Following is a brief analysis of the draft regulations on national forest planning that were published in the Federal Register on December 6 (67 Fed. Reg. 72770-72815). A 90-day public comment period on the draft regulations ends on March 6, 2003. (Send written comments to: USDA FS Planning Rule, Content Analysis Team, PO Box 8359, Missoula, MT 59807; via email to planning_rule@fs.fed.us; or by facsimile to Planning Rule Comments at (406) 329-3556.)
Summary
The draft regulations would drastically change the national forest planning process. They would greatly reduce the amount of environmental analysis, wildlife protection, and public involvement currently required in the development and revision of forest plans.
Astonishingly, the Administration is proposing to "categorically exclude" the forest planning process from the requirements of the National Environmental Policy Act (NEPA). This exemption would allow the Forest Service to adopt, revise, or amend its management plans for the national forests without considering any alternatives or the environmental consequences to the forests.
The draft regulations also would eliminate the single most important legal requirement for protecting wildlife in the national forests - the requirement to maintain viable populations of native species. This would undermine many important wildlife conservation plans, such as the Northwest Forest Plan and the Sierra Nevada Framework, and open the door to increased logging.
In addition, the Administration's proposal would further reduce protection for roadless areas, reduce the priority given to ecological concerns, make national forests generally available for commodity development and off-road vehicle use, remove enforceable standards from forest plans, and eliminate public participation opportunities in forest plan amendments and appeals.
Background
The National Forest Management Act of 1976 (NFMA) requires the Forest Service to adopt land management plans for all national forests and to revise those plans every 15 years. Regulations to implement the NFMA were initially promulgated in 1979 and amended in 1982. The agency adopted the first forest plans during the 1980s, and it has begun to revise the plans.
In 2000, following two years of study and public meetings by an officially chartered and independent Committee of Scientists, the Forest Service adopted new NFMA regulations to guide the revision of the forest plans. However, in May 2001 the Bush Administration suspended the 2000 regulations, largely in response to the timber industry's objections that the regulations gave too much emphasis to environmental protection rather than commodity production. The Bush Administration did not convene or consult with a Committee of Scientists before issuing the draft regulations on December 6.
Analysis of Key Issues in the Proposed Regulations
Following is a brief analysis of selected aspects of the draft NFMA regulations that pose the greatest threats to public participation and environmental protection.
Forest Plans Exempt from NEPA
Clearly the most radical and controversial proposed change is the exemption of forest plans from the requirements of the National Environmental Policy Act (NEPA), which is widely regarded as the nation's most basic environmental law. The NFMA requires the Forest Service to comply with NEPA in preparing plans and to provide regulatory direction on "when and for what plans" the agency must prepare an environmental impact statement (EIS). 16 U.S.C. § 1604(g)(1). Both the initial NFMA regulations and the 2000 regulations required the Forest Service to prepare an EIS whenever it adopted, revised, or significantly amended a forest plan.
In stark contrast, the Forest Service essentially proposes to eliminate NEPA procedures from the forest planning process altogether. The draft regulations state, "A new plan, plan amendment, or plan revision may be categorically excluded from documentation in an Environmental Assessment or Environmental Impact Statement as provided in agency NEPA procedures." Sec. 219.6(b), 67 Fed. Reg. 72797. The Federal Register notice acknowledges that the NEPA exemption is a "departure from the 2000 rule and the 1982 rule requiring an EIS for plan revisions, significant amendments, or new plans." 67 Fed. Reg. 72779.
Indeed, categorically excluding forest plans from NEPA would have profound impacts on the planning process. For example, one important function of forest plans is to determine which roadless areas, if any, will be recommended and managed as wilderness. Ordinarily, the Forest Service evaluates several wilderness alternatives, ranging from none to all of the eligible areas. Under the draft regulations, however, the Forest Service would only present one alternative - their own. Without an EIS process, the public will only be able to review and comment on what the Forest Service thinks is best for the forest and society.
Also, under the proposed regulations there would be absolutely no analysis of environmental effects of the Forest Service's proposed plans. The Administration argues that there is no need to consider environmental effects of a forest plan because they are too speculative and are better evaluated through site-specific project planning (such as timber sales). This ignores the fact that forest plans make critically important choices about overall management direction and environmental safeguards. For instance, there are major differences between 100-foot and 200-foot stream buffers that the public and Forest Service decision-makers must understand in order to make an informed choice.
Ironically, the draft regulations would stand NEPA and NFMA on their heads by making it much more difficult for the Forest Service to reduce environmentally damaging activities. As proposed, the only time the Forest Service would have to prepare an EIS on a forest plan would be if it were substantially changing the status quo. For example, if excessive grazing or off-road vehicle uses were degrading fragile wetlands, the forest plan could not reduce or further restrict those activities unless agency planners prepared an EIS. 67 Fed. Reg. 72778. On the other hand, no EIS would be required if the plan simply allowed those activities to continue. Thus, by providing a strong incentive for agency planners to maintain the status quo, the draft regulations give the legal advantage to livestock and ORV interests who wish to maintain existing uses over environmental advocates who are seeking to reduce resource impacts. This is precisely the opposite of the purposes of NEPA and NFMA.
By exempting forest plans from NEPA, the Bush Administration's proposed forest planning regulations would deprive citizens of their right to understand and comment knowledgeably on forest plan alternatives and their environmental consequences. People often are much more interested in the forest plans' overall environmental standards and land-use allocations than they are in site-specific projects.
This is the latest in a series of efforts by the Administration to bypass NEPA and other environmental laws in national forest management. In September, as part of its "Healthy Forests Initiative," the Administration urged Congress to pass legislation that would entirely exempt Forest Service fuel reduction projects from NEPA. Today the White House announced a regulatory proposal to categorically exclude from NEPA a vast array of fire-related management activities on public lands. The Administration's strategy evidently is to chop away at NEPA at both ends of the planning process - in setting forest-wide management direction and in making project-level decisions.
Species Viability Made Voluntary
The draft rule eliminates the requirement to maintain viable populations of native wildlife species. Instead, the draft rule offers two options for public comment. The first option is similar to the existing viability provision, except that it makes compliance discretionary instead of mandatory and legally enforceable by substituting the word "should" in place of "must." The second option drops the viability concept entirely, in favor of much vaguer direction; for example, "Plan decisions, to the extent feasible, should foster the maintenance or restoration of biological diversity in the plan area...."
The viability requirement is the most important legal safeguard of national forest wildlife habitat, including the old-growth forests of the Pacific Northwest. For example, the Northwest Forest Plan and Sierra Nevada Framework are both based on the objective of assuring the survival of all native wildlife species. The proposed changes to the viability regulation would undermine the legal basis for these conservation plans and could result in much more logging of old-growth and mature forests.
Following is a comparison of the species viability language contained in the 1982 NFMA regulations, the revised 2000 regulations, and the two options presented in the new draft regulations. As noted earlier, the key difference is that the 1982 and 2000 regulations use mandatory and legally enforceable language ("shall" and "must") whereas the 2002 draft regulations use discretionary and unenforceable language ("should").
1982 Regulations: "Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area." 36 CFR § 219.19 (emphasis added).
2000 Regulations: "Plan decisions affecting species diversity must provide for ecological conditions that the responsible official determines provide a high likelihood that those conditions are capable of supporting over time the viability of native and desired non-native species well distributed throughout their ranges within the plan area, except as provided in paragraphs (b) (2) (ii-iv) of this section." 36 CFR § 219.20(b)(2) (emphasis added).
2002 Draft Regulations - Option 1: "Plan decisions should provide for ecological conditions that the Responsible Official determines provides a high likelihood of supporting over time the viability of native and desired non-native vertebrates and vascular plants well distributed within their ranges in the plan area." Sec. 219.13(b)(2)(ii) (emphasis added), 67 Fed. Reg. 72800.
2002 Draft Regulations - Option 2: "Plan decisions, to the extent feasible, should foster the maintenance and restoration of biological diversity in the plan area, at ecosystem and species levels, within the range of biological diversity characteristic of native ecosystems within the larger landscape in which the plan area is embedded." § 219.13(b)(2)(i) (emphasis added), 67 Fed. Reg. 72802.
Roadless Area Analysis and Protection Dropped
Last year the Bush Administration claimed it would use the NFMA planning process to improve upon the Roadless Area Conservation Rule. For example, a May 4, 2001 USDA press release stated, "The rule will be implemented with more reliable information and accurate mapping. This includes drawing on local expertise and experience through the local forest planning process." On June 7, 2001, Chief Bosworth issued the following direction to agency leaders on interim protection of roadless areas:
"I am instructing you to ensure that forest plan amendments and revisions consider, as appropriate, the long-term protection and management of unroaded portions of inventoried roadless areas.... This direction will protect roadless values while meeting the requirements of the laws governing forest management. It will also provide full and fair public consideration of local conditions, cumulative effects, and other critical information and analysis affecting roadless values that are most appropriately obtained and conducted through the forest planning process."
However, the draft NFMA rule eliminates requirements in the 2000 regulations to evaluate and protect the ecological values of roadless areas. The 2000 regulations required planners to "identify and evaluate inventoried roadless areas and unroaded areas based on the information, analyses and requirements in the sustainability sections of the regulations" and to "determine which inventoried roadless areas and unroaded areas warrant additional protection and the level of protection to be afforded." 36 CFR § 219.9(b)(8). These comprehensive requirements were added to the NFMA regulations in order to provide protection from damaging activities, such as off-road vehicle use, in addition to the national prohibitions on road building and logging provided by the Roadless Area Conservation Rule.
If these requirements are removed, forest planners will only have to consider whether to recommend roadless areas for wilderness designation. The agency's recent track record on wilderness recommendations is not encouraging: this year the Forest Service evaluated the 9.4 million acres of roadless areas in the Tongass National Forest and tentatively recommended no new wilderness (a final recommendation is expected early in 2003).
No Priority for Ecological Sustainability
The draft rule downgrades the importance of ecological sustainability by giving equal consideration to logging and other economic activities. This ignores a key recommendation of the Committee of Scientists to give top priority to protecting healthy ecosystems. Based on the Committee's recommendation, the 2000 regulations declared, "The first priority for stewardship of the national forests and grasslands is to maintain or restore ecological sustainability to provide a sustainable flow of uses, values, products, and services from these lands." 36 CFR § 219.19. In contrast, the draft regulations state: "Consistent with the Multiple-Use Sustained-Yield Act of 1960 (MUSYA), the Responsible Official must ensure that the plan provides for desired conditions, objectives, standards, special area recommendations, and monitoring based upon consideration of the three interdependent components of sustainability: social, economic, and ecological." Sec. 219.13, 67 Fed. Reg. 72799.
Opening National Forests to Commodity Development and Off-Road Vehicle Use
The draft regulations would generally open up national forest lands to environmentally damaging activities such as logging, mining, oil and gas drilling, and off-road vehicle use. The regulations declare that "National Forest System lands are generally available for a variety of uses such as outdoor recreation, livestock grazing, timber harvest, energy resource development, mining activities, watershed restoration, cultural and heritage interpretation, and other uses. Rather than determine the suitability of all lands for all uses, a plan should assume that all lands are potentially suitable for a variety of uses except when specific areas are identified and determined not to be suited for one or more uses." Sec. 219.4(a)(4) (emphasis added), 67 Fed. Reg. 72796. Thus, the regulations would create a presumption that all national forest lands are suitable and available for commodity development and other uses that have caused widespread environmental damage.
This regulatory presumption could have far-reaching implications for national forest management. For example, many national forests in Colorado, the Midwest, and elsewhere currently have a "closed unless designated open" policy regarding management of off-road vehicles - meaning that ORVs are only allowed on specifically designated routes. This policy has usually been adopted to prevent soil damage and wildlife harassment caused by ORVs. However, under the proposed regulations, planners would likely have to reverse that policy and make national forest lands generally open to ORV use.
In addition, the draft regulations would allow logging even in forests determined to be environmentally or economically unsuitable as timberlands. The proposed regulations state, "Designation of lands as unsuitable for timber production does not preclude the harvest of trees for other multiple use values." Sec. 219.16(c), 67 Fed. Reg. 72803. Potential reasons to log on unsuitable lands include fuel reduction, wildlife openings, and salvage of dead or dying trees. Furthermore, the draft regulations - unlike the 2000 regulations - would put no limit on the amount of timber that could be logged on unsuitable lands. 67 Fed. Reg. 72790.
Loosening Environmental Standards
Besides giving timber and mining companies greater access to national forest lands and resources, the draft regulations also would loosen the environmental standards governing their activities. Forest plan standards are important because they limit environmental impacts of development activities. For example, plans often set thresholds for allowable soil compaction, road densities, and old-growth forests in order to protect soil productivity, water quality, and wildlife habitat. Standards are the main way that citizens can hold the Forest Service accountable and ensure that the agency is managing the forest in accordance with the plans.
The Forest Service proposes to increase its flexibility and reduce its accountability by making forest plan standards more discretionary. The draft regulations state, "Standards generally should be adaptable and assess performance measures." Sec. 219.4(a)(3), 67 Fed. Reg. 72796. In other words, forest plans would have few, if any, strict environmental standards; instead, the standards would be riddled with "adaptable" loopholes and escape clauses that would make it practically impossible to hold the agency accountable to its forest plans.
While embracing the concept of "adaptive management" when it serves the purpose of reducing environmental safeguards and public accountability, the draft regulations eliminate key adaptive management components of the 2000 regulations. In particular, the draft regulations drop a provision in the 2000 regulations that requires adequate funding for monitoring before the Forest Service can authorize management activities like timber sales. 67 Fed. Reg. 72781-82.
"Interim" 4-Year Plan Amendments Exclude Public Input
The NFMA requires the Forest Service to involve the public whenever it amends a forest plan. 16 USC § 1604(f)(4). However, the draft regulations would circumvent public involvement by allowing the Forest Service to adopt "interim" amendments with no public notice or opportunity for administrative appeal. Sec. 219.7(f), 67 Fed. Reg. 72797. These "interim" amendments could remain in place for up to 4 years before the agency would have to provide any public notice that the forest plan had been amended.
No Appeals Process
The draft rule reduces public participation at both ends of the planning process. Not only does it weaken the role of NEPA and public involvement in formulating and amending the plan, but it also takes away the opportunity to appeal the agency's final plan. The draft rule would replace the existing administrative appeals process with a perfunctory "pre-decisional objection" process. Sec. 219.19, 67 Fed. Reg. 72803-04. Anyone could file an "objection" to a proposed plan revision or amendment (except an "interim" amendment). However, only "original substantive comments" would be accepted as objections; public comments containing copied materials would be tossed out as invalid objections. Sec. 219.19(d). Also, there would be no opportunity to request administrative review of the final plan, even if the forest supervisor changes the proposed plan in response to objections. The likely result will be more lawsuits challenging forest plan revisions and amendments.
While the 2000 regulations included a similar pre-decisional objection process, that was arguably justified because the regulations strongly emphasized public involvement early in the planning process. However, by exempting forest plans from NEPA and other changes in the process, the new proposed regulations severely restrict early public involvement, thus removing any justification for eliminating appeals.
Conclusion
The cumulative effect of the Bush Administration's proposed NFMA regulations would be to make the national forests much more vulnerable to logging, mining, ORV use, and other environmentally damaging activities. These regulations pose a threat to old-growth forests, roadless areas, and environmental quality throughout the 192 million-acre National Forest System. They also reduce public involvement in forest planning, thus increasing the influence of resource development interests in national forest management.