New categorical exclusion (CE) regulations will enable the Forest Service and Department of Interior agencies to conduct very large logging operations with virtually no consideration of their environmental impacts. Even more alarming are the cumulative effects of the new categorical exclusion authority together with other Bush regulatory actions and pending legislation (see Cumulative Effects and Interrelationships, below).
Overview
Following is a quick analysis of the regulatory authorization for categorical exclusion from NEPA documentation for hazardous fuels reduction projects. The regulatory changes, which were published in the June 5, 2003, Federal Register (68 Fed. Reg. 33813), immediately and permanently amend the Forest Service and Interior Department NEPA procedures. The new categorical exclusion (CE) is a centerpiece of the Bush Administration's "Healthy Forests Initiative" and was announced by Administration officials on May 30, 2003.
Geographic Scope
The CE could be used on a vast amount of federal land. It generally applies to hazardous fuels projects located in two geographic and ecological categories:
- Within the wildland-urban interface (WUI), which includes both the community interface and intermix zones.
- Areas outside the WUI that have moderately or highly altered fire regimes (Condition Classes 2 and 3) and have relatively dry conditions and frequent fire return intervals (Fire Regimes I, II, and III). This is a much larger category than the WUI. Forest Service researchers estimate that 165 million acres of national forest and Interior Department forest and range lands fall into this category. (GTR RMRS-87. 2002. p. 15-16).
The CE cannot be used for projects in wilderness areas or wilderness study areas. It also cannot be used when there are extraordinary circumstances, such as adverse impacts on inventoried roadless areas, endangered species habitat, and archaeological sites. However, last year the Forest Service amended its NEPA regulations to narrow the scope of the extraordinary circumstances exception.
Size of Projects
The CE can be used for mechanical hazardous fuels reduction projects (e.g. logging) up to 1,000 acres in size and for prescribed burning projects up to 4,500 acres. The 1,000-acre size limit for logging projects is very large. By comparison, in the late 1980s, the Forest Service limited the size of categorically excluded timber sales to 10 acres. In January 2003, the agency proposed timber sale CE size limits of 50 acres for green trees and 250 acres for salvage of dead and dying trees. Also, hazardous fuels logging projects can be accomplished through commercial timber sales, so long as the "primary purpose" for the project is fuel reduction.
Western Governors Plan
The regulatory authorization requires that CE projects be identified through a "collaborative framework" as described the Western Governors Association's 10-year implementation plan to reduce wildland fire risks. According to the Federal Register notice, the collaborative framework is supposed to "involve participants with direct responsibility for management decisions affecting public and/or private land and resources, fire protection responsibilities, or good working knowledge and interest in local resources." Whether this requirement provides any meaningful opportunity for public involvement, or restraint on agency discretion, remains to be seen.
Cumulative Effects and Interrelationships
It is important to understand the cumulative effects and interrelationships between the new hazardous fuels CE and other regulatory and legislative actions. These actions include:
- the Forest Service's appeal regulations (finalized on June 4, 2003);
- new proposed Roadless Rule policies (announced June 9, 2003); and
- the McInnis bill (H.R. 1904, adopted by the U.S. House of Representatives on May 20, 2003).
For example, the appeal regulations exempt categorically excluded projects from administrative appeal. Thus, the cumulative effect is to exempt most hazardous fuels projects from both environmental review and administrative appeal.
Similarly, while the McInnis bill does not authorize categorical exclusions, it does provide various exemptions for hazardous fuels projects that are not categorically excluded (i.e. thinning projects larger than 1,000 acres or disqualified from CE due to "extraordinary circumstances"). Specifically, the legislation excuses the Forest Service from evaluating any alternatives, exempts projects from administrative appeal, and biases judicial review of projects in favor of the agency. Thus, the legislation fills in the regulatory gap by gutting environmental review and eliminating administrative appeals of hazardous fuels logging projects that are exceptionally large or environmentally risky. Furthermore, for all hazardous fuels projects, the McInnis bill truncates the judicial review process.
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