Supplementing 36 CFR Part 220: Addition of New Categorical Exclusion

Supplementing 36 CFR Part 220: Addition of New Categorical Exclusion

For Certain Restoration Projects SUPPORTING STATEMENT

Proposal Prepared By: USDA Forest Service Ecosystem Management Coordination

May 1, 2019

Table of Contents

Introduction ............................................................................................................................................. 3 USDA Forest Service Environmental Analysis and Decision Making Focus....................................4 USDA Forest Service Restoration and Resilience Focus ................................................................... 4 Best Management Practices .............................................................. Error! Bookmark not defined.

Purpose of Supporting Statement............................................................................................................5 CEQ Regulatory Basis for CEs...............................................................................................................5 Forest Service Implementation of Categorical Exclusions.....................................................................5 CEQ Guidance on Supplementing Categorical Exclusions ....................................................................7 Process and Supporting Information for Development of Proposed Categorical Exclusions ................ 8

Existing USFS CEs for Restoration....................................................................................................9 Justification for the Proposed Restoration CE ......................................................................................10

Definition of Restoration .............................................................................................................. 11 Implemented Actions ....................................................................................................................11 BMPs............................................................................................................................................. 12 Information from Professional Staffs, Experts, and Scientific Analysis ......................................14 Benchmarking Other Agencies' Experiences ...............................................................................15 Bureau of Land Management........................................................................................................ 15 Bureau of Indian Affairs ...............................................................................................................16 Natural Resources Conservation Service......................................................................................17 U.S. Fish and Wildlife Service ..................................................................................................... 18 Categories Established by Congress ............................................................................................. 19 Conclusions ........................................................................................................................................... 21

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Introduction

The USDA Forest Service (USFS) is proposing to add a new categorical exclusion (CE) to its regulations for implementing the National Environmental Policy Act (NEPA) that addresses common activities associated with restoration projects. CEs identify actions that do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require preparation of an environmental assessment (EA) or an environmental impact statement (EIS).

On January 3, 2018, the USFS published in the Federal Register an Advance Notice of Proposed Rulemaking (83 FR 302) associated with the Agency's Environmental Analysis and Decision Making (EADM) change effort. The USFS is publishing the proposed rule to update the agencies NEPA procedures, including development of the new Restoration CE.

For decades the USFS has implemented forest and watershed restoration projects. The USFS has found that in certain circumstances the environmental effects of some restoration activities have not been individually or cumulatively significant. The USFS's vast experience predicting and evaluating the environmental effects of the category of activities outlined in this supporting statement has led the agency to propose supplementing its NEPA regulations with a new CE to achieve restoration activities that improve forest health and resiliency to disturbances, and/or improve terrestrial and aquatic habitat and other watershed conditions.

The Council on Environmental Quality (CEQ) regulations in title 40, Code of Federal Regulations, Part 1507.3 (40 CFR 1507.3) provide that agencies, after notice and comment, may adopt categories of actions that do not have significant impacts on the human environment and, consequently, do not require preparation of an EA or an EIS. Current USFS procedures for complying with and implementing the NEPA are set out in 36 CFR 220. The list of categories of actions (CEs) that do not require preparation of an EA or an EIS by the USFS are found in 36 CFR 220.5. All references to parts of 36 CFR 220 correspond with the rule text provided in the proposed rule (for example, CEs were formerly in section 220.6 of the regulation; in the proposed rule they are in section 220.5).

The use of CEs allows the USFS to protect the environment more efficiently by (a) reducing the resources spent analyzing proposals that generally do not have significant environmental impacts, and (b) focusing resources on proposals that may have significant environmental impacts.

The USFS's categorically excluded actions are guided by land management plans on each of the national forests and grasslands. The land management plans identify where and under what conditions management activities could occur to meet plan objectives, provide for ecological sustainability, and contribute to social and economic sustainability. The proposed restoration CE is intended to maintain or restore ecological functions, and will allow the Agency to more efficiently implement projects that include restoration activities to improve forest health and resiliency to disturbances, and/or improve terrestrial and aquatic habitat and other watershed conditions.

The Forest Service defines restoration in its Ecosystem Restoration Policy and 2012 Planning Rule as "the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed.

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Ecological restoration focuses on reestablishing the composition, structure, pattern, and ecological processes necessary to facilitate terrestrial and aquatic ecosystems sustainability, resilience, and health under current and future conditions."

The USFS believes the new CE routinely does not individually or cumulatively have a significant effect on the human environment. This categorical exclusion will not apply where there are extraordinary circumstances1, involving threatened and endangered species or their designated critical habitat; wilderness areas; inventoried roadless areas; floodplains and wetlands; and archeological or historic sites.

USDA Forest Service Environmental Analysis and Decision Making Focus The USFS is establishing this Restoration CE as part of the broader effort to improve how the Agency conducts EADM. The USFS is not fully meeting agency expectations and those of their publics, partners, and stakeholders to improve the health and resiliency of forests and rangelands, create jobs, and provide economic benefits. The USFS is not able to successfully make measurable progress on addressing the more than 80 million acres of National Forest System (NFS) lands that are at severe risk from insect, disease, and wildfire.

As part of this effort, the USFS is updating its NEPA policies and procedures to make them more efficient, while fully honoring its environmental stewardship responsibilities. The reforms will improve or eliminate inefficient or redundant processes, while maintaining a commitment to high-quality environmental analysis based on the best available science. The proposed Restoration CE will contribute to the increased pace and scale of the work accomplished on the ground, an intended result of improving the Agency's NEPA policies and procedures, and will promote the diversity, health, resilience, and productivity of America's national forests and grasslands.

USDA Forest Service Restoration and Resilience Focus The USFS's Strategic Plan for FY 2015-20202 includes an emphasis on developing forest and grassland ecosystems that are resilient and adaptive in a changing environment. One of the objectives of the Strategic Plan is to foster resilient, adaptive ecosystems to mitigate climate change. This includes an emphasis on restoring ecosystems that are naturally adapted to wildland fire and repairing ecosystems that have been damaged by severe wildfire. To meet this goal, the USFS seeks to maintain resilient land and water conditions at the watershed level and to restore deteriorated lands and waters (such as abandoned mine lands and areas of unmanaged recreation use that need rehabilitation). The USFS also seeks to develop and apply mitigation, treatment, and restoration methods, technologies, and strategies for addressing disturbances such as wildfire, human use, invasive species, insects, extreme weather events, and changing climatic conditions. The long-term result of this objective is to for the nation's forests and grasslands to be in a healthy and ecological condition.

The USFS uses ecological restoration to manage NFS lands in a sustainable manner (Forest Service

1 Extraordinary Circumstances are defined in the Agency's NEPA regulations at 36 CFR 220.5 (b) (as reflected in the proposed rule) 2 USDA Forest Service Strategic Plan for FY 2015-2020:

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Manual (FSM) 2020). The aim is to reestablish and retain ecological resilience of NFS lands and associated resources to achieve sustainable management and provide a broad range of ecosystem services. Healthy, resilient landscapes will have greater capacity to recover from disturbances and large scale threats to sustainability, especially under changing and uncertain future environmental conditions such as those driven by climate change and increasing human uses (FSM 2020.2).

In addition, the USFS watershed condition policy goal is "to protect National Forest System watersheds by implementing practices designed to maintain or improve watershed condition, which is the foundation for sustaining ecosystem and the production of renewable natural resources, values, and benefits" (FSM 2520).

The proposed Restoration CE includes common activities designed to promote forest, watershed, and habitat restoration and recovery activities that meet the goals and objectives of land management plans. In addition, the proposed Restoration CE addresses decommissioning roads and trails, as well as construction of NFS system roads and trails to improve access for project implementation. These activities address the increased ability to restore lands where current system roads and trails may be unsuitably located.

Purpose of Supporting Statement

This supporting statement summarizes the administrative record and rationale for the addition of new Forest Service CEs in 36 CFR 220. In the proposed rule, the section on CEs is moved from section 220.6 to 220.5; references to 36 CFR 220 included below apply to the order in the proposed rule.

The USFS establishes CEs for specified classes of actions that are supported by a record showing that they normally will not have significant environment impacts, individually or cumulatively. The USFS establishes CEs based on, in part, its experience implementing similar actions, the experience of other Federal agencies, and information provided by the public.

CEQ Regulatory Basis for CEs

The National Environmental Policy Act, 42 U.S.C 4321 et seq, requires that Federal agencies consider the environmental effects or impacts of proposed Federal actions. NEPA requirements apply to any Federally-funded or undertaken project, decision, or action. NEPA also established the CEQ, which issued regulations at 40 CFR ?? 1500 - 1508 implementing the procedural provisions of NEPA.

The CEQ regulations are applicable to all Federal agencies for implementing the procedural provisions of NEPA, except where compliance would be inconsistent with other statutory requirements (40 CFR 1500.3). The CEQ regulations require Federal agencies to adopt their own implementing procedures to supplement CEQ's regulations, and to establish and use "categorical exclusions" to define categories of actions that do not normally individually or cumulatively have a significant effect on the human environment and therefore do not require preparation of an EA or EIS. (40 CFR 1507.3(b)(2)(ii) and 40 CFR 1508.4).

Forest Service Implementation of Categorical Exclusions

In compliance with the CEQ regulations, a CE is defined as "a category of actions that does not 5

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