The comment deadline for the Forest Service's proposed revisions to its National Environmental Policy Act (NEPA) regulations is Monday, August 26, 2019. Below are the comments to the NEPA proposed rule changes submitted on behalf of Cal4Wheel.
August 23, 2019
NEPA Services Group
c/o Amy Barker, USDA Forest Service
125 South State Street, Suite 1705
Salt Lake City, UT 84138
RE: NEPA Compliance – Proposed Rule Comments
Dear NEPA Services Group:
This letter is submitted on behalf of the California 4 Wheel Drive Association (Cal4Wheel) and its membership in reference to the National Environmental Policy Act (NEPA) Compliance Proposed Rule published at 114 Fed.Reg. 27544-27559 (June 13, 2019) (the “Proposed Rule”). Cal4Wheel represents clubs and individuals within the state of California that are part of the community of four-wheel drive enthusiasts.
The main focus of Cal4Wheel is to protect, promote, and provide for motorized recreation opportunities on public and private lands. Many of our members participate in multiple forms of recreation; including, but not limited too, hunting, fishing, camping, hiking, horseback riding, bicycle riding, and gem and mineral collection.
We recognize the positive health and social benefits that can be achieved through outdoor activities. We also recognize that motorized recreation provides the small business owners in the local communities a significant financial stimulus. And, our members are directly affected by management decisions concerning public land use.
Our members subscribe to the concepts of: 1) public access to public lands for their children and grandchildren; 2) condition and safety of the environment; and 3) sharing our natural heritage. The general public desires access to public lands now and for future generations. Limiting access today deprives our children the opportunity to view the many natural wonders of public lands. The general public is deeply concerned about the condition of the environment and personal safety. They desire wildlife available for viewing and scenic vistas to enjoy. They also want to feel safe while enjoying these natural wonders. Lastly, the public desires to share the natural heritage with friends and family today as well as in the future. How can our children learn and appreciate our natural heritage when native species are allowed to deteriorate and historic routes are routinely blocked or eradicated from existence?
Cal4Wheel supports the concept of managed recreation and believes it is prudent and appropriate management to identify areas where off-highway vehicle use is appropriate. Such use must be consistent with the public lands management plans, the Plan Standards, and all other requirements found in the Plans, as well as state and federal regulations and legislation. Recreation, especially recreation off of paved or gravel roads, is the leading growth in visitors to public lands.
Please accept this letter of our comments for the National Environmental Policy Act (NEPA) Compliance Proposed Rule published at 114 Fed.Reg. 27544-27559 (June 13, 2019) (the “Proposed Rule”).
Cal4Wheel supports the general effort to update and increase efficiency of these NEPA regulations and Cal4Wheel supports the majority of the proposed changes. We agree with the observation in the “background” discussion that the NEPA process can better meet the needs of the resources as well as the expectations of the agency, public, partners and stakeholders. Agencies should base their categorical exclusions on factors which include their mission, environmental and geophysical conditions involving their mandated management responsibility, and scope of projects encountered under their mission.
Updating and increasing the efficiency of these NEPA regulations should not supplement the proper analysis that a Categorical Exclusion (CatEx) is or is not appropriate. Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded. Scoping is important to discover information that could point to the need for an EA or EIS versus a CatEx. Scoping is the means to identify the presence or absence of any extraordinary circumstances that would warrant further documentation in an EA or EIS. Scoping should also reveal any past, present, or reasonably foreseeable future actions with the potential to create uncertainty over the significance of cumulative effects. Scoping complexity should be commensurate with project complexity.
Cal4Wheel opposes changes to the Proposed Rule that may create new categorical exclusions for broadly defined activities that lack quantified boundaries. Cal4Wheel understands, and would often support, agency efforts to “streamline” or make more “efficient” agency management techniques. But, in our experience, many ground-disturbing trail management projects are improperly understood, ill-defined, and poorly executed. There are substantial benefits associated with reasonable public disclosure and opportunity for input, even on the types of activities addressed by the proposed rule.
Simply stated, an effort involving moving dirt is moving dirt and a potential significant environmental impact. Environmental impacts don't magically disappear because the source of sediment is called a minor project impact and assigned a CatEx. Many non-system roads and trails are located in or near riparian areas, meadows, critical wildlife habitat, or adjacent too important cultural resources. If 40 plus years of NEPA has taught us anything, it is that noble intentions are not a substitute for a proper analysis.
Cal4Wheel is not opposed to streamlining required environmental analysis for activities that involve small, site specific impacts. We encourage the Forest Service to work to reduce the time and expense to accomplish appropriate project level analysis. The existing “Categorical Exclusion” has served the agency well for many years until litigation changed the process to where the CatEx is no longer a means to save time and expense on “routine” projects. The proposed rule change does not clearly define a process that will reduce the potential for litigation, efficiency or streamline management decision processes.
Our experience is based within the 2005 Travel Management Rule where reference to “road and trail decommissioning” arises that has placed tens of thousands of miles of routes in “non-system” or “unauthorized” classification. Clearing the status of those routes is not, and will not be, and should not be, a routine matter for which a CatEx will suffice in lieu of site specific project level analysis. A proper scoping, complete with socio-economic impacts, should be accomplished prior to assignment of a CatEx.
There are a wide array of circumstances and potential management options that would benefit from proper “scoping” are best addressed through public disclosure and agency analysis prior to assigning a CatEx. The proposed rule has the potential to short-circuit the full public disclosure and analysis process.
It is far from certain that the techniques addressed by the proposed categorical exclusions cannot present the potential for significant effects to the human environment. Ground disturbing actions, such as earthen berms and barriers, ripping the roadbed, or other actions which have potential effects on soil and water resources, other beneficial uses and public safety. These actions should be subjected to project level, site specific analysis and not summarily dismissed with a Categorical Exclusion. It is plainly obvious that using heavy equipment to move culverts, trees, rocks and large quantities of soil presents at least the potential of “significant effects to the human environment.”
The speed, limited input and lack of oversight associated with the proposed categorical exclusions are good intentions. However, they present the risk of error that NEPA is designed to prevent. For example, the proposed rule attempts to downplay risks by focusing on “strike a proper balance, increase efficiency, support robust engagement and improve resource conditions” and similar characterizations. However, when alteration of the “natural” environment has been complete, it cannot be argued that alteration of the status quo does not have significant effects.
Cal4Wheel offers the following comments to specific sections or elements of the Proposed Rule:
(1) Section 220.3 - Condition-based management. Cal4Wheel supports the concept of “condition-based management” as a means to allow for implementation refinement and flexibility, in similar ways to adaptive management. We have unfortunately seen instances where undisclosed implementation techniques have been attempted under the guise of adaptive management which were not properly disclosed or analyzed in the NEPA process. It is important that condition-based management options be presented for public input and analysis and addressed in the decision document.
(2) Early and ongoing engagement. Cal4Wheel supports this commitment and would like to continue to act as a partner with the agency, tribal and local governments, and key stakeholders. This engagement should occur as early and as meaningfully as possible.
(3) Determination of NEPA Adequacy. Cal4Wheel supports this concept, for the stated purpose of allowing for more streamlined analysis through reduction of redundant procedures/discussions. Cal4Wheel does not support relying on a DNA to circumvent proper NEPA compliance, to improperly open or close roads and trails.
(4) Section 220.5(b) – Extraordinary circumstances resource conditions. Cal4Wheel does not support the proposed changes to section 220.5(b)(1)(iii), “Congressionally designated areas.” This terminology seems clear, and should not be expanded or made ambiguous through inclusion of terms like “potential wilderness areas.” This term does not have a well-defined meaning and does not reflect a Congressional designation.
(5) Section 220.5(d) – Special use authorizations. Cal4Wheel supports the proposed new category at (d)(11) which combines and replaces the prior categories at (d)(10) and (e)(15). This should properly allow and make more efficient limited and relatively minor uses and make it easier to create simpler permit terms which will actually reduce environmental impacts. Cal4Wheel also supports the proposed new category at (d)(12) which will address activities that occur on existing roads/trails and which are otherwise consistent with the land use plan or other decisions. This could benefit many of our members, such as small clubs who conduct recurring and minor events on well-established routes and permit terms. Again, an efficient and rational permitting process for these events will reduce impacts, compared to unregulated use by the general public or outside of any permit on the same sites.
(6) Section 220.5(e) – New Decision Memo categories. Cal4Wheel generally supports the new categories which will allow for minor changes and refinement to administrative sites and System road/trail designations. See, proposed categories (e)(21) through (e)(24). Importantly, the agency must clarify how any decisions considered through categorical exclusions will reflect or align with the procedures required by the Travel Management Rule. See, 36 C.F.R. § 212.52(a); 36 C.F.R. § 212.54 (requiring public participation in process of making or revising designations of roads, trails and areas for motor vehicle use). Cal4Wheel supports the new category (e)(27), which appropriately allows multiple agency coordination which can often affect things like special events spanning broad trail networks and multiple jurisdictions.
(7) Socio-Economic Impacts. The outdoor recreation industry jointly commissioned the firm of Southwick Associates to conduct a survey of Americans on their spending on outdoor recreation equipment and activities. The partners wanted to determine the economic impact of outdoor recreation. The findings of the survey are summarized in the report: A Snapshot of The Economic Impact of Outdoor Recreation, June 2012.
As noted in that study, “Spending on outdoor recreation is a vital part of the national and western economies. It means jobs and incomes and can be the lifeblood of many rural communities in the West. This snapshot helps highlight the value of this often overlooked sector – one that is not otherwise measured as a traditional pillar of the U.S. economy.”
The economic impacts of OHV recreation should be compared to the economic value or consumer surplus derived from OHV use for making policy decisions. Consumer surplus is the value of a recreation activity beyond what must be paid to enjoy it. It is an economic measure of an individual's satisfaction after all costs of participation have been paid.
The consumer surplus, also called net willingness-to-pay, is the theoretically preferred measure of net benefits or net economic value (Bergstrom et al., 1990b). Summing individuals' net willingness-to-pay provides a measure of aggregate net benefits to society. Cost-benefit information can help policy makers and managers in making difficult decisions.
Similar types of economic impacts are frequently noted when other activities on public lands are analyzed for their economic verses environmental impact. Recreation is one of those activities that NEPA requires an economic impact to be considered within the decision making process.
Cal4Wheel believes that the loss of access to the public lands for recreation opportunity is a direct loss. There are also indirect impacts that would result should this proposed rule be adopted adequate consideration for the socio-economic impact of recreational activities affected by CatEx determinations. Those cost include, but not limited to: (1) the increased enforcement required at other sites when displaced recreational users seek out other areas that may be poorly identified as wildlife preserves or other resource-rich areas; (2) the loss of biological resources or habitat at other sites that displaced recreational users may utilize ; (3) the loss of nature education, (4) the loss of outdoor recreation opportunities, (5) the loss of outdoor access and experiences for children in the community; (6) the loss of familial traditions, custom, and culture of recreational and nature-oriented activities in the region; and (7) the loss of the region's history and traditions, specifically with respect to mining and recreational activities.”
Cal4Wheel supports the Proposed Rule and asks for appropriate changes to be made to address our concerns. We appreciate the agency efforts to “streamline” or make more “efficient” agency management techniques. However, we remind the agency that the best management practices require proper planning, accurate problem definition, and analysis to determine correct course of action. With some refinements, a Final Rule can strike a proper balance, increase efficiency, support robust engagement and improve resource conditions. Please consider our comments, and do not hesitate to contact us in this rulemaking process as well as ongoing management efforts.
Natural Resources Consultant
California 4 Wheel Drive Association