Testing Nepa's Flexibility for Forest Management Projects in California
| Publication year | 2022 |
| Author | Written by Aaron Ferguson |
Written by Aaron Ferguson1
Over the past several years, a consensus has formed around the idea that decades of fire suppression have resulted in overly dense and less resilient forests throughout California.2 Deterioration of California's forests has been exacerbated by wildfires, weather extremes, drought, invasive species, and human population pressure.3 Restoration of forests can provide opportunities for timber production and recreation, as well as improvements in water supplies, water quality, and wildlife habitat.4 However, without increasing the pace and scale of forest management activities, California risks the loss of these potential benefits.5
Given the federal government's vast holdings of forestland throughout California, it will continue to be a key player in forest management. For example, forests occupy nearly 40% of the 15 million acres "headwaters region" in California, or about 6 million acres.6 Federal agencies own about two-thirds of these forests, or about 4 million acres.7 Recognizing the integrated nature of forests, communities, watersheds, and wildlife, and the varied incentives for protecting and managing these resources, in August 2018, the United States Department of Agriculture, Forest Service (Forest Service), initiated the Shared Stewardship Investment Strategy and committed to work closely with states to set landscape-scale priorities for fire risk treatments.8
With this commitment, in 2020, the Forest Service and the State of California executed an agreement that has established a joint framework to enhance forest stewardship in California, including a commitment to scale up vegetation treatment to one million acres of forest and wildlands annually by 2025, with each party committing to treat 500,000 acres per year (2020 MOU).9 During the previous ten-year period, from 2010-2020, treatments occurred on a total of 409,735 federally owned acres within the "headwaters region"—an average of less than 41,000 acres per year.10 Given that this headwaters area includes about 20% of the Forest Service's 20 million acres under management in the Pacific Southwest Region, the rate of treatments on federal land will need to increase to approximately 100,000 acres per year in this area alone to achieve the 500,000 acre per year treatment objective in the 2020 MOU. This would be a 150% increase relative to the recent past.
Forest management on federal lands triggers federal regulatory compliance obligations. The National Environmental Policy Act (NEPA) is a key variable in the pace and scale of forest management on federal lands. This article assesses the recent evolution of NEPA
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compliance efforts within the Forest Service, evaluates other potential limiting factors on the Forest Service's fire protection activities, describes potential impediments to efficient implementation of environmental analyses, and suggests approaches to the implementation of NEPA that would help ensure the Forest Service can consistently treat 500,000 acres per year of forestland in California.
AN OVERVIEW OF NEPA
NEPA (42 U.S.C. § 4321 et seq.) requires federal agencies to consider significant environmental effects of their proposed actions by assessing and publicly disclosing any such effects and alternatives prior to making decisions.11 In essence, NEPA is a procedural requirement; it does not guarantee a particular course of action. The President's Council on Environmental Quality (CEQ) oversees NEPA implementation by issuing regulations and other guidance to federal agencies to ensure compliance with the environmental impact assessment process.12
In general, the NEPA assessment process starts with the identification of a need for action and the development of a project proposal. If the lead agency, or the agency with jurisdictional authority to carry out the project, anticipates that the action will have or potentially have significant environmental impacts, the agency will prepare an Environmental Impact Statement (EIS)—the most thorough level of NEPA review.13 An EIS results in a Record of Decision identifying the agency's decision regarding the design, construction, operation and/or implementation of the project; alternatives considered; and any mitigation and monitoring, if necessary.14 If it is unclear to the lead agency whether the impacts will be significant, the agency prepares an Environmental Assessment (EA)—a concise analysis establishing sufficient evidence, or lack thereof, of any significant environmental impacts.15 If the agency identifies significant impacts warranting review, it begins the process for a complete EIS.16 If the agency does not find any such impacts, it issues a Finding of No Significant Impact (FONSI).17 Alternatively, the agency may find that the proposed project falls within a statutorily defined categorical exclusion—a class of actions excused from the EIS and EA documentation requirements.18 These exclusions still require compliance with environmental regulations and a meaningful public engagement process, but the requirements are streamlined in correlation with the reduced impacts.19
A NEPA assessment may occur at a programmatic level (as opposed to a site- or project-specific level) when an agency undertakes review of a broad program decision as well as multiple projects under the program.20 Under programmatic level review, repeated actions, which are likely to have similar direct, indirect, and cumulative impacts, may be evaluated at a broader scale.21 That programmatic review of general impacts, in either a Programmatic EIS or Programmatic EA, can be relied on, and impacts do not always need to be re-analyzed when the agency makes decisions on specific actions.22 The intention of programmatic review is not to avoid the public decision making process established under NEPA, but to provide a more expeditious process for comprehensive review of a larger-scope policy, program, or plan or at the early stages of a phased proposal.
FOREST SERVICE NEPA PROCEDURES
Many individual federal agencies, including the Forest Service, have developed their own, supplemental NEPA procedures.23 The Forest Service's NEPA requirements apply when: (1) the Forest Service has a goal and is preparing to make a decision on the means to accomplish that goal; (2) the proposed action is subject to Forest Service control and responsibility; (3) the proposed action would cause effects on the natural and physical environment and the relationship of people and that environment; and (4) the proposed action is not statutorily exempt from NEPA.24
Initially, NEPA requirements do not apply to Forest Service actions that are "necessary to control the immediate impacts of [an] emergency and [] urgently needed to mitigate harm to life, property, or important natural or cultural resources."25 For example, fire suppression activities are not subject to environmental analysis under NEPA.
Under the Healthy Forests Restoration Act of 2003 (H FRA), "authorized hazardous fuel reduction projects" are subject to less stringent NEPA requirements.26 Generally, these projects need only present and analyze the proposed agency action, the "no action" alternative, and one additional alternative.27 For a hazardous fuel reduction project located within the wildland-urban interface, an EIS need only describe the proposed action and one alternative.28 Projects near at-risk communities in the wildland-urban interface are generally not required to analyze any alternative to the proposed project.29
Under the HFRA, hazardous fuel reduction projects that maximize retention of old-growth and large trees to
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promote resilience to insects and wildfires are categorically excluded from NEPA.30 These projects are limited to 3,000 acres and must occur in wildland-urban interface areas or outside these areas in high-fire risk areas. These projects are also exempt from the Forest Service's pre-decisional administrative review process.31
The Forest Service most recently revised its NEPA procedures in 2020.32 On the heels of a significant shift in Forest Service resources from non-fire to fire programs, the Forest Service sought to make more efficient use of its limited non-fire management resources by creating opportunities for more streamlined NEPA analyses.33 The 2020 revisions included the addition of a Determination of NEPA Adequacy (DNA) process, which allows the Forest Service to determine whether a NEPA analysis prepared for a prior activity can satisfy NEPA requirements for a new proposed action that is substantially the same.34 The process allows the agency to review and determine that an existing NEPA analysis covers the proposed action without preparing a supplemental EIS or EA.35
The Forest Service also added new categorical exclusions specific to its jurisdictional duties. Categorical exclusions apply if there are no extraordinary circumstances related to the action and the action is within a category listed in 36 C.F.R. §§ 220.6(d) and (e).36 Specifically, the Forest Service added exclusions related to construction and management of National Forest System (NFS) roads, and activities with a primary purpose of meeting restoration objectives or increasing forest resilience on no more than 2,800 acres.37 Given the limited nature of these revisions as compared to the proposed rule, the Forest Service has stated that it will consider other changes in review of its NEPA procedures as required by 40 C.F.R. § 1507.3(b), including classes of actions that normally require an EIS, procedures associated with categorical exclusion determinations, and use of other agency categorical exclusions.38
MORE ACRONYMS: NFMA AND MUSYA
To put NEPA in the context of the Forest Service's fire protection activities, it is important to understand the...
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