Comments on NEPA Proposed Rule 

August 23, 2019

NEPA Service Group
Ms. Amy Barker
USDA Forest Service
Geospatial Technology and Applications Center 2222 West 2300 South

Salt Lake City, UT 84119

Dear Ms. Barker:

The Resource Development Council for Alaska, Inc. (RDC) appreciates the opportunity to provide comments on the Revisions to the Proposed Rule on National Environmental Policy Act Compliance: 36 CFR Part 220: 84 Fed. Reg. 114 27544, RIN 0596-AD31. RDC supports the Proposed Rule and urges the Forest Service to incorporate additional provisions outlined by the Alaska Forest Association (AFA), the Alaska Miners Association (AMA), and the Federal Forest Resource Coalition (FFRC), to make the rule stronger.

RDC is a Alaskan business association comprised of individuals and companies from Alaska’s fishing, forestry, mining, oil and gas, and tourism industries. RDC’s membership includes all 12 land-owning Alaska Native corporations, local communities, organized labor, industry support firms, and thousands of Alaskans supporting responsible development of Alaska’s natural resources. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

Revisions to National Environmental Policy Act (NEPA) regulations are needed at this time for a number of reasons acknowledged by the Forest Service in the Federal Register notice of June 13, 2019. The Forest Service noted it is not fully meeting agency expectations, nor expectations of the public, partners, and stakeholders, to improve the health and resilience of forests, create jobs, and provide economic health of rural communities through use and access opportunities. An increasing amount of agency resources have been spent each year to provide for wildfire suppression, resulting in fewer resources available for other management activities such as restoration. In addition, the agency has a backlog of more than 5,000 applications for new special use permits and renewals of existing permits that are awaiting environmental analysis and decisions.

As noted in the background section of the Proposed Rule, the EPA’s NEPA handbook was last comprehensively revised more than 25 years ago. In the following decades, a litigation-driven approach to NEPA has forced the Forest Service to engage in exhaustive NEPA analysis which has restricted the agency’s ability to accomplish its mission and prevent damage to the environment from insect infestations and wildfires. As a result, timber outputs from national forests declined from over 5.7 billion board feet in 1991 to just over 1.5 billion board feet in 2002; a dramatic decline of more than 73 percent. Harvest levels have yet to fully recover to the roughly 6.2 billion board feet in current national forest plans.

As a result of a dramatic decline in harvest activity in the Lower 48 and Alaska (see page 4), the national forest system has suffered unprecedented declines in forest health and local communities have suffered corresponding declines in their economies, putting significant stress on residents. National forest lands are now at high risk from catastrophic fires and local residents are incurring hardship. Meanwhile, the Forest Service has become steadily less efficient at moving needed land management projects through the NEPA process.

As noted in the August 1, 2019 comments of FFRC, the time required to prepare an Environmental Impact Statement (EIS) has risen from 817 days to over 1,300. The number of days required to complete an Environmental Assessment (EA) increased from 594 days to 730 days. While the Council on Environmental Quality Guidance says that an EIS should “normally” be less than 150 pages, and an EA should generally be between 10 to 15 pages, the Forest Service is known for producing EISs of several hundred pages, with associated documentation running into the thousands of pages.

According to the Government Accountability Office (GAO), between 2008 and 2012 the Forest Service produced more than twice as many EISs as the Army Corps of Engineers or the Federal Highway Administration, and nearly three times as many as the Bureau of Land Management (BLM). According to that same study, it takes the Forest Service longer to complete all types of NEPA analyses than other federal agencies.

Ironically, while doing this exhaustive NEPA analysis, the Forest Service is usually proposing management of renewable forest resources on lands that have been designated either as suited for timber production, or on which timber production is allowed under existing forest plans (which themselves go through extensive public involvement, including NEPA).

RDC is not questioning the Forest Service’s statutory authority obligations to use NEPA to analyze and disclose impacts of proposed projects. However, the modernization of regulations found in the Proposed Rule are necessary and certainly overdue.

RDC welcomes the Proposed Rule adding “condition-based management” to the agency’s NEPA procedures. The Proposed Rule codifies condition-based management based on existing practice to provide clear, consistent direction on its use, and to encourage more widespread use. We see condition- based management as a good way to meet NEPA’s requirements while providing the flexibility to implement projects while accounting for changing conditions on the ground. Such management offers efficiency because it can be useful for projects over longer time spans.

RDC also supports the addition of the “Determination of NEPA Adequacy” to the agency’s NEPA regulations as a tool to determine whether a previously completed NEPA analysis can satisfy NEPA’s requirements for a subsequent, new proposed action. In other words, is the new proposed action essentially similar to a previously analyzed proposed action or alternative analyzed in detail in previous NEPA analysis? Is the range of alternatives previously analyzed adequate under present circumstances? If so, a previous analysis should satisfy NEPA requirements for the new proposed action, reducing redundant analyses.

The Proposed Rule sequentially addresses general guidance, Categorical Exclusions (CE), EAs, and EISs. We agree with the Proposed Rule in that this is a more logical order in considering whether a CE (generally the most efficient form of NEPA analysis) would apply to a proposed action. The Proposed Rule emphasizes the primary purpose of preparing an EA is to reach a finding of no significant impact or to determine that an EIS is necessary. We agree this change continues the agency’s emphasis of focusing the analysis in EAs and moving away from treating EAs as mini EISs.

The Proposed Rule includes a series of new and revised CEs. RDC fully supports the expanded list of CEs. However, it should add a new CE, similar to the BLM’s CE that authorizes mining exploration that impacts less than five surface acres by a Notice of Intent to proceed without a NEPA document. NEPA documentation required by the Forest Service unnecessarily adds time and expense to an exploration project with minimal surface disturbance and environmental impacts.

The Proposed Rule should also direct that CEs shall be the NEPA preparer’s first choice unless there is a compelling, science-based reason not to do so. In addition, the proposed CE for approving Surface Use Plan of Operations for oil and gas exploration and initial development activities should be expanded to include mining exploration and initial development activities.

RDC joins the FFRC in applauding the changes proposed to clarify that the mere presence of specific resource conditions does not preclude the use of a CE, whether promulgated by the Forest Service or enacted into law by Congress. The Proposed Rule rightly requires both a cause and effect relationship and a likelihood of substantial adverse effects. Moreover, it should be acknowledged that short-term effects are frequently more than compensated for by long-term benefits, such as the ability to return forests to more natural stocking levels and fire regimes.

As noted in the AMA comments of February 2, 2018, NEPA document preparers should be given page and time limits for the preparation of an EIS and EA. Each NEPA document should be given a completion deadline.


In the 1970s the forest sector was the second largest industry in Alaska. However, government policy, intense litigation by non-development groups, and federal land use shifts in the 1990s radically transformed the industry in Southeast Alaska. Yet the forest products industry still holds much potential to diversify the economy in the region.

The Tongass Land Use Management Plan (TLMP), issued in 1997 and amended in 2008 and 2016, sharply reduced allowable harvest levels to well below the sustained yield. Federal policies and management practices have failed to provide sufficient timber supply for what remains of Southeast Alaska’s timber industry. Each time the Forest Service has revised its management plan for the Tongass, it has increased its emphasis on non-timber amenities and reduced the amount of land available to grow and harvest timber.

Prior to 1976, the agency was managing 5 million acres for timber production on a sustainable basis. After 1980, the agency planned to utilize 3 million acres primarily for timber production. A 2008 amended plan reduced potential harvests over the next 100 years to a land base of only 663,000 acres. About half of that acreage is young-growth currently too young to harvest without robbing the trees of their best growth potential. The 2016 amendment to TLMP largely restricted the timber sale program to young-growth stands that are not in reserves and buffers to about 300,000 acres – one percent of the acreage that was managed for timber production prior to 1990.

Timber harvests fell to all-time record lows in the Tongass, including the cutting of only 19 million board feet (mmbf) in 2007 and 21 mmbf in 2012. In recent years, the harvest has averaged 35 mmbf. To put these harvests in perspective, the annual sustainable harvest level for the Tongass set under the Alaska National Interest Lands Conservation Act of 1980 was 520 mmbf. The 2008 amendment to TLMP reduced the annual harvest cap to 267 mmbf. The 2016 amendment capped the annual harvest at 46 mmbf with a 15- year schedule to reduce the old-growth portion to 5 mmbf.

The downward spiral of the Southeast Alaska timber industry has adversely affected local communities, schools, and economies.

Despite Alaska being home to the nation’s largest national forest, the timber industry in the Tongass currently has less than a year’s supply of timber under contract. The Forest Service has had great difficulty in providing an adequate supply of timber and the NEPA process has been painfully slow. It is imperative that the Forest Service complete NEPA documents for new timber sales in a more efficient and timely manner.

The National Forest Management Act of 1976 requires the Forest Service to identify National Forest acreage suited for timber production. These acres make up a significant portion of the National Forest System and over 5 million acres of commercial forest in the Tongass alone. The All Purpose and Needs Statements for projects should recognize the importance of maintaining local forest industry infrastructure, especially old-growth infrastructure in the Tongass since young-growth stands are several decades away from reaching mature levels. The statements should also acknowledge the importance of designing projects that are economically feasible, which is especially important in Alaska. They should include management of these lands to meet the sustained-yield requirements of the Multiple Use Sustained Yield Act and the adopted Land and Resources Management Plans.

That is not to say forest plans like TLMP allocate sufficient acreage for timber sales. Rather, because forest plans like TLMP allocate such a small amount of forest acreage to potential timber sales, only about one percent of the Tongass’ mature timber is currently available for timber sales. RDC believes it is essential Forest Service NEPA analyses recognize that timber harvest on that small amount of acreage already has been evaluated in the forest planning process. The NEPA process for timber sales should not further trump that available acreage with additional onerous analyses. Instead, it should streamline the process.

RDC urges the Forest Service to encourage use of existing forest plans in making determinations and to allow maximum geographic flexibility in making NEPA determinations. Land use allocations are outlined in forest plans and forest plan revisions and amendments, and should be noted and incorporated into project level NEPA analysis.

RDC supports the inclusion of the proposed new CEs established for forest health restoration and timber salvage operations. This is particularly important in the Chugach National Forest in Southcentral Alaska where spruce bark beetle infestations are common and have devastated large areas of the nation’s second largest forest.

With regard to whether a logging road should be decommissioned or closed, RDC urges the Forest Service to first consider using the road for access to mining claims and mineral deposits. Finally, the new proposed CE allowing for the realignment of up to five miles of National Forest System roads and reconstruction of up to 10 miles of National Forest System roads, and culvert or bridge rehabilitation, should be expanded to include road access to mining claims and mineral deposits.

While RDC supports the Proposed Rule, we believe additional CEs should be promulgated and some existing ones expanded in order to give forest managers on the front lines the ability to effectively address the myriad of forest health issues facing the National Forest System in the Lower 48 and Alaska and to fulfill the mandate and mission of the Forest Service in providing adequate supplies of timber to industry, while helping to sustain local economies highly dependent on the harvesting national forest resources.

We do not, however, support the Proposed Rule’s language regarding NEPA supplementation found in draft § 220.4(k)(1)(1)(i). That language would require NEPA supplementation in response to “substantial changes in the proposed action that are relevant to environmental concerns.” Use of the vague term “substantial changes” will increase, not decrease, NEPA analysis paralysis and litigation. Adding such a vague term is wholly unnecessary given the existing requirement for NEPA supplementation in response to significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. We join the AFA in strongly urging the Forest Service not to add a redundant and confusing requirement for NEPA supplementation in response to “substantial changes,” whatever that term means, particularly given existing case law that fleshes out the meaning of significant new circumstances or information.

Finally, RDC joins the FFRC in recommending the proposed additions to the Final Rule:

Create a managed-stand thinning CE: Develop a Categorical Exclusion that permits thinning treatments up to 5,000 acres on previously managed forest stands less than 80-years old.

Clarify the existing road maintenance CE: Make clear that this CE includes removal of hazard trees within striking distance of National Forest System roads.

Expand existing thinning CE: Increase allowable acreage of live tree harvest from 70 acres to 250 acres and increase the allowable length of temporary road construction from 1⁄2 mile to 2 miles.

Expand Existing Post-Fire Recovery CE: Amend the existing CE for post-fire rehabilitation activities of up to 4,200 acres, and to explicitly include a broader range of activities.

Expand existing salvage CE: Amend to increase allowable acreage of salvage from 250 acres to 1,000 acres and to increase the allowable length of temporary road from 1⁄2 mile to 3 miles.

Expand Roadside Salvage CE: The Forest Service should expand the road-side salvage CE to be of unlimited size in order to protect campground, roads, and other infrastructure from dead and dying hazard trees following a wildfire or other catastrophic event, including insect infestations.

Allow Use of State Exemptions Where Available: Where available, allow the Forest Service to utilize exemptions and expedited procedures found in State law or regulation that would expedite action to recover fiber, restore, and reforest lands damaged during wildfires and insect infestations.

RDC very much appreciates the opportunity to comment on the Proposed Rule. We encourage the Forest Service to strengthen the Proposed Rule by additional CEs and expanding existing ones to accomplish needed and effective true multiple-use management on more acreage of our national forests, including both the Tongass and Chugach.

Resource Development Council