Wild places sustain and define us; we, in turn, must protect them.
The U.S. Forest Service (USFS) recently issued final revised regulations that dramatically shortcut environmental review, and public input and oversight, on projects that include up to 2,800 acres of logging and 2 miles of new road construction. The changes in long-standing forest policy come as part of the Forest Service’s overhaul of its rules for implementing the National Environmental Policy Act, or “NEPA.”
The changes to the Forest Service’s NEPA regulations come on the heels of a major revision of the NEPA regulations issued by the presidentially-appointed Council on Environmental Quality or “CEQ.” The CEQ regulations set the overarching rules and guidance that other federal agencies, like the U.S. Forest Service, must abide by in setting their own procedures and duties.
Each of these revised rules (CEQ and USFS) serve to speed up the process of environmental review at the cost of public input and environmental protections. In the case of the Forest Service, it’s a means to get more timber out of the forest more quickly, and with fewer impediments. While the Forest Service reigned back on some truly audacious provisions in their proposed rule (issued in 2019), the final rule will undoubtedly lead to substantial damage to our national forest lands. Leadership at the Daniel Boone National Forest have already said that they plan to use the new authorities to speed up logging on Kentucky’s national forest.
One of the more damaging provisions will be the expedited review and approval of logging up to 2,800 acres of forest at a time, along with up to 2 miles of new road construction. Most of these large logging projects will now be exempt from review in an Environmental Analysis (EA) under what’s known as a “Categorical Exclusion,” or “CE.”
Categorical Exclusions were historically used for routine things like mowing lawns at administrative sites. However, over the last 20 years, the Forest Service has been granted more, and ever-larger, CE authorities for logging on national forest lands. By using a CE, the Forest Service will be able to propose and approve large logging projects after issuing just one brief description of their plans (a “scoping document”) with a short comment period (“scoping period”), followed by a formal decision to approve the project. Typically the Forest Service allows scoping comments on categorically excluded projects anywhere from 2 weeks to 30 days, though the duration isn’t spelled out in the law or regulations.
Most scoping documents, at least in the past, have provided specific locations where logging and other management activities are proposed. However, with the recent Blackwater project near Cave Run Lake, the Forest Service is testing a new system called “condition based management,” where the specific locations for logging won’t be disclosed or decided upon until after a decision is made approving the project. Throughout the analysis of the Blackwater project, the Forest Service has been unwilling to disclose where they will log, how much they will log, where they will build roads, or where they will implement possible stream restoration activities.
The Forest Service has also adopted a new mechanism called a “Determination of NEPA Adequacy,” or “DNA.” The DNA allows the Forest Service to decide that an existing, previous project analysis can be used in whole as the analysis for a new project if the agency believes the two projects to be similar. Using a DNA means that the Forest Service would approve a project without examining or surveying a project area for any unique, special, or sensitive natural communities and habitats. The Daniel Boone Forest Plan, adopted in 2004, acknowledges that the agency doesn’t know the location of every rare natural community, old-growth site, and other resources, and defers to project development as the time to acquire that information. The DNA basically assumes that everything is known, and that there is nothing important that could be harmed by logging, road building, or other management.
Until recently, scoping was typically followed by an in depth analysis of the project and its likely environmental impacts, coupled with opportunities for public input and scrutiny. This period of analysis, and the opportunity for input, have led to important changes and protections in several projects on the Daniel Boone National Forest. Examples of those changes include:
These are just a few examples of the important, substantive changes that happen to project proposals through the analysis and public comment opportunities associated with the Environmental Assessment process. The Forest Service’s new systems do away with these opportunities, and assume that there is no worthwhile information to be had.
And further complicating things, while the new Forest Service regulations state that projects using a CE or DNA will still be publicly scoped, the new CEQ regulations suggest that scoping is only required – and potentially only allowable – when an agency is preparing a full Environmental Impact Statement. Therefore it’s entirely possible that scoping will be done away with altogether. Eliminating scoping was part of the Forest Service’s draft regulations, and could surface again.
The new rule does state that logging projects using the new 2,800 acre CE “shall be developed or refined through a collaborative process that includes multiple interested persons representing diverse interests.” However, nowhere is “collaborative process” defined.
In September, 2020, the DBNF proposed the “Upland Forest Restoration Project” to log 2,990 acres of mostly white pine plantations in the London District under a CE authority granted in the 2003 Healthy Forests Restoration Act as amended by the 2014 Farm Bill. That CE also requires that a project be developed through a “collaborative process.” However, there was no “collaborative process” through which the project was developed. Instead, the agency pointed to the few public meetings and field trips held as part of the Pine Creek project development. But nearly all of the logging in the Upland Forest Restoration Project lies outside of the Pine Creek analysis area, and nothing like the Upland Forest Restoration Project was discussed during the “collaborative” or analysis phases of the Pine Creek project. While the Forest Service did provide 30 days for submitting comments, the project was never included in the quarterly Schedule of Proposed Actions (SOPA).
Whether and how these rule changes (both USFS and CEQ) will change with the incoming Biden administration remains unclear. Undoing regulations is a lengthy and complicated process, and it is uncertain if the Biden administration is willing to prioritize the undoing of these terrible environmental rollbacks. It’s important to note that the Forest Service wants these authorities, and more, and the previous Obama administration tended to defer to the Forest Service on these types of issues.
The best hope for our forests, in the near future, are the various legal challenges underway against both the CEQ and USFS rules. Organizations like the Southern Environmental Law Center and Western Environmental Law Center, among others, have already moved forward with challenges to the CEQ rules with a focus on public lands protection. Legal challenges to the USFS rules are likely.
For now, the best defense that we have is a good offense. This means we need to be out in the forest as much as possible in anticipation of new logging, road building, and other development projects in the Daniel Boone National Forest. Recently, the Forest Service began developing a new proposal for the Jellico mountains along the Tennessee border. We expect the agency to propose about 2,000 acres of logging in the Jellicos, though we don’t know where. And, given statements from DBNF leadership, it’s likely that they’ll use their new CE authorities to rapidly approve an aggressive project.