Overview
On January 3, the US Forest Service (USFS) published an advanced notice of proposed rulemaking announcing a plan to consider revisions to the agency’s National Environmental Policy Act (NEPA) procedures aimed at streamlining environmental analysis. This rulemaking process will provide an important opportunity for interested parties to weigh in on how to improve the USFS’s NEPA process. The efficiency of USFS’s NEPA process has been a subject of increasing scrutiny, particularly given the strain that wildfire suppression efforts have imposed on agency resources. Legislation (S.1731) has been introduced this Congress that, among other steps, would expand categorical exclusions and mandate expedited environmental review processes in certain circumstances. Given these concerns, as well as the Trump Administration’s emphasis on NEPA streamlining, revisions to USFS NEPA procedures seem likely.
Agency Cites Resource Burdens in Call for Streamlining
The Federal Register notice (USFS Notice) indicates that USFS efforts to streamline its environmental analysis will be aimed at the agency’s current NEPA procedures, which includes USFS regulations found at 25 C.F.R. Part 220, USFS Manual 1950, and USFS Handbook 1909.15. USFS seeks to “complete project decision making in a timelier manner, to improve or eliminate inefficient processes and steps, and where appropriate increase the scale of analysis and the amount of activities authorized in a single analysis and decision.” In explaining the need for changes, USFS notes that the impacts of increased efficiency will include allowing the agency to complete more projects needed to strengthen the health and productivity of national forests. Further, USFS believes that streamlined analyses and decision making will enable the agency “to ensure lands and watersheds are sustainable, healthy, and productive; mitigate wildfire risk; and contribute to the economic health of rural communities through use and access opportunities.”
In support of its call for streamlined NEPA review, the USFS Notice explains that an increasing percentage of its resources are being spent each year on wildfire suppression efforts (50 percent of the agency’s budget in 2017), which limits the availability of resources for other agency management activities. The USFS Notice also cites a 39 percent staff reduction in non-fire personnel since 1995, a backlog of over 6,000 special use permits, and more than 80 million acres of National Forest System land that require restoration.
Topics for Comment
The USFS Notice identifies several topics for public comment:
- Processes and analysis requirements that can be modified, reduced, or eliminated in order to reduce time and cost while maintaining science-based, high-quality analysis; public involvement; and agency stewardship responsibilities.
- Approaches to landscape-scale analysis and decision making under NEPA that facilitate restoration of National Forest System lands.
- Classes of actions that are unlikely, either individually or cumulatively, to have significant impacts and therefore should be categorically excluded from NEPA’s requirements, such as integrated restoration projects; special use authorizations; and activities to maintain and manage USFS sites (including recreation sites), facilities, and associated infrastructure.
- Ways USFS might expand and enhance coordination of environmental review and authorization decisions with other Federal agencies, as well as State, Tribal or local environmental reviews.
USFS Notice Lines Up with Trump Administration’s Infrastructure Permitting Streamlining Efforts
The USFS Notice comes as little surprise to those watching the Trump Administration’s approach on agency environmental review processes. In August 2017, President Trump issued Executive Order (EO) 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects” (82 Fed. Reg. 40463), which was aimed at ensuring that “Federal environmental review for infrastructure projects is coordinated, predictable, and transparent.” In addition, EO 13087 sets an Administration-wide goal of completing all Federal environmental reviews and authorization decisions for major infrastructure projects within two years.
Shortly after publication of EO 13807, the Department of the Interior, in August 2017, issued Secretarial Order (SO) 3355, “Streamlining National Environmental Policy Act Reviews and Implementation of [EO] 13807.” SO 3355 includes an order that all environmental impact statements (EIS) shall not be more than 150 pages (or 300 pages for unusually complex projects). Further, each Interior bureau must complete any final EIS for which it is the lead agency within 1 year of the issuance of a Notice of Intent to prepare an EIS, with any final EIS that will exceed that target by more than 3 months requiring approval by the Interior Assistant Secretary with responsibility for the matter. In addition, each Interior bureau head was ordered to propose target page limitations and time deadlines for preparing environmental assessments required by NEPA.
Acting on EO 13087’s instructions, CEQ published a notice in mid-September 2017 announcing first steps to improve the Federal environmental review and authorization process for infrastructure projects. These actions include reviewing existing CEQ NEPA regulations to identify needed updates; issuing additional necessary guidance to simplify and accelerate the NEPA process; and creating an interagency workgroup to review agency regulations and policies to identify impediments to efficient and effective processing of environmental reviews and permitting decisions (See, CEQ Announces Steps to Streamline Infrastructure Permitting).
Next Steps for USFS Action
USFS’s plan to streamline its NEPA processes should get a close look from a range of stakeholders, including permit applicants, as well as tribal, state, and local authorities and their constituencies. The USFS Notice provides an opportunity to raise a wide range of issues for USFS consideration, from the specific USFS actions eligible for categorical exclusions under NEPA, to improving the tribal consultation processes regarding areas of cultural and religious significance located on USFS-managed lands. Comments are due by February 2, 2018.
If you have any questions, or if you’d like more information on these procedures, or NEPA, please contact Jody Cummings at +1 202 429 8106 or Cynthia Taub at +1 202 429 8133.