Categorical Exclusions

In promulgating the first regulations implementing the 1969 National Environmental Policy Act (NEPA), the Forest Service and the Council on Environmental Quality provided an exemption category for actions that normally would not require an environmental assessment or environmental impact statement. A long list of such activities is found in the Forest Service Handbook 1909.15 Chapter 30 - Categorical Exclusion from Documentation. The need for the Categorical Exclusion (CE) list is obvious: the Forest Service should not have to conduct a lengthy environmental analysis for every activity conducted on the forest, such as painting the ranger district office or installing new toilets at a campground.

NEPA was passed with broad bipartisan support because the American public realized that old-growth forests were being liquidated across the nation, with effects that ranged from polluted waterways, eroding hillsides, and wildlife that was threatened with extinction. NEPA would provide the means to hold the Forest Service accountable for actions that could have a significant effect on the environment, and the public would be fully informed during the proposal and development of actions affecting public lands. In a nutshell,

"NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA." 40 CFR 1500.1 (b).

As the years have passed, the positive impact that NEPA has had towards protecting the legacy of our publicly owned forests has been profound. At the same time, the use of the CE to speed up, or by pass altogether, NEPA's requirements for scientific analysis, full disclosure and transparency, public notice, and documentation has been seen by some as a golden loophole that could be exploited for political purposes.

The result has been a steady erosion of NEPA, as the use of the CE has now virtually replaced the environmental analysis required by the law. Although we and our friends in Congress have been able to hold back some of the worst legislative proposals, the trend continues to move towards increasing the number of acres permitted under the CE provision. This means that clearcutting, road building, salvage logging and plantation forestry are increasing without meaningful disclosure and documentation of the potentially significant and cumulative environmental impacts that may occur. Meanwhile, federal employees in the Trump administration are forbidden to even discuss climate change--a key factor in the increase in mega wildfires. And wildfire fear has been used as a political tool to gain public support for policies that are neither effective or protective of our public resources.

Athough we agree that the pace and scale of hazardous fuel reduction in the forests of the Sierra Nevada must increase, scientists who have researched and published data concerning the fire problem in California have shown that we cannot clearcut our way to fire security. Rather, we must significantly increase the use of prescribed fire to achieve our goals for fuels reduction, while building the natural fire resilience that our forests evolved with; and this requires full acknowledgment that past logging practices including fire suppression, salvage logging, and plantation forestry in concert with global climate change are today driving uncharacteristic and deadly fire behavior. Going back to the old days where the timber industry called the shots will only make the problem worse.

Proposed NEPA Regulations Revision (June 13, 2019)

The Forest Service is now proposing a major revision of the 36 CFR Part 220. Among other things, the revision further expands the uses for the Categorical Exclusion, and increases the amount of acres for several existing CE authorities. It allows the conversion of non-authorized roads into new permanent roads, with no restrictions on size. The amount of acreage upon which commercial timber harvest can occur has increased to 4,200 acres (from 3,000 acres) using the CE; and additional types of timber harvest activity can occur on up to 7,300 acres. The new rule will also eliminate the requirement to conduct scoping--the invitation to the public to participate in developing the proposed action--for anything other than environmental impact statements. Further, the requirement to disclose the potential cumulative effects of actions proposed will now be limited to environmental impact statements only--not for CEs and EAs.

NEPA defines activities covered by the CE explicitly as actions "which do not individually or cumulatively have a significant effect on the human environment." By its very definition this should preclude projects that may result in impacts that may be " individually minor but collectively significant
actions taking place over a period of time" (40 CFR 1508.7). It is hard to imagine how the authors of this new rule could conclude that multiple logging projects covering 4,200 acres at a time would not potentially add up to significant harm to the environment. "The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences and take actions that protect, restore, and enhance the environment" (40 CFR 1500.1(c). It is through this process that potentially significant impacts can be identified, so that the means to mitigate such harm can be provided.

Farm Bill ( December 20, 2018)

This bill authorized a new category exclusion for reduction of pinyon pine, juniper, and invasive grasses, using virtually any method including herbicides; the CE is limited to 4,500 acres per project, with the express goal of improving habitat for greater sage-grouse and/or mule deer. Given that mule deer habitat is virtually everywhere on the east side of the Sierras, this exemption from NEPA opened the door to further degradation of sage brush ecosystems. The only certain benefit arising from this exemption acrues to the grazing permittees eager to use any excuse to improve livestock pasture on public lands.

Consolidated Appropriations Act (March 23, 2018)

This bill, passed by Congress and signed by President Trump, restored the CE provisions of the 2014 Farm Bill. The limit on expanded CE authority for hazardous fuels reduction remains at 3,000 acreas, and the bill also preserved the extraordinary circumstances restriction on its use.

Farm Bill (February 7, 2014)

Read about the provisions of this bill, signed by President Obama, here. The bill, which expired in 2018, increased the use of the Categorical Exclusion option to 3,000 acres for areas deemed in need of thinning due to excessive fuels build up, dead and dying trees (beetle kill), and in the WUI (Wildland Urban Interface), among other things. Specific provisions were included in the CE for the protection of old-growth forests.

Categorical Exclusion for Land Management Plans (December 11, 2006)

In preparing this CE the Bush Administration determined through their review of this proposed directive that the writing of management plans has no effect on the environment, which qualifies the individual plans of each National Forest for categorical exclusion from individual study under the National Environmental Policy Act. This action completely rewrites the 1976 National Forest Management Act (NFMA)and is perhaps the most radical attack on forest policy in the past three decades. Under NEPA and NFMA, public involvement and environmental analyses are required whenever the Forest Service undertakes changes to forest management plans. These revisions typically occur every 15 years for each National Forest. Under this new CE however, any update, alteration, or significant change would not be subject to NEPA review. The assertion by the administration that Forest Plans, which provide the blueprint for management on each National Forest, do not have a significant impact on the environment are therefore not subject to environmental review lacks credibility and is both irresponsible and inaccurate.

Categorical Exclusion for Timber Harvest (July 29, 2003)

This exclusion for timber harvest allows the harvest of live trees not to exceed 70 acres with no more than a ½ mile of temporary road. This new NEPA exclusion rule also allows salvage harvest up to 250 acres, and the incidental removal of any size trees, alive or dead, for landings, skid trails and roads. This exclusion from NEPA allows for the removal of insect, disease, windthrow, or ice-damaged trees, commercial sanitation (the plucking out of large snags) and fire salvage anywhere on the landscape including old growth forests where such structures and processes are often a key part of normal (and beneficial) ecosystem function.

Categorical Exclusion for Fuels Reduction (June 5, 2003)

On June 5, 2003, the Administration issued a rule change for the use of CEs on National Forest lands for "hazardous fuels" projects. The CE could be used for mechanical hazardous fuels reduction projects (i.e. 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 excessively large. By comparison, in the late 1980s, the Forest Service limited the size of categorically excluded timber sales to 10 acres. This directive opened the door to an irresponsible logging program that ignored environmental impacts and public opposition to harmful projects.

As 1,000 acre timber harvests were racking up all across the country, we had no other choice but to bring a lawsuit to stop the "no tree left behind" measure. On December 5th, 2007, the Sierra Club and Sierra Forest Legacy won a legal victory against the Fuels Reduction CE when the 9th Circuit Court of Appeals reversed a District Court's ruling that the Forest Service did not violate the National Environmental Policy Act (NEPA). The Court called the Forest Service's decision to issue the Fuels CE "arbitrary and capricious" and said that the agency had failed to demonstrate a "reasoned decision" based on relevant factors and information. Read this important decision here.

 

 

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