Categorical exclusions are an essential component of every agency’s implementing regulations under the National Environmental Policy Act (NEPA). Designating categorical exclusions through notice-and-comment rulemaking allows federal agencies to apply information learned through prior site-specific NEPA analyses to conserve agency resources and create needed flexibility and efficiencies. Both Democratic and Republican administrations and the Council on Environmental Quality (CEQ) have consistently advocated for the effective use of categorical exclusions to improve the quality and efficiency of the NEPA process.
The U.S. Forest Service’s proposed Environmental Analysis and Decision Making (EADM) rule represents an important step to modernize the agency’s NEPA regulations and apply information gained since the agency last revised its NEPA regulations and categorical exclusions in 2008. This article provides an overview of some of the rule’s proposed revisions, with an emphasis on those that will affect special use administration on National Forest System (NFS) lands.
The Forest Service authorizes the use and occupancy of NFS lands through its special use program. Special use authorizations range from a permit to hold a one‑day trail-running race to a 40-year term permit to operate a ski area. The Forest Service monitors more than 74,000 special use authorizations for over 180 types ofThe special use program is an essential component of the Forest Service’s management of NFS lands. It authorizes many of the recreation facilities and other improvements the public relies on to access and enjoy NFS lands.
The Forest Service estimates that it currently has a backlog of more than 5,000 applications for the issuance or renewal of special use permits; and it receives, on average, 3,000 applications for new special use permits annually. 84 Fed. Reg. 27,544 (June 13, 2019). Under current Forest Service regulations, the agency must develop an environmental assessment (EA) in order to process a large percentage of these applications or to approve development under existing special use authorizations. The EA process can impose significant burdens in both time and cost on the agency, and on special use permit applicants and holders. The EADM rule seeks to reduce these burdens by proposing new categorical exclusions and other procedural mechanisms that will allow the Forest Service to utilize effectively its limited resources.
The Forest Service published the proposed EADM rule on June 13, 2019. The proposed rule includes several important additions and revisions that, if finalized, will create needed efficiencies for the agency as well as special use permit applicants and holders. It also includes several controversial proposals, including proposed revisions to the agency’s public comment requirements.
1. CE (e)(22): Infrastructure and Other Improvements at Existing Recreation Sites, Including Those Managed under Special Use Authorizations
The proposed new categorical exclusion (CE) at 36 C.F.R. § 220.5(e)(22) would apply to “the construction, reconstruction, and decommissioning or disposal of buildings, infrastructure, and other improvements at existing recreation sites, including those managed under special use authorizations.” 84 Fed. Reg. at 27,548. Recreation sites include campgrounds and camping areas, lodging resorts, day use areas, fishing sites, and ski areas. Id. at 27,557. The EAs and findings of no significant impact (FONSIs) the Forest Service relied on to support CE (e)(22) include those approving development projects at ski areas, campground improvements, expansion of day-use areas, and projects at other recreation
CE (e)(22) is an important recognition by the Forest Service that providing well‑maintained and high-quality facilities on NFS lands effectuates one of the Service’s fundamental goals—providing the infrastructure necessary to facilitate public access and use of NFS lands for all people. Take for example the owner of a small resort on NFS lands that offers camping, cabin rentals, and day use—all authorized under a special use authorization. There are a number of these businesses operating on NFS lands throughout the country. They provide a unique experience and allow families and people unable to access more remote areas to experience the national forests. But many of these facilities were constructed decades ago and are in desperate need of maintenance and other improvements. Requiring the preparation of an EA for this type of action—which occurs in already developed, high-use areas—can significantly delay or even prohibit special use holders from undertaking these projects. CE (e)(22) has the potential to remove some of this burden and thereby facilitate the improvement of facilities on NFS lands and the public’s use and enjoyment of those lands.
2. CE (e)(3): Approval, Modification, or Continuation of Special Uses that Require Less than 20 acres of NFS Lands
The Forest Service is proposing to revise the existing categorical exclusion at 36 C.F.R. § 220.6(e)(3), which currently applies to the “[a]pproval, modification, or continuation of minor special uses of NFS lands that require less than five contiguous acres of land.” The Forest Service’s proposed revisions would remove the terms “minor” and “contiguous” and expand the acreage limitation from five to twenty acres. 84 Fed. Reg. at 27,547–548.
The term “minor,” in particular, has been the source of unnecessary confusion on behalf of the agency and project proponents over the years. “Minor” is not a term of art in the context of special use authorizations. Id. at 27,548. And there is a good argument that it is redundant to the categorical exclusion’s acreage limitation, which inherently limits the impacts of the projects that can be approved under the categorical exclusion. Thus, it has never been clear whether the Forest Service must undertake an additional review to determine if a project that otherwise satisfies the acreage limitation is also “minor,” and what criteria should be applied in making that determination.
The proposed revisions to CE (e)(3) have drawn some criticism from environmental groups. These commenters have expressed concern that: (1) the acreage expansion will allow certain projects, such as transmission lines or pipelines, that occur only partly on Forest Service lands—and where the Forest Service is the only federal nexus—to escape more robust review in an EA or environmental impact statement (EIS); and (2) that removal of the term contiguous will allow the agency to approve special uses that could stretch across an entire forest so long as the total amount of surface disturbance is limited to 20The Forest Service has not indicated whether it will continue with the rule as proposed or make certain revisions—such as modifying the acreage limitation—to address these concerns.
3. Determination of NEPA Adequacy Procedures
The Forest Service is proposing to adopt Determination of NEPA Adequacy (DNA) procedures. 84 Fed. Reg. at 27,546. DNAs allow an agency to rely on existing NEPA reviews that already adequately analyze the impacts of a proposed action. The Department of Interior and other federal agencies have effectively used the DNA process to avoid redundancy in the NEPA process. For example, the Bureau of Land Management (BLM) might prepare an EA for a roundup of wild horses on public lands. In a subsequent year, BLM might prepare a DNA to rely on the prior EA before rounding up the same number of horses, in the same area, using the same means.
The Forest Service’s proposed regulations would codify a DNA checklist almost identical to the checklist currently provided in BLM’s NEPA Handbook. See 84 Fed. Reg. at 27,553; BLM NEPA Handbook, H-1790-1 at 23 (2008). The proposed DNA procedures will provide the Forest Service with another tool to help make the agency’s NEPA processes more efficient by allowing it to rely on existing analyses it has already completed. This could help, for example, when analyzing proposed projects within existing special use authorizations where the impacts were previously analyzed in a broader NEPA document addressing the same or similar actions within the permitted area, or when approving similar actions (such as races or special events) occurring on the same lands in successive years.
4. Right-Size Scoping
Among the more controversial components of the EADM rule are the proposed revisions to the scoping requirements. The Forest Service’s current regulations require scoping “for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS.” 36 C.F.R. § 220.4(e)(1). The Forest Service is proposing to remove the requirement to conduct scoping for all projects. 84 Fed. Reg. at 27,545. Under the proposal, scoping will still be required for projects analyzed in an EIS, and whether to conduct scoping and the amount of any additional public involvement for CEs and EAs will be left to the discretion of the responsible official. Id. at 27,545, 27,553.
The proposed removal of scoping requirements would primarily impact projects approved through CEs. The Forest Service will still be required to provide both a 30-day public comment period and a 45-day objection period for all EAs. See 36 CFR §§ 218.25(a)(1)(i), 218.26(a). And under the current requirements, which require scoping for all EAs, the Forest Service often uses the 30-day public comment period to also satisfy its scoping requirement.
This issue generated the most public discourse on the proposed rule. Environmental groups have raised strong objections to the removal of the scoping requirement and contend that when combined with the increased use of categorical exclusions under the proposed rule, eliminating scoping for categorical exclusions will have an outsized impact on public participation. Given this attention and opposition to the proposal, it would not be surprising to see the Forest Service make revisions or eliminate the proposal altogether in the final rule.
The Forest Service currently intends to finalize the EADM rule this summer. In a recent letter sent to the Forest Service, a group of environmental NGOs led by the Western Environmental Law Center requested that the Forest Service delay the rulemaking until the CEQ finalizes its proposed NEPA reforms published on January 10,But the Forest Service has made clear that it does not intend to wait for CEQ to finalize its rule before publishing the final EADM rule—the two efforts are on distinct tracks and intended to serve different purposes, and the EADM rule is not dependent on a final CEQ The Forest Service has also stated that the EADM rule is not the final step in the agency’s efforts to improve its EADM procedures. Following publication of the final rule, the Forest Service intends to publish revised directives to implement and provide further guidance on the rule.