Here are COWPL's comments which may be used as talking points for your own submission.
NEPA Services Group, c/o Amy Barker
USDA Forest Service
125 South State Street, Suite 1705
Salt Lake City, UT 84138
Via email: nepa-procedures-revision@fs.fed.us
August 8, 2019
Dear Forest Service,
Thank you for the opportunity to submit comments on the proposed revisions to the Forest Service's regulations, 36 CFR 220, for implementing the National Environmental Policy Act (NEPA). This proposal appeared in the Federal Register of June 13, 2019 (84 Fed Reg 27544 et seq.).
Our organization, Colorado Wild Public Lands, considers it critical that existing opportunities for public comment on proposed federal actions be maintained and NOT diminished as has been expressed in the above referenced potential Forest Service rule change.
We are also deeply concerned about the proposed reduction in analysis of potential Forest Service actions and their impacts, particularly with the proposed increased use of Categorical Exclusions and decreased requirements for Environmental Assessments (EA's) and Environmental Impact Statements (EIS's).
We request that the Agency meet its stated goal:
to hold true to its commitment to deliver to decision makers scientifically based, high-quality analysis that honors its environmental stewardship responsibilities while maintaining robust public participation.
Rule Preamble at 27544.
The proposed Forest Service rule reduces the Agency's ability to meet its stated goal by reducing opportunities for public participation and or by excluding scientifically based high quality analysis. The proposed rule is flawed, unacceptable and should be withdrawn.
The following sections describe our concerns in more detail.
THE INTENT OF NEPA AND WHY IT WORKS
The National Environmental Policy Act (NEPA) was enacted to:
declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. Sec. 2 [42 U.S. Code § 4321].
This law, established in 1970, directed a studied approach to major decision-making including providing the public with a proactive voice in the process. For almost 50 years, NEPA has served as the foundation of reasonable, balanced and transparent protections for our environment. Our health, safety, and environment depend on it.
NEPA establishes a baseline standard and requires all federal agencies to take a "hard look" at how their actions affect the human and natural environment and if there are ways to minimize negative environmental effects. NEPA promotes making prudent decisions after studying potential environmental effects. There are three key principles:
• Transparency – Informs of the public of proposed actions and promotes co-ordination with other agencies and projects
• Informed Decision Making – Understand potential impacts and effects of proposed actions before moving forward
• Giving Voice to Local Communities – Public process promotes better projects
As a result of following the NEPA process, better projects are achieved. Overall, the process promotes savings of time and money. With awareness of possible impacts, there is planned mitigation or modifications to the action in place of surprise reactions, litigation and costly clean up.
WHY THE PROPOSED RULE DOESN'T WORK
The proposed rule is contrary to the original intent of NEPA.
• Less transparency due to lowered requirements for public input. – The proposed increased use of Categorical Exclusions in place of EA's or EIS's reduces requirements for public noticing, scoping and public comments periods.
• Uninformed Decision Making – The proposal to allow new or reconstructed road or trails of 5 to 10 miles, or 1000's of acres of logging or "restoration" activities all without the requirements for analysis could result in unanticipated and possibly irreversible impacts to the environment, air and water quality, and human health and safety. Expanded use of CEs requires no analysis including science-based analysis for many actions. Reliance on DNA oversimplifies forest ecology. Condition-based management permits the agency design a NEPA process to fit an action rather than allowing scientific analysis to determine the best course of action. The consideration of alternatives to an action, one of the core NEPA mandates, has been almost eliminated. Finally, there will cumulative effects of multiple projects that will not be accounted for.
• Lack of voice for local communities – The reduction in opportunities for public input could lead to later delays and costs addressing objections and lawsuits.
• Proper Planning Prevents Poor Performance, and Poor Planning Prevents Proper Performance. NEPA is a nod to this old adage, and the proposed changes to this powerful tool will generate poor planning and prevent proper performance, resulting in unpopular, damaging projects that will generate litigation today and expensive remedy in the future.
• Throughout the proposed changes to the rule, "requirements" have been replaced with "discretion". Therefore, there is no guarantee of carrying out important actions such as public scoping or analysis of alternatives that are currently required.
FOREST SERVICE RESPONSE TO PUBLIC COMMENT ON FIRST PROPOSED RULE CHANGE
It seems unreasonable that the Forest Service should choose to ignore "form letters". Per the Federal Register announcement, there were overwhelming numbers, in the tens of thousands, of responses against the proposed rule change compared with only several thousand in support. Submission of form letters indicate that the person submitting the letter is in agreement with, and supports, the position as written in the letter. Sometimes one organization phrases an objection so well that it makes sense to simply support that.
OBJECTIONS AND RECOMMENDATIONS
220.4 General Requirements
(d) – Scoping and Public Notice:
COWPL recommends to remove proposed paragraph (d) and retain the status quo.
EXPLANATION: The National Environmental Policy Act states:
"The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment … declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures … to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." [NEPA 42 USC 4331 101(a)]
Compliance with this stated policy requires transparency through sharing information. Additionally, the Federal Register preamble to the proposed rule includes direction to "maintain robust public participation" [rule preamble at 27544]. The elements of the proposed rule do neither of these things; the elimination of noticing and scoping requirements is contrary to sharing information or maintaining any public participation, much lest "robust" participation.
Notice – The proposed rule requires advance notice only for Environmental Impact Statements and no notice for proposals not documented with a case file or decision notice. The proposed "middle" ground, using quarterly SOPAs as the noticing vehicle for some CEs and most EAs, allows the agency to make decisions and commence actions without consulting or notifying affected communities and user groups until proposed comment periods are underway or even expired. At a minimum, if the SOPA and not the Federal Register is the noticing vehicle, then Section 220.4 should specify that comment periods only commence after the notice appears.
Scoping – The existing rule requires scoping "for all Federal proposed actions … including those that are categorically excluded" [220.4(e)], ensuring concerned organizations are aware of the proposal and giving opportunity to weigh in on the details before the agency makes decisions about whether and how to proceed. Scoping may identify issues the agency had not anticipated. Conducted properly, scoping is an invaluable tool, allowing the agency to identify flaws, problems and potential controversies before they arise, so that the proposal may be modified or withdrawn before the expenditure of limited and valuable resources.
Fostering public participation is a better use of resources than trying to fix problems with the proposal down the road or to remedy unintended impacts that could have been avoided. The proposed rule's avoidance of public participation will generate distrust and litigation, consuming more of people's time, resources and budget. This is the opposite of what the proposal describes.
(i) Determination of NEPA Adequacy (DNA)– Remove this proposed section.
EXPLANATION: A DNA is no substitution for NEPA analysis. It treats every acre of national forest like every other acre, without regard for differences in the elements that make each forest unique such as geography, topography, climate, geology, ecology and demography. An activity that may have minimal impact on a forest in a low-elevation temperate forest in Minnesota may have extreme, long lasting, far reaching impacts at high altitude at the top of the watershed in the Rocky Mountains. To assume that two proposals in these two different locations have the same impacts is flippant and irresponsible.
Not only is the idea deeply flawed, but the proposal offers no guidance or criteria to limit its use and no requirement to inform the public on its utilization or to make the old NEPA document publicly available for scrutiny and comment. The DNA is another one of this proposal's overreach of agency discretion. It is contrary to the NEPA goals of transparency and informed decision making, as a DNA will offer no detail relevant to the site and location of its proposed use.
(k) Condition Based Management – Remove this paragraph and remove reference to it in 220.3.
EXPLANATION: Given that this is new concept on which the agency proposes to rely, the proposal needs to better explain what Condition Based Management is, how it would apply in a NEPA analysis, and why it is appropriate to use. It seems to be a management approach that favors proposed uses over identification of management objectives. It puts the cart before the horse, allowing the agency to select the action and manipulate the NEPA analysis to support it, rather than starting with the objective, the Purpose and Need, and considering alternatives to accomplish it.
220.5 – Categorical Exclusions – Use should NOT be expanded.
The CEQ's guidance on formulating rules about Categorical Exclusions warned:
If used inappropriately, categorical exclusions can thwart NEPA's environmental stewardship goals by compromising the quality and transparency of agency environmental review and decision-making, as well as compromising the opportunity for meaningful public participation and review .
The proposed rule's expanded use of CEs will do precisely this, eviscerating the quality and transparency of the agency decision making and the opportunity for meaningful public participation through review and comment. The new rules will allow numerous actions currently analyzed under Environmental Analyses and Impact Statements and subject to scoping and public comment to be implemented with no analysis, no advance notice, and no opportunity to comment. It also increases the use of agency discretion without guidance. It is reasonable to assume, given the limited budgets and high workloads of the agency, that decision makers will exercise their discretion to avoid extra work that discretional public engagement and analysis would require.
(a) General – Remove new language allowing questionable application of CEs.
The proposed version of this paragraph would allow the agency to apply CEs for actions that do not fall into a prescribed category by allowing it to apply parts of other categories:
"Multiple categories may be relied upon … when a single category does not cover all aspects of a proposed action."
If an action does not fit the likely category, the agency has discretion to shop around for language that could apply to the outlier. Rather than exercising good judgement that the proposal should undergo more rigorous analysis, this section allows the agency to "make it fit".
(b) Resource Conditions – Remove these changes and preserve the Status Quo.
This section expands agency discretion through allowing a balancing act between adverse impacts and benefits, whereas the existing rule considers only adverse impacts.
The proposed text for this section exacerbates the public's concern about the likely impacts that will occur though the expansion of CEs. It weakens, instead of strengthens, the extraordinary circumstances backstop that would require more rigorous analysis.
The new rule eliminates the requirement to consider sensitive species, potentially creating extra work in the future, when they become listed as threatened or endangered due to lack of consideration. It allows degradation of roadless and proposed wilderness areas by exempting such activities such as road construction, timber harvest, mining and reservoir construction from environmental analysis. Not only will these activities damage pristine places, but this degradation will prevent such places from future consideration and permanent protection as Wilderness Areas. In fact, wilderness areas require less management, funding and agency resources than the more intensive activities this rule change favors.
(d) Categories of Actions for which a Case File and Decision Memo are not Required– Remove the added category (12).
(12) (new recreation-based permits) will have substantial impacts on individual forests. Millions of people are relocating to communities with easy access to the recreational opportunities offered by the National Forests, and many Forests are experiencing record numbers of visitors. People are fit and more adventurous than previously, and these recreation-based services are the way to learn "the ropes". Guiding used to be a "lifestyle" profession, but today it is a good way to earn a living. Permitting these services should be analyzed on a forest by forest basis with opportunity for the public to comment on potential impacts to both the resources and user experience/s.
(e) Categories of Actions for which a Case File and Decision Memo are Required – Remove the following additions:
(3) allowing special use permitting, modification and renewal up to 20 acres (increased from 5 acres) of disturbance and are no longer even considered "minor", as in the existing rules. Allowing unlimited expansion of existing gravel pits and unlimited construction of 5 miles of new roads could each have substantial impact and merit analysis.
(22) Allows ski areas and other private recreation business almost unlimited construction of new facilities.
(23) and (25) Adopting "bandit" trails and roads will encourage more construction, and more bandit trails, resulting in fragmentation of habitat, impacts to water resources and degradation of the roadless nature of roadless areas. Moreover, it will exacerbate the $8.4 billion backlog of road maintenance noted in the 2001 Roadless Area Conservation Rule [66 Fed Red 3245, January 12, 2001]. New roads and trails should be undertaken only through thoughtful planning and analysis not only to protect the natural resources, but also to protect equally precious fiscal ones.
(24) Allows surface modification and widening of existing roads and new road construction. {See comments above on (23) and (25)}. Surface modification and widening will create impacts through increased traffic as more types of vehicles will be able to use these modifications, potentially over more periods in a year.
(26) These "ecosystem restoration/resilience activities could include dams (i)(B), pesticide applications (i)(D), forest fires (i)(E,F), and more new roads (ii) (A,B and C), as well as up to 4,200 acres of logging. In COWPL's home state of Colorado, much of which is high altitude, arid country with sensitive, slow-growing vegetation and serves as the top of the watershed for half of the country, 4,200 acres of logging could have substantial, long-lasting, and far-reaching impacts. In such an environment, no logging should occur without careful analysis, restoration and mitigation requirements.
(27) Allows another agency's CE requirement to apply to joint projects with the Forest Service regardless of the stringency requirements. This is a loophole intended to allow even more actions to avoid transparency and analysis. This provision should remain only with direction that the more stringent of the two agencies requirements apply.
The status quo of public notice and scoping should continue to apply here. Notice through a quarterly SOPA is insufficient. Many of these activities have impacts which should be reviewed and vetted through a scoping process. These activities have potential for substantial impacts and their proposed scale requires consideration of each on a site-specific basis. The proposed new rules provide for rapid project implementation with little or no process. They provide for decisions to be made via the agency's discretion with no requirement for public input or analysis. Thus, they make projects that should be subject to analysis exempt even from public disclosure.
220.6 Environmental Assessments
The changes to this section propose replacing "requirements" with "discretion" and therefore will reduce opportunities for public involvement, see discussion below. We request these proposed rule changes be withdrawn.
(b) Proposed Action and Alternative(s) – Retain the status quo in paragraph (iii).
EXPLANATION: The proposed rule change de-emphasizes the consideration and analysis of alternatives; alternatives, especially "No Action" should always be considered.
(c) Public Involvement. Section 220.4 of the proposed rules eliminates the requirement for advance public notice and for scoping.
EXPLANATION: The language of this section replaces these two vital elements of NEPA with agency discretion to undertake "additional public engagement activities … commensurate with the nature of the decision to be made." Reliance on agency discretion will be most likely minimize public involvement due to constrained budgets and the pressure these new rules will place on decision makers to move the NEPA backlog along. It will be ineffective at "maintaining robust public involvement".
Substituting "discretion" for "requirements" relies on individuals who are professional and dedicated to public service. Many Forest Service employees are professional and dedicated to public service, but the continued lack of fiscal and other support makes it difficult to recruit and retain these individuals, suggesting that not enough qualified personnel is a bigger impediment to processing the NEPA backlog than is public involvement.
220.7 Environmental Impact Statements and Record of Decision
Overall, the proposed rule changes will serve to weaken these requirements, further diluting the importance of NEPA. We request these proposed rule changes be withdrawn.
(a) Classes of Actions normally requiring environmental impact statements – Withdraw the proposed changes and retain the status quo.
EXPLANATION:
(2) The new rule eliminates current "Class 2" proposals that would impact the "undeveloped character of inventoried roadless areas and proposed wilderness areas". This would reduce future wilderness or wild and scenic designations by eliminating roadless areas which are a requirement for the special designations.
(3)" Class 3" is a new class that considers exempting projects under 640 acres in size from the current NEPA process. In practice, this could become a NEPA workaround, allowing easier permitting of a series of smaller operations and avoiding assessment of the cumulative impacts of the larger one.
(f) Alternative(s) – Withdraw changes and retain the status quo.
EXPLANATION: The proposed changes reduce requirements to consider alternatives. The current rule requires that alternatives must meet the purpose and need and address one or more of the significant issues with the proposal. The new rule eliminates the requirement to address issues, de-emphasizing the importance of alternatives.
CONCLUSION
The preamble to the proposed rule changes lists the reasons for the change as including greater fire-fighting needs, lack of staff and budget shortfalls. However, the outcome of implementing these rule changes could potentially:
• increase wildfire risk due to not analyzing the impacts of new actions;
• create additional work for staff by taking on more roads and trails to manage and implementing more projects; and
• increase costs to the Agency in reacting to unanticipated project outcomes and negative public reactions or lawsuits due to lack of ability to be heard up front.
The proposed rule does not solve the problems cited by the Agency and instead would result in many negative impacts. It must be withdrawn. The Agency might consider savings in budget and staff time by doing fewer projects better and as intended by NEPA.
Sincerely,
Colorado Wild Public Lands Staff
Suzanne Jackson and
The Colorado Wild Public Lands Board of Directors:
Franz Froelicher, Jean Perry, James Katzenberger, Anne Rickenbaugh,
Stefanie Davis and Hawk Greenway