The US Forest Service has proposed a series of changes to its current National Environmental Policy Act (NEPA) regulations. NEPA guides how the USFS and other agencies make decisions, and requires the agency to conduct Environmental Impact Statements or Environmental Analyses to measure the impact of proposed policies or actions on the immediate environment.
In other words, the USFS has been required for decades to submit lengthy and time-consuming environmental analyses to review potential hazards to the immediate environment by things ranging from routine fire management to trail and road maintenance or timber harvesting.
The review process has proved extremely lengthy over time and created a backlog of projects for the USFS. The proposed changes appear to streamline decision making for the agency, however, there is a lot of speculation on what else the changes mean.
NEPA was signed into law on Jan 1, 1970 as the first major environmental law in the US. With NEPA, Congress established the Council on Environmental Quality (CEQ) which sits under the Executive Office of the President and watches over federal agencies to make sure they meet NEPA requirements. The CEQ also reviews Environmental Impact Statements (EIS) written by the USFS and other federal agencies.
The EIS has been controversial since its debut. The decision for a federal agency to submit an EIS can be discretionary and often falls into a grey area. Submitting an unnecessary EIS can soak up time and money. Failure to submit an EIS can be equally painful.
What may be the most arduous part of the EIS process however is the amount of time it takes to complete.
According to the CEQ, “across all Federal agencies, the average EIS completion time from notice of intent to the record of decision was 4.5 years and the median was 3.6 years. One quarter of the EISs took less than 2.2 years, and one quarter took more than 6.0 years.”
Alternatively, federal agencies can submit an environmental assessment (EA). If an EA is completed and it is found that are no significant environmental impacts, then the agency doesn’t need to file an EIS. EAs have become a popular alternative to the EIS and bypass public involvement. According to the USFS though, EAs still take an average of 687 days to complete. That’s nearly two years.
As an alternative to the EA, the USFS can try a categorical exclusion (CE). CEs are activities that agencies have found from research and experience that do not have a significant environmental impact and don’t need extensive environmental analysis. If an activity doesn’t fit into a CE, then the agency must conduct an EA. The CE on average takes 206 days to complete.
On June 13, 2019, the USFS proposed an update to NEPA rules and initiated a 60-day public comment period and a 120-day Tribal consultation period. The changes largely expand the number and type of Categorical Exclusions available to the USFS, meaning that a number of activities would avoid the public input process available in an EIS and discretion to allow public input would fall on the appropriate land manager.
The last revision to the USFS’s NEPA guidelines happened in 2008, but the climate and environmental demands have shifted significantly since then. Issues like extended droughts, wildfire management, and insect infestation have moved to the front and center for the Forest Service.
In a statement regarding the changes, the USFS says “The proposed rule is the result of robust input from agency personnel, the public, and other stakeholders. The changes in the proposed rule will help the Forest Service better manage sustainable, healthy, and productive national forests and grasslands.”
President Trump also issued an executive order last year to “streamline agency administrative and regulatory time periods…” by “using all applicable categorical exclusions set forth in law or regulation…”
The USFS says that the major changes include equipping the USFS with new tools to address worsening conditions in forests and rangelands, ensuring the proper amount of environmental analysis, reducing redundancy, and adding new categorical exclusions that improve the ability to maintain and repair infrastructure in USFS land.
The CEs proposed fall into three categories: restoration activities, infrastructure activities, and special use.
Restoration activities can include removing insect or disease-affected trees through commercial timber harvest in combination with stream restoration in a large area to improve forest health. It can also include prescribed burning and mechanical thinning to reduce overgrowth.
Infrastructure projects could include decommissioning poorly located or difficult-to-maintain roads or trails.
Special use and permitting CEs could include permitting outfitters for guided hike or bike tours, or authorizing a water pipeline and tank for an area with poor water supply.
With the new rules, the USFS could use evidence and analysis from countless similar projects in the past to guide their decision without an EA or EIS that could take years.
What this means for bikers and trails
While this all sounds well and good with the new changes on the USFS’s end, some are not happy with what it could mean for public discourse on activities that takes place on public land.
“Their proposed changes would roll back the public process from about 93% of all Forest Service projects, and in some cases, eliminate public notice altogether,” wrote the Outdoor Alliance, a DC-based outdoor conservation non-profit.
According to the Outdoor Alliance, the changes eliminate scoping for projects considered under a CE or EA. Scoping informs the public that a land management agency is proposing an action and is the only opportunity for the public to provide input on a project that is excluded from an environmental analysis.
The Outdoor Alliance cites a case in Bozeman, MT where scoping allowed the public to give feedback on a vegetation management project in the Bridger Mountains. The project fell under a CE that applies to vegetation projects under 3,000 acres. Because the USFS allowed scoping, the project was revised to protect wildlife and minimize impact to hiking and mountain bike trails and other recreation.
Other outdoor advocacy groups find the proposed NEPA changes mostly suitable.
“For all the things involving outdoor recreation and maintenance of trails and constructing new trails…they are very reasonable,” says Ted Stroll, the head of the mountain bike advocacy group the Sustainable Trails Coalition.
Stroll notes that experience shows that things like grooming or maintaining a trail with machinery doesn’t have a significant amount of environmental impact.
“They shouldn’t have to fight for years in federal court to clear a bunch of trees,” Stroll said in an interview with Singletracks. “It’s not just an outdated process, it’s a paralyzing process. They can’t get anything done.”
Stroll, a retired attorney who has worked on access and advocacy issues for years for mountain bikers doesn’t believe the changes are politically motivated either. “I can’t see ulterior motive in the language of the proposed rule. You have to approach the proposals on their merit and not on who is proposing them.”
Stroll spoke about a case in the Weminuche and San Juan Wilderness where the USFS wanted to clear rapidly falling trees caused by Pine Beetle kill with chainsaws because they couldn’t keep up using manual hand saws. The Durango Herald reported on the incident. Before long, conservation groups filed a lawsuit based on the fact that the USFS would violate the Wilderness Act.
“This is, of course, typical of the kind of nuisance litigation that for decades has put a stranglehold on Forest Service efforts to maintain its lands,” said the STC in a letter of support with suggested modifications to the USFS regarding the NEPA changes. “Maintaining trails with chainsaws, wheelbarrows, or other small-scale equipment with moving parts normally has no significant environmental impact.”
Still, the proposed revisions can be hard to brush off. Democratic processes like public comment periods may convolute or lengthen government decisions, but is part of what makes public land our land.
Comment on the proposed changes by August 12 via one of the methods below.
Singletracks has reached out to the Forest Service for an interview but the agency is not available until next week.