraordinary
circumstances. Using the terminology of the CEQ regulations, a
categorically excluded project is exempt from the more lengthy analysis
and documentation in an EA or EIS because it does not have significant
effects. When using a categorical exclusion, federal agencies must
still comply with all requirements of any applicable laws, regulations,
and policies including NEPA.
Development of Categorical Exclusions
Categorical exclusions promote the cost-effective use of agency
NEPA-related resources. The CEQ, in 1983, encouraged agencies to create
additional categorical exclusions because they are perceived to be less
of a burden on agency resources than EAs or EISs (CEQ ``Guidance
Regarding NEPA Regulations'', 48 FR 34263 (July 28, 1983)). The CEQ
issued draft guidance in 2006, again encouraging agencies to designate
more categorical exclusions (71 FR 54816 (2006)).
When establishing implementing procedures, CEQ regulations direct
federal agencies to identify those actions which experience has
indicated will not have a significant environmental effect and
categorically exclude them from documentation in an EA or EIS (40 CFR
1507.3(b)(2)(ii) and CEQ ``Guidance Regarding NEPA Regulations'', 48 FR
34263 (July 28, 1983)). Agencies have been encouraged to identify CEs
using broadly defined criteria rather than developing lists of specific
activities. By taking this approach, the CEQ believes agencies will
have sufficient flexibility to make decisions on a project-by-project
basis with full consideration of the issues and impacts that are unique
to a specific project. CEQ has used an interagency work group to
develop guidance to Federal agencies for establishing and for using
categorical exclusions in meeting their responsibilities under NEPA. 71
Fed. Reg. 5418 (September 19, 2006). CEQ is currently considering
public comments on that draft guidance.
To establish a categorical exclusion, various sources of
information relevant to the proposed category of actions and its
environmental effects may be used. Sources may include, but are not
limited to: evaluation of implemented actions, impact demonstration
projects, information from professional staff and expert opinion or
scientific analyses, and others' experiences (benchmarking). The
information used to support establishing a categorical exclusion
demonstrates how the agency determined that the proposed category of
actions does not typically result in significant environmental effects.
Agencies must consult with and obtain a conformity determination
from CEQ for compliance with NEPA and its implementing regulations
before establishing a new categorical exclusion. CEQ regulations
require federal agencies to publish any proposed categorical exclusion
in the Federal Register and provide a period during which the public
may submit comments on the proposal (40 CFR 1507.3(a)). The Forest
Service provides for public notice and comment on every categorical
exclusion it develops.
Administratively Created Categories
In addition to the legislated CEs, the Forest Service has
administratively created CEs for a variety of activities, including
limited timber harvest, Healthy Forest Initiative, special uses and
limited oil and gas exploration and development. All agency
documentation for these categories was made available for notice and
comment.
Limited Timber Harvest
In 2003, the Forest Service administratively created new categories
for limited timber harvest. The activities permitted under the category
include limited timber harvest of live trees to maintain forest health
and improve stand condition, salvage of dead and dying trees and
sanitation harvests in response to ongoing insect and disease
infestations. These categories were published as proposals for notice
and comment in the Federal Register on January 8, 2003. The comment
period was open for 60 days and approximately 16,700 comments were
received.
In examining the basis for proposing categorical exclusions for
limited timber harvest, the Forest Service looked at two sets of data.
In 2001, the Forest Service reviewed 154 timber harvest projects for
which monitoring had validated the predicted environmental effects. The
Forest Service also analyzed all categorically excluded timber harvest
activities reported for 1998, the last year the timber harvest
categorical exclusion was available to the Forest Service.
Of the 154 projects reviewed for establishing these categories, 122
were categorical exclusions documented with decision memos and 32 were
documented with an environmental assessment. None of the 154 projects
reviewed predicted significant effects on the human environment before
the project was implemented. After implementation, on-site reviews of
environmental effects of these projects were conducted by
interdisciplinary teams of resource specialists. The interdisciplinary
review teams' measurements and observations were documented in a
database. These data remain available on the world wide web and may be
viewed at http://www.fs.fed.us/emc/lth.
The 1998 data analysis involved 306 categorically excluded timber
harvest projects. The analysis was conducted to estimate to what extent
the old timber harvest categorical exclusion was used and to determine
average project size and harvest volume. (The last year that
categorical exclusion could be used was 1998.) Each Forest Service
Region provided acreage and volume information for each categorically
excluded timber harvest conducted in 1998.
The Forest Service found that the categories of actions defined
under the limited timber harvest CE did not individually or
cumulatively have significant effects on the human environment. The
agency's finding is first predicated on data representing the expert
judgment of the responsible officials who made the original findings
and determinations for the 154 projects reviewed in 2001; the resource
specialists who validated the predicted effects of the 154 reviewed
activities after the projects were completed; and a belief that the
profile of past timber harvest activities drawn from the 1998 data
represents the agency's past practices and is indicative of the
agency's future activities. The CEQ, upon review of this CE, found that
the CE conformed with NEPA and its implementing regulations. The final
guidance for the Limited Timber Harvest CEs was published on July 23,
2003.
Healthy Forest Initiative CEs
Under the Healthy Forests Initiative, the Forest Service and the
Department of the Interior administratively created two new categorical
exclusions in 2003 for fire management activities. The activities
permitted under these categories include hazardous fuels reduction and
post-fire rehabilitation. These categories were published as proposals
for notice and comment in the Federal Register on December 16, 2002.
The comment period was open for 45 days and nearly 39,000 comments were
received.
The Forest Service and the Department of the Interior reviewed over
2,500 hazardous fuels reduction and fire rehabilitation projects to
establish the basis for proposing these categorical exclusions. Of the
2,559 project records reviewed, 28 were documented with environmental
impact statements, 1,434 were documented with environmental
assessments, and 1,097 were documented under existing categorical
exclusions.
In addition to reviewing 2,559 projects, the agencies also reviewed
153 peer-reviewed scientific publications analyzing the influence of
forest structure on wildfire behavior and the severity of its effects.
This literature review found that forest thinning and prescribed
burning have been long employed by land managers to maintain forest
health and reduce wildfire risk. These benefits are supported by
hundreds of scientific investigations and years of professional field
experience. The review also found that thinning and prescribed burning,
when conducted properly with safeguards, can reduce wildfire risk.
Based on site-specific project-level analysis of environmental
effects, post-activity validation of those effects, the synthesis of
scientific publications, and the belief that the profile of projects
reviewed represents the agencies' past practices and is indicative of
the agencies' future activities, the agencies concluded that category
of actions covered by the Healthy Forest Initiative CEs do not
individually or cumulatively have a significant effect on the human
environment. While confident in this conclusion, the agencies,
nevertheless, have established acreage limitations for these categories
and Forest Service Research and Development is continuing to study
these relationships. The CEQ, upon review of this CE, found that the CE
conformed with NEPA and its implementing regulations. The final
guidance for the Healthy Forests Initiative CEs was published on July
23, 2003.
Special Use Permit CE
In 2004, the Forest Service administratively created a categorical
exclusion for the issuance of a new special use authorization to
replace an existing or expired special use authorization. This CE can
only be used when the issuance of a new special use authorization is
ministerial, that is when there are no changes to the authorized
facilities or increase in the scope or intensity of authorized
activities, and the applicant or holder is in full compliance with the
terms and conditions of the special use authorization. This category
was published as a proposal for notice and comment in the Federal
Register on September 20, 2001. The comment period was open for 60 days
and nearly 26,000 comments were received.
To document rationale for the CE, the Agency's Special Uses Program
approached its Regional Lands and Recreation Special Use Program
Coordinators to obtain their input and feedback on why they believe the
proposed categorical exclusion was appropriate. Moreover, the Forest
Service wanted to more clearly validate its rationale based on the
experience of these program experts.
Responses indicated that the categorical exclusion would primarily
be used to continue the authorization of a variety of ``static'' non-
ground disturbing facilities or activities, which based on their past
experience, do not have significant environmental effects. Furthermore,
the Forest Service determined that the evaluation for extraordinary
circumstances would ensure appropriate use of the categorical
exclusion.
The program managers who provided written responses to questions
posed at the annual special uses coordinators meeting represent over
550 years of combined experience in Forest Service special uses
administration. The NEPA specialists queried represent over 250 years
of combined experience with NEPA policy and compliance. Based on over
800 person-years of experience with special use authorizations and NEPA
compliance; and considering the provisions of law, regulation, agency
policy; and the effects of past actions; the activities authorized in
decisions documented under the new categorical exclusion would not
individually or cumulatively have a significant effect on the human
environment. Accordingly, the Agency determined it appropriate to
identify this category of action as excluded from requirements for
documentation in an EA or EIS. The CEQ, upon review of this CE, found
that the CE conformed with NEPA and its implementing regulations. The
final guidance for the special use permit CEs was published on July 6,
2004.
Oil and Gas Exploration CE
The Forest Service has promulgated a new CE for limited oil and gas
exploration and development activities in newly identified fields. This
CE does not, and is not intended to, overlap or duplicate the
activities contained in the CEs provided under Section 390 of the
Energy Policy Act of 2005. It is complementary to Section 390 and taken
in concert, this CE and the five statutory CEs provide the ability to
analyze and approve a full range of small projects with non-significant
environmental effects in existing and new fields or corridors. In
approving this CE, the Forest Service followed a public notice and
comment process. This category was published as a proposal for notice
and comment in the Federal Register on December 13, 2005. The comment
period was open for 60 days and 108 comments were received.
In establishing this CE, the Forest Service reviewed the effects of
every small oil and gas exploration and development project authorized
over a five year period. Based on general program experience and the
results of this review, the Forest Service determined that activities
with limited road-building and utility-laying do not have significant
effects and therefore would not require documentation in an
environmental assessment or environmental impact statement. This CE
covers decisions to approve a surface use plan of operations for oil
and gas exploration and initial development activities, associated with
or adjacent to a new oil and/or gas field or area, so long as the
approval will not authorize activities in excess of any of the
following: one mile of new road construction; one mile of road
reconstruction; three miles of individual or co-located pipelines and/
or utilities disturbance; and four drill sites. The CEQ, upon review of
this CE, found that the CE conformed with NEPA and its implementing
regulations. Since approval of this new CE on February 15, 2007, the
category has been used two times.
Legislated Categorical Exclusions
Recently enacted laws have established or directed the
establishment of several categorical exclusions. The Energy Policy Act
of 2005 (P.L. 109-58) included statutory categorical exclusions for
certain oil and gas development for projects disturbing fewer than five
acres. The FY2005 Consolidated Appropriations Act (PL 108-447) included
a categorical exclusion for decisions made to authorize grazing on an
allotment. In addition, section 404 of the Healthy Forests Restoration
Act (P.L. 108-148) of 2003 established a categorical exclusion for
applied silvicultural assessments.
Section 390 of the Energy Policy Act directs the Secretaries of the
Interior and Agriculture to use five new categorical exclusions (CEs)
for approving oil and gas activities conducted pursuant to the Mineral
Leasing Act. The Section 390 CEs are limited to oil and gas activities
in existing areas of development that have had previously approved
development analyzed through a NEPA process. The new activities must
either be within areas covered by a land use plan approved within the
previous five years, or with surface disturbance limited to 5 acres and
a previous project with a NEPA process decision. To date, the Forest
Service has used the Section 390 CEs to approve about 300 projects.
Section 339 of the FY2005 Consolidated Appropriations Act provided
the Secretary of Agriculture with authority to categorically exclude
decisions to authorize grazing and reissue grazing permits for 900
grazing allotments nationally through FY2007. The CEs may be used if:
(1) the decision continues current grazing management; (2) monitoring
indicates that current grazing management is meeting, or satisfactorily
moving toward, objectives in the land and resource management plan, as
determined by the Secretary; and (3) the decision is consistent with
agency policy concerning extraordinary circumstances. To date, the
Forest Service has used this category to authorize grazing on 272
allotments.
Title IV, section 404 of the Healthy Forests Restoration Act
provided the Secretaries of Agriculture and the Interior authority to
carry out applied silvicultural assessments and research treatments on
not more than 1,000 acres. The silvicultural assessments and research
treatments allowed under this category are not to be adjacent and are
subject to the extraordinary circumstances established by the agency.
To date, the Forest Service has used this category to approve 7
projects.
Use of Categorical Exclusions
The procedure by which the Forest Service identifies important
issues and determines the extent of analysis necessary for an informed
decision on a proposed action is termed scoping (40 CFR 1506.6).
Although the CEQ regulations require scoping for only EIS preparation,
the Forest Service has broadened the concept to apply to all proposed
actions, including those that would appear to be categorically excluded
(FSH 1909.15 30.3(3)).
In determining the scope of a proposed action, the responsible
official is required to consider the action's environmental effects,
including the direct, indirect and cumulative impacts (see 40 CFR
1508.25). Section 30.3(3) of FSH 1909.15 adds this consideration before
categorically excluding an action from documentation in an
environmental assessment or an environmental impact statement:
``Scoping is required on all proposed actions, including those
that would appear to be categorically excluded. If the
responsible official determines, based on scoping, that it is
uncertain whether the proposed action may have a significant
effect on the environment, prepare an EA. If the responsible
official determines, based on scoping, that the proposed action
may have a significant environmental effect, prepare an EIS.''
The Forest Service Manual provides direction to line officers that
the degree of the potential direct, indirect, and cumulative effects on
extraordinary circumstances must be considered when scoping a proposed
action that might be categorically excluded.
Scoping influences the appropriate level of documentation. After
the nature of the proposed action is determined, preliminary issues and
interested and affected agencies, organizations, and individuals are
identified and the extent of existing documentation determined, the
responsible official should have sufficient data to establish whether
the proposed action can be categorically excluded from further
documentation in an EIS or an EA.
In addition to scoping, notice is given to the public of all
upcoming proposals, including proposals that may be authorized with
CEs, and those which may undergo analysis and documentation in an EA
and EIS, through the use of a quarterly schedule of proposed actions.
The purpose of the schedule is to give the public an early informal
notice of projects of which they may have an interest (FSH 1909.15,
07).
In determining whether a categorical exclusion may be used, the
Forest Service applies a two prong test: (1) whether the proposed
action fits within an existing categorical exclusion, and (2) whether
there are any extraordinary circumstances that would preclude the
proposed action from qualifying to be categorically excluded (FSH
1909.15, 30.3).
In accordance with CEQ regulations, a federal agency's NEPA
procedures for categorical exclusions must provide for extraordinary
circumstances (40 CFR 1508.4). Extraordinary circumstances function to
identify the atypical situation or environmental setting where an
otherwise excluded action merits further analysis and documentation in
an EA or EIS.
The Forest Service NEPA procedures at FSH 1909.15, Chapter 30, list
the extraordinary circumstances in which a normally excluded action may
have a significant environmental effect. Extraordinary circumstances,
listed as resource conditions in the agency's handbook, that should be
considered in determining whether the proposed action warrants further
analysis and documentation in an EA or an EIS are:
a. Federally listed threatened or endangered species or designated
critical habitat, species proposed for Federal listing or proposed
critical habitat, or Forest Service sensitive species.
b. Flood plains, wetlands, or municipal watersheds.
c. Congressionally designated areas, such as wilderness,
wilderness study areas, or national recreation areas.
d. Inventoried roadless areas.
e. Research natural areas.
f. American Indians and Alaska Native religious or cultural sites.
g. Archaeological sites, or historic properties or areas.
Section 30.3 of the Forest Service Handbook also states, ``The mere
presence of one or more of these resource conditions does not preclude
use of a categorical exclusion. It is the degree of the potential
effect of a proposed action on these resource conditions that
determines whether extraordinary circumstances exist.''
Categorical exclusions are used to analyze a variety of projects
implemented by the Forest Service. There are 15 administratively
created and 7 legislated categories of actions for which a project or
case file and decision memo are required and 15 categories for which a
project or case file and decision memo are not required. The categories
for which a project or case file and decision memo are required include
trail construction and reconstruction, timber stand and/or wildlife
habitat improvement, hazardous fuels reduction, limited timber harvest,
authorization of grazing and approval of limited oil and gas
activities.
Currently, available data indicates that over the last two fiscal
years the agency has used categorical exclusions for roughly 80% of its
NEPA documentation (See Table 1). These percentages are similar to
those documented by the Congressional Research Service for categorical
exclusions used by the Federal Highway Administration in 2005.
[GRAPHIC] [TIFF OMITTED] 36475.001
.epsThe Government Accountability Office (GAO) produced a report in
2006 on the Forest Service's use of categorical exclusions for
vegetation management projects for calendar years 2003 through 2005.
The GAO examined the Forest Service's use of five specific types of
categorical exclusions, environmental assessments, and environmental
impact statements to approve vegetation management projects. The audit
included 155 national forests, representing 509 ranger districts.
During the study period categorical exclusions were used to approve
72% of the studied projects (2,187 projects); Environmental assessments
and environmental impact statements were used to approve 28% of the
studied projects (831 projects). The majority of the studied projects
were approved using categorical exclusions. The total acres treated
under decisions analyzed and documented under CEs was slightly less
than that treated under decisions analyzed and documented under
environmental assessments and environmental impact statements.
Categorical exclusions were used to approve 46% of the acreage
within the studied projects (2.9 million acres); Environmental
assessments and environmental impact statements were used to approve
54% of the acreage within the studied projects (3.4 million acres).
Recent court rulings on the Forest Service use of CEs have had a
significant impact on a range of management activities throughout the
country. Thousands of projects that we had found to have insignificant
environmental impacts are now subject to formal notice, comment and
appeal under the rules implementing the Appeals Reform Act, 36 CFR 215,
lengthening the time to conduct such activities, increasing their costs
and increasing the amount of information needed to document decisions.
The Forest Service is the only federal agency with a statutory
notice, comment, and appeal process applied to CEs. As a result of a
2005 District Court ruling, that legislated process now applies to
Forest Service categorical exclusions. On October 9, 2005, U.S.
District Judge for the Eastern District of California James Singleton
in Earth Island v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005);
affirmed in part Earth Island Institute v. Ruthenbeck, No. 05-16975
(9th Cir. amended opinion June 8, 2007) ruled that categorically
excluded timber sales and ten other categorically excluded activities
are subject to notice, comment, and appeal under the 36 CFR 215 rules.
As a result of that ruling, items usually covered under categorical
exclusions are now required to undergo notice, comment, and appeal; a
process that can take over 135 days to complete. Prior to this court
decision, categorical exclusions for vegetation management projects
were not subject to this additional time.
The procedural changes brought on by rulings in the Earth Island
Institute case have had important consequences on our ability to
conduct routine operations where there are no adverse effects to
extraordinary circumstances. Being able to move swiftly to accomplish
project work is essential to people whose livelihood is dependent upon
time-sensitive decision making. In fact, the risk of not taking action
may often exceed the environmental effects of project implementation.
The following are examples of projects analyzed and documented
using CEs prior to the Earth Island Institute case. These projects
illustrate the utility of CEs to accomplish a variety of objectives on
National Forests.
In response to the devastation of Hurricane Katrina, District
Rangers on the De Soto National Forest in Mississippi signed multiple
decision memos to remove hazardous trees from along roadsides, trails,
recreation areas, and boundary lines beginning in November 2005 and
continuing through 2007. The decisions included identification of
hazard trees by Forest Service employees and mitigation of hazards by
felling or follow-up tree disposal methods, to minimize health and
safety concerns for the public, as well as for the protection of both
Forest Service and privately owned resources.
Because Hurricane Katrina blew down trees and created heavy fuels
buildup, the forest revisited existing decisions using categorical
exclusions for prescribed fire and establishing fire control lines.
This facilitated a swift response to the threat of catastrophic
wildland fire and the unit's ability to quickly establish fuel breaks
in areas near the wildland urban interface.
Using categorical exclusions expedited the response to the
catastrophic impacts of Hurricane Katrina. They were instrumental in
providing for public safety and support of emergency response
operations. Although most of these activities took place in the middle
of a disaster, the Forest made every effort to keep the public informed
throughout the recovery effort.
Using categorical exclusions to analyze and document the
environmental effects enabled the forest to open 1304 miles of roads
for emergency support access and wildland fire suppression response.
Over 750 miles of fuel breaks were established to protect adjacent high
values at risk from a catastrophic wildland fire in the wildland urban
interface. Hazardous fuels were removed from developed recreation and
administrative sites. Developed recreation areas were reopened for
public use within 10 months after Hurricane Katrina landed. To date,
over 80 miles of trails are open for public use on the De Soto National
Forest as a result of decisions documented using CEs.
In southwest Utah, the rapidly growing community of New Harmony has
expanded along the boundaries of the Dixie National Forest (Dixie NF),
the Bureau of Land Management (BLM), and Zion National Park (Zion NP).
Many homes and subdivisions now border the heavily vegetated foothills
of the Pine Valley Mountains. Large wildland fires, such as the Sequoia
Fire (8,100 acres) in 2002 and the Harmon Creek Fire (493 acres) in
2000, and numerous small wildland fires have burned around New Harmony
and several of the outlying subdivisions. In the summer of 2003,
planning was initiated for the Dixie NF to extend and expand the fuel
break that was started during the 2002 Sequoia Fire. This would
strengthen the existing fuel break and link it to the Ash Creek Project
on BLM lands. The Dixie National Forest used the newly released Healthy
Forests Initiative Categorical Exclusion. Scoping letters were mailed
to 559 members of the public, government entities and interested
organizations. A decision memo was signed on the project in 2003 and
the fuels treatments were completed in 2004. On June 25, 2005, at 1:49
p.m., lightning ignited the Blue Spring fire south of New Harmony. It
grew over 5 days to 12,286 acres, ending in the backyards of Harmony
Heights. Dixie National Forest and BLM fuel treatments influenced the
movement of the fire, allowing firefighters to protect homes from
destruction. While the Blue Spring fire was by no means the largest
fire in southern Utah in 2005, it was significant in that the fuels
projects were dominant factors in the rate and direction of spread.
Homes were preserved because of the fuel breaks created under these
categorical exclusions.
Summary
In summary, CEs are part of full compliance with the National
Environmental Policy Act (NEPA). Categorical exclusions are not an
exclusion from NEPA. The CEQ regulations (40 CFR 1500 et seq.) for
implementing NEPA allowed agencies to include categorical exclusions in
agency NEPA procedures. Agencies are to reduce excessive paperwork and
delay by using categorical exclusions to define categories of actions
which do not individually or cumulatively have a significant effect on
the human environment and which are therefore exempt from requirements
to prepare an EA or EIS (Sec. 1500.4(p)) and (Sec. 1500.5(k)).
The Department considers categorical exclusions an integral tool
for NEPA compliance used to meet its mission of ``Caring for the Land
and Serving People.'' I would be happy to answer any questions you may
have.
______
Mr. Grijalva. Thank you, Mr. Under Secretary. Let me turn
now to Robin Nazzaro, Director of Natural Resources and
Environment, Government Accountability Office. Ms. Nazzaro.
STATEMENT OF ROBIN NAZZARO, DIRECTOR OF NATURAL RESOURCES AND
ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Nazzaro. Thank you, Mr. Chairman, and members of the
Subcommittee. I am pleased to be here today to discuss the
Forest Service's use of categorical exclusions to approve
vegetation management projects. The extent to which the Forest
Service approves vegetation management projects using
categorical exclusions has been controversial. Critics assert
that the Forest Service's use of them is an attempt to
circumvent NEPA by precluding the need to perform an EA or an
EIS. In contrast, supporters say that current analysis and
documentation requirements for an EA or EIS under NEPA are too
burdensome and that categorical exclusions allow the agency to
more efficiently implement vegetation management projects.
Prior to our report that was performed for this committee
and released last year, little was known, however, about the
Forest Service's use of vegetation management projects under
categorical exclusions because prior to 2005, the agency did
not maintain nationwide data on their use. My testimony today
summarizes the findings of that report from October 2006, which
discusses calendar years 2003 through 2005, how many vegetation
management projects the Forest Service approved, including
those approved using categorical exclusions, which categorical
exclusions the agency used to approve projects and, if
categorical exclusions are not being used in any Forest Service
ranger district, why.
To answer these questions we surveyed Forest Service
officials at all 155 national forests representing 509 ranger
districts. In summary, for calendar years 2003 through 2005,
the Forest Service approved 3,018 vegetation management
projects to treat about 6.3 million acres. Most of the
projects, about 72 percent, were approved using categorical
exclusions to treat slightly less than half of the acres, 2.9
million, while about 28 percent were approved using EA or EIS
to treat the remaining 3.4 million acres.
Even though more projects were approved using categorical
exclusions than using an EA or EIS, the total treatment acreage
was about the same because the relative size of projects
approved using categorical exclusions was much smaller than
those approved using an EA or an EIS. According to Forest
Service officials, the number and size of vegetation management
projects and the type of environmental analysis used varied
depending on the forest size, ecology and location.
Of the nearly 2,200 vegetation management projects approved
using categorical exclusions, half were approved using the
categorical exclusion for improving timber stands or wildlife
habitat. For the remaining projects, the Service primarily used
the exclusion for reducing hazardous fuels, followed by
salvaging dead or dying trees, conducting limited timber
harvests of live trees, and removing trees to control the
spread of insects or disease.
While the categorical exclusion for timber stand or
wildlife improvement was the most frequently used and included
the most treatment acres, about 2.4 million of the 2.9 million
acres included in all projects using categorical exclusions, 92
percent of the projects approved using this exclusion were
smaller than 5,000 acres.
Of the 509 ranger districts about 11 percent had not used
any of the five vegetation management categorical exclusions
during the three-year period of our study. The percentage of
ranger districts not using a specific categorical exclusion
varied by type of categorical exclusion however. Just over 90
percent of the 509 ranger districts had not used the exclusion
for removal of trees to control the spread of insects or
disease and about 32 percent had not used the exclusion to
improve timber stand or wildlife habitat.
Reasons cited for not using these exclusions varied by the
type of exclusion and ranger district. For example, not all
ranger districts have used the exclusion for removing insect
and disease infested trees because they did not have a
sufficient number of such trees. Because four of the five
categorical exclusions have only been available since 2003, it
is premature to draw any conclusions about trends in the Forest
Service's use of them to improve vegetation management
projects.
More information over a longer period of time will be
useful in addressing some of the controversial issues such as
whether categorical exclusions individually or cumulatively
have any significant effect on the environment or whether their
use is enabling more timely Forest Service vegetation
management. Thank you, Mr. Chairman. This concludes my
statement, and I would be pleased to answer any questions that
you or other members of the Committee may have.
[The prepared statement of Ms. Nazzaro follows:]
Statement of Robin M. Nazzaro, Director, Natural Resources and
Environment, U.S. Government Accountability Office
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the Forest Service's use
of categorical exclusions to approve vegetation management projects.
1 As you know, under the National Environmental Policy Act
of 1969 (NEPA), agencies evaluate the likely environmental effects of
proposed projects using an environmental assessment (EA) or a more
detailed environmental impact statement (EIS) if the projects are
likely to significantly affect the environment. However, if an agency
determines that the activities of a proposed project fall within a
category of activities that it has already determined have no
significant environmental impact, it may approve the project without an
EA or EIS--instead granting the project a categorical exclusion. As of
2003, the Forest Service had established one categorical exclusion for
vegetation management activities that covered certain activities
intended to improve timber stands or wildlife habitat. In 2003, it
added four more categorical exclusions to (1) reduce hazardous fuels,
(2) allow the limited harvest of live trees, (3) salvage dead or dying
trees, and (4) remove trees to control the spread of insects or
disease.
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\1\ Vegetation management projects may include, but are not limited
to, activities such as using prescribed burning, timber harvests, or
herbicides; or thinning trees, grass, weeds, or brush. Projects that
include these types of activities are intended to, among other things,
maintain healthy ecosystems, reduce the risk of catastrophic wildland
fire, and manage the nation's forests for multiple uses, such as
timber, recreation, and watershed management.
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The extent to which the Forest Service approves vegetation
management projects using categorical exclusions has been
controversial. Critics assert that the Forest Service's use of them is
an attempt to circumvent NEPA by precluding the need to perform an EA
or EIS. In contrast, supporters state that current analysis and
documentation requirements for an EA or EIS under NEPA are too
burdensome and that the categorical exclusions allow the agency to more
efficiently implement vegetation management projects. Little is known
about the Forest Service's use of the vegetation management categorical
exclusions because, prior to 2005, the agency did not maintain
nationwide data on their use.
My testimony today summarizes the findings of our October 2006
report that discusses for calendar years 2003 through 2005, how many
vegetation management projects the Forest Service approved, including
how many were approved using categorical exclusions; which categorical
exclusions the agency used; and the primary reasons why Forest Service
ranger districts are not using the categorical exclusions for
vegetation management. 2 This report is based on information
we collected from all 155 national forests representing 509 ranger
districts that manage National Forest System lands. It is also based on
interviews we conducted at 23 ranger districts at 12 national forest
units.
---------------------------------------------------------------------------
\2\ GAO, Forest Service: Use of Categorical Exclusions for
Vegetation Management Projects, Calendar Years 2003 through 2005, GAO-
07-99 (Washington, D.C.: Oct. 10, 2006).
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Summary
In summary, from calendar years 2003 through 2005, the Forest
Service approved 3,018 vegetation management projects to treat about
6.3 million acres. Most of these projects--about 72 percent--were
approved using categorical exclusions to treat slightly less than half
of the acres--2.9 million--while about 28 percent were approved using
an EA or EIS to treat the remaining 3.4 million acres. Even though more
projects were approved using categorical exclusions than using an EA or
EIS, the total treatment acreage was about the same because the
relative size of projects approved using categorical exclusions was
much smaller than those approved using an EA or EIS. According to
Forest Service officials, the number and size of vegetation management
projects and type of environmental analysis used varied depending upon
the forest's size, ecology, and location.
Of the nearly 2,200 vegetation management projects approved using
categorical exclusions during calendar years 2003 through 2005, the
Forest Service most frequently used the categorical exclusion for
improving timber stands or wildlife habitat. This categorical exclusion
accounted for half of the projects approved using the five vegetation
management categorical exclusions. For the remaining projects, the
Forest Service primarily used the categorical exclusion for reducing
hazardous fuels, followed by salvaging dead or dying trees, conducting
limited timber harvests of live trees, and removing trees to control
the spread of insects or disease. While the categorical exclusion for
timber stand or wildlife habitat improvement was the most frequently
used and included the most treatment acres--about 2.4 million of the
2.9 million acres included in all projects approved using categorical
exclusions--92 percent of the projects approved using this categorical
exclusion were smaller than 5,000 acres.
Of the 509 ranger districts, about 11 percent had not used any of
the five vegetation management categorical exclusions during the 3-year
period. The percentage of ranger districts not using a specific
categorical exclusion varied by type of categorical exclusion, however.
Just over 90 percent of the 509 ranger districts had not used the
categorical exclusion for the removal of trees to control the spread of
insects or disease and about 32 percent had not used the categorical
exclusion to improve timber stands or wildlife habitat. Reasons cited
for not using a categorical exclusion varied by type of categorical
exclusion and ranger district. For example, not all ranger districts
had used the categorical exclusion for removing insect- or disease-
infested trees because they did not have these types of trees or
because projects for removing such trees had already been or were to be
included in an EA or EIS.
Background
The Forest Service is responsible for managing over 192 million
acres of public lands--about 30 percent of all federal lands in the
United States. In carrying out its responsibilities, the Forest Service
traditionally has administered its programs through 9 regional offices,
155 national forests, 20 national grasslands, and several hundred
ranger districts.
Under NEPA, agencies such as the Forest Service generally evaluate
the likely effects of projects they propose using a relatively brief EA
or, if the action would be likely to significantly affect the
environment, a more detailed EIS. However, an agency may generally
exclude categories of actions from the requirement to prepare an EA or
EIS if it has determined that the actions do not individually or
cumulatively have a significant impact on the environment--these
categories are known as categorical exclusions. The agency may then
approve projects fitting within the relevant categories using these
predetermined categorical exclusions rather than carrying out project-
specific environmental analyses. For a project to be approved using a
categorical exclusion, the agency must determine whether any
extraordinary circumstances exist in which a normally excluded action
may have a significant effect. 3,4
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\3\ Resource conditions that should be considered in determining
whether extraordinary circumstances exist include, among other things,
the existence of federally listed threatened or endangered species or
designated critical habitat; congressionally designated wilderness
areas; inventoried roadless areas; and archaeological sites or historic
properties. The mere presence of one or more of these conditions does
not preclude the use of a categorical exclusion. Rather, it is the
degree of the potential effect of the proposed action on these
conditions that determines whether extraordinary circumstances exist.
\4\ The Forest Service may decide to prepare an EA for a project
that could qualify for approval using a categorical exclusion.
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As of 2003, the Forest Service had one categorical exclusion
available for use in approving certain vegetation management
activities--timber stand or wildlife habitat improvement--that has no
acreage limitation. 5 In 2003, after reviewing and
evaluating data on the environmental effects of vegetation management
projects that had been carried out by the national forests, the Forest
Service added four new vegetation management categorical exclusions,
each of which has acreage limitations: (1) hazardous fuels reduction
activities using prescribed fire, not to exceed 4,500 acres, and
mechanical methods such as thinning, not to exceed 1,000 acres; (2)
limited timber harvests of live trees, not to exceed 70 acres; (3)
salvage of dead or dying trees, not to exceed 250 acres; and (4)
removal of trees to control insects and disease, not to exceed 250
acres. 6 Appendix I provides more detailed information on
the Forest Service's five vegetation management categorical exclusions.
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\5\ In addition to the timber stand and wildlife habitat
improvement categorical exclusion, the Forest Service previously had a
categorical exclusion for timber sales of 250,000 board-feet or less of
merchantable wood products or 1 million board-feet of salvage. In 1999,
a federal district court issued a nationwide injunction barring use of
this categorical exclusion, holding that the agency did not provide any
rationale for why the specified magnitude of timber sales would not
have a significant effect on the environment. Heartwood v. U.S. Forest
Service, 73 F. Supp. 2d 962,975 (S.D. Ill. 1999), aff'd on other
grounds, 230 F. 3d 947 (7th Cir. 2000).
\6\ 68 Fed. Reg. 33814 (June 5, 2003) and 68 Fed. Reg. 44598 (July
29, 2003).
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Categorical Exclusions Were Used to Approve the Majority of Vegetation
Management Projects and about Half of the Total Treatment Acres
For calendar years 2003 through 2005, the Forest Service approved
about 3,000 vegetation management projects to treat about 6.3 million
acres. Of these projects, the Forest Service approved about 70 percent
using categorical exclusions and the remaining projects using an EA or
EIS. Although a majority of projects were approved using categorical
exclusions, these projects accounted for slightly less than half of the
total treatment acres because the size of these projects was much
smaller than those approved using an EA or EIS. Table 1 provides this
information in greater detail.
[GRAPHIC] [TIFF OMITTED] 36475.002
.epsOur analysis of the project data also revealed that the total
number of vegetation management projects approved, including those
approved using categorical exclusions, varied over the 3-year period,
while the number of treatment acres did not. As can be seen in figure
1, the number of projects approved using an EA or EIS varied little
over the 3-year period; however, the number of projects approved using
categorical exclusions increased from January 2003 through December
2004--primarily because of an increased use of the four new categorical
exclusions--and then decreased from January through December 2005.
Forest Service officials said that any number of factors could have
influenced the increase and subsequent decrease in the use of
categorical exclusions over the 3-year period. However, given the
relatively short period of time during which the four new categorical
exclusions were in use, these officials said that it was not possible
to speculate why the decrease had occurred.
[GRAPHIC] [TIFF OMITTED] 36475.003
.epsIn contrast, as can be seen in figure 2, an analysis of the
total treatment acres included in projects approved using an EA, EIS,
or a categorical exclusion did not reveal any notable change over the
3-year period.
[GRAPHIC] [TIFF OMITTED] 36475.004
.epsWe also found that the number of vegetation management projects
approved, including those approved using categorical exclusions, varied
by Forest Service region and forest. For example, of all vegetation
management projects approved nationwide, Region 8--the Southern
Region--accounted for about 29 percent, of which just over two-thirds
were approved using categorical exclusions. In contrast, Region 10--
Alaska--accounted for about 2 percent of all vegetation management
projects, about 60 percent of which were approved using categorical
exclusions. According to several Forest Service officials, the number
of vegetation management projects approved and the type of
environmental analysis used in approving them depended on the forest's
size, ecology, and location, as the following illustrates:
At the 1.8 million-acre Ouachita National Forest, a pine and
hickory forest in western Arkansas and southeastern Oklahoma, 163
projects were approved--119 using categorical exclusions. Forest
officials said the forest has a very active vegetation management
program because, among other things, the types of trees located on the
forest tend to regenerate quickly and are an excellent product for
milling. In addition, a large timber harvest infrastructure is located
nearby, which helps ensure that timber sale contracts can be readily
competed and awarded.
At the 28,000-acre Caribbean National Forest, a humid tropical
forest in Puerto Rico, no vegetation management projects were approved.
According to forest officials, the forest does not have an active
vegetation management program because the forest focuses more on
developing recreational sites and wildlife habitat and because the
island has no commercial infrastructure to support harvesting or
milling timber.
Appendix II provides detailed information on the number of
vegetation management projects and acres Forest Service regions
approved using different types of environmental analysis, for calendar
years 2003 through 2005.
The Categorical Exclusion for Improving Timber Stands or Wildlife
Habitat Was the Most Frequently Used
Of the almost 2,200 projects approved using categorical exclusions
over the 3-year period, the Forest Service most frequently used the
vegetation management categorical exclusion or wildlife habitat; this
categorical exclusion was used on half of the projects to treat about
2.4 million acres. As shown in table 2, for the remaining projects, the
Forest Service primarily used the categorical exclusion for reducing
hazardous fuels, followed by salvaging dead or dying trees, conducting
limited timber harvests of live trees, and removal of trees to control
the spread of insects or disease; in all, these categorical exclusions
were used to approve treatments on about a half-million acres. In
addition, the size of approved projects varied depending on the
categorical exclusion and any associated acreage limitation.
[GRAPHIC] [TIFF OMITTED] 36475.005
.epsAccording to Forest Service officials, a number of factors
influenced the reasons that the categorical exclusion for timber stand
or wildlife habitat improvement was used most frequently for the most
treatment acreage. For example, officials at the George Washington and
Jefferson National Forests and the Monongahela National Forest said
they relied on this categorical exclusion more than others because the
use of this category was consistent with their forest management plans,
which dictate the types of activities that may take place on their
forests. Santa Fe National Forest officials said that the forest has
relied heavily on this categorical exclusion because it does not have
an acreage limitation.
We also analyzed the categorical exclusion for timber stand or
wildlife habitat improvement to determine whether its lack of size
limitation resulted in projects that are larger than those undertaken
using the other four exclusions that have acreage limitations. We found
that almost 92 percent of the 1,054 projects 7 approved
using the categorical exclusion for timber stand or wildlife habitat
improvement were smaller than 5,000 acres--which is the approximate
size limitation of the categorical exclusion for hazardous fuels
reduction, the largest size limitation of the four more recent
categorical exclusions.
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\7\ Of the 1,094 projects approved using the categorical exclusion
to improve timber stands or wildlife habitat, 40 had no acreage or an
unknown acreage, according to the Forest Service.
---------------------------------------------------------------------------
Primary Reasons for Not Using Vegetation Management Categorical
Exclusions Varied Depending on the Ranger District and Type of
Categorical Exclusion
Eleven percent of the 509 ranger districts had not used any of the
five vegetation management categorical exclusions during the 3-year
period. The percentage of ranger districts that did not use specific
categorical exclusions ranged widely, from 91 percent not using the
category for the removal of trees to control the spread of insects or
disease, to 32 percent not using the category for timber stand or
wildlife habitat improvement. Ranger districts-- reasons for not using
a specific categorical exclusion also varied. The primary reason cited
for not using the categorical exclusion for the removal of trees to
control the spread of insects or disease was that their forests did not
have insect- or disease-infested trees and that projects that could
have fit the category had already been or were to be included in an EA
or EIS. Similarly, the primary reasons cited for not using the
categorical exclusion for timber stand or wildlife habitat improvement
were that projects that could have fit the category had already been or
were to be included in an EA or EIS and no projects were undertaken to
improve stands or wildlife habitat. Appendix III provides the number of
ranger districts not using one of the five vegetation management
categorical exclusions and primary reasons cited for not doing so.
Ranger district officials we interviewed offered some reasons for
why specific vegetation management categorical exclusions may not be
used. For example,
The Tonasket Ranger District, located in north-central Washington
State in the Okanogan-Wenatchee National Forests, had not used the
categorical exclusion for the removal of trees to control the spread of
insects or disease because, according to district officials, the 250-
acre size limitation of the categorical exclusion constrains its use.
The district has huge areas infested with beetles and mistletoe and, to
be effective, any salvage would have to cover a much larger area.
The Canyon Lakes Ranger District, located in north-central Colorado
in the Arapaho-Roosevelt National Forests, had not used the categorical
exclusion for timber stand or wildland habitat improvement. According
to ranger district officials, they have not used this categorical
exclusion because project planning typically consists of an EA or EIS.
These types of environmental analysis allow the district to better
evaluate multiple activities over large geographic areas using a single
analysis--which is more efficient than approving different projects
using several vegetation management categorical exclusions.
Concluding Comments
Because four of the five categorical exclusions have only been
available since 2003, it is premature to draw any conclusions about
trends in the Forest Service's use of them to approve vegetation
management projects. More information over a longer period of time will
be useful in addressing some of the controversial issues, such as
whether categorical exclusions, individually or cumulatively, have any
significant effect on the environment or whether their use is enabling
more timely Forest Service vegetation management.
Mr. Chairman, this concludes my prepared statement. I would be
pleased to answer any questions that you or other Members of the
Subcommittee may have at this time.
GAO Contacts and Staff Acknowledgements
For further information about this testimony, please contact me at
(202) 512-3841 or nazzaror@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this statement. David P. Bixler, Assistant Director; Rich
Johnson; Marcia Brouns McWreath; Matthew Reinhart; and Carol Herrnstadt
Shulman made key contributions to this statement.
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.eps__
Mr. Grijalva. Thank you very much. Let me now turn to
Deputy Attorney General, State of California, Mr. Harrison
Pollak. Sir.
STATEMENT OF HARRISON POLLAK, DEPUTY ATTORNEY GENERAL, STATE OF
CALIFORNIA
Mr. Pollak. Thank you, Chairman Grijalva, Ranking Member
Bishop and the Subcommittee members for this opportunity to
testify. My name is Harrison Pollak, and I am here as a
representative of California Attorney General Gerry Brown. The
Attorney General is deeply concerned over the Forest Service's
increased use of so-called management by exclusion. That is,
its reliance on categorical exclusions to exempt forest
management decisions of every size and scope from environmental
review.
There are 19 national forests in California that cover
roughly 20 percent of the total land area in the state. These
forests are of tremendous economic, recreational and
environmental value, and decisions about how to manage them
have far reaching implications. Because of this, for more than
20 years the Attorney General has participated extensively in
the forest management process to protect forest resources.
A consistent theme of our work in this area has been the
importance of providing the public with meaningful
opportunities to participate in forest planning which the
indiscriminate use of categorical exclusions threatens. Now for
purposes of this discussion there are really two types of
categorical exclusion. There are the project-level categorical
exclusions that apply to individual discrete projects, and then
there is the new program level categorical exclusion that would
apply to developing, revising and amending land and resource
management plans or LRMPs under the National Forest Management
Act or NFMA.
This program level categorical exclusion will take effect
if and when the Bush Administration's revamped 2005 NFMA
regulations go into effect. They have currently been enjoined
by a Court in California but the Forest Service intends to go
forward with issuing them once it addresses the issues the
Court identified.
Let me stop for a moment here, however, to point out that
we understand that categorical exclusions play a crucial role
in the Forest Service's operations. For instance, they can be
used to promptly respond to emergencies and to imminent hazards
when necessary, which everybody agrees is of the utmost
importance. Unfortunately, the Forest Service is abusing this
tool by applying categorical exclusions to increasing numbers
of project-level approvals and now by laying the groundwork to
fast track program level decisions using the new categorical
exclusion.
This latter development is especially troubling. The Forest
Service claims that under the new NFMA rules, LRMPs will have
no significant environmental impacts because the LRMPs are
merely strategic and aspirational but the Forest Service cannot
shirk its obligation to engage in meaningful project-level
planning by pretending that LRMPs make no difference. They do
make a difference, and they must be treated as such under NFMA
and under NEPA.
The Forest Service's increasing reliance on categorical
exclusions at the program and the project level not only is
illegal in many cases, it often will lead to poor planning
decisions and to increased controversy over decisions and how
they are implemented. I want to give two examples of how public
participation through the NEPA process can play an important
role and constructive role in forest planning.
The first example is the Sequoia National Forest at the
southern tip of the Sierra Nevada mountain range. In 1988, the
Forest Service completed the LRMP for the Sequoia National
Forest, and as was the practice then, it issued a final
environmental impact statement. There were comments, including
by the Attorney General, and an administrative appeal which
resulted in a mediated settlement agreement that identified
groves of old growth sequoia trees for additional protections.
The first President Bush issued a proclamation to protect
these groves, and in 2000 President Clinton further protected
them by establishing the Giant Sequoia National Monument.
Unfortunately, the present administration is trying to undo
this tremendous accomplishment. But my point is this, NEPA and
the Forest Service's commitment at that time to address public
concerns through the planning process gave us the spectacular
national treasure that the Sequoia National Monument has
become.
The second example of how the Forest Service and the public
stand to gain from public participation at the planning level
relates to a subject that is on all of our minds these days,
global warming. There is increasing evidence of a connection
between forests and climate change. Before long the Forest
Service will have to consider the implications of global
warming on forest management and of forest management on global
warming.
Public participation in the planning process is one way to
help the Forest Service do this. Indeed there is a perfect
opportunity to consider the implications of global warming at
the program level of forest planning instead of reserving this
complex issue for consideration with each individual project.
In conclusion, forest planning under NFMA and especially
program level planning through the development, revision and
amendment of LRMPs is precisely the type of government action
for which NEPA is best suited.
NEPA provides a mechanism for consideration of the likely
environmental impacts of far reaching decisions early in the
planning process. While the Attorney General understands that
the Forest Service will and indeed should continue to use
categorical exclusions where appropriate, the Attorney General
also urges the Forest Service to embrace environmental review
under NEPA instead of continuing to try to avoid it.
Returning to the title of this hearing, management by
exclusion is a poor management strategy. Thank you, and I am
prepared to answer any questions.
[The prepared statement of Mr. Pollak follows:]
Statement of Harrison M. Pollak, Deputy Attorney General, on behalf of
California Attorney General Edmund G. Brown, Jr.
I. Introduction
Thank you Chairman Grijalva, Ranking Member Bishop, and the
Committee Members for this opportunity to testify before the National
Parks, Forests and Public Lands Subcommittee at today's hearing,
entitled ``Management by Exclusion: The Forest Service Use of
Categorical Exclusions from NEPA.'' My name is Harrison Pollak, and I
am a Deputy Attorney General in the Office of the California Attorney
General. I am here as a representative of California Attorney General
Edmund G. Brown, Jr. I am because the Attorney General is deeply
concerned over the Forest Service's increased use of so-called
``Management by Exclusion'' that is, its reliance on categorical
exclusions to exempt forest management decisions of every size and
scope from environmental review.
My testimony today will focus on three points. First, I will
describe the immense importance of national forests to the People of
the great State of California, and why the California Attorney General
has taken a profound interest in national forest planning issues for
more than two decades. Second, I will explain why it is the Attorney
General's view that, while categorical exclusions are an important tool
for some aspects of forest planning, such as certain fire suppression
activities, the Forest Service has gone too far. Its broad use of
categorical exclusions to preclude meaningful public participation at
all levels of forest planning violates the letter and the spirit of the
National Environmental Policy Act (``NEPA'') and the National Forest
Management Act (``NFMA''). Finally, I will argue that eliminating the
type of public participation from the planning process that NEPA
guarantees will lead to poor planning and to increased controversy. I
will give two examples where public participation has made an important
difference in the past and where it can make a difference in the
future.
II. National Forests in California and the Attorney General's
Involvement in Forest Planning
It is hard to overstate the importance of national forests and how
they are managed to the People of California. The 19 national forests
in California cover roughly 20 million acres of land, or approximately
20 percent of the total land area in California. National forests
supply well over half of our water resources, and they form the
watershed of most major aqueducts and more than 2,400 reservoirs
throughout the State. National forests in California provide
recreational opportunities for hiking, camping, motorized travel,
hunting, skiing, and much more. More than 600 of the 800 species of
fish and wildlife in California inhabit the national forests, and
national forests are home to nearly 4,000 of the 6,500 native plants in
California.
The forests are of tremendous economic, recreational, and
environmental value to the State. In addition, decisions about how to
manage forests and other federal lands, of which there are
approximately 50 million acres in California, have effects far beyond
the forest boundaries. Water supplies for agriculture, industry, and
human consumption, water and air quality, fisheries, fire hazards, are
just a few examples of where forest management decisions make a
difference on the lives of the citizens of California and beyond.
Because of this, for more than twenty years the California Attorney
General has participated extensively in the forest management process
for national forests located in California. Our office has commented
on, and where necessary, challenged in court, forest plans and projects
in the Plumas, Sequoia, Tahoe, Modoc, Shasta-Trinity, and Lassen
National Forests, to name a few, in order to protect forest resources.
We also have taken a keen interest in broader planning issues. For
instance, most recently the California Attorney General commented on,
and then successfully challenged in court, the Forest Service's attempt
to rewrite and dilute the NFMA regulations without complying with the
Administrative Procedures Act (``APA''), NEPA, or the Endangered
Species Act (``ESA''). Citizens for Better Forestry v. United States
Department of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007). And
we presently are awaiting a ruling on a challenge to the Bush
administration's attempt to replace the 2001 Sierra Nevada Framework
Plan--which was the culmination of a decade-long consensus-building
process to develop an overarching management plan for the 11 national
forests in the Sierra Nevada--with its own version of the document that
guts basic wildlife, habitat and riparian protections, increases green
timber harvesting by more than four-fold, and authorizes fragmentation
of wildlife corridors that were a centerpiece of the 2001 Framework.
People v. United States Department of Agriculture, No. 05-CV-0211 DFL/
GGH (N.D. Cal.).
A consistent theme of the Attorney General's work in this area has
been the paramount importance of providing the public with an
opportunity to participate in the forest planning process. Eliminating
such opportunities, or rendering them meaningless by insulating
officials from having to respond meaningfully to issues that the public
identifies, deprives decision makers of critical information about the
scientific and social effects of management choices, and leads to
decisions that are contrary to the best science and that do not reflect
an appropriate balancing of interests. And as the actions mentioned
above demonstrate, the Forest Service's repeated attempts to eliminate
the public from the planning process lead to increased controversy and
to delays in the planning process.
This is not what Congress intended when it enacted NFMA in 1976, to
guarantee that ``land management planning and the formulation of
regulations to govern the planning process shall be accomplished with
improved opportunity for public participation at all levels.'' S. Rep.
No. 94-893, 94th Cong., 2d Sess, reprinted in 1976 U.S.C.C.A.N. 6693
(1976). Nor is it consistent with the primary purposes of NEPA, which
are ``to allow for informed public participation and informed decision
making.'' Earth Island Inst. v. United States Forest Service, 442 F.3d
1147, 1160 (9th Cir. 2006). That is why I am here today, on behalf of
Attorney General Brown, to testify against the Forest Service's
indiscriminate use of categorical exclusions in the forest planning
process.
III. The Legal Argument Against Management by Exclusion
A. The Forest Service's Issuance of New Project Categorical Exclusions
Beginning in 2003
It is beyond dispute that categorical exclusions from NEPA play a
crucial role in the Forest Service's ability to manage the 192 million
acres of federal lands in the United States that it oversees. Every
year the Forest Service makes thousands upon thousands of routine
decisions that, if required to undergo NEPA review in every case, would
bring the organization to a halt--from mowing the lawn at a picnic
area, to repairing trails and buildings, to temporarily closing roads,
and so on. Categorical exclusions also allow the Forest Service
promptly to respond to emergencies and to imminent hazards when
necessary. The Attorney General recognizes that categorical exclusions
are an appropriate and necessary part of the Forest Service's
management activities.
Unfortunately, the Forest Service is abusing this tool. Prior to
2003, the Forest Service had only one categorical exclusion for use in
approving projects that involved vegetation management activities,
namely, timber stand or wildlife habitat improvement projects of any
size that do not use herbicides or involve more than one mile of road
construction. See Forest Service, Environmental Policy and Procedures
Handbook (``Forest Service Handbook'') at Sec. 31.2(6). Then, in 2003,
the Forest Service introduced four new categorical exclusions for
vegetation management activities: 1) hazardous fuels reduction
activities using prescribed fire, not to exceed 4,500 acres, and
mechanical methods such as thinning, not to exceed 1,000 acres; 2)
limited logging of live trees, not to exceed 70 acres; 3) salvage of
dead or dying trees, not to exceed 250 acres; and 4) removal of trees
to control the spread of insects or disease, not to exceed 70 acres.
Id. at Sec. Sec. 31.2(10), (12), (13), (14). In addition, in 2003 the
Forest Service issued a categorical exclusion for post-fire
rehabilitation activities not to exceed 4,200 acres, which are defined
broadly to include various activities that take place in an area within
three years following a fire. Id. at Sec. 31.2 (11).
If these new categorical exclusions were used sparingly, there
would be no issue. But, as this Subcommittee is aware, the Government
Accountability Office (``GAO'') has reported that from 2003 to 2005,
the Forest Service used categorical exclusions for more 70 percent of
the 3,018 vegetation management projects that it approved during that
period. GAO Report No. 07-99, Use of Categorical Exclusions for
Vegetation Management Projects, Calendar Years 2003 through 2005 (Oct.
2006) at 12. These projects took place on more than 2.8 million acres
of land, or slightly less than half of the total treatment acres the
Forest Service approved from 2003 to 2005. Id. The Forest Service is
thus using categorical exclusions to remove the majority of project-
level management decisions about vegetation management activities from
public purview.
At the same time, the Forest Service is attempting to overhaul the
forest planning process to exclude program-level planning decisions
from NEPA review as well. Under NFMA, the Forest Service must develop
and maintain for each national forest unit a Land and Resource
Management Plan (``LRMP''). 16 U.S.C. Sec. 1604(a). Prior to 2005, the
NFMA regulations required the Forest Service to prepare an
environmental impact statement every time it developed or revised an
LRMP, and for amendments that resulted in a ``significant change'' to
the LRMP. 47 Fed. Reg. 43026, 43043-44 (Sep. 30, 1982) (final rule
adopting 1982 NFMA Rule, subsequently published at 36 Code Fed. Regs.
Sec. Sec. 219.10(b), (f), (g)). In 2005, however, the Forest Service
issued a revamped set of NFMA regulations. 70 Fed. Reg. 1023 (Jan 5,
2005) (``2005 NFMA Rule''). Under the 2005 NFMA Rule, ``[a]pproval of a
plan, plan amendment, or plan revision...will be done in accordance
with the Forest Service NEPA procedures and may be categorically
excluded from NEPA documentation under an appropriate category provided
in such procedures.'' 70 Fed. Reg. at 1056 (Sec. 219.4(b) (emphasis
added).) To accompany this dramatic loosening of the requirement to
prepare an environmental impact statement for program-level planning in
the LRMP, the Forest Service issued a new categorical exclusion that
excludes from NEPA review ``final decisions on proposals to develop,
amend, or revise land management plans,'' except under extraordinary
circumstances. 71 Fed. Reg. 75481 (Dec. 15, 2006); see also Forest
Service Handbook at Sec. Sec. 30.3, 31.2(16).
In March 2007, Judge Hamilton of the Northern District of
California enjoined the Forest Service from implementing the 2005 NFMA
Rule, after holding that it violated provisions of the APA, NEPA, and
the ESA when it promulgated the rule. Citizens for Better Forestry,
supra, 481 F. Supp. 2d at 1100. However, the Forest Service recently
announced that it will prepare an environmental impact statement for
the 2005 NFMA Rule by November 2007, which suggests that it still plans
to move forward with the new NFMA procedures. 72 Fed. Reg. 26775 (May
11, 2007).
Therefore, to be absolutely clear, if the Forest Service manages to
overcome the legal hurdles to implementing the 2005 NFMA Rule, then,
together with the new LRMP categorical exclusion that already is in
place, the Forest Service will be positioned to make program-level
forest management decisions without any environmental review or public
participation under NEPA, just as it has done for the majority of
individual forest management projects that it approves.
B. NEPA Requires the Forest Service to Take a ``Hard Look'' at the
Potential Environmental Impacts of Proposed Actions
NEPA is a procedural statute designed to ensure that federal
agencies taking major actions affecting the quality of the human
environment ``will not act on incomplete information, only to regret
its decision after it is too late.'' Marsh v. Oregon Natural Resources
Council, 490 U.S. 360, 371 (1989). It requires federal agencies to
consider and take a ``hard look'' at the environmental consequences of
their actions. 42 U.S.C. Sec. 4332(2)(c); Robertson v. Methow Valley
Citizen Council, 490 U.S. 332, 348 (1989). In enacting NEPA, Congress
mandated that it is the federal government's responsibility to ``use
all practicable means and measures'' to protect environmental,
historic, and cultural values. 42 U.S.C. Sec. 4331(b). An agency cannot
simply exempt itself from NEPA through its own regulations. Calvert
Cliffs Coordinating Committee, Inc. v. United States Atomic Energy
Committee, Inc., 449 F.2d 1109 (D.C. Dir. 1971).
Federal agencies have identified three types of activities
receiving varying levels of environmental review: (1) those that
require preparation of an environmental impact statement; (2) those for
which preparation of an environmental assessment is sufficient; and (3)
those that are categorically excluded from further analysis. A federal
agency may adopt a categorical exclusion for a ``category of actions
which do not individually or cumulatively have a significant effect on
the human environment.'' 40 Code Fed. Regs. Sec. 1508.4 (2001); Metcalf
v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000). By definition,
categorical exclusions are limited ``to situations where there is an
insignificant or minor effect on the environment.'' Alaska Center for
the Env't v. United States Forest Service, 189 F.3d 851, 859 (9th Cir.
1999).
C. Most Aspects of Forest Planning Require an Environmental Impact
Statement or an Environmental Assessment
It is pure fiction that developing and revising LRMPs will not
result in significant effects on the environment, as the Forest Service
claims in the 2005 NFMA Rule. The National Forest System covers 192
million acres of land across the nation. It includes forests of every
type, grasslands, rivers, streams, estuaries. Forests in the system are
home to abundant plant and animal species, many of which are listed as
sensitive or endangered. There are homes in national forests, and
forests surround or are adjacent to cities and towns. Developing and
amending the guidelines for how each forest unit will be managed may
have significant effects on the environment, which means that the
Forest Service cannot exclude program-level forest planning from NEPA.
Rather, it must take the requisite ``hard look'' at the environmental
consequences of the land-use decisions that it makes when it develops,
revises, or amends LRMPs.
At the same time, however, we recognize that some project-level
planning properly is exempt from NEPA review because there are no
significant impacts. Moreover, categorical exclusions are a critical
tool for the Forest Service to use in its efforts to efficiently and
effectively reduce the threat of catastrophic wildfires which, as the
fire burning right now near Lake Tahoe so painfully demonstrates, is of
the utmost importance. But the Forest Service went too far in 2003,
when it adopted four broad categorical exclusions under the guise of
fire suppression and restoration activities that allow it to do much
more than that. The way in which the exclusions are formulated make
them ripe for abuse, and the Attorney General is not aware of anything
the Forest Service has done in practice to limit their application. To
take one example, ``mechanical thinning'' is excluded from review for
projects that are less than 1,000 acres, but not for bigger projects.
Forest Service Handbook at Sec. 31.2(10). In practice, this means that
five separate 900-acre projects might not be reviewed, even though a
project that is 4,500 acres would require review. There is no rational
basis to conclude a priori that the five projects will have no impacts,
while the larger project may have impacts. Further, parsing projects
into smaller units avoids the analysis that NEPA requires of the
cumulative impacts that the individual projects, considered together,
will produce. See 40 Code Fed. Regs. Sec. 1508.27(b)(7) (agency must
consider whether a project has ``individually insignificant, but
cumulatively significant impacts'').
Therefore, while categorical exclusions are appropriate for some
types of forest management decisions--particularly at the individual
project level, and for projects narrowly designed to reduce the threat
of catastrophic wildfires--the Forest Service appears to view them in a
manner that is contrary to the law.
D. The Forest Service Cannot Avoid NEPA by Defining Land Management
Plans as Mere ``Strategic Documents''
The Forest Service attempts to exclude LRMPs from NEPA review by
casting them under the 2005 NFMA Rule as ``strategic in nature,''
instead of as ``prescriptive'' documents. 70 Fed. Reg. at 1024-25. In
the preamble to the final rule, the Forest Service claims that forest
management plans no longer will contain ``final decisions that approve
projects or activities except under extraordinary circumstances.'' Id.
By removing consideration and approval of specific projects from the
forest management plans, the Forest Service thus seeks to defer
environmental review to the project-planning stage. It explains that
``specific projects and activities will be proposed, approved, and
implemented depending on specific conditions and circumstances at the
time of implementation.'' 70 Fed. Reg. at 1025 (emphasis added). This
is echoed in the categorical exclusion that the Forest Service adopted
for LRMPs, where it reiterated that ``[l]and management plans developed
under the 2005 planning rule will typically be strategic and
aspirational.'' 71 Fed. Reg. 25,481, 75,483.
In attempting to redefine LRMPs as mere strategic and aspirational
documents, the Forest Service places undue reliance on two Supreme
Court decisions: Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726
(1998), and Norton v. Southern Utah Wilderness Alliance (``SUWA''), 542
U.S. 55 (2004). In both cases, the Supreme Court acknowledged the
strategic nature of management plans. But the Court did not suggest, as
the Forest Service maintains, that this removes management plans from
the ambit of NEPA review. To the contrary, in both cases it affirmed
that the federal agencies must comply with the procedural safeguards in
NEPA notwithstanding the strategic nature of management plans.
In Ohio Forestry, the Court considered the Sierra Club's legal
challenge to a land management plan that allegedly was biased in favor
of clear cutting. 523 U.S. 726 (1998). The Court held that the
challenge was not ripe, because the plan itself did not ``authorize the
cutting of any trees.'' Id. at 730. However, the Supreme Court
distinguished the Sierra Club's substantive challenge to elements of
the plan, which were not ripe, from a hypothetical NEPA challenge to
the procedure by which the Forest Service adopted the plan, which would
be ripe at soon as the plan is adopted: ``Hence a person with standing
who is injured by a failure to comply with the NEPA procedure may
complain of that failure at the time the failure takes place, for the
claim can never get riper.'' Id. at 737.
In SUWA, the Supreme Court considered an environmental alliance's
claim that the Bureau of Land Management (``BLM'') failed to comply
with certain provisions of its resource management plans, which are
similar to LRMPs, by allowing increased use of off-road vehicles in
certain parts of BLM lands. SUWA, 542 U.S. at 2377-78. The Court held
that resource management plans under the Federal Land Policy and
Management Act do not create a ``binding commitment'' to a particular
course of action, and it therefore refused to order BLM to take
specific actions otherwise contemplated in the plans. Id. at 69. The
Court described resource management plans as ``a preliminary step in
the overall process of managing public lands--`designed to guide and
control future management actions and the development of subsequent,
more detailed and limited scope plans for resources and uses.''' Id.,
quoting 43 Code Fed. Regs. Sec. 1601.0-2 (2003). However, as was the
case in Ohio Forestry, the Supreme Court recognized that adopting a
resource management plan triggers NEPA requirements. SUWA, 542 U.S. at
74, citing 43 Code Fed. Regs. Sec. 1601.0-6 (approval of a land use
plan is a major federal action requiring an environmental impact
statement). The Court simply declined to order BLM to supplement the
environmental impact statement in that instance. Id.
In short, neither of these cases provides a legal basis to exclude
program-level planning from NEPA review. The Forest Service is
incorrect to read these cases as supporting its efforts to turn LRMPs
into mere ``aspirational'' documents that make no firm commitments to a
specific course of action and that are exempt from NEPA. The Forest
Service cannot shirk its obligation to engage in meaningful project-
level planning by pretending that LRMPs have no environmental impacts.
In fact, Judge Hamilton rejected a similar argument when she
enjoined the Forest Service from implementing the 2005 NFMA Rule. In
Citizens for Better Forestry, the Forest Service claimed that the new
rules would not ``change the physical environment in any way;'' that
there would be ``no direct environmental impacts'' from adopting the
rule; and that ``it is only after new forest plans are adopted and
site-specific projects are proposed that effects will become
identifiable.'' 481 F. Supp. 2d at 1084. The court disagreed. It ruled
that NEPA does indeed contemplate environmental review at the program
level. Id. at 1085. ``[A]t least in this circuit, NEPA's requirement of
an [environmental impact statement] is not necessarily limited to site
or project-specific impacts or activities, as defendants suggest.'' Id.
at 1086 (emphasis in original). While the court acknowledged that
evaluating the environmental effects of programmatic actions could be
difficult, which is one of the Forest Service's principal reasons for
seeking to defer NEPA review to the project level, it concluded that
``this does not mean that environmental analysis regarding broad
programmatic changes cannot take place.'' Id. at 1089.
Moreover, in spite of the Forest Service's efforts in the 2005 NFMA
Rule to reduce LRMPs to vague and nonbinding statements of general
management objectives, Congress clearly intends for plans to be
substantive documents that guide specific land-use decisions in
national forests. See 16 U.S.C. Sec. 1604. NFMA's species-diversity
provision alone--which requires each LRMP to provide for diversity of
plant and animal communities--ensures that the Forest Service cannot
develop or revise an LRMP without environmental review. 16 U.S.C.
Sec. 1604(g)(3)(B). Even under the Forest Service's reworked
description of LRMPs in the 2005 NFMA Rule, each plan must define the
``desired conditions'' (i.e. the ``social, economic, and ecological
attributes toward which management of the land and resources of the
plan area is to be directed''); contain ``concise projections of
intended outcomes of projects and activities''; provide ``guidance for
the design of projects and activities''; evaluate the suitability of
areas for different uses, designate ``special areas'' such as
wilderness or wild and scenic river corridors; and more. 70 Fed. Reg.
at 1026-27. An LRMP that contains these elements is not merely
``strategic in nature,'' as the Forest Service claims. 70 Fed. Reg. at
1024. It still would embody substantive decisions that will guide
project-level decisions in the future and will thus have potentially
significant environmental impacts. See Ohio Forestry, 523 U.S. at 731
(``Despite the considerable legal distance between the adoption of the
Plan and the moment when a tree is cut, the Plan's promulgation
nonetheless makes logging more likely in that it is a logging
precondition; in its absence logging could not take place.'').
Therefore, the Forest Service cannot, consistent with its statutory
mandate, engage in do-nothing land management planning at the program
level. Because land management planning does have meaning, it may
affect the environment and therefore is not exempt from NEPA.
IV. The Forest Service Should Not Eliminate the Public From the Forest
Planning Process
The final point that I will make today is that the Forest Service's
increasing reliance on categorical exclusions not only is illegal in
many cases, it often will lead to poor planning decisions and increased
public controversy over decisions and how they are implemented. This is
a bad result for the Forest Service, for the environment, and for the
public that the Forest Service serves.
I want to give two examples of how public participation plays an
important role in forest planning. Of course, there are countless
examples from which to choose. I have selected these two to provide a
specific case where public participation has made a significant
difference in the past, and to illustrate the type of issue that the
Forest Service might not consider in the future if it eliminates NEPA
review from the forest planning process.
The first example is the Sequoia National Forest, which is at the
southern end of the Sierra Nevada mountain range. Sequoia takes its
name from the world's largest tree, which grows in more than 30 groves
on the forest's lower slopes. Its landscape is as spectacular as the
trees. With elevations ranging from 1,000 to 12,000 feet, visitors
experience soaring granite monoliths, glacier-torn canyons, roaring
whitewater, spectacular mountain views, and more. See http://
www.fs.fed.us/r5/sequoia/.
In 1988, the Forest Service completed its LRMP for the Sequoia
National Forest. As was the practice then, it issued a final
environmental impact statement at the same time. The California
Attorney General submitted comments on the LRMP and the environmental
impact statement, and, along with several other groups, filed an
administrative appeal in order to protect the area's unique and
irreplaceable resources. Following nearly two years of mediation, the
parties entered into a Mediated Settlement Agreement that resolved the
outstanding issues. As part of the mediation agreement, the Forest
Service identified groves of old-growth sequoia trees that warranted
additional protections. The first President Bush issued a proclamation
to afford these groves the necessary protections, Executive
Proclamation 6457 (July 14, 1992), and in 2000, President Clinton
further protected them by establishing the Giant Sequoia National
Monument. Executive Proclamation 7295 (Apr. 15, 2000).
If it were not for NEPA, and the Forest Service's commitment at
that time to address public concerns through the planning process, the
Sequoia National Forest would not be what it is today. Unfortunately,
under the current Bush administration, the Forest Service has attempted
to reverse the achievements of past administrations by allowing
clearcutting and logging of 100-year-old trees in the Monument and
adopting a Fire Plan that contemplates significant timber harvesting of
large trees under cover of ``fire management.'' Along with others, the
California Attorney General successfully challenged these actions in
court, but they are additional examples of how this administration's
efforts to remove the public from the planning process results in
delays and controversy, to the detriment of everybody. Lockyer v.
United States Forest Service, 465 F. Supp. 2d 942 (N.D. Cal. 2006).
The second example of how the Forest Service and the public stand
to lose from eliminating meaningful public participation from the
forest planning process relates to a subject that is on all of our
minds these days--global warming. Just last month, NASA's James Hansen
and other scientists published an article in which they warn that
``[r]ecent greenhouse gas emissions place the Earth perilously close to
dramatic climate change that could run out of our control, with great
dangers for humans and other creatures.'' James Hansen et al., Climate
Change and Trace Gases, Phil. Trans. R. Soc. A (published on-line May
18, 2007). There is increasing evidence that forests are affected by
climate change, and that forests can play an important role in efforts
to combat climate change and to respond to its effects. For instance,
in 2006 the Food and Agriculture Organization of the United Nations
(``FAO'') concluded that climate change and forests are intrinsically
linked:
On the one hand, changes in global climate are already
stressing forests through higher mean annual temperatures,
altered precipitation patterns and more frequent and extreme
weather events. At the same time, forests and the wood they
produce trap and store carbon dioxide, playing a major role in
mitigating climate change. And on the flip side of the coin,
when destroyed or over-harvested and burned, forests can become
sources of the greenhouse gas, carbon dioxide.
FAO, Forests and Climate Change, www.fao.org/newsroom/en/focus/
2006/1000247/index.html (March 27, 2006). Similarly, in a report by the
Pew Center on Global Climate Change, the authors posit that forest
location, composition, and productivity will be altered by changes in
temperature and precipitation, that changes in forest disturbance
regimes, such as fire or disease, could further affect the future of
U.S. forests and the market for forest products, and that there may be
adverse economic effects on some regions, and positive impacts on other
regions. Pew Center on Global Climate Change, Forests & Global Climate
Change: Potential Impacts on U.S. Forest Resources, www.pewclimate.org/
global-warming-in-depth/all_reports/forests_ and _climate_change/ (Feb.
2003).
It is thus becoming increasingly clear that the Forest Service must
consider the implications of global warming on forest management, and
forest management on global warming, as it plans for the future. Public
participation in the planning process is one way to ensure that the
Forest Service does so, while making available to the Forest Service
the increasing body of scientific information about the causes and
effects of global warming as they relate to forests. Moreover, if the
Forest Service considers global warming issues at the program level,
then there will be fewer delays caused by having to address it on blank
slate each time the agency approves an individual project.
In sum, as occurred when the Forest Service developed the LRMP for
the Sequoia National Forest, and as should occur in the future as the
Forest Service grapples with how to address the nexus between forest
management and global warming, NEPA affords the public an opportunity
to raise important issues and to provide useful information at a time
when the Forest Service can incorporate such information into its
planning decisions. NEPA also requires accountability on the agency's
part that environmental considerations play a role in its decision
making. The Attorney General urges the Forest Service to embrace NEPA
rather than continue to try to avoid it.
V. Conclusion
Forest planning under NFMA, and especially program-level planning
through the development, revision, and amendment of LRMPs, is the type
of government action for which NEPA perhaps works best. NEPA provides a
mechanism for informed and adequate consideration of the likely
environmental impacts of decisions early in the planning process. This,
in turn, leads to better decision making and to less controversy and
more efficient implementation in the long run. For this reason, while
the California Attorney General understands that the Forest Service
will, and should, continue to use categorical exclusions where
appropriate, the Attorney General opposes the Forest Service's efforts
over the past several years to exclude critical program-level and
project-level decisions from the purview of NEPA. Referring back to the
title of this hearing, ``Management by Exclusion'' is a poor management
strategy.
______
Mr. Grijalva. Thank you. Let me begin with the first round
of questions. Let me begin with the last witness if I may, Mr.
Pollak. Under Secretary Rey has argued that the Forest Service
use of categorical exclusions, including the new categorical
exclusions implemented by this administration are an integral
tool for their NEPA compliance. Do you find that statement
accurate?
Mr. Pollak. I do find it accurate when used in the right
circumstances. First of all, I agree with the witness that
categorical exclusions are part of NEPA, and so using a
categorical exclusion does not mean that the Forest Service is
not complying with NEPA if the exclusion is used appropriately,
and a categorical exclusion under NEPA can only be used if
there are going to be no environmental impacts from the project
including cumulative impacts, and so to use categorical
exclusions even for smaller projects on such a wide scale and
broad basis where you're approving the majority of projects
without looking at the cumulative impacts as an environmental
assessment or environmental impact statement would require,
that is not consistent with NEPA, and that is what Courts are
finding increasingly.
It is interesting. I mentioned how the Forest Service's
2005 NFMA rules have been enjoined. One of the reasons they
were enjoined is because the Court found the Forest Service
invoked a categorical exclusion to pass those rules, which
completely revamped the forest management process for complying
with NFMA. In that case, the Forest Service argued to the
United States District Court that the NFMA rules would have no
impacts on the environment. No direct or indirect impacts.
Therefore, a categorical exclusion was appropriate.
The District Court disagreed and said, even the regulations
for explaining how to do an LRMP can have indirect impacts on
the forest and therefore NEPA compliance is required, and so
this idea that something that is even closer to the ground
level which is the LRMP itself could be categorically excluded,
I disagree with that.
Mr. Grijalva. Thank you. I do think that it is an irony
that the Federal Court found the Forest Service planning rule
itself to be in noncompliance with NEPA. Let me turn to Ms.
Nazzaro. Of the five types of categorical exclusions for Forest
Service vegetation management projects your study evaluated,
how many of those were in place prior to the Bush
Administration taking office in 2000?
Ms. Nazzaro. There was only one categorical exclusion that
was in place prior to June 2003, and that was the categorical
exclusion for reducing hazardous fuels. Excuse me. For
improving timber stands and wildlife habitat. After June 2003,
there were four additional ones added that addressed vegetation
management.
Mr. Grijalva. So the conclusion can be that under this
administration there has been a considerable expansion of the
availability of categorical exclusions for the Forest Service
vegetation management plans expanded?
Ms. Nazzaro. That would be correct but actually if you look
at our report, the actual use of them declined during 2005. Now
our study only went from 2003 to 2005, and it is such a short
period of time we are cautioning about any trend data or making
any conclusions based on that. The agency is collecting its own
data now, and it would probably be worthwhile to get updated
data from them before making any longer term assessment as to
the use of these particular categorical exclusions for
vegetation management.
Mr. Grijalva. OK. Just one more quick question, and then I
will turn to the Ranking Member. Mr. Under Secretary, in total
how many NEPA categorical exclusions have been approved by the
Forest Service for plans and projects during your tenure?
Mr. Rey. Well only one for plans, and I think we have
approved an additional four for projects, and of course
Congress has approved four during my tenure for projects as
well, and that is actually not the majority of categorical
exclusions that the agency operates under. So I have been
relatively lax compared to my predecessors in approving new
categorical exclusions.
Mr. Grijalva. With that, my time is up, and I will reserve
some questions for the second round. Mr. Bishop?
Mr. Bishop. My job is still to be here through the entire
thing, and since my colleagues have to go, I would like to
either start or yield to our newest member of this particular
subcommittee and then work our way up from our side if that is
OK.
Mr. Grijalva. Mr. McCarthy.
Mr. McCarthy. Thank you, Mr. Bishop. I guess my first one I
will go to my home state of California, Harrison. I apologize.
I served in the state assembly. I just left, and I am new here,
and I have not been able to meet you yet. Are you new when the
new Attorney General came in?
Mr. Pollak. No. I came in under Attorney General Lockyer
about six years ago. I am a Deputy Attorney General in the
public rights division, and I serve in Oakland.
Mr. McCarthy. OK. I just have a couple of questions, and
the Attorney General Office seems to be kind of busy. It is my
understanding that the Attorney General's Office to the State
of California sued the Forest Service over the development and
implementation of the Giant Sequoia that you talked about, fire
management plan. It was also my understanding that the Forest
Service had the support of the California State Resources
Agency and CalFire for implementation of this plan.
I also understand that as a result of lawsuit that the fire
management plan was withdrawn. My question to you and my
concern to you especially with what is going on in Lake Tahoe
because the fire management plan being withdrawn potentially
leading to situations like Lake Tahoe, before you file these,
do you consult with your sister agencies?
Mr. Pollak. Yes, we do.
Mr. McCarthy. You consulted with Cal State Resources prior
to filing?
Mr. Pollak. Before filing litigation?
Mr. McCarthy. Yes.
Mr. Pollak. Yes, we do.
Mr. McCarthy. And you did on that one as well?
Mr. Pollak. Our office represents those agencies, and so
whether my section spoke to somebody in the agency or spoke to
somebody in our office that represents the agency, I am not
sure, but we certainly do consult.
Mr. McCarthy. Because I am only concerned because it had
the support of Cal State Resources, CalFire and if you said you
consulted with them, you still moved forward with the lawsuit,
I am just wondering how that works.
Mr. Pollak. Yes. And that is a very good point, and let me
address this now especially you know you have this fire raging
in Tahoe right now. It is a tragedy, and I think everybody on
all sides of this issue would agree that the Forest Service
should do what it can to avoid that type of tragedy.
Now by filing a lawsuit challenging a fire plan,
challenging a resource management plan, challenging a specific
project because it does not comply with the applicable
procedures certainly does not mean that the Attorney General is
pro fire or thinks that anything that can be done to reduce the
risk of fire should not be done.
Mr. McCarthy. Well I would never make that argument that he
was pro fire but your actions resulted in the fire management
plan being withdrawn. So if you look at the homeowners, you
look at the neighbors, you look at the residents, I mean
actions created other actions, and if we have California sister
agencies that were working on the fire plan, supported the fire
plan, you have met with them, and then you went forward with
the lawsuit that pulled the whole fire plan away, to me that
has implications and actually problems in the future.
Mr. Pollak. Well there are strategies for combatting fires
that would be in a fire plan that state agencies would agree
with, would use, that the Attorney General certainly has no
objection or problem with specific strategies. Our issue is
with the planning process saying that when you develop a fire
plan, you need to look at the long-range implications.
You need to involve the public. You need to have public
disclosure. It is the procedure to make sure that all different
strategies are considered, and I would say that the state
agencies would agree that wise planning in advance is the best
type of fire management you can do.
Mr. McCarthy. Well I would agree with you there, and if
this California State Resources Agency and CalFire supported
the plan, I am sure they had those same questions. I am just
wondering when you meet with them do you ask them: Did they
look at that? Did they ask that? Because I do not see dealing
with the agencies that I have Cal State Resources just does not
sit there and approve them. They have those same tough
questions, and I am just wondering if they have been along on
this program.
And let me just follow up with a couple of others because I
am trying to find out if there is a pattern here, and if you do
consult with them, do you listen in the consultation before you
go forward because there are implications? Did your office file
suit challenging the state petitions rule for the roadless
areas? The ruling invalidated the state petition rule and
precluded the Governor from applying under the rule and seeking
a California specific roadless rule.
Mr. Pollak. Yes, we were part of that litigation.
Mr. McCarthy. OK. Prior to the litigation--and this is what
I am trying to come to--when you consult with the sister
agencies that you said you have, because there are other
agencies in California working forward, what is the
consultation? What are the questions you are asking? Are there
answers you are getting back that make you go forward or are
there not?
Mr. Pollak. Well I personally have not been part of those
consultations. What I can say though is that the Attorney
General, as the attorney for the different agencies, would not
take any action that is adverse to those agencies' interests.
Mr. Rey. Mr. McCarthy, if I could offer an observation. I
think Mr. Pollak has as much of an argument with Governor
Schwarzenegger and his sister agencies as he does with me
because there are several instances where we have been
cooperating with the Governor's office and the resource
agencies on projects that the Attorney General's Office is
suing us on. But hey, if I had to choose between picking a
fight with a shrimp like me and the terminator, I know what I
would do. Look at that. There is nothing there.
Mr. McCarthy. Well I mean I will tell you this because----
Mr. Bishop. Mr. McCarthy.
Mr. Grijalva. Second round. The time is up at this point.
Mr. McCarthy. I apologize, Mr. Chairman. I yield back what
time I do not have.
Mr. Grijalva. What time you already took. OK. Mr. Lamborn.
Mr. Lamborn. Thank you, Mr. Chairman. First I have a
comment and then a couple of questions. Could you start the
time over again? First of all a comment and then a couple of
questions. People in Colorado were traumatized by the 2001
Hayman fires. In Colorado Springs, which is not out in the
forest but is an urban setting, some people were evacuated
because of the fire coming so close to the city limits.
I had ashes falling on my own house, and the feeling of
many people after all that happened because it came out that
suppression of fires through management of clearing underbrush,
getting rid of dead timber, things like that was frequently
blocked by the actions of environmental groups by filing
lawsuits and things like that. Many, many, many people drew the
conclusion that the spread of those wildfires was caused by
environmental groups, and that is the conclusion that lingers
today in many people's minds, and I know that some people would
obviously disagree with that but that is the conclusion, and
that is a concern I have. You know, how do we get to that
point?
And so one question I have for you, Mr. Rey, do you think
it is good policy that before individuals or organizations can
file appeals to an analysis that your department has rendered
that they be involved in the negotiation process up to that
point?
Mr. Rey. They uniformly are involved in the negotiation
process up to that point or they do not thereafter have
standing to file an appeal. Sometimes the negotiation process
does not produce a consensus result, and then they do have the
right for an administrative appeal and subsequently judicial
review. I, for one, will not ascribe the fire situation to the
work of environmentalists. I would more broadly say that the
fire situation we face is a lack of consensus on what to do
about it and how fast to move.
Last week I was before this subcommittee talking about the
fire situation and talking about the progress that we have made
in accelerating the rate of fuels treatment. Much of that
progress is because of the tools that we have developed under
NEPA to use categorical exclusions in limited cases to do that
work more quickly.
Congress is going to have to decide if that is not right
what your priorities are but I think that is the balancing act
that we face, and we do not always reach consensus on it, and
so we are appealed, and we are litigated but we win the
majority of lawsuits, roughly two-thirds. It just takes a lot
of time to get there, and time is not our ally in terms of this
fire situation.
Mr. Lamborn. And Mr. Rey, how much money would you say it
costs when you had to go through such an appeal? Like you
stated that briefly earlier but could you repeat that?
Mr. Rey. The analytical costs of preparing the documents
are an average or a median of $50,000 for a CE, categorical
exclusion such as that. That is about $50,000 worth of work
there. Two hundred thousand dollars for an environment
assessment, which is the next more complex analysis. The record
for those is much larger, and about $1 million on the average
for an environmental impact statement which usually has a
record that is longer than the median height of a Forest
Service employee standing next to the administrative record
stacked up on itself.
Now those costs are exclusive of appeals and litigation.
Once you add appeals, then you are adding in each case to that
base cost. So if a project that is covered under a categorical
exclusion is appealed and thereafter litigated, you are
probably adding several hundred thousand dollars to several
million dollars depending on how far the litigation goes to the
base cost.
Mr. Lamborn. And how much time will that add to the entire
process?
Mr. Rey. The appeals process usually adds 90 to 120 days.
Litigation will add years.
Mr. Lamborn. Thank you very much.
Mr. Grijalva. Mr. Sali.
Mr. Sali. Thank you, Mr. Chairman. Mr. Pollak, going back
to this discussion about your agency suing after consulting
with the Cal State Resources and Calfire, was it the position
of your office that the Attorney General's Office knew more
about fire management than the other two agencies?
Mr. Pollak. No. Our position is that there are processes in
place to involve the public and scientists in decisions about
fire management. Our agency certainly does not claim that we
have the expertise that needs to go into those decisions. What
we do claim though is that the Forest Service needs to make
processes available to take advantage of that expertise.
Mr. Sali. Would it be fair to say then that your office
believes that other issues that may be involved are more
important than fire planning? Would that be correct?
Mr. Pollak. I am not sure what you mean by that.
Mr. Sali. Well, if you have the Cal State Resources and
CalFire and you have agreed that they have more expertise at
fire planning, and they come up with a result that you disagree
with and you sue on the implementation of the plan, your office
does, obviously you are putting something else that is at stake
above fire planning.
Mr. Pollak. Well, no, I disagree. As the Under Secretary
just explained, there is a lack of consensus on what is the
most effective way to fight fires, to reduce the risk of
catastrophic fires. It is precisely because of this lack of
consensus that our office feels it is critical to allow the
different knowledge and opinions and priorities to come to the
table and to be part of the process.
Mr. Sali. And so you think that your office does know more
about fire planning than these other two agencies, and that is
why you sued?
Mr. Pollak. Well not about what the specific strategies
should be but our office certainly agrees with the philosophies
and the motives of NEPA that guarantee this type of process
goes into planning. We are just trying to enforce the law that
is out there. We are not making it.
Mr. Sali. And so your position in front of this committee
today is that all of the other aspects of the NEPA process
should have a higher priority than fire planning?
Mr. Pollak. No.
Mr. Sali. Is that correct?
Mr. Pollak. No. Fire planning is part of the NEPA. Rather,
NEPA is a procedure to make sure that every agency decision
including decisions about fighting fires is made with public
accountability and with open access by the public, and so we
are not saying that NEPA is more important than fire planning.
We are saying that NEPA is an integral part of how fire
planning decisions are made.
Mr. Sali. OK. But you agreed with me that Cal State
Resources and CalFire has more expertise about fire planning
than your office, right? You still agree with that?
Mr. Pollak. Yes.
Mr. Sali. OK. They said, we want to go ahead and implement
this plan. Your office said, no. So either you believe that
your office has more expertise in fire planning or you believe
that the other aspects of NEPA should have a higher priority
than fire planning, and it has to be one of those two, does it
not?
Mr. Pollak. No, I disagree, and here is why I disagree. The
Cal State agencies that are responsible for maintaining
California state lands and fighting forest fires and whatnot,
they want to do whatever is necessary, is the best strategy to
do that. Now just because you have a fire plan that says here
is the way we are going to reduce the threat of catastrophic
fires does not mean that appropriate procedures were used, and
let me give an example.
I mean everybody agrees that it is important to reduce the
threat of catastrophic fires. However, what the Forest Service
does is it often uses that to approve of projects that are not
necessarily directed toward that important outcome. For
example, with the Sierra Nevada framework. That is----
Mr. Sali. So you would be saying that Cal State Resources
and CalFire have another agenda besides fire planning?
Mr. Pollak. No, I am not saying that. But I am saying in
some cases some of these categorical exclusions that are
supposed to address fire threats are used for other purposes.
For example, in the Sierra Nevada framework, there you had the
Bush Administration change the framework to allow logging of
larger trees, 30-inch trees instead of 24-inch trees, under the
rubric of fire suppression.
Now in that case they did not use a categorical exclusion.
Because of the NEPA process in response to comments, the Forest
Service admitted that there was no relationship between
removing the larger trees and reducing the risk of fires.
Instead, this was a measure to allow the Service to raise
additional revenues that it could use to implement its various
works, and so all I am saying----
Mr. Sali. And was that the case with this plan that we are
talking about with Cal State Resources and CalFire? They have
an agenda like that as well?
Mr. Pollak. I do not know if that was their agenda.
Mr. Grijalva. Mr. Sali, we will continue the questions
second round. Thank you.
Mr. Sali. Thank you.
Mr. Grijalva. Ms. Herseth Sandlin, questions?
Ms. Herseth Sandlin. Yes. Thank you, Mr. Chairman. I want
to thank each of our witnesses on this panel today. Under
Secretary Rey, good to see you.
Mr. Rey. Good to see you.
Ms. Herseth Sandlin. You were in South Dakota. Eastern
South Dakota a week or so ago.
Mr. Rey. I was getting a grant for a conservation invasion
project to South Dakota State University. It is a very, very
fine institution.
Ms. Herseth Sandlin. Thank you for saying so. I agree, and
we are pleased to have received the grant there. As you know,
the issues that we have discussed in the past deal with western
South Dakota in the Black Hills National Forest. National
Forest Management Act requires each national forest system to
develop a plan revision every 15 years. The most recent
revision in South Dakota for the Black Hills National Forest
took over 15 years to complete. On average, do plan revision
periods typically exceed 15 years across the country?
Mr. Rey. I would say the average is between 10 and 15 years
under the old planning rule which is what we tried to modify to
bring planning to the point where we could complete a plan in
two to three years. Fifteen would be close to the outer edge
but not the most lengthy. On the Tongas National Forest, we are
still trying to complete a plan that began in 1979 and has been
interrupted by two successive acts of Congress as well as a
considerable amount of litigation. By the time we are done,
there will be Forest Service employees who will retire with a
full 30 years invested in the agency having worked on nothing
other than the Tongas land management plan.
Ms. Herseth Sandlin. Well let us talk about the 2005
planning rule which allows the Forest Service to categorically
exclude management plans from NEPA understanding that if the
average is 10 to 15 years and certainly our experience in South
Dakota has been a very frustrating one; however, if we are
going to categorically exclude management plans from NEPA,
arguing that the environmental analysis should occur at the
project level rather than the forest plan level, then what sort
of environmental analysis in your opinion should be used to
shape the forest planning process?
Mr. Rey. What we have proposed is an environmental
management system where instead of spending all of our time or
15 years in the case of South Dakota trying to develop a very
specific, predictive environmental impact statement that is
usually out-of-date by the time it is complete, that we do most
of our detailed project analysis at the project level for the
majority of projects, which will not qualify under a
categorical exclusion, and through a boosted monitoring program
evaluate the environmental impacts of those projects as they go
forward to make sure that we are properly evaluating the
cumulative effect of doing them on a case-by-case basis.
Now that is not the result of a narrow legal reading of the
current law. That approach is the result of two nine-to-nothing
Supreme Court decisions that defined what plans are and what
they are not, and there was a time just after the enactment of
the National Forest Management Act in 1976 when the agency had
great aspirations to make forest plans something that was worth
taking 10 to 15 years to produce because they would govern the
actions that subsequently occurred in every instance, and those
actions would get very little environmental review because they
were tiered to the environmental impact statement accompanying
the plan.
There is 30 years of litigation where the Courts have said,
you cannot do that. You cannot predict that far in the future.
You have to do more detailed analysis at the project level.
That was then followed by the two Supreme Court decisions that
said you should not even try to do that. That is not what plans
should be. They should be broader strategic aspirational
documents that provide a strategic framework for proceeding and
that provides a basis for evaluating individual projects
thereafter.
So the simple comparison is instead of sitting around in an
office for 15 years trying to anticipate and answer every
environmental question about what is going to happen over the
life of that plan, what we are saying is no, that is
impossible. Let us do a broad evaluation, and then let us
proceed prudently with each project to evaluate that project
and to monitor its implementation so we can see how it is going
and what we need to change.
Ms. Herseth Sandlin. Thank you for the elaboration. I may
want to follow up with you at some point in terms of just what
types of analysis and process and safeguards we have in place
to ensure that type of close monitoring and how we best assess
the cumulative impact but I certainly appreciate the efforts to
address the length of time it has been taking us, and in the
one case you described, I mean perhaps even having folks retire
with a basis of fast knowledge that went into the plan and
ultimately not being able to utilize that perhaps as
effectively as we would have otherwise in a more reasonable
timeframe to finish the plans. Thank you, Mr. Chairman.
Mr. Grijalva. Mr. Bishop.
Mr. Bishop. Thank you. Mr. Rey, what has been the effect of
the Earth Island decision on Forest Service efficiency?
Mr. Rey. The Earth Island decision has indicated for a
certain number of categorical exclusions that the requirements
of the Appeals Reform Act mandate that the Forest Service must
give an opportunity for notice and comment and administrative
appeal of individual activities conducted under those
particular categorical exclusions. What that has done is it has
extended the timeframe for doing projects under those
categorical exclusions anywhere from around 90 to 120 days to
something closer to eight months to a year.
Mr. Bishop. Can I also ask why has such a large percentage
of treated acreage or areas been analyzed as categorical
exclusions?
Mr. Rey. The reason is because we have focused most of our
efforts over the last several years on the wildland urban
interface developing projects that were approved by community
wildfire protection plans, and therefore the general consensus,
the close-in aspect to the wildland urban interface and the
fact that they fit within the framework of the categorical
exclusions has allowed us to use those categorical exclusions
more extensively.
As Ms. Nazzaro noted, we are starting now to see a dip in
that as we start to focus in areas where we have treated the
wildland urban interface into more remote areas, and those will
more often than not require an environmental assessment because
they are going to be larger, more projects or even
environmental impact statement.
Mr. Bishop. OK. I appreciate that. Ms. Nazzaro, as you have
done your summary--and I realize you said the data is not
sufficient, you need newer data to make an overall decision--
but as you have been reviewing the Forest Service use of
categorical exclusions, have you found anything definitive to
indicate that this agency is misusing its authority?
Ms. Nazzaro. The scope of our review was not to look at how
they were using the categorical exclusions from the same angle
that you are talking about. It was just flat out pulling
together numbers. What did they do? How did they use them? You
know for which ones. We did not actually look to see whether
they had been appropriately applied.
Mr. Bishop. All right.
Ms. Nazzaro. This was a first effort to just pull together
numbers on how frequently they were using them and which ones
were being used.
Mr. Bishop. OK. I realize your office is to go in after the
battle and count the bodies. So you have no definitive answer?
You are not willing to make any kind of definitive statement as
to use or misuse in any way then?
Ms. Nazzaro. There was only one area where we looked at the
actual use, and that was for the improving timber harvest and
wildlife habitat categorical exclusion. There is no acreage
limitation. So we went in to look to see how many acres had
been treated using that categorical exclusion, which could get
at an issue of had it been abused, and we found that on average
those were 5,000 acres or less, which is within the threshold
of the largest amount of land that can be treated is for
reducing hazardous fuels at 4,500 if it is a prescribed fire.
So we found it was consistent with that usage, but that was
probably the only area where we actually did some analysis of
data and how were they using it.
Mr. Bishop. thank you. I appreciate that. Mr. Pollak, I
understand that your office filed suit to challenge the state
petitions rules for roadless areas, and that the ruling
invalidated the state petition rule and precluded the Governor
from applying any rules in seeking a California-specific
roadless rule. Was that then in consultation working with the
Governor's office?
Mr. Pollak. Well again, our office represents the Governor,
and so we would not have filed it without having consulted with
the appropriate state agencies.
Mr. Bishop. And the Governor's office was in concurrence
with what you were doing?
Mr. Pollak. Well I do not know if we had direct
consultation with the Governor's office. We certainly would
have consulted with the agency directly responsible for----
Mr. Bishop. How about the people in the office? Did you
consult with them?
Mr. Pollak. Again----
Mr. Bishop. Or just the door?
Mr. Pollak.--I was not involved directly in that case so I
do not know the answer to that.
Mr. Bishop. Mr. Pollak, I have to tell you that I think you
are an extremely good lawyer. I have been impressed with your
testimony. If I was ever guilty of a felony, I think I would
want you to defend me.
Mr. Pollak. Thank you.
Mr. Bishop. But I would also want to say that especially in
view of the fact the California State Resource Agency and
CalFire were in support of the management plan of the Forest
Service and you still sued anyway, I think your agency is doing
a wonderful job in going through the process but maybe the
listening skills need to be honed a slight bit there, but I
appreciate you coming all the way from California to give this
testimony. I do not have any more questions of these three
witnesses.
Mr. Grijalva. Thank you. Mr. DeFazio.
Mr. DeFazio. Thank you, Mr. Chairman. To Secretary Rey, I
just want to better understand this new process for forest
planning. It does take too long to revise a plan but it seems
to me what you have proposed has become very polarizing. So
where is the meaningful public participation in this new forest
planning process that you envision?
Mr. Rey. Public participation in forest planning is not
fundamentally governed by NEPA. It is required by the National
Forest Management Act, and we have done nothing to change that.
The public is involved at every step of the forest planning
process. First during scoping, second during public comment and
the draft, second in a pre-final or post-final consultation,
third in an administrative appeal, and fourth, if they want,
after the first are not satisfactory, to seek judicial review.
So nothing has changed in that regard. The only appreciable
difference is instead of participating in the development of a
draft forest plan and a draft environmental impact statement
during the scoping and public comment process, they are only
participating in scoping and reviewing a draft forest plan. A
lot of people prefer that. A lot of the public who wants to be
involved says, I cannot hang in there for 15 years. You can
wear us down. You, the agency, can keep at it until we no
longer can have an appreciable effect on what you do because it
takes so long.
Mr. DeFazio. So how long do you envision under this new
process it would take to revise a forest plan?
Mr. Rey. Two to three years is our ideal.
Mr. DeFazio. OK. Now the forest plan, as developed, would
still--I mean, we are still going to broadly categorize parts
of the forest in terms of essentially what the public might
consider--sort of like zoning? This is an area which is
recreational, non-motorized recreational use. This is an area
for managed forest use. This is an area for wildlife. Those
sorts of things? How much more specific are you going to get?
Mr. Rey. I think the linchpin will be that to the extent in
the development of those strategic options we preclude future
options will do a more detailed environmental analysis. That
is, I think the trick is that we are not going to make any
judgments in the development of a forest plan that will
preclude somebody's opportunity to later say, you know more
detailed project level of analysis that we would like to
consider this alternative as opposed to that alternative.
Mr. DeFazio. But would there not have to be some sort of
exclusion? I mean you are going to say we envision this to be,
let us just say, a non-motorized recreation area. Do you want
to have some sort of certainty with the plan or would you say
the whole forest is open, and we are going to decide ranger
district by ranger district or subdistrict, you know, what
options?
Mr. Rey. We will probably do more detailed analysis to open
areas for off highway vehicle use as a project-level decision.
Mr. DeFazio. And then how do we get the cumulative impacts?
If these are all going to be then ultimately analyzed at the
project level, how are we going to relate those back to a
cumulative impact analysis?
Mr. Rey. You are going to do that through monitoring of how
the projects are framed, conducted, and their impacts
thereafter. The flaw in the 1982 regs in the current system
that we are operating under is that we do not have enough time
or money left to monitor the decisions that we ostensibly make
in those plans. So we spend 10 to 15 years trying to develop a
predictive plan that is going to predict what the outcomes are
going to be, and by the time we finally exhaust ourselves doing
that, two things occur.
One, those predictions are out-of-date because life goes on
while you are making plans, and the second thing is that we
have spent all of our money developing this large, extensive,
predictive analysis so we do not really have the energy or
money left to really monitor how the projects are being
conducted. Designed and conducted on the ground and what the
impacts really are.
Mr. DeFazio. There was some Federal money invested in
developing a new planning tool in Oregon. It became a big
controversy. It was never actually applied because the
controversy becomes what are the underlying criteria that you
know evaluate your outcomes, but the point is it established
something where a person could manipulate a small area of a
forest, change the use, and then you would then be able to
understand impacts throughout the forest or cumulatively in the
forest. Are we moving toward any sort of models where it is a
little more sort of user friendly for the public to rather than
just looking at all of these scattered pieces of paper and maps
with 17 overlays and these sorts of things?
Mr. Rey. It is our hope that these plans will be
substantially more user friendly in the sense that they will
provide the information necessary to talk about broad
strategies for what we want to do with the forest going forward
as well as an assessment of what the timeline for projects are
and what the monitoring program is going to be to the extent
that people want to participate in the monitoring.
We expect under the environmental management system to also
use a lot more multi-party monitoring so that instead of
limiting our interaction with the public to a theoretical
discussion over piles of paper on a table in a boardroom, we
actually involve them in monitoring some of the projects on the
ground so that they can see what the projects are really doing,
hopefully positively, and in some cases maybe in unexpected
ways that we did not anticipate that are not as positive as we
would like and indicate changes that need to be made in its
stream.
Mr. DeFazio. OK. Thank you, Mr. Chairman.
Mr. Grijalva. Thank you very much. I am going to have
questions, and then I will turn to any member that desires to
ask any follow-up questions with the panel. My questions are
directed to Mr. Pollak. Since you gained a great deal of
popularity from the members of the Committee, I thought I
should join in as well.
As we went through the discussions, some of the testimony,
and some of the questioning, simplistically part of the
rationale I am hearing for categorical exclusions is delay,
cost, blame and then that pesky, gets-in-the-way judicial
review and decisions as we go along. So let us talk about the
delay issue here for a second, counsel. You have mentioned in
your testimony that the Forest Service's repeated attempts to
eliminate the public from the planning process leads to more
delays, and if you could elaborate on that point.
Mr. Pollak. Sure. One way that the attempts to eliminate
the public from the process can lead to delays is a way that
has been brought up several times during this hearing,
litigation. I take issue with this idea that delays caused by
litigation need to be attributed to or blamed on the parties
that brought the litigation.
Now oftentimes litigation results in invalidating what the
Forest Service has done. That certainly has been the case
recently, and one of the reasons for that is that the Forest
Service has not properly involved the public in its processes,
and so with the 2005 NFMA rules, for example, if there had been
more public involvement and more response, substantive response
to the public's comments, you might not have had the situation
we have today where implementation of those rules has been
enjoined.
Mr. Grijalva. I do not have any other questions. Mr.
Bishop?
Mr. Rey. I would like a chance to respond to that because
that is not why the Court invalidated the 2005 rules.
Mr. Grijalva. I am done with my question, Mr. Under
Secretary. Thank you. Sir.
Mr. Bishop. Yes, Mr. Rey, would you like to respond to
that?
Mr. Rey. Yes. The 2005 rule was not invalidated as a
consequence of a lack of public participation. There was public
participation in the 2005 rule and a substantial amount of it
over the course of the development of that rule. The rule was
struck for procedural grounds under the Administrative
Procedures Act and the National Environmental Policy Act. We
think the decision was wrongly decided but you know that is the
way it goes, and we will remedy the flaws that the Court found.
Mr. Pollak did put words in my mouth that I would like to
reel back in because I said that there was a lack of consensus
at times associated with the value of fuels treatment projects,
and that is broadly speaking the case. It would be helpful to
our Federal-state relations, however, if there was better
consensus within the State of California agencies about the
best course of action because you know the Attorney General and
the Governor are separately elected under the California
constitution but they are not separately elected to represent
different Californias.
Mr. Bishop. I yield back.
Mr. Grijalva. Thank you very much, and let me thank the
panel, and invite the second panel to come forward. Thank you.
[Pause.]
Mr. Grijalva. Thank you very much. Let me welcome the
second panel and begin with Thomas Jensen. Sir.
STATEMENT OF THOMAS C. JENSEN, SONNENSCHEIN,
NATH & ROSENTHAL LLP, WASHINGTON, D.C.
Mr. Jensen. Good morning, Mr. Chairman, Congressman Bishop.
Thank you for letting me testify today. NEPA implementation
deserves----
Mr. Bishop. Sir, can you just talk into the mike? Yes,
good.
Mr. Jensen. NEPA implementation deserves this type of
careful oversight. The law is at the heart of how Federal
agencies make many of their decisions and, very importantly, it
is a key way that agencies engage the American public in the
work of governing. NEPA is a doorway. It gives Federal
decisionmakers a convenient way to bring citizens in to their
decisionmaking and to bring decisionmaking to the American
people.
If agencies use NEPA wisely, the law helps agencies make
efficient and intelligent decisions. If used correctly, NEPA
helps build public credibility for the agencies themselves,
their leaders and their programs. Categorical exclusions are an
important and entirely legitimate part of using NEPA wisely.
Not every Federal agency decision is consequential in terms of
impacts on the human environment.
Categorical exclusions are a way of making sure that
agencies can comply with NEPA without requiring anyone to waste
time pouring over things that do not matter. My written
testimony describes the systems of categorical exclusions used
by the Army, the FAA, Department of Energy and the U.S.
Marshall Service. These are all sound approaches to NEPA and
the use of categorical exclusions. They are readable. They make
sense, and they have either withstood or not attracted
litigation.
But as others have noted, categorical exclusions can be
abused and when they are, they become a way for agencies to
evade accountability, at least in the short term. Agencies and
administrations and their leaders always have reasons to wish
to do some things without accounting for them, at least at the
time, and these are weaknesses inherent in government and in
human beings, and it is an entirely nonpartisan problem.
The negative consequences eventually afflict every type of
stakeholder, though at any given moment, the burden tends to
follow the political whims. Unlawful categorical exclusions
come in three different forms, and my written testimony
provides specific examples of each. I think I have 11 cases
cited that cover a variety of agencies and circumstances.
The first problem occurs when an agency fails to establish
a rational, empirical basis for deciding that certain decisions
or actions do not have significant impacts on the human
environment, and the second typical case occurs when an agency
disregards empirical evidence of potentially significant
impacts from certain categories of actions, and usually this
means that the agency has decided to ignore the fact that
``significance'' as that term is used in NEPA, is really a
carefully nuanced term that requires agencies to consider as
evidence not just things like scale or cost or toxicity or
tonnage or other conventional metrics, but also context,
intensity and the public controversy surrounding a planned
action, and the third formulation is really not a flaw with
categorical exclusions but it is the case where agencies simply
disregard their own rules for using categorical exclusions.
I am a former seasonal employee of the Forest Service, and
I worked closely with excellent Forest Service officials in
many different contexts over the years, and I have great
respect for the complexity of the agency's mission. There is no
escaping the difficulty of providing stewardship for so many
places and things about which so many different people care so
deeply and in incompatible ways. The Courts and others on this
panel are busy with the debate whether the Forest Service's
recent approach to categorical exclusions is legal or not. I
want to make a different point and explore a different issue.
My thought is that the agency's approach to categorical
exclusions appears to have had the effect of further weakening
the credibility and the capability of the agency. This is of
real concern in an era when the very nature of our forest is
under dramatic pressure from climate change with associated
shifts in precipitation, disease, fire, species distribution
and human needs.
Right now is the time when the ability of the Forest
Service to lead with credibility and competence is vitally
important. Exclusion of the public from involvement in
decisions that the public cares about may provide short-term
benefits to the agency in the form of expediency, convenience
and perceived momentum, yet in our democracy, the approach has
all the hallmarks of tactical advantage gained at the expense
of strategic victory.
Healthy forests represent a goal for our nation that every
one of us can and should endorse, but the goal will give every
appearance of a potentially misleading slogan, so long as and
to the extent that the Forest Service operates in a way that
invites suspicion of its motives, conduct or impacts. Healthy
public forests will ultimately depend on healthy public
governance, and I fear that approach to public engagement that
creates the impression that the Forest Service is uninterested
in knowing or disclosing or discussing the impacts of its
actions will cripple the Service's ability to lead for a long
time to come. Thank you, Mr. Chairman.
[The prepared statement of Mr. Jensen follows:]
Statement of Thomas C. Jensen, Sonnenschein Nath & Rosenthal LLP
Mr. Chairman, Ranking Member Bishop, and members of the
Subcommittee, thank you for inviting me to testify today.
The subject of National Environmental Policy Act implementation
deserves careful continuing oversight from this Subcommittee and the
Congress as a whole. Since its enactment in 1969, NEPA has become a
fundamental feature of the architecture of American governance.
NEPA is at the heart of how federal agencies make decisions and
engage the American public in the work of governing.
There is simply nothing else like NEPA Other laws, like the
Administrative Procedure Act or the Freedom of Information Act, offer
the American people a window into their federal government. NEPA is
different. It isn't a window--it's a doorway. It provides federal
decision-makers with a convenient way to bring citizens into the
decision-making process and to bring decision-making to the American
people.
If agencies use NEPA wisely--and, as discussed below, many do--the
law helps agencies make efficient and intelligent decisions. Used
correctly, NEPA helps agencies build public credibility for the
agencies themselves, their leaders, and their programs.
Categorical exclusions are an important part of using NEPA wisely.
The purpose of categorical exclusions is to accommodate the reality
that not every federal agency decision is consequential in terms of
impacts on the human environment, and thus not every decision merits
incremental analysis and public engagement. There are thousands of
decisions made by agencies every week that do not have consequences of
a scale or nature that justify re-opening the NEPA door to re-engage
the public in the agency's decision-making. Categorical exclusions
boiled down to their simplest ingredient are a way of making sure that
NEPA compliance does not mean that agencies or members of the public
have to waste time poring over things that do not matter very much.
There are risks inherent in the use of categorical exclusions. They
can be abused. Intentional or not, an ill-founded categorical exclusion
is nothing more than a device by an agency to evade accountability for
the impacts on the human environment of decisions the agency chooses to
make.
Agencies and Administrations always have reasons to wish to do some
things without accounting for them. Individual agency officials have
biases and agendas that do not show well in daylight. These are
weaknesses inherent in government and human beings. They are entirely
non-partisan. The negative consequences eventually afflict every type
of stakeholder, though at any given moment the burden tends to follow
the political winds.
Federal officials who are unwilling to be honest, or allow their
agencies to be honest about the potential adverse impacts of actions
they intend to take are malignancies in our system of governance.
Unlawful categorical exclusions are symptoms of that underlying
malignancy; they tend to come in three different forms.
The first occurs when an agency fails to establish a rational,
empirical basis for deciding that certain decisions or actions do not
have a significant impact on the human environment. These cases
typically involve agencies that never take a serious look at the
potential impacts of a category of actions pursuant to NEPA and decide
simply to declare by fiat that the particular category of actions does
not involve significant impacts. We can call this situation ``Flying
Blind.''
The second typical case occurs when an agency disregards empirical
evidence of potentially significant impacts from certain categories of
actions. The problem usually is not that the agency pretends that
documented impacts don't exist. Instead, the agency usually
acknowledges the potential impacts, but decides that the impacts are
not ``significant'' as that term is used in NEPA, and thus do not
require further review under NEPA. Usually this means that the agency
has decided to ignore the fact that ``significance,'' as that term is
used in NEPA, is a carefully nuanced term that requires agencies to
consider as evidence not just geographic scale, toxicity, tonnage, cost
or other conventional metrics, but context, intensity, and the public
controversy surrounding a planned action. In other words, in this
second category of unlawful categorical exclusions, the agency will to
look past the controversial nature of planned action and simply declare
the impacts to be insignificant. We can call this situation ``Flying
with Eyes Shut.''
The third formulation occurs when an agency disregards its own
rules governing use of categorical exclusions. This probably deserves
the description of ``Trying to Fly Without Wings.''
It should not need saying that the federal government should not
fly blind or with its eyes shut or without wings. These are reckless,
unnecessary actions that manifest either incompetence in managing
agency business or a willful disregard for the core functions of
government.
I am a former seasonal employee of the Forest Service and have
worked closely with excellent Forest Service officials in many
different contexts over the years. I have great respect for the
complexity of the agency's mission and the inescapable difficulty that
confronts an agency responsible for stewardship of so many places and
things about which so many different people care so deeply.
Without taking a position on the legality of the Forest Service's
use of categorical exclusions in recent years, or the actual on-the-
ground impacts of the actions taken under those categorical exclusions,
I feel confident saying that at least in some respects, the agency's
approach to categorical exclusions appears to have had the effect of
further weakening the credibility and capability of the agency.
It is not evident how it has benefited the agency, or the agency's
mission, to adopt measures that reduce the level or quality of
engagement between the agency and the public that is interested in the
agency's work.
This ought to be of particular concern in an era when the very
nature of our forests is under dramatic pressure from climate change,
with associated shifts in precipitation, disease, fire, species
distribution, and human needs. Right now is a time when the ability of
the U.S. Forest Service to lead with credibility and competence is
vitally important.
NEPA is a tool that, used properly, brings federal agencies and the
public into a shared understanding about the consequences of agency
choices. It works to engage the public in the hard work of governance.
Many agencies and agency leaders use NEPA in exactly that way and reap
rewards in the form of better decisions, greater credibility and
enhanced deference from stakeholders.
Exclusion of the public from involvement in decisions that the
public cares about may provide short-term benefits to the agency in the
form of expediency, convenience, and perceived momentum. Yet, in our
democracy, the approach has all the hallmarks of tactical advantage
gained at the expense of strategic victory. Healthy forests represent a
goal for our nation that everyone of us can and should endorse. It
shouldn't be a heavy lift or require a hard sell. But that goal will
give every appearance of a misleading slogan so long as, and to the
extent that the Forest Service operates in a way that invites suspicion
of its motives, conduct, or impacts.
Healthy public forests will ultimately depend on healthy public
governance. I fear, however, that today's real or perceived procedural
infirmities, particularly those that create the impression that the
Forest Service is uninterested in knowing or disclosing or discussing
the impacts of its actions, will cripple the Forest Service's ability
to lead for a long time to come.
If the Congress and the Forest Service choose to look ahead to new
policy choices, it will be helpful to take guidance from concrete
examples of appropriate use of categorical exclusions shown in other
agency NEPA procedures and on cases where the federal courts have found
agency actions involving use of categorical exclusions to be unlawful.
Attachment A to this testimony describes the NEPA categorical exclusion
procedures of four different agencies. These approaches have generally
withstood legal challenges and show on their face carefully drawn
boundaries between those activities that may cause significant impacts
and those that are highly unlikely to do so. The second major section
of Attachment A also describes eleven recent federal court decisions
involving agencies using categorical exclusions in ways found to be
unlawful.
Thank you for this opportunity to testify. I would ask that my full
statement be included in the record. I would be happy to respond to
questions.
______
Attachment A--Testimony of Thomas C. Jensen
I. Appropriate Use of Categorical Exclusions: Four Examples
The National Environmental Policy Act (NEPA) provides a concise
definition for categorical exclusions:
``Categorical Exclusion'' means a category of actions which do
not individually or cumulatively have a significant effect on
the human environment and which have been found to have no such
effect in procedures adopted by a Federal agency in
implementation of these regulations...and for which, therefore,
neither an environmental assessment nor an environmental impact
statement is required.... Any procedures under this section
shall provide for extraordinary circumstances in which a
normally excluded action may have a significant environmental
effect. 1
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\1\ 40 C.F.R. Sec. 1508.4 (1978).
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Most federal agencies have incorporated use of categorical
exclusions into their policies and regulations governing NEPA
implementation. Examples from four very different agencies illustrate
how agencies have employed categorical exclusions appropriately.
a. Department of the Army
The Department of the Army's categorical exclusion guidelines are
especially relevant when considering the types of categorical
exclusions that have been used with such frequency by agencies under
the Bush Administration.
The guidelines for determining when it is appropriate to exempt an
action from EA or EIS analysis under a categorical exclusion require
that three main conditions are met: (1) the action has not been
segmented; (2) no exceptional circumstances exist; (c) one (or more)
categorical exclusion(s) encompasses the proposed action. 2
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\2\ 67 Fed. Reg. 61, Sec. 651.29(a). (March 29, 2002).
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The categorical exclusions approved by the Department of Army
include the following broad types of activities, each of which is
further described with detailed examples and restrictions:
(b) Administration/operation activities:
(1) Routine law and order activities performed by military/
military police and physical plant protection and security personnel,
and civilian natural resources and environmental law officers.
(2) Emergency or disaster assistance.
(3) Preparation of regulations, procedures, manuals, and other
guidance documents that implement, without substantive change, the
applicable HQDA or other federal agency regulations, procedures,
manuals, and other guidance documents that have been environmentally
evaluated (subject to previous NEPA review).
(4) Proposed activities and operations to be conducted in an
existing non-historic structure which are within the scope and
compatibility of the present functional use of the building, will not
result in a substantial increase in waste discharged to the
environment, will not result in substantially different waste
discharges from current or previous activities, and emissions will
remain within established permit limits, if any.
(5) Normal personnel, fiscal, and administrative activities
involving military and civilian personnel.
(6) Routinely conducted recreation and welfare activities not
involving off-road recreational vehicles.
(7) Deployment of military units on a temporary duty or training
basis where existing facilities are used for their intended purposes
consistent with the scope and size of existing mission.
(8) Preparation of administrative or personnel-related studies,
reports, or investigations.
(9) Approval of asbestos or lead-based paint management plans.
(10) Non-construction activities in support of other agencies/
organizations involving community participation projects and law
enforcement activities.
(11) Ceremonies, funerals, and concerts.
(12) Reductions and realignments of civilian and/or military
personnel that: fall below the thresholds for reportable actions as
prescribed by statute and do not involve related activities such as
construction, renovation, or demolition activities that would otherwise
require an EA or an EIS to implement.
(13) Actions affecting Army property that fall under another
federal agency's list of categorical exclusions when the other federal
agency is the lead agency, or joint actions on another federal agency's
property that fall under that agency's list of categorical exclusions.
(14) Relocation of personnel into existing federally-owned or
commercially-leased space, which does not involve a substantial change
in the supporting infrastructure.
(c) Construction and demolition:
(1) Construction of an addition to an existing structure or new
construction on a previously undisturbed site if the area to be
disturbed has no more than 5.0 cumulative acres of new surface
disturbance, not including construction of facilities for the
transportation, distribution, use, storage, treatment, and disposal of
solid waste, medical waste, and hazardous waste.
(2) Demolition of non-historic buildings, structures, or other
improvements and disposal of debris therefrom, or removal of a part
thereof for disposal, in accordance with applicable regulations.
(3) Road or trail construction and repair on existing rights-of-
ways or on previously disturbed areas.
(d) Cultural and natural resource management activities:
(1) Land regeneration activities using only native trees and
vegetation, including site preparation. This does not include forestry
operations.
(2) Routine maintenance of streams and ditches or other rainwater
conveyance structures and erosion control and stormwater control
structures.
(3) Implementation of hunting and fishing policies or regulations
that are consistent with state and local regulations.
(4) Studies, data collection, monitoring and information gathering
that do not involve major surface disturbance.
(5) Maintenance of archaeological, historical, and endangered/
threatened species avoidance markers, fencing, and signs.
(e) Procurement and contract activities:
(1) Routine procurement of goods and services (complying with
applicable procedures for sustainable or ``green'' procurement) to
support operations and infrastructure.
(2) Acquisition, installation, and operation of utility and
communication systems, mobile antennas, data processing cable and
similar electronic equipment that use existing right-of-way, easement,
distribution systems, and/or facilities.
(3) Conversion of commercial activities under the provisions of AR
5-20. This includes only those actions that do not change the actions
or the missions of the organization or alter the existing land-use
patterns.
(4) Modification, product improvement, or configuration
engineering design change to materiel, structure, or item that does not
change the original impact of the materiel, structure, or item on the
environment.
(5) Procurement, testing, use, and/or conversion of a commercially
available product which does not meet the definition of a weapon
system, and does not result in any unusual disposal requirements.
(6) Acquisition or contracting for spares and spare parts,
consistent with the approved Technical Data Package.
(7) Modification and adaptation of commercially available items
and products for military application, as long as modifications do not
alter the normal impact to the environment.
(8) Adaptation of non-lethal munitions and restraints from law
enforcement suppliers and industry for military police and crowd
control activities where there is no change from the original product
design and there are no unusual disposal requirements.
(f) Real estate activities:
(1) Grants or acquisitions of leases, licenses, easements, and
permits for use of real property or facilities in which there is no
significant change in land or facility use.
(2) Disposal of excess easement areas to the underlying fee owner.
(3) Transfer of real property administrative control within the
Army, to another military department, or to other federal agency,
including the return of public domain lands to the Department of
Interior, and reporting of property as excess and surplus to the GSA
for disposal.
(4) Transfer of active installation utilities to a commercial or
governmental utility provider, except for those systems on property
that has been declared excess and proposed for disposal.
(5) Acquisition of real property where the land use will not
change substantially or where the land acquired will not exceed 40
acres and the use will be similar to current or ongoing Army activities
on adjacent land.
(6) Disposal of real property where the reasonably foreseeable use
will not change significantly.
(g) Repair and maintenance activities:
(1) Routine repair and maintenance of buildings, airfields,
grounds, equipment, and other facilities.
(2) Routine repairs and maintenance of roads, trails, and
firebreaks.
(3) Routine repair and maintenance of equipment and vehicles which
is substantially the same as that routinely performed by private sector
owners and operators of similar equipment and vehicles. This does not
include depot maintenance of unique military equipment.
(h) Hazardous materials/hazardous waste management and operations:
(1) Use of gauging devices, analytical instruments, and other
devices containing sealed radiological sources; use of industrial
radiography; use of radioactive material in medical and veterinary
practices; possession of radioactive material incident to performing
services such as installation, maintenance, leak tests, and
calibration; use of uranium as shielding material in containers or
devices; and radioactive tracers.
(2) Immediate responses in accordance with emergency response
plans for release or discharge of oil or hazardous materials/
substances; or emergency actions taken by Explosive Ordnance Demolition
detachment or Technical Escort Unit.
(3) Sampling, surveying, well drilling and installation,
analytical testing, site preparation, and intrusive testing to
determine if hazardous wastes, contaminants, pollutants, or special
hazards are present.
(4) Routine management, to include transportation, distribution,
use, storage, treatment, and disposal of solid waste, medical waste,
radiological and special hazards, and/or hazardous waste that complies
with agency requirements. This CX is not applicable to new construction
of facilities for such management purposes.
(5) Research, testing, and operations conducted at existing
enclosed facilities consistent with previously established safety
levels and in compliance with applicable federal, state, and local
standards. For facilities without existing NEPA analysis, including
contractor-operated facilities, if the operation will substantially
increase the extent of potential environmental impacts or is
controversial, an EA (and possibly an EIS) is required.
(6) Reutilization, marketing, distribution, donation, and resale
of items, equipment, or materiel; normal transfer of items to the
Defense Logistics Agency. Items, equipment, or materiel that have been
contaminated with hazardous materials or wastes will be adequately
cleaned and will conform to the applicable regulatory agency's
requirements.
(i) Training and testing:
(1) Simulated war games (classroom setting) and on-post tactical
and logistical exercises involving units of battalion size or smaller,
and where tracked vehicles will not be used.
(2) Training entirely of an administrative or classroom nature.
(3) Intermittent on-post training activities (or off-post training
covered by an ARNG land use agreement) that involve no live fire or
vehicles off established roads or trails.
(j) Aircraft and airfield activities:
(1) Infrequent, temporary (less than 30 days) increases in air
operations up to 50 percent of the typical installation aircraft
operation rate.
(2) Flying activities in compliance with Federal Aviation
Administration Regulations and in accordance with normal flight
patterns and elevations for that facility, where the flight patterns/
elevations have been addressed in an installation master plan or other
planning document that has been subject to NEPA public review.
(3) Installation, repair, or upgrade of airfield equipment.
(4) Army participation in established air shows sponsored or
conducted by non-Army entities on other than Army property.
Extraordinary circumstances that preclude the use of a categorical
exclusion are:
(1) Reasonable likelihood of significant effects on public
health, safety, or the environment.
(2) Reasonable likelihood of significant environmental effects
(direct, indirect, and cumulative).
(3) Imposition of uncertain or unique environmental risks.
(4) Greater scope or size than is normal for this category of
action.
(5) Reportable releases of hazardous or toxic substances.
(6) Releases of petroleum, oils, and lubricants except from a
properly functioning engine or vehicle, application of pesticides and
herbicides, or where the proposed action results in the requirement to
develop or amend a Spill Prevention, Control, or Countermeasures Plan.
(7) When a review of an action that might otherwise qualify for a
Record of Non-applicability reveals that air emissions exceed de
minimis levels or otherwise that a formal Clean Air Act conformity
determination is required.
(8) Reasonable likelihood of violating any federal, state, or
local law or requirements imposed for the protection of the
environment.
(9) Unresolved effect on environmentally sensitive resources.
(10) Involving effects on the quality of the environment that are
likely to be highly controversial.
(11) Involving effects on the environment that are highly
uncertain, involve unique or unknown risks, or are scientifically
controversial.
(12) Establishes a precedent (or makes decisions in principle) for
future or subsequent actions that are reasonably likely to have a
future significant effect.
(13) Potential for degradation of already existing poor
environmental conditions. Also, initiation of a degrading influence,
activity, or effect in areas not already significantly modified from
their natural condition.
(14) Introduction/employment of unproven technology. 3
---------------------------------------------------------------------------
\3\ Sec. 651.29(b)
---------------------------------------------------------------------------
A list of the environmentally sensitive resources mentioned in
Sec. 651.29(b)(9) is provided in Sec. 651.29(c):
(1) Proposed federally listed, threatened, or endangered species
or their designated critical habitats.
(2) Properties listed or eligible for listing on the National
Register of Historic Places.
(3) Areas having special designation or recognition such as prime
or unique agricultural lands; coastal zones; designated wilderness or
wilderness study areas; wild and scenic rivers; National Historic
Landmarks; 100-year floodplains; wetlands; sole source aquifers;
National Wildlife Refuges; National Parks; areas of critical
environmental concern; or other areas of high environmental
sensitivity.
(4) Cultural Resources as defined in AR 200-4.
Of course, if an action can be excluded from environmental study
under a categorical exclusion, the agency must still comply with other
applicable statutes. 4
---------------------------------------------------------------------------
\4\ Sec. 651.29(d).
---------------------------------------------------------------------------
The Department of Army encourages regular review and modification
of existing categorical exclusions. 5
---------------------------------------------------------------------------
\5\ Id. at Sec. 651.31.
---------------------------------------------------------------------------
b. Department of Justice
The United States Marshals Service, Department of Justice,
supplemented its procedures for NEPA compliance in 2006. 6
These procedures detail the extraordinary circumstances that bar the
application of a categorical exclusion as well as actions that could be
eligible for a categorical exclusion. The actions that would normally
qualify for a categorical exclusion are presented first in this
discussion.
---------------------------------------------------------------------------
\6\ 71 Fed. Reg. 236. (Dec. 8, 2006).
---------------------------------------------------------------------------
7. Categorical Exclusions
(c) Actions that normally qualify for a categorical exclusion
include:
(1) Minor renovations or repairs within an existing facility,
unless the project would adversely affect a structure listed in the
National Register of Historic Places or is eligible for listing in the
register;
(2) Facility expansion, or construction of a limited addition to
an existing structure, or facility, and new construction or
reconstruction of a small facility on a previously developed site. The
exclusion applies only if:
(i) The structure and proposed use comply with local
planning and zoning and any applicable State or Federal
requirements; and
(ii) The site and the scale of construction are consistent
with those of existing adjacent or nearby buildings.
(3) Security upgrades of existing facility grounds and perimeter
fences, not including such upgrades as adding lethal fences or major
increases in height or lighting of a perimeter fence in a residential
area or other area sensitive to the visual impacts resulting from
height or lighting changes;
(4) Federal contracts or agreements for detentions services,
including actions such as procuring guards for detention services or
leasing bed space from an existing facility operated by a State or a
local government or a private correctional corporation;
(5) General administrative activities that involve a limited
commitment of resources, such as personnel actions or policy related to
personnel issues, organizational changes, procurement of office
supplies and systems, and commitment or reallocation of funds for
previously reviewed and approved programs or activities;
(6) Change in contractor or Federal operators at an existing
contractor-operated correctional or detention facility,
(7) Transferring, leasing, maintaining, acquiring, or disposing
of interests in land where there is no change in the current scope and
intensity of land use;
(8) Transferring, leasing, maintaining, acquiring, or disposing
of equipment, personal property, or vessels that do not increase the
current scope and intensity of USMS activities;
(9) Routine procurement of goods and services to support
operations and infrastructure that are conducted in accordance with
Department of Justice energy efficiency policies and applicable
Executive Orders;
(10) Routine transportation of prisoners or detainees between
facilities and flying activities in compliance with Federal Aviation
Administration Regulations, only applicable where the activity is in
accordance with normal flight patterns and elevations for the facility
and where the flight patterns/elevations have been addressed in an
installation master plan or other planning document that has been the
subject of a NEPA review; and
(11) Lease extensions, renewals, or succeeding leases where there
is no change in the intensity of the facility's use.
(b) Extraordinary circumstances must be considered before relying
upon a categorical exclusion to determine whether the proposed action
may have a significant environmental impact...the following
circumstances preclude the use of a categorical exclusion:
(1) The project may have effects on the quality of the environment
that are likely to be highly controversial;
(2) The scope or size of the project is greater than normally
experienced for a particular action;
(3) There is potential for degradation, even if slight, of
already-existing poor environmental conditions;
(4) A degrading influence, activity, or effect is initiated in an
area not already significantly modified from its natural condition;
(5) There is a potential for adverse effects on areas of critical
environmental concern or other protected resources including, but not
limited to, threatened or endangered species or their habitats,
significant archaeological materials, prime or unique agricultural
lands, wetlands, coastal zones, sole source aquifers, 100-year-old
flood plains, places listed, proposed, or eligible for listing on the
National Register of Historic Places, natural landmarks listed,
proposed, or eligible for listing on the National Registry of Natural
Landmarks, Wilderness Areas or wilderness study areas, or Wild and
Scenic River areas; or
(6) Possible significant direct, indirect, or cumulative
environmental impacts exist.
The United States Marshals Service's approach to use of categorical
exclusions seems to be especially concerned with those actions that
would alter the intensity and scope of current land uses. The agency's
approach also shows concern as to whether that a proposed activity is
within the same scope and intensity of other activities commonly
exempted under the categorical exclusion.
c. Department of Transportation-FAA
To facilitate the use of categorical exclusions for airports, the
Federal Aviation Administration provides a checklist 7 to be
completed when submitting a proposed activity for exemption from
environmental study under a categorical exclusion. The FAA has also
produced tables detailing types of categorical exclusions and
extraordinary circumstances that prevent use of such exclusions from
NEPA review. The checklist mirrors the requirements set forth in the
guidelines and tables provided and discussed below.
---------------------------------------------------------------------------
\7\ Available at http://www.faa.gov/airports_airtraffic/airports/
regional_guidance/central/environmental/environmental_review/catex/.
Accessed 6/18/2007.
---------------------------------------------------------------------------
The FAA characterizes categorical exclusions as either situations
that may involve extraordinary situations or those that are unlikely to
involve extraordinary circumstances. The situations the FAA has
determined unlikely to involve extraordinary circumstances include:
Grants for airport planning;
Bond retirement for terminal development;
Conditional airport layout plan approval;
Grants to prepare environmental documents;
Grants to prepare noise exposure maps and compatibility
programs;
Approval of passenger facility charge;
Issuing policy and planning documents;
Safety equipment for airport certification
Security equipment purchase. 8
---------------------------------------------------------------------------
\8\ FAA Order 5050.4--National Environmental Policy Act
Implementing Instructions for Airport Projects. Chapter 6 Categorical
Exclusions. Table 6-1.
---------------------------------------------------------------------------
The list detailing categorical exclusions that may involve
extraordinary circumstances is significantly longer. Included in Table
6-2, these actions center around physical airport maintenance and
improvement, and other regular airport activities that affect the
physical space and air near airports:
Airfield barriers.
Airfield improvements, aircraft parking areas.
Airfield improvements, roads.
Airfield improvements, runways.
Airfield improvements, storage areas.
Airfield lighting.
Cargo building.
Conveying Federally-owned airport land.
Deicing/anti-icing facility.
Fill activity.
General landscaping.
Heliport at an existing airport.
Low emission technology equipment, including the
Voluntary Airport Low Emission Program
Non-radar facilities.
Noise barriers.
Noise compatibility programs.
Non-U.S. waters, including wetlands in which
categorically excluded actions are proposed.
On-airport obstruction treatment.
Ownership change by purchase or transfer.
Parking areas.
Passenger handling building.
Radar installation.
Releasing airport land.
Relocation.
Repair and maintenance.
Replacement structures.
Restrictions, aircraft access.
Runway threshold.
Security.
Transfer land by long-term lease or acquisition.
U.S. Waters, including wetlands, in which categorically
excluded actions are proposed.
Utility line construction, temporary.
Wildlife Hazard Management Plan implementation.
9
---------------------------------------------------------------------------
\9\ FAA Order 5050.4--National Environmental Policy Act
Implementing Instructions for Airport Projects. Chapter 6 Categorical
Exclusions. Table 6-2.
---------------------------------------------------------------------------
Table 6-3 details the extraordinary circumstances that may require
an otherwise excluded action undergo environmental studies. Largely,
these circumstances mirror those seen in the previously considered
categorical exclusion guidelines. There are, however, a number that are
unique to the FAA:
Air quality.
Coastal zone areas.
Community disruption.
Cumulative impacts.
Endangered species.
Farmlands conversion.
Floodplains.
Hazardous materials.
Highly controversial action.
Historic or cultural property.
Inconsistency with applicable laws.
Noise.
Traffic congestion.
U.S. waters, including jurisdictional wetlands.
Water quality.
Wild and Scenic Rivers. 10
---------------------------------------------------------------------------
\10\ FAA Order 5050.4--National Environmental Policy Act
Implementing Instructions for Airport Projects. Chapter 6 Categorical
Exclusions. Table 6-3.
---------------------------------------------------------------------------
d. Department of Energy
The Department of Energy's guidelines on categorical exclusions is
an especially useful approach because the analysis required for a
categorical exclusion determination is presented in a step-by-step
format. 11
---------------------------------------------------------------------------
\11\ Sec. 1021.410(b). Available at http://www.eh.doe.gov/NEPA/
tools/REGULATE/NEPA_REG/1021/nepa1021_rev.pdf. Accessed 6/22/2007.
---------------------------------------------------------------------------
First, the agency determines whether the activity falls into one of
the categories of activities that can qualify for a categorical
exclusion. The agency has detailed both general agency actions and
specific agency actions.
Categorical exclusions applicable to general agency actions:
A1 Routine actions necessary to support the normal conduct of
agency business, such as administrative, financial, and personnel
actions.
A2 Contract interpretations, amendments, and modifications that are
clarifying or administrative in nature.
A3 Adjustments, exceptions, exemptions, appeals, and stays,
modifications, or rescissions of orders issued by the Office of
Hearings and Appeals.
A4 Interpretations and rulings with respect to existing
regulations, or modifications or rescissions of such interpretations
and rulings.
A5 Rulemaking interpreting or amending an existing rule or
regulation that does not change the environmental effect of the rule or
regulation being amended.
A6 Rulemakings that are strictly procedural, such as rulemaking
establishing procedures for technical and pricing proposals and
establishing contract clauses and contracting practices for the
purchase of goods and services, and rulemaking establishing application
and review procedures for, and administration, audit, and closeout of,
grants and cooperative agreements.
A7 Transfer, lease, disposition, or acquisition of interests in
personal property or real property, if property use is to remain
unchanged; i.e., the type and magnitude of impacts would remain
essentially the same.
A8 Award of contracts for technical support services, management
and operation of a government-owned facility, and personal services.
A9 Information gathering, data analysis, document preparation and
dissemination, but not including site characterization or environmental
monitoring.
A10 Reports or recommendations on legislation or rulemaking that is
not proposed by DOE.
A11 Technical advice and planning assistance to international,
national, state, and local organizations.
A12 Emergency preparedness planning activities, including the
designation of onsite evacuation routes.
A13 Administrative, organizational, or procedural Orders, Notices,
and guidelines.
A14 Approval of technical exchange arrangements for information,
data, or personnel with other countries or international organizations,
including, but not limited to, assistance in identifying and analyzing
another country's energy resources, needs and options.
A15 Approval of DOE participation in international ``umbrella''
agreements for cooperation in energy research and development
activities that would not commit the U.S. to any specific projects or
activities. 12
---------------------------------------------------------------------------
\12\ Appendix A to Subpart D of Sec. 1021.
---------------------------------------------------------------------------
Categorical exclusions applicable to specific agency actions are
significantly more detailed. Descriptions of these activities are
abbreviated here:
B1 Categorical exclusions applicable to facility operation.
Representative examples include:
B1.3 Routine maintenance/custodial services for buildings,
structures, infrastructures, equipment;
B1.4 Installation/modification of air conditioning systems for
existing equipment;
B1.5 Improvements to cooling water systems within existing
building, structure;
B1.7 Acquisition/installation/operation/removal of
communication systems, data processing equipment;
B1.9 Placement of airway safety markings/painting (not
lighting) of existing lines, antennas;
B1.13 Construction/acquisition/relocation of onsite pathways,
short onsite access roads/railroads;
B1.16 Removal of asbestos from buildings;
B1.21 Noise abatement;
B1.22 Relocation of buildings;
B1.27 Disconnection of utilities;
B2 Categorical exclusions applicable to safety and health.
Representative examples include:
B2.1 Modifications to enhance workplace habitability;
B2.3 Installation of equipment for personnel safety and health;
B3 Categorical exclusions applicable to site characterization,
monitoring, and general research. Representative examples include:
B3.3 Research related to conservation of fish and wildlife;
B3.8 Outdoor ecological/environmental research in small area;
B3.9 Certain Clean Coal Technology Demonstration Program
activities;
B4 Categorical exclusions applicable to Power Marketing
Administrations and to all of DOE with regard to power resources.
Representative examples include:
B4.1 Contracts/marketing plans/policies for excess electric
power;
B4.2 Export of electric energy;
B4.6 Additions/modifications to electric power transmission
facilities within previously developed area;
B4.7 Adding/burying fiber optic cable;
B4.11 Construction or modification of electric power
substations;
B5 Categorical exclusions applicable to conservation, fossil, and
renewable energy activities. Representative examples include:
B5.1 Actions to conserve energy;
B5.2 Modifications to oil/gas/geothermal pumps and piping;
B5.6 Oil spill cleanup operations;
B5.7 Import/export natural gas, no new construction;
B5.12 Workover of existing oil/gas/geothermal well;
B6 Categorical exclusions applicable to environmental restoration
and waste management activities. Representative examples include:
B6.1 Small-scale, short-term cleanup actions under RCRA, Atomic
Energy Act, or other authorities;
B6.4 Siting/construction/operation/decommissioning of facility
for storing packaged hazardous waste for 90 days or less;
B6.8 Modifications for waste minimization/reuse of materials;
B6.9 Small-scale temporary measures to reduce migration of
contaminated groundwater;
B7 Categorical exclusions applicable to international activities;
B7.1 Emergency measures under the International Energy Program;
B7.2 Import/export of special nuclear or isotopic materials.
13
---------------------------------------------------------------------------
\13\ Appendix B to Subpart D of Sec. 1021.
---------------------------------------------------------------------------
Second, the guidelines require a determination that no
extraordinary circumstances exist that could affect the level of
environmental impact of the activity. The extraordinary circumstances
detailed by the Department of Energy differ from the types of
circumstances found in the Department of the Army and U.S. Marshals'
regulations:
Unique situations presented by specific proposals, such
as scientific controversy about the environmental effects of the
proposal;
Uncertain effects or effects involving unique or unknown
risks;
Or unresolved conflicts concerning alternative uses of
available resources. 14
---------------------------------------------------------------------------
\14\ Sec. 1021.410(2).
---------------------------------------------------------------------------
Third, the guidelines require that the proposed action is not
connected to other activities that do have substantial environmental
impacts or to other proposed actions that cumulatively will have a
substantial environmental impact. 15
---------------------------------------------------------------------------
\15\ Sec. 1021.410(b)(3).
---------------------------------------------------------------------------
II. Unlawful Categorical Exclusions: Eleven Examples
In recent years, the federal courts have been called on to assess
the legality of categorical exclusions adopted by a variety of
agencies, including the Forest Service, Department of the Interior,
Department of Energy, and Department of Transportation. The following
cases illustrate a range of circumstances in which the use of
categorical exclusions were found to be illegal.
Heartwood v. United States Forest Service. 16 The
plaintiffs here--a land owner with property adjacent to the Shawnee
National Forest in Southern Illinois, a user of national forests and an
environmental group--challenged a proposed Forest Service categorical
exclusion concerning timber harvests. Following notice and comments in
1991, the Forest Service had issued new categorical exclusions in 1992
that had the effect of increasing by ten times the amount of
salvageable wood product and by 2.5 times the amount of live trees that
could be harvested without environmental analysis. The U.S. District
Court for the Southern District of Illinois found that these
substantial increases were simply not supported by any findings in the
administrative record. The court also found that the administrative
record did not provide support for, and in fact the Forest Service did
not address, whether actions of this magnitude would truly have no
significant individual or cumulative effects on the environment, as is
required by NEPA for categorical exclusions. 17
---------------------------------------------------------------------------
\16\ 73 F.Supp.2d 962 (S.D. Ill. 1999).
\17\ Id. at 975-76.
---------------------------------------------------------------------------
Riverhawks v. Zepeda. 18 This case centered around
motorboat use on a wild portion of the Rogue River in Oregon. The
plaintiff here, a river advocacy group, claimed that extraordinary
circumstances precluded the Forest Service's use of a categorical
exclusion because of evidence that motor boats on the river would
significantly impact populations of juvenile salmonids and Western Pond
Turtles, as well as some vegetation. The categorical exclusion in
question allowed the Forest Service to grant special issue permits for
commercial tour and fishing boats without engaging in NEPA analysis.
The District Court for the District of Oregon found that the
administrative record supported the plaintiff's argument. The Decision
Memo issued by the Forest Service for the categorical exclusion
specifically stated that the turtles and salmon might be affected. The
court found that the level of impact was not addressed in the
administrative record; the agency failed to provide justification for
issuing a categorical exclusion in the face of acknowledged but
unquantified impacts. 19 The court refused to uphold the
agency's use of this categorical exclusion, and granted summary
judgment for the plaintiff on their NEPA claim. 20
---------------------------------------------------------------------------
\18\ 228 F.Supp.2d 1173 (D. Or. 2002).
\19\ Id. at 1189-90.
\20\ Additional challenges related to this categorical exclusion
were mounted by the plaintiffs; only the challenge here was successful.
---------------------------------------------------------------------------
High Sierra Hikers Assoc. v. Blackwell. 21 This 2002
case focused on the use of a Forest Service categorical exclusion to
exempt one-year renewals of trail permits to commercial packstock
operators in the John Muir and Ansel Adams wilderness areas. This use
of a categorical exclusion failed because the Forest Service's internal
regulations do not allow the use of categorical exclusions for
activities in wilderness areas. Because the Forest Service acted in
violation of its own regulations on the use of categorical exclusions,
the court held that an EA or EIS was required for these permit
renewals. 22
---------------------------------------------------------------------------
\21\ 390 F.3d 630 (9th Cir. 2004).
\22\ Id. at 641.
---------------------------------------------------------------------------
Wilderness Watch v. Mainella. 23 At the district court
level, summary judgment was granted in favor of the National Park
Service where the plaintiff sought an injunction to disallow motor
vehicle tours in a designated wildness area on Cumberland Island,
Georgia. 24 The National Park Service allowed the tours
without environmental analysis, arguing the action fell under a
categorical exclusion. The categorical exclusion invoked by the Park
Service excluded ``routine and continuing government business,
including such things as supervision, administration, operations,
maintenance and replacement activities having limited context and
intensity; e.g. limited size and magnitude or short-term effects.''
25 The court rejected use of the categorical exclusion
because the Park Service provided no evidence in the administrative
record that the action was considered a categorical exclusion when
these tours were actually permitted (that is, the categorical exclusion
was a post hoc rationalization). Further, the court did not accept the
Park Service's assertion that approval of such motor vehicle tours
properly fell within the category of ``routine and continuing
government business,'' finding that obtaining a large van to
accommodate fifteen tourists hardly appeared to be a routine and
continuing form of administration and maintenance. 26
---------------------------------------------------------------------------
\23\ 375 F.3d 1085 (11th Cir. 2004).
\24\ Id. at 1087.
\25\ Id. at 1094.
\26\ Id. at 1095.
---------------------------------------------------------------------------
California v. Norton. 27 In this 2002 case, the
California Coastal Commission filed suit against the Department of the
Interior's Minerals Management Service challenging a categorical
exclusion drafted for suspensions of off-shore oil leases. The agency
suspended the leases so they would not expire. 28 California
argued that the Department of the Interior was required to prepare an
EIS before suspending the leases. Interior asserted that the agency was
not required to perform any environmental analysis because lease
suspensions were categorically excluded from NEPA review. The
plaintiffs argued that the agency had not relied upon a categorical
exclusion determination when it suspended the leases and was relying on
the existence of the exclusions as a post hoc rationalization for
failure to perform an environmental review. 29
---------------------------------------------------------------------------
\27\ 311 F.3d 1162 (9th Cir. 2002).
\28\ Id. at 1164-65.
\29\ Id. at 1175.
---------------------------------------------------------------------------
The Ninth Circuit heard the case on appeal following a district
court ruling in favor of the plaintiffs, who sought to enjoin the
suspensions pending environmental analysis as well as a justification
for the use of the categorical exclusion. 30 The court
underscored the importance of an administrative record for judicial
review: ``It is difficult for a reviewing court to determine if the
application of an exclusion is arbitrary and capricious where there is
no contemporaneous documentation.'' 31 Additionally, the
court expressed some skepticism about the use of a categorical
exclusion here. ``At the very least, there is substantial evidence in
the record that exceptions to the categorical exclusion may apply, and
the fact that the exceptions may apply is all that is required to
prohibit use of the categorical exclusion.'' 32 The case was
remanded to the district court to determine exactly what level of NEPA
analysis would be required. 33
---------------------------------------------------------------------------
\30\ Id. at 1165.
\31\ Id. at 1176.
\32\ Id. at 1177.
\33\ Id. at 1178.
---------------------------------------------------------------------------
West v. Sec'y of the Dep't of Transportation. 34 The
Federal Highway Administration's categorical exclusion of a highway
interchange project in Washington was challenged by a citizen. In
examining whether a categorical exclusion applied to the a new highway
construction project, the court found that the Federal Highway
Administration's own regulations disallowed this type of categorical
exclusion. 35 The court found that the agency's own
regulations do not allow reliance on categorical exclusions for
projects that will significantly impact travel patterns. The underlying
reason for the new interchange was to relieve traffic congestion.
36 The court rejected the agency's argument that a new
highway project could simultaneously relieve traffic congestion without
significantly impacting travel patterns.
---------------------------------------------------------------------------
\34\ 206 F.3d 920 (9th Cir. 2000).
\35\ Id. at 927, 929.
\36\ Id. at 929.
---------------------------------------------------------------------------
Citizens for Better Forestry v. United States Dep't of Agriculture.
37 In this case, the Forest Service sought to implement a
programmatic rule that changed the forest management requirements
related to species viability and diversity within national forests. The
2005 rule in question, which was not open to public notice or comment,
eliminated special viability and diversity requirements for forest
management first established in the 1982 Planning Regulations that
built on the National Forest Management Act of 1976. 38 The
agency took the view that the rule should be exempt from environmental
analysis because the rule itself simply provided a starting point for
NEPA analysis, rather than directly producing environmental effects.
39 This 2005 rule was exempted by the Forest Service under a
categorical exclusion that includes ``routine administrative,
maintenance, and other actions.'' 40 The court noted that no
Ninth Circuit court has ever upheld such a broad action as appropriate
under a categorical exclusion. 41 The court found that the
agency could not document any findings that supported the assertion
that no significant effects would result from the rule change, and
required that the agency perform either an EA or EIS. 42
---------------------------------------------------------------------------
\37\ 481 F.Supp.2d 1059 (N.D. Cal 2007).
\38\ Id. at 1064-67.
\39\ Id.
\40\ Id. at 1082.
\41\ Id. at 1087.
\42\ Id. at 1090.
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California v. United States Dep't of Agriculture. 43
This complex case involved the replacement of a Forest Service rule
limiting road construction in national forests. In 2001, the Forest
Service promulgated the Roadless Rule, prohibiting road construction,
road reconstruction and timber harvesting in specific roadless areas
nationwide. 44 This initial rule was set to take effect on
March 13, 2001, but President Bush issued a moratorium on pending
Clinton administration regulations before the Roadless Rule went into
effect. 45 Court proceedings were initiated in Idaho and
Wyoming. 46 While these cases were pending, the Forest
Service enacted the State Petitions Rule, which eliminated the uniform
national protections found in the 2001 rule, reverting oversight of
construction projects back to forest-by-forest analysis, and adding a
state-by-state appeals process through which states could take over the
forests within their borders. 47 The agency argued that the
new rule fell within the scope of a categorical exclusion that covered
routine administrative procedures. 48 The court found that
the agency was still required to study the new rule, as it could not
fall under a categorical exclusion because the new rule substantially
impacted the environment. 49
---------------------------------------------------------------------------
\43\ 459 F.Supp.2d 874 (N.D. Calif. 2006).
\44\ Id. at 879-80.
\45\ Id. at 880.
\46\ Id. at 880-81. Kootenai Tribe v. Veneman, 142 F.Supp.2d 1231
(D. Idaho 2001); Wyoming v. United States Dep't of Agric., 277
F.Supp.2d 1197 (D. Wyo. 2003).
\47\ Id. at 881.
\48\ Id. at 894.
\49\ Id. at 904.
---------------------------------------------------------------------------
Arkansas Nature Alliance v. United States Army Corps of Eng'rs.
50 In this case from 2003, heard in the Eastern District of
Arkansas, the Army Corps of Engineers approved a change to the height
and length of a bridge using a so-called ``Letter of Permission.'' This
Letter of Permission was issued on January 22, 2001. Under a Corps
categorical exclusion, Letters of Permission do not require individual
environmental review. The plaintiffs argued and the court agreed that
the proposed action could have a significant environmental effect, was
not a minor action, and was likely to be met with controversy--all of
which disqualified the action from coverage under categorical
exclusion. 51 The new bridge, however, had already been
completed when this court heard the case. Nonetheless, the court ruled
that the Corps' use of the categorical exclusion, because unreasonable,
should be revoked. What's more, full NEPA analysis was required of the
original application. The court ordered that the bridge be returned to
its original dimensions, but stayed this order pending environmental
analysis of the original application. 52
---------------------------------------------------------------------------
\50\ 266 F.Supp.2d 876 (E.D. Ark. 2003).
\51\ Id. at 886-87.
\52\ Id. at 894-95.
---------------------------------------------------------------------------
Sierra Club v. United States Dep't of Energy. 53 This
case centers on an easement on Department of Energy land that was
granted to a mining company for use in connection with new, then
unapproved, gravel mining operations. 54 The court found
that, while the easement itself may not have had significant
environmental effects, the Department of Energy's internal regulations
disallow a categorical exclusion that is ``connected to other actions
with potentially significant impacts.'' 55 Because the
granting of the easement and establishment of the new mining operation
were linked, they were required to be considered together. Agency
assurances that the mine would be studied under NEPA guidelines in the
future were not sufficient. The categorical exclusion was found
arbitrary and capricious. 56
---------------------------------------------------------------------------
\53\ 255 F.Supp.2d 1177 (D. Colo. 2002).
\54\ Id. at 1181.
\55\ Id. at 1183, citing 10 C.F.R. Sec. 1021.410(b)(3).
\56\ Id. at 1185.
---------------------------------------------------------------------------
Comm. for Idaho's High Desert v. Collinge. 57 The
plaintiff here, an environmental group, initiated this case to enjoin a
sage grouse population control program initiated by the U.S. Fish and
Wildlife Service; the district court granted the plaintiff a
preliminary injunction to remain in effect until the propriety of this
categorical exclusion use by the Service was litigated. 58
The sage grouse control program involved killing avian predators of the
sage grouse, as well as using various hunting techniques to control
other predators, including coyotes, red foxes, black bears, mountain
lions, bobcats, raccoons, badgers, striped skunks, ravens and magpies.
59 The Service categorically excluded an action to control
sage grouse populations under two possible categorical exclusions:
---------------------------------------------------------------------------
\57\ 148 F.Supp.2d 1097 (D. Idaho 2001).
\58\ Id. at 1099.
\59\ Id. at 1100.
---------------------------------------------------------------------------
``(i) Activities that are carried out in laboratories,
facilities, or other areas designed to eliminate the potential
for harmful environmental effects-internal or external-and to
provide for lawful waste disposal;'' 60 or ``routine
measures.'' 61
---------------------------------------------------------------------------
\60\ Id. at 1101.
\61\ Id. at 1102.
---------------------------------------------------------------------------
In choosing to issue an injunction requested by the plaintiff to
enjoin these activities, the court found that the plaintiffs were
likely to succeed in their case in large part because the agency failed
to keep an administrative record that supported their use of the either
of the proposed categorical exclusions. 62
---------------------------------------------------------------------------
\62\ Id. at 1103.
---------------------------------------------------------------------------
______
Mr. Grijalva. Thank you, sir. Let me now turn to Mr. Mark
Menlove. Sir.
STATEMENT OF MARK MENLOVE, EXECUTIVE DIRECTOR,
WINTER WILDLANDS ALLIANCE
Mr. Menlove. Thank you, Mr. Chairman. Again, my name is
Mark Menlove. I live in Boise, Idaho, and I am the Executive
Director with Winter Wildlands Alliance. I am testifying today
on behalf of the Outdoor Alliance, which is a coalition of six
national member-based organizations devoted to conservation and
stewardship of our public lands through responsible human-
powered outdoor recreation.
Outdoor Alliance includes Access Fund, American Canoe
Association, American Hiking Society, American Whitewater,
International Mountain Bicycling Association, and Winter
Wildlands Alliance. Collectively, we have members in all 50
states. We have a network of nearly 2,000 local clubs and
advocacy groups, 22 of which are located in Idaho where I live
now, 32 in Arizona, another 21 in my home State of Utah.
As a native Utahan I grew up hiking, skiing and camping in
the Wasatch Mountains. Those childhood experiences in the
outdoors have had a profound impact and influence on my life,
and indeed served as the catalyst for my pursuing a career in
the outdoor and winter recreation industry.
I worked as a backcountry ski guide. I am a certified
professional avalanche and snow safety professional. I worked
for the U.S. Ski Team. Served as president of the Utah Ski
Association, and in that role I was involved in Salt Lake
City's successful bid for the 2002 Winter Olympic games, and
then I had the privilege of going back and working for the
Olympic Committee during those games. Much of my time these
days is spent passing on my love of the outdoors to my three
children, and I am pleased to say that they are enthusiastic
partners in our outdoor adventures.
Outdoor Alliance and our members have a clear stake in
forest planning. As outdoor enthusiasts, we need public lands
and their topography to do what we do. Kayakers need rivers.
Climbers need escarpments. Mountain bikers and hikers need
trails, but what really unites our broader community is an
unshakable conviction and ethic toward stewardship and
conservation of our public lands.
This ethic is reflected in the thousands of volunteer hours
that our members spend on their local forests each year and in
our active involvement in management of national forest lands.
Though Outdoor Alliance is a fairly new coalition, our member
organizations have filed comments on river management plans,
climbing management plans, travel plans and forest plans for
decades. The trend to subject more Forest Service decisions to
categorical exclusions causes our community concern.
In particular, we believe that excluding forest plans from
NEPA review is a grave mistake for a number of reasons.
Decisions made in forest plans have huge material impacts on
our community. The U.S. Forest System is a multiple use land
management agency, and while 192 million acres may seem like
all the space in the world, it can get crowded very quickly
when all these uses including timber, mining and a broad
diverse spectrum of recreation are pursued in the same place or
at the same time.
Thankfully, forest planning creates a framework for
managing an entire forest, including designations that
specifically allow or disallow different uses on all or part of
a forest. The allocation of different uses in a multi-use
landscape begs for the type of analysis that NEPA provides so
effectively. Proper NEPA analysis in the planning stage ensures
balanced management and also makes sure that individual
projects fit within an overarching forest management framework
for the forest-wide system.
Informed and meaningful public participation helps the
Forest Service and inspires greater public confidence in agency
decisions. Participation in land use decisionmaking is a two-
way street. The outdoor community treasures our ability to
provide our perspectives and have them considered but, more
than that, our members traverse virtually every foot of trail
and river and backcountry ski route in the Nation each year,
which is far more than any agency can claim of their collective
staff.
We thus bring not only our interests but a broad based and
practical knowledge and information to the planning process,
which is critical to responsible management of those lands. The
ability to bring that useful perspective to the forest planning
process is certainly not unique to the outdoor recreation
community. Indeed it is this process of collecting and
analyzing and sharing all of the various perspectives and
insights that make a forest plan developed with a NEPA review
one that has earned the public's trust.
Outdoor Alliance is concerned with the ambiguous
administrative review process when forest planning is
categorically excluded from NEPA analysis. A critically
important attribute of NEPA review is an administrative appeal
framework which provides meaningful opportunities to resolve
differences without immediately looking to the Courts.
Many have derided NEPA review for involving too much red
tape and for taking too long. Though we are all in favor of
increased government efficiency and better implementation,
efficiency cannot trump meaningful public input, especially on
something as far reaching as a multi-year plan for an entire
forest.
To be clear, the Outdoor Alliance does not oppose
categorical exclusions in their proper place and time. As has
already been stated, they are a useful tool, but we do believe
they should be used judiciously and that they are inappropriate
for a forest planning process. Responsible management and
stewardship decisions require multiple perspectives. These
decisions cannot take place in a vacuum and should not take
place without the informed exploration of reasonable
alternatives regarding how a forest should be managed over a
stretch of years.
For multiple uses to properly coexist, the forest planning
process must be transparent, have robust public input, be
premised on informed decisionmaking and have mechanisms to
assure accountability. NEPA may not be a perfect process, but
it is a process that works and enjoys the public's trust. In
short, NEPA protects more than the environment. It protects our
constituents' opportunity for healthy recreation on forest
lands. By categorically excluding forest planning from NEPA
analysis, that protection is lost. Thank you for the
opportunity.
[The prepared statement of Mr. Menlove follows:]
Statement of Mark Menlove, Outdoor Alliance
Mr. Chairman and Members of the Subcommittee:
I am Mark Menlove. I live in Boise, Idaho and I serve as the
Executive Director of Winter Wildlands Alliance.
I am testifying today on behalf of the Outdoor Alliance, a
coalition of six national, member-based organizations devoted to
conservation and stewardship of our nation's public lands and waters
through responsible human-powered outdoor recreation. Outdoor Alliance
includes: Access Fund, American Canoe Association, American Hiking
Society American Whitewater, International Mountain Bicycling
Association, and Winter Wildlands Alliance, and represents the
interests of the millions Americans who hike, paddle, climb, mountain
bike, ski and snowshoe on our nation's public lands, waters and
snowscapes.
Collectively, we have members in all fifty states and a network of
almost 2,000 local clubs and advocacy groups across the nation,
including 22 in Idaho where I live, but also 32 in Arizona and 21 in
Utah.
As a native Utahn, I grew up hiking, skiing and camping in Utah's
Wasatch Mountains. My childhood time in the outdoors profoundly
influenced my life and, indeed, served as the basis for my pursuing a
career in the outdoor and winter recreation industry. Among other
recreation jobs, I worked for the U.S. Ski Team and served as President
of the Utah Ski Association. I've also worked as a backcountry ski
guide and am a certified avalanche and snow safety professional. I was
involved, through my role at Ski Utah, in the Salt Lake Olympic bid
efforts and later had the honor of working for the Salt Lake Olympic
Committee by running the press operation for all of the Olympic events
held at Park City Resort.
Much of my time these days is spent passing on my love of the
outdoors to my three children. Almost any weekend will find my family
and me tent camping in the Payette or Boise National Forests, hiking
the trails or fly fishing from our drift boat on one of Idaho's many
rivers. Winter weekends find us at our local ski hill, Bogus Basin,
located on the Boise National Forest, or backcountry skiing or
snowshoeing into the Sawtooth National Recreation Area. This winter, as
we do every winter, we made a family trek into one of Idaho's
backcountry yurts for an overnight stay. I put my five-year-old-son,
Asa, on cross-country skis for the first time and to see the sense of
accomplishment and sheer joy he got from skiing all the way into the
yurt and back out by himself was one of the most rewarding parenting
experiences of my life.
I. Outdoor Alliance's Stake in Forest Management
As outdoor enthusiasts, we need public lands and their topography
to do what we do--kayakers need rivers, climbers need escarpments and
hikers and mountain bikers need trails; but what truly unifies our
broader community is an unshakeable conservation and stewardship ethic
towards the land. This ethic is reflected in practicing outdoor
principles such as ``Leave No Trace'' to spending thousands of
volunteer hours devoted to infrastructure design, construction and
maintenance. We recognize that our pursuits depend on healthy lands and
waters and that recreational access must sometimes be subordinate to
resource conservation and protection of fragile ecosystems and
sensitive wildlife habitats.
Our community's conservation and stewardship ethic is also
reflected in our active involvement in how public lands are managed by
the Federal agencies. Our central opportunity for participation is
through the NEPA process. Though Outdoor Alliance is a fairly new
coalition, the member organizations have filed comments on river
management plans, climbing management plans and travel plans as well as
forest management plans for decades.
We recognize that the NEPA process does not mandate any particular
decision and does not require an agency to favor alternatives that
enhance habitat, the environment, or wildlife, let alone our outdoor
pursuits. What it does require is a hard look at how decisions could
impact the human environment. It requires land managers to put all
pertinent information on the table in order to make sound decisions;
and also brings diverse interests to the table to ensure that the
public, who actually own the lands, is vested in the process.
NEPA, with its transparent process, accountability and informed,
meaningful public involvement enables our community to live up to our
conservation and stewardship ethic and to have a meaningful voice in
management decisions impacting our respective recreational pursuits.
Volunteering for a trash pick-up day at a local forest district is
certainly important, but nothing can take the place of having the
informed public weigh-in on critical agency decisions.
The trend to subject more and more Forest Service decisions to
categorical exclusions causes our community concern. In particular, we
believe that excluding forest plans from NEPA review is a grave mistake
for a number of reasons.
II. Decisions Made in Forest Plans Materially Impact our Community
The U.S. Forest System is a multiple use land management agency.
While 192 million acres seems like all the space in the world, it can
get crowded very quickly when all these uses, including timber
harvesting, mining and the spectrum of different types of recreation
are pursued at the same time or at the same place. Thankfully, forest
planning creates a framework for managing an entire forest, including
management designations that effectively allow or disallow specific
recreational use on all or part of a particular forest. The process of
arriving at a final forest plan, therefore, is profoundly important to
the active outdoor recreation community. The Forest Service wisely
recognizes that a balanced, zoned approach, which designates different
areas for different use is the best way to meet the diverse needs of
the many different appropriate uses of our public forests.
Outdoor Alliance supports the Forest Service's zoned approach.
However, the allocation of different uses in a multi-use landscape begs
for the type of analysis that NEPA provides so effectively. How can you
balance different recreation uses without first determining the needs
and use patterns of these diverse groups as well as forest-wide
capacity to accommodate different uses? The public needs to (1) be made
aware of these zoning implications and (2) be able to share their
positions as well as their own information. Proper NEPA analysis at the
planning stage helps ensure balanced management at the project level
and helps make sure the individual projects make sense not only for the
forest, but also relative to all the other existing and future
projects.
The environmental analysis that NEPA facilitates ensures informed
decision-making. The collective effort and public participation
embedded in the NEPA process results in better management decisions and
assures the greatest good for the greatest number of people.
III. Informed and Meaningful Public Participation Helps the Forest
Service and Inspires Greater Public Confidence in Agency
Decisions
Participation in land use decision-making at the Forest Service is
a two-way street. The outdoor community treasures the ability to have
our perspectives considered. However, our perspectives can be
particularly valuable to the Forest Service. Our community spends time
in places few managers ever go. In fact, as a community we traverse
virtually every foot of trail and river and backcountry ski route in
the nation each year--something no agency can claim of their collective
staff. We thus bring not only our interests to federal land management
planning processes--but also practical, on-the-ground knowledge and
information that is critical to responsible management of those lands.
The ability to bring a useful perspective to the forest planning
process is not unique to the outdoor recreation community. Indeed, it
is the process of collecting, analyzing and sharing all of the various
perspectives and insights that make a forest plan developed with a NEPA
review one that has earned the public's trust.
NEPA facilitates intelligent, informed public input. Though the
Forest Service has explored ways to secure public participation without
a NEPA analysis (such as is contemplated in the recently stayed 2005
Forest Planning regulation at 36 CFR Part 219), these efforts
ultimately ring hollow. Simply directing the Responsible Official at a
forest to use a ``collaborative and participatory approach'' is of
limited utility if no one has the benefit of the type of necessary
information generated under a proper NEPA analysis. NEPA provides the
``critical mass'' of facts necessary for collaboration between the
agency and the public to transpire in a meaningful way.
Furthermore, leaving the public involvement requirement open to the
interpretation of a local Responsible Official rather than a time-
proven NEPA public involvement process creates confusion among the
public and unacceptable disparity from one forest to another. As
mentioned earlier, our constituents are knowledgeable, participatory
and committed to responsible stewardship of public lands. We thus offer
a valuable resource to forest managers. To cut us, or any other
community, out of the forest planning process is unfair and ultimately
imprudent.
The Forest Service motto is ``Caring for the Land and Serving the
People.'' To us, this means that the agency should be listening to the
people it serves so that it can care for the land in a manner that best
meets the people's needs.
IV. Forest Planning Developed Under a NEPA Analysis Assures Straight-
Forward Administrative Review
Outdoor Alliance is concerned with the ambiguous administrative
review process when forest planning is categorically excluded from a
NEPA analysis. A critically important attribute of a NEPA review is the
administrative appeal framework, which provides meaningful
opportunities to resolve difference without immediately looking to the
courts. We support the thorough administrative appeals process afforded
by NEPA and appreciate the higher level of public trust that process
engenders. Creating a well-informed initial plan with adequate public
participation and built-in accountability will reduce conflicts down
the road.
V. Forest Planning with NEPA Review--More Efficient Over the Long Term
Many have derided NEPA review for involving too much red tape and
for taking too long. Though we are all in favor of increased government
efficiency and better implementation, efficiency cannot trump
transparent agency decision-making that takes into account informed and
meaningful public input when the topic is a multi-year plan for an
entire forest. This is not to say that categorical exclusions are not
an important part of NEPA compliance, but we feel that their use should
be judicious and that categorical exclusions are inappropriate for the
forest planning process. Put more directly, it pays to do things the
``right way'' the first time, even if it takes a little bit longer.
In terms of doing things the ``right way'', take, for example, the
recently developed plan for the Monongahela National Forest--which
forms the headwaters of the Potomac. The draft environmental assessment
that informed the forest plan drew over 13,000 public comments, many of
which were based on the explicitly defined outcomes expected from the
implementation of specific alternatives. These comments, coming from
Outdoor Alliance member organizations as well as individual members of
the outdoor community, led to several substantive changes to the forest
plan, including additional protective measures for wild areas of great
interest to our community. NEPA allowed the Regional Forester to
balance resource extraction interests with resource conservation
interests and recreation interests based on a well-defined set of
alternatives and a wealth of data on anticipated effects of those
alternatives. Without NEPA, these decisions on which lands should be
zoned for various levels of protection, extraction or recreational use
would not have undergone rigorous analysis and public scrutiny.
Conclusion
Responsible management and stewardship decisions require multiple
perspectives. These decisions cannot take place in a vacuum and
certainly should not take place without the informed exploration of
reasonable alternatives regarding how a forest should be managed over a
stretch of years. For multiple uses to properly coexist, the forest
planning process must be transparent, have robust public input, be
premised on informed decision-making, and have mechanisms to assure
accountability. NEPA may be an imperfect process, but it is a process
that works and enjoys the public's trust.
In short, NEPA protects more than the environment, it protects our
constituencies' opportunity for healthy recreation on public lands. By
categorically excluding forest planning from NEPA analysis, that
protection is lost.
Thank you for the opportunity to appear before the Subcommittee.
______
Mr. Grijalva. Thank you. Let me turn now to Dr. Barry Noon.
STATEMENT OF DR. BARRY NOON, PROFESSOR,
COLORADO STATE UNIVERSITY
Mr. Noon. Mr. Chairman and members of the Subcommittee, I
want to thank you for the opportunity to submit testimony for
the record of this hearing. My name is Barry Noon. I am a
Professor in the Department of Fish, Wildlife and Conservation
Biology at Colorado State University. I have worked on land
management and wildlife conservation issues for the past 33
years, 15 of those as a Federal research scientist.
I am not an expert on NEPA. However, I have contributed to
land management planning under NEPA requirements on several
occasions, including the Northwest Forest Plan Sierra Nevada
framework, and I also served on a Forest Service commissioned
committee of scientists tasked with evaluating the National
Forest Management Act regulation. My comments today reflect in
part my experiences on the committee of scientists. However, I
do not speak for the committee. I speak only for myself.
The purpose of my testimony is to comment on the importance
of retaining a transparent, thorough, deliberative and science-
based process to evaluate ecological impacts of land management
decision. I will address four issues that arise naturally in
the NEPA process and are crucial to transparent and science-
based planning on the national forest.
The first of these will be the need for management
alternatives. The second would be cumulative effects analyses.
The third, accountability as it is achieved by ecological
monitoring, and fourth, the related issue of how the absence of
the vertebrate species viability requirement from the current
regulations increases the need to retain NEPA analyses.
When Congress enacted the NFMA of 1976, it adopted a
provision to create a committee of scientists to advise the
Forest Service on the drafting of regulations to implement the
Act. The original committee of scientists convened in 1979 had
a significant impact on biodiversity conservation on Forest
Service lands. Their recommendations, which eventually appeared
in the 1982 regulations to implement the Act, included a
commitment to the viability of all vertebrate species in
accordance with the NFMA requirement to provide for a diversity
of plant and animals.
The charge to the second committee was to develop
management principles and guidelines for the sustainable use
and conservation of Forest Service lands. Similar to the first
committee of scientists report, this committee implicitly
supported the continuance of rigorous environmental
assessments, including those under NEPA. Considering full NEPA
disclosure is important for several reasons. One, consideration
of land management alternatives.
Projects such as timber harvest, insulation of dams,
exploitation of mineral deposits and the construction of roads
are proposed to achieve specific management objectives. Because
such activities always result in at least short-term
environmental impacts, they are appropriately accompanied by
EIS'. The NEPA process requires the Forest Service to propose
and evaluate alternative ways of achieving these objectives to
reduce or mitigate adverse consequences to the environment. In
my experience, this structured process has made explicit the
tradeoffs between social, economic, and environmental
objectives.
Second, the importance of cumulative effects. The impacts
of land management activities accumulate across space and time,
and in terms of meaningful human timeframes may lead to
irreversible changes. The reality is that it is impossible to
evaluate the ultimate effect of any proposed project without
also considering the synergistic effects of past management
actions and other proposed changes in land use.
Third, accountability through ecological monitoring. When
NEPA was first enacted in 1970, it required each agency to
identify and develop methods which will ensure that presently
unquantified environmental amenities and values may be given
appropriate consideration in decisionmaking. This purpose can
be addressed by identifying objective, measurable criteria that
can be used to judge the success of forest management plans in
terms of environmental stewardship and other management
objectives. In my experience, keeping track of environmental
impacts has been addressed in part by the development of
species based monitoring programs.
Fourth, loss of species viability requirement. The 2000
NMFA regulations increased the Federal government's commitment
to the protection of biodiversity, specified specific criteria
for assessment during the NEPA process, and gave the public a
meaningful opportunity to offer comment and exert oversight on
the implementations of the regulations. The year 2000 regs were
short lived, however.
In January 2005, without convening a committee of
scientists, the Forest Service issued a new set of regulations.
The 2005 regulations eliminated as a goal the obligatory
protection of biological diversity, the requirement to prepare
environmental impact statements pursuant to NEPA, and reduce
the role and influence of science in the development and
implementation of forest plans. In my opinion, absent the
viability requirement, NEPA assessments are the only place that
fish and wildlife are evaluated at appropriate spacial and
temporal scales.
In conclusion, the historic role of the Forest Service has
been to sustain the health, diversity and productivity of the
nation's forests and grasslands. This mandate is especially
relevant today. However, because of accelerating rates of land
transformation on private lands, invasion of exotic species,
spread of animal and plant diseases and climate change, for
example, fulfilling this mandate is more difficult than ever
before.
What is needed now is not a reduction in our government's
commitment to environmental stewardship, but rather a
strengthening of our resolve to conserve species and
ecosystems. This will require the use of the best available
science and a full disclosure of the environmental tradeoffs
that accompany multiple use and resource exploitation. Thank
you.
[The prepared statement of Mr. Noon follows:]
Statement of Barry R. Noon, Professor, Department of Fish, Wildlife,
and Conservation Biology, Colorado State University
Mister Chairman and members of the subcommittee, I want to thank
you for the opportunity to submit testimony for the record of this
hearing. My name is Barry Noon--I am a professor in the Department of
Fish, Wildlife and Conservation Biology at Colorado State University. I
have worked on land management and wildlife conservation issues for the
past 33 years, 15 of those years as federal research scientist. For 10
years, I directed a Forest Service Wildlife Research Program in the
Pacific Northwest and in 1995, I served as Chief Scientist of the
National Biological Service, Department of the Interior.
I am not an expert on the National Environmental Policy Act;
however, I have contributed to the land management planning process
under NEPA requirements on several occasions, including the Northwest
Forest Plan, the Sierra Nevada Framework, and a Forest Service
commissioned Committee of Scientists tasked with evaluating the
National Forest Management Act (NFMA) regulations in 1997. My comments
today reflect, in part, my experiences on the Committee of Scientists--
but, I do not speak for the Committee--only for myself.
The purpose of my testimony is to comment on the importance of
retaining a transparent, thorough, deliberate, and science-based
process to evaluate the ecological impacts of land management
activities on Forest Service lands. In addition to my relevant
experience as a COS member, I will address 4 issues that arise
naturally in the NEPA process and are crucial to transparent and
science-based planning on the National Forests:
(1) A consideration of management alternatives which brings into
focus the unavoidable tradeoffs among competing objectives;
(2) The cumulative effects of multiple land-use projects;
(3) Accountability achieved by means of science-based ecological
monitoring programs;
(4) How the absence of the vertebrate species viability
requirement from the current National Forest Management Act regulations
increases the need to retain NEPA analyses.
Committee of Scientists and Ecological Sustainability
When Congress enacted the National Forest Management Act (NFMA) of
1976, it adopted a provision to create a Committee of Scientists to
advise the Forest Service on the drafting of regulations to implement
the Act. The original Committee of Scientists, convened in 1979, had a
significant impact on biodiversity conservation on Forest Service
lands. Their recommendations, which eventually appeared in the 1982
regulations to implement the Act, included a commitment to the
viability of all vertebrate species in accordance with the NFMA
requirement to provide for a diversity of plant and animal communities.
The charge to the second Committee of Scientists was to develop
management principles and guidelines for the sustainable use and
conservation of Forest Service lands. The committee produced a report,
delivered to the executive and Congressional branches of government,
entitled ``Sustaining the People's Land: Recommendations for
Stewardship of Our National Forest and Grasslands Into the Twenty-first
Century.'' Similar to the first COS report, the second report lead to a
new set of NFMA regulations, enacted in November 2000.
A defining characteristic of the second Committee of Scientists
report was its assertion that the primary responsibility of Forest
Service managers was to sustain the integrity of all ecological systems
on Forest Service lands, and that ecological sustainability was an
essential prerequisite to economic and social sustainability. As such,
the report implicitly supported the continuation of rigorous
environmental assessments, including NEPA. Continuing full NEPA
disclosure is important for the following reasons.
1) Consideration of Land Management Alternatives in Forest Planning
Decisions Is Important for Balancing Competing Demands on
Natural Resources
Projects such as timber harvest, installation of dams, exploitation
of mineral deposits, and the construction of roads are proposed to
achieve specific land management objectives.. Because such activities
always result in at least short-term environmental impacts, they are
appropriately accompanied by environmental impact analyses. The NEPA
process requires the Forest Service to propose and evaluate alternative
ways of achieving these objectives to reduce or mitigate adverse
consequences to the environment, including the alternative of no
action. In my experience, this structured process makes explicit the
inescapable tradeoffs between social, economic, and environmental
objectives.
Constructing alternative scenarios requires planners to take a big
picture perspective to land management. Alternatives are often
portrayed as maps, which allow planners (and the public) to view fully
the spatial location and extent of proposed actions. This process is
particularly important because of the rapid land use change that is
occurring on private lands adjacent to our national forests, which are
often the last place to conserve natural resources at meaningful
scales. To the extent that essential environmental goods and services
are diminished on private lands, the need for public lands to
compensate for those losses becomes more pronounced.
2) Assessing Cumulative Effects of Land-Use Practices Is Critical To
Reducing Impacts to the Environment
The impacts of land management activities accumulate across space
and time, and, in terms of meaningful human time frames, may lead to
irreversible changes. The reality is that it is impossible to evaluate
the ultimate effect of any proposed project without also considering
the synergistic effects of past management actions and other proposed
changes in land use.
In 1978 the Council on Environmental Quality defined cumulative
effects as
the impact on the environment resulting from the incremental
impact of the action when added to other past, present, and
reasonably foreseeable actions regardless of what person or
agency undertakes such actions
This definition is useful, but no longer sufficient, to guide
relevant cumulative effects analyses. The reason is that it assumes
that effects are simply additive and it fails to acknowledge the
interaction between natural disturbance processes and land management.
Additivity is no longer tenable because we now know that stresses to
ecological systems are often multiplicative leading to non-linear
relationships and steep threshold responses
We now also recognize that natural disturbance events commonly
interact with management to produce unexpected outcomes. Examples
provided in the Committee of Scientists report include, the decision
not to thin an overstocked forest that has high fuel loads may result
in significant watershed effects if a wildfire occurs; a poorly
designed road may not be a problem until after a large storm when
numerous road-related landslides occur; and overgrazing in riparian
areas may not result in loss of woody plants until after a drought has
occurred.
These and other cumulative effects are often only considered and
evaluated in process of land management planning (e.g., the forest
plans) and are triggered by NEPA requirements. Individual project
assessments often fail to address cumulative effects and are not a
substitute for the comprehensive evaluations that characterize
environmental impact assessments.
3) Accountability Through Ecological Monitoring Is Needed To Address
Broad Changes To The Environment
When NEPA was first enacted in 1970 it required each agency to
``identify and develop methods and procedures--which will insure that
presently unquantified environmental amenities and values may be given
appropriate consideration in decision-making along with economic and
technical considerations''. This purpose can be addressed in an
environmental impact statement by identifying objective measurable
criteria that can be used to judge the success of the forest plans in
terms of environmental stewardship and other management objectives. In
my experience, environmental impacts have been addressed in forest
plans by the development of science-based monitoring programs to assess
broad scale changes in environmental attributes (e.g., vegetation
community types and their successional stages) and the direct
monitoring of a small number of focal or management indicator species.
Current NFMA regulations do not require the direct monitoring of any
plant or animal species and it may now be that the only time when
wildlife and fish are directly assessed is during NEPA analyses of land
management plans. Excluding forest management from NEPA would eliminate
a key process that could prevent the listing of still more species as
threatened or in danger of extinction.
4) Loss of the Species Viability Requirement Compromises Environmental
Stewardship
Based on recommendations of the most recent Committee of Scientists
report, the 2000 NFMA regulations proposed a focal species approach to
biodiversity assessment as a sensible compromise to the requirement to
assess the viability of all vertebrate species as required in the 1982
regulations. In total, the 2000 regulations increased the federal
government's commitment to the protection of biodiversity on U.S.
National Forest lands, specified specific criteria for assessment
during the NEPA process, and gave the public a meaningful opportunity
to offer comment and exert oversight on the implementations of the
regulations.
The year 2000 regulations were short-lived. In January 2005,
without convening a committee of scientists, the Forest Service issued
a new set of regulations (70 Fed. Reg.1022 (January 5, 2005:1022-1061).
The 2005 regulations eliminated as a goal the obligatory protection of
biological diversity, the requirement to prepare environmental impact
statements pursuant to the National Environmental Policy Act (NEPA),
and reduced the role and influence of science in the development and
implementation of forest plans.
The National Forest Management Act expressly requires that forest
plans be developed in compliance with NEPA (16 USC 1604 (g) (1)). The
new regulations, which ``categorically exempt'' future plan amendments
and revisions from NEPA analysis, greatly increase the likelihood that
significant, adverse environmental impacts will occur on Forest Service
lands throughout the United States. As I noted previously, in the
absence of NEPA requirements, there will be no mandatory consideration
of cumulative impacts or alternative actions when plans are developed
or revised. Furthermore, it is my understanding that the Forest Service
has separately created a number of other ``categorical exemptions'' for
individual actions, such as fuels reduction and disease control. The
net result is that entire categories of actions will not undergo NEPA
review, and thus could be implemented without due consideration of the
best available science.
Concluding Remarks
The historic role of the Forest Service has been to sustain the
health, diversity, and productivity of the nation's forest and
grasslands in order to meet the needs of present and future
generations. This mandate is especially relevant today. However,
because of accelerating rates of land transformation on private lands,
the invasion of exotic species, the spread of plant and animal
diseases, and climate change, for example, fulfilling this mandate is
more difficult than ever before. What is needed now is not a reduction
in our government's commitment to environmental stewardship but rather
a strengthening of our resolve to conserve species and ecosystems. This
will require the use of the best available science and a full
disclosure of the environmental tradeoffs that accompany multiple use
and resource exploitation.
Unfortunately, in the last few years we have seen increasing
priority given to activities that have a long history of compromising
ecological sustainability on public lands. These include rollbacks to
forest protections in the Northwest, lack of administrative support for
the roadless rule, greatly increased levels of oil and gas development
in ecologically sensitive areas, and increased access for motorized
recreation in our few remaining back country areas. As a result, we
have seen decreased consideration given to environmental protection on
Forest Service lands at a time when the threats to species and
ecosystems on these lands is at all time high. Exempting the forest
planning process from the requirements of NEPA decreases the likelihood
that environmental protection will be given the priority it deserves in
the planning process.
______
Mr. Grijalva. Thank you. Mr. Nathaniel Lawrence. Counsel.
STATEMENT OF NATHANIEL LAWRENCE, SENIOR ATTORNEY, NATURAL
RESOURCES DEFENSE COUNCIL (NRDC)
Mr. Lawrence. Chairman Grijalva and Mr. Bishop, thank you
very much for hearing my testimony today. To come right to the
point, what distinguishes the Forest Service today is not
whether it uses categorical exclusions. Agencies for years have
successfully used categorical exclusions as an efficiency
device when projects they undertake are known not to have
environmental impacts. What distinguishes the Forest Service is
its across-the-board application of categorical exclusions that
are so ill-defined they cannot possibly prevent environmental
impacts on the ground.
Today under this Administration wherever you look in the
Forest Service you find categorical exclusions instead of NEPA
review, and it is this shell game that whatever decision you
are looking at happens to be the wrong one for NEPA review that
distinguishes this agency now and ought to concern the
Committee.
Let us be clear about one thing. The use of a categorical
exclusion is not NEPA review. NEPA provides for categorical
exclusions but once a categorical exclusion is invoked, NEPA
standards for environmental review fall away. NEPA requires, it
has enforceable standards, for scientific accountability, for
responsiveness to the public, and for fresh thinking to combat
tunnel vision and bureaucratic momentum.
These standards are missing. They fall away when a CE is
invoked. By its wholesale reliance on CEs, the Forest Service
is shortchanging itself as well as the environment and the
public because NEPA is how you get the best information about
how your actions will affect the environment over the long
haul, and for an agency that is charged with managing the
environment, that information is critical.
We hear a great deal about forest health problems today and
it is used as a rationale for stripping away NEPA review. The
hard truth is that the forest health problems we have on
national forests have occurred on the Forest Service's watch
over the last 100 years, mostly without the benefit of
environmental review. This is the wrong time to be throwing
away our best chance to get it right in our national forests.
The Forest Service is also wrong about NFMA plans. NFMA
plans make a difference. Congress enacted NFMA to make a
difference. The statute requires that plans make a difference.
That they ensure against resource damage, damage to soils, to
water courses, to lakes, to species diversity, and the plans
that comply with NEPA, they will make a difference, and because
they make a difference, they need full NEPA review.
To suggest that the Supreme Court cases you heard about
today say anything about whether Congress can mandate plans
that make a difference is a misstatement of such breadth that
it really takes my breath away. The agency is also wrong that
its categorical exclusions for fuels reduction thinning and for
salvage can be counted on to avoid environmental impacts. Fuels
reduction thinning, if it is done right, if it is small trees
and brush, if it is done without roads, if it is done in places
that have previously seen management, it has management
problems and a road infrastructure in place, that kind of fuels
reduction thinning can be counted on, I think, to be benign,
but the reality is our scientific understanding of the long-
range impact of how thinning affects long-range fire
susceptibility is in its infancy.
The scientific literature is full of studies of how models
predict what will happen when you thin but it is very, very
spare on on-the-ground studies of how real-world thinning done
by loggers actually impacts subsequent fire. The studies we
have do have very mixed results and they show that sometimes
commercial thinning can increase fire danger instead of
reducing it.
That is what happened in the Hayman fire incidentally in
Colorado where retrospective studies by the Forest Service and
academics show that thinning did not affect subsequent fire
intensity or sometimes made it worse. The same thing is true
for salvage. A recent study, a very recent study, joint Federal
government study with academic institutions of the Bisque fire
in southern Oregon showed that where there had been salvage
logging and replanting prior to the fire, when the fire came
through, fire intensities were up to 60 percent more intense
than in neighboring areas, adjacent similar areas that had not
had salvage logging.
I do not want to close without saying a thing or two about
the situation in Tahoe. I have two things to say. The first is,
the last time I went to the Tahoe basin, I saw some thinning
work that the Forest Service had done that was really a thing
of beauty. The agency can get it right. It can do small
diameter thinning without roads, without leaving behind small
flammable fuels, and it can really improve the situation.
The second this is it is a real mistake to confuse safety
for homeowners with restoring ecological integrity in the
backcountry. The thing that saves homes is intensive logging,
intensive thinning right around the homes, and fireproof roofs.
If they have those two things, thinning within a few hundred
feet and fireproof roofs, they survive even intense fires.
Conversely, if they do not have those things they do not
survive them. That is what happened in Los Alamos where an
intense backcountry fire came into town, dropped down to the
ground, and burnt through as a low intensity ground fire and
still burnt home after home after home because they did not
have that kind of home site preparation. Thank you very much.
[The prepared statement of Mr. Lawrence follows:]
Statement of Nathaniel Lawrence, Natural Resources Defense Council
Mr. Chairman and Members of the Subcommittee:
Thank you for your invitation to appear today and offer my views on
the U.S. Forest Service's use of Categorical Exclusions from
environmental review. The Natural Resources Defense Council (NRDC),
whose Forestry Project I direct, represents more than 1.2 million
members and activists. These people have an intense interest in the
welfare of our national forest system lands. On their behalf, NRDC has
worked for many years to improve agency decisionmaking affecting these
lands, often through rulemakings and public processes involving our
nation's environmental charter, the National Environmental Policy Act
(NEPA). We have provided detailed analysis of and comments on multiple
generations of national forest management plans across the country as
well as proposals for the planning regulations to govern formulation of
those plans. We have often participated in public environmental review
processes for individual projects implementing or affecting management
plans. When, in recent years, the Forest Service has proposed new
exemptions from NEPA review, we have also carefully scrutinized its
rationales for doing so and furnished the agency with our analysis of
its proposals. And we have gone to court when needed, both to defend
good processes and decisions the Forest Service has made, and to have
poor ones corrected.
Overview: The Forest Service's Flight from NEPA Review.
In recent years, the U.S. Forest Service has developed a
regrettable and deep-seated aversion to the public scrutiny, scientific
accountability, and fresh thinking required by NEPA. The agency still
does NEPA review, and sometimes does so admirably. Increasingly,
though, it treats NEPA review as a burden to be shirked, across the
board. Whatever decision the agency is considering, it appears always
to be the wrong time to take a hard look at environmental impacts,
consider whether a different approach would be better, or open up
agency thinking and evidence to outside experts, sister agencies, and
the affected public. The result is something approaching a shell game,
with NEPA review never there, no matter where we look for it.
By ducking NEPA review, the Forest Service errs in several ways. As
discussed in detail below, the agency is wrong as a legal matter that
categories of decisions it exempts from NEPA review fall below the
threshold for preparation of environmental documentation. Also
elaborated below are factual reasons why decisions that meet its
exemption criteria may affect the environment significantly. The
agency's biggest error, though, may be in repudiating the benefits of
NEPA review for so many of its management responsibilities.
NEPA's High Standards and Accountability Improve Agency Decisions.
For decisions with potential environmental consequences, which are
much of the bread and butter work of the Forest Service, it is NEPA
compliance that creates reliably high quality results, combats tunnel
vision, and promotes public buy-in. At the same time that it empowers
your constituents, Representatives, with the details of agency
proposals and a right to have their concerns responded to, it firmly
guides bureaucrats toward good government. NEPA's well-established
rules, detailed regulations, and court-enforceable standards work as
nothing else does against sloppy and wishful thinking, the sweeping of
problems under rugs, and the lack of responsiveness that are typically
at the root of agency's decisions that we all later come to regret.
NEPA provides strong, reliable information about the likely real-
world impacts of a decision through its information quality
requirements. In run-of-the mill decision-making under the
Administrative Procedure Act, agencies need only show that they were
non-arbitrary. See, e.g., Massachusetts v. E.P.A., 127 S.Ct. 1438, 1459
(2007). Under NEPA, they are charged to ``insure the professional
integrity, including scientific integrity, of the[ir] discussions and
analyses.'' 40 C.F.R. Sec. 1502.24. They must not only lay out the
reasoning behind their conclusions, but also disclose and respond to
responsible scientific criticism. Navajo Nation v. U.S. Forest Service,
479 F.3d 1024, 1056 (9th Cir. 2007); Save Our Ecosystems v. Clark, 747
F.2d 1240, 1245, n.6 (9th Cir. 1984).
NEPA helps overcome the natural tendency of decisionmakers to do
what they are most familiar with or think of first, without fully
reflecting on whether that is really the best course. It requires that
reasonable alternatives to the agency's first instinct be fleshed out
and considered, in the search for a better way to do things. An
environmental impact statement (EIS) must ``[r]igorously explore and
objectively evaluate all reasonable alternatives,'' to the agency's
initial proposal. 40 C.F.R. Sec. 1502.14(a). Even in an environmental
assessment (EA), a short review of projects that are found not to have
significant environmental impacts, NEPA directs agencies to develop
``appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative
uses of available resources.'' 42 U.S.C. 102(2)(E).
This alternatives requirement, often described as the ``heart of
NEPA,'' see, e.g., Department of Transportation v. Public Citizen, 541
U.S. 752, 757, (2004), is also a key way for agencies to bring the
public into their process, and achieve acceptance of the outcome. An
agency's ``duty under NEPA is to study--``significant alternatives''
suggested by other agencies or the public during the comment period.''
Roosevelt Campobello International Park v. U.S. Environmental
Protection Agency, 684 F.2d 1041, 1047 (1st Cir. 1982). This mandate to
look at how the public would like to see a project undertaken, if a
reasonable way of doing so is put forward, gives interested parties a
horse in the race. With tangible evidence that their views have been
taken seriously, they are far more likely to accept the outcome, then
if they think they were excluded from the outset. Public buy-in is
important not simply for whether a decision will go unchallenged. It
also contributes to how favorably the entire agency is viewed, a factor
in how well the agency may find its future projects received and
funded.
Categorical Exclusions from NEPA Review are Important But Misused
Tools.
The Forest Service's chosen mechanism for avoiding NEPA review is
an important efficiency device known as a categorical exclusion (CE).
Properly used, CEs allow agencies to dispense with formal NEPA review
for classes of actions known not to have significant environmental
impacts. 1 See 40 C.F.R. Sec. 1508.4. Originally conceived
of as applying to decisions not meaningfully affecting the physical
environment at all, from picking uniforms to mowing lawns, they are now
used as well for scaled down versions of management actions that could
otherwise require an EIS. This latter use requires care. Such
exclusions from NEPA review are not really categorical; they are a
matter of degree. Unless they are kept truly de minimis, it takes field
experience to determine whether a given class and scale of projects can
legitimately be categorically excluded. Importantly, any CE must
identify an escape hatch in the form of ``extraordinary circumstances
in which a normally excluded action may have a significant
environmental effect'' and therefore requires NEPA review. 40 C.F.R.
Sec. 1508.4.
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\1\ An EIS is required if a project may affect the environment
significantly. See, e.g., Arkansas Wildlife Federation v. U.S. Army
Corps of Engineers, 431 F.3d 1096, 1100-1101 (8th Cir. 2005). An EA is
the required environmental document if, among other reasons, an agency
is unsure whether to prepare an EIS. Utah Environmental Congress v.
Troyer, 479 F.3d 1269, 1274 (10th Cir. 2007).
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CEs properly utilized are beneficial to all parties. They allow
agencies and the public to focus their resources on projects that
really do entail potential impacts on the environment. It is crucial,
though, that they be well defined, limited to categories demonstrably
free of impacts, and with a robust extraordinary circumstances
mechanism in place. The fact that decisions to invoke CEs are made out
of the public eye make these safeguards all the more important.
The Forest Service, unfortunately, has in recent years applied
poorly defined and/or unjustified CEs at every stage in the process of
regulating public land use. The result is an agency lurching toward a
NEPA-free existence. Whole management plans for national forests have
no impacts, if the Forest Service is to be believed, and can be adopted
under a CE. Changing the regulations that govern management plans also
has no impact. Implementing plans on the ground, for large and ill-
defined categories of logging, also turns out not to have impacts, and
again requires no NEPA review. And decisions that used to be made in
EAs about whether a project might have significant impacts, likewise,
are done behind closed doors.
The Forest Service is Mistakenly Trying to Exempt Forest Management
Plans, Which Do and Must Affect the Environment, From NEPA
Review.
In perhaps its most novel and disturbing form, the Forest Service's
expansion of CEs now includes the doctrine that entire, long-range,
forest management plans may not need public NEPA review. Late last
year, the agency adopted a new CE that covers amendment or revision of
forest management plans. 71 Fed. Reg. 75481 et seq. (Dec. 15, 2006);
Forest Service Handbook 1909.15, chap. 30, sec. 31.2(16). These plans
are, on their face, the kinds of actions that require NEPA review. The
Council on Environmental Quality NEPA regulations define ``major
federal action,'' triggering EIS eligibility, to include ``formal
plans--which guide or prescribe alternative uses of federal resources,
upon which future agency actions will be based.'' 40 C.F.R.
Sec. 1508.18(b)(2). In promulgating a CE for forest management plans,
the Forest Service argued that such plans would henceforth only guide
future decisions, and not themselves have potential impacts. See, e.g.,
70 Fed. Reg. 1023, 1024--1025 (Jan. 5, 2005). However, under the NEPA
regulations quoted above, neither the fact that plans ``guide'' other
actions, nor the future nature of those actions, makes a forest plan
any the less the kind of ``formal plan'' which is a major federal
action. Additionally, deferring NEPA review at the forest management
plan stage is inconsistent with the directive that ``[a]gencies shall
integrate the NEPA process with other planning at the earliest possible
time.'' 40 C.F.R. Sec. 1401.2.
Moreover, numerous factors inherent in forest management plans make
it plain that they may affect the environment significantly. These
factors include the geographic scope of forest plans (up to 17 million
acres), their duration (up to 15 years), and the potential that they
will make possible or prohibit actions of great potential impact on the
environment. These actions include large scale logging and road
construction, widespread use of off-road vehicles, grazing, and
determination of the allowable locations for and intensity of
recreational use. Moreover, past forest management plans unquestionably
affected the environment significantly. They determined where logging
could take place, what resource protections would be used, whether
grazing and motorized recreation would continue. And each of them was
accompanied by an EIS that chronicled the ways in which it would affect
the environment and compared them to the effects of alternative
planning options. Thus, even if forest management plans could be
adopted to avoid such provisions, the change from the previous, more
meaningful plans, from binding protections to none, from resource use
decisions to none, has environmental consequences. If the agency really
leaves open all questions about resource allocations and protections in
its next generation of plans, then it must at least be deciding at that
time to create a risk that they will not be as well protected in later
decisions as the plan could assure. And creating a substantial risk for
those resources means potentially having a significant impact on the
environment.
At all events, forest management plans cannot legally be so devoid
of protective provisions and decisions about implementation. Under the
National Forest Management Act (NFMA), forest plans must, among other
things, make choices about forest management systems and harvesting
levels. 16 U.S.C. Sec. 1604(e). They must ``provide for diversity of
plant and animal communities.'' Id. at Sec. 1604(g)(3)(B). Forest plan
regulations must ``insure that timber will be harvested--only where--
watershed conditions will not be irreversibly damaged'' and
``protection is provided for streams, streambanks--and other bodies of
water.'' Id. at Sec. 1604(g)(3)(E). Plans must insure that clearcutting
and other regeneration cuts are only used under certain environment-
protecting conditions. Id. at Sec. 1604(g)(3)(F). Because the assurance
of these safeguards, or the failure to assure them, will have
significant impacts on the environment--and manifestly Congress would
not have specified them if it thought the safeguards were
insignificant--the statute mandates that plans be the kind of
instruments to which NEPA review attaches. Moreover, NFMA requires that
forest plans include, in writing, ``the planned timber sale program.''
16 U.S.C. Sec. 1604(f)(2). Thus, while the required timber sale program
may change over time, each forest management plan is required to
propose actions which, by any standard, normally could significantly
affect the environment, requiring an EIS.
Lack of Environmental Review for Management Plans is Aggravated By Also
Exempting the Regulations Governing Them From NEPA Review.
Up a level from forest management plans, in adopting forest
planning regulations, the Forest Service is also applying CEs to avoid
NEPA review. Regulations the agency adopted in 2005 attempted to lay
the groundwork for eliminating NEPA review of forest management plans
by changing their content to make them non-decision documents. See 70
Fed. Reg. 1022 et seq. (Jan. 5, 2005). Despite itself describing this
new approach as ``a paradigm shift in land management planning,'' id.
at 1024, the agency sought to adopt the new rules under a CE. In March
of this year, a federal court, finding that the agency relied on a CE
that had never previously been used for a regulation of such magnitude,
had no record to support its invocation of the CE, and appeared to be
engendering potentially significant environmental consequences, struck
the rule down. Citizens for Better Forestry v. USDA, 481 F.Supp.2d
1059, 1087-90 (N.D. Cal. 2007).
The Forest Service, though, has not given up. It had already
modified its CE rules explicitly to cover ``[e]stablishing procedures
for amending or revising Forest Land and Resource Management Plans.''
Forest Service Handbook 1909.15, chap. 30, sec. 31.12(2)(f); see also
id. at sec. 31.2(16). It has also recently recommenced its revision of
the planning regulations. Any effort, however, to drop planning
regulations that do mandate effective protections will encounter the
same problem as dropping protections from the plans themselves. The
decision to stop protecting the environment is itself a decision with
environmental consequences. Claiming otherwise is like arguing that
eliminating speed limits has no impact because a non-limit does not
mandate anything. 2
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\2\ In addition, of course, any version of planning regulations
drafted to keep plans from having actual impacts will run afoul of the
NFMA requirements discussed above, as well as the general NEPA
regulatory admonition to incorporate environmental review as early
planning processes as possible.
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Failure to Undertake Environmental Review At the Project Level
Completes a Clean Sweep of NEPA Avoidance.
The Forest Service's flight from NEPA extends down to the
individual management project level. In arguing against NEPA review at
the forest management plan stage, the agency claimed that plan
implementing projects would provide a superior forum for such analysis.
See, e.g. 70 Fed Reg. at 1064 (``NEPA analysis and documentation will
be timed to coincide with meaningful stages in agency planning and
decisionmaking''); id. (``[a]ny proposed use in an area identified [in
a forest management plan] as suitable for that use must be considered
under agency NEPA procedures at the time of a project decision''). In
fact, however, under the Forest Service's evolving approach, many plan
implementing activities are themselves conducted under statutory or
regulatory authority that eliminates or truncates NEPA review. This
includes CEs for thinning and salvage operations, which collectively
comprise the large majority of logging rationales currently used
throughout the National Forest System. It also includes misuse of
legislated CEs and the much curtailed NEPA process authorized under the
Healthy Forest Restoration Act, Public Law 108-148, sec. 104. This
elimination of NEPA review at the project level completes the shell
game of avoidance, the failure ever to provide high quality,
accountable, and responsive analysis of environmental analysis at any
management stage at all.
1. Thinning CEs.
Central to, and emblematic of, this rejection of NEPA review even
at the project level, is the agency's CE for forest thinning in the
name of fuel reduction. Current Forest Service rules allow for such
thinning on up to 1,000 acres, about one and a half square miles, under
a CE. Forest Service Handbook 1909.15, chap. 30, sec. 31.2(10). Though
there are some sidebars on the practice, the agency imposes no limits
on the logging methods that can be used, or the size of trees removed.
Heavy-duty, industrial logging systems, designed to keep costs low
rather than avoid environmental damage, are perfectly allowable. And
while public rhetoric about fuels reduction focuses on thick brush and
small trees, the CE allows the Forest Service to remove huge trees
without NEPA review. This is not a hypothetical concern, since the
agency rationalizes removal of up to 30 inches in diameter five feet
off the ground, in the name of reducing fire risk. 3
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\3\ This rationale was advanced, for example, even in the agency's
planning for a national monument. The Giant Sequoia National Monument
Management Plan Draft Environmental Impact Statement expressly proposed
to log trees up to 30 inches diameter at breast height to reduce fire
risks.
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In justifying adoption of its fuels reduction CE, the Forest
Service erroneously looked to recent experience with projects that
might or might not resemble those allowed by the CE. The agency relied
heavily on a spreadsheet tally of some 3,000 projects as proof that new
projects authorized to go forward without NEPA review under the CE
could be counted on to avoid environmental impacts. 68 Fed. Reg. 33814,
33817 (June 5, 2003). NRDC carefully reviewed the database utilized for
this spreadsheet. We found that the large majority of reviewed projects
were small scale. Well under 10% involved mechanical thinning of over
250 acres. 4 This small size made the reviewed projects more
likely to be suited to a CE. At the same time, however, it made them
irrelevant in gauging the impacts of a CE that allowed much larger
scale logging. The lack of adequate limitations on the size, intensity,
or location of fuels reduction logging in the CE the agency ultimately
adopted means that future projects need not be remotely like those
included in the spreadsheet. Past performance is therefore no guide to
future impacts or the need for NEPA review.
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\4\ Analysis available from NRDC upon request.
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Equally seriously, the spreadsheet does not appear to reflect much
actual on-the-ground monitoring of impacts to environmental factors,
such as soil compaction, spread of exotics, usage by disturbance-averse
and/or interior-adapted wildlife species, or in-stream turbidity. NRDC
made spot inquires on some of the larger-acreage mechanical fuels
treatment projects. Not surprisingly, given the recent vintage of most
projects, many did not have monitoring completed. The Sequoia National
Forest, for example, wrote us back that none of the three projects we
inquired about--the Hotel A, McGee, and Dry Eshom--had completed
monitoring. See Exhibits A and B. Similarly, the Gallatin National
Forest told us that it had no reportable monitoring for the spreadsheet
projects we inquired about. See Exhibit C. The Klamath National Forest
referred us to forestwide monitoring on its website for some projects,
but the forestwide reports had no information specific to the projects.
See Exhibits D and E. Other forests, like the Plumas and Modoc National
Forests, reported that the only monitoring documents that existed for
projects about which we inquired were the ``daily logs'' filled out
during contract operations by Forest Service staff, not records of the
projects' actual impact on environmental factors. 5 Far from
having long-term on-the-ground monitoring of the projects' actual
environmental impacts, the agency did not even have near term results.
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\5\ Personal communication from Michael Condon.
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The need for environmental review for at least some of the logging
allowed by the fuels reduction CE is obvious. The on-the-ground results
of such thinning are highly uncertain. A recent study of seven thinning
projects in the Sequoia National Forest showed that subsequent wildfire
was more intense in all of the thinned plots than in similar adjacent
areas that had not been thinned. 6 As an eminent panel of
fire ecologists wrote to President Bush in 2003 about western forest
fire threats: ``neither the magnitude of the problem nor our
understanding of treatment impacts would justify proceeding in panic or
without thorough environmental reviews. 7
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\6\ Hanson, C.T., Odion, D.C. 2006. Fire Severity in mechanically
thinned versus unthinned forests of the Sierra Nevada, California. In:
Proceedings of the 3rd International Fire Ecology and Management
Congress, November 13-17, 2006, San Diego, CA. Attached as Exhibit F.
\7\ Christensen, N., et al. 2003. Letter to President Bush of 9/24/
02. Attached as Exhibit G. These preeminent scientists did not conclude
that only passive management or non-mechanical treatments could be
appropriate. Rather they warned of the importance of carefully
analyzing site specific factors when fuels reduction through mechanical
thinning is attempted: ``responding to this fire situation requires
thoughtfulness and care.''
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The most fundamental reason for care and environmental review in
using thinning for fuels reduction is the gaping lack of empirical
studies concerning its effectiveness as applied in the field. The
scientists quoted above noted that ``[t]he most debated response to
alleviating future fires--mechanically thinning trees--has had limited
study.'' Researchers for the federal government's Joint Fire Science
Program pointed out that ``[t]he lack of empirical assessment of fuel
treatment performance has become conspicuous.'' 8 The
authors, after canvassing the existing scientific literature concluded
that, other than theirs, only one lone study ``included both
statistical analysis and comparison of stand conditions in treated and
untreated areas such that differential fire effects could be directly
related to the intensity of fuels manipulation.'' 9
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\8\ Omi, P. & E Martinson. 2002. Effect of Fuels Treatment on
Wildfire Severity. Submitted to the Joint Fire Science Program
Governing Board, March 25, 2002, and online at: http://
www.cnr.colostate.edu/FS/westfire/FinalReport.pdf.
\9\ Omi & Martinson's study showed that for a few prescribed fire
and pre-commercial/noncommercial thinning projects, the intensity of
subsequent fire was reduced. Nevertheless, they concluded, ``[s]till
unanswered are questions regarding necessary treatment intensities and
duration of treatment effects.''
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Numerous other reviews and reports, many of them generated by the
federal government, confirm the scientific uncertainty surrounding how
thinning actually affects subsequent fire intensity. For example, a
Department of Interior publication states that ``[s]cant information
exists, however, on the efficacy of fuel treatments for mitigating
wildfire severity.'' 10 An Environmental Assessment
published by Grand Canyon National Park reports that ``methodologies
appropriate for returning ``natural'' forest function and process are
the subject of considerable debate.'' 11 As one U.S. Forest
Service publication notes with understatement, ``[s]ome uncertainty--
surrounds management treatments.'' 12 It continues: ``[a]t
landscape scales, the effectiveness of treatments in improving
watershed conditions has not been well documented.'' 13 And
the Forest Service's retrospective examination of the relationship
between fuel reduction activities and subsequent fire intensity in
Colorado's Hayman Fire found no systematic benefit: ``each of the
different types of fuel modification encountered...had instances of
success as well as failure in terms of altering fire spread or
severity.'' 14
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\10\ U.S. Department of Interior. People, Land & Water, vol. 8, no.
10 (May/June 2002), p. 17.
\11\ National Park Service. 2002. ``Environmental Assessment and
Assessment of Effect: Research on Wildfire Hazard Reduction in
Ponderosa Pine Ecosystems at Grand Canyon National Park,'' p. 1.
\12\ U.S. Forest Service. 2002. Protecting People and Sustaining
Resources in Fire-Adapted Ecosystems: A Cohesive Strategy. October 13,
2002, p. 32.
\13\ Ibid, p.34.
\14\ Finney, et al. 2002. ``Report on Fire Behavior, Fuel
Treatments, and Fire Suppression'', in Interim Hayman Fire Case Study
Analysis, R. Graham, tech ed. U.S. Forest Service, Rocky Mountain
Research Station. Nov. 13, 2002. Page 82. Available online at: http://
www.fs.fed.us/rm/hayman_fire/print/02finney_print.pdf.
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The need for careful study of fuels reduction projects is
heightened by the fact that they can, as shown by the Hanson & Odion
on-the-ground study quoted above 15, actually increase
subsequent fire effects. In their letter to President Bush
16, Christensen, et al. summarize the situation:
``[a]lthough a few empirically based studies have shown a systematic
reduction in fire intensity subsequent to some actual thinning, others
have documented increases in fire intensity and severity.'' A Forest
Service science publication reports: ``Depending on the type,
intensity, and extent of thinning, or other treatment applied, fire
behavior can be improved (less severe and intense) or exacerbated.''
17 A report of the Secretaries of Agriculture and Interior
to the President warned that ``the National Research Council found that
logging and clearcutting can cause rapid regeneration of shrubs and
trees that can create highly flammable fuel conditions within a few
years of cutting. Without adequate treatment of small woody material,
logging may exacerbate fire risk rather than lower it.'' 18
In fact, a whole series of studies from the scientific literature shows
post-thinning increases in fire intensity and/or spread. 19
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\15\ Supra note 6.
\16\ Supra note 7
\17\ Graham, R., et al. 1999. The Effects of Thinning and Similar
Stand Treatments on Fire Behavior in Western Forests. U.S. Forest
Service, Pacific Northwest Research Station. General Tech. Rpt PNW-GTR-
463. Sept. 1999. Page 15.
\18\ Babbitt, B. and D. Glickman. 2002. ``Managing the Impact of
Wildfires on Communities and the Environment: A Report to the President
In Response to the Wildfires of 2000. September 8, 2000.'' Page 12. A
second explanation for increases in fire intensity post-thinning is the
increased drying effect of sun and wind in stands that have been opened
up. See, e.g., Christensen, et al., 2002 (supra note 7); Rapp, 2002,
``Fire risk in east-side forests'' in Science Update. Portland, OR:
U.S. Department of Agriculture, Forest Service, Pacific Northwest
Research Station. September (2): 1-12, at 8; U.S. Forest Service, 2000,
Final Environmental Impact Statement for the Roadless Areas
Conservation Rule, vol. 1, p. 3-110, available online at http://
roadless.fs.fed.us/documents/feis/documents/vol1/chap3--health.pdf.
\19\ Many of these studies were reviewed by the Forest Service in
connection with the Final Environmental Impact Statement for the
Roadless Areas Conservation Rule (FEIS); supra note 17. The fire
specialist review of scientific literature for this FEIS summarizes
their findings. See id., Fuel Management and Fire Suppression
Specialist's Report, available online at: http://
www.roadless.fs.fed.us/documents/feis/specrep/xfire_spec_rpt.pdf, at 22
(``The Congressional Research Service...noted: ``timber harvesting does
remove fuel, but it is unclear whether this fuel removal is
significant;'' ``Covington (1996)...notes that, `scientific data to
support such management actions [either a hand's off approach or the
use of timber harvesting] are inadequate''' (brackets in the source));
id. at 22-23 (``Kolb and others (1994)--conclude that--management
activities to improve forest health [such as fuel management] are
difficult to apply in the field'' (brackets in the source)); id. at 21
(``Fahnstock's (1968) study of precommercial thinning found that timber
stands thinned to a 12 feet by 12 feet spacing commonly produced fuels
that `rate high in rate of spread and resistance to control for at
least 5 years after cutting, so that it would burn with relatively high
intensity;''' ``When precommercial thinning was used in lodgepole pine
stands, Alexander and Yancik (1977) reported that a fire's rate of
spread increased 3.5 times and that the fire's intensity increased 3
times''); id. at 23 (``Countryman (1955) found that ``opening up'' a
forest through logging changed the ``fire climate so that fires start
more easily, spread faster, and burn hotter'').
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A real world illustration of this phenomenon comes from the Ninth
Circuit Court of Appeal's review of the record for the Douglas Fire
Bark Beetle Project of the Colville and Panhandle National Forests.
There, the Court found that the evidence showed ``risk of fire during
the first few years of timber harvest under the Project will actually
be greater than the risk of fire if no action is taken.'' 20
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\20\ Land Council v. Vaught, No. 01-35088. Memorandum of August 14,
2001 at 4. (This is an unpublished opinion of the Ninth Circuit).
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2. Salvage CEs
A second growth area for NEPA-free logging is post-disturbance
salvage. Along with the fuels CE discussed immediately above, the
Forest Service adopted another poorly defined CE, this one for salvage
logging. Forest Service Handbook 1909.15, chap. 30, sec. 31.2(13). Some
of its potential to mask significant environmental impacts is reduced
by the 250 acre size limit, though a companion CE for ``post-fire
rehabilitation'' also by its terms applies to such logging and has a
huge 4,200 acre limit. See id. sec. 31.2(11).
Use of a CE for any substantial salvage logging is unjustifiable
because, as Forest Service researchers have concluded, salvage logging
spreads exotic species, causes erosion, and reduces wildlife usage,
among other harms. 21 These researchers found that
``postfire logging is certain to have a wide variety of effects, from
subtle to significant, depending on where the site lies in relation to
other postfire sites of various ages, site characteristics, logging
methods, and intensity of fire.'' Post-fire soils are particularly
susceptible to logging damage and associated loss of productivity.
22
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\21\ McIver, J. D., and L. Starr, tech. eds. 2000. ``Environmental
Effects of Postfire Logging: Literature Review and Annotated
Bibliography.'' U.S. Forest Service, Pacific Northwest Research Station
PNW-GTR-486. Portland, OR. Available online at: http://www.fs.fed.us/
pnw/pubs/gtr486.pdf.
\22\ Beschta, R.L, et al. 1995. ``Wildfire and Salvage Logging.''
Oregon State University. Corvallis, OR. Available online at: http://
www.isu.edu/departments/bios/Minshall/Publications/
Wildfire%20and%20Salvage%20Logging.pdf.
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Scientists both inside and outside the Forest Service agree there
is little or no evidence that post-fire logging reduces the risk of
later reburn, and warn that site-specific factors are critical in
assessing the impacts of salvage logging. 23 Another Forest
Service publication notes that ``[t]raditional salvage harvests do
little to reduce crown fire hazard'' and ``the potential for severe
fire may actually be increased, if the fuels are not reduced.''
24 Moreover, like thinning, salvage logging can actually
exacerbate subsequent fire. A recent joint federal agency and
university study of Oregon's Biscuit Fire showed that earlier salvage
logging and tree planting increased fire severity by up to 61%,
compared to similar non-logged but previously burned stands.
25
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\23\ See also Beschta et al., supra note 22; Everett, R. 1995.
``Review of Beschta document.'' Letter dated August 16 to John Lowe. On
file with: U.S. Forest Service, Pacific Northwest Research Station,
Wenatchee, WA.
\24\ Rapp, V. 2002. ``Fire risk in east-side forests'' in Science
Update. Portland, OR: U.S. Department of Agriculture, Forest Service,
Pacific Northwest Research Station. September (2): 1-12.
\25\ See attached Exhibit H.
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One feature shared by the salvage and fuels CEs particularly
increases the likelihood of environmental harm. Both allow road
construction, the salvage CE of up to a half mile and the fuels CE
without limit. Both restrict the construction to temporary roads. The
Forest Service itself, however, has found that temporary roads can have
the ``same long-lasting and significant ecological effects as permanent
roads.'' 26 The U.S. Department of Justice confirmed this
finding, in its Memorandum in Support of Motion for Summary Judgment in
Billings County v. Veneman, U.S. Dist. Ct., D. N.D., Civ. No. A1-01-
087, dated Aug. 9, 2002, at page 49.
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\26\ U.S. Forest Service. 2000. Final Environmental Impact
Statement for the Roadless Area Conservation Rule, vol. 1, page 2-18.
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Despite this accumulating scientific evidence, the Forest Service
remains enthusiastic about salvage logging without environmental
review. Attached are photos of the ongoing Eightmile Meadow Salvage
operation on the Mt Hood National Forest. Exhibit I shows a unit slated
for logging. Exhibit J shows a logged unit. One not need pass judgment
on whether such logging should proceed in order to understand from the
photographic evidence that if it is done, it could have significant
environmental impacts and deserves NEPA review prior to decisionmaking.
3. CEs for Permit Renewals
The Forest Service has multiple CE categories that allow for
renewal of permits and use authorizations without NEPA review. See
Forest Service Handbook 1909.15, chap. 30, sections 31.12(9) & (10),
31.2(3) & (15) Many such renewals could sensibly be performed under a
CE. The lax criteria the agency has adopted for such renewals, however,
mean the CEs can be applied where environmental harm is a real
possibility and NEPA review indicated. None of these CEs looks to
whether prior uses ever had the benefit of NEPA review or whether new
information or changed circumstances make such review needed at the
time of renewal.
The Forest Service has similarly broad extraordinary authority to
renew expiring grazing permits without conducting NEPA review, provided
by Congress, as long as the decision to do so meets certain conditions.
This provision, Section 339 of the FY 2005 Interior and Related
Agencies Appropriations Act, P.L. 108-447, was the result of
congressional concerns that the Forest Service had failed to process
expiring grazing permits in a timely manner in compliance with NEPA.
While Section 339 allowed the agency to exclude grazing permits from
NEPA review, it did not give the Forest Service a blank check. The
agency was required to comply with three distinct mandates as spelled
out in the FY 2005 rider:
(1) the decision continues current grazing management; (2)
monitoring indicates that current grazing management is
meeting, or satisfactorily moving toward, objectives in the
land and resource management plan, as determined by the
Secretary; and (3) the decision is consistent with agency
policy concerning extraordinary circumstances.
The Forest Service has demonstrated a thorough-going inconsistency
in providing the public with notice of these categorical exclusions.
Often, the agency does not issue any public notice. When a National
Forest does provide notice, it rarely makes clear whether public
comment will actually be considered in the decision making process, or
whether the public will retain the right of appeal after an agency
decision is made to indeed categorically exclude an allotment. There
are discrepancies within the same National Forest in implementing the
Section 339 authority. Without public involvement, it is virtually
impossible to hold the agency responsible if publicly owned resources
are damaged or threatened by inappropriate or inadequate grazing
management.
Rather than choosing categorical exclusions for allotments where
there is a well-established record of sound grazing management, the
agency has too frequently selected permits where there exists
controversy surrounding the grazing practices. For instance, in Region
Four (with forests in Southern Idaho, Nevada, Utah, and Western
Wyoming), a region where inappropriate grazing decisions have well-
demonstrated deleterious effects on public lands, the agency has
categorically excluded, or is planning to, nearly two thirds of the
permit renewals. Many of the permits that have been categorically
excluded do not meet the requirements of the Section 339 program. In
the Bridger-Teton National Forest, for example, home to a number of
charismatic endangered species, some two million acres will have been
categorically excluded from NEPA review by the time the program is
finished.
Even designated wilderness is not considered a high enough bar to
prevent the use of categorical exclusions. In NRDC's investigation of
this program, we have found twenty-two allotments that operate within
some part of a designated wilderness system which have received a
categorical exclusion. An additional sixteen allotments that operate
within wilderness are pending a categorical exclusion decision as well;
including two allotments in the Sequoia National Forest whose 26,543
permitted acres operate entirely within a designated wilderness area.
We have also has identified 58 categorically excluded allotments that
operate primarily within a designated Inventoried Roadless Area, one
additional allotment that was categorically excluded even though it
operated primarily within a designated Wilderness Study Area, and nine
allotments that currently operate within a designated Research Natural
Area.
In the Gila National Forest of southwestern New Mexico, the agency
has also been proposing categorically exclusions for permits on public
lands that contain large swaths of wilderness. Moreover, along with
portions of the Apache National Forest, the entire Gila National Forest
has been designated as the sole recovery area for the critically
endangered Mexican gray wolf. Despite the fact that wolf-livestock
conflicts pose the greatest hurdle to successful Mexican gray wolf
recovery, the Forest Service continues to propose categorical
exclusions on its grazing management decisions for the area. And in the
Pacific Northwest, where unmitigated cattle grazing can damage the
spawning beds for migrating salmon and steelhead trout, the Umatilla
National Forest elected to categorically exclude a number of grazing
allotments that included this kind of essential salmonid habitat.
4. Expansion of CEs Through Misuse of Extraordinary Circumstances
The Forest Service's misuse of its ``extraordinary circumstances''
rule, which identifies the need for full NEPA review, adds to
inappropriate application of CEs. The Forest Service interprets its CE
rules so that the presence of an extraordinary factor does not trigger
the protections of documentation under the National Environmental
Policy Act (NEPA) and public review. Rather, an agency official makes
an in-house determination of whether or not impacts related to the
factor could be significant. 27 These, however, are exactly
the sorts of decisions that NEPA contemplates will be made in a public
Finding of No Significant Impact, after review of an EA and public
comment. Made out of the light of day, they are prone to letting
problems be ``swept under the rug,'' a central reason that Congress
understood NEPA was needed.
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\27\ See U.S. Forest Service. 2002. Background for the Proposed
Hazardous Fuels and Rehabilitation/Stabilization Categorical
Exclusions, p. 5.
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Conclusion.
The Forest Service's efforts to shirk NEPA make it stand alone in
the federal family. Other agencies may sometimes wish to vault over
environmental review and get right to work. None, however, has embarked
on anything like so wholesale an effort to avoid it.
Increasingly, this disparity shows, among other places, in the
litigation record. NEPA suits against the Forest Service accounted for
50 of a total of 118 cases filed in 2005, the last year for which
statistics are available. See http://www.nepa.gov. Adverse orders or
decisions against the Forest Service resulted in over 50% of those
cases, compared to 25% for the remaining agencies.
In some sense, it is understandable that the Forest Service rankles
at NEPA. It is staffed by professionals who trust their own
professional judgment and want, often, to be left to exercise it
without interference. The hard truth, however, is that the forest
health problems the agency so often cites as the reason to plough ahead
without NEPA, are almost all things that happened on the Forest
Service's watch. Had NEPA been there over the years, with its high
standards for information, responsiveness, and accountability, things
might now be different. 28
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\28\ Though much of the information bearing on forest health
problems is of relatively recent vintage, the Forest Service has known
for more than seventy years that fire suppression caused subsequent
fires to burn more and more intensely. See Benedict, M.A. [Supervisor
of the Sierra National Forest]. 1930. Twenty-one years of Fire
Protection in the National Forests of California. Journal of Forestry
28: 707-710.
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Thank you for the opportunity to testify today. I would be happy to
answer any questions you might have.
______
Mr. Grijalva. Mr. Ray Vaughan. Sir.
STATEMENT OF RAY VAUGHAN,
EXECUTIVE DIRECTOR, WILDLAW
Mr. Vaughan. Thank you very much, Mr. Chairman. As my
written testimony outlines, what I and WildLaw have done over a
number of years is to get very detailed project-by-project
review of the use of CEs, particularly the HFI and CE6 CEs in
the southern region, region 8. This type of in-depth review
goes beyond just the raw numbers of use and acreage. I do not
know of it being duplicated anywhere else in the nation, and so
you cannot necessarily extrapolate to other parts of the
agency. However, region 8 is probably the largest user of CEs
and of projects as a whole particularly because of the very
large prescribed burning program there.
The emphasis of what I did is back in 2003 I had the same
fears that these would be massively abused, and looking at the
raw language of the regulations that potential is clearly
there. However, District Rangers do not read the regulations
when they implement a CEs. They read guidance they get from the
agency, and they talk to other people who have used the CEs,
and they sometimes talk to people like me.
The actual guidance the agency issued on HFICs and on HFRA
as well is excellent guidance and makes it real clear what you
should do and what you should not do, and our experience in
region 8 has been that overall final decisions on categorical
exclusions are in complete compliance with the law, and make
sense, and seem to be scientifically valid 92 percent of the
time. I can show you the environmental assessments done by the
national forest in Mississippi back in the 1990s. Every single
one of them, more than 100, broke the law. Every one of them
was in noncompliance.
The difference is the people and what the people try to do,
and if the people in the agency have a context for these CEs,
they are not just using them to use them, but a context of
restoration, sustainability as they do in the national forest
in Alabama and now in the national forest in Mississippi,
invariably they do a really good job on it. They have lots of
collaboration up front.
When EAs were used in Mississippi exclusively, they never
had collaboration. They never listened to the public. Now
District Rangers call me and everyone else who is concerned on
every single CEs they do, the majority of which in Mississippi
are two acres or less. Dealing with southern pine beetle
outbreaks, we do not need to revisit the science and knowledge
of controlling southern pine beetles every time you have a one-
acre spot.
The reality is there can be very legitimate uses but the
abuses can be very damaging, often perception and most of
concern on the ground, and so they should not be tolerated even
if they are a minority of the instances, and we believe we have
been able to identify the vast majority of the areas the
problems fall into, the mistakes, the errors, the abuses, and
have detailed for the Committee what we think the agency could
do to bring in the side boards a little bit and make sure that
the CEs and those abuses do not occur again.
And just one point. The Earth Island case, by the way, does
not extend the time it takes to do a CE if it is used properly
because if there are not adversarial comments received on the
CE, the appeal does not have to be given. The appeal time does
not run, and so therefore when they do it right, that
particular case did not add anything to the time it took to
implement the CEs, but it was very useful in helping people
like me reign in abuses. The worst abuses we see are
segmentation, where they take a 3,000 acre project and divvy it
up into 70-acre chunks and go, OK, we have 25, 30 CEs, and we
do not have to do an environmental analysis or cumulative
impacts review.
Because Earth Island made some of those in the one bad
district in Mississippi a couple of years ago reviewable, I was
able to appeal them. A new supervisor had just come in. He saw
that that was an abuse. He stopped it, and that does not occur
any more there.
CEs are a wonderful tool for small projects, like a
screwdriver for tightening screws and building things. However,
screwdrivers cannot do everything. In the planning area, the
1982 regulations and the implementation of planning now is a
mess and does need to be fixed, but planning can be made
shorter not by going the CE route, but by making the plan a
guide to a desired future instead of just a broad predictor of
all possible futures, and plans are not supposed to be just
aspirational. That is not enough.
There needs to be a decision made on which aspirations we
are going to choose to pursue during the planning period and in
the management of the forest. I believe a broader guide of the
agency for restoration, sustainability and protection will give
that type of context that will make everything from CEs to EIS'
to plans work much better. Thank you very much.
[The prepared statement of Mr. Vaughan follows:]
Statement of Ray Vaughan, Executive Director, WildLaw
I. Categorical Exclusions
As part of the processes under the National Environmental Policy
Act (NEPA), Categorical Exclusions (CEs) are used to analyze projects
and actions that an agency can demonstrate have no environmental
impacts. Thus, projects that fall within the bounds of a CE do not need
the lengthy environmental impact analysis process of an Environmental
Impact Statement (EIS) or the shorter Environmental Analysis (EA). When
used rationally and appropriately, CEs can be useful and proper tools
for handling certain types of small projects and immediate but limited
needs.
Like all tools for accomplishing work, CEs can be properly used,
improperly used or abusively misused. There is nothing inherently wrong
with CEs, any more so than there is anything wrong with EAs and EISs.
While some decry CEs as ways to limit public participation and
eliminate review of environmental impacts, others laud them as the
prime solution to getting good work done on public lands. Both views
miss. CEs are nothing but a NEPA tool. They are not the cause of abuse
or the cause of solutions; they are merely the mechanism by which some
abuses and some solutions can be accomplished.
Are CEs being abused by the Forest Service and sometimes used to
limit or eliminate public participation in management of public lands?
Absolutely. But so are the EA and EIS processes. I can show you full
blown EISs that are garbage, nothing but ruses for doing things that
the laws passed by Congress do not allow. I can show you EAs that got
less environmental analysis, public participation and on-the-ground
monitoring than some CEs.
Every agency this size has people in it that will abuse any
authority they have to achieve goals that are not in the public
interest. Like with all human endeavors, this abuse is done by a small
minority of the people involved. Still, such abuses can loom large in
physical consequences and in public perception. But just because a
murder uses a hammer to kill someone, you do not condemn hammers.
Are there proper uses of CEs by the Forest Service? Absolutely.
Indeed, in WildLaw's experience (which is mainly in Region 8, the
Southern Region), we find that the vast majority of uses of CEs are
proper. It cannot be assumed, however, that the experiences in Region 8
translate to the entire National Forest System. What few CEs we have
reviewed outside Region 8 have mostly been improperly used. The
detailed review and tracking WildLaw does of CEs in most of Region 8
does not appear to have been replicated by anyone else in any other
Region, to our knowledge. I do know that the agency itself does not
track the use of CEs in the detail that we do, and the Forest Service
does not have a national data set to tell you or anyone the full extent
of CE use and misuse. This lack of comprehensive information on the use
of CEs is troublesome but solvable through the use of an independent
ombudsman.
The main issue with CEs is whether they are being properly used in
a context that will produce good results on the land and for the people
who care about and depend on National Forests. When used by a line
officer in the context of a good management plan that emphasizes
restoration of the natural forests and that encourages sustainability,
CEs are almost always a useful tool for developing and implementing
small projects which fit within that larger restoration and
sustainability framework. See attachment.
II. Healthy Forest Initiative CEs
In 2003 the Forest Service adopted new CEs. See 68 Fed. Reg. 33813
(June 5, 2003).
The types of projects being conducted by these agencies under
the NFP include prescribed fire (including naturally occurring
wildland fires managed to benefit resources), mechanical fuels
treatments (thinning and removal of fuels to prescribed
objectives), emergency stabilization, burned area
rehabilitation, road maintenance and operation activities,
ecosystem restoration, and culvert replacement actions.
Id. at 33807.
WildLaw currently tracks and monitors almost every HFI CE project
in the Southern Region (except for Arkansas and Texas). Out of those
approximately 350 projects that we know of, we found 58 that, when
proposed, did not comply with the law, which includes the applicable
HFI regulations themselves and the applicable sections of the Appeals
Reform Act (ARA), the Administrative Procedures Act (APA) and the parts
of the National Environmental Policy Act (NEPA) that apply to the HFI.
Out of those 58, 27 were corrected after we brought the problem to the
attention of the agency. Thus, in Region 8, you could give the agency a
preliminary grade of ``83,'' a ``B.'' Then, upon further work and
correction of problems, the grade rises to ``92,'' an ``A-.'' We have
also reviewed certain specific HFI projects in many states throughout
the country. Over all, our analysis is based on our review and work on
more than 400 HFI projects, a level of review that exceeds the level of
review done by the agency itself when it adopted some of these very
regulations. (For example, when the Forest Service developed the Fire
CE, the number of thinning projects it reviewed in that process was
only 81. The Forest Service supported adoption of the Small Timer Sale
CE with a review of only 154 projects.)
This high compliance rate in Region 8 is impressive for a set of
CEs that had been predicted by many (including by me) to be a potential
source of massive abuse. However, the media and many environmental
advocates usually do not focus on the compliance but on the ugliness of
some of the few projects that are noncompliant. Here is why: while an
``A-'' compliance rate seems pretty good, the impacts of one bad
project can far outweigh the positive effects of many, many good
projects. A really destructive noncompliant project, such as one that
logs old growth unnecessarily, can do orders of magnitude more damage
than the good that comes from most compliant projects. The few bad
projects can taint the work and image of the many good ones. And the
media has a natural tendency to focus on the bad, the controversial,
rather than on the good and the acceptable.
Of those projects that do not comply with the applicable
authorities, the vast majority of problems involved break down into
just four areas. Therefore, fixing the problems and making the programs
successful should not be that difficult. This monitoring by WildLaw
does not show systemic abuses or widespread problems with HFI CEs but
shows localized and sporadic abuses of these new authorities, more
often through ignorance rather than actual intent. There is a real
potential for the success of these programs as they were set forth to
Congress and the public, if the problem areas are addressed and
monitored closely and if some changes are made to Forest Service CEs in
general to make them more adaptable and less prone to erroneous uses
and abuse.
These four main problems areas of the HFI CEs are:
1. Failure to provide adequate scoping notice of an HFI project.
While most ranger districts monitored provide good scoping notices that
adequately describe the proposed project and the potential impacts (and
thus the areas of concern for public participation), there are some
districts that produce insufficient notices, such as two-paragraph
scoping notices that do not even tell the public where the project will
occur and what the project will entail. This clearly defeats the main
purpose of the HFI of making public participation be more cooperative
and occur earlier in the process.
2. Failure to have an open, collaborative public participation
process in the development of projects that will be decided with a CE.
Invariably, the National Forests with the most success with, and least
abuse of, CEs are those that bring the public into a conversation about
the proposals long before they become locked into stone. Such
collaborative work includes field trips to review proposed project
sites, the seeking of input from the public on the need and scope of
the projects and much more. Really good examples of public
participation can currently be found in the Bankhead National Forest in
Alabama, the De Soto National Forest in Mississippi and the Ocala
National Forest in Florida.
3. Segmentation of a larger project into smaller chunks so as to
make the smaller ``projects'' qualify for the CEs of the HFI. While not
common, when this abuse occurs, it is often quite blatant and obviously
intentional. Commentary with the HFI regulations plainly states that
the new CEs provided under the HFI are NOT to be used to segment larger
projects into smaller ones that could use the CEs, but the regulations
themselves do not specifically prohibit segmentation. Segmentation is a
major NEPA violation.
4. Failure to protect larger trees and old growth as impliedly
required by the HFI. Cutting larger, older, fire-resistant trees is
clearly not in the best interests of healthy forests and of protecting
communities from catastrophic wild fires. Where this abuse occurs,
needed work to thin young trees in the wildland urban interface (WUI)
is often sacrificed in order to cut the bigger trees further from
communities. This violates the spirit of the HFI as it was presented to
the public and Congress.
Easy actions to limit these problem areas (such as strong guidance
documents from the Chief and interpretive regulations on these areas)
and constant tracking and monitoring could solve the vast majority of
problems with the implementation of the HFI CEs and would go most of
the way to solving public relation problems with the programs.
More fundamentally, though, the long-term solution to problems with
CEs is the same solution to most problems with the National Forest
System. CEs will work best (and thus be less abused) when they are used
in a framework of restoration and sustainability for the National
Forest involved. The best examples of good use of HFI CEs are found in
Alabama and Mississippi, where the National Forests there have adopted
restoration programs for their forests overall. Therefore, adoption of
a national policy of restoration and sustainability as the guiding
theme for the National Forests would provide a context for better and
consistent use of CEs, as well as all other authorities and tools the
agency uses. See attachment.
Possible Solutions
Require that all scoping notices for CEs provide adequate
information on what actions are being proposed, where they are being
proposed, and why they are being proposed. Adequate maps should be
required. Guidance should encourage explanations in the scoping notice
of the current conditions needing to be addressed, including good
explanatory photographs of the current conditions and the desired
conditions after the project is complete. We have seen excellent
examples of all this being done in five pages and can provide Congress
and the agency with those examples.
Encourage more up-front public participation, train line
officers and support the use of more cooperative conservation
collaboration techniques and efforts in the development, shaping and
implementation of project proposals.
Explicitly place segmentation prohibitions in all CEs.
Conduct a public rulemaking process to amend the CEs to include
specific language instructing line officers not to segment larger
projects into smaller segments that can each fit within the acreage
limits of the CEs. Guidance should also be issued to flesh out the
perimeters of what is and is not improper segmentation.
Amend the small timber sale CE (CE 12, FSH 1909.15--
31.2(12)), the salvage CE (CE 13, FSH 1909.15--31.2(13)), and the
hazardous fuels reduction CE (CE 10, FSH 1909.15--31.2(10)) to include
protection and retention of large trees as much as possible. I suggest
incorporating the old growth and large tree protection and retention
sections of the Healthy Forest Restoration Act (HFRA) as a good
example. The HFRA contains two large tree sections that would be good
additions to the HFI regulations:
1. ``In carrying out a covered project, the Secretary
shall fully maintain, or contribute toward the restoration of, the
structure and composition of old growth stands according to the pre-
fire suppression old growth conditions characteristic of the forest
type, taking into account the contribution of the stand to landscape
fire adaptation and watershed health, and retaining the large trees
contributing to old growth structure.'' HFRA Sec. 102(e)(2).
2. In areas outside of delineated old growth stands (which
have to meet the requirements in Sec. 102(e)(2)), the HFRA also
provides requirements for the keeping of large trees in project areas.
Sec. 102(f) mandates that projects be carried out so that they (1)
focus largely on small diameter trees, thinning, strategic fuel breaks,
and prescribed fire to modify fire behavior and (2) maximize the
retention of large trees, as appropriate for the forest type, to the
extent that the trees promote fire-resilient stands.
Initiate more in-depth training for line officers to
teach them the proper use of the HFI CEs and how they should and should
not be used. This training needs to include instruction on how to build
a good collaborative process for public participation in development of
CE projects. This should be a cooperative effort that includes non-
agency personnel who can provide a perspective agency staff needs in
order to make these regulations succeed. Many line officers (more than
75) have sought assistance in the proper use of CEs from WildLaw,
because they could not get that from the agency.
Establish, fund and contract for an independent Healthy
Forests Ombudsman to provide independent, comprehensive and unbiased
review of HFI (and HFRA) projects and training and assistance for line
officers.
Long-term, the Forest Service needs to adopt as a guiding
mission the restoration of the National Forests and the sustainable
protection and use of those lands. See attachment.
While not necessary to fix current problems with HFI CEs, we feel
that some additional changes to the CEs are needed to make them more
flexible and make their proper uses clearer to line officers who often
have difficulty knowing when and how to use these tools. Also, like all
``top down'' regulations that attempt a ``one size fits all'' rule,
these CEs do not fit equally everywhere. A 70-acre logging thinning
project in young Longleaf Pine may be fine, while a 10-acre project in
a cove hardwood forest could be devastating. The CEs need better
guidelines for their proper use and to prevent abuses. Our suggested
changes/additions to the CEs are:
Revisit the data and information used to establish these
CEs. Because these CEs have been used hundreds of times since their
adoption, there is now a much better data set on their impacts, uses
and effectiveness than existed when they were adopted. Examples:
Data used to adopt the small timber sale CE did not
support 70 acres as the limit; the administrative record had good
information to support a 10-acre CE. Now, though, the CE has been used
on projects up to 70 acres. Revisiting that information may support use
of 70 acres or may show that a different limit or set of limits is
required. Some forest types may handle 70 acres of logging without any
adverse impacts while other types may have suffered adverse impacts at
smaller acreages.
The acreage limits in the hazardous fuels reduction CE
need to be refined to general forest type. Fire-dependent forest types
(such as Longleaf Pine) clearly can handle a 4,500 prescribed burn, and
use of a CE on that level is appropriate. Fire-intolerant forest types,
though (such as Southern Appalachian cove hardwoods), do not need
prescribed fire at all, and a burn of any size there can have
devastating impacts. Fire-adapted or tolerant forest types (such as
Oak-Hickory in the Piedmont or Cumberland Plateau) can handle
infrequent fires but do not need them regularly for their health. For
those types of forests, more analysis may be needed to justify fires of
more than 1,000 acres or so.
Based upon that review, refine the acreages and proper
uses of these CEs and give better guidance on their proper usage.
Adding requirements about taking forest type and the ecosystems
involved in a proposed CE project into account in determining whether
or not the CE is applicable would be helpful.
Prohibit use of the hazardous fuels reduction CE for fire
in fire-intolerant forest types.
Consider adoption of a specific wildland urban interface
(WUI) CE, to be used in conjunction with Community Wildfire Protection
Plans. Many of the HFI CEs have been used to conduct projects in the
WUI, and the HFRA has WUI-specific authorizations in it. With this new
experience and information, it may be appropriate at this time to
explore the adoption of a CE specifically designed for use in the WUI
for small community protection projects; this would be a CE tailored to
fit the needs of WUI projects. That may work better than trying to fit
a WUI project into the current HFI CEs, which are more generalized and
not specifically designed for WUI needs and work.
III. CE for National Forest Plans
WildLaw does not support the development and use of a CE for the
adoption or major revision of National Forest management plans, as
required by NFMA. Certainly, planning as it exists under the 1982 NFMA
regulations has become too complex and cumbersome and needs a major
overhaul. But to throw the baby out with the bath water is not the
solution. CEs are screwdrivers, tools to get small, routine jobs done.
Plans are the framework of the entire ``house'' that is a National
Forest's long-term management; you cannot build the frame of a house
with just a screwdriver.
Forest plans are critically important documents that embody the
overarching goals and objectives for our National Forests and establish
guidelines for how to achieve them. It is imperative that these forest
plans are drafted with extensive input from scientific experts and the
interested public so that wilderness, old-growth, drinking water,
recreation, and wildlife habitat are adequately provided for and
protected. Plans determine what types of projects can occur and where
they can occur, even if they do not determine exactly which projects
will occur or when. Since all projects, permits, contracts, etc. must
be consistent with the forest plan (16 U.S.C. Sec. 1604(i)), it is
clear that plans are important in determining what activities can
occur. Forest plans also make final decisions, such as designation of
special areas, opening of lands to mineral exploration and development,
and recommendations for wilderness areas. Thus, their development
should be subject to detailed and thorough NEPA analysis and public
participation.
Instead of avoiding the problems with planning by attempting to get
around it with a CE, the Forest Service should finally attempt to solve
the problems with NFMA's implementation. The Forest Service should take
the time to do a good job and really figure out new regulations (1)
that really comply with NFMA and give the agency a strong scientific
basis for management and (2) that resolve most of the conflict around
management of the public's forests. Using cooperative conservation
approaches, new NFMA regulations and directives should be developed
through a facilitated group problem-solving process involving all the
diverse interests involved in management of the National Forests.
Instead of an agency-driven and developed set of NFMA regulations, we
propose a collaborative development of solutions to National Forest
problems that then lead to new regulations to implement those
solutions.
In February 2003, as part of the adoption of the 2005 regulations,
the Forest Service brought together approximately 100 interested people
to discuss options for protecting biological diversity on the National
Forests under the new National Forest Management Act regulations. I was
one of the participants in that workshop and the only environmentalist/
conservationist who gave a presentation at it. While the agency
ultimately ignored what this group suggested, the people and the
balance of types of people (agency, industry, scientists,
environmentalists, etc.) at that workshop were excellent. No party of
interest could claim not to be adequately represented there. Given a
few more days and a real mandate to find common ground solutions to
problems on the National Forests, I guarantee that that group would
have found at least a handful of common sense solutions 90% of everyone
would have agreed with. The agency could have then moved forward on
those consensus items and left more contentious issues aside for the
time being, thus accomplishing much needed work in the public forests
and reducing litigation significantly.
Despite the legal limbo of the various Roadless Rules, the creation
of the Roadless Area Conservation National Advisory Committee (RACNAC,
of which I am a member) has proven to be a unique success. For the
first time ever, the agency has successfully brought together diverse
interests, got them talking without conflict baggage and seen them
produce proposed solutions, some of which go beyond the boundaries of
just roadless areas. Other agencies have had success with standing FACA
committees and other advisory groups that work to resolve long-standing
issues. It is time the Forest Service tried this conflict resolution
approach on a larger scale, on the scale of planning for all the
National Forests.
IV. CE 6
In our experience, the worst problem area with CEs appears to be
with an old CE, CE 6, which was adopted long before this
Administration. WildLaw has already submitted an APA petition to the
Secretary to fix the problems with CE 6. Having this Subcommittee
advise the Secretary on that CE may also be useful. WildLaw has
reviewed, commented on and challenged numerous improper uses of CE 6;
we have also reviewed, commented on and supported numerous proper uses
of CE 6.
Summary of the CE 6 Problem
A. Southeast Situation
Categorical Exclusion 6 was adopted some time ago, well before this
present Administration. Agency records on the adoption of CE 6 are
scant to nonexistent, and the original intent behind it is not readily
apparent. In the Southeast, in particular, CE 6 has been abused
frequently. While Tennessee is notable for its frequent reliance on CE
6 in large projects, South Carolina is notorious for applying it to
very large projects, some more than 66,000 acres in size. Florida is
similar to South Carolina, except worse, with some CE 6 prescribed fire
projects there being more than 100,000 acres in size. We got most of
those abuses stopped.
B. Nationwide Situation
The Forest Service does not know the extent of its use of CE 6.
WildLaw has tracked Forest Service CE 6 projects in the Cherokee,
Pisgah, Nantahala, Sumter, Francis Marion, Apalachicola, Ocala,
Osceola, Alabama and other National Forests in Region 8. The materials
we received in response to a Freedom of Information Act request on the
use of CE 6 shows clearly that the Forest Service is not tracking its
own use of CE 6--it took months to get a full response and then it came
from each region, not a centralized location.
Basically, CE 6 is often used to get around the acreage limitations
in the HFI CEs. This CE needs to be revisited and overhauled.
Description of CE 6
The language of CE 6 is exceptionally broad:
31.2--Categories of Actions for Which a Project or Case File and
Decision Memo Are Required
6. Timber stand and/or wildlife habitat improvement activities
which do not include the use of herbicides or do not require more than
one mile of low standard road construction (Service level D, FSH
7709.56). Examples include but are not limited to:
a. Girdling trees to create snags.
b. Thinning or brush control to improve growth or to reduce
fire hazard including the opening of an existing road to a
dense timber stand.
c. Prescribed burning to control understory hardwoods in
stands of southern pine.
d. Prescribed burning to reduce natural fuel build-up and
improve plant vigor.
FSH 1909.15, chapter 31.2(6)(emphasis added).
CE 6 evolved from two CEs no longer in existence:
1. ``Low-impact silvicultural activities that are limited in size
and duration and that primarily use existing roads and facilities, such
as firewood sales; salvage, thinning, and small harvest cuts; site
preparation; and planting and seeding,'' (``Low-impact Silvicultural
CE''). FSH 1952.2 (4), and
2. ``Fish and wildlife management activities, such as improving
habitat, installing fish ladders, and stocking native or established
species.'' (``fish and wildlife CE'') FSH 1952.2 (9).
50 Fed. Reg. 26078 (June 24, 1985).
The CEs scoped and issued at the same time as the Low-impact
Silvicultural CE and the Fish and Wildlife CE included exemptions from
NEPA's requirements when the Forest Service controlled poisonous plants
in campgrounds, removed small mineral samples, and constructed picnic
facilities--all mundane tasks with little chance of causing significant
impacts either individually or cumulatively. See 50 Fed. Reg. 26078
(June 24, 1985).
At the time the Low-impact Silvicultural CE was adopted, the Forest
Service provided assurance to commenters concerned about abuse of the
broadly-worded authority, saying that ``[t]he guiding principal is that
the depth and breadth of the environmental analysis, the extent of
public involvement, and the type of documentation for a proposed action
must be commensurate with the scale and intensity of the anticipated
effects.'' 50 Fed. Reg. 26,078 (June 24, 1985)(emphasis added). Only
where ``both past experience and environmental analysis demonstrate
that no significant effects on the human environment will result,
individually or cumulatively (FSM 1952.2)'' were actions to be excluded
from documentation. 50 Fed. Reg. 26,078 (June 24, 1985).
The final language of CE 6 was adopted in 1992. See 57 Fed. Reg.
43180. Once again, the Forest Service made clear that ``[t]he intent of
the agency is that only routine actions that have no extraordinary
circumstances should be within categories for exclusion.'' 57 Fed. Reg.
43180 (Sept. 18, 1992). During scoping for the language change, the
Forest Service defined a routine action as one which ``will have little
potential for soil movement, loss of soil productivity, water and air
degradation or impact on sensitive resource values and is consistent
with Forest land and resource management plans.'' 56 Fed. Reg. 19718
(April 29, 1991).
The historical justification for CE 6 is important because ``CEQ
must review all CEs before the FS adopts them to assure the CE's
compliance with CEQ and NEPA regulations.'' Heartwood, Inc. v. United
States Forest Serv., 73 F. Supp. 2d 962, 966 (D. Ill., 1999); see also
48 FR 34263 (July 28, 1983) (``Categorical exclusions promulgated by an
agency should be reviewed by the Council at the draft stage.'').
``Agencies shall continue to review their policies and procedures and
in consultation with the Council to revise them as necessary to ensure
full compliance with the purposes and provisions of the Act.'' 40
C.F.R. Sec. 1507.3. Since the CEQ must approve CEs and revisions are to
be made in consultation with CEQ, only those actions contemplated at
the time of approval as falling under a CE can be validly excluded from
normal NEPA procedural requirements without further consultation. Any
other reading renders the CEQ review meaningless.
In our FOIA request, WildLaw formally requested, among other
things, ``[a]ny documents describing the scope, purpose, and/or the
intended use of CE 6's predecessors in application,'' and ``[d]ocuments
which the Forest Service has in its possession regarding the Forest
Service's present understanding of the scope and application of CE 6.''
See WildLaw FOIA request of April 6, 2005. The Forest Service was
unable to provide any documents justifying either CE 6 or its
predecessors.
CEs should be used for ``only routine actions that have no
extraordinary circumstances.'' 57 Fed. Reg. 43180 (September 18, 1992).
The Forest Service defined routine as: ``the activity will have little
potential for soil movement, loss of soil productivity, water and air
degradation or impact on sensitive resource values and is consistent
with Forest land and resource management plans.'' 56 Fed. Reg. 19718
(April 29, 1991). Both good and bad effects can be significant--it is
the degree of impact, not the quality of impact that matters.
The Forest Service is misusing Categorical Exclusion 6 (``CE 6''),
also called the timber stand improvement CE (``TSI CE''). The Forest
Service is often using CE 6 to effect sweeping management objectives,
not the small routine actions for which the CE was originally written
and approved by the CEQ. While it is clear that some in the agency are
using CE 6 to avoid NEPA as it makes management decisions for hundreds
of thousands of acres of land in the Southeast, it is equally clear
that the Washington Office of the Forest Service has no idea how many
acres of land are being treated under this authority.
As part of the Healthy Forests Initiative, the Forest Service
adopted a new set of CEs for thinning and prescribed fire use. The
administrative records for those new CEs demonstrate clearly that the
use of a CE for such projects cannot be justified for more than 4,500
acres for prescribed fire and 1,000 acres for thinning. Yet, the agency
is using CE 6 for projects in the tens and even hundreds of thousands
of acres that are precisely the same as the ones in CEs 10, 11, 12 and
13 that said projects larger than of such size cannot be justified
through the use of a CE.
The Forest Service is performing large prescribed burns and
thinnings using CE 6 precisely for the purpose of having a significant
impact on the environment: to reduce fuel loadings, improve habitat, or
to restore a former fire regime. ``A categorical exclusion, however, is
appropriate only when the agency determines that the proposed action
will have ``no effect'' on the environment.'' Riverhawks v. Zepeda, 228
F. Supp. 2d 1173, 1189-1190 (D. Or., 2002)(citing 40 C.F.R.
Sec. 1508.4)(holding that the potential for impacts on turtles and
salmon, as well as conflicts between various user groups precluded the
use of a CE), Heartwood, Inc. v. United States Forest Serv., 230 F.3d
947, 954 (7th Cir., 2000) (``categorical exclusions, by definition, do
not have a significant effect on the quality of the human
environment''). The only way for the Forest Service to avoid the
conclusion that its actions are having an effect on the environment is
to claim that many of its management activities are not accomplishing
the goals and objectives that the Service uses to justify funding these
same projects. This is not a novel position by an agency, but it is not
one that courts appreciate either. The West v. Secretary of the DOT
court did not appreciate a similar approach by the Federal Highway
Administration:
The FHWA regulations forbid the use of a categorical exclusion
for projects that will have ``significant impacts on travel
patterns.'' 23 C.F.R. Sec. 771.117(a). The new South DuPont
interchange was designed with the intent that it have
significant impacts on travel patterns. It was designed and
constructed because the agencies predicted that the existing
interchanges were inadequate to handle the traffic from the
anticipated growth. It is axiomatic that a new, fully-
directional interchange cannot simultaneously relieve traffic
congestion and yet have no significant impact on travel
patterns.
206 F.3d 920, 929 (9th Cir. 2000).
CE 6's vague, broad language has allowed projects having
significant environmental effects to be carried out without normal NEPA
environmental review. That these projects apparently fit within the
language of CE 6 proves that the categorical exclusion may be illegal
on its face. The hope of WildLaw is that CE 6 can be modified in order
to save it for proper use.
While we have much more information on CE 6, a brief summary of it
is that there is evidence suggesting that the Forest Service did not
originally intend the present misuse of CE 6, and therefore did not
establish that it could be categorically excluded from NEPA.
First, the Forest Service has not been able to produce
documentation of an evaluation of similar projects to support its
conclusion that the type of projects it is proposing and carrying out
outside of NEPA do not have a significant effect on the environment.
Second, as with the Low-impact Silvicultural CE, CE 6 was
introduced in the context of other CEs of a much more mundane nature
than the projects the Forest Service is presently claiming fall within
the scope of CE 6.
Third, anecdotally (and since the Forest Service does not know how
often it uses CE 6, anecdotes are all we have) the Forest Service in
Region 8 (and apparently elsewhere) has only recently begun to exploit
the nearly unbounded authority it provided itself in CE 6.
Fourth, the Forest Service recently introduced the Healthy Forest
Initiative CEs which would be completely redundant with CE 6 if CE 6
were given the expansive reading some in the Forest Service now claim.
Lastly, one clue exists in CE 6 itself; the CE clearly states that
it is for ``Timber stand--improvement.'' Note the use of the SINGULAR
version of the word ``stand.'' CE 6 is for improvement to a ``stand''
of timber, not multiple ``stands'' of timber. Use of the word
``stands'' would make CE 6 unbounded, as it is being used too many
times now. Use of the singular word ``stand'' does indeed limit the CE
to a discrete area that can arguably fall with the proper use of
categorical exclusions, as most stands are only a few tens of acres in
size.
The Forest Service has not recently examined the use of CE 6 as it
is required to do. Because of changes in use over time, a CE that was
valid at adoption may be applied illegally now. ``CEQ suggested...that
agencies conduct periodic reviews of how existing categorical
exclusions are used, how frequently EAs for repetitive actions result
in FONSIs, and then establish comprehensive databases, preferably
electronic.'' The NEPA Task Force Report To The Council on
Environmental Quality: Modernizing NEPA Implementation, 5.2.2,
Importance of the Administrative Record (Sept. 2003). There is no
evidence that the Forest Service has taken this precaution. Indeed, it
took months for the Forest Service to fully answer WildLaw's FOIA
request for documentation of CE 6 projects and ultimately each region
sent its own answer, all formatted differently.
Proposed Changes to CE 6
The administrative records for the new HFI CEs show that use of a
CE on this scale for thinning and prescribed fire cannot be justified
in any way. Therefore, by definition, a CE is not appropriate, and the
Forest Service should prepare at least an environmental assessment
(``EA'') for projects beyond the 1,000 acres of thinning or 4,500 acres
of prescribed fire. Our suggested solutions include:
Initiating a full investigation of the uses of CE 6 to
get a clear picture of how it has been used properly and how it has
been used improperly. WildLaw is aware of a number of projects that are
good examples of the proper uses of CE 6.
During this review of CE 6, guidance and instructions
should be issued to all line officers ordering them not to use CE 6 on
projects larger than the acreage limits in the HFI CEs.
Conducting a public rulemaking process to amend the CE to
include specific language limiting the acres it may be used on or
making it clear that it can be used only on a singular stand, not
multiple ones.
Amending the CE to change the stated uses for CE 6, to
make it clear that it is not a substitute for the other thinning and
burning CEs. Make it clear that CE 6 is for other uses in stand
improvement.
Issuing clear and unequivocal guidance to all forests and
districts on the proper use of CE 6 and how it is for use in a singular
stand and how it cannot be used as a way to get around the limitations
in the HFI CEs.
Initiating multi-party training for line officers to
teach them the proper use of CE 6, how it should interact with the HFI
CEs, and how CE 6 should and should not be used.
CONCLUSION
I deeply appreciate this opportunity to address the Subcommittee
and present this testimony before it.
CEs have their place and can be useful tools for implementing small
projects under NEPA. Like all tools, the CEs used by the Forest Service
have the potential for abuse. The massive and widespread abuses
predicted at the adoption of the HFI CEs have not materialized, at
least in Region 8; only occasional abuses have occurred there. Perhaps
Region 8 is an exemplary region, the best of the agency. Without better
monitoring and information, we cannot know exactly how abused CEs are
in the other regions; although, anecdotal information indicates that
abuses are worse outside Region 8. Abuses of CEs can have serious
impacts and jeopardize the proper use of CEs. However, the ways for the
agency to fix the main problem areas exist.
I think that improvements and additions to the HFI CEs and a major
overhaul of CE 6 will go far in making these tools into what they need
to be. With targeted changes and additions, these CEs can be more
useful for the agency and communities while also being less susceptible
to abuse and misuse. The Forest Service should also attempt a more
innovative and collaborative approach to reform NFMA planning instead
of using a CE for plans.
Thank you.
______
Attachment
A Modest Proposal for the U.S. Forest Service (Short Version)
A White Paper by Ray Vaughan, WildLaw
``Harmony with land is like harmony with a friend; you cannot
cherish his right hand and chop off his left.'' ``A thing is right when
it tends to preserve the integrity, stability and beauty of the biotic
community. It is wrong when it tends otherwise.'' Aldo Leopold.
``Conservation is the foresighted utilization, preservation and/or
renewal of forests, waters, lands and minerals, for the greatest good
of the greatest number for the longest time.'' Gifford Pinchot, first
Chief of the U.S. Forest Service.
After decades of conflict over a handful of issues involving our
National Forests, perhaps it is time to ask whether common ground can
be found and progress made on areas of agreement. Can those parties and
interests who have fought so long over the public lands put aside those
conflicts and work together on other issues that make the public's
forests healthier? Can an agency so long captured by a political
mindset of short-term extraction move toward the goals of stewardship
and sustainability it was originally formed to achieve? Can a way of
resolving issues be found instead of people being stuck in a backward-
looking paradigm of endless conflict?
We think that the answer to all those questions is ``Yes.'' Here
are our suggestions for moving forward. What does WildLaw want?
First, what we do not want. WildLaw does not want an agency that is
a slavish and harried servant of the irreconcilable self-interested and
shortsighted demands of ``multiple use,'' as if anyone really knows
what that term means. We do not want an agency wrapped in controversy
and endless conflict. We do not want a land management agency that
hides in a bunker of ``agency expertise,'' afraid of really engaging in
conversation with the people who own the forests, who pay the salaries
of their managers and who often know those forests better than the
agency experts.
We want a USFS that is a model agency the public can be proud of,
an agency taxpayers want their money spent on, and an agency that
Congress sees as a problem-solver it wants to support. We want a Forest
Service that embraces genuine ecological restoration, protection and
sustainability such that the many uses of and desires for the National
Forests can finally be reconciled by a guiding principle that puts the
good of the forest first, in the long-term, over the good of any one
interest in the short-term. We want an agency driven by science, not
politics. We want an agency that accepts the various public interests
involved in our National Forests as indispensable partners in land
management decision-making. We want a new USFS.
And a new USFS is coming; internal agency demographics and external
realities make that inevitable. The issue is what type of new Forest
Service we will have. This is our proposal.
From Conflict to Cooperative Conservation
From our many conversations with USFS personnel at all levels,
industry folks, and other interested people, it is clear that a
critical mass of people involved in our National Forests are ready to
change how business as usual is done. The seemingly endless days of
conflict and trench warfare among competing concerns wear down parties
while the needs of the forests are sidelined.
Instead of frustration and anger, we propose a new course for
positive change in the USFS and on our National Forests. Instead of
focusing on the issues and principles we each hold that have divided us
over the past decades, we need to begin talking with each other with
respect and open minds. Let us focus on the areas of common ground
where we can agree on the problems facing our forests, on the issues
involved and on the solutions. We can always come back to the
contentious issues later, and when we do, we may well find that after a
few years of cooperation on common ground issues, we are not so far
apart on those problem issues either.
We all now have an opportunity to figure out how to fix real
problems and encourage the real innovations and successes the agency
can achieve. Such an effort can be exciting while producing a better
agency, better public relations, more certainty in forest management,
and much less litigation. While there will be issues and areas where we
do not agree, we can put those aside for the time being and work on the
issues and areas upon which we can agree. In our experience, we find
that 20% of the issues on the National Forests divide us, and the
conflict around those issues prevents conversations and solutions on
the other 80%. In every instance where we have been open to exploring
the neglected 80%, we have found common ground with all reasonable
people who care for our public lands.
As one of the top litigators against the Forest Service, WildLaw
knows where the agency cuts corners and where the agency shines. We
know many good people in this agency, good people who are true public
servants. We also know the few bad people in the Forest Service, bad
people who will do anything they can to make short-term money for their
buddies in industry at the expense of the public at large. The few bad
folks spoil things for the many good agency employees. Every agency or
collection of people is subject to this dynamic of a few dragging down
the work of the whole; this is not unique to the Forest Service. But,
at this time, we believe that we all really have the chance to reverse
this dynamic for the Forest Service, to seize this opportunity to end
the days of the few holding back the rest.
It is clear that collaborative efforts and cooperative conservation
plans have been notably successful in many areas throughout the nation;
WildLaw and our Executive Director Ray Vaughan have participated in
several such efforts and know some of those successes. But as admirable
as those success stories are, they are still the exception, not the
rule, of how conservation work is done in America or on our National
Forests. Clearly, more efforts are needed so that they become more of
the rule.
Cooperative conservation efforts on our National Forests can
produce results as good as the rhetoric. One example of success is the
largest timber sale in agency history: the Hurricane Katrina salvage
project in Mississippi (490,000,000 board feet) was conducted by a
collaborative, cooperative process, and it was a success at every
level.
If cooperative conservation succeeds on a broader, national scale,
all of us can celebrate. If it does not, our forests will continue to
degrade and command-and-control regulatory warfare will return. Trusts
will be betrayed if cooperation does not lead to better forest
management, but the possibilities cannot be known without trying.
Details of the WildLaw Proposal for National Forests
Since WildLaw's founding a decade ago, litigation and other legal
actions have been our key methods for stopping egregious and illegal
projects on public lands. During these ten years, we have developed
critical links between regional efforts to facilitate restoration-based
management on both public and private lands. Building upon and
branching out from litigation, we have learned to use a broad array of
tools in a proactive approach to both public and private resource
management issues in our region: legal defense, economic reform,
community empowerment, capacity building, and technical support.
WildLaw's concept of ecological restoration and sustainability for
National Forests can help serve as a national policy statement to guide
sound forest management. By including social and economic criteria,
ecological restoration also bridges the gap between what is good for
the land and what is good for communities and workers. Our concept
would increase the amount of good work being done in our forests and
reverse centuries of unwise resource extraction and development that
have fundamentally altered most of America's forests. This history of
unguided management has directly contributed to a dramatic loss of
habitat, decline in water quality, and disappearing old-growth forests,
as well as economic and social harm to communities and workers. Such
good restoration efforts only work, however, if they are based on
science and recognize that ecosystems are complex and our understanding
of them is still limited.
Through a process of truly doing what is best for the land through
restoration and management based on sustainability, the Forest Service
needs to fully examine the role it could play in restoring community-
based forestry economies and cultures in the regions surrounding our
National Forests. During a period of significant change in forest
policies at the federal, state and local level, WildLaw's vision of
ecological forest restoration and sustainability establishes a viable
vision for restoring natural ecosystems and a sustainable human
relationship with the land.
Simply being an oppositional organization seeking to stop bad
projects, while a worthwhile strategy and an integral part of our
history, cannot be the only focus for WildLaw. We have an obligation to
find ways to make the National Forests more vital and functioning
ecosystems that meet the needs of a diverse set of people who use and
love these lands. Through our initial experiences with pushing science-
based ecological restoration and sustainability, WildLaw has begun a
new and proactive/positive avenue of affecting forest management for
the better.
We are faced with a synergistic combination of crisis and
opportunity, and WildLaw is proposing three strategies:
1. Facilitating ecosystem-based forest management that restores
and enhances the ecological health and sustainability of forests while
producing services and goods for human communities, whether those
economic opportunities are recreational or physical byproducts of
ecosystem restoration.
2. Developing local, regional, and national markets, value-added
enterprises, and business networks that maximize the economic benefits
of sustainable forest management for the Forest Service, local private
landowners, workers, and communities.
3. Developing a skilled workforce of forestry professionals with
access to the technical expertise, equipment, and financial resources
required to carry out restoration and low-impact management activities
on the ground.
Facilitating ecosystem-based forest management restores and
enhances the ecological health of forests while producing services and
goods for human communities.
Ecological Restoration Projects
In the late 1990s, WildLaw pioneered the model of ecosystem
restoration on the National Forests in the South. Starting in Alabama,
WildLaw worked with the USFS to develop the first forest-wide, science-
based restoration programs in the nation. These restoration programs in
the National Forests in Alabama have been extremely successful and have
become national models. Our goal is to spread this model throughout the
entire National Forest System nationwide.
Obviously, what is restoration of functioning forest ecosystems and
what is sustainable management of those ecosystems will vary from
forest to forest. There clearly can be no ``one size fits all''
approach to what is required on the ground. Some areas will need a
hands-off approach, letting nature heal itself. Some areas will need
road maintenance, road obliteration, stream restoration and other site-
specific actions. Some areas will need thoughtful, long-term
manipulation of the vegetation, sometimes through mechanical
treatments, sometimes through prescribe fire. Some areas will need
aggressive invasives treatment. Some areas will need planning for
eliminating uncontrolled harmful recreation while still providing fun
and safe areas for all forms of recreation. There is much genuine
restoration work to be done.
While the work required on the ground might be different for each
Forest, the process for arriving at a consensus of what the restoration
and sustainable management needs of a particular Forest are can be
universal. It is not a matter so much of using once set of laws and
regulations over another. It is more about common sense, openness,
humility and a willingness to listen and learn from others whom you may
not agree with right now.
To make cooperative restoration programs work on our National
Forests, folks like us at WildLaw must maintain vigilance in reviewing,
commenting on and, when necessary, challenging projects on our public
lands. Cooperative conservation only works when those who would abuse
the land and the public for short-term gain cannot do so and when those
whom they would adversely influence know they have the room to do the
right thing, despite the politics of exploitation. So, we are not going
away if cooperative conservation works; if anything, we will be more
involved. We hope that the Forest Service and industry will get more
involved also; that will be the only way for solutions to work.
For the USFS, to make a change in direction that solves most of the
current problems in management of the National Forests, it
needs to do these things:
Follow the law, use good science, be honest and open with the
public.
For folks in the industry who are frustrated by the unpredictable
and intermittent flow of materials from the National Forests and for
agency personnel frustrated by the inability to get work done and the
inability to do needed management, I want you to image something.
Imagine a place where the flow of timber off the National Forests is at
a known level and stable and predictable for at least 50 years, a place
where the harvesting of that timber is not controversial and projects
to approve that harvesting are not appealed or litigated, a place where
industry, forest practitioners, environmentalists, scientists and
agency personnel have all agreed on the management needed. Well, you do
not have to imagine such a place. That place is the National Forests in
Alabama.
The solution to analysis paralysis lies not so much in changing the
rules of analysis but in changing how you do your analysis. For too
long, the agency has compartmentalized (literally) its forests and its
work. Trying to make each project look small and insignificant seemed
like a good way to avoid doing population data collection, cumulative
impacts analysis and a host of other things required by law for ``big''
projects. This scheme has not served either the forests or the Forest
Service.
The Forest Service must stop managing merely by compartment and
individual project. Instead, step back and assess at a landscape or
watershed level what it is that the forests need and what can be done
to meet those needs over a longer term, at least five years. Fifty
years would be better. This is not planning but how to implement plans
with a broad vision instead of a microscope. The Forest Service also
must not focus on ``product'' being produced for sale; having timber
quotas has never helped the forests or the agency. It would be far
better to focus on acres restored, watersheds healed, rivers and
streams restored, wild places protected, visitor experiences enhanced,
conflicts resolved, new workforces created, and the like. Do what the
land needs, use the right tools to do the right job, and there will be
products and services provided in their own due course. Focus on the
work, the land and the people; the rest will take care of itself and be
much better than artificial targets.
Take a year or two to develop a full and quality EIS on what
restoration really means for your district or forest. Think big. Look
at all forest needs, road repair and road obliteration, stream
rehabilitation, indeed entire watershed rehabilitation, invasives
removal, native forest restoration, etc. Involve all stakeholders at
every step, especially at the start of the process. Instead of
proposing actions, share each Forest's problems with all the
collaborative stakeholders and seek their input on what the solutions
(and thus the management actions) should be to solve those problems.
Seek out ideas and assistance. Think big. Instead of a series of
``small'' projects that cumulatively are big (but which you claim are
not), admit that what you are doing is one big project and analyze and
act accordingly.
In woodworking, the saying goes ``measure twice, cut once.'' It
means to take the time to make sure the planned action is correct and
then you get to take that action without making major mistakes and
without having to do the work over. For NEPA, NFMA and ESA analysis,
the same is true. Take the time to make sure what you are doing is
right and done well, then you can do it without having a judge tell you
to go do it over again. And over again....
To see how to do this right, look at the Conecuh National Forest in
Alabama which prepared an EIS on a five-year program to restore
Longleaf Pine over some 4,222 acres. It would give Forest Service
restoration work better direction and improved validity if it abandoned
all the piecemeal projects and instead looked at the forest as a whole
to prepare and implement a full EIS on a comprehensive restoration
program for each forest that could guide the timber management and
other actions for a five-year period. One comprehensive and more-
thorough analysis gives a better picture of the work that needs to be
done (and where it really needs to be done) and can be done without the
problems that arise from piecemeal implementation.
Now, all the forests in Alabama have prepared restoration programs.
The Talladega National Forest released their five-year Longleaf Pine
restoration EIS in early 2004. It covers 19,000 acres. They had MIS
data for the entire area over several years, as well as complete PETS
surveys for every acre of that 19,000 acres. That created a baseline
and a need which no one could challenge.
Benefits of a Restoration/Sustainability Paradigm for the Forest
Service
There are many benefits for all interested parties from a shift to
this paradigm for the Forest Service:
The USFS reduces conflict and litigation, most likely a
significant amount.
An end to ``analysis paralysis,'' ``process
predicament,'' or whatever you call the excessive paperwork the agency
engages in to justify plans and projects.
Legal requirements for the development and implementation
of projects and programs become clearer and better defined.
Resources needed to plan and propose programs and
projects are reduced while resources for actual implementation of work
and monitoring on the ground increase.
The timber industry and local communities gain a
predictable and sustainable supply of economic and ecologic services
and products from the National Forests. This paradigm will never
recreate the unsustainable heyday of 12,000,000,000 board feet of
lumber coming off the National Forests, but the intended sustainable
reality of a more diverse economic engine from the National Forests
will emerge.
The public and conservation organizations gain the
comfort that special areas in the National Forests are not the target
of exploitation and management resources are expended on restoration of
areas that really need that better management.
Conflicts over hot-button issues are reduced, and
``judgment day'' on dealing with those issues is postponed, if not
eliminated.
Communications, dialogue and cooperation among previously
adversarial parties increases and could lead to a new level of
understanding that will solve many of the problems and conflicts on
these public lands.
Restoration and sustainable management improve habitat
conditions for all native wildlife on the National Forests.
The number of species headed toward extinction will be
reduced, and those listed under the Endangered Species Act will head
more toward recovery.
Habitat for game species will be enhanced and improved.
Protection of watershed values and clean water coming off
the National Forests will increase.
Clean air provided by natural forests will increase.
Forests will become more resilient. Long-term restoration
and sustainable management will reduce the National Forests'
susceptibility to major damage from fire, insects, drought, hurricanes
and other events.
Restoration of natural ecosystems and sustainable
management of those ecosystems will make the forests better able to
handle changes due to climate change.
Restoration and sustainable management make the National
Forests a partial solution in reducing the severity of climate change.
Conflicts between recreational users will be reduced as
careful planning of where and how to accommodate the various uses
sustainably will help resolve these conflicts.
Training and new opportunities for forest practitioners
and local communities will increase and provide long-term, predictable
opportunities.
A unified and agency-wide program for solving problems
through this new paradigm with the widespread support of diverse
interests could convince Congress to be more supportive of the agency
and its funding needs.
The National Forests and their management paradigm of
restoration and sustainability would be a powerful and true model for
the management of private forest lands.
Work on the National Forests would be a jumpstart for the
development of sustainable local economies based around the forests.
There has been a lot of difficulty of developing new markets for
private forest landowners and practitioners. The National Forests could
provide the genesis for this and give it the ability to grow into the
broader realm of forestry on all lands.
U.S. Forest Service and Its Opportunities with Communities
WildLaw feels that the U.S. Forest Service has both a relationship
to the communities in the areas surrounding its forests as well as an
opportunity to help better those same communities. First, many areas
near National Forests tend to be rural, with little or no real industry
to provide employment. Second, the artificially high and unsustainable
harvests of the 1970s and 1980s created a reliance on those forests for
jobs that were not sustainable for the long-term. Third, by harvesting
most of the resource ``capital'' from these forests without any
accompanying reinvestment, the Forest Service in effect stole from
residents in communities surrounding these forests, and they have an
obligation to right those wrongs from past mismanagement.
After years of dis-investment from rural, forest dependent
communities, it is time for a major change. Elsewhere, especially in
the West, communities and the Forest Service have recognized this need
and have been working towards the creation of a restoration economy.
The trick is how to get dollars for the work. The Forest Service and
Congress seem intent on trying to make the forests pay for this out of
dwindling forest reserves. To accomplish this, the Forest Service all
too often puts out timber sales that involve harvesting the limited old
growth or mature, functioning forests in order to pay for restoration.
This is like borrowing money at 8% to reinvest it at 4%. It is taking
the last capital out of the bank which will continue to bankrupt the
forests and surrounding communities.
A sounder approach is to recognize the depleted accounts and to
make a reinvestment that could be used to rebuild the capital so that
once again we could live off the interest of a sustainable endowment in
our forests and communities. This approach allows for the development
of local workforces due to the sustainable nature of forest investments
and activities, each Forest having its unique set of restoration needs
and unique situation for sustainability.
WildLaw feels strongly that the Forest Service is in a position to
do this. Science-based ecological restoration could provide the dual
benefits of improving and restoring areas of the forests to more
natural state and at the same time providing sustainable, well-paying
jobs in the process.
As an agency guiding principle, the U.S. Forest Service needs to
recognize and embrace the need for ecological restoration and
sustainable management on the National Forests. True restoration and
sustainability implemented on National Forests can be accomplished by
engaging in the following strategies:
1. Every National Forest should engage in an open, cooperative
public process to develop a vision for what that Forest needs and
should move toward, like all the National Forests in Alabama did. All
the restoration needs of that Forest need to be examined and
prioritized in a collaborative process that gives all interests the
assurance that they are heard and that their needs are met to at least
a reasonable level. All available scientific knowledge and expertise on
the particular Forest's ecosystems must be fully integrated into the
entire collaborative process. The agency should let proposed management
actions come out of that process instead of proposing actions prior to
the process. If additional authority and funding for this collaborative
process are needed, the agency should go to Congress to seek that,
showing them the successes the agency has thus far and how this
approach can solve many of the problems facing the National Forests.
2. At the project level and the Forest planning level, the USFS
should advocate for ecological restoration whenever appropriate,
including having restoration-only alternatives developed for proposed
projects. As an example, the 2004 revised plan for the National Forests
in Alabama emphasizes restoration as the main management goal for the
next 15 years in all the Forests in the state.
3. At every level, starting at the Washington Office, Forest
Service decision-makers need to make it a priority to move the National
Forests toward this model of ecological restoration. protection and
long-term sustainability. Needed changes to regulations, additions to
the Handbook and the Manual, and any needed guidance on this type of
work should be developed and adopted with full public participation.
4. More work by the Research Stations should be focused on
restoration and sustainability, both in general and in what particular
Forests need. For some ecosystems, Longleaf Pine as the primary
example, the actions needed to restore the ecosystem are well known.
For most forest ecosystems, though, what is needed to restore the
forest to a healthy state and keep it in a sustainable management
regime is not yet known, or not well known. For such forests,
restoration plans should start with well-monitored pilot and
experimental projects before moving to a large scale, forest-wide
program. For a well designed and monitored project to test restoration
techniques for such forests, all parties involved must be willing to
accept risk and be willing to allow the agency to fail occasionally
without punishment.
5. To make all of the above possible and attractive for Line
Officers in the agency, the Forest Service should engage in a thorough
and comprehensive training program for its personnel to show them how
to engage in the collaborative process to produce good restoration and
sustainable management for their individual Forests. There are
personnel in the agency who know how to do this; folks in groups like
WildLaw and in industry also know how to do this. The agency should
sponsor a program of training and education that brings together these
people who have experience in this new paradigm so that they can
educate others in this process and help them find the cooperative
solutions that work for their individual Forests. WildLaw is fully
prepared and ready to assist in this educational effort wherever it is
needed.
Litigation risk and adversarial relationships would diminish
drastically with this approach.
One of the greatest obstacles to accomplishing good forest
management on the ground is the lack of skilled professionals
practicing low-impact forestry. Our forest industry has mainly evolved
to rely on large-scale logging operations that maximize short-term
timber production, often at the cost of forest health. As a result, the
vast majority of our logging workforce is deeply invested in expensive
harvesting systems that require very high ``production efficiency'' to
achieve profitability. While timber harvests have increased, the size
of our workforce has actually declined. Loggers have had little choice
but to follow the lead of industrial forestland owners and timber
buyers to remain competitive.
With increasing interest in, as well as demand for, ecosystem-based
forest management, the time is right to begin facilitating skill
development for logging crews and other forestry and restoration
practitioners. Pursuing this goal will require a significant investment
in education, equipment financing, business development assistance, and
technical assistance, and will require that we engage a new array of
partners.
The U.S. Forest Service needs to work with partners such as
community colleges, universities, established local logging crews,
local mills, and nonprofits such as WildLaw and the Southern Forests
Network (SFN) to explore opportunities for workforce development using
such strategies as:
1. Meet with potential partners to introduce them to new ideas and
gauge their interest in working together (our SFN program recently net
with a local university forestry program and community college forestry
& logging program).
2. Facilitate collaborative development of pilot projects on
National Forests where there is the need to learn how to restore the
forest ecosystems there.
3. Examine new markets and new products that can come from
restoration activities, including small diameter wood products and
products from thinning and clearing of undergrowth (including biomass
energy, mulch, specialty crafts, carbon sequestration market credits,
and other products).
EVALUATION
While a new paradigm in forest protection and management will take
time to take hold and grow, there are ways to recognize and know that
it is doing just that:
Increasing number of valid restoration programs and
projects on more National Forests.
Open recognition by the USFS at all decision-making
levels that restoration and sustainability are the goals of management.
Increased involvement and interest by private forest land
interests in the restoration work on National Forests and use of that
restoration work as models for their private land work.
New and increased market and economic opportunities for
local communities and forest practitioners in sustainable forestry
work, both on public and private lands.
More National Forest management plans that directly and
openly embrace restoration as the primary management goal, such has
been done in Alabama, and to a lesser extent, Florida.
More individual National Forest projects that are
restoration based and fewer projects that fail to comply with the law.
Where legal actions are necessary, they lead to the
litigants and the Forest Service using the cases as opportunities to
reevaluate management, instead of blindly defending past mistakes or
blindly attacking the agency. And for those who challenge the agency,
those groups must be open to finding a new direction for management,
instead of just saying ``no'' to any management. Industry must be
willing not to demonize environmentalists who challenge real violations
of the law and bad management decisions; industry should not defend bad
agency actions in a mentality of ``defend it all, right or wrong.''
Industry must be willing to admit that certain activities should not be
conducted on the public lands (or not conducted in certain ways or for
certain reasons) in order to get better and truly sustainable
management on the National Forests. Basically, trench warfare amongst
all parties must end, and litigation must be reserved for truly illegal
and unwise management decisions.
Increased reporting of the ideas and implementation of
restoration and sustainable management, both in the mainstream press
and in forestry and academic publications.
New and increased participation by traditional forestry
industry in sustainable forestry efforts to help communities and
workers make their work truly sustainable for the land and themselves.
______
Mr. Grijalva. Thank you, sir. Let me turn now to Mr. John
Stavros. Thank you, sir.
STATEMENT OF JOHN STAVROS, NEW HARMONY, UTAH
Mr. Stavros. As you said, my name is John Stavros. I come
from a part of the country where you hear people say it's hot,
but it is a dry heat. So a little different than here. I grew
up in Salt Lake City and moved to New Harmony 11 years ago. I
live on four acres of Forest Service boundary land, and I share
a fence with the Dixie National Forest. I am an application
developer for a large Boston-based financial services firm. My
manager is in Boston, and I am lucky enough to work from my
home office in the middle of nowhere.
You have heard testimony regarding categorical exclusions
and their use and misuse, and you have heard it from experts on
all sides of the issue. So why am I here? I am here to make it
personal. This is my house. We see pictures like these coming
out of Lake Tahoe this week, and it is easy to become numb to
them. Let me tell you, when it is your house, it is a different
set of emotions.
As you look at the pictures in my written testimony, you
can see that this was a very close call. The Blue Springs fire
roared into the community on the evening of June 27, 2005, just
two years ago yesterday. There are many reasons why my house
still stands. As Mr. Lawrence mentioned in his closing
comments, it has a great deal to do with the conditions of the
home itself, and we planned and built for the conditions in
which we live.
I created a green space around my home and built it with
fire-safe materials. Also my roof was thoroughly wet. Three
built-in rooftop Rain Birds were soaking my house during all of
this, and the heroics of the brave pilots and firefighters
cannot be overstated.
In 2003 through 2005, two efforts were going on
concurrently. First, the Forest Service informed the community
in writing that they planned to cut a fuel break through the
area just behind the community on Forest Service land. This
thorough four-page document which began, ``Your input is being
sought'', demonstrated how well thought out the plan was, and
it offered a variety of contact methods if people had concerns.
My only concern was, would the work happen quickly enough to do
any good?
Did the fuel break stop the fire in its tracks? No. Did it
help? I am certain that it did, as I observed the fire from as
close as you would ever want to be. I believe that the fuel
break bought precious minutes, allowing the helicopter to make
one or two additional drops. It gave the community a few extra
minutes to evacuate when the fire abruptly blew up in the early
evening.
Second, the Utah State Department of Forestry, in
cooperation with the local fire department and the U.S. Forest
Service, organized my neighborhood to engage in work parties to
reduce the fuel load, mitigate ladder fuels, and make the
community as fire safe as it could be. We contributed dozens of
hours over many weekends using chainsaws and hand tools while
the state provided a chipper to shred the piles of useless
slash.
My neighbors and I know that we have chosen to live in a
higher risk area, and we do not expect the government to make
us safe while we sit on the deck and sip lemonade. We grabbed
onto the opportunity presented to us, got organized, and
accomplished much, and as you might guess, following the fire
we redoubled our efforts and worked even harder, but becoming
fire-safe did not require that we clear-cut our beautiful
properties. The Federal and state forestry officials taught us
the concept of ladder fuels and helped us retain the wild
beauty while reducing the hazard.
I understand that some people believe that the public was
excluded from the planning of the fuel break and that the
motivation to move so quickly was based in part on greed.
Somehow the Forest Service was going to make a buck on the
trees they pulled from the fuel break while everyone was caught
napping. In this situation, this is absurd. Junipers and scrub
oak are brushy, gnarled trees with really little value beyond
perhaps firewood.
The fuel break work began on schedule in the summer of
2003. It was going on just 1 or 200 feet behind my home so we
could see and hear the daily progress of the work crews. Each
evening my wife and I walked back into the cut zone to observe
the results of the day's efforts. While we embraced the
importance of the work, we expected to have our hearts broken
by the site of the denuded land and a chaotic job site.
Instead, we saw that the crews took care to preserve the beauty
and habitat of the zone, and that they stacked the useless
slash neatly into piles exactly as the decision memo said they
would. When winter lowered the fire danger to zero, crews
returned and burned the slash.
Did I speak up or did I sit by passively? I am not a person
who sits back and lets the government do as it wishes. When I
moved out of the city, I quickly learned that in a sparsely
populated region a few engaged people can make a difference. I
am president of the local cycling club, and I serve on the
national mountain patrol, a trained volunteer organization
similar to a ski patrol.
I participated in numerous planning meetings with local and
Federal land managers where the recreational interests of
mountain bikers needed representation. I have proactively
organized groups to support the mutual goals of land managers
and cyclists. In turn, the land managers call on me when they
need at the table a rational thinking representative of
mountain biking. It is a relationship borne of trust and
respect over the years. I believe that this history
demonstrates that I am not passive when it comes to issues
about which I am passionate.
If I felt that the Forest Service had planned anything not
in the public's and my best interest, I would have spoken up. I
know how to speak up, and I like to engage in the process. That
is why I came 2,000 miles to spend five minutes with you today,
and I see that my time is up so I do thank you for your
attention.
[The prepared statement of Mr. Stavros follows:]
Statement of John Stavros, Resident of New Harmony, Utah, Application
Developer in the private sector, Testifying at the request of the U.S.
Forest Service
CONTENTS
1. Summary of witness credentials
2. Photographs from the Blue Springs Fire of June 27, 2005
3. Letter to residents regarding fuel break plans
4. Decision memo
5. Summary of oral testimony
I. Summary of witness credentials
The following establishes my credibility as a witness. I bring the
following experiences and circumstances to this hearing:
I am not affiliated with any government agency. I am
employed in the private sector as an application developer in a large
financial services firm.
I've lived in the West all my life. I grew up in Salt
Lake City and moved to southern Utah 11 years ago.
I share a border with the Dixie National Forest. The back
fence of my 4-acre home is the Forest boundary.
I was informed about a planned fuel break well in advance
of the commencement of work and had reasonable opportunity to oppose it
had I wanted to. (I did not oppose it and opted not to make contact.)
I observed the crews as they completed the fuel break and
had no problems with the way they conducted their work. It proceeded
efficiently in a workman-like way.
On June 27, 2005 a large forest fire came within 60 feet
of my home giving me a frighteningly close view of the fire fighters'
remarkable suppression efforts. I also witnessed the effects of the
fuel break and the role it played in saving my home.
I am president of the local cycling club and serve on the
National Mountain Bike Patrol, a trained volunteer organization that
functions much like the ski patrol does in ski resorts. These roles put
me in frequent contact with local land managers.
I have a running history of advocacy with local, state,
and national land managers regarding recreation issues important to
mountain bikers. I am proactive about being at the table during
planning sessions and can rally local mountain bikers to volunteer in
support of the mutual goals of land managers and cyclists.
In 2004 and 2005, a dozen of my neighbors and I worked
with the State Forestry people to reduce the fuel load on our
properties. We cleared deadfall and cut the lower limbs from trees in
an effort to hinder the progress of a fire. The neighbors provided the
tools and labor and the State provided a big chipper to turn our huge
slash piles into mulch.
II. Photographs from the Blue Springs Fire of June 27, 2005
[NOTE: Photographs have been retained in the Committee's official
files.]
III. Letter to residents from the USFS regarding fuel break plans
June 12, 2003
Dear Interested Party:
Your input is being sought on an analysis for the New Harmony Fuels
Treatment on the Dixie National Forest. This letter and the attached
maps will provide you with information on the background of the
project, the Purpose & Need, the Proposed Action, the decision to be
made, as well as a request for your comments.
If the analysis demonstrates there are no issues, the responsible
official will document this in a Decision Memo. The responsible
official for this project is the Pine Valley District Ranger of the
Dixie National Forest.
Background. The rapidly growing community of New Harmony has
expanded along the National Forest boundary where structures have been
built in the existing dense vegetation. Recently, large wildland fires
like the Sequoia (8,100 acres) in 2002 and the Harmon Creek (493 acres)
in 2000, and numerous small wildland fires, have burned around New
Harmony. New Harmony is listed in the Federal Register as a ``Community
at Risk'' to wildland fire. It is also an Interagency Urban Interface
Focus Area. As such, the BLM and Utah Forestry, Fire, & State Lands
Department are currently planning and executing different fuel
treatments to make wildland fires easier to contain and extinguish.
Purpose. The purpose for this project is to modify fire behavior
around New Harmony by reducing fire rate of spread and intensity, and
by creating conditions that support desirable fire behavior. This
project strives to have residences and community infrastructure
adjacent to Forest Service land less susceptible to impacts from
wildland fires. Fire behavior conditions associated with thick,
continuous stands of brush and trees can fuel intense wildland fires in
many areas along the National Forest/private land boundary. These
conditions limit suppression effectiveness, and compromise the safety
of initial response firefighting resources that are called on to
protect these structures.
Need. To help protect New Harmony from future wildland fires, fuel
modification is needed along the National Forest boundary. The
modification should result in fire behavior (specifically, flame
lengths) that is low enough so firefighters can be effective if
suppression action is necessary.
Proposed Action. Construct a shaded Fuelbreak 4.9 miles long and
240 ft. wide by mechanical treatment and pile burning. The proposed
action treats 145 acres to a fuel loading that produces flame lengths
less than 4 ft. on all but the worst 10 percent of the weather days.
The shaded fuelbreaks (see attached map) will consist of new
construction (240 ft wide) and widening of existing fuelbreaks that are
50 ft. wide to 240 ft. The fuelbreak will reduce dead and down fuel
loading to less than 5 tons an acre. The brush and shrubs would be cut
to approximately 6 inches or less in height. Pinyon and Juniper trees
less than 8 feet tall would be cut, piled and burned. Pinyon and
Juniper trees over 8 feet tall would be retained at a minimum crown
spacing of 15 feet to a maximum crown spacing of 60 feet. A minimum of
1 snag per acre would be retained. Fuel wood gathering would not be
possible because of limited vehicle access.
[GRAPHIC] [TIFF OMITTED] 36475.011
.epsProposed action for new fuelbreak construction.
A total of 2.6 miles of new fuel break will be
constructed to a width of 240 ft (92 acres). Of this, 2.1 miles 240 ft
wide (76 acres) will be accomplished by chainsaw cutting and subsequent
pile burning. Pile burning will occur during winter months. The
remaining 0.5 mile, 240 ft. wide (15 acres) of new line construction
will be accomplished using a mechanical brush mower in a previously
treated area that contains a lower level of Pinyon and Juniper fuels
that may be accomplished with this type of equipment.
Proposed action for widening existing fuelbreak.
The existing fuelbreak was constructed under a wildland
fire emergency action in 2002. The existing fuelbreak is 2.3 miles long
and 50 ft. wide, the proposed action will widened it to 240 ft. (53
acres). This widening will be accomplished by chainsaw cutting and
subsequent pile burning. Pile burning will occur during winter months.
Proposed Action Maintenance and Implementation Design
The fuelbreak will be maintained by using goats to reduce
encroaching grass and shrub vegetation at regular intervals (1-3 years)
based on vegetation height (; to 3 ft in height). The goats will be
utilized only within the fuelbreak area (145 acres), and be controlled
with movable electric fence and consistently monitored by a herder. If
goats are unavailable, maintenance will be accomplished by the use of
chain saws and/or brush cutters with subsequent pile burning in fuels
are in excess of prescription parameters. The area that is initially
treated by mowing may be maintained by mowing when vegetation
parameters are met (; 3 ft in height).
Seeding of the constructed fuelbreaks would occur to
reduce the relative amount of fine fuel produced by cheatgrass. This
seed would be a mixture of non-native seed.
The proposed action has been designed to limit access by
ATVs. This would be accomplished by not removing existing vegetation
barriers where there is potential for ATV access. Other areas of
potential access will employ physical barriers (i.e. large rocks) to
prevent access.
Location. The proposed action would be constructed south and west
of the town of New Harmony (see map). The proposed action would be
constructed in Sections 20, 27, 28 and 34 of Township 38S Range 13W and
Section 2 of Township 39S Range 13W.
Timeline. Please respond to this letter with comments by June 25,
2003 to
Bevan Killpack
U.S. Forest Service
Pine Valley Ranger District
196 E. Tabernacle, Room 40
St. George, UT 84770
(435) 652-3100
ATTN: New Harmony Fuelbreak
Thank you for your time and interest in your National Forest.
BEVAN KILLPACK
District Ranger
[GRAPHIC] [TIFF OMITTED] 36475.012
.epsIV. Decision memo
Decision Memo
USDA Forest Service
Dixie National Forest
Pine Valley Ranger District
New Harmony Fuel break
LOCATION AND EXISTING CONDITION
The project would create a fuel break in the dense brush on
National Forest System lands south of the town of New Harmony,
Washington County, Utah. Please see the attached map for the location.
Existing fuels consist of primarily curlleaf mahogany, gambel oak,
serviceberry and Utah juniper. There is a high content of dead and down
fuels in the area. Edges would be ``feathered'' and islands of
untouched vegetation would be left to provide visual softening and
hiding cover for wildlife.
Biological Evaluations (BE) were performed for sensitive plant and
animal species, and a Biological Assessment (BA) was completed for
threatened, and endangered plant and animal (biological evaluations and
assessments are included in the project file) The BE determined no
effect to sensitive species. The BA also determined there would be no
effect on threatened and endangered species, nor on their critical
habitat.
PURPOSE AND NEED FOR THE ACTION
The purpose for the proposed project is to:
Create a defensible space around private property
adjacent to National Forest System lands in case of fire.
Increase potential effectiveness of initial attack
firefighter resources within New Harmony.
The fuel break is needed for two reasons:
Completing the proposed project would provide
firefighters a defensible space in which they could more effectively
suppress fires approaching the town of New Harmony from the south.
Increase potential effectiveness of initial attack
firefighter resources from the Dixie National Forest and cooperators.
This project is the third in a series of actions designed to
provide better fire protection for the private and public land in and
around New Harmony. The first action was the cooperative completion of
the fuel break on the adjacent BLM administered land and the second was
the construction of the fuel break in conjunction with the Sequoia
wildfire. This action will complete the fuel break between the BLM and
the fuel break created in conjunction with the Sequoia wildfire.
PROPOSED ACTION
Construct a shaded Fuelbreak 4.9 miles long and 240 ft. wide by
mechanical treatment and pile burning. The proposed action treats 145
acres to a fuel loading that produces flame lengths less than 4 ft. on
all but the worst 10 percent of the weather days.
The shaded fuelbreaks (see attached map) will consist of new
construction (240 ft wide) and widening of existing fuelbreaks that are
50 ft. wide to 240 ft. The fuelbreak will reduce dead and down fuel
loading to less than 5 tons an acre. The brush and shrubs would be cut
to approximately 6 inches or less in height. Pinyon and juniper trees
less than 8 feet tall would be cut, piled and burned. Pinyon and
juniper trees over 8 feet tall would be retained at a minimum crown
spacing of 15 feet to a maximum crown spacing of 60 feet. A minimum of
1 snag per acre would be retained. Fuel wood gathering would not be
possible because of limited vehicle access.
Proposed action for new fuelbreak construction.
A total of 2.6 miles of new fuelbreak will be constructed
to a width of 240 ft (92 acres). Of this, 2.1 miles 240 ft wide (76
acres) will be accomplished by chainsaw cutting and subsequent pile
burning. Pile burning will occur during winter months. The remaining
0.5 mile, 240 ft. wide (15 acres) of new line construction will be
accomplished using a mechanical brush mower in a previously treated
area that contains a lower level of Pinyon and Juniper fuels that may
be accomplished with this type of equipment.
Proposed action for widening existing fuelbreak.
The existing fuelbreak was constructed under a wildland
fire emergency action in 2002. The existing fuelbreak is 2.3 miles long
and 50 ft. wide, the proposed action will widen it to 240 ft. (53
acres). This widening will be accomplished by chainsaw cutting and
subsequent pile burning. Pile burning will occur during winter months.
Proposed Action Maintenance and Implementation Design
The fuelbreak will be maintained by using goats to reduce
encroaching grass and shrub vegetation at regular intervals (1-3 years)
based on vegetation height (; to 3 ft in height). The goats will be
utilized only within the fuelbreak area (145 acres), and be controlled
with movable electric fence and consistently monitored by a herder. If
goats are unavailable, maintenance will be accomplished by the use of
chain saws and/or brush cutters with subsequent pile burning in fuels
are in excess of prescription parameters. The area that is initially
treated by mowing may be maintained by mowing when vegetation
parameters are met (; 3 ft in height).
Seeding of the constructed fuelbreaks would occur to
reduce the relative amount of fine fuel produced by cheatgrass. This
seed would be a mixture of non-native seed.
The proposed action has been designed to limit access by ATVs. This
would be accomplished by not removing existing vegetation barriers
where there is potential for ATV access. Other areas of potential
access will employ physical barriers (i.e. large rocks) to prevent
access.
DECISION
It is my decision to construct and maintain the project as
described above.
CATEGORY
The Proposed Action is categorically excluded from documentation in
an environmental impact statement or an environmental assessment
(Forest Service Handbook 1909.15 (31.2). A project file has been
prepared and is located on the Pine Valley Ranger District. The
Proposed Action is a routine activity as defined in FSH 1909.15 Section
31.2. It will not individually or cumulatively affect the human
environment and will not have effects on procedures adopted by the
Agency.
The Proposed Action falls within category 10, of Section 31.2:
``Hazardous fuels reduction activities using prescribed fire,
not to exceed 4,500 acres, and mechanical methods for crushing,
piling, thinning, pruning, cutting, chipping, mulching, and
mowing, not to exceed 1,000 acres''
FINDING THAT NO EXTRAORDINARY CIRCUMSTANCES EXIST
This analysis considered the extraordinary circumstances defined in
FSH 1909.15, Section 30.3. It has been determined that no conditions
exist which might cause the action to have significant effects on the
human environment. The analysis also revealed that no extraordinary
circumstances exist which may cause the Proposed Action to have
significant effects. A summary evaluation is described below.
a. Steep slopes or highly erosive soils: The proposed action
occurs on slopes and soils suitable for the project.
b. Threatened and endangered species or their critical habitat: A
finding of ``no effect'' has been determined for all threatened and
endangered plant and animal species.
c. Flood plains, wetland and municipal watersheds: The proposed
action will not affect any flood plains or municipal watersheds.
d. Congressional designated areas, such as wilderness, wilderness
study areas, national recreation areas: These designations do not occur
within the project area.
e. Inventoried roadless areas: The treatment units do not occur
within any inventoried roadless area.
f. Native American religious or cultural sites, archeological
sites, or historic properties or areas: No known sites will be
affected.
g. Public health: Public health will not be affected.
h. Federal, State or local laws or requirements imposed for
environmental protection: This proposal will comply with any laws or
requirements imposed for the protection of the environment including
the Endangered Species Act, Clean Air Act, and the National Historic
Preservation Act.
PUBLIC INVOLVEMENT AND SCOPING PROCESS
Public input for this proposal was obtained by sending a scoping
letter to members of the public who could be affected by, or have
requested to be notified of similar proposals. Comments received were
utilized in developing the proposed action. Scoping information is
located in the project file.
FINDINGS REQUIRED BY OTHER LAWS
The National Forest Management Act and accompanying regulations
(FSH 1909.15.30) require that several findings be documented at the
project level. These findings are as follows:
Forest Plan Consistency
This analysis is tiered to the Dixie National Forest Land and
Resource Management Plan (DNF-LRMP). The Proposed Action addressed
under this decision is consistent with management direction identified
in the DNF-LRMP for the Management Area; 5A Big Game Winter Range (non-
forest) and 4C Wildlife Habitat (Shrub Areas).
Agency Road Rule
This action does not fall within any suspension category as
described in the Interim Road Rule; 36 CFR 212.
IMPLEMENTATION
Implementation may take place immediately.
ADMINISTRATIVE REVIEW AND APPEAL OPPORTUNITIES
Pursuant to 36 CFR 215.8 (a) (4), this decision is not subject to a
higher level of review.
CONTACT PERSON
For additional information on this decision, please contact Brett
Fay, Interdisciplinary Team Leader, Dixie National Forest Supervisors
Office, 1789 N. Wedgewood Ln., Cedar City, UT; phone: (435) 865-3700.
V. Oral Testimony Summary
My name is John Stavros. I grew up in Salt Lake City and moved to
New Harmony 11 years ago. I live on 4 acres of national forest boundary
land and share a fence with the Dixie National Forest. I'm an
application developer for a large Boston-based financial services firm.
My manager and work group are in Boston, and I am lucky enough to
perform my big-city job from my home office in the middle of nowhere.
You've heard testimony regarding the planning and creation a fuel
break near the town of New Harmony. You've seen the documents and given
thought to the rules, regulations, and processes involved. Why am I
here? I'm here to make it personal.
This is my house. We all see pictures like these on the news every
summer as fires inevitably burn thousands of acres and destroy
countless homes, and it's easy to become numb to the images. Let me
tell you that when it's your house, it's a different set of emotions.
As you look at the pictures in my written testimony, you can see that
this was a very close call. The Blue Springs Fire roared into the
community on the evening of June 27, 2005 (2 years ago yesterday). I
included an image that shows the Forest boundary and the fire
containment boundary relative to my home.
There are many reasons why my house still stands. We planned and
built for these conditions. I created a green space around my home and
built it of fire-safe materials. Also, my roof was thoroughly wet.
Three built-in rooftop rain birds were soaking my house during all of
this. And the heroics of the brave pilots and firefighters cannot be
overstated.
In 2003 through 2005, two efforts were going on concurrently.
First, the Forest Service informed the community in
writing that they planned to cut a fuel break through the area just
behind the community on Forest Service land. The thorough, 4-page
document demonstrated how well thought-out the plan was and it offered
a variety of contact methods if people had concerns. The first line of
the letter is, ``Your input is being sought.'' My only concern was,
would the work happen quickly enough to do any good.
Did the fuel break stop the fire in its tracks? No. Did it
help? I believe it did. As I observed the fire from as close as
you'd ever want to be, I believe that the fuel break bought
precious minutes allowing the helicopter to make 1 or 2
additional drops. It gave the community a few extra minutes to
evacuate when the fire abruptly blew up in the early evening.
Second, the Utah State department of forestry in
cooperation with the local fire department and the U.S. Forest Service
organized the neighbors in Harmony Heights to engage in work parties to
reduce the fuel load, mitigate ladder fuels, and make the community as
fire-safe as it could be. The neighbors contributed dozens of hours
over many weekends using chain saws and hand tools while the State
provided a chipper to shred the piles of useless slash.
My neighbors and I know that we have chosen to live in a higher-
risk area. We do not expect the government to make us safe while we sit
on the deck and sip lemonade. We grabbed on to the opportunity
presented to us, got organized, and accomplished much. As you might
guess, following the fire, we redoubled our efforts and worked even
harder. This effort did not require that we clear-cut our beautiful
properties. The federal and state forestry officials taught us the
concept of ladder fuels, explained how to estimate flame wall height
for different kinds of vegetation, and helped us retain the wild beauty
while reducing the hazard. Pictures included in my written testimony
show a typical area of the neighborhood before and after our work.
I understand that some people believe that the public was excluded
from the planning of the fuel break and that the motivation to move so
quickly was based, in part, on greed. Somehow the Forest Service was
going to make a buck on the trees they pulled from the fuel break while
everyone was caught napping. This is absurd. Junipers and scrub oak,
the predominant foliage in the zone, are brushy, gnarled trees with
little value beyond perhaps firewood.
The fuel break work was going on just one or two hundred feet
behind my house, so we could see and hear the daily progress of the
work crews. Each evening, my wife and I walked back into the cut zone
to observe the results of the day's efforts. While we embraced the
importance of the work, we expected to have our hearts broken by the
site of denuded land and a chaotic job site. Instead, we saw that the
crews took care to preserve the beauty of the zone and that they
stacked the useless slash neatly into piles. When winter lowered the
fire danger to zero, crews returned and burned the slash. What we saw
matched exactly with the treatment prescribed in the decision memo that
I included in my written testimony.
I am not a person who sits back and lets the government do as it
wishes. When I moved out of the city, I quickly learned that in a
sparsely populated region, a few engaged people can make a difference.
I am president of the local cycling club and serve on the National
Mountain Bike Patrol, a trained volunteer organization similar to a ski
patrol. I've participated in numerous planning meetings with local and
federal land managers where the recreational interests of mountain
bikers needed representation. I proactively organize volunteer groups
to support the mutual goals of land managers and cyclists. In turn, the
land managers call on me when they need at the table a rational,
thinking representative of mountain biking.
It's a relationship born of trust and respect over the years. I
believe that this history demonstrates that I am not passive when it
comes to issues about which I am passionate. If I felt that the Forest
Service had planned anything not in the public's and my best interest,
I would have spoken up. I know how. I like to engage the process.
That's why I came 2,000 miles to spend 5 minutes with you today. I see
that those 5 minutes are about up. Thanks for your attention.
______
Mr. Grijalva. Thank you, sir. Let me begin some questions
and hopefully we will go as quickly as possible so that we can
get in as many questions as possible during the timeframe. A
couple of questions for Mr. Jensen, if you do not mind, sir.
What other Federal agencies beyond the Forest Service have
categorically excluded their land management plans from NEPA do
you know of?
Mr. Jensen. Well Interior has coordinated its approach with
the Forest Service. I think the most important--let me back up
just a bit. There is a lot of governmental action undertaken
everyday that affects Forest Service lands, public lands,
private lands and is done so in a way that works in relative
harmony with NEPA as it has conventionally been used.
I look at the programs administered by the Federal Energy
Regulatory Commission, by FERC, the hydropower licensing
program, the natural gas pipeline permitting program. Big,
controversial. All sorts of issues attached to them. They use
NEPA. They use it up front. They have a very strong commitment
to public involvement early rather than late in the process and
that works.
Mr. Grijalva. On that point, you said healthy forests
depend on a healthy----
Mr. Jensen. Governance.
Mr. Grijalva.--governance and public governance. Elaborate
just on that point.
Mr. Jensen. On that point. Well I think the core----
Mr. Grijalva. Because we have heard that it can be an
intrusion. It can delay. It can extend. Yes.
Mr. Jensen. I think I start from the premise that the
Forest Service's job is never going to be easy because Congress
and the public are many different minds about what ought to
happen on forest land. There is not a perfect outcome. There is
not a perfect decision for any acre, any forest, any district.
The best we can do in our democracy is show respect for the
diversity of opinion and make the best informed judgment within
the timeframe available to decide, and I think there is a real
confusion within the Forest Service. I think they are
disoriented. I think they have been beaten up for so many years
from so many different directions, whipsawed between extremes,
that they are still reacting rather than planning for how to
bring the public into a partnership, an effective partnership
with the Forest Service.
My comments today are really aimed at a deep concern that
an agency that Congress has entrusted with these lands is
losing the ability to lead. Whether you are on the timber side
of the equation or the non commercial side of the equation,
that is a problem.
Mr. Grijalva. Thank you. Let me turn to Dr. Noon. You
mentioned that you served on the committee of scientists under
a previous administration that reviewed forest planning
regulation. You indicated there was no committee convened to
look at the 2005 planning rule. Has there been a review, a
comment since that point to review the 2005 review and comment
by a panel of scientists or a committee of scientists,
particularly with regards to one of the issues we talked about
and that is the cumulative effect issue, and if you could
comment on both of those.
Mr. Noon. Yes. To the best of my knowledge, there has not
been an external committee of scientists, let us say from
academia, that do not have connections with agencies that have
reviewed the 2005 regulations. There have been some
publications, one of which I coauthored in scientific
literature talking about some of the potential consequences to
biodiversity conservation in the 2005 regs.
Mr. Grijalva. Thank you. Mr. Lawrence, what are appropriate
uses of a categorical exclusion? If you can give an example or
a comment on that.
Mr. Lawrence. Categorical exclusions are appropriate when
they limit the scope and the nature of an activity so we can
count on it not to have environmental impacts. So in the case,
for example, of a fuels reduction CE which I think we could
legitimately use, it would need to limit the activity to small
diameter trees and brush, the kinds of things that we hear need
to be cleaned out, and it would avoid the use of roads which
are associated with increased fire danger and all kinds of
ecological effects.
The Forest Service's CE by contrast has no limit on the
diameter of the trees that can be logged, and this is a serious
thing because the agency is on record saying that trees as
large as 30 inches can be logged. Thirty inches in diameter at
breast height. This is a huge tree. Can be logged for fuels
reduction purposes.
The CE allows that kind of logging to go over one and a
half square miles, and that is going to produce bad results.
You need limits on the type of work that can be done, as well
as the size of the area.
Mr. Grijalva. Mr. Vaughan, I appreciated your testimony
about working with the reality of CEs and having to deal with
those. For my clarification, do you support the 2005 forest
planning rule that categorically excludes forest land from
NEPA?
Mr. Vaughan. No, sir, we do not.
Mr. Grijalva. OK. Last question and then I will turn it
over to the Ranking Member. I mentioned in my opening statement
that I was concerned that the Forest Service is systematically
weakening NEPA by finalizing categorical exclusions, not just
in the project and planning phase and that that begins to
weaken it. Mr. Lawrence, in that big picture view of NEPA and
the Forest Service, what is your impression under this
administration?
Mr. Lawrence. Under this administration, the Forest Service
is in full flight from NEPA. It is doing everything it can to
apply CEs wherever it can to avoid NEPA compliance. Sometimes
the results are good, as I mentioned. I have seen great work
done in the Lake Tahoe basin, as Mr. Vaughan mentioned. He has
had great experiences. This depends on the individual people on
the ground and how they implement the CE, and there are lots of
good people in the Forest Service who do good work.
What is missing is enforceable standards that create real
accountability and give us some real confidence that across the
board the use of CEs is going to be good, not bad, for the
environment.
Mr. Grijalva. Thank you. Mr. Bishop.
Mr. Bishop. Thank you. Let me ask just a couple of
questions to different members of the panel if I could. Mr.
Jensen, if I could simply ask you in your personal experience
have you personally compared levels of public involvement
required under the 2005 planning rule with prior planning
rules?
Mr. Jensen. I have not.
Mr. Bishop. OK. I appreciate that. Mr. Vaughan, I
appreciate your what I would say at least balanced testimony at
this hearing as you are talking about how it can be used for
both good and evil at the same time. A lot of people were
saying when the healthy forest initiatives were passed that
there would be massive and widespread abuse, and I am assuming
that you are saying that at least in the region 8 that you are
aware that has not been the case.
Mr. Vaughan. That is correct. I was one of those people who
were predicting that type of abuse, and at least in my region,
my neck of the woods, it has not materialized.
Mr. Bishop. Well shame on you then. You have heard of abuse
in other areas. Is it anything that is more than anecdotal
stages?
Mr. Vaughan. We have reviewed specific projects in other
regions, particularly in region 9, that were abuses and illegal
uses of the CEs but again we did no thorough review of all the
uses of the CEs. We had people come to us and go, we have this
project. It looks bad, and so I mean that is one of the nature
of things. You know the bad things pop up and you see them.
Unless you go look at everything, you do not have a context for
them. So I have no context but so in a way it is anecdotal but
we did do specific reviews of those specific projects.
Mr. Bishop. All right. That is good. You mentioned much of
that in your written testimony. I appreciate that. It was
extremely good written testimony I might add.
Mr. Vaughan. Thank you.
Mr. Bishop. Could you just take a moment talking about your
perception of what levels should or could be helpfully used
with having a healthy forest ombudsman?
Mr. Vaughan. Yes, sir. This is an idea I discussed with
Under Secretary Rey, and he expressed a great deal of interest
in it in that it would be a way to one, independently monitor
the use of the healthy forest authorities, both from HFI and
HFRA itself, and two, collect that sort of data and give that
broad perspective to where you know in our experience reviewing
one region's CEs and use of the authorities we do not think it
is a huge stretch that you could have an office of a few people
dedicated, two or three people dedicated to that job that would
be able to give individual review of every single use of the
CEs and HFRA authorities that would then be able to give you
broader context than just raw numbers.
Where are they being abused? How? Why? Are they being
misused? If so, how? And help the agency and everyone else get
the type of picture we have in region 8 for the entire country.
Mr. Bishop. Thank you. I appreciate that. I appreciate your
testimony. Mr. Stavros, I appreciate you coming up here.
Mr. Stavros. Thank you.
Mr. Bishop. I even forgot to ask you, did I assume you flew
out of Cedar City or St. George first?
Mr. Stavros. Out of St. George.
Mr. Bishop. OK. Then I cannot ask you how Mesa Airline is
doing.
Mr. Stavros. Well you know why I flew out of St. George.
Mr. Bishop. All right. I think you answered my question.
Thank you. The picture behind you, I do not think anyone cannot
understand the kind of horrific attitude or consequences that
were going through your mind as you were seeing that coming up
there. I am under the assumption that the firebreak that was
done was done as a categorical exclusion?
Mr. Stavros. I believe that is true.
Mr. Bishop. Was there anything in your experience with that
that you think diminished your ability of having some kind of
input? Was there anything with that process with which you have
a problem either now or at the time?
Mr. Stavros. I do not, not then and not now. In my written
testimony I submitted the exact four-page document that was
mailed to me and all my neighbors. As I said, the opening line
was, ``Your input is being sought.'' So from the very first
paragraph they were trying to include the neighbors, and they
laid out the plan very clearly.
This is how wide it is going to be. This is how long it is
going to be. This is where we are going to do it. They included
a map that showed exactly where it was going to be. If you have
any issues, please contact this number. Here is a phone number.
Here is an address. We would love to hear you know.
So at the time I spoke with some of my neighbors. My first
thought was, great. When do we start? And of course no one can
predict the future, and in hindsight had this particular little
project required two or three or four years of study, this fire
may have had a much different outcome for my neighbors and I.
Mr. Bishop. I appreciate you being here, and that you are
still involved in the process there in New Harmony. Just so it
is very clear, New Harmony is not in my district, although when
they redistrict I would be more than happy to have New Harmony
and all the way to St. George in my district.
Mr. Stavros. It is a tiny little place in the southwest
corner, and I just want to say my lack of contact when I got
that letter was not because I am passive. I enjoy speaking out
and working with land managers, and I feel certain that had it
been a concern that we would have in this case as well.
Mr. Bishop. OK. My last set of questions are for Mr.
Lawrence, and then I will be done, Mr. Chairman. Mr. Lawrence,
I am assuming that your organization has testified before
Congress before.
Mr. Lawrence. Yes, that is correct.
Mr. Bishop. Do you have attorneys on your staff there? I
mean you sued EPA 35 times. I am assuming you have some
attorneys there.
Mr. Lawrence. We have a number of attorneys on the staff. I
myself am an attorney just to clarify.
Mr. Bishop. Thank you. The rules of this committee are that
testimony should be received 48 hours before the Committee
starts. Your particular testimony was given to us 40 minutes
before this committee started. My question is: Why was your
testimony so tardy, and was it a conscious and contemptuous act
on your part in giving us the testimony when we had absolutely
no time to review it before this committee began?
Mr. Lawrence. No, it certainly was not, and I apologize for
the tardiness.
Mr. Bishop. Why was it tardy?
Mr. Lawrence. I got it done as soon as I could. In fact, I
wound up trying to email it from the airport yesterday before I
took my transcontinental flight here, and simply could not get
it to transmit.
Mr. Bishop. When did you actually send your testimony to
this committee?
Mr. Lawrence. Last night when I got to my hotel.
Mr. Bishop. Not this morning?
Mr. Lawrence. You know it was well after midnight when I
got to my hotel. I sent the exhibits yesterday, and for some
reason sitting there in the airport I could not get the local
Wi-Fi connection to send my testimony. I even had a fellow
traveler try to send it from her laptop. I really apologize.
Mr. Bishop. Were you aware----
Mr. Lawrence. I think this puts you in an awkward position,
and I think it is regrettable.
Mr. Bishop. It is a little bit more than regrettable, and
it is unacceptable. Were you aware of the 48-hour rule?
Mr. Lawrence. I was not notified of it.
Mr. Bishop. You were not aware of the----
Mr. Lawrence. But it is a matter of common sense that you
need an opportunity to review the testimony.
Mr. Bishop. Were you aware of the 48-hour rules in the
other times? You know you are part of the usual suspects. It
looks like reading Casablanca again. Was your committee aware
of that rule in the past?
Mr. Lawrence. It has been some time since I myself
testified here, and I do not remember being informed of a
specific rule. I remember being asked for my testimony at a
specific time.
Mr. Bishop. Part of the process that the rules require not
only the 48 hours but also a disclosure requirement. Your
organization did not submit a disclosure requirement as well.
So let me ask you some of the questions that would be on there.
What, for example, is the business phone number?
Mr. Lawrence. I can certainly use the Committee's time
answering these questions to the best of my ability. I would
also be happy to submit the disclosure requirement if that
would be a more efficient use of your time.
Mr. Bishop. Well maybe you can just give them to me right
now. Let us go to one. Are there any Federal grants or
contracts from the Department of the Interior which you have
received since October of 2000?
Mr. Lawrence. The phone number is (212) 727-2700 for the
organization's headquarters in New York City.
Mr. Bishop. Thank you.
Mr. Lawrence. I am unaware of any grants from the Interior
Department. I do know that there are staff scientists at NRDC
who administer grants from EPA, and I think also from the
Energy Department.
Mr. Bishop. Do you have any grants or contracts that would
include subgrants or subcontracts with the Department of the
Interior since the year 2000?
Mr. Lawrence. Again, I think the best answer to that would
come from an organizational officer who oversees those grants
but I am certainly unaware of any.
Mr. Bishop. You are actually right in your testimony, and
it would be best if it came from them. Any other information
you wish to convey which might aid the members of this
committee to better understand the context of your testimony?
Mr. Lawrence. I would be happy to talk about the issue in
front of the Committee at length and at your convenience, sir.
Mr. Bishop. Well take the next 57 seconds and try it.
Mr. Lawrence. I want to correct a misstatement about the
time that it took to prepare the Tongas land management plan
and the challenges that it faced. The Forest Service prepared
the Tongas land management plan first in 1979, completed a plan
and it went without challenge. When the Forest Service came
back to the replanning process to revise that process in the
early 1990s, its schedule was upset by the passage of
Congressional legislation.
Mr. Bishop. The disclosure rule is the disclosure of
anything that you have going on there with programs that you
are doing that may have an impact on the testimony, not
necessarily the restatement of your testimony.
Mr. Lawrence. I am unaware of any such programs.
Mr. Bishop. Are there any officers, elected positions,
representative capacities held in the organization on whose
behalf you are testifying?
Mr. Lawrence. I am testifying on behalf of the organization
and its more than 1.2 million members and activists. Beyond
that, there are no officers within NRDC who I represent here.
Mr. Bishop. All right. I appreciate that. Let me just say
once again that receiving this kind of testimony 40 minutes
before this starts from your organization, an organization that
knows what timelines are because you are attorneys, and an
organization that has been here before is something I do find
unacceptable, and my assumption is that we got it late simply
because your organization got it late to this particular
committee, and I am hoping that is the truth but it should
never, never happen again, and it puts us at a disadvantage for
this entire committee.
The Chairman has the ability in such situations of removing
the testimony from the record or barring your testimony here
given orally. He can do whatever he wants to, and I have
actually no intentions of giving him advice on that but I
simply want to note that you put this committee at an unfair
disadvantage, and it is simply unacceptable especially with the
experience that you had in testifying before Congress before.
With that I yield back.
Mr. Grijalva. Thank you very much, Mr. Bishop, and let me
thank the panelists, and indicate to all that all the
testimony, oral and written and extraneous information, will be
part of the record of this particular hearing and, with that,
we are adjourned.
[Whereupon, at 12:08 p.m., the Subcommittee was adjourned.]