New National Forest Management Act Regulations
New forest regulations from the Bush administration eliminate protections for wildlife, minimize accountability to science, and take public opinion out of public-land planning. Conservationists argue that the new regulations, mostly finalized on Jan. 5, 2005, contradict the very law they are intended to implement, the National Forest Management Act of 1976 (NFMA). And in late February, conservation groups sued the Forest Service (FS) over the new regulations. Nonetheless, unless the courts decide otherwise, the new NFMA regulations will have significant implications for management of the national forests. By minimizing the Forest Service’s responsibilities to protect land, water, plants and animals, the new regulations demand innovation by conservationists. Later this year, the FS will also release new off-road vehicle rules. At that time, we will amend this primer to discuss the interaction between both sets of new regulations. In the meantime, this policy primer outlines the key implications of the new NFMA rules as they pertain to off-road vehicle and road issues.
Forest and Travel Planning
Forest plans broadly guide the use of the national forest lands under their jurisdictions. These long-term guidelines, which are revised every 10-15 years, generally designate the uses that are appropriate for each section of the forest. For example, a forest plan can designate that off-road vehicle use is appropriate in a certain area and that timber harvest is not appropriate in another. Forest plans generally do not determine site-specific actions, like off-road vehicle use on one particular route; that is done through project-specific analyses. The new NFMA regulations affect both forest planning and transportation planning—whether or not this planning occurs concurrently.
National forests sometimes conduct transportation planning as a part of the forest planning process, but it is often separated out because it may be too challenging, time consuming or politically charged to include amid all the other issues assessed in a forest plan. Regardless, forest planning typically determines the ground rules for travel planning. And travel planning is a process that produces a transportation system—represented by a completed travel map—that illustrates and describes the designated roads and trails of the forest or resource area. The FS could easily use transportation planning as a mechanism for comprehensive recreation planning, but this rarely happens.
More “roadkill”
As a result of the new NFMA regulations, forest plans will not necessarily be revised and amended in ways that protect wildlife. The new regulations eliminate the requirement that forests maintain “viable populations” of native wildlife species. Instead, they only require forest plans to “establish a framework to provide the characteristics of ecosystem diversity in the plan area” (36 CFR 219.10(b)(1)).
The new FS regulations also downgrade congressionally required protections for land and water to unenforceable “guidance” (219.12(b)). Where even guidance is too strong, the new rules allow land managers “the latitude to depart from guidelines when circumstances warrant it” (regulation preamble, page 1026 of the Federal Register, Vol. 70, No. 3, January 5, 2005). The FS has never suffered from a lack of discretion—in many instances its abundant discretionary powers have resulted in significant harm to the environment. Yet the new NFMA regulations increase discretion, rather than limit it.
Dismissing Science
New NFMA regulations will only require agency officials to “take into account” the best available science (219.11(a)), rather than base decisions on it. Furthermore, the agency plans to have less science to “take into account” in the first place. The revised regulations excuse the FS from any duty to monitor for impacts of activities to management indicator species (219.14(f)). This would be akin to setting up educational programs with no tests whatsoever to see if students are learning.
Under the forest plans drafted according to the old regulations, citizens were able to prevent harmful and unnecessary road and off-road vehicle projects in sensitive areas by publicly documenting the negative impacts. Similarly, citizens have compelled emergency route closures by documenting the site-specific harm caused to plants and animals. The reduction in agency monitoring dramatically increases the importance of citizen monitoring.
Furthermore, the new regulations’ preamble states that science “is only one aspect of decision-making” and that “competing use demands” and other factors can override scientific input (p. 18). The new regulations will blunt an important decision-making instrument by allowing land managers to dismiss scientifically documented impacts of roads and vehicles on the land, water, plants and wildlife. Citizens must make science relevant by publicly and politically elevating their own research on the destruction caused by roads and off-road vehicles.
“Quiet, Public!”
In another disturbing change, the new NFMA regulations allow forest plans to “be categorically excluded from NEPA documentation” (219.4(b)). This contradicts direction in the NFMA statute that the regulations “ensure that land management plans are prepared in accordance with [NEPA]” (16 USC 1604(g)(1)). The “no NEPA” component of the otherwise final NFMA rule was open for public comment through March 7, 2005, and will likely be finalized in summer. Should “no NEPA” make the final regulatory cut, it will likely face additional court challenges.
This exclusion would effectively limit public involvement and eliminate the requirement to prepare an environmental impact statement (EIS). If a forest manager exercises the option to categorically exclude forest plan revisions and amendments from NEPA, the agency will not have to publicly examine alternatives to its proposed plan. Concerned citizens will no longer have legal recourse for submitting citizen alternatives, which have resulted in significant and positive changes to forest plans in the past. Eliminating this option will drastically reduce the capacity of the public to participate in forest planning in a meaningful way.
The new regulations require the Forest Service to replace the science and public driven process outlined by NEPA with a process developed for international corporate environmental guidance, the “environmental management system” (EMS) (219.5). Many large corporations, like Weyerhaeuser Corporation, use EMS. But NEPA and EMS have different objectives. NEPA requires public land management agencies to seek external public review and to be transparent in their decision-making. EMS is an internal process. NEPA demands public input, while EMS allows it, but doesn’t encourage it. NEPA is legally enforceable—if an agency doesn’t comply with NEPA they can be taken to court. EMS is voluntary, and it is not legally enforceable. While there are some areas of overlap between NEPA and EMS, NEPA provides much more guidance and also provides a legal regulatory framework for agencies to follow. It will be interesting to see if this new exemption from NEPA holds up in court.
Forest Opportunity to Opt-Out
Some forests may be able to avoid the pitfalls outlined above by using the old regulations. Forests that initiated forest plan revisions prior to Jan. 5, 2005, can choose to continue planning under the old NFMA regulations. Forests that initiate amendments to their plans between Jan. 5, 2005, and Jan. 7, 2008, may pursue these amendments under the earlier version of the NFMA regulations as well (219.14(b-d)). While the old NFMA regulations were not perfect, they certainly appear to be far stronger than the new regulations.
—Mike Anderson, of The Wilderness Society, contributed to this article.
Forest and Travel Planning
Forest plans broadly guide the use of the national forest lands under their jurisdictions. These long-term guidelines, which are revised every 10-15 years, generally designate the uses that are appropriate for each section of the forest. For example, a forest plan can designate that off-road vehicle use is appropriate in a certain area and that timber harvest is not appropriate in another. Forest plans generally do not determine site-specific actions, like off-road vehicle use on one particular route; that is done through project-specific analyses. The new NFMA regulations affect both forest planning and transportation planning—whether or not this planning occurs concurrently.
National forests sometimes conduct transportation planning as a part of the forest planning process, but it is often separated out because it may be too challenging, time consuming or politically charged to include amid all the other issues assessed in a forest plan. Regardless, forest planning typically determines the ground rules for travel planning. And travel planning is a process that produces a transportation system—represented by a completed travel map—that illustrates and describes the designated roads and trails of the forest or resource area. The FS could easily use transportation planning as a mechanism for comprehensive recreation planning, but this rarely happens.
More “roadkill”
As a result of the new NFMA regulations, forest plans will not necessarily be revised and amended in ways that protect wildlife. The new regulations eliminate the requirement that forests maintain “viable populations” of native wildlife species. Instead, they only require forest plans to “establish a framework to provide the characteristics of ecosystem diversity in the plan area” (36 CFR 219.10(b)(1)).
The new FS regulations also downgrade congressionally required protections for land and water to unenforceable “guidance” (219.12(b)). Where even guidance is too strong, the new rules allow land managers “the latitude to depart from guidelines when circumstances warrant it” (regulation preamble, page 1026 of the Federal Register, Vol. 70, No. 3, January 5, 2005). The FS has never suffered from a lack of discretion—in many instances its abundant discretionary powers have resulted in significant harm to the environment. Yet the new NFMA regulations increase discretion, rather than limit it.
Dismissing Science
New NFMA regulations will only require agency officials to “take into account” the best available science (219.11(a)), rather than base decisions on it. Furthermore, the agency plans to have less science to “take into account” in the first place. The revised regulations excuse the FS from any duty to monitor for impacts of activities to management indicator species (219.14(f)). This would be akin to setting up educational programs with no tests whatsoever to see if students are learning.
Under the forest plans drafted according to the old regulations, citizens were able to prevent harmful and unnecessary road and off-road vehicle projects in sensitive areas by publicly documenting the negative impacts. Similarly, citizens have compelled emergency route closures by documenting the site-specific harm caused to plants and animals. The reduction in agency monitoring dramatically increases the importance of citizen monitoring.
Furthermore, the new regulations’ preamble states that science “is only one aspect of decision-making” and that “competing use demands” and other factors can override scientific input (p. 18). The new regulations will blunt an important decision-making instrument by allowing land managers to dismiss scientifically documented impacts of roads and vehicles on the land, water, plants and wildlife. Citizens must make science relevant by publicly and politically elevating their own research on the destruction caused by roads and off-road vehicles.
“Quiet, Public!”
In another disturbing change, the new NFMA regulations allow forest plans to “be categorically excluded from NEPA documentation” (219.4(b)). This contradicts direction in the NFMA statute that the regulations “ensure that land management plans are prepared in accordance with [NEPA]” (16 USC 1604(g)(1)). The “no NEPA” component of the otherwise final NFMA rule was open for public comment through March 7, 2005, and will likely be finalized in summer. Should “no NEPA” make the final regulatory cut, it will likely face additional court challenges.
This exclusion would effectively limit public involvement and eliminate the requirement to prepare an environmental impact statement (EIS). If a forest manager exercises the option to categorically exclude forest plan revisions and amendments from NEPA, the agency will not have to publicly examine alternatives to its proposed plan. Concerned citizens will no longer have legal recourse for submitting citizen alternatives, which have resulted in significant and positive changes to forest plans in the past. Eliminating this option will drastically reduce the capacity of the public to participate in forest planning in a meaningful way.
The new regulations require the Forest Service to replace the science and public driven process outlined by NEPA with a process developed for international corporate environmental guidance, the “environmental management system” (EMS) (219.5). Many large corporations, like Weyerhaeuser Corporation, use EMS. But NEPA and EMS have different objectives. NEPA requires public land management agencies to seek external public review and to be transparent in their decision-making. EMS is an internal process. NEPA demands public input, while EMS allows it, but doesn’t encourage it. NEPA is legally enforceable—if an agency doesn’t comply with NEPA they can be taken to court. EMS is voluntary, and it is not legally enforceable. While there are some areas of overlap between NEPA and EMS, NEPA provides much more guidance and also provides a legal regulatory framework for agencies to follow. It will be interesting to see if this new exemption from NEPA holds up in court.
Forest Opportunity to Opt-Out
Some forests may be able to avoid the pitfalls outlined above by using the old regulations. Forests that initiated forest plan revisions prior to Jan. 5, 2005, can choose to continue planning under the old NFMA regulations. Forests that initiate amendments to their plans between Jan. 5, 2005, and Jan. 7, 2008, may pursue these amendments under the earlier version of the NFMA regulations as well (219.14(b-d)). While the old NFMA regulations were not perfect, they certainly appear to be far stronger than the new regulations.
—Mike Anderson, of The Wilderness Society, contributed to this article.
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