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USDA Forest Service NEPA Procedures

 

 

The Forest Service is conducting its first major update of NEPA procedures since 1992. The agency hopes to incorporate new CEQ guidance and make key changes that will facilitate collaborative decisionmaking and adaptive management. Further it wishes to move these procedures from its manuals and handbooks to codification within the code of federal regulations at 36 CFR part 220.

 

USDA Forest Service NEPA Website - Ecosystem Management Coordination NEPA page.

Federal Register Notice - proposed changes to Forest Service NEPA procedures. August, 2007

Current Forest Service NEPA procedures - FS Handbook 1909.15 Environmental Policy and Procedure (you must navigate the directive system under 1900) 

NEPA and Grazing Permit Administration on the National Forests

The Forest Service considers the development of allotment management plans (AMP's) and the issuance of grazing permits to be integral parts of the NEPA process. The decision to authorize grazing or not to authorize grazing is made for allotments or groups of allotments through compliance with NEPA. An allotment management plan (AMP) is prepared and becomes a term and condition of the grazing permit along with annual operating instructions.

 

 

FSH 2209.13, Chapter 90: Rangeland Management Decision Making- provides direction for determining whether livestock grazing is an acceptable use on a given allotment of National Forest System Land. The Southwestern Region issued additional guidance pertaining to chapter 90 which specifies in greater detail how adaptive management is to be incorporated into the NEPA process.

Grazing Permit Administration Basics

 

 

What is a Grazing Permit?

 

A grazing permit is any document authorizing livestock to use National Forest System or other lands under Forest Service control for the purpose of livestock production. (36 CFR § 222.1(b)(5). It is Forest Service Policy according to its mission to permit grazing on the national forests. All grazing and livestock use on national forest system lands must be authorized by a grazing or livestock permit. Permits are issued for terms of ten years or less (36 CFR 222.3 ). Permit issuance constitutes a "major federal action", subject to the requirements of NEPA.

 

What is an Allotment Management Plan?

 

An allotment management plan (AMP) is a document that describes the specific management prescriptions for defined areas of federal lands (allotments) where grazing use is authorized. Essential Elements of an AMP include (from FSH 2209.13, Chapter 90 ):



Examples of Allotment Management Plans on the Web:
            

        What are Annual Operating Instructions (AOI)?

Annual Operating Instructions are the instrument for the implementation of specific management actions on an annual basis to achieve resource management objectives. They must remain within the scope of the project-level decision and are hence not subject to administrative appeal (though this question has been tested in court ). The AOI's state clearly the permittee's and agency's responsibilities for the coming year.


The NEPA Process Considering New Guidance for Grazing Permit Administration

 


  1. Plan-to-project Analysis     

    Prior to formal initiation of the NEPA process a team using an interdisciplinary approach 1) identifies the desired future condition (social, economic and ecological), 2) analyzes the current condition of the resources, and 3) assesses the need for action to meet desired future conditions including identification of possible practices. The analysis should yield specific, quantifiable information pertaining to the ecological status of the vegetation, composition and arrangement of plant communities, status and function of riparian areas and wetlands, stream bank and stream channel characteristics, wildlife and fish habitat characteristics, cultural resource protection, soil protection, and water quality. Members of the team might be the district ranger, district resource staff, including specialists in watershed management, range management, and biology, representatives from the state wildlife office, and the grazing permittee. Additional stakeholders may also be included via collaborative processes. The decision maker has the discretion to decide how much analysis is conducted prior to formal initiation of the NEPA process. The results of plan-to-project analysis will provide the information necessary for the completion of environmental documents. 

      

    II. Review the action for existing NEPA documentation or exceptions. Is the action covered in an existing environmental impact statement or environmental assessment?

Grazing authorization is a project level decision most often made by the District Ranger. FSH 2209.13 Chapter 90 at 91 states " Although an area may be deemed suitable for use by livestock in a Land and Resource Management Plan (LRMP), a project-level analysis evaluating the site-specific impacts of grazing activity in conformance with NEPA, is required in order to authorize livestock grazing on a specific allotment(s)" . If NEPA analysis has previously been conducted with an associated NEPA decision, grazing permit, and Allotment Management Plan (AMP), then the agency must review the NEPA documentation and decision to determine consistency with the existing grazing permit, AMP, and Annual Operating Instructions.


    III. Is the action categorically excludable?
       
        Grazing authorization does not fall within any categories of actions that would be categorically excludable from NEPA requirements within Forest Service regulations (FSH1909.15 navigate to chptr. 30 ). This is true with one exception. In 2004 Congress passed a rider in an appropriations bill that allowed the categorical exclusion of certain grazing allotments from NEPA analysis. The full text of P.L. 108-447 of Dec. 8, 2004 118 Stat. 3103 reads:

SEC. 339. "For fiscal years 2005 through 2007, a decision made by the Secretary of Agriculture to authorize grazing on an allotment shall be categorically excluded from documentation in an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) if: (1) the decision continues current grazing management of the allotment; (2) monitoring indicates that current grazing management is meeting, or satisfactorily moving toward, objectives in the land and resource management plan, as determined by the Secretary; and (3) the decision is consistent with agency policy concerning extraordinary circumstances. The total number of allotments that may be categorically excluded under this section may not exceed 900."

        Implementation or modification of minor management practices to improve allotment condition or animal distribution when and allotment management plan is not yet in place is categorically excludable. Examples might include the rebuilding of a fence or a stock water development to improve animal distribution (FSH 1909.15 Chapter 30). For a template on writing a CATX click here.

   IV. Preparation of an Environmental Assessment
   
The purpose of an environmental assessment (EA) is to provide sufficient analysis to determine if an environmental impact statement will be necessary. In most instances, an EA has been sufficient for most grazing authorization decisions, but an EIS may be used if the size or complexity of the project so warrants. The components of the EA can be found in the following EA document template and include at a minimum a purpose and needs statement, a description of alternatives considered, the environmental consequences of the alternatives, and a list of persons consulted in the decision-making process.

A. Purpose and need statement - FSH 2209.13, 92.22 (SW) - The purpose and need for the proposed action is the result of the resource management needs determined by the interdisciplinary team, which can be addressed through livestock grazing practices. The purpose is to authorize livestock grazing in a manner consistent with Forest Plan direction. The need is the maintenance of current conditions or to provide for changes in conditions to move toward desired conditions.

B. Alternatives- In the case of livestock grazing at least two alternatives must be analyzed. These include the "no action" alternative (where no action means no grazing) and the proposed action. Current management or a slight modification of it may also be the proposed action.

C. Environmental Consequences- Analysis of effects should focus on the outcomes of the proposed management with specific attention to significant issues.

D. Consultations- This section lists all Federal, State, and local agencies, tribes, and non-Forest Service persons who were consulted during the planning process.

    V. Incorporating Adaptive Management within NEPA Alternatives

        What is adaptive management? - Adaptive management is a formal, systematic, and rigorous approach to learning from the outcomes of management actions, accommodating             change and improving management. FSH 2209.13, Chapter 92.23b provides detailed guidance on how to develop management alternatives that incorporate adaptive             management.           
                        An adaptive alternative contains:

            1. A range of variability of management actions, within sideboards of regulation (ie forest plan standards), that allows for adjustments over time, for example, flexible use                     numbers or seasons of use.

            2. Explicitly defined monitoring that generates reliable feedback on management actions.

            3. Allows for adjustments in management within these parameters without requiring further NEPA review.


From Region 3 Forest Service Handbook 2209.13, Chapter 90

(who borrowed it from Forest Practices Branch, BC Forest Service.

An Introductory Guide to Adaptive Management For Project

Leaders and Participants, January 1999) 

 
     VI. Compliance with the Endangered Species Act

Livestock grazing can affect fish and wildlife indirectly by impacting habitat quality including access to sufficient cover, water, and food. For species listed as Threatened or         Endangered under the Endangered Species Act, and for "sensitive species" in the Southwest, these effects are analyzed in a Biological Assessment and Evaluation. This process     begins once the agency has identified its preferred alternative. Data used in analysis of effects include information regarding presence or absence of special status species in         an area and information regarding habitat needs of these species. See FSM 2670 Wildlife, Fish, and Sensitive Plant Habitat Management, for detailed guidance.

    VII. Compliance with the National Historic Preservation Act (NHPA) of 1966 (16 USC 470 et seq.)

        All management actions that are certain to be implemented within 2 years and that involve ground disturbance shall have an archaeological clearance completed prior to
completing the effects analysis for the EA as per the National Historic Preservation Act of 1966.
          
   VIII. Public Comment on the Environmental Assessment

        The Code of Federal Regulations contains guidance concerning public review of environmental assessments (36 CFR part 215.1-215.6. ). A summary of the process is provided              here.

Public notice of availability- The Forest Service must give notice of availability of an environmental assessment document via a designated local newspaper of general circulation, providing a general description of the proposed action, location, and contact information for obtaining further details. It is also common practice for the Service to maintain an electronic Schedule of Proposed Actions (SOPA)

Requesting a copy of the EA- The Forest Service will mail a copy of the EA to anyone who has requested it or has been involved in the environmental analysis process. Submitting comments- Upon publication of a notice of availability, all interested parties will have 30 days within which to submit their comments regarding the proposed action. Such a submission should include the name, address, and telephone number (if possible) of the commenter along with specific facts, comments, and supporting reasons for suggestions put forth. Response to comments- The responsible official must consider and document all written or oral comments received prior to the end of the 30-day comment period and place them in the project file to become a matter of public record. Responses should be documented in an appendix to the EA. Comments received may inspire changes in wording or the generation of new management alternatives. The agency's preferred alternative can change as well.

    IX. Are the impacts of the action significant? If so, can they be mitigated?

As the environmental analysis is being conducted and comments are being received, the NEPA team discusses the findings of the analysis. In the event that grazing may have some significant impact on the human environment, the team investigates options for mitigating such impact. Examples of mitigation measures include Best Management Practices,  and terms and conditions of Biological Opinions.  Such measures may entail monitoring requirements, changes in seasons of use, guidelines for construction of structural improvements, fencing or other distribution aids. If effects can't be mitigated, then the preparation of an Environmental Impact Statement may be necessary.


     X. Issuing a Decision and Finding of No Significant Impact

Decisions found to have no significant impact or found to be mitigable below the level of significance  will not require an Environmental Impact Statement . Rather, the District Ranger may issue a Decision Notice along with a Finding of No Significant Impact (FSH 1909.15 Chptr. 40) . For a template of a decision notice click here. Once the decision notice has been filed, the agency must wait 5 days before implementing the action. In the event of an appeal, the action may be delayed. In the case of livestock grazing, generally an ongoing activity, if the decision made is to eliminate grazing, then the permittee will have 2 years before the decision may be implemented. If the decision is made to authorize grazing, then Forest Service Policy states to issue the permit within 90 days following completion of NEPA.


   XI. Appealing decisions

Prior to seeking judicial relief, any party wishing to dispute a Forest Service decision must exhaust the rights of appeal within the Forest Service system. Forest Service Regulations define three separate procedures for appealing decisions depending on the appellant and the situation. An appellant must select an appropriate subpart of the regulations and is then not eligible to appeal the same decision under the other two subparts:


A. Permitee Appeal of decisions governing occupancy and use

Grazing permittees may appeal a decision in an EA under subpart 215, but will most likely want to use the guidance found in sections 36 CFR 251.80-251.103 - Forest Service Regulations Governing Permittee Appeal of Project-level Decisions. These regulations contain procedures established in July of 1999 allowing permittees to seek mediation of disputes involving cancellation of permits in whole or in part through USDA certified mediation programs.  However, Mediation ONLY comes into play for decisions which suspend or cancel, in whole or in part, the permit as the result of violations of the terms and conditions of the permit. It is not an option when the permitted use would change because of an analysis conducted under NEPA. In the event that mediation is not applicable or unsuccessful, permittees may continue with the appeal process. An appeal must be filed within 45 days of official notice of the decision. A written appeal should contain the following:

  1. Permittee name, address, day-time phone number, and date
  2. Should be labeled as an appeal, including the name of the reviewing officer
  3. Description, date, and deciding officer for the decision being appealed
  4. A statement describing how the appellant is adversely affected by the decision
  5. A statement of the facts and issues involved in the case
  6. Reference to any laws, regulations, or policies the appellant believes have been violated in issuance of the decision and reasons for such allegation
  7. Statement as to whether and how the appellant has sought to resolve the issue with the deciding officer, date of any discussions and the outcome of those contacts.
  8. A statement of the relief being sought by the appellant

The written appeal may also include a request for an oral presentation with the reviewing officer as per 36 CFR 251.97 and/or in states with certified programs, a request for mediation pursuant to 36 CFR 251.103. In the event, that implementation of the decision would cause immediate damage to the appellant, the appellant may also request a stay of the decision. Such a request must be sent to the deciding officer and the reviewing officer and should include all the elements described at 36 CFR 251.91. In the event that the permittee has sought mediation, a stay is granted automatically. The appeal process under normal circumstances will take about a month. Decisions made by the District Ranger are appealed to the Forest Supervisor. An unsatisfied permittee may then appeal to the Regional Forester.

B. Public appeal of projects or activities

Other interested members of the public may appeal a site-specific decision to authorize livestock grazing under 36 CFR 215.7-215.21 - Forest Service Regulations Governing Public Comment and Appeal of Project-level Decisions.  This appeal will only be accepted if the interested parties expressed interest during the comment period (unless the final decision was altered after that period). Forest Service regulations regarding commenting on an environmental assessment can be found at 36 CFR 215.1-215.6 .  An appeal must be filed within 45 days of issuance of the final decision and must include the following:

        1. indication that the document is an appeal under subpart 215
        2. appellant name, address, and telephone number
        3. identify the decision document: name, title, subject, date, responsible official
        4. specific changes sought or objectionable portions of the decision and if applicable how the appellant believes the decision violoates law, regulation or policy

Upon receipt of the appeal, the responsible official within the Forest Service must contact the appellant and arrange a meeting to discuss resolution of the issues raised in the appeal. If agreement cannot be reached during this contact, then the appeal will be reviewed formally. A decision on the appeal must be issued within 45 days of the receipt. The appeal decision is the final position of the Department of Agriculture.


C. Appeal of Forest Plans and Regional Guides


Grazing authorization is a project-level decision appealable under 36 CFR 215 or 251. However, some decisions regarding grazing may be made during the Forest Planning process,  such as standards and guidelines for grazing activities, and broad areas of grazing capability and suitability. Appeal of forest plans has been governed in the past by 36 CFR 215.1-215.19. However, new Forest Service Planning rules may make Forest Plan development categorically excludable from NEPA, because the plans don't authorize specific on-the-ground projects. This new rule is controversial. See: Red Lodge Clearinghouse



     
XII. Implementation and Monitoring of the decision
If no appeal is filed, a project-level decision may be implemented 5 days after close of the appeal period. In the rare event that no comments were received during the comment period, then the project may be implemented immediately upon publication of the notice of decision. Decisions documented through an EIS or of particular controversy should not be implemented for 30 days. Forest Service guidance regarding monitoring of the decision can be found at FSH 1909.15, Chapter 50.  Monitoring should assure that decisions are carried out, mitigation measures are implemented, Forest Plan standards and guidelines  are followed, and any terms and conditions of additional permits, such as incidental take permits under Section 7 of the Endangered Species Act, are adhered to.


     XIII. What happens if a permit expires prior to completion of NEPA analysis?


As NEPA analysis became applicable to allotment management plans and the complexity of these analyses increased, the Forest Service accumulated a backlog of allotments and began to fall behind in compliance with NEPA. Congress responded with the Rescissions Act of 1995 . The act required each National Forest System unit to establish and adhere to a schedule for the completion of NEPA analysis and decisions on all allotments for which NEPA analysis was needed; while allowing the reissuance of permits on the allotments that were not yet NEPA compliant. The act recognized the Service's inability to focus all of its resources on NEPA compliance and allowed that not more than 20 percent of the allotments were required to undergo NEPA analysis and decisions per year.


Further laws were enacted in 2003, 2004, and 2005 to ensure renewal of expired grazing permits where analysis was not yet complete. These included P.L.108-7 (The 2003 Consolidated Appropriations Resolution); P.L.108-108 ( The 2004 Interior Appropriations Act); and P.L. 108-447 ( the 2005 Consolidated Appropriations Act). P.L. 108-447 included a provision to categorically exclude a limited number of allotments from analysis when certain conditions were met. As of September 9, 2005 approximately 3,050 allotments had NEPA analysis completed. An additional 201 allotments (74 of them using the CATX below) were scheduled for 2005 (Statement of Fred Norbury, Associate Deputy Chief National Forest System Lands, USDA Forest Service, before the Senate Subcommittee on Public Lands and Forests Committee on Energy and Natural Resources, September 28, 2005)


Full Text from P.L. 108-447- Dec. 8, 2004 118 Stat. 3103


SEC. 339. "For fiscal years 2005 through 2007, a decision made by the Secretary of Agriculture to authorize grazing on an allotment shall be categorically excluded from documentation in an environmental assessment or an environmental impact statement under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) if: (1) the decision continues current grazing management of the allotment; (2) monitoring indicates that current grazing management is meeting, or satisfactorily moving toward, objectives in the land and resource management plan, as determined by the Secretary; and (3) the decision is consistent with agency policy concerning extraordinary circumstances. The total number of allotments that may be categorically excluded under this section may not exceed 900."