PART 3: FOCUS ON CATEGORICAL EXCLUSIONS

In my previous essay in Evergreen titled "Are Environmentalists Ripping off U.S. Taxpayers?" I attempted to explain the environmental procedures required to implement even the simplest form of commercial timber harvest. At the end of the essay I provided some possible reforms that Congress and the Forest Service could implement in order to streamline the process and save the taxpayers millions of dollars.

My first suggestion was: "Require the Forest Service and the Bureau of Land Management to create a robust list of activities that would be categorically excluded from doing Environmental Assessments or Environmental Impact Statements. These categories should be based on a review of the types of past projects that had been completed using an Environmental Assessment [EA] that included a FONSI (Finding of No Significant Impact). Projects such as these normally include a routine list of project implementation design criteria/mitigation measures that eliminated adverse environmental impacts, and these design criteria could be included in the Categorical Exclusions."

In Part Three of my series on environmental law implementation process reforms, I would like to make the case for reforming the use of categorical exclusions, which I consider to be underutilized by the Forest Service. I will also offer some recommended revisions and additions to the current list of available categories of actions.

First, some clarification and myth-busting is needed about the level of analysis required for categorical exclusions.

While some environmentalists would have the public and media believe that categorically excluded projects aren't subject to environmental analysis, this is not true for most actions that involve forest management.

For reference, I include a link to the Forest Service National Environmental Policy Act (NEPA) Handbook FSH 1909.15, Chapter 30, which describes the currently available actions that can be categorically excluded from documentation in an Environmental Assessment (EA) or Environmental Impact Statement (EIS).

http://www.fs.fed.us/cgi-bin/Directives/get_dirs/fsh?1909.15!..

The preamble for Chapter 30 states: The Council of Environmental Quality (CEQ) regulations provide for categorical exclusions (CEs) to implement the National Environmental Policy Act (NEPA) for the purpose of reducing delay and paperwork. CEQ regulations allow Federal agencies to exclude from documentation in an environmental assessment (EA) or environmental impact statement (EIS) categories of actions that do not individually or cumulatively have a significant effect on the human environment. Based on the Agency's experience and knowledge, the responsible official can conclude that if the action fits within an identified category and analysis shows there are no extraordinary circumstances, then the action would not have significant effects. The following guidance on appropriate use of CE must be read in conjunction with applicable sections of this handbook, specifically chapter 10.

For ease of reference, Council on Environmental Quality (CEQ) regulations for implementing requirements of the NEPA are set out in boldface type and block-indented and Forest Service regulations, that supplement the CEQ regulations, are in boldface type and italicized and block-indented.

I also include the link to the Council on Environmental Quality's guidance document for creating and revising categorical exclusions:

http://ceq.hss.doe.gov/current_developments/new_ceq_nepa_guidance.html#exclusions

A further explanation of "extraordinary circumstances" is provided in the general information in Chapter 30:

A proposed action may be categorically excluded from further analysis and documentation in an EIS or EA only if there are no extraordinary circumstances related to the proposed action and if:
(1) The proposed action is within one of the categories established by the Secretary at 7 CFR part 1b.3; or
(2) The proposed action is within a category listed in sections 220.6 (d)
and (e). (36 CFR 220.6(a))

Resource conditions that should be considered in determining whether extraordinary circumstances related to a proposed action warrant further analysis and documentation in an EA or an EIS are:

(1) Federally listed threatened or endangered species or designated critical habitat, species proposed for Federal listing or proposed critical habitat, or Forest Service sensitive species;
(2) Flood plains, wetlands, or municipal watersheds;
(3) Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas;
(4) Inventoried roadless areas or potential wilderness areas;
(5) Research natural areas;
(6) American Indians and Alaska Native religious or cultural sites, and
(7) Archaeological sites, or historic properties or areas.

The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion (CE). It is the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions and if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determine whether extraordinary circumstances exist. (36 CFR 220.6(b))

In considering extraordinary circumstances, the responsible official should determine whether or not any of the listed resources are present, and if so, the degree of the potential effects on the listed resources. If the degree of potential effect raises uncertainty over its significance, then an extraordinary circumstance exists, precluding use of a categorical exclusion.

There are two groupings of all the categorically excluded activities currently listed. One group falls under Chapter 32.1, "Categories for Which a Project or Case File and Decision Memo Are Not required" and Chapter 32.2, "Categories for Which a Project or Case File and Decision Memo Are Required".
Categories of actions that don't require a decision memo (DM) under Chapter 32.1 that could involve the cutting and removal of trees include:

(3) Repair and maintenance of administrative sites. Examples include but are not limited to:
(i) Mowing lawns at a district office;
(ii) Replacing a roof or storage shed;
(iii) Painting a building; and
(iv) Applying registered pesticides for rodent or vegetation control.

Cite this category as 36 CFR 220.6(d)(3)

(4) Repair and maintenance of roads, trails, and landline boundaries. Examples include but are not limited to:
(i) Authorizing a user to grade, resurface, and clean the culverts of an established NFS road;
(ii) Grading a road and clearing the roadside of brush without the use of herbicides;
(iii) Resurfacing a road to its original condition;
(iv) Pruning vegetation and cleaning culverts along a trail and grooming the surface of the trail; and
(v) Surveying, painting, and posting landline boundaries.

Cite this category as 36 CFR 220.6(d)(4)

(5) Repair and maintenance of recreation sites and facilities. Examples include but are not limited to:
(i) Applying registered herbicides to control poison ivy on infested sites in a campground;
(ii) Applying registered insecticides by compressed air sprayer to control insects at a recreation site complex;
(iii) Repaving a parking lot; and
(iv) Applying registered pesticides for rodent or vegetation control.

Cite this category as 36 CFR 220.6(d)(5)

Categories of actions that do require a decision memo under Chapter 32.2 that are typically used for cutting and removing trees include:

(6) Timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction. Examples include but are not limited to:

(i) Girdling trees to create snags;
(ii) Thinning or brush control to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand;
(iii) Prescribed burning to control understory hardwoods in stands of southern pine; and
(iv) Prescribed burning to reduce natural fuel build-up and improve plant vigor.

Cite this category as 36 CFR 220.6(e)(6)

(12) Harvest of live trees not to exceed 70 acres, requiring no more than ½ mile of temporary road construction. Do not use this category for even-aged regeneration harvest or vegetation type conversion. The proposed action may include incidental removal of trees for landings, skid trails, and road clearing. Examples include but are not limited to:

(i) Removal of individual trees for sawlogs, specialty products, or fuelwood, and (ii) Commercial thinning of overstocked stands to achieve the desired stocking level to increase health and vigor.

Cite this category as 36 CFR 220.6(e)(12)

(13) Salvage of dead and/or dying trees not to exceed 250 acres, requiring no more than ½ mile of temporary road construction. The proposed action may include incidental removal of live or dead trees for landings, skid trails, and road clearing. Examples include but are not limited to:

(i) Harvest of a portion of a stand damaged by a wind or ice event and construction of a short temporary road to access the damaged trees and
(ii) Harvest of fire-damaged trees.

Cite this category as 36 CFR 220.6(e)(13)

(14) Commercial and non-commercial sanitation harvest of trees to control insects or disease not to exceed 250 acres, requiring no more than ½ mile of temporary road construction, including removal of infested/infected trees and adjacent live uninfested/uninfected trees as determined necessary to control the spread of insects or disease. The proposed action may include incidental removal of live or dead trees for landings, skid trails, and road clearing. Examples include but are not limited to:
(i) Felling and harvest of trees infested with southern pine beetles and immediately adjacent uninfested trees to control expanding spot infestations, and
(ii) Removal and/or destruction of infested trees affected by a new exotic insect or disease, such as emerald ash borer, Asian long horned beetle, and sudden oak death pathogen.

Cite this category as 36 CFR 220.6(e)(14)

Direction for use of these categorically excluded activities includes:

A supporting record is required and the decision to proceed must be documented in a decision memo for the categories of action in paragraphs (e)(1) through (e)17 of this section. As a minimum, the project or case file should include any records prepared, such as: the names of interested and affected people, groups, and agencies contacted; the determination that no extraordinary circumstances exist; a copy of the decision memo; and a list of the people notified of the decision. (36 CFR 220.6(e))

For the Forest Service to verify that no extraordinary circumstances exist, environmental analysis is conducted and typically includes biological assessments and biological evaluations for Threatened and Endangered Species and for sensitive species, including fish, wildlife and plants. Other resource analysis is conducted for soils, heritage resources, visual resources, hydrological resources and other resources based on the location and site specific circumstances.

When environmentalists claim that categorical exclusions avoid resource analysis, what they really don't like about this process is that CatExs don't require a range of alternatives to analyze, and, except for current policy in the Northern Region of the Forest Service, CatExs are not subject to the formal notice, comment and appeal process. This makes them mad because the only way for them to cause delay in implementing these projects is to go directly to litigation. From what I've observed, when environmentalists have filed lawsuits against projects implemented using CatExs, they normally lose. I believe they lose because CatExs are very concise documents and don't leave much leeway for judges or lawyers to interpret the process or find minute flaws in the analysis.

my experience as a project leader, CatExs that are not subjected to the formal notice, comment and appeal process can be implemented in about three months, from initial scoping to the signing of the decision memo. When CatExs are subjected to the formal notice, comment and appeal procedures, the timeline is extended to approximately 8 to 12 months.

One other point about public involvement: When the Forest Service proposes to include new or revised categories, the process involves public notice in the Federal Register and a comment period (refer to the attached CEQ guidelines). So the claim by environmentalists that the public is left out of the process is false.

While the currently available CEs are useful, I believe they are overly restrictive. I also believe that the Forest Service is missing an opportunity to save millions of dollars in NEPA implementation costs and to vastly reduce the amount of time it takes to implement small-scale forest management projects. These types of projects could not only help maintain forest health, but also help create jobs for small-scale forest products businesses.

Increasing the use of CEs could also help the Forest Service increase the supply of woody biomass on a more reliable basis. Doing so would improve the chances for successfully incorporating biomass into our National strategy for renewable energy.

So I would first like to propose that the Forest Service consider making the following revisions to the categories listed below:

Category #12 - Harvest of live trees not to exceed 70 acres, requiring no more than ½ mile of temporary road construction.

Based on my experience as project leader for implementing projects under this category since they became available in 2003, the limitation of 70 acres is arbitrary and overly restrictive and should be removed. The most important limiting feature of this and the other categories listed in Chapter 32.2 is the requirement that no extraordinary circumstances exist. For example, if the Forest Service proposed to cut down a single tree that happened to have a spotted owl nest in it, the project would not pass the test for extraordinary circumstances. On the other hand, commercially thinning 1,000 acres of established tree plantations could very likely meet the test of no extraordinary circumstances. All that is needed is the requirement to not have extraordinary circumstances.

I propose the same revisions for Categories #13 and #14 for much of the same reasons.

Category #13, Salvage of dead and/or dying trees not to exceed 250 acres, requiring no more than ½ mile of temporary road construction has limited use for fire salvage in locations where the test for extraordinary circumstances could be passed. In another example, roadside salvage of dead or dying trees that could easily be retrieved without even taking equipment off-road is limited to only about 5 miles of roadside if trees were salvaged within 200 feet from road shoulders.

Category #14, Commercial and non-commercial sanitation harvest of trees to control insects or disease not to exceed 250 acres is overly restrictive by limiting the acreage. The key point is that meeting the test for no extraordinary circumstances is all that is really needed to keep these kinds of activities from having adverse environmental effects.

Second, I'd like to propose a new category that would fall under the activities listed in Chapter 32.1, those activities that don't require a project file or decision memo.

I propose a category titled "Activities covered in silvicultural prescriptions put in motion with existing NEPA decisions"

This category would cover activities such as tree planting, stocking surveys, pre-commercial and commercial thinning (by hand or mechanical means that may include removal of biomass for renewable energy or other uses) and intermediate treatments up to the time of reaching rotation age.

Realizing that circumstances could change over the timeframe established in a silvicultural prescription (typically 80 to 100 years in some of the western states), a simple review of the conditions at the time of implementing a prescribed activity could be conducted to ensure the activity would still pass the test of no extraordinary circumstances. This review process is already an established NEPA process, commonly referred to as an "18.1 or 18.3 NEPA review" and direction for its use is located in Forest Service NEPA Handbook 1909.15, Chapter 18. Following is an excerpt of that direction:

18.1 - Review and Documentation of New Information Received After Decision Has Been Made

If new information or changed circumstances relating to the environmental impacts of a proposed action come to the attention of the responsible official after a decision has been made and prior to completion of the approved program or project, the responsible official should review the information carefully to determine its importance. Consideration should be given to whether or not the new information or changed circumstances are within the scope and range of effects considered in the original analysis.

If, after an interdisciplinary review and consideration of new information within the context of the overall program or project, the responsible official determines that a correction, supplement, or revision to an environmental document is not necessary, implementation should continue.

This would eliminate the need to redo a full NEPA analysis and decision process when the time comes to thin a 40 year old plantation or to conduct a prescribed underburn to control invading underbrush 15 years after the initial timber stand treatment for example.

The initial analysis conducted for projects that include a silvicultural prescription would have to analyze for these future activities as connected actions. Utilizing a category such as this would save a tremendous amount of taxpayer money and personnel time, and it only makes sense that once a prescription is put in motion, all the intended activities designed to meet the long term objectives of a site specific timber stand should not be subject to new NEPA decisions.

If you agree with my recommendations, you can help make it happen by forwarding this article to your Congressional representatives and asking them to discuss these recommendations with the Secretary of Agriculture and the Chief of the Forest Service. I am fairly certain that the Secretary and Chief won't take my recommendations under advisement on my word alone. As the saying goes "The government is run by those who show up." If you decide to show up, maybe we can make good things happen that will help reduce the cost of government operations, improve forest health, provide renewable energy and forest products and provide jobs to forest products businesses.

Barry Wynsma,
U.S. Forest Service Forester (Retired)

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Also, if you would like to comment on my essay or there is a particular topic you would like me to address in the future, please send Jim Petersen a note at jim@evergreenmagazine.com.