Why Implementation Procedures Of Federal Environmental Laws Must Be Reformed

Part 2: Focus on Public Comment Procedures

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

In my previous essay in Evergreen concerning the story of the single tree salvage, 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.

One of my suggestions was #6: "Eliminate the requirements of analyzing cumulative effects and responding to public comments. Cumulative effects and public comments should only be "considered". Environmental groups usually demand that federal agencies analyze cumulative effects as far back as the ice-age and as far into the future and as globally to be an impossible and needless task. The comments sent in to agencies often contain 40 to 60 pages or more of demands and having to respond to these comments individually require the expenditure of large amounts of taxpayer money."

In this essay I would like to make the case for reforming the public comment process.

First, some clarification is needed about how the public comment process is conducted. There are two phases of the process, the first is the "scoping" period and the second is the "comment" period.

The scoping period is used at the initial project development phase. Normally the project leader and interdisciplinary team (IDT) have developed a project proposal with a general idea on where treatments are desired, what silvicultural prescriptions would likely be appropriate, and what some of the obvious environmental issues might include within the project planning area, such as Threatened and Endangered Species habitat, hydrological and fisheries issues, soils, old-growth, sensitive plants and animals, cultural resources, roads, visuals and a number of other issues. Analysis of these issues normally has not started at this point. This is when the project leader writes and then mails out and publishes a scoping letter to interested individuals, agencies and organizations. The scoping letter explains the general proposal, possibly including some anticipated action alternatives to accomplish the projects stated purpose and need. The normal scoping period is 30 days, but can be more or less.

Phase two, the comment period, is conducted after all analysis has been completed and either an Environmental Assessment (EA) or Draft Environmental Impact Statement (DEIS) is available for the public to read and comment on. The public is notified of this comment period using a combination of hard copy letters, CDs, posting on the agency website, publishing legal notices, and in the case of DEIS, publication in the Federal Register. A 30-day comment period is the legally required minimum for EAs and 45 days is the minimum for a DEIS. Comment periods are sometimes extended to 60-90 days or more in the case of very large or controversial projects.

As a project leader for small timber sales for the past 20 years or so, I've had plenty of exposure to how this comment process works, not only during the projects I was directly involved in but also as an observer and sometimes as a IDT member on other larger projects. I appreciated public comments received during the scoping phase of many of my past projects, especially from adjacent land owners and other local citizens that could provide information or special requests that helped make the projects more effective and helped the Forest Service be a "good neighbor".

But I've also seen how environmentalists have used both the scoping and comment periods to advance their agenda of eliminating commercial timber harvests on National Forests.

My experience on the Idaho Panhandle National Forest gave me the perception that the public comment process was being used only by a very few individuals and organizations for any single project being proposed. It has also been my perception that many of these individuals and organizations were either making it their business or their personal agenda to use the process to stall, delay or kill projects within the Northern Region of the Forest Service (which includes all of Montana, North Idaho and parts of North Dakota).

My curiosity about the demographics of public commenters across the Northern Region culminated recently when I decided to submit a Freedom of Information Act (FOIA) request to the Regional Office in Missoula. In the request, I asked to receive copies of all comments received either during the scoping period or comment period for a random sample (note: not a scientific study) of projects currently being proposed on 11 of the 13 Forests within the Northern Region. I chose projects that included at least some level of commercial timber harvesting in their proposal. I excluded the Dakota Prairie Grasslands and the Custer National Forest due to a lack of timber harvest projects at those locations.

I will disclose here, including a "content analysis table" spreadsheet, a summary of my findings. I will also provide my opinion concerning these findings.

In the spread sheet, available for download here, I've disclosed the Forest, Project Name and whether it was an EA or DEIS, whether the comments were received during the scoping or comment period, the name of the individual, agency or organization providing comments, the number of pages of comments, and a summary of topics included in each comment letter.

I think you will find the results interesting. I know I did.

Findings Include:

Of the 11 Forests providing comment letters, 3 Forests provided comments gathered during the initial scoping period. These Forests included the Helena, the Kootenai and the Lolo.

The Helena's project, called the Stonewall EIS, received by far the most comments during the scoping phase, 83 in all. This number of comments was not typical of any of the other projects included in the sample. Most of the comments received were written on comment forms attached to the project scoping letters that were mailed to the public, but comment page length varied from the 1 page comment form up to 130 pages. Of the comments that expressed either support for or opposition to the project, 90% supported the project. After reviewing the project proposal that is available on the Helena's website (http://www.fs.fed.us/r1/helena/projects/helena_content.html?project=30355), I'd attribute the high level of interest in the project to the extreme level of beetle killed forests in the area.

The Lolo's project, called the Marshall Woods Restoration Project (EA), received 39 comments during the scoping phase. This was the second highest number of comments for the 11 projects included in my study. This number of comments was also what I consider non-typical. I believe the reason for the interest in the Marshall Woods project is due to its location near the Rattlesnake National Recreation Area, which is near the large urban town of Missoula, Montana. Many of the comments on this project were from recreationists that use the area frequently, and a large number of these people were mountain bikers that were concerned about potential conflicts from logging activities and potential trail closures not related to the logging. Comment letters ranged in length from 1 to 4 pages.

The Kootenai's project, called the Pilgrim Timber Sale (EA), received 13 comments and page length ranged from 1 to 6 pages. This is what I would consider to be more average based on my personal experience.

For the remaining 8 Forest projects in my sample, the average number of people, agencies and organizations that provided comments during the comment phase of EAs and DEISs was about 6 and ranged from a low of 3 to a high of 10.

The length of comment letters averaged about 12 pages and ranged from 1 page to 252 pages (including references). An interesting thing to note here is that if I eliminate the top 4 most lengthy comment letters sent in by just 4 people either representing themselves (Dick Artley) or environmental groups (Michael Garrity for the Alliance for the Wild Rockies; Sara Jane Johnson for the Native Ecosystems Council and; Jeff Juel for The Lands Council) the average comment letter length drops to about 3 pages.

The reader can refer to the content analysis table I have included with this essay so you can see a summary of the topics brought up during these comment periods.

This would be a good time to explain the technical distinction between two similar sounding phrases used when addressing public comments: "consideration of comments" versus "responding to comments". Although these two phrases sound similar, the time and costs associated with project analysis vary greatly when it comes to whether comments have to be considered or responded to.

Technically and legally, public comments received during the scoping period must be considered. This applies to categorically excluded projects, EAs or EISs. Comments must also be considered after an EA has been released for public review. To consider a comment, the analysis must show that comments were thought about and to some degree show how relevant comments were incorporated into a projects design.

On the other hand, public comments received for EISs must respond to comments received. This pretty much means some kind of reply is required for each and every comment made in a letter, even if the letter and references go on for hundreds of pages and includes topics that most normal people would think are not relevant to a specific project. This is where the public comment process goes haywire and I believe has over the years cost millions of dollars of taxpayer money to comply with. Those individuals and environmental groups that oppose commercial timber harvests on our National Forests employ this process to effectively stall projects and set themselves up for possible successful court wins that further stall project implementation.

In addition to the content analysis table, I've attached a sample comment letter from the environmental group The Land's Council that was submitted for the East Fork Meadow Creek EA project. This comment letter shows how they use what I refer to as the "carpet bombing" approach to comment letters. Imagine yourself as the project leader for a relatively small project such as the ones I have included in my sample, only around 1,000 to 2,000 acres of timber harvest. Imagine yourself and your interdisciplinary team of specialists having to respond to these types of letters. By the way, even though the Forest Service isn't required to respond to these comments in an EA, many project decision makers fear not being able to clearly show how comments were considered if the project were to be litigated, which causes them to go ahead and have the project team respond to the comments instead. This is a very time consuming process and in my opinion adds nothing to the quality of any project analysis or implementation on the ground.

Also of interest is the number of projects any single individual or group provided comments for projects across the Northern Region. There were only a few individuals or groups that provided comments for more than one project. The Alliance for the Wild Rockies commented on 9 of the 11 projects in my sample (82%). Next most frequent are Dick Artley (an individual) and The Lands Council, at 5 out of 11 projects (45%). Fourth place goes to the Native Ecosystems Council with 4 comments of the 11 (36%) and fifth place goes to the Idaho Conservation League at 3 comments of the 11 (27%). It should be noted that of the projects in my sample, 3 were located in Idaho, in which case ICL commented on 100% of the projects in Idaho.

Conclusion:

Although my sample size was small, it verifies what I have personally experienced as a project leader for over the past two decades: normally only a few people and organizations comment on specific projects.

I think that considering public comments during the scoping phase is a good thing.

I believe that considering public and other agency comments during the comment period could also be a good thing, but the requirement or voluntary choice of agencies to respond to comments is in dire need of reform due to the abuse of this process by a very small segment of the population. It is costing the U.S. taxpayers millions of dollars (perhaps hundreds of millions) and in my opinion does nothing to improve the quality of project implementation. It merely gives those few individuals and organizations a process to prevent our National Forests from being cared for by professional land managers hired and trained by us taxpayers.

As a taxpayer, I trust the expertize and commitment of our trained professionals to care for our forests over that of these individuals and organizations that profess to know more about land management than our agency people.

I was curious to find out what kind of expertize some of the organizations have in land management, and I think many of you will be surprised to discover as I did what the educational background is for some of the most outspoken environmental groups that frequently comment on Forest Service projects within the Northern Region.

For example, Michael Garrity of the Alliance for the Wild Rockies has an education in economics, Jeff Juel of The Lands Council has an education in psychology, and Mike Petersen of The Lands Council has an education in mechanical engineering.

When I looked into the backgrounds of other staff members of these organizations, I did not find any forest ecologists, practicing foresters or silviculturists. What I did find was a lot of lawyers, people who had an education in environmental policy, recreation and some ex-Forest Service employees (which makes me question these individuals commitment to forest management when they were employed by the U.S. taxpayers).

Below are a couple links to environmental groups so that you can do your own research concerning the makeup of these organizations. You can easily find this kind of information by checking out the websites of most environmental groups.

http://www.wildrockiesalliance.org/about/board.html

http://www.landscouncil.org/contact/staff.asp

So in closing, I'd propose that the legislative and executive branches of our government look into and reform the public comment process and eliminate the need to respond to comments. This simple reform could save the taxpayers millions of dollars and also reduce the time it takes the Forest Service to implement projects that are designed to care for our National Forests, reduce forest fuels and provide forest products including woody biomass for renewable energy.

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

Note: Please make a generous contribution to the non-profit Evergreen Foundation to help keep this fine educational organization afloat. 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 me a note at editor@evergreenmagazine.com.