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U.S. Forest Service Proposes to Revise NEPA Regulations

On June 13, 2019, the U.S. Forest Service issued a proposed rule to revise its regulations (36 CFR part 220) implementing the National Environmental Policy Act (NEPA). The Agency last updated these regulations in 2008. Comments on the proposed rule are due by August 12, 2019. The Agency also intends to publish related draft guidance early next year.

This proposed rule is the latest in a series of federal initiatives to increase overall efficiency in environmental analyses for federal agency decision-making. Specifically, the Agency’s goal is to “complete project decision making in a timelier manner, improve or eliminate inefficient processes and steps, and increase the scale of analysis and the number of activities in a single analysis and decision.” This objective accords with the One Federal Decision framework and other Executive Branch steps across multiple Administrations to foster interagency coordination, clearer standards, less duplication, and greater predictability for project proponents. 

The Agency’s proposed changes are intended to specifically facilitate decision-making and reduce backlogs for commonly proposed actions within national forests and other lands managed by the Agency, including responses to growing wildfire management and other challenges. Among the most important proposed additions are:

  1. New Determination of NEPA Adequacy tool (DNA) modeled on U.S. Bureau of Land Management regulations.

  2. New categorical exclusions for projects within certain already-disturbed areas.

  3. Clarification for public involvement.

  4. Express endorsement of “condition-based” management alternatives.

Definitions and General Requirements

The proposed rule would add a DNA option to comply with NEPA, which provides a process for determining whether a completed Agency NEPA analysis suffices for a later proposed action that is substantially similar in nature. As drafted, the provision is limited to Agency NEPA analyses, though options of adoption and incorporation by reference remain available for other agencies’ NEPA analyses. Additionally, the Agency would define “conditions-based management” as “a system of management practices based on the implementation of specific design elements from a broader proposed action,” and expressly allow for this management approach within a proposed action and any alternatives. The Agency also would define when supplemental NEPA review is warranted consistent with other federal regulations and case law. 

Addition and Expansion of Categorical Exclusions

Most of the proposed changes involve the addition or expansion of categorical exclusions, which obviate the need to prepare more detailed NEPA review. The proposed rule also seeks to narrow the scope of “extraordinary circumstances” that may weigh against use of a categorical exclusion. Under the proposal, extraordinary circumstances exist when there is “a cause-and-effect relationship between a proposed action and listed resource conditions and the responsible official determines that there is a likelihood of substantial adverse effects,” and the Agency “may also consider whether the long-term beneficial effects outweigh short-term adverse effects.”

The Agency groups the proposed categorical exclusions into three general categories: restoration activities, infrastructure activities, and special uses. Categorically excluded restoration activities could now be implemented on up to 7,300 acres and could encompass proposed commercial or non-commercial timber harvest activities performed in conjunction with at least one additional restoration activity and covering up to 4,200 of those 7,300 acres. 

The new categorical exclusions for Agency infrastructure would enable construction, maintenance, rehabilitation, and decommissioning of Agency roads, power lines, dams and reservoirs, oil and gas pipelines, communications sites, road and trail bridges, trails, and many facilities. Notably, the Agency could now more readily categorically exclude from detailed NEPA review construction or enhancement of recreation areas, and conversion of certain unauthorized or non-Agency trails, roads, and bridges into Agency facilities. 

The Agency further would categorically exclude reauthorizations of certain existing or expired special uses, including for activities that occur on existing roads or trails, in existing facilities, or in areas where activities are consistent with the applicable land management plan. Finally, the proposed categorical exclusions would cover the approval, modification, or continuation of special uses of National Forest System lands that require less than 20 acres of land, instead of 5 acres under current Agency regulations. 

More Detailed NEPA Reviews and Public Participation

When a categorical exclusion is unavailable, the Agency may prepare either an environmental assessment (EA) or a more detailed environmental impact statement (EIS) where the proposed action may significantly affect the environment. The proposed rule would add to categories of actions “normally” requiring an EIS any mining operations that authorize surface disturbance on greater than 640 acres over the life of the proposed action. The proposal also would clarify requirements for alternatives analysis, including that action alternatives meet the purpose and need of the proposed action.

The Agency further seeks to “right-size” the public engagement and scoping processes to tailor it to different proposed actions, and to encourage early and ongoing engagement with the public and other parties. For EAs, the proposed rule would leave the level of public engagement to Agency discretion. More formal public participation requirements would continue for an EIS.

Next Steps

The proposed rule will be open for a 60-day public comment period. The Forest Service expects to publish a final rule in the summer of 2020. This is an excellent opportunity for project proponents to provide input to enable greater certainty on projects affecting any of the nearly 200 million surface acres managed by the U.S. Forest Service.

If the rule were finalized in its current form, the Agency’s NEPA process would likely be streamlined for numerous projects involving the proposed categorical exemptions, as well as those under conditions-based management. By categorically determining that many activities related to restoration, infrastructure, and certain special uses usually do not significantly impact the environment, the Agency can reduce the time required to complete NEPA review and allow projects to move forward. The Agency also desires to enhance maintenance efforts for its managed lands and infrastructure, while also increasing recreational use of those lands.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 177

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About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

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W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, and CITES. He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound, and successful legal strategies.

Parker brings a balanced approach to working on high profile projects to meet the objectives of developers and the legal demands of state and federal regulators. Clients involve him at all stages of project development, from initial project conception and design to defense of completed facilities. He frequently is called on to help get projects back on track when they are delayed by permitting complications and other regulatory issues, bringing to bear his extensive experience to identify innovative and effective solutions. In all cases, Parker’s goal is to help his clients complete legally-defensible projects on time and on budget.

Before joining B&D, Parker clerked at the White House Council on Environmental Quality. He also is a professionally-trained wetlands ecologist and has years of experience identifying wetlands, obtaining jurisdictional determinations from the U.S. Army Corps of Engineers, surveying for protected species, and drafting NEPA documents.

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Kirstin K. Gruver Environmental Litigation Attorney Beveridge & Diamond Seattle, WA
Associate

Kirstin Gruver is efficient and responsive to clients' needs.

She maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors with a focus on wetlands and water issues. She also has experience in product stewardship and sustainability matters.

Prior to joining Beveridge & Diamond, Kirstin worked as a deputy prosecuting attorney at the Clark County Prosecutor's office. She also worked as a legal intern with the Department of Transportation, Maritime Administration, and as a summer clerk at Earthjustice....

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Lucy K. Infeld Environmental Regulatory & Litigation Attorney Beveridge & Diamond Seattle, WA
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Lucy solves problems in creative ways, relying on her expertise in water rights, natural resources, and land use issues in Washington state and the western U.S.

She is an experienced environmental regulatory and litigation attorney on nationwide issues, with a focus on water rights, the Clean Air Act (CAA), the Clean Water Act (CWA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERLCA), as well Washington state environmental statutes.

She assists on Superfund allocations in advocating for clients, working with experts and other attorneys to...

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