NEW DEVELOPMENTS IN FEDERAL AGENCY NEPA PROCEDURES
| Jurisdiction | United States |
(Oct 2010)
NEW DEVELOPMENTS IN FEDERAL AGENCY NEPA PROCEDURES
U.S. Forest Service
Denver, Colorado
KENNETH S. CAPPS is a Senior Counsel with the USDA, Office of General Counsel. Mr. Capps' primary client is the USDA, Forest Service. Mr. Capps began his career in 1986 with the Natural Resources Division of OGC in Washington, D.C., where his practice focused on the business relationships of the timber program. Mr. Capps has been in the Denver office of OGC since 1993. Mr. Capps' practice has covered the primary Forest Service program areas from grazing, to recreation, to planning, to real property, to timber, to mineral leasing and focused on environmental and natural resources law.
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC49
National Environmental Policy Act Procedures
AGENCY: USDA Forest Service.
ACTION: Final rule.
SUMMARY: The Department of Agriculture is moving the Forest Service's National Environmental Policy Act (NEPA) codifying procedures from Forest Service Manual (FSM) 1950 and Forest Service Handbook (FSH) 1909.15. In addition to codifying the procedures, the Department is clarifying and expanding them to incorporate Council on Environmental Quality (CEQ) guidance and to better align Forest Service NEPA procedures with its decision processes.
This rule gives Forest Service NEPA procedures more visibility, consistent with the transparent nature of the Forest Service's environmental analysis and decision making. Also, the additions to the Forest Service NEPA procedures in this rule are intended to provide an environmental analysis process that better fits with modern thinking on decisionmaking, collaboration, and adaptive management by describing a process for incremental alternative development and development of adaptive management alternatives. Maintaining Forest Service explanatory guidance in the FSH will facilitate timely responses to new ideas, new information, procedural interpretations, training needs, and editorial changes to assist field units when implementing the NEPA process.
DATES: Effective Date: These NEPA procedures are effective July 24, 2008.
ADDRESSES: The Forest Service NEPA procedures are set out in 36 CFR part 220, which is available electronically via the World Wide Web/Internet at http://www.gpoaccess.gov/cfr/index.html. Single paper copies are available by contacting Martha Twarkins, Forest Service, USDA, Ecosystem Management Coordination Staff (Mail Stop 1104), 1400 Independence Avenue, SW., Washington, DC 20250-1104. Additional information and analysis can be found at http://www.fs.fed.us/emc/nepa.
FOR FURTHER INFORMATION CONTACT:
Martha Twarkins, Ecosystem
Management Staff, (202) 205-2935, Forest Service, USDA. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m. Eastern Daylight Time, Monday through Friday.
SUPPLEMENTARY INFORMATION: Council on Environmental Quality (CEQ) regulations at 40 CFR 1507.3 require Federal agencies to adopt procedures as necessary to supplement the requirements of the CEQ's regulations implementing the National Environmental Policy Act (NEPA). The regulation further encourages agencies to publish agency explanatory guidance for CEQ's regulations and agency procedures. In 1979, the Forest Service chose to combine its implementing procedures and explanatory guidance in Forest Service directives FSM 1950 and FSH 1909.15.
Descriptions of Forest Service NEPA authority, objectives, policy, and responsibilities remain in FSM 1950. Forest Service explanatory guidance interpreting CEQ and Forest Service procedures in regulation remain in FSH 1909.15. For an explanation of NEPA and the NEPA process, see CEQ's "A Citizen's Guide to the NEPA--Having Your Voice Heard" at http://ceq.eh.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
This rule gives Forest Service NEPA procedures more visibility, consistent with the transparent nature of the Forest Service's environmental analysis and decision making.
Maintaining Forest Service explanatory guidance in directives will facilitate quicker responses to new ideas, new information, procedural interpretations, training needs, and editorial changes to assist field units when implementing the NEPA process.
Since the last major update of Forest Service NEPA policy in 1992, CEQ has issued guidance that the Department believes is appropriate to incorporate into Forest Service NEPA procedures with this regulation. The Department also believes it is appropriate to incorporate several concepts that the Forest Service currently uses, but for which explicit provisions in its current procedures are lacking.
Finally, this rule will allow for better integration of NEPA procedures and documentation into the current Forest Service decisionmaking processes, including collaborative and incremental decisionmaking.
On August 16, 2007, the Forest Service published a proposed rule to move its NEPA procedures from FSH 1909.15 to 36 CFR part 220 (72 FR 45998). The majority of implementing procedures found in FSH 1909.15 transfer to 36 CFR part 220 and remain intact. Forest Service explanatory guidance remains in the revised FSH 1909.15 being published concurrently with this rule and available at http://www.fs.fed.us/cgi-bin/Directives/get_dirs/fsh?1909.15. Key changes in this final rule:
• Clarify actions subject to NEPA by summarizing the relevant CEQ regulations in one place.
• Recognize Forest Service obligations to take immediate emergency responses and emphasize the options available for subsequent proposals to address actions related to the emergency when normal NEPA processes are not possible.
• Incorporate CEQ guidance language regarding what past actions are "relevant and useful" to a cumulative effects analysis.
• Clarify that an alternative(s), including the proposed action, may be modified through an incremental process.
• Clarify that adaptive management strategies may be incorporated into an alternative(s), including the proposed action.
• Incorporate CEQ guidance that states environmental assessments (EAs) need to analyze alternatives to the proposed action if there are unresolved conflicts concerning alterative uses of available resources as specified by section 102(2)(E) of NEPA.
The CEQ was consulted on the proposed and final rule. CEQ has issued a letter stating CEQ has reviewed this rule and found it to be in conformity with NEPA and CEQ regulations (per 40 CFR 1507.3 and NEPA section 102(2)(B)). This letter is available at http://www.fs.fed.us/emc/nepa.
To improve clarity, this final rule received numerous corrections to punctuation, grammar, abbreviations, and citations. These edits did not change the substance or meaning of any of the rule's provisions. Substantive changes from the proposed to this final rule are discussed in the responses to comments that follow.
Comments on the Proposal
The proposed rule was published in the Federal Register on August 16, 2007, for a 60-day comment period. The Forest Service received 10,975 responses, consisting of letters, e-mails, web based submissions, and faxes. Of those, approximately 200 contained original substantive comments; the remaining responses were organized response campaign (form) letters. Comments were received from the public, from within the Forest Service,
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and from other agencies. The Department considered all the comments and made a number of changes in response. A summary of comments received and the Department's responses follow.
General Comments
Generally, respondents favored the Forest Service's efforts to make the NEPA process run more efficiently for all interested parties. Many respondents like the idea of having Forest Service NEPA procedures in more readily accessible regulations, instead of in directives. They also like the concept that the Forest Service would like to work more closely with stakeholders. Respondents feel that the CFR is more readily available to the public, making it easier for the public and interested parties to engage the Forest Service during decisionmaking and to ensure they are following the regulations. In addition, many respondents feel that moving the NEPA procedures to regulation ensures they are part of the Federal Government's official regulations, enhancing the opportunities to legally enforce the requirements. Generally, most respondents support the proposed rule, but have concerns with some details, which are outlined below.
Response. The Forest Service appreciates the comments. It should be clarified however that the Forest Service believes that the move from internal procedures to published regulations and handbook should not change the judicial interpretations of these procedures.
NEPA
Comments. Although most respondents agree with moving NEPA procedures to regulation, some asked the question, "What problem is the Forest Service trying to solve by moving its regulations?" Also, a few respondents cite Western Radio Services Co. v. Espy, 79 F.2d 896, 901 (9th Cir. 1996), stating that the Forest Service must explain the rationale for moving NEPA procedures. Many respondents are concerned that the proposed rule would weaken or undermine NEPA, which in turn would damage public lands, water, wildlife, and air. One individual stated that only Congress has the authority to change NEPA.
Respondents are also concerned that the proposed rule would give special interest groups an opportunity to develop, extract, and log public lands without regulation or accountability to the general public. Many individuals commented about the proposed rule being "another attempt by the current administration to circumvent environmental regulations." One conservation organization believes that "the Forest Service 'decision process' * * * is highly subject to political pressure, particularly...
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