BARRY WYNSMA: CATEGORICAL EXCLUSIONS “DE-MYTH-TIFIED”

“Categorical Exclusions will over-ride federal environmental laws and exempt logging from any analysis or disclosure of adverse environmental impacts and eliminate public involvement.”

Evergreen: How many times have we read or heard this misleading mantra from specific, agenda driven groups?

Barry Wynsma: "In my 33-year career with the U.S. Forest Service...too many times to count."

A note from Evergreen:

Developing an arsenal of myths surrounding forestry and sustainable practices that include harvesting timber and a human footprint of any kind, is a well developed strategy honed by a select set of self-proclaimed environmental and conservation groups. These agenda driven enclaves are generally small in membership but generously supported by an often well meaning sponsor, who is uninformed or does not understand the full body of scientific work as it pertains to the issues. Fear tactics, sweeping generalizations, and cherry picked data are cornerstones; thus, sound-bites without science...which leads to the media reporting without facts.

These same groups consistently refuse to participate in the collaborative process or any constructive dialogue regarding the sustainability of our national forests, yet are quick to litigate with taxpayer dollars after the hard work is done - by everyone else. This feeds public confusion around the many issues related to forestry and forest health, and contributes to the rising crisis occurring in our national forests.

Our featured article by Barry Wynsma, will discuss how categorical exclusions were developed and how they can and should be used by federal land management agencies - to expedite the environmental analysis required under the National Environmental Policy Act of 1969 (NEPA) and other laws such as the Endangered Species Act, Clean Water Act and others.

CATEGORICAL EXCLUSIONS DE-MYTH-TIFIED By Barry Wynsma

During my Forest Service years I easily implemented somewhere between 50 and 100 “Cat-X” projects. With this a guiding qualification, it is time to de-myth-tify categorical exclusions...so let's get started.

WHAT IS THE COUNCIL FOR ENVIRONMENTAL EQUALITY?

The Council of Environmental Quality (CEQ) is the agency that provides guidance for Federal departments and agencies on how to establish, apply, and revise categorical exclusions in accordance with section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. 4332, and the CEQ Regulations for Implementing the Procedural Provisions of NEPA (CEQ Regulations), 40 CFR Parts 1500–1508.[1]  Herein, I will reference this guidance numerous times.

Note: CEQ guidance applies only to categorical exclusions (CEs) established by Federal agencies in accordance with section 1507.3 of the CEQ Regulations, 40 CFR 1507.3. It does not address categorical exclusions established by statute. Their use is governed by the terms of specific legislation and subsequent interpretation by the agencies charged with the implementation of that statute and NEPA requirements. CEQ encourages agencies to apply their extraordinary circumstances to categorical exclusions established by statute when the statute is silent as to the use and application of extraordinary circumstances.

CATEGORICAL EXCLUSION DEFINED

CEQ defines a categorical exclusion as follows: “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 (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.”

MYTH “Categorically excluded activities are exempt from environmental analysis.”

Clear guidance from CEQ: “Categorical exclusions are not exemptions or waivers of NEPA review; they are simply one type of NEPA review. To establish a categorical exclusion, agencies determine whether a proposed activity is one that, on the basis of past experience, normally does not require further environmental review. Once established, categorical exclusions provide an efficient tool to complete the NEPA environmental review process for proposals that normally do not require more resource intensive Environmental Assessments [EA’s} or Environmental Impact Statements [EIS’s]. The use of categorical exclusions can reduce paperwork and delay, so that EA's or EISs' can be targeted toward proposed actions that truly have the potential to cause significant environmental effects.”

CEQ guidance continues: “The agency must consider the specific circumstances associated with the proposed activity, to rule out any extraordinary circumstances that might give rise to significant environmental effects requiring further analysis and documentation in an EA or an EIS.

In other words, when evaluating whether to apply a categorical exclusion to a proposed activity, an agency must consider the specific circumstances associated with the activity and may not end its review based solely on the determination that the activity fits within the description of the categorical exclusion; rather, the agency must also consider whether there are extraordinary circumstances that would warrant further NEPA review.

Even if a proposed activity fits within the definition of a categorical exclusion and does not raise extraordinary circumstances, the CEQ Regulations make clear that an agency can, at its discretion, decide ‘‘to prepare an environmental assessment in order to assist agency planning and decision-making.’’

EXTRAORDINARY CIRCUMSTANCES DEFINED

CEQ guidelines state: “Extraordinary circumstances are appropriately understood as those factors or circumstances that will help an agency identify the situations or environmental settings when an otherwise categorically-excludable action merits further analysis and documentation in an EA or an EIS. The determination that an extraordinary circumstance will require additional environmental review in an EA or an EIS should depend not solely on the existence of the extraordinary circumstance but rather on an analysis of its impacts.

For example, when an agency uses a protected resource, such as historic property or threatened and endangered species, as an extraordinary circumstance, the guidance clarifies that whether additional review and documentation of a proposed action’s potential environmental impacts in an EA or an EIS is required is based on the potential for significantly impacting that protected resource.”

Continuing: “However, CEQ recognizes that some agency NEPA procedures require additional analysis based solely on the existence of an extraordinary circumstance. In such cases, the agencies may define their extraordinary circumstances differently, so that a particular situation, such as the presence of a protected resource, is not considered an extraordinary circumstance per se, but a factor to consider when determining if there are extraordinary circumstances, such as a significant impact to that resource. This way of structuring NEPA procedures is also appropriate. What is important is that situations or circumstances that may warrant additional analysis and documentation in an EA or an EIS are fully considered before a categorical exclusion is used."

Still further: “The guidance was also revised to clarify how agencies can use the factors set out in the CEQ Regulations to determine significance. The Federal agencies are ultimately responsible for the determination of specific extraordinary circumstances for a category of actions, as well as the determination of whether to use the significance factors set out in the CEQ Regulations when establishing extraordinary circumstances. Agency determinations are informed by the public and CEQ during the development of the categorical exclusions.”

For categorical exclusions developed by the Forest Service, extraordinary circumstances to be considered are further defined as[2]: “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

(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.”

This requirement for consideration of extraordinary circumstances before implementing a project under a categorical exclusion is actually a high bar to achieve and normally requires environmental analysis and field surveys at the same level as EA's and EIS's, with the exception of extremely benign CE's such as mowing lawns at administrative sites for instance (more on the types of CE's later), the only major difference is that unlike EA's and EIS's, a CE does not require development and analysis of multiple action alternatives, including a no-action alternative. This vastly reduces the amount of time and paperwork required to get through the analysis phase of a project.  In other words, when using a CE, agencies have to disclose how a proposed action fits a specific categorical exclusion and then also disclose why there aren’t any extraordinary circumstances that would preclude the use of the category.

If you want evidence of how extensive the routine analysis can be for a forest management categorical exclusion, I refer you to a recently completed CE on the Idaho Panhandle National Forest called the Jasper Mountain Decision Memo, signed in 2015, which used a categorical exclusion established by statute under the recent 2014 Farm bill, called a CE #3- Insect and Disease Infestation. The analysis for considering the extraordinary circumstances for this 2,000-plus acre project can be viewed by signing on to the Idaho Panhandle NF website and following the link:  http://www.fs.usda.gov/project/?project=45020. As the reader will see, the analysis and public involvement completed for this project was extensive. In my opinion, the paperwork was excessive.

HOW CATEGORICAL EXCLUSIONS ARE ESTABLISHED OR REVISED

Excerpted from Section II of the CEQ guidelines: “As discussed further in Section III.A.1, below, agencies may also identify potential new categorical exclusions after the agencies have performed NEPA reviews of a class of proposed actions and found that, when implemented, the actions resulted in no significant environmental impacts.”

Section III.A.1 further provides: "An agency’s assessment of the environmental effects of previously implemented or ongoing actions is an important source of information to substantiate a categorical exclusion. Such assessment allows the agency’s experience with implementation and operating procedures to be taken into account in developing the proposed categorical exclusion. Agencies can obtain useful substantiating information by monitoring and/or otherwise evaluating the effects of implemented actions that were analyzed in EA's that consistently supported Findings of No Significant Impact. If the evaluation of the implemented action validates the environmental effects (or lack thereof) predicted in the EA, this provides strong support for a proposed categorical exclusion. Care must be taken to ensure that any mitigation measures developed during the EA process are an integral component of the actions considered for inclusion in a proposed categorical exclusion.”

An example of how the Forest Service conducted this type of monitoring in the development of the 2003 suite of categorical exclusions for forest management can be read in the Federal Register[3]. In this notice it is disclosed that 154 timber sales located across the country were reviewed that either were analyzed under a categorical exclusion (CE) or under an EA that personnel felt could have qualified as a categorical exclusion given a Finding of No Significant Impact (FONSI).

I was personally involved in conducting field reviews with other resource specialists for a couple of the 154 projects selected for monitoring and development of these new categorical exclusions. The Federal Register notice that implemented these particular CE's numbered 12, 13 and 14 included the statement as a response to public comments during the development of the CE's “The agency is establishing these categories because the appropriate implementation of NEPA requires concentrating agency analysis efforts on major Federal actions and not expending scarce resources analyzing agency actions where experience has demonstrated the insignificance of effects.”[4]

In other words, federal land management agencies have likely conducted thousands of environmental reviews using Environmental Assessments that included a Finding of No Significant Impacts since the NEPA process was established around 45 years ago, which means forest management projects and their design criteria should provide more than enough justification to make more use of CE's.

I will have more to say on this later...

MYTH “The public is excluded from participating in projects that are categorically excluded.”

PROCEDURES REQUIRED TO ESTABLISH NEW OR REVISED CATEGORICAL EXCLUSIONS

Section IV of the CEQ guidelines states: “Pursuant to section 1507.3(a) of the CEQ Regulations, Federal agencies are required to consult with the public and with CEQ whenever they amend their NEPA procedures, including when they establish new or revised categorical exclusions. An agency can only adopt new or revised NEPA implementing procedures after the public has had notice and an opportunity to comment, and after CEQ has issued a determination that the procedures are in conformity with NEPA and the CEQ regulations.”

Continuing from Section IV: “Accordingly, an agency’s process for establishing a new or revised categorical exclusion should include the following steps:

(1) Draft the proposed categorical exclusion based on the agency’s experience and substantiating information

(2) Consult with CEQ on the proposed categorical exclusion

(3) Consult with other Federal agencies that conduct similar activities to coordinate with their current procedures, especially for programs requesting similar information from members of the public (e.g., applicants)

(4) Publish a notice of the proposed categorical exclusion in the Federal Register for public review and comment

(5) Consider public comments

(6) Consult with CEQ on the public comments received and the proposed final categorical exclusion to obtain CEQ’s written determination of conformity with NEPA and the CEQ Regulations

(7) Publish the final categorical exclusion in the Federal Register.

(8) File the categorical exclusion with CEQ

(9) Make the categorical exclusion readily available to the public through the agency’s Web site and/or other means”

It doesn’t appear that the public is excluded from the process of developing CE's. Furthermore, public involvement is often required at various degrees for individual projects being proposed under CE authority based on the actual category to be used.

FOUR CLASSIFICATIONS FOR CATEGORICAL EXCLUSIONS

[1] Those that don’t require a decision memo (DM) and case file

[2] Those that require a DM and case file for categories established by the Secretary of Agriculture

[3] Those that require a DM and case file for categories established by the Chief of the Forest Service

[4] CE's established by statute

CE projects that don’t require a decision memo or case file: CE activities that don’t normally require documentation in a Decision Memo (DM) or a case file include simple things such as mowing lawns at administrative sites and conducting road, trail or campground maintenance work including removal of dead, dying or downed trees that create a public hazard. Other administrative/policy making activities don’t require documentation either. These types of activities are listed in Forest Service Handbook directions under Section 1909.15 Chapter 30 at 31.11 and 31.12.

Categorical Exclusions that require a decision memo and case file: Chapter 32.2 of Forest Service Handbook Section 1909.15 states: “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)20 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))”

**One CE established by statute is the Organizational Camp Special Use Authorizations: ** The National Forest Organizational Camp Fee Improvement Act of 2003 (16 U.S.C. 6231 et seq) establishes that the ministerial issuance or amendment of an organizational camp special use authorization is not subject to NEPA (Chapter 32.4 FSH 1909.15).  The term ‘‘organizational camp’’ means a public or semi-public camp that is developed on National Forest System lands by a nonprofit organization or governmental entity; provides a valuable service to the public by using such lands as a setting to introduce young people or individuals with a disability to activities that they may not otherwise experience and to educate them on natural resource issues; and does not have as its primary purpose raising revenue through commercial activities.

FIVE MOST CURRENT AND APPLICABLE CATEGORICAL EXCLUSIONS

Rather than discussing all of the CE categories that are currently available for the Forest Service, I’ll select the five currently available that relate to forest management activities and discuss how they can be used and improved upon in the future. These are: No. 6, 12, 13, 14 and, last, exclusion by statute

I’ll also make a few recommendations for new CE's that should be made available for use. I will be referencing the Forest Service Handbook direction, Section 1909.15, Chapter 31.2 (2013 issuance).

Categorical Exclusion No. 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:

[1] Girdling trees to create snags

[2] Thinning or brush control to improve growth or to reduce fire hazard including the opening Of an existing road to a dense timber stand

[3] Prescribed burning to control understory hardwoods in stands of southern pine

[4] Prescribed burning to reduce natural fuel build-up and improve plant vigor.

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

This CE is typically used for precommercial thinning (i.e. trees that have no commercial value as saw-logs and are left on site) and/or pruning tree plantations that were established following timber harvest, but can also be used for commercial thinning. The work is usually accomplished when trees are fairly young and by chainsaw-wielding hand crews. Mechanical thinning machines, such as small-scale tree shears or mulching machines (i.e. excavators and other tracked or wheeled machines that are less than 10ft wide) are not excluded from use and commercial products such as Christmas trees, posts, poles, small diameter pulpwood and sawlogs could also be recovered from the thinning operation.

I used this category during my career with the Forest Service to thin hundreds of acres of small diameter timber stands by selling “round-wood sales” to accomplish timber stocking density/fuels reduction and tree species mix objectives. These round-wood sales thinned timber stands that had average tree diameters of less than 7 inches, measured at breast-height (DBH).

In my opinion, this CE is one of the most wisely developed, because it does not include arbitrary restrictions on the maximum acres or volumes that can be treated or removed but rather just relies on the restrictions for extraordinary circumstances, which is all the restrictions that should be required for all CE's.

Categorical Exclusion No. 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:

[1] Removal of individual trees for saw-logs, specialty products, or fuel-wood

[2] 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)

By its description you can guess that this category is not very useful due to its extreme limitation on maximum acres that can be treated and even-aged management treatments (i.e. clear-cuts, shelter-wood and seed-tree cuts) cannot be applied. Even so, the category can come in handy for small parcels of federal land where either commercial thinning or uneven-aged management silvicultural prescription treatments are desirable.

I personally utilized this category during my career for a few small timber sales since they became available in 2003. The category could be improved upon by eliminating the acreage limitation and rely solely on restrictions for extraordinary circumstances.

Categorical Exclusion No. 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:

[1] 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

[2] Harvest of fire-damaged trees

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

It is self-explanatory how this category can be applied - and once again, in my professional opinion the 250 acre limitation unduly restricts its usefulness.  Extraordinary circumstances is a high-bar to achieve for using CE's, and the arbitrary limitations on acreage or volumes (obsolete CE#4 had a 250,000 board foot of live timber and 1,000,000 board foot dead volume limitation) just doesn’t make sense.

For example, in the case of fire salvage, does the agency really think that the difference between a 250 acre and 251 acre fire should determine whether this salvage CE is appropriate for use instead of a full blown EA or EIS? I sure don’t and I would hope that the public would agree. So once again, and similar to CE#12, this CE could be improved by eliminating the acreage limit and relying solely on the restrictions for extraordinary circumstances.

Categorical Exclusion No. 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:

[1] Felling and harvest of trees infested with southern pine beetles and immediately adjacent to un-infested trees to control expanding spot infestations

[2] 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)

There isn’t much difference between CE No.13 and 14. Both can be applied for salvage of trees that are dead or dying, either through weather and fire events [in the case of CE No 13] or through biological causes from insects and diseases. CE No/ 14 provides for a little more flexibility by authorizing cutting of live trees as a buffer around an insect or diseased infected timber stand. They both include the 250 acre limitations for treatment size and my recommendation for improvement/revision would be to eliminate the acreage limitation.

Categorical Exclusion No. 3 - Created by Statute

Insect and Disease Infestation.  Section 8204 of the Agriculture Act of 2014 (Public Law 113-79) amended Title VI of the Healthy Forests Restoration Act of 2003 [HFRA] (16 U.S.C. 6591 et seq.) to add Sections 602 and 603. Section 603 establishes a categorical exclusion for qualifying insect and disease projects in designated areas on National Forest System lands. An insect and disease project that may be categorically excluded under this authority is a project that is designed to reduce the risk or extent of, or increase the resilience to, insect or disease infestation in the areas (HFRA, Sections 602(d) and 603(a)).

This categorical exclusion may be used to carry out an insect and disease project in an insect and disease treatment area designated by the Secretary under section 602. Landscape scale areas may be designated by the Secretary if they meet at least one of the criteria found in HFRA, Sections 602(c)(1)(2) & (3). Within designated landscape scale areas, projects carried out under this authority are limited to areas in:

[1] The wildland-urban interface

[2] Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, outside the wildland urban interface

[3] HFRA, Sections 603(c) (2)(A) & (B)) Projects carried out under this authority may not be implemented in any of the following areas:

[A] A component of the National Wilderness Preservation System:

[B] Any Federal land on which, by Act of Congress or Presidential proclamation, the removal of vegetation is restricted or prohibited

[C] A congressionally designated wilderness study area

[D] An area in which activities…would be inconsistent with the applicable land and resource management plan

[4] HFRA, Sections 603(d) (1) - (4)) A project under this authority must either carry out a forest restoration treatment that complies with the eligibility requirements of the Collaborative Forest Landscape Restoration Program under section 4003(b) of the Omnibus Public Land Management Act of 2009 (16 U.S.C. 7303(b)).

[5] HFRA, Sections 603(b) (2)) Projects under this authority must carry out a forest restoration treatment that:

[A] Maximizes the retention of old-growth and large trees, as appropriate for the     forest type, to the extent that the trees promote stands that are resilient to insects and disease

[B] Considers the best available scientific information to maintain or restore the     ecological integrity, including maintaining or restoring structure, function,         composition, and connectivity; and is developed and implemented through a collaborative process that [1] includes multiple interested persons representing diverse and [2] is transparent and nonexclusive or [3] meets the requirements for a resource advisory committee under subsections [C] through [F] of section 205 of the Secure Rural Schools and Community Self-Determination Act of 2000 (16 U.S.C. 7125)

[6] HFRA, Sections 603(b) (1) (A) - (C)) Projects carried out under this authority may not exceed 3,000 acres

[7] HFRA, Section 603(c) (1)) Projects carried out under this authority are subject to the following limitations relating to roads

[A] Project . . . shall not include the establishment of permanent roads

[B] The Secretary may carry out necessary maintenance and repairs on existing         permanent roads for purposes of this section

[C] The Secretary shall decommission any temporary road constructed under a           project under this section not later than 3 years after the date on which the project is completed

[8] HFRA, Section 603(c) (3)) All projects and activities carried out under this authority shall be consistent with the land and resource management plans…”

[9] HFRA, Section 603(e) For projects and actions carried out under this authority, the Secretary shall conduct public notice and scoping for any project or action.

[10] HFRA, Section 603(f)) Document this category in a decision memo (FSH 1909.15, 33.2 - 33.3) and include it on the Schedule of Proposed Actions (36 CFR 220.4 (d)). The decision memo should include a description of the efforts taken by the Agency to meet the collaborative process requirements in HFRA, Section 603(b) (1).

Cite this authority as Section 603 of HFRA (16 U.S.C.6591b)

As you can see, CE No.3 Created by Statute has very specific sideboards for use and is similar to CE No 14 but includes more specific requirements and restrictions. It does allow for project areas to be up to 3,000 acres instead of 250 acres under the CE No.14, but once again I believe the acreage limitation is arbitrary and was included purely for political reasons, not because expanding from 3,000 to 3,001 acres crosses some magical enviro__nmental impact barrier that would then require the project to be analyzed using an EA or EIS.

CONCLUSION AND RECOMMENDATIONS

So back to dispelling the Myth: “Categorical Exclusions will override federal environmental laws and exempt logging from any analysis or disclosure of adverse environmental impacts and eliminate public involvement.”

It should now be abundantly clear to you that this claim is completely false.

CE’s, except for the most benign activities discussed previously, require the same level of analysis required for EA’s and EIS’s, the difference being that CE’s don’t have to analyze the possible effects of multiple action alternatives or a no-action alternative, only the proposed action, thereby reducing the paperwork required. No environmental laws are exempt from analysis.

CE’s also include extensive public involvement at two different stages: first when the agencies propose to develop or revise a CE and then again when individual projects are proposed. The difference between CE’s, EA’s and EIS’s when it comes to public involvement is that CE’s are not currently required to include an objection period, which does not eliminate projects proposed under a CE from being litigated. The lack of an objection process reduces the time required to get to the implementation phase by approximately three months.

The federal land management agencies have been implementing hundreds if not thousands of forest management activities after conducting EA’s that concluded with Findings of No Significant Impacts (FONSI) for about 45 years. I believe most of these activities should now be appropriately implemented using CE’s.

As I previously suggested, the current suite of CE’s that are applicable to forest management activities have room for improvement and there are also some new categories that should be created either through agency rule-making procedures or through congressional statutes.

RECOMMENDATIONS TO FEDERAL AGENCY DIRECTORS AND CONGRESS

1. All current CE’s that include maximum acreage limitations should be revised to eliminate them. Future CE’s should never include acreage or volume limitations, as the requirement to have no extraordinary circumstances is all the restrictions I believe are needed to protect all resources and contain the use of CE’s to activities that do not result in significant environmental impacts.
2. Precommercial thinning and pruning activities conducted with hand operated chainsaws and hand saws in plantations should be a new CE under the categories that do not require a Decision Memo and case file (FSH 1909.15 Chapter 32.12, as discussed previously). These activities scheduled under pre-existing silvicultural prescriptions are usually conducted when trees are approximately 10-15 feet tall and are cut and left on site because they have no commercial value.
3. Currently there is a CE No. 4 (under Chapter 31.2) that is “reserved.” This CE used to be for live timber harvests up to 250,000 board feet and salvage harvests up to one million board feet until it was rescinded following a lawsuit and partially replaced with the current CE’s No.12, 13 and 14.

I recommend that a new CE No. 4 be created that can be applied in existing timber harvest areas having pre-existing NEPA and silvicultural prescriptions that included a schedule for future treatment activities including commercial thinning, shelter-wood, seed-tree and clear cut harvests through the rotation period. There should be no acreage or volume limits, let the existence of extraordinary circumstances determine whether this category could be applied.

These new and/or revised CE’s would help expedite the planning process for all types of forest management activities. We need to drastically improve the process of  fuels reduction and restoration treatments currently being implemented across the country through the work of many long standing collaborative groups who have spent years working to save our forests. We need to see better results over larger landscapes...and we need to see it soon.

• By Barry Wynsma, Forester, U.S. Forest Service, Retired

References:

[1] http://www.nepa.gov) specifically at: ceq.hss.doe.gov/ceq_regulations/guidance.html.

[2] FSH 1909.15 - National Environmental Policy Act Handbook  Chapter 30 - Categorical Exclusion From Documentation Amendment No.:  1909.15-2014-1 Effective Date:  May 28, 2014 pgs 3-4

[3] Federal Register / Vol. 68, No. 145 / Tuesday, July 29, 2003 / Notices pg 44598

[4] Federal Register / Vol. 68, No. 145 / Tuesday, July 29, 2003 / Notices pg 44600