[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                       MANAGEMENT BY EXCLUSION:
                          THE FOREST SERVICE
                          USE OF CATEGORICAL
                         EXCLUSIONS FROM NEPA

=======================================================================

                           OVERSIGHT HEARING

                               before the

                SUBCOMMITTEE ON NATIONAL PARKS, FORESTS
                            AND PUBLIC LANDS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                        Thursday, June 28, 2007

                               __________

                           Serial No. 110-31

                               __________

       Printed for the use of the Committee on Natural Resources

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov



                        U.S. GOVERNMENT PRINTING OFFICE

36-475                         WASHINGTON : 2008
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
Washington, DC 20402-0001



                     COMMITTEE ON NATURAL RESOURCES

               NICK J. RAHALL II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Bobby Jindal, Louisiana
Dan Boren, Oklahoma                  Louie Gohmert, Texas
John P. Sarbanes, Maryland           Tom Cole, Oklahoma
George Miller, California            Rob Bishop, Utah
Edward J. Markey, Massachusetts      Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon             Dean Heller, Nevada
Maurice D. Hinchey, New York         Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island     Doug Lamborn, Colorado
Ron Kind, Wisconsin                  Mary Fallin, Oklahoma
Lois Capps, California               Kevin McCarthy, California
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                   Jeffrey P. Petrich, Chief Counsel
                 Lloyd Jones, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

        SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS

                  RAUL M. GRIJALVA, Arizona, Chairman
              ROB BISHOP, Utah, Ranking Republican Member

 Dale E. Kildee, Michigan            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Chris Cannon, Utah
Donna M. Christensen, Virgin         Thomas G. Tancredo, Colorado
    Islands                          Jeff Flake, Arizona
Rush D. Holt, New Jersey             Stevan Pearce, New Mexico
Dan Boren, Oklahoma                  Henry E. Brown, Jr., South 
John P. Sarbanes, Maryland               Carolina
Peter A. DeFazio, Oregon             Louie Gohmert, Texas
Maurice D. Hinchey, New York         Tom Cole, Oklahoma
Ron Kind, Wisconsin                  Dean Heller, Nevada
Lois Capps, California               Bill Sali, Idaho
Jay Inslee, Washington               Doug Lamborn, Colorado
Mark Udall, Colorado                 Don Young, Alaska, ex officio
Stephanie Herseth Sandlin, South     Kevin McCarthy, California
    Dakota                           Don Young, Alaska, ex officio
Heath Shuler, North Carolina
Nick J. Rahall II, West Virginia, 
    ex officio
                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, June 28, 2007..........................     1

Statement of Members:
    Bishop, Hon. Rob, a Representative in Congress from the State 
      of Utah....................................................     2
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     1

Statement of Witnesses:
    Jensen, Thomas C., Sonnenschein, Nath & Rosenthal LLP, 
      Washington, D.C............................................    42
        Prepared statement of....................................    44
    Lawrence, Nathaniel, Senior Attorney, Natural Resource 
      Defense Council (NRDC).....................................    66
        Prepared statement of....................................    68
    Menlove, Mark, Executive Director, Winter Wildlands Alliance.    57
        Prepared statement of....................................    59
    Nazzaro, Robin, Director of Natural Resources and 
      Environment, U.S. Government Accountability Office.........    12
        Prepared statement of....................................    13
    Noon, Dr. Barry R., Professor, Department of Fish, Wildlife, 
      and Conservation Biology, Colorado State University........    62
        Prepared statement of....................................    63
    Pollak, Harrison M., Deputy Attorney General, State of 
      California.................................................    22
        Prepared statement of....................................    23
    Rey, Mark, Under Secretary, Natural Resources and 
      Environment, U.S. Department of Agriculture................     4
        Prepared statement of....................................     5
    Stavros, John, New Harmony, Utah.............................    92
        Prepared statement of....................................    94
    Vaughan, Ray, Executive Director, WildLaw....................    76
        Prepared statement of....................................    78


OVERSIGHT HEARING ON ``MANAGEMENT BY EXCLUSION: THE FOREST SERVICE USE 
                 OF CATEGORICAL EXCLUSIONS FROM NEPA''

                              ----------                              


                        Thursday, June 28, 2007

                     U.S. House of Representatives

        Subcommittee on National Parks, Forests and Public Lands

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:03 a.m. in 
Room 1334, Longworth House Office Building, Hon. Raul M. 
Grijalva [Chairman of the Subcommittee] presiding.
    Present: Representatives Grijalva, Bishop, Holt, DeFazio, 
Herseth Sandlin, Sali, Lamborn and McCarthy.

  STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Let me call the Subcommittee on National 
Parks, Forests and Public Lands oversight hearing to order on 
``Management by Exclusion.'' Welcome to all our witnesses and 
thank you very much for being here. Today's hearing involves a 
very, very important topic, and so I appreciate very much the 
presence of our witnesses today, both on the first panel and 
the second panel.
    The Forest Service use of categorical exclusions from the 
National Environmental Policy Act or NEPA is in serious need of 
oversight. Under the Bush Administration, the Forest Service 
has vastly expanded the use of categorical exclusions from 
NEPA. This includes categorical exclusions both at the planning 
and project levels. In fact, the Forest Service made more 
administrative changes to NEPA procedures than any other 
Federal land management agency.
    NEPA is important because it sets up a process to protect 
ordinary citizens from harm by Federal agencies. NEPA is a 
tool, but perhaps it is a shield to force Federal agencies to 
assess the consequences of its actions and stop and listen to 
the advice of average Americans. The title of this hearing is 
``Management by Exclusion'' because by categorically excluding 
forest plans and projects from NEPA, the Forest Service is 
excluding the ability of the public to be involved in the 
management of their publicly owned national forests.
    Furthermore, by categorically excluding forest plans and 
projects from NEPA, the Forest Service is excluding the 
cumulative analysis of land management decision. In December 
2006, the Forest Service announced a finalization of their 
forest planning rule to categorically exclude forest plans from 
NEPA. The proposal took two years to be finalized based on 
strong concerns raised by the Council on Environmental Quality 
and numerous other individuals and organizations.
    The forest planning rule is premised on a narrow 
interpretation that forest plans do not constitute a Federal 
action triggering NEPA. I believe that both the public 
involvement and environmental analysis requirements of NEPA are 
critical to providing the balanced use of Federal lands. 
Furthermore, categorically excluding forest plans from NEPA 
will likely result in the failure to evaluate the cumulative 
effects of and impacts of land management decisions, which was 
a clear intent of the National Forest Management Act.
    The Forest Service has justified the categorical exclusion 
of forest plans from NEPA by claiming that NEPA analysis should 
be undergone at the project level not the plan level. However, 
the Forest Service has also expanded the use of categorical 
exclusions for forest projects dealing with timber, oil and gas 
and grazing. Today we are joined by Robin Nazzaro from the 
Government Accountability Office. The GAO found that nearly 
three-quarters of Forest Service vegetation management projects 
are categorically excluded from NEPA. This accounts for nearly 
half of the acreage treated for vegetation management 
nationwide.
    My strong concern is that the whole picture shows a 
weakening of the NEPA process forest-wide under the Bush 
Administration. The result is less public involvement in their 
publicly owned national forests, less analysis of decisions 
affecting individual national forests, and the National Forest 
System as a whole. I share the concerns with many others.
    Today we are joined by Deputy Attorney General of 
California, recreationists, conservationists and scientists to 
share their concerns with us about this topic. I would add that 
it is clear that the Forest Service is overreaching. If their 
policies were sound and valid, they would not be continuously 
losing in the Courts. The Courts have enjoined the forest 
planning rule, overturned Forest Service efforts at limiting 
public comment and appeal.
    I look forward to hearing from all our witnesses and thank 
those who have traveled from afar to be here today. I would now 
recognize the Ranking Member Bishop for any opening statements 
he may have. Sir.

STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr. Bishop. Thank you, Mr. Chairman and members of the 
Committee who are here. The title of today's hearing suggests 
that the Forest Service uses categorical exclusions to exclude 
decisions from analysis that were required by the National 
Environmental Policy Act, otherwise known as NEPA, or to 
exclude public involvement from project planning. The Majority 
has a steep burden to prove that.
    The fact is--and I think the facts will show--that 
categorical exclusions do not eliminate the NEPA analysis. They 
are part of the NEPA analysis process. They merely serve as an 
initial screen in determining what level of environmental 
analysis is appropriate for individual projects.
    Categorical exclusions is a tool. It is neither inherently 
good or evil. It can be abused. It can be used properly. I 
think history will be on the side of the agency's use. Nothing 
is perfect. No one is perfect, and if that indeed was the 
standard, I do not think Congress would be here today. But we 
will hear testimony from those who prefer to say no to any land 
management activity. These individuals will say that the use of 
categorical exclusions prevents members of the public from 
becoming involved in NEPA analysis of individual projects. All 
NEPA analysis completed by the Forest Service, including those 
completed under categoric exclusions from documentation in 
environmental assessments or environmental impact statements, 
must include some form of public involvement.
    Further, public involvement is documented in the final 
agency decisions. Mr. Chairman, just last week we heard almost 
unanimous statements from members of this subcommittee 
regarding the need to quickly reduce wildfire hazards. The 
Chair called for the need for more thinning in order to reduce 
fire loads. He was impeccably correct in his statements. 
Congratulations. You got it right, Mr. Chairman. The use of 
categorical exclusions though is needed to do these projects. 
You cannot have one without the other.
    I would like to remind the Committee that in the 109th 
Congress, Mr. Udall introduced H.R. 4875, a bill that 
recognized the efficiency of categorical exclusions by 
including one of those, one that promoted treatment of forest 
insect infestations. Use of categorical exclusions is a 
valuable tool that allows efficient use of the government, 
financial and human resources.
    Today we will hear testimony from Mr. Stavros from Utah 
about how the effectiveness of a hazardous fuel treatment 
project analyzed under a categorical exclusion and quickly 
implemented was able to protect his home and community from a 
wildfire. Mr. Stavros' testimony offers an example of how our 
actions here in this committee directly affect the lives of 
millions of people.
    We often go off on esoteric flights of fancy where 
decisions are based on dogma that actually hurt people. Our 
goal ought to be to eliminate that harm done from individuals. 
The situation in Lake Tahoe is a reminder to us all of what 
happens when the Forest Service is prevented from acting. I am 
required to look forward to today's hearing, and the 
testimony--much of which will rehash the obvious--regarding the 
use of categorical exclusions by the Forest Service, and I 
would like to thank all of our witnesses--regardless of what 
they may say--for coming here today.
    It is not easy to be a witness before this committee and 
come to this city of excessive humidity for anyone, and I do 
appreciate your kindness in coming here and sharing your 
efforts and testimony with us here today. Thank you, Mr. 
Chairman. I will yield back.
    Mr. Grijalva. Thank you, Mr. Bishop. Let me begin with the 
first panel. Under Secretary Rey, Director Nazzaro, Deputy 
Attorney General Pollak, and I will begin with the Under 
Secretary, Mr. Rey, and I should note for the record that all 
written testimony and extraneous material that will be 
submitted by the witness will be accepted as part of the 
record. With that, Under Secretary.

 STATEMENT OF MARK REY, UNDER SECRETARY, NATURAL RESOURCES AND 
          ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE

    Mr. Rey. Thank you, Mr. Chairman. As defined in the Council 
on Environmental Quality Regulations, a categorical exclusion 
is a category of actions which experience has indicated will 
not have a significant environmental effect on the environment, 
and can be categorically excluded from additional 
documentation, an environmental assessment or an environmental 
impact statement. Categorical exclusions are an integral part 
of the implementation of NEPA and promote the cost effective 
use of agency NEPA related resources.
    The Forest Service implementation of categorical exclusions 
considers effects, including cumulative effects which result 
from implementation of management actions. The important 
distinctions for categorical exclusions is that the agency has 
determined in establishing the categorical exclusion that these 
effects for the category of actions are not significant absent 
extraordinary circumstances.
    Using the terminology of the Council on Environmental 
Quality Regulations, a categorically excluded project is exempt 
from the more lengthy analysis and documentation in an EA or 
EIS because it does not have significant effects. When using a 
categorical exclusion, Federal agencies must still comply with 
all of the requirements of any applicable laws, regulations and 
policies, including NEPA and including the separate and more 
extensive public participation regulations of the National 
Forest Management Act.
    My statement for the record describes the administrative 
process the Forest Service uses to create categorical 
exclusions generally and specifically. Let me give you one 
example as to how we arrived at a particular categorical 
exclusion. Under the healthy forest initiative, the Forest 
Service and the Department of the Interior administratively 
created two new categorical exclusions in 2003 for fire 
management activities.
    The activities permitted under these categories include 
hazardous fuel reduction and post fire rehabilitation. These 
categories were published as proposals for notice and comment 
on December 16, 2002. The comment period was open for 45 days, 
and nearly 39,000 comments were received and evaluated. In 
developing this proposal, the Forest Service and the Department 
of the Interior reviewed over 2,500 hazardous fuel reduction 
and fire rehabilitation projects to establish the basis for 
proposing these categorical exclusions.
    Of those preexisting 2,500 project records, 28 were 
documented with an environmental impact statement, 1,434 were 
documented with environmental assessments, and 1,097 were 
documented under existing categorical exclusions. In addition 
to reviewing the over 2,500 existing projects, the agencies 
also reviewed 153 peer reviewed scientific publications and 
analyzed the influence of forest structure on wildfire behavior 
and the severity of its effects.
    So you can see that the development of a categorical 
exclusion administratively is an exhaustive process that does 
involve a substantial amount of public involvement. 
Additionally, Congress has seen fit to legislatively create 
categorical exclusions. Recently enacted laws have established 
or directed the establishment of several categorical exclusions 
including the Energy Policy Act of 2005 with regard to certain 
oil and gas development projects and the Fiscal Year 2005 of 
Consolidated Appropriations Act with regard to the development 
of grazing lease renewals.
    In these cases and in others, Congress has stated 
legislatively that the effects of particular activities are 
insignificant and so that therefore a legislative categorical 
exclusion has been created. Even though Congress rendered the 
agency's responsibility largely ministerial in making those 
determinations, we still do a considerable amount of analysis 
on the projects covered under those legislative categorical 
exclusions.
    These binders are the analytical record for one grazing 
lease renewal under the legislative categorical exclusion. 
Under administrative categorical exclusions there would be more 
binders. Under an environmental assessment, there would be many 
more binders, and under an environmental impact statement there 
would be a record that would start on the floor and be about 
this high.
    Typically to do this costs us about $50,000 on the average. 
To do an environmental assessment costs us $200,000 on the 
average, and to do an environmental impact statement costs us a 
million dollars on the average. That, given the analysis in 
defining the categories covered by categorical exclusions, is I 
think ample justification in these times of budget needs and 
the need for quick action to reduce environmental risks to use 
the processes provided by NEPA wisely and fairly.
    Again, categorical exclusions are an integral part of the 
National Environmental Policy Act. They do not absolve the 
agency from doing scoping, cumulative effects analysis or 
public participation. Indeed the public participation 
requirements of the National Forest Management Act, which 
passed seven years after NEPA, were modeled after NEPA and made 
more specific with regard to what the Forest Service must do to 
involve the public however we organize our obligations to 
comply with NEPA. With that I would be happy to answer any 
questions you have after the panel is completed.
    [The prepared statement of Mr. Rey follows:]

   Statement of Mark Rey, Under Secretary for Natural Resources and 
              Environment, U.S. Department of Agriculture

    Mr. Chairman and members of the subcommittee, thank you for the 
opportunity to discuss Forest Service use of categorical exclusions. I 
am pleased to be here with you today.
    First, I would like to clarify that categorical exclusions (CEs) 
are a part of National Environmental Policy Act implementation, not an 
exclusion from NEPA, as provided for by the Council on Environmental 
Quality (CEQ) regulations. The purpose of a categorical exclusion is to 
eliminate the need for unnecessary paperwork and effort to assess the 
environmental effect of actions that normally do not warrant 
preparation of an Environmental Assessment (EA) or Environmental Impact 
Statement (EIS).
    As defined by the CEQ regulations, a categorical exclusion is a 
category of actions which experience has indicated will not have a 
significant environmental effect on the environment and can be 
categorically excluded from documentation in an Environmental 
Assessment or Environmental Impact Statement (40 CFR 1508.4). 
Categorical exclusions (CEs) are an integral part of the implementation 
of NEPA and promote the cost-effective use of agency NEPA related 
resources.
    The Forest Service implementation of categorical exclusions 
considers effects, including cumulative effects, which result from 
implementation of management actions. The important distinction for 
categorical exclusions is that the agency has determined, in 
establishing the categorical exclusion, that these effects for the 
category of actions are not significant, absent extraordinary 
circumstances. Using the terminology of the CEQ regulations, a 
categorically excluded project is exempt from the more lengthy analysis 
and documentation in an EA or EIS because it does not have significant 
effects. When using a categorical exclusion, federal agencies must 
still comply with all requirements of any applicable laws, regulations, 
and policies including NEPA.
Development of Categorical Exclusions
    Categorical exclusions promote the cost-effective use of agency 
NEPA-related resources. The CEQ, in 1983, encouraged agencies to create 
additional categorical exclusions because they are perceived to be less 
of a burden on agency resources than EAs or EISs (CEQ ``Guidance 
Regarding NEPA Regulations'', 48 FR 34263 (July 28, 1983)). The CEQ 
issued draft guidance in 2006, again encouraging agencies to designate 
more categorical exclusions (71 FR 54816 (2006)).
    When establishing implementing procedures, CEQ regulations direct 
federal agencies to identify those actions which experience has 
indicated will not have a significant environmental effect and 
categorically exclude them from documentation in an EA or EIS (40 CFR 
1507.3(b)(2)(ii) and CEQ ``Guidance Regarding NEPA Regulations'', 48 FR 
34263 (July 28, 1983)). Agencies have been encouraged to identify CEs 
using broadly defined criteria rather than developing lists of specific 
activities. By taking this approach, the CEQ believes agencies will 
have sufficient flexibility to make decisions on a project-by-project 
basis with full consideration of the issues and impacts that are unique 
to a specific project. CEQ has used an interagency work group to 
develop guidance to Federal agencies for establishing and for using 
categorical exclusions in meeting their responsibilities under NEPA. 71 
Fed. Reg. 5418 (September 19, 2006). CEQ is currently considering 
public comments on that draft guidance.
    To establish a categorical exclusion, various sources of 
information relevant to the proposed category of actions and its 
environmental effects may be used. Sources may include, but are not 
limited to: evaluation of implemented actions, impact demonstration 
projects, information from professional staff and expert opinion or 
scientific analyses, and others' experiences (benchmarking). The 
information used to support establishing a categorical exclusion 
demonstrates how the agency determined that the proposed category of 
actions does not typically result in significant environmental effects.
    Agencies must consult with and obtain a conformity determination 
from CEQ for compliance with NEPA and its implementing regulations 
before establishing a new categorical exclusion. CEQ regulations 
require federal agencies to publish any proposed categorical exclusion 
in the Federal Register and provide a period during which the public 
may submit comments on the proposal (40 CFR 1507.3(a)). The Forest 
Service provides for public notice and comment on every categorical 
exclusion it develops.
Administratively Created Categories
    In addition to the legislated CEs, the Forest Service has 
administratively created CEs for a variety of activities, including 
limited timber harvest, Healthy Forest Initiative, special uses and 
limited oil and gas exploration and development. All agency 
documentation for these categories was made available for notice and 
comment.
Limited Timber Harvest
    In 2003, the Forest Service administratively created new categories 
for limited timber harvest. The activities permitted under the category 
include limited timber harvest of live trees to maintain forest health 
and improve stand condition, salvage of dead and dying trees and 
sanitation harvests in response to ongoing insect and disease 
infestations. These categories were published as proposals for notice 
and comment in the Federal Register on January 8, 2003. The comment 
period was open for 60 days and approximately 16,700 comments were 
received.
    In examining the basis for proposing categorical exclusions for 
limited timber harvest, the Forest Service looked at two sets of data. 
In 2001, the Forest Service reviewed 154 timber harvest projects for 
which monitoring had validated the predicted environmental effects. The 
Forest Service also analyzed all categorically excluded timber harvest 
activities reported for 1998, the last year the timber harvest 
categorical exclusion was available to the Forest Service.
    Of the 154 projects reviewed for establishing these categories, 122 
were categorical exclusions documented with decision memos and 32 were 
documented with an environmental assessment. None of the 154 projects 
reviewed predicted significant effects on the human environment before 
the project was implemented. After implementation, on-site reviews of 
environmental effects of these projects were conducted by 
interdisciplinary teams of resource specialists. The interdisciplinary 
review teams' measurements and observations were documented in a 
database. These data remain available on the world wide web and may be 
viewed at http://www.fs.fed.us/emc/lth.
    The 1998 data analysis involved 306 categorically excluded timber 
harvest projects. The analysis was conducted to estimate to what extent 
the old timber harvest categorical exclusion was used and to determine 
average project size and harvest volume. (The last year that 
categorical exclusion could be used was 1998.) Each Forest Service 
Region provided acreage and volume information for each categorically 
excluded timber harvest conducted in 1998.
    The Forest Service found that the categories of actions defined 
under the limited timber harvest CE did not individually or 
cumulatively have significant effects on the human environment. The 
agency's finding is first predicated on data representing the expert 
judgment of the responsible officials who made the original findings 
and determinations for the 154 projects reviewed in 2001; the resource 
specialists who validated the predicted effects of the 154 reviewed 
activities after the projects were completed; and a belief that the 
profile of past timber harvest activities drawn from the 1998 data 
represents the agency's past practices and is indicative of the 
agency's future activities. The CEQ, upon review of this CE, found that 
the CE conformed with NEPA and its implementing regulations. The final 
guidance for the Limited Timber Harvest CEs was published on July 23, 
2003.
Healthy Forest Initiative CEs
    Under the Healthy Forests Initiative, the Forest Service and the 
Department of the Interior administratively created two new categorical 
exclusions in 2003 for fire management activities. The activities 
permitted under these categories include hazardous fuels reduction and 
post-fire rehabilitation. These categories were published as proposals 
for notice and comment in the Federal Register on December 16, 2002. 
The comment period was open for 45 days and nearly 39,000 comments were 
received.
    The Forest Service and the Department of the Interior reviewed over 
2,500 hazardous fuels reduction and fire rehabilitation projects to 
establish the basis for proposing these categorical exclusions. Of the 
2,559 project records reviewed, 28 were documented with environmental 
impact statements, 1,434 were documented with environmental 
assessments, and 1,097 were documented under existing categorical 
exclusions.
    In addition to reviewing 2,559 projects, the agencies also reviewed 
153 peer-reviewed scientific publications analyzing the influence of 
forest structure on wildfire behavior and the severity of its effects. 
This literature review found that forest thinning and prescribed 
burning have been long employed by land managers to maintain forest 
health and reduce wildfire risk. These benefits are supported by 
hundreds of scientific investigations and years of professional field 
experience. The review also found that thinning and prescribed burning, 
when conducted properly with safeguards, can reduce wildfire risk.
    Based on site-specific project-level analysis of environmental 
effects, post-activity validation of those effects, the synthesis of 
scientific publications, and the belief that the profile of projects 
reviewed represents the agencies' past practices and is indicative of 
the agencies' future activities, the agencies concluded that category 
of actions covered by the Healthy Forest Initiative CEs do not 
individually or cumulatively have a significant effect on the human 
environment. While confident in this conclusion, the agencies, 
nevertheless, have established acreage limitations for these categories 
and Forest Service Research and Development is continuing to study 
these relationships. The CEQ, upon review of this CE, found that the CE 
conformed with NEPA and its implementing regulations. The final 
guidance for the Healthy Forests Initiative CEs was published on July 
23, 2003.
Special Use Permit CE
    In 2004, the Forest Service administratively created a categorical 
exclusion for the issuance of a new special use authorization to 
replace an existing or expired special use authorization. This CE can 
only be used when the issuance of a new special use authorization is 
ministerial, that is when there are no changes to the authorized 
facilities or increase in the scope or intensity of authorized 
activities, and the applicant or holder is in full compliance with the 
terms and conditions of the special use authorization. This category 
was published as a proposal for notice and comment in the Federal 
Register on September 20, 2001. The comment period was open for 60 days 
and nearly 26,000 comments were received.
    To document rationale for the CE, the Agency's Special Uses Program 
approached its Regional Lands and Recreation Special Use Program 
Coordinators to obtain their input and feedback on why they believe the 
proposed categorical exclusion was appropriate. Moreover, the Forest 
Service wanted to more clearly validate its rationale based on the 
experience of these program experts.
    Responses indicated that the categorical exclusion would primarily 
be used to continue the authorization of a variety of ``static'' non-
ground disturbing facilities or activities, which based on their past 
experience, do not have significant environmental effects. Furthermore, 
the Forest Service determined that the evaluation for extraordinary 
circumstances would ensure appropriate use of the categorical 
exclusion.
    The program managers who provided written responses to questions 
posed at the annual special uses coordinators meeting represent over 
550 years of combined experience in Forest Service special uses 
administration. The NEPA specialists queried represent over 250 years 
of combined experience with NEPA policy and compliance. Based on over 
800 person-years of experience with special use authorizations and NEPA 
compliance; and considering the provisions of law, regulation, agency 
policy; and the effects of past actions; the activities authorized in 
decisions documented under the new categorical exclusion would not 
individually or cumulatively have a significant effect on the human 
environment. Accordingly, the Agency determined it appropriate to 
identify this category of action as excluded from requirements for 
documentation in an EA or EIS. The CEQ, upon review of this CE, found 
that the CE conformed with NEPA and its implementing regulations. The 
final guidance for the special use permit CEs was published on July 6, 
2004.
Oil and Gas Exploration CE
    The Forest Service has promulgated a new CE for limited oil and gas 
exploration and development activities in newly identified fields. This 
CE does not, and is not intended to, overlap or duplicate the 
activities contained in the CEs provided under Section 390 of the 
Energy Policy Act of 2005. It is complementary to Section 390 and taken 
in concert, this CE and the five statutory CEs provide the ability to 
analyze and approve a full range of small projects with non-significant 
environmental effects in existing and new fields or corridors. In 
approving this CE, the Forest Service followed a public notice and 
comment process. This category was published as a proposal for notice 
and comment in the Federal Register on December 13, 2005. The comment 
period was open for 60 days and 108 comments were received.
    In establishing this CE, the Forest Service reviewed the effects of 
every small oil and gas exploration and development project authorized 
over a five year period. Based on general program experience and the 
results of this review, the Forest Service determined that activities 
with limited road-building and utility-laying do not have significant 
effects and therefore would not require documentation in an 
environmental assessment or environmental impact statement. This CE 
covers decisions to approve a surface use plan of operations for oil 
and gas exploration and initial development activities, associated with 
or adjacent to a new oil and/or gas field or area, so long as the 
approval will not authorize activities in excess of any of the 
following: one mile of new road construction; one mile of road 
reconstruction; three miles of individual or co-located pipelines and/
or utilities disturbance; and four drill sites. The CEQ, upon review of 
this CE, found that the CE conformed with NEPA and its implementing 
regulations. Since approval of this new CE on February 15, 2007, the 
category has been used two times.
Legislated Categorical Exclusions
    Recently enacted laws have established or directed the 
establishment of several categorical exclusions. The Energy Policy Act 
of 2005 (P.L. 109-58) included statutory categorical exclusions for 
certain oil and gas development for projects disturbing fewer than five 
acres. The FY2005 Consolidated Appropriations Act (PL 108-447) included 
a categorical exclusion for decisions made to authorize grazing on an 
allotment. In addition, section 404 of the Healthy Forests Restoration 
Act (P.L. 108-148) of 2003 established a categorical exclusion for 
applied silvicultural assessments.
    Section 390 of the Energy Policy Act directs the Secretaries of the 
Interior and Agriculture to use five new categorical exclusions (CEs) 
for approving oil and gas activities conducted pursuant to the Mineral 
Leasing Act. The Section 390 CEs are limited to oil and gas activities 
in existing areas of development that have had previously approved 
development analyzed through a NEPA process. The new activities must 
either be within areas covered by a land use plan approved within the 
previous five years, or with surface disturbance limited to 5 acres and 
a previous project with a NEPA process decision. To date, the Forest 
Service has used the Section 390 CEs to approve about 300 projects.
    Section 339 of the FY2005 Consolidated Appropriations Act provided 
the Secretary of Agriculture with authority to categorically exclude 
decisions to authorize grazing and reissue grazing permits for 900 
grazing allotments nationally through FY2007. The CEs may be used if: 
(1) the decision continues current grazing management; (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. To date, the 
Forest Service has used this category to authorize grazing on 272 
allotments.
    Title IV, section 404 of the Healthy Forests Restoration Act 
provided the Secretaries of Agriculture and the Interior authority to 
carry out applied silvicultural assessments and research treatments on 
not more than 1,000 acres. The silvicultural assessments and research 
treatments allowed under this category are not to be adjacent and are 
subject to the extraordinary circumstances established by the agency. 
To date, the Forest Service has used this category to approve 7 
projects.
Use of Categorical Exclusions
    The procedure by which the Forest Service identifies important 
issues and determines the extent of analysis necessary for an informed 
decision on a proposed action is termed scoping (40 CFR 1506.6). 
Although the CEQ regulations require scoping for only EIS preparation, 
the Forest Service has broadened the concept to apply to all proposed 
actions, including those that would appear to be categorically excluded 
(FSH 1909.15 30.3(3)).
    In determining the scope of a proposed action, the responsible 
official is required to consider the action's environmental effects, 
including the direct, indirect and cumulative impacts (see 40 CFR 
1508.25). Section 30.3(3) of FSH 1909.15 adds this consideration before 
categorically excluding an action from documentation in an 
environmental assessment or an environmental impact statement:
        ``Scoping is required on all proposed actions, including those 
        that would appear to be categorically excluded. If the 
        responsible official determines, based on scoping, that it is 
        uncertain whether the proposed action may have a significant 
        effect on the environment, prepare an EA. If the responsible 
        official determines, based on scoping, that the proposed action 
        may have a significant environmental effect, prepare an EIS.''
    The Forest Service Manual provides direction to line officers that 
the degree of the potential direct, indirect, and cumulative effects on 
extraordinary circumstances must be considered when scoping a proposed 
action that might be categorically excluded.
    Scoping influences the appropriate level of documentation. After 
the nature of the proposed action is determined, preliminary issues and 
interested and affected agencies, organizations, and individuals are 
identified and the extent of existing documentation determined, the 
responsible official should have sufficient data to establish whether 
the proposed action can be categorically excluded from further 
documentation in an EIS or an EA.
    In addition to scoping, notice is given to the public of all 
upcoming proposals, including proposals that may be authorized with 
CEs, and those which may undergo analysis and documentation in an EA 
and EIS, through the use of a quarterly schedule of proposed actions. 
The purpose of the schedule is to give the public an early informal 
notice of projects of which they may have an interest (FSH 1909.15, 
07).
    In determining whether a categorical exclusion may be used, the 
Forest Service applies a two prong test: (1) whether the proposed 
action fits within an existing categorical exclusion, and (2) whether 
there are any extraordinary circumstances that would preclude the 
proposed action from qualifying to be categorically excluded (FSH 
1909.15, 30.3).
    In accordance with CEQ regulations, a federal agency's NEPA 
procedures for categorical exclusions must provide for extraordinary 
circumstances (40 CFR 1508.4). Extraordinary circumstances function to 
identify the atypical situation or environmental setting where an 
otherwise excluded action merits further analysis and documentation in 
an EA or EIS.
    The Forest Service NEPA procedures at FSH 1909.15, Chapter 30, list 
the extraordinary circumstances in which a normally excluded action may 
have a significant environmental effect. Extraordinary circumstances, 
listed as resource conditions in the agency's handbook, that should be 
considered in determining whether the proposed action warrants further 
analysis and documentation in an EA or an EIS are:
    a.  Federally listed threatened or endangered species or designated 
critical habitat, species proposed for Federal listing or proposed 
critical habitat, or Forest Service sensitive species.
    b.  Flood plains, wetlands, or municipal watersheds.
    c.  Congressionally designated areas, such as wilderness, 
wilderness study areas, or national recreation areas.
    d.  Inventoried roadless areas.
    e.  Research natural areas.
    f.  American Indians and Alaska Native religious or cultural sites.
    g.  Archaeological sites, or historic properties or areas.
    Section 30.3 of the Forest Service Handbook also states, ``The mere 
presence of one or more of these resource conditions does not preclude 
use of a categorical exclusion. It is the degree of the potential 
effect of a proposed action on these resource conditions that 
determines whether extraordinary circumstances exist.''
    Categorical exclusions are used to analyze a variety of projects 
implemented by the Forest Service. There are 15 administratively 
created and 7 legislated categories of actions for which a project or 
case file and decision memo are required and 15 categories for which a 
project or case file and decision memo are not required. The categories 
for which a project or case file and decision memo are required include 
trail construction and reconstruction, timber stand and/or wildlife 
habitat improvement, hazardous fuels reduction, limited timber harvest, 
authorization of grazing and approval of limited oil and gas 
activities.
    Currently, available data indicates that over the last two fiscal 
years the agency has used categorical exclusions for roughly 80% of its 
NEPA documentation (See Table 1). These percentages are similar to 
those documented by the Congressional Research Service for categorical 
exclusions used by the Federal Highway Administration in 2005.
[GRAPHIC] [TIFF OMITTED] 36475.001

    .epsThe Government Accountability Office (GAO) produced a report in 
2006 on the Forest Service's use of categorical exclusions for 
vegetation management projects for calendar years 2003 through 2005. 
The GAO examined the Forest Service's use of five specific types of 
categorical exclusions, environmental assessments, and environmental 
impact statements to approve vegetation management projects. The audit 
included 155 national forests, representing 509 ranger districts.
    During the study period categorical exclusions were used to approve 
72% of the studied projects (2,187 projects); Environmental assessments 
and environmental impact statements were used to approve 28% of the 
studied projects (831 projects). The majority of the studied projects 
were approved using categorical exclusions. The total acres treated 
under decisions analyzed and documented under CEs was slightly less 
than that treated under decisions analyzed and documented under 
environmental assessments and environmental impact statements.
    Categorical exclusions were used to approve 46% of the acreage 
within the studied projects (2.9 million acres); Environmental 
assessments and environmental impact statements were used to approve 
54% of the acreage within the studied projects (3.4 million acres).
    Recent court rulings on the Forest Service use of CEs have had a 
significant impact on a range of management activities throughout the 
country. Thousands of projects that we had found to have insignificant 
environmental impacts are now subject to formal notice, comment and 
appeal under the rules implementing the Appeals Reform Act, 36 CFR 215, 
lengthening the time to conduct such activities, increasing their costs 
and increasing the amount of information needed to document decisions.
    The Forest Service is the only federal agency with a statutory 
notice, comment, and appeal process applied to CEs. As a result of a 
2005 District Court ruling, that legislated process now applies to 
Forest Service categorical exclusions. On October 9, 2005, U.S. 
District Judge for the Eastern District of California James Singleton 
in Earth Island v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005); 
affirmed in part Earth Island Institute v. Ruthenbeck, No. 05-16975 
(9th Cir. amended opinion June 8, 2007) ruled that categorically 
excluded timber sales and ten other categorically excluded activities 
are subject to notice, comment, and appeal under the 36 CFR 215 rules. 
As a result of that ruling, items usually covered under categorical 
exclusions are now required to undergo notice, comment, and appeal; a 
process that can take over 135 days to complete. Prior to this court 
decision, categorical exclusions for vegetation management projects 
were not subject to this additional time.
    The procedural changes brought on by rulings in the Earth Island 
Institute case have had important consequences on our ability to 
conduct routine operations where there are no adverse effects to 
extraordinary circumstances. Being able to move swiftly to accomplish 
project work is essential to people whose livelihood is dependent upon 
time-sensitive decision making. In fact, the risk of not taking action 
may often exceed the environmental effects of project implementation.
    The following are examples of projects analyzed and documented 
using CEs prior to the Earth Island Institute case. These projects 
illustrate the utility of CEs to accomplish a variety of objectives on 
National Forests.
    In response to the devastation of Hurricane Katrina, District 
Rangers on the De Soto National Forest in Mississippi signed multiple 
decision memos to remove hazardous trees from along roadsides, trails, 
recreation areas, and boundary lines beginning in November 2005 and 
continuing through 2007. The decisions included identification of 
hazard trees by Forest Service employees and mitigation of hazards by 
felling or follow-up tree disposal methods, to minimize health and 
safety concerns for the public, as well as for the protection of both 
Forest Service and privately owned resources.
    Because Hurricane Katrina blew down trees and created heavy fuels 
buildup, the forest revisited existing decisions using categorical 
exclusions for prescribed fire and establishing fire control lines. 
This facilitated a swift response to the threat of catastrophic 
wildland fire and the unit's ability to quickly establish fuel breaks 
in areas near the wildland urban interface.
    Using categorical exclusions expedited the response to the 
catastrophic impacts of Hurricane Katrina. They were instrumental in 
providing for public safety and support of emergency response 
operations. Although most of these activities took place in the middle 
of a disaster, the Forest made every effort to keep the public informed 
throughout the recovery effort.
    Using categorical exclusions to analyze and document the 
environmental effects enabled the forest to open 1304 miles of roads 
for emergency support access and wildland fire suppression response. 
Over 750 miles of fuel breaks were established to protect adjacent high 
values at risk from a catastrophic wildland fire in the wildland urban 
interface. Hazardous fuels were removed from developed recreation and 
administrative sites. Developed recreation areas were reopened for 
public use within 10 months after Hurricane Katrina landed. To date, 
over 80 miles of trails are open for public use on the De Soto National 
Forest as a result of decisions documented using CEs.
    In southwest Utah, the rapidly growing community of New Harmony has 
expanded along the boundaries of the Dixie National Forest (Dixie NF), 
the Bureau of Land Management (BLM), and Zion National Park (Zion NP). 
Many homes and subdivisions now border the heavily vegetated foothills 
of the Pine Valley Mountains. Large wildland fires, such as the Sequoia 
Fire (8,100 acres) in 2002 and the Harmon Creek Fire (493 acres) in 
2000, and numerous small wildland fires have burned around New Harmony 
and several of the outlying subdivisions. In the summer of 2003, 
planning was initiated for the Dixie NF to extend and expand the fuel 
break that was started during the 2002 Sequoia Fire. This would 
strengthen the existing fuel break and link it to the Ash Creek Project 
on BLM lands. The Dixie National Forest used the newly released Healthy 
Forests Initiative Categorical Exclusion. Scoping letters were mailed 
to 559 members of the public, government entities and interested 
organizations. A decision memo was signed on the project in 2003 and 
the fuels treatments were completed in 2004. On June 25, 2005, at 1:49 
p.m., lightning ignited the Blue Spring fire south of New Harmony. It 
grew over 5 days to 12,286 acres, ending in the backyards of Harmony 
Heights. Dixie National Forest and BLM fuel treatments influenced the 
movement of the fire, allowing firefighters to protect homes from 
destruction. While the Blue Spring fire was by no means the largest 
fire in southern Utah in 2005, it was significant in that the fuels 
projects were dominant factors in the rate and direction of spread. 
Homes were preserved because of the fuel breaks created under these 
categorical exclusions.
Summary
    In summary, CEs are part of full compliance with the National 
Environmental Policy Act (NEPA). Categorical exclusions are not an 
exclusion from NEPA. The CEQ regulations (40 CFR 1500 et seq.) for 
implementing NEPA allowed agencies to include categorical exclusions in 
agency NEPA procedures. Agencies are to reduce excessive paperwork and 
delay by using categorical exclusions to define categories of actions 
which do not individually or cumulatively have a significant effect on 
the human environment and which are therefore exempt from requirements 
to prepare an EA or EIS (Sec. 1500.4(p)) and (Sec. 1500.5(k)).
    The Department considers categorical exclusions an integral tool 
for NEPA compliance used to meet its mission of ``Caring for the Land 
and Serving People.'' I would be happy to answer any questions you may 
have.
                                 ______
                                 
    Mr. Grijalva. Thank you, Mr. Under Secretary. Let me turn 
now to Robin Nazzaro, Director of Natural Resources and 
Environment, Government Accountability Office. Ms. Nazzaro.

 STATEMENT OF ROBIN NAZZARO, DIRECTOR OF NATURAL RESOURCES AND 
       ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Ms. Nazzaro. Thank you, Mr. Chairman, and members of the 
Subcommittee. I am pleased to be here today to discuss the 
Forest Service's use of categorical exclusions to approve 
vegetation management projects. The extent to which the Forest 
Service approves vegetation management projects using 
categorical exclusions has been controversial. Critics assert 
that the Forest Service's use of them is an attempt to 
circumvent NEPA by precluding the need to perform an EA or an 
EIS. In contrast, supporters say that current analysis and 
documentation requirements for an EA or EIS under NEPA are too 
burdensome and that categorical exclusions allow the agency to 
more efficiently implement vegetation management projects.
    Prior to our report that was performed for this committee 
and released last year, little was known, however, about the 
Forest Service's use of vegetation management projects under 
categorical exclusions because prior to 2005, the agency did 
not maintain nationwide data on their use. My testimony today 
summarizes the findings of that report from October 2006, which 
discusses calendar years 2003 through 2005, how many vegetation 
management projects the Forest Service approved, including 
those approved using categorical exclusions, which categorical 
exclusions the agency used to approve projects and, if 
categorical exclusions are not being used in any Forest Service 
ranger district, why.
    To answer these questions we surveyed Forest Service 
officials at all 155 national forests representing 509 ranger 
districts. In summary, for calendar years 2003 through 2005, 
the Forest Service approved 3,018 vegetation management 
projects to treat about 6.3 million acres. Most of the 
projects, about 72 percent, were approved using categorical 
exclusions to treat slightly less than half of the acres, 2.9 
million, while about 28 percent were approved using EA or EIS 
to treat the remaining 3.4 million acres.
    Even though more projects were approved using categorical 
exclusions than using an EA or EIS, the total treatment acreage 
was about the same because the relative size of projects 
approved using categorical exclusions was much smaller than 
those approved using an EA or an EIS. According to Forest 
Service officials, the number and size of vegetation management 
projects and the type of environmental analysis used varied 
depending on the forest size, ecology and location.
    Of the nearly 2,200 vegetation management projects approved 
using categorical exclusions, half were approved using the 
categorical exclusion for improving timber stands or wildlife 
habitat. For the remaining projects, the Service primarily used 
the exclusion for reducing hazardous fuels, followed by 
salvaging dead or dying trees, conducting limited timber 
harvests of live trees, and removing trees to control the 
spread of insects or disease.
    While the categorical exclusion for timber stand or 
wildlife improvement was the most frequently used and included 
the most treatment acres, about 2.4 million of the 2.9 million 
acres included in all projects using categorical exclusions, 92 
percent of the projects approved using this exclusion were 
smaller than 5,000 acres.
    Of the 509 ranger districts about 11 percent had not used 
any of the five vegetation management categorical exclusions 
during the three-year period of our study. The percentage of 
ranger districts not using a specific categorical exclusion 
varied by type of categorical exclusion however. Just over 90 
percent of the 509 ranger districts had not used the exclusion 
for removal of trees to control the spread of insects or 
disease and about 32 percent had not used the exclusion to 
improve timber stand or wildlife habitat.
    Reasons cited for not using these exclusions varied by the 
type of exclusion and ranger district. For example, not all 
ranger districts have used the exclusion for removing insect 
and disease infested trees because they did not have a 
sufficient number of such trees. Because four of the five 
categorical exclusions have only been available since 2003, it 
is premature to draw any conclusions about trends in the Forest 
Service's use of them to improve vegetation management 
projects.
    More information over a longer period of time will be 
useful in addressing some of the controversial issues such as 
whether categorical exclusions individually or cumulatively 
have any significant effect on the environment or whether their 
use is enabling more timely Forest Service vegetation 
management. Thank you, Mr. Chairman. This concludes my 
statement, and I would be pleased to answer any questions that 
you or other members of the Committee may have.
    [The prepared statement of Ms. Nazzaro follows:]

    Statement of Robin M. Nazzaro, Director, Natural Resources and 
           Environment, U.S. Government Accountability Office

    Mr. Chairman and Members of the Subcommittee:
    I am pleased to be here today to discuss the Forest Service's use 
of categorical exclusions to approve vegetation management projects. 
1 As you know, under the National Environmental Policy Act 
of 1969 (NEPA), agencies evaluate the likely environmental effects of 
proposed projects using an environmental assessment (EA) or a more 
detailed environmental impact statement (EIS) if the projects are 
likely to significantly affect the environment. However, if an agency 
determines that the activities of a proposed project fall within a 
category of activities that it has already determined have no 
significant environmental impact, it may approve the project without an 
EA or EIS--instead granting the project a categorical exclusion. As of 
2003, the Forest Service had established one categorical exclusion for 
vegetation management activities that covered certain activities 
intended to improve timber stands or wildlife habitat. In 2003, it 
added four more categorical exclusions to (1) reduce hazardous fuels, 
(2) allow the limited harvest of live trees, (3) salvage dead or dying 
trees, and (4) remove trees to control the spread of insects or 
disease.
---------------------------------------------------------------------------
    \1\ Vegetation management projects may include, but are not limited 
to, activities such as using prescribed burning, timber harvests, or 
herbicides; or thinning trees, grass, weeds, or brush. Projects that 
include these types of activities are intended to, among other things, 
maintain healthy ecosystems, reduce the risk of catastrophic wildland 
fire, and manage the nation's forests for multiple uses, such as 
timber, recreation, and watershed management.
---------------------------------------------------------------------------
    The extent to which the Forest Service approves vegetation 
management projects using categorical exclusions has been 
controversial. Critics assert that the Forest Service's use of them is 
an attempt to circumvent NEPA by precluding the need to perform an EA 
or EIS. In contrast, supporters state that current analysis and 
documentation requirements for an EA or EIS under NEPA are too 
burdensome and that the categorical exclusions allow the agency to more 
efficiently implement vegetation management projects. Little is known 
about the Forest Service's use of the vegetation management categorical 
exclusions because, prior to 2005, the agency did not maintain 
nationwide data on their use.
    My testimony today summarizes the findings of our October 2006 
report that discusses for calendar years 2003 through 2005, how many 
vegetation management projects the Forest Service approved, including 
how many were approved using categorical exclusions; which categorical 
exclusions the agency used; and the primary reasons why Forest Service 
ranger districts are not using the categorical exclusions for 
vegetation management. 2 This report is based on information 
we collected from all 155 national forests representing 509 ranger 
districts that manage National Forest System lands. It is also based on 
interviews we conducted at 23 ranger districts at 12 national forest 
units.
---------------------------------------------------------------------------
    \2\ GAO, Forest Service: Use of Categorical Exclusions for 
Vegetation Management Projects, Calendar Years 2003 through 2005, GAO-
07-99 (Washington, D.C.: Oct. 10, 2006).
---------------------------------------------------------------------------
Summary
    In summary, from calendar years 2003 through 2005, the Forest 
Service approved 3,018 vegetation management projects to treat about 
6.3 million acres. Most of these projects--about 72 percent--were 
approved using categorical exclusions to treat slightly less than half 
of the acres--2.9 million--while about 28 percent were approved using 
an EA or EIS to treat the remaining 3.4 million acres. Even though more 
projects were approved using categorical exclusions than using an EA or 
EIS, the total treatment acreage was about the same because the 
relative size of projects approved using categorical exclusions was 
much smaller than those approved using an EA or EIS. According to 
Forest Service officials, the number and size of vegetation management 
projects and type of environmental analysis used varied depending upon 
the forest's size, ecology, and location.
    Of the nearly 2,200 vegetation management projects approved using 
categorical exclusions during calendar years 2003 through 2005, the 
Forest Service most frequently used the categorical exclusion for 
improving timber stands or wildlife habitat. This categorical exclusion 
accounted for half of the projects approved using the five vegetation 
management categorical exclusions. For the remaining projects, the 
Forest Service primarily used the categorical exclusion for reducing 
hazardous fuels, followed by salvaging dead or dying trees, conducting 
limited timber harvests of live trees, and removing trees to control 
the spread of insects or disease. While the categorical exclusion for 
timber stand or wildlife habitat improvement was the most frequently 
used and included the most treatment acres--about 2.4 million of the 
2.9 million acres included in all projects approved using categorical 
exclusions--92 percent of the projects approved using this categorical 
exclusion were smaller than 5,000 acres.
    Of the 509 ranger districts, about 11 percent had not used any of 
the five vegetation management categorical exclusions during the 3-year 
period. The percentage of ranger districts not using a specific 
categorical exclusion varied by type of categorical exclusion, however. 
Just over 90 percent of the 509 ranger districts had not used the 
categorical exclusion for the removal of trees to control the spread of 
insects or disease and about 32 percent had not used the categorical 
exclusion to improve timber stands or wildlife habitat. Reasons cited 
for not using a categorical exclusion varied by type of categorical 
exclusion and ranger district. For example, not all ranger districts 
had used the categorical exclusion for removing insect- or disease-
infested trees because they did not have these types of trees or 
because projects for removing such trees had already been or were to be 
included in an EA or EIS.
Background
    The Forest Service is responsible for managing over 192 million 
acres of public lands--about 30 percent of all federal lands in the 
United States. In carrying out its responsibilities, the Forest Service 
traditionally has administered its programs through 9 regional offices, 
155 national forests, 20 national grasslands, and several hundred 
ranger districts.
    Under NEPA, agencies such as the Forest Service generally evaluate 
the likely effects of projects they propose using a relatively brief EA 
or, if the action would be likely to significantly affect the 
environment, a more detailed EIS. However, an agency may generally 
exclude categories of actions from the requirement to prepare an EA or 
EIS if it has determined that the actions do not individually or 
cumulatively have a significant impact on the environment--these 
categories are known as categorical exclusions. The agency may then 
approve projects fitting within the relevant categories using these 
predetermined categorical exclusions rather than carrying out project-
specific environmental analyses. For a project to be approved using a 
categorical exclusion, the agency must determine whether any 
extraordinary circumstances exist in which a normally excluded action 
may have a significant effect. 3,4
---------------------------------------------------------------------------
    \3\ Resource conditions that should be considered in determining 
whether extraordinary circumstances exist include, among other things, 
the existence of federally listed threatened or endangered species or 
designated critical habitat; congressionally designated wilderness 
areas; inventoried roadless areas; and archaeological sites or historic 
properties. The mere presence of one or more of these conditions does 
not preclude the use of a categorical exclusion. Rather, it is the 
degree of the potential effect of the proposed action on these 
conditions that determines whether extraordinary circumstances exist.
    \4\ The Forest Service may decide to prepare an EA for a project 
that could qualify for approval using a categorical exclusion.
---------------------------------------------------------------------------
    As of 2003, the Forest Service had one categorical exclusion 
available for use in approving certain vegetation management 
activities--timber stand or wildlife habitat improvement--that has no 
acreage limitation. 5 In 2003, after reviewing and 
evaluating data on the environmental effects of vegetation management 
projects that had been carried out by the national forests, the Forest 
Service added four new vegetation management categorical exclusions, 
each of which has acreage limitations: (1) hazardous fuels reduction 
activities using prescribed fire, not to exceed 4,500 acres, and 
mechanical methods such as thinning, not to exceed 1,000 acres; (2) 
limited timber harvests of live trees, not to exceed 70 acres; (3) 
salvage of dead or dying trees, not to exceed 250 acres; and (4) 
removal of trees to control insects and disease, not to exceed 250 
acres. 6 Appendix I provides more detailed information on 
the Forest Service's five vegetation management categorical exclusions.
---------------------------------------------------------------------------
    \5\ In addition to the timber stand and wildlife habitat 
improvement categorical exclusion, the Forest Service previously had a 
categorical exclusion for timber sales of 250,000 board-feet or less of 
merchantable wood products or 1 million board-feet of salvage. In 1999, 
a federal district court issued a nationwide injunction barring use of 
this categorical exclusion, holding that the agency did not provide any 
rationale for why the specified magnitude of timber sales would not 
have a significant effect on the environment. Heartwood v. U.S. Forest 
Service, 73 F. Supp. 2d 962,975 (S.D. Ill. 1999), aff'd on other 
grounds, 230 F. 3d 947 (7th Cir. 2000).
    \6\ 68 Fed. Reg. 33814 (June 5, 2003) and 68 Fed. Reg. 44598 (July 
29, 2003).
---------------------------------------------------------------------------
Categorical Exclusions Were Used to Approve the Majority of Vegetation 
        Management Projects and about Half of the Total Treatment Acres
    For calendar years 2003 through 2005, the Forest Service approved 
about 3,000 vegetation management projects to treat about 6.3 million 
acres. Of these projects, the Forest Service approved about 70 percent 
using categorical exclusions and the remaining projects using an EA or 
EIS. Although a majority of projects were approved using categorical 
exclusions, these projects accounted for slightly less than half of the 
total treatment acres because the size of these projects was much 
smaller than those approved using an EA or EIS. Table 1 provides this 
information in greater detail.
[GRAPHIC] [TIFF OMITTED] 36475.002

    .epsOur analysis of the project data also revealed that the total 
number of vegetation management projects approved, including those 
approved using categorical exclusions, varied over the 3-year period, 
while the number of treatment acres did not. As can be seen in figure 
1, the number of projects approved using an EA or EIS varied little 
over the 3-year period; however, the number of projects approved using 
categorical exclusions increased from January 2003 through December 
2004--primarily because of an increased use of the four new categorical 
exclusions--and then decreased from January through December 2005. 
Forest Service officials said that any number of factors could have 
influenced the increase and subsequent decrease in the use of 
categorical exclusions over the 3-year period. However, given the 
relatively short period of time during which the four new categorical 
exclusions were in use, these officials said that it was not possible 
to speculate why the decrease had occurred.
[GRAPHIC] [TIFF OMITTED] 36475.003


    .epsIn contrast, as can be seen in figure 2, an analysis of the 
total treatment acres included in projects approved using an EA, EIS, 
or a categorical exclusion did not reveal any notable change over the 
3-year period.
[GRAPHIC] [TIFF OMITTED] 36475.004

    .epsWe also found that the number of vegetation management projects 
approved, including those approved using categorical exclusions, varied 
by Forest Service region and forest. For example, of all vegetation 
management projects approved nationwide, Region 8--the Southern 
Region--accounted for about 29 percent, of which just over two-thirds 
were approved using categorical exclusions. In contrast, Region 10--
Alaska--accounted for about 2 percent of all vegetation management 
projects, about 60 percent of which were approved using categorical 
exclusions. According to several Forest Service officials, the number 
of vegetation management projects approved and the type of 
environmental analysis used in approving them depended on the forest's 
size, ecology, and location, as the following illustrates:
    At the 1.8 million-acre Ouachita National Forest, a pine and 
hickory forest in western Arkansas and southeastern Oklahoma, 163 
projects were approved--119 using categorical exclusions. Forest 
officials said the forest has a very active vegetation management 
program because, among other things, the types of trees located on the 
forest tend to regenerate quickly and are an excellent product for 
milling. In addition, a large timber harvest infrastructure is located 
nearby, which helps ensure that timber sale contracts can be readily 
competed and awarded.
    At the 28,000-acre Caribbean National Forest, a humid tropical 
forest in Puerto Rico, no vegetation management projects were approved. 
According to forest officials, the forest does not have an active 
vegetation management program because the forest focuses more on 
developing recreational sites and wildlife habitat and because the 
island has no commercial infrastructure to support harvesting or 
milling timber.
    Appendix II provides detailed information on the number of 
vegetation management projects and acres Forest Service regions 
approved using different types of environmental analysis, for calendar 
years 2003 through 2005.
The Categorical Exclusion for Improving Timber Stands or Wildlife 
        Habitat Was the Most Frequently Used
    Of the almost 2,200 projects approved using categorical exclusions 
over the 3-year period, the Forest Service most frequently used the 
vegetation management categorical exclusion or wildlife habitat; this 
categorical exclusion was used on half of the projects to treat about 
2.4 million acres. As shown in table 2, for the remaining projects, the 
Forest Service primarily used the categorical exclusion for reducing 
hazardous fuels, followed by salvaging dead or dying trees, conducting 
limited timber harvests of live trees, and removal of trees to control 
the spread of insects or disease; in all, these categorical exclusions 
were used to approve treatments on about a half-million acres. In 
addition, the size of approved projects varied depending on the 
categorical exclusion and any associated acreage limitation.
[GRAPHIC] [TIFF OMITTED] 36475.005

    .epsAccording to Forest Service officials, a number of factors 
influenced the reasons that the categorical exclusion for timber stand 
or wildlife habitat improvement was used most frequently for the most 
treatment acreage. For example, officials at the George Washington and 
Jefferson National Forests and the Monongahela National Forest said 
they relied on this categorical exclusion more than others because the 
use of this category was consistent with their forest management plans, 
which dictate the types of activities that may take place on their 
forests. Santa Fe National Forest officials said that the forest has 
relied heavily on this categorical exclusion because it does not have 
an acreage limitation.
    We also analyzed the categorical exclusion for timber stand or 
wildlife habitat improvement to determine whether its lack of size 
limitation resulted in projects that are larger than those undertaken 
using the other four exclusions that have acreage limitations. We found 
that almost 92 percent of the 1,054 projects 7 approved 
using the categorical exclusion for timber stand or wildlife habitat 
improvement were smaller than 5,000 acres--which is the approximate 
size limitation of the categorical exclusion for hazardous fuels 
reduction, the largest size limitation of the four more recent 
categorical exclusions.
---------------------------------------------------------------------------
    \7\ Of the 1,094 projects approved using the categorical exclusion 
to improve timber stands or wildlife habitat, 40 had no acreage or an 
unknown acreage, according to the Forest Service.
---------------------------------------------------------------------------
Primary Reasons for Not Using Vegetation Management Categorical 
        Exclusions Varied Depending on the Ranger District and Type of 
        Categorical Exclusion
    Eleven percent of the 509 ranger districts had not used any of the 
five vegetation management categorical exclusions during the 3-year 
period. The percentage of ranger districts that did not use specific 
categorical exclusions ranged widely, from 91 percent not using the 
category for the removal of trees to control the spread of insects or 
disease, to 32 percent not using the category for timber stand or 
wildlife habitat improvement. Ranger districts-- reasons for not using 
a specific categorical exclusion also varied. The primary reason cited 
for not using the categorical exclusion for the removal of trees to 
control the spread of insects or disease was that their forests did not 
have insect- or disease-infested trees and that projects that could 
have fit the category had already been or were to be included in an EA 
or EIS. Similarly, the primary reasons cited for not using the 
categorical exclusion for timber stand or wildlife habitat improvement 
were that projects that could have fit the category had already been or 
were to be included in an EA or EIS and no projects were undertaken to 
improve stands or wildlife habitat. Appendix III provides the number of 
ranger districts not using one of the five vegetation management 
categorical exclusions and primary reasons cited for not doing so.
    Ranger district officials we interviewed offered some reasons for 
why specific vegetation management categorical exclusions may not be 
used. For example,
    The Tonasket Ranger District, located in north-central Washington 
State in the Okanogan-Wenatchee National Forests, had not used the 
categorical exclusion for the removal of trees to control the spread of 
insects or disease because, according to district officials, the 250-
acre size limitation of the categorical exclusion constrains its use. 
The district has huge areas infested with beetles and mistletoe and, to 
be effective, any salvage would have to cover a much larger area.
    The Canyon Lakes Ranger District, located in north-central Colorado 
in the Arapaho-Roosevelt National Forests, had not used the categorical 
exclusion for timber stand or wildland habitat improvement. According 
to ranger district officials, they have not used this categorical 
exclusion because project planning typically consists of an EA or EIS. 
These types of environmental analysis allow the district to better 
evaluate multiple activities over large geographic areas using a single 
analysis--which is more efficient than approving different projects 
using several vegetation management categorical exclusions.
Concluding Comments
    Because four of the five categorical exclusions have only been 
available since 2003, it is premature to draw any conclusions about 
trends in the Forest Service's use of them to approve vegetation 
management projects. More information over a longer period of time will 
be useful in addressing some of the controversial issues, such as 
whether categorical exclusions, individually or cumulatively, have any 
significant effect on the environment or whether their use is enabling 
more timely Forest Service vegetation management.
    Mr. Chairman, this concludes my prepared statement. I would be 
pleased to answer any questions that you or other Members of the 
Subcommittee may have at this time.
GAO Contacts and Staff Acknowledgements
    For further information about this testimony, please contact me at 
(202) 512-3841 or [email protected]. Contact points for our Offices of 
Congressional Relations and Public Affairs may be found on the last 
page of this statement. David P. Bixler, Assistant Director; Rich 
Johnson; Marcia Brouns McWreath; Matthew Reinhart; and Carol Herrnstadt 
Shulman made key contributions to this statement.
[GRAPHIC] [TIFF OMITTED] 36475.006

.eps[GRAPHIC] [TIFF OMITTED] 36475.007


.eps[GRAPHIC] [TIFF OMITTED] 36475.008

.eps[GRAPHIC] [TIFF OMITTED] 36475.009

.eps[GRAPHIC] [TIFF OMITTED] 36475.010

                                 .eps__
                                 
    Mr. Grijalva. Thank you very much. Let me now turn to 
Deputy Attorney General, State of California, Mr. Harrison 
Pollak. Sir.

STATEMENT OF HARRISON POLLAK, DEPUTY ATTORNEY GENERAL, STATE OF 
                           CALIFORNIA

    Mr. Pollak. Thank you, Chairman Grijalva, Ranking Member 
Bishop and the Subcommittee members for this opportunity to 
testify. My name is Harrison Pollak, and I am here as a 
representative of California Attorney General Gerry Brown. The 
Attorney General is deeply concerned over the Forest Service's 
increased use of so-called management by exclusion. That is, 
its reliance on categorical exclusions to exempt forest 
management decisions of every size and scope from environmental 
review.
    There are 19 national forests in California that cover 
roughly 20 percent of the total land area in the state. These 
forests are of tremendous economic, recreational and 
environmental value, and decisions about how to manage them 
have far reaching implications. Because of this, for more than 
20 years the Attorney General has participated extensively in 
the forest management process to protect forest resources.
    A consistent theme of our work in this area has been the 
importance of providing the public with meaningful 
opportunities to participate in forest planning which the 
indiscriminate use of categorical exclusions threatens. Now for 
purposes of this discussion there are really two types of 
categorical exclusion. There are the project-level categorical 
exclusions that apply to individual discrete projects, and then 
there is the new program level categorical exclusion that would 
apply to developing, revising and amending land and resource 
management plans or LRMPs under the National Forest Management 
Act or NFMA.
    This program level categorical exclusion will take effect 
if and when the Bush Administration's revamped 2005 NFMA 
regulations go into effect. They have currently been enjoined 
by a Court in California but the Forest Service intends to go 
forward with issuing them once it addresses the issues the 
Court identified.
    Let me stop for a moment here, however, to point out that 
we understand that categorical exclusions play a crucial role 
in the Forest Service's operations. For instance, they can be 
used to promptly respond to emergencies and to imminent hazards 
when necessary, which everybody agrees is of the utmost 
importance. Unfortunately, the Forest Service is abusing this 
tool by applying categorical exclusions to increasing numbers 
of project-level approvals and now by laying the groundwork to 
fast track program level decisions using the new categorical 
exclusion.
    This latter development is especially troubling. The Forest 
Service claims that under the new NFMA rules, LRMPs will have 
no significant environmental impacts because the LRMPs are 
merely strategic and aspirational but the Forest Service cannot 
shirk its obligation to engage in meaningful project-level 
planning by pretending that LRMPs make no difference. They do 
make a difference, and they must be treated as such under NFMA 
and under NEPA.
    The Forest Service's increasing reliance on categorical 
exclusions at the program and the project level not only is 
illegal in many cases, it often will lead to poor planning 
decisions and to increased controversy over decisions and how 
they are implemented. I want to give two examples of how public 
participation through the NEPA process can play an important 
role and constructive role in forest planning.
    The first example is the Sequoia National Forest at the 
southern tip of the Sierra Nevada mountain range. In 1988, the 
Forest Service completed the LRMP for the Sequoia National 
Forest, and as was the practice then, it issued a final 
environmental impact statement. There were comments, including 
by the Attorney General, and an administrative appeal which 
resulted in a mediated settlement agreement that identified 
groves of old growth sequoia trees for additional protections.
    The first President Bush issued a proclamation to protect 
these groves, and in 2000 President Clinton further protected 
them by establishing the Giant Sequoia National Monument. 
Unfortunately, the present administration is trying to undo 
this tremendous accomplishment. But my point is this, NEPA and 
the Forest Service's commitment at that time to address public 
concerns through the planning process gave us the spectacular 
national treasure that the Sequoia National Monument has 
become.
    The second example of how the Forest Service and the public 
stand to gain from public participation at the planning level 
relates to a subject that is on all of our minds these days, 
global warming. There is increasing evidence of a connection 
between forests and climate change. Before long the Forest 
Service will have to consider the implications of global 
warming on forest management and of forest management on global 
warming.
    Public participation in the planning process is one way to 
help the Forest Service do this. Indeed there is a perfect 
opportunity to consider the implications of global warming at 
the program level of forest planning instead of reserving this 
complex issue for consideration with each individual project. 
In conclusion, forest planning under NFMA and especially 
program level planning through the development, revision and 
amendment of LRMPs is precisely the type of government action 
for which NEPA is best suited.
    NEPA provides a mechanism for consideration of the likely 
environmental impacts of far reaching decisions early in the 
planning process. While the Attorney General understands that 
the Forest Service will and indeed should continue to use 
categorical exclusions where appropriate, the Attorney General 
also urges the Forest Service to embrace environmental review 
under NEPA instead of continuing to try to avoid it.
    Returning to the title of this hearing, management by 
exclusion is a poor management strategy. Thank you, and I am 
prepared to answer any questions.
    [The prepared statement of Mr. Pollak follows:]

Statement of Harrison M. Pollak, Deputy Attorney General, on behalf of 
            California Attorney General Edmund G. Brown, Jr.

I. Introduction
    Thank you Chairman Grijalva, Ranking Member Bishop, and the 
Committee Members for this opportunity to testify before the National 
Parks, Forests and Public Lands Subcommittee at today's hearing, 
entitled ``Management by Exclusion: The Forest Service Use of 
Categorical Exclusions from NEPA.'' My name is Harrison Pollak, and I 
am a Deputy Attorney General in the Office of the California Attorney 
General. I am here as a representative of California Attorney General 
Edmund G. Brown, Jr. I am because the Attorney General is deeply 
concerned over the Forest Service's increased use of so-called 
``Management by Exclusion'' that is, its reliance on categorical 
exclusions to exempt forest management decisions of every size and 
scope from environmental review.
    My testimony today will focus on three points. First, I will 
describe the immense importance of national forests to the People of 
the great State of California, and why the California Attorney General 
has taken a profound interest in national forest planning issues for 
more than two decades. Second, I will explain why it is the Attorney 
General's view that, while categorical exclusions are an important tool 
for some aspects of forest planning, such as certain fire suppression 
activities, the Forest Service has gone too far. Its broad use of 
categorical exclusions to preclude meaningful public participation at 
all levels of forest planning violates the letter and the spirit of the 
National Environmental Policy Act (``NEPA'') and the National Forest 
Management Act (``NFMA''). Finally, I will argue that eliminating the 
type of public participation from the planning process that NEPA 
guarantees will lead to poor planning and to increased controversy. I 
will give two examples where public participation has made an important 
difference in the past and where it can make a difference in the 
future.
II. National Forests in California and the Attorney General's 
        Involvement in Forest Planning
    It is hard to overstate the importance of national forests and how 
they are managed to the People of California. The 19 national forests 
in California cover roughly 20 million acres of land, or approximately 
20 percent of the total land area in California. National forests 
supply well over half of our water resources, and they form the 
watershed of most major aqueducts and more than 2,400 reservoirs 
throughout the State. National forests in California provide 
recreational opportunities for hiking, camping, motorized travel, 
hunting, skiing, and much more. More than 600 of the 800 species of 
fish and wildlife in California inhabit the national forests, and 
national forests are home to nearly 4,000 of the 6,500 native plants in 
California.
    The forests are of tremendous economic, recreational, and 
environmental value to the State. In addition, decisions about how to 
manage forests and other federal lands, of which there are 
approximately 50 million acres in California, have effects far beyond 
the forest boundaries. Water supplies for agriculture, industry, and 
human consumption, water and air quality, fisheries, fire hazards, are 
just a few examples of where forest management decisions make a 
difference on the lives of the citizens of California and beyond.
    Because of this, for more than twenty years the California Attorney 
General has participated extensively in the forest management process 
for national forests located in California. Our office has commented 
on, and where necessary, challenged in court, forest plans and projects 
in the Plumas, Sequoia, Tahoe, Modoc, Shasta-Trinity, and Lassen 
National Forests, to name a few, in order to protect forest resources. 
We also have taken a keen interest in broader planning issues. For 
instance, most recently the California Attorney General commented on, 
and then successfully challenged in court, the Forest Service's attempt 
to rewrite and dilute the NFMA regulations without complying with the 
Administrative Procedures Act (``APA''), NEPA, or the Endangered 
Species Act (``ESA''). Citizens for Better Forestry v. United States 
Department of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007). And 
we presently are awaiting a ruling on a challenge to the Bush 
administration's attempt to replace the 2001 Sierra Nevada Framework 
Plan--which was the culmination of a decade-long consensus-building 
process to develop an overarching management plan for the 11 national 
forests in the Sierra Nevada--with its own version of the document that 
guts basic wildlife, habitat and riparian protections, increases green 
timber harvesting by more than four-fold, and authorizes fragmentation 
of wildlife corridors that were a centerpiece of the 2001 Framework. 
People v. United States Department of Agriculture, No. 05-CV-0211 DFL/
GGH (N.D. Cal.).
    A consistent theme of the Attorney General's work in this area has 
been the paramount importance of providing the public with an 
opportunity to participate in the forest planning process. Eliminating 
such opportunities, or rendering them meaningless by insulating 
officials from having to respond meaningfully to issues that the public 
identifies, deprives decision makers of critical information about the 
scientific and social effects of management choices, and leads to 
decisions that are contrary to the best science and that do not reflect 
an appropriate balancing of interests. And as the actions mentioned 
above demonstrate, the Forest Service's repeated attempts to eliminate 
the public from the planning process lead to increased controversy and 
to delays in the planning process.
    This is not what Congress intended when it enacted NFMA in 1976, to 
guarantee that ``land management planning and the formulation of 
regulations to govern the planning process shall be accomplished with 
improved opportunity for public participation at all levels.'' S. Rep. 
No. 94-893, 94th Cong., 2d Sess, reprinted in 1976 U.S.C.C.A.N. 6693 
(1976). Nor is it consistent with the primary purposes of NEPA, which 
are ``to allow for informed public participation and informed decision 
making.'' Earth Island Inst. v. United States Forest Service, 442 F.3d 
1147, 1160 (9th Cir. 2006). That is why I am here today, on behalf of 
Attorney General Brown, to testify against the Forest Service's 
indiscriminate use of categorical exclusions in the forest planning 
process.
III. The Legal Argument Against Management by Exclusion
A. The Forest Service's Issuance of New Project Categorical Exclusions 
        Beginning in 2003
    It is beyond dispute that categorical exclusions from NEPA play a 
crucial role in the Forest Service's ability to manage the 192 million 
acres of federal lands in the United States that it oversees. Every 
year the Forest Service makes thousands upon thousands of routine 
decisions that, if required to undergo NEPA review in every case, would 
bring the organization to a halt--from mowing the lawn at a picnic 
area, to repairing trails and buildings, to temporarily closing roads, 
and so on. Categorical exclusions also allow the Forest Service 
promptly to respond to emergencies and to imminent hazards when 
necessary. The Attorney General recognizes that categorical exclusions 
are an appropriate and necessary part of the Forest Service's 
management activities.
    Unfortunately, the Forest Service is abusing this tool. Prior to 
2003, the Forest Service had only one categorical exclusion for use in 
approving projects that involved vegetation management activities, 
namely, timber stand or wildlife habitat improvement projects of any 
size that do not use herbicides or involve more than one mile of road 
construction. See Forest Service, Environmental Policy and Procedures 
Handbook (``Forest Service Handbook'') at Sec. 31.2(6). Then, in 2003, 
the Forest Service introduced four new categorical exclusions for 
vegetation management activities: 1) hazardous fuels reduction 
activities using prescribed fire, not to exceed 4,500 acres, and 
mechanical methods such as thinning, not to exceed 1,000 acres; 2) 
limited logging of live trees, not to exceed 70 acres; 3) salvage of 
dead or dying trees, not to exceed 250 acres; and 4) removal of trees 
to control the spread of insects or disease, not to exceed 70 acres. 
Id. at Sec. Sec. 31.2(10), (12), (13), (14). In addition, in 2003 the 
Forest Service issued a categorical exclusion for post-fire 
rehabilitation activities not to exceed 4,200 acres, which are defined 
broadly to include various activities that take place in an area within 
three years following a fire. Id. at Sec. 31.2 (11).
    If these new categorical exclusions were used sparingly, there 
would be no issue. But, as this Subcommittee is aware, the Government 
Accountability Office (``GAO'') has reported that from 2003 to 2005, 
the Forest Service used categorical exclusions for more 70 percent of 
the 3,018 vegetation management projects that it approved during that 
period. GAO Report No. 07-99, Use of Categorical Exclusions for 
Vegetation Management Projects, Calendar Years 2003 through 2005 (Oct. 
2006) at 12. These projects took place on more than 2.8 million acres 
of land, or slightly less than half of the total treatment acres the 
Forest Service approved from 2003 to 2005. Id. The Forest Service is 
thus using categorical exclusions to remove the majority of project-
level management decisions about vegetation management activities from 
public purview.
    At the same time, the Forest Service is attempting to overhaul the 
forest planning process to exclude program-level planning decisions 
from NEPA review as well. Under NFMA, the Forest Service must develop 
and maintain for each national forest unit a Land and Resource 
Management Plan (``LRMP''). 16 U.S.C. Sec. 1604(a). Prior to 2005, the 
NFMA regulations required the Forest Service to prepare an 
environmental impact statement every time it developed or revised an 
LRMP, and for amendments that resulted in a ``significant change'' to 
the LRMP. 47 Fed. Reg. 43026, 43043-44 (Sep. 30, 1982) (final rule 
adopting 1982 NFMA Rule, subsequently published at 36 Code Fed. Regs. 
Sec. Sec. 219.10(b), (f), (g)). In 2005, however, the Forest Service 
issued a revamped set of NFMA regulations. 70 Fed. Reg. 1023 (Jan 5, 
2005) (``2005 NFMA Rule''). Under the 2005 NFMA Rule, ``[a]pproval of a 
plan, plan amendment, or plan revision...will be done in accordance 
with the Forest Service NEPA procedures and may be categorically 
excluded from NEPA documentation under an appropriate category provided 
in such procedures.'' 70 Fed. Reg. at 1056 (Sec. 219.4(b) (emphasis 
added).) To accompany this dramatic loosening of the requirement to 
prepare an environmental impact statement for program-level planning in 
the LRMP, the Forest Service issued a new categorical exclusion that 
excludes from NEPA review ``final decisions on proposals to develop, 
amend, or revise land management plans,'' except under extraordinary 
circumstances. 71 Fed. Reg. 75481 (Dec. 15, 2006); see also Forest 
Service Handbook at Sec. Sec. 30.3, 31.2(16).
    In March 2007, Judge Hamilton of the Northern District of 
California enjoined the Forest Service from implementing the 2005 NFMA 
Rule, after holding that it violated provisions of the APA, NEPA, and 
the ESA when it promulgated the rule. Citizens for Better Forestry, 
supra, 481 F. Supp. 2d at 1100. However, the Forest Service recently 
announced that it will prepare an environmental impact statement for 
the 2005 NFMA Rule by November 2007, which suggests that it still plans 
to move forward with the new NFMA procedures. 72 Fed. Reg. 26775 (May 
11, 2007).
    Therefore, to be absolutely clear, if the Forest Service manages to 
overcome the legal hurdles to implementing the 2005 NFMA Rule, then, 
together with the new LRMP categorical exclusion that already is in 
place, the Forest Service will be positioned to make program-level 
forest management decisions without any environmental review or public 
participation under NEPA, just as it has done for the majority of 
individual forest management projects that it approves.
B. NEPA Requires the Forest Service to Take a ``Hard Look'' at the 
        Potential Environmental Impacts of Proposed Actions
    NEPA is a procedural statute designed to ensure that federal 
agencies taking major actions affecting the quality of the human 
environment ``will not act on incomplete information, only to regret 
its decision after it is too late.'' Marsh v. Oregon Natural Resources 
Council, 490 U.S. 360, 371 (1989). It requires federal agencies to 
consider and take a ``hard look'' at the environmental consequences of 
their actions. 42 U.S.C. Sec. 4332(2)(c); Robertson v. Methow Valley 
Citizen Council, 490 U.S. 332, 348 (1989). In enacting NEPA, Congress 
mandated that it is the federal government's responsibility to ``use 
all practicable means and measures'' to protect environmental, 
historic, and cultural values. 42 U.S.C. Sec. 4331(b). An agency cannot 
simply exempt itself from NEPA through its own regulations. Calvert 
Cliffs Coordinating Committee, Inc. v. United States Atomic Energy 
Committee, Inc., 449 F.2d 1109 (D.C. Dir. 1971).
    Federal agencies have identified three types of activities 
receiving varying levels of environmental review: (1) those that 
require preparation of an environmental impact statement; (2) those for 
which preparation of an environmental assessment is sufficient; and (3) 
those that are categorically excluded from further analysis. A federal 
agency may adopt a categorical exclusion for a ``category of actions 
which do not individually or cumulatively have a significant effect on 
the human environment.'' 40 Code Fed. Regs. Sec. 1508.4 (2001); Metcalf 
v. Daley, 214 F.3d 1135, 1141 (9th Cir. 2000). By definition, 
categorical exclusions are limited ``to situations where there is an 
insignificant or minor effect on the environment.'' Alaska Center for 
the Env't v. United States Forest Service, 189 F.3d 851, 859 (9th Cir. 
1999).
C. Most Aspects of Forest Planning Require an Environmental Impact 
        Statement or an Environmental Assessment
    It is pure fiction that developing and revising LRMPs will not 
result in significant effects on the environment, as the Forest Service 
claims in the 2005 NFMA Rule. The National Forest System covers 192 
million acres of land across the nation. It includes forests of every 
type, grasslands, rivers, streams, estuaries. Forests in the system are 
home to abundant plant and animal species, many of which are listed as 
sensitive or endangered. There are homes in national forests, and 
forests surround or are adjacent to cities and towns. Developing and 
amending the guidelines for how each forest unit will be managed may 
have significant effects on the environment, which means that the 
Forest Service cannot exclude program-level forest planning from NEPA. 
Rather, it must take the requisite ``hard look'' at the environmental 
consequences of the land-use decisions that it makes when it develops, 
revises, or amends LRMPs.
    At the same time, however, we recognize that some project-level 
planning properly is exempt from NEPA review because there are no 
significant impacts. Moreover, categorical exclusions are a critical 
tool for the Forest Service to use in its efforts to efficiently and 
effectively reduce the threat of catastrophic wildfires which, as the 
fire burning right now near Lake Tahoe so painfully demonstrates, is of 
the utmost importance. But the Forest Service went too far in 2003, 
when it adopted four broad categorical exclusions under the guise of 
fire suppression and restoration activities that allow it to do much 
more than that. The way in which the exclusions are formulated make 
them ripe for abuse, and the Attorney General is not aware of anything 
the Forest Service has done in practice to limit their application. To 
take one example, ``mechanical thinning'' is excluded from review for 
projects that are less than 1,000 acres, but not for bigger projects. 
Forest Service Handbook at Sec. 31.2(10). In practice, this means that 
five separate 900-acre projects might not be reviewed, even though a 
project that is 4,500 acres would require review. There is no rational 
basis to conclude a priori that the five projects will have no impacts, 
while the larger project may have impacts. Further, parsing projects 
into smaller units avoids the analysis that NEPA requires of the 
cumulative impacts that the individual projects, considered together, 
will produce. See 40 Code Fed. Regs. Sec. 1508.27(b)(7) (agency must 
consider whether a project has ``individually insignificant, but 
cumulatively significant impacts'').
    Therefore, while categorical exclusions are appropriate for some 
types of forest management decisions--particularly at the individual 
project level, and for projects narrowly designed to reduce the threat 
of catastrophic wildfires--the Forest Service appears to view them in a 
manner that is contrary to the law.
D. The Forest Service Cannot Avoid NEPA by Defining Land Management 
        Plans as Mere ``Strategic Documents''
    The Forest Service attempts to exclude LRMPs from NEPA review by 
casting them under the 2005 NFMA Rule as ``strategic in nature,'' 
instead of as ``prescriptive'' documents. 70 Fed. Reg. at 1024-25. In 
the preamble to the final rule, the Forest Service claims that forest 
management plans no longer will contain ``final decisions that approve 
projects or activities except under extraordinary circumstances.'' Id. 
By removing consideration and approval of specific projects from the 
forest management plans, the Forest Service thus seeks to defer 
environmental review to the project-planning stage. It explains that 
``specific projects and activities will be proposed, approved, and 
implemented depending on specific conditions and circumstances at the 
time of implementation.'' 70 Fed. Reg. at 1025 (emphasis added). This 
is echoed in the categorical exclusion that the Forest Service adopted 
for LRMPs, where it reiterated that ``[l]and management plans developed 
under the 2005 planning rule will typically be strategic and 
aspirational.'' 71 Fed. Reg. 25,481, 75,483.
    In attempting to redefine LRMPs as mere strategic and aspirational 
documents, the Forest Service places undue reliance on two Supreme 
Court decisions: Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 
(1998), and Norton v. Southern Utah Wilderness Alliance (``SUWA''), 542 
U.S. 55 (2004). In both cases, the Supreme Court acknowledged the 
strategic nature of management plans. But the Court did not suggest, as 
the Forest Service maintains, that this removes management plans from 
the ambit of NEPA review. To the contrary, in both cases it affirmed 
that the federal agencies must comply with the procedural safeguards in 
NEPA notwithstanding the strategic nature of management plans.
    In Ohio Forestry, the Court considered the Sierra Club's legal 
challenge to a land management plan that allegedly was biased in favor 
of clear cutting. 523 U.S. 726 (1998). The Court held that the 
challenge was not ripe, because the plan itself did not ``authorize the 
cutting of any trees.'' Id. at 730. However, the Supreme Court 
distinguished the Sierra Club's substantive challenge to elements of 
the plan, which were not ripe, from a hypothetical NEPA challenge to 
the procedure by which the Forest Service adopted the plan, which would 
be ripe at soon as the plan is adopted: ``Hence a person with standing 
who is injured by a failure to comply with the NEPA procedure may 
complain of that failure at the time the failure takes place, for the 
claim can never get riper.'' Id. at 737.
    In SUWA, the Supreme Court considered an environmental alliance's 
claim that the Bureau of Land Management (``BLM'') failed to comply 
with certain provisions of its resource management plans, which are 
similar to LRMPs, by allowing increased use of off-road vehicles in 
certain parts of BLM lands. SUWA, 542 U.S. at 2377-78. The Court held 
that resource management plans under the Federal Land Policy and 
Management Act do not create a ``binding commitment'' to a particular 
course of action, and it therefore refused to order BLM to take 
specific actions otherwise contemplated in the plans. Id. at 69. The 
Court described resource management plans as ``a preliminary step in 
the overall process of managing public lands--`designed to guide and 
control future management actions and the development of subsequent, 
more detailed and limited scope plans for resources and uses.''' Id., 
quoting 43 Code Fed. Regs. Sec. 1601.0-2 (2003). However, as was the 
case in Ohio Forestry, the Supreme Court recognized that adopting a 
resource management plan triggers NEPA requirements. SUWA, 542 U.S. at 
74, citing 43 Code Fed. Regs. Sec. 1601.0-6 (approval of a land use 
plan is a major federal action requiring an environmental impact 
statement). The Court simply declined to order BLM to supplement the 
environmental impact statement in that instance. Id.
    In short, neither of these cases provides a legal basis to exclude 
program-level planning from NEPA review. The Forest Service is 
incorrect to read these cases as supporting its efforts to turn LRMPs 
into mere ``aspirational'' documents that make no firm commitments to a 
specific course of action and that are exempt from NEPA. The Forest 
Service cannot shirk its obligation to engage in meaningful project-
level planning by pretending that LRMPs have no environmental impacts.
    In fact, Judge Hamilton rejected a similar argument when she 
enjoined the Forest Service from implementing the 2005 NFMA Rule. In 
Citizens for Better Forestry, the Forest Service claimed that the new 
rules would not ``change the physical environment in any way;'' that 
there would be ``no direct environmental impacts'' from adopting the 
rule; and that ``it is only after new forest plans are adopted and 
site-specific projects are proposed that effects will become 
identifiable.'' 481 F. Supp. 2d at 1084. The court disagreed. It ruled 
that NEPA does indeed contemplate environmental review at the program 
level. Id. at 1085. ``[A]t least in this circuit, NEPA's requirement of 
an [environmental impact statement] is not necessarily limited to site 
or project-specific impacts or activities, as defendants suggest.'' Id. 
at 1086 (emphasis in original). While the court acknowledged that 
evaluating the environmental effects of programmatic actions could be 
difficult, which is one of the Forest Service's principal reasons for 
seeking to defer NEPA review to the project level, it concluded that 
``this does not mean that environmental analysis regarding broad 
programmatic changes cannot take place.'' Id. at 1089.
    Moreover, in spite of the Forest Service's efforts in the 2005 NFMA 
Rule to reduce LRMPs to vague and nonbinding statements of general 
management objectives, Congress clearly intends for plans to be 
substantive documents that guide specific land-use decisions in 
national forests. See 16 U.S.C. Sec. 1604. NFMA's species-diversity 
provision alone--which requires each LRMP to provide for diversity of 
plant and animal communities--ensures that the Forest Service cannot 
develop or revise an LRMP without environmental review. 16 U.S.C. 
Sec. 1604(g)(3)(B). Even under the Forest Service's reworked 
description of LRMPs in the 2005 NFMA Rule, each plan must define the 
``desired conditions'' (i.e. the ``social, economic, and ecological 
attributes toward which management of the land and resources of the 
plan area is to be directed''); contain ``concise projections of 
intended outcomes of projects and activities''; provide ``guidance for 
the design of projects and activities''; evaluate the suitability of 
areas for different uses, designate ``special areas'' such as 
wilderness or wild and scenic river corridors; and more. 70 Fed. Reg. 
at 1026-27. An LRMP that contains these elements is not merely 
``strategic in nature,'' as the Forest Service claims. 70 Fed. Reg. at 
1024. It still would embody substantive decisions that will guide 
project-level decisions in the future and will thus have potentially 
significant environmental impacts. See Ohio Forestry, 523 U.S. at 731 
(``Despite the considerable legal distance between the adoption of the 
Plan and the moment when a tree is cut, the Plan's promulgation 
nonetheless makes logging more likely in that it is a logging 
precondition; in its absence logging could not take place.'').
    Therefore, the Forest Service cannot, consistent with its statutory 
mandate, engage in do-nothing land management planning at the program 
level. Because land management planning does have meaning, it may 
affect the environment and therefore is not exempt from NEPA.
IV. The Forest Service Should Not Eliminate the Public From the Forest 
        Planning Process
    The final point that I will make today is that the Forest Service's 
increasing reliance on categorical exclusions not only is illegal in 
many cases, it often will lead to poor planning decisions and increased 
public controversy over decisions and how they are implemented. This is 
a bad result for the Forest Service, for the environment, and for the 
public that the Forest Service serves.
    I want to give two examples of how public participation plays an 
important role in forest planning. Of course, there are countless 
examples from which to choose. I have selected these two to provide a 
specific case where public participation has made a significant 
difference in the past, and to illustrate the type of issue that the 
Forest Service might not consider in the future if it eliminates NEPA 
review from the forest planning process.
    The first example is the Sequoia National Forest, which is at the 
southern end of the Sierra Nevada mountain range. Sequoia takes its 
name from the world's largest tree, which grows in more than 30 groves 
on the forest's lower slopes. Its landscape is as spectacular as the 
trees. With elevations ranging from 1,000 to 12,000 feet, visitors 
experience soaring granite monoliths, glacier-torn canyons, roaring 
whitewater, spectacular mountain views, and more. See http://
www.fs.fed.us/r5/sequoia/.
    In 1988, the Forest Service completed its LRMP for the Sequoia 
National Forest. As was the practice then, it issued a final 
environmental impact statement at the same time. The California 
Attorney General submitted comments on the LRMP and the environmental 
impact statement, and, along with several other groups, filed an 
administrative appeal in order to protect the area's unique and 
irreplaceable resources. Following nearly two years of mediation, the 
parties entered into a Mediated Settlement Agreement that resolved the 
outstanding issues. As part of the mediation agreement, the Forest 
Service identified groves of old-growth sequoia trees that warranted 
additional protections. The first President Bush issued a proclamation 
to afford these groves the necessary protections, Executive 
Proclamation 6457 (July 14, 1992), and in 2000, President Clinton 
further protected them by establishing the Giant Sequoia National 
Monument. Executive Proclamation 7295 (Apr. 15, 2000).
    If it were not for NEPA, and the Forest Service's commitment at 
that time to address public concerns through the planning process, the 
Sequoia National Forest would not be what it is today. Unfortunately, 
under the current Bush administration, the Forest Service has attempted 
to reverse the achievements of past administrations by allowing 
clearcutting and logging of 100-year-old trees in the Monument and 
adopting a Fire Plan that contemplates significant timber harvesting of 
large trees under cover of ``fire management.'' Along with others, the 
California Attorney General successfully challenged these actions in 
court, but they are additional examples of how this administration's 
efforts to remove the public from the planning process results in 
delays and controversy, to the detriment of everybody. Lockyer v. 
United States Forest Service, 465 F. Supp. 2d 942 (N.D. Cal. 2006).
    The second example of how the Forest Service and the public stand 
to lose from eliminating meaningful public participation from the 
forest planning process relates to a subject that is on all of our 
minds these days--global warming. Just last month, NASA's James Hansen 
and other scientists published an article in which they warn that 
``[r]ecent greenhouse gas emissions place the Earth perilously close to 
dramatic climate change that could run out of our control, with great 
dangers for humans and other creatures.'' James Hansen et al., Climate 
Change and Trace Gases, Phil. Trans. R. Soc. A (published on-line May 
18, 2007). There is increasing evidence that forests are affected by 
climate change, and that forests can play an important role in efforts 
to combat climate change and to respond to its effects. For instance, 
in 2006 the Food and Agriculture Organization of the United Nations 
(``FAO'') concluded that climate change and forests are intrinsically 
linked:
        On the one hand, changes in global climate are already 
        stressing forests through higher mean annual temperatures, 
        altered precipitation patterns and more frequent and extreme 
        weather events. At the same time, forests and the wood they 
        produce trap and store carbon dioxide, playing a major role in 
        mitigating climate change. And on the flip side of the coin, 
        when destroyed or over-harvested and burned, forests can become 
        sources of the greenhouse gas, carbon dioxide.
    FAO, Forests and Climate Change, www.fao.org/newsroom/en/focus/
2006/1000247/index.html (March 27, 2006). Similarly, in a report by the 
Pew Center on Global Climate Change, the authors posit that forest 
location, composition, and productivity will be altered by changes in 
temperature and precipitation, that changes in forest disturbance 
regimes, such as fire or disease, could further affect the future of 
U.S. forests and the market for forest products, and that there may be 
adverse economic effects on some regions, and positive impacts on other 
regions. Pew Center on Global Climate Change, Forests & Global Climate 
Change: Potential Impacts on U.S. Forest Resources, www.pewclimate.org/
global-warming-in-depth/all_reports/forests_ and _climate_change/ (Feb. 
2003).
    It is thus becoming increasingly clear that the Forest Service must 
consider the implications of global warming on forest management, and 
forest management on global warming, as it plans for the future. Public 
participation in the planning process is one way to ensure that the 
Forest Service does so, while making available to the Forest Service 
the increasing body of scientific information about the causes and 
effects of global warming as they relate to forests. Moreover, if the 
Forest Service considers global warming issues at the program level, 
then there will be fewer delays caused by having to address it on blank 
slate each time the agency approves an individual project.
    In sum, as occurred when the Forest Service developed the LRMP for 
the Sequoia National Forest, and as should occur in the future as the 
Forest Service grapples with how to address the nexus between forest 
management and global warming, NEPA affords the public an opportunity 
to raise important issues and to provide useful information at a time 
when the Forest Service can incorporate such information into its 
planning decisions. NEPA also requires accountability on the agency's 
part that environmental considerations play a role in its decision 
making. The Attorney General urges the Forest Service to embrace NEPA 
rather than continue to try to avoid it.
V. Conclusion
    Forest planning under NFMA, and especially program-level planning 
through the development, revision, and amendment of LRMPs, is the type 
of government action for which NEPA perhaps works best. NEPA provides a 
mechanism for informed and adequate consideration of the likely 
environmental impacts of decisions early in the planning process. This, 
in turn, leads to better decision making and to less controversy and 
more efficient implementation in the long run. For this reason, while 
the California Attorney General understands that the Forest Service 
will, and should, continue to use categorical exclusions where 
appropriate, the Attorney General opposes the Forest Service's efforts 
over the past several years to exclude critical program-level and 
project-level decisions from the purview of NEPA. Referring back to the 
title of this hearing, ``Management by Exclusion'' is a poor management 
strategy.
                                 ______
                                 
    Mr. Grijalva. Thank you. Let me begin with the first round 
of questions. Let me begin with the last witness if I may, Mr. 
Pollak. Under Secretary Rey has argued that the Forest Service 
use of categorical exclusions, including the new categorical 
exclusions implemented by this administration are an integral 
tool for their NEPA compliance. Do you find that statement 
accurate?
    Mr. Pollak. I do find it accurate when used in the right 
circumstances. First of all, I agree with the witness that 
categorical exclusions are part of NEPA, and so using a 
categorical exclusion does not mean that the Forest Service is 
not complying with NEPA if the exclusion is used appropriately, 
and a categorical exclusion under NEPA can only be used if 
there are going to be no environmental impacts from the project 
including cumulative impacts, and so to use categorical 
exclusions even for smaller projects on such a wide scale and 
broad basis where you're approving the majority of projects 
without looking at the cumulative impacts as an environmental 
assessment or environmental impact statement would require, 
that is not consistent with NEPA, and that is what Courts are 
finding increasingly.
    It is interesting. I mentioned how the Forest Service's 
2005 NFMA rules have been enjoined. One of the reasons they 
were enjoined is because the Court found the Forest Service 
invoked a categorical exclusion to pass those rules, which 
completely revamped the forest management process for complying 
with NFMA. In that case, the Forest Service argued to the 
United States District Court that the NFMA rules would have no 
impacts on the environment. No direct or indirect impacts. 
Therefore, a categorical exclusion was appropriate.
    The District Court disagreed and said, even the regulations 
for explaining how to do an LRMP can have indirect impacts on 
the forest and therefore NEPA compliance is required, and so 
this idea that something that is even closer to the ground 
level which is the LRMP itself could be categorically excluded, 
I disagree with that.
    Mr. Grijalva. Thank you. I do think that it is an irony 
that the Federal Court found the Forest Service planning rule 
itself to be in noncompliance with NEPA. Let me turn to Ms. 
Nazzaro. Of the five types of categorical exclusions for Forest 
Service vegetation management projects your study evaluated, 
how many of those were in place prior to the Bush 
Administration taking office in 2000?
    Ms. Nazzaro. There was only one categorical exclusion that 
was in place prior to June 2003, and that was the categorical 
exclusion for reducing hazardous fuels. Excuse me. For 
improving timber stands and wildlife habitat. After June 2003, 
there were four additional ones added that addressed vegetation 
management.
    Mr. Grijalva. So the conclusion can be that under this 
administration there has been a considerable expansion of the 
availability of categorical exclusions for the Forest Service 
vegetation management plans expanded?
    Ms. Nazzaro. That would be correct but actually if you look 
at our report, the actual use of them declined during 2005. Now 
our study only went from 2003 to 2005, and it is such a short 
period of time we are cautioning about any trend data or making 
any conclusions based on that. The agency is collecting its own 
data now, and it would probably be worthwhile to get updated 
data from them before making any longer term assessment as to 
the use of these particular categorical exclusions for 
vegetation management.
    Mr. Grijalva. OK. Just one more quick question, and then I 
will turn to the Ranking Member. Mr. Under Secretary, in total 
how many NEPA categorical exclusions have been approved by the 
Forest Service for plans and projects during your tenure?
    Mr. Rey. Well only one for plans, and I think we have 
approved an additional four for projects, and of course 
Congress has approved four during my tenure for projects as 
well, and that is actually not the majority of categorical 
exclusions that the agency operates under. So I have been 
relatively lax compared to my predecessors in approving new 
categorical exclusions.
    Mr. Grijalva. With that, my time is up, and I will reserve 
some questions for the second round. Mr. Bishop?
    Mr. Bishop. My job is still to be here through the entire 
thing, and since my colleagues have to go, I would like to 
either start or yield to our newest member of this particular 
subcommittee and then work our way up from our side if that is 
OK.
    Mr. Grijalva. Mr. McCarthy.
    Mr. McCarthy. Thank you, Mr. Bishop. I guess my first one I 
will go to my home state of California, Harrison. I apologize. 
I served in the state assembly. I just left, and I am new here, 
and I have not been able to meet you yet. Are you new when the 
new Attorney General came in?
    Mr. Pollak. No. I came in under Attorney General Lockyer 
about six years ago. I am a Deputy Attorney General in the 
public rights division, and I serve in Oakland.
    Mr. McCarthy. OK. I just have a couple of questions, and 
the Attorney General Office seems to be kind of busy. It is my 
understanding that the Attorney General's Office to the State 
of California sued the Forest Service over the development and 
implementation of the Giant Sequoia that you talked about, fire 
management plan. It was also my understanding that the Forest 
Service had the support of the California State Resources 
Agency and CalFire for implementation of this plan.
    I also understand that as a result of lawsuit that the fire 
management plan was withdrawn. My question to you and my 
concern to you especially with what is going on in Lake Tahoe 
because the fire management plan being withdrawn potentially 
leading to situations like Lake Tahoe, before you file these, 
do you consult with your sister agencies?
    Mr. Pollak. Yes, we do.
    Mr. McCarthy. You consulted with Cal State Resources prior 
to filing?
    Mr. Pollak. Before filing litigation?
    Mr. McCarthy. Yes.
    Mr. Pollak. Yes, we do.
    Mr. McCarthy. And you did on that one as well?
    Mr. Pollak. Our office represents those agencies, and so 
whether my section spoke to somebody in the agency or spoke to 
somebody in our office that represents the agency, I am not 
sure, but we certainly do consult.
    Mr. McCarthy. Because I am only concerned because it had 
the support of Cal State Resources, CalFire and if you said you 
consulted with them, you still moved forward with the lawsuit, 
I am just wondering how that works.
    Mr. Pollak. Yes. And that is a very good point, and let me 
address this now especially you know you have this fire raging 
in Tahoe right now. It is a tragedy, and I think everybody on 
all sides of this issue would agree that the Forest Service 
should do what it can to avoid that type of tragedy.
    Now by filing a lawsuit challenging a fire plan, 
challenging a resource management plan, challenging a specific 
project because it does not comply with the applicable 
procedures certainly does not mean that the Attorney General is 
pro fire or thinks that anything that can be done to reduce the 
risk of fire should not be done.
    Mr. McCarthy. Well I would never make that argument that he 
was pro fire but your actions resulted in the fire management 
plan being withdrawn. So if you look at the homeowners, you 
look at the neighbors, you look at the residents, I mean 
actions created other actions, and if we have California sister 
agencies that were working on the fire plan, supported the fire 
plan, you have met with them, and then you went forward with 
the lawsuit that pulled the whole fire plan away, to me that 
has implications and actually problems in the future.
    Mr. Pollak. Well there are strategies for combatting fires 
that would be in a fire plan that state agencies would agree 
with, would use, that the Attorney General certainly has no 
objection or problem with specific strategies. Our issue is 
with the planning process saying that when you develop a fire 
plan, you need to look at the long-range implications.
    You need to involve the public. You need to have public 
disclosure. It is the procedure to make sure that all different 
strategies are considered, and I would say that the state 
agencies would agree that wise planning in advance is the best 
type of fire management you can do.
    Mr. McCarthy. Well I would agree with you there, and if 
this California State Resources Agency and CalFire supported 
the plan, I am sure they had those same questions. I am just 
wondering when you meet with them do you ask them: Did they 
look at that? Did they ask that? Because I do not see dealing 
with the agencies that I have Cal State Resources just does not 
sit there and approve them. They have those same tough 
questions, and I am just wondering if they have been along on 
this program.
    And let me just follow up with a couple of others because I 
am trying to find out if there is a pattern here, and if you do 
consult with them, do you listen in the consultation before you 
go forward because there are implications? Did your office file 
suit challenging the state petitions rule for the roadless 
areas? The ruling invalidated the state petition rule and 
precluded the Governor from applying under the rule and seeking 
a California specific roadless rule.
    Mr. Pollak. Yes, we were part of that litigation.
    Mr. McCarthy. OK. Prior to the litigation--and this is what 
I am trying to come to--when you consult with the sister 
agencies that you said you have, because there are other 
agencies in California working forward, what is the 
consultation? What are the questions you are asking? Are there 
answers you are getting back that make you go forward or are 
there not?
    Mr. Pollak. Well I personally have not been part of those 
consultations. What I can say though is that the Attorney 
General, as the attorney for the different agencies, would not 
take any action that is adverse to those agencies' interests.
    Mr. Rey. Mr. McCarthy, if I could offer an observation. I 
think Mr. Pollak has as much of an argument with Governor 
Schwarzenegger and his sister agencies as he does with me 
because there are several instances where we have been 
cooperating with the Governor's office and the resource 
agencies on projects that the Attorney General's Office is 
suing us on. But hey, if I had to choose between picking a 
fight with a shrimp like me and the terminator, I know what I 
would do. Look at that. There is nothing there.
    Mr. McCarthy. Well I mean I will tell you this because----
    Mr. Bishop. Mr. McCarthy.
    Mr. Grijalva. Second round. The time is up at this point.
    Mr. McCarthy. I apologize, Mr. Chairman. I yield back what 
time I do not have.
    Mr. Grijalva. What time you already took. OK. Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman. First I have a 
comment and then a couple of questions. Could you start the 
time over again? First of all a comment and then a couple of 
questions. People in Colorado were traumatized by the 2001 
Hayman fires. In Colorado Springs, which is not out in the 
forest but is an urban setting, some people were evacuated 
because of the fire coming so close to the city limits.
    I had ashes falling on my own house, and the feeling of 
many people after all that happened because it came out that 
suppression of fires through management of clearing underbrush, 
getting rid of dead timber, things like that was frequently 
blocked by the actions of environmental groups by filing 
lawsuits and things like that. Many, many, many people drew the 
conclusion that the spread of those wildfires was caused by 
environmental groups, and that is the conclusion that lingers 
today in many people's minds, and I know that some people would 
obviously disagree with that but that is the conclusion, and 
that is a concern I have. You know, how do we get to that 
point?
    And so one question I have for you, Mr. Rey, do you think 
it is good policy that before individuals or organizations can 
file appeals to an analysis that your department has rendered 
that they be involved in the negotiation process up to that 
point?
    Mr. Rey. They uniformly are involved in the negotiation 
process up to that point or they do not thereafter have 
standing to file an appeal. Sometimes the negotiation process 
does not produce a consensus result, and then they do have the 
right for an administrative appeal and subsequently judicial 
review. I, for one, will not ascribe the fire situation to the 
work of environmentalists. I would more broadly say that the 
fire situation we face is a lack of consensus on what to do 
about it and how fast to move.
    Last week I was before this subcommittee talking about the 
fire situation and talking about the progress that we have made 
in accelerating the rate of fuels treatment. Much of that 
progress is because of the tools that we have developed under 
NEPA to use categorical exclusions in limited cases to do that 
work more quickly.
    Congress is going to have to decide if that is not right 
what your priorities are but I think that is the balancing act 
that we face, and we do not always reach consensus on it, and 
so we are appealed, and we are litigated but we win the 
majority of lawsuits, roughly two-thirds. It just takes a lot 
of time to get there, and time is not our ally in terms of this 
fire situation.
    Mr. Lamborn. And Mr. Rey, how much money would you say it 
costs when you had to go through such an appeal? Like you 
stated that briefly earlier but could you repeat that?
    Mr. Rey. The analytical costs of preparing the documents 
are an average or a median of $50,000 for a CE, categorical 
exclusion such as that. That is about $50,000 worth of work 
there. Two hundred thousand dollars for an environment 
assessment, which is the next more complex analysis. The record 
for those is much larger, and about $1 million on the average 
for an environmental impact statement which usually has a 
record that is longer than the median height of a Forest 
Service employee standing next to the administrative record 
stacked up on itself.
    Now those costs are exclusive of appeals and litigation. 
Once you add appeals, then you are adding in each case to that 
base cost. So if a project that is covered under a categorical 
exclusion is appealed and thereafter litigated, you are 
probably adding several hundred thousand dollars to several 
million dollars depending on how far the litigation goes to the 
base cost.
    Mr. Lamborn. And how much time will that add to the entire 
process?
    Mr. Rey. The appeals process usually adds 90 to 120 days. 
Litigation will add years.
    Mr. Lamborn. Thank you very much.
    Mr. Grijalva. Mr. Sali.
    Mr. Sali. Thank you, Mr. Chairman. Mr. Pollak, going back 
to this discussion about your agency suing after consulting 
with the Cal State Resources and Calfire, was it the position 
of your office that the Attorney General's Office knew more 
about fire management than the other two agencies?
    Mr. Pollak. No. Our position is that there are processes in 
place to involve the public and scientists in decisions about 
fire management. Our agency certainly does not claim that we 
have the expertise that needs to go into those decisions. What 
we do claim though is that the Forest Service needs to make 
processes available to take advantage of that expertise.
    Mr. Sali. Would it be fair to say then that your office 
believes that other issues that may be involved are more 
important than fire planning? Would that be correct?
    Mr. Pollak. I am not sure what you mean by that.
    Mr. Sali. Well, if you have the Cal State Resources and 
CalFire and you have agreed that they have more expertise at 
fire planning, and they come up with a result that you disagree 
with and you sue on the implementation of the plan, your office 
does, obviously you are putting something else that is at stake 
above fire planning.
    Mr. Pollak. Well, no, I disagree. As the Under Secretary 
just explained, there is a lack of consensus on what is the 
most effective way to fight fires, to reduce the risk of 
catastrophic fires. It is precisely because of this lack of 
consensus that our office feels it is critical to allow the 
different knowledge and opinions and priorities to come to the 
table and to be part of the process.
    Mr. Sali. And so you think that your office does know more 
about fire planning than these other two agencies, and that is 
why you sued?
    Mr. Pollak. Well not about what the specific strategies 
should be but our office certainly agrees with the philosophies 
and the motives of NEPA that guarantee this type of process 
goes into planning. We are just trying to enforce the law that 
is out there. We are not making it.
    Mr. Sali. And so your position in front of this committee 
today is that all of the other aspects of the NEPA process 
should have a higher priority than fire planning?
    Mr. Pollak. No.
    Mr. Sali. Is that correct?
    Mr. Pollak. No. Fire planning is part of the NEPA. Rather, 
NEPA is a procedure to make sure that every agency decision 
including decisions about fighting fires is made with public 
accountability and with open access by the public, and so we 
are not saying that NEPA is more important than fire planning. 
We are saying that NEPA is an integral part of how fire 
planning decisions are made.
    Mr. Sali. OK. But you agreed with me that Cal State 
Resources and CalFire has more expertise about fire planning 
than your office, right? You still agree with that?
    Mr. Pollak. Yes.
    Mr. Sali. OK. They said, we want to go ahead and implement 
this plan. Your office said, no. So either you believe that 
your office has more expertise in fire planning or you believe 
that the other aspects of NEPA should have a higher priority 
than fire planning, and it has to be one of those two, does it 
not?
    Mr. Pollak. No, I disagree, and here is why I disagree. The 
Cal State agencies that are responsible for maintaining 
California state lands and fighting forest fires and whatnot, 
they want to do whatever is necessary, is the best strategy to 
do that. Now just because you have a fire plan that says here 
is the way we are going to reduce the threat of catastrophic 
fires does not mean that appropriate procedures were used, and 
let me give an example.
    I mean everybody agrees that it is important to reduce the 
threat of catastrophic fires. However, what the Forest Service 
does is it often uses that to approve of projects that are not 
necessarily directed toward that important outcome. For 
example, with the Sierra Nevada framework. That is----
    Mr. Sali. So you would be saying that Cal State Resources 
and CalFire have another agenda besides fire planning?
    Mr. Pollak. No, I am not saying that. But I am saying in 
some cases some of these categorical exclusions that are 
supposed to address fire threats are used for other purposes. 
For example, in the Sierra Nevada framework, there you had the 
Bush Administration change the framework to allow logging of 
larger trees, 30-inch trees instead of 24-inch trees, under the 
rubric of fire suppression.
    Now in that case they did not use a categorical exclusion. 
Because of the NEPA process in response to comments, the Forest 
Service admitted that there was no relationship between 
removing the larger trees and reducing the risk of fires. 
Instead, this was a measure to allow the Service to raise 
additional revenues that it could use to implement its various 
works, and so all I am saying----
    Mr. Sali. And was that the case with this plan that we are 
talking about with Cal State Resources and CalFire? They have 
an agenda like that as well?
    Mr. Pollak. I do not know if that was their agenda.
    Mr. Grijalva. Mr. Sali, we will continue the questions 
second round. Thank you.
    Mr. Sali. Thank you.
    Mr. Grijalva. Ms. Herseth Sandlin, questions?
    Ms. Herseth Sandlin. Yes. Thank you, Mr. Chairman. I want 
to thank each of our witnesses on this panel today. Under 
Secretary Rey, good to see you.
    Mr. Rey. Good to see you.
    Ms. Herseth Sandlin. You were in South Dakota. Eastern 
South Dakota a week or so ago.
    Mr. Rey. I was getting a grant for a conservation invasion 
project to South Dakota State University. It is a very, very 
fine institution.
    Ms. Herseth Sandlin. Thank you for saying so. I agree, and 
we are pleased to have received the grant there. As you know, 
the issues that we have discussed in the past deal with western 
South Dakota in the Black Hills National Forest. National 
Forest Management Act requires each national forest system to 
develop a plan revision every 15 years. The most recent 
revision in South Dakota for the Black Hills National Forest 
took over 15 years to complete. On average, do plan revision 
periods typically exceed 15 years across the country?
    Mr. Rey. I would say the average is between 10 and 15 years 
under the old planning rule which is what we tried to modify to 
bring planning to the point where we could complete a plan in 
two to three years. Fifteen would be close to the outer edge 
but not the most lengthy. On the Tongas National Forest, we are 
still trying to complete a plan that began in 1979 and has been 
interrupted by two successive acts of Congress as well as a 
considerable amount of litigation. By the time we are done, 
there will be Forest Service employees who will retire with a 
full 30 years invested in the agency having worked on nothing 
other than the Tongas land management plan.
    Ms. Herseth Sandlin. Well let us talk about the 2005 
planning rule which allows the Forest Service to categorically 
exclude management plans from NEPA understanding that if the 
average is 10 to 15 years and certainly our experience in South 
Dakota has been a very frustrating one; however, if we are 
going to categorically exclude management plans from NEPA, 
arguing that the environmental analysis should occur at the 
project level rather than the forest plan level, then what sort 
of environmental analysis in your opinion should be used to 
shape the forest planning process?
    Mr. Rey. What we have proposed is an environmental 
management system where instead of spending all of our time or 
15 years in the case of South Dakota trying to develop a very 
specific, predictive environmental impact statement that is 
usually out-of-date by the time it is complete, that we do most 
of our detailed project analysis at the project level for the 
majority of projects, which will not qualify under a 
categorical exclusion, and through a boosted monitoring program 
evaluate the environmental impacts of those projects as they go 
forward to make sure that we are properly evaluating the 
cumulative effect of doing them on a case-by-case basis.
    Now that is not the result of a narrow legal reading of the 
current law. That approach is the result of two nine-to-nothing 
Supreme Court decisions that defined what plans are and what 
they are not, and there was a time just after the enactment of 
the National Forest Management Act in 1976 when the agency had 
great aspirations to make forest plans something that was worth 
taking 10 to 15 years to produce because they would govern the 
actions that subsequently occurred in every instance, and those 
actions would get very little environmental review because they 
were tiered to the environmental impact statement accompanying 
the plan.
    There is 30 years of litigation where the Courts have said, 
you cannot do that. You cannot predict that far in the future. 
You have to do more detailed analysis at the project level. 
That was then followed by the two Supreme Court decisions that 
said you should not even try to do that. That is not what plans 
should be. They should be broader strategic aspirational 
documents that provide a strategic framework for proceeding and 
that provides a basis for evaluating individual projects 
thereafter.
    So the simple comparison is instead of sitting around in an 
office for 15 years trying to anticipate and answer every 
environmental question about what is going to happen over the 
life of that plan, what we are saying is no, that is 
impossible. Let us do a broad evaluation, and then let us 
proceed prudently with each project to evaluate that project 
and to monitor its implementation so we can see how it is going 
and what we need to change.
    Ms. Herseth Sandlin. Thank you for the elaboration. I may 
want to follow up with you at some point in terms of just what 
types of analysis and process and safeguards we have in place 
to ensure that type of close monitoring and how we best assess 
the cumulative impact but I certainly appreciate the efforts to 
address the length of time it has been taking us, and in the 
one case you described, I mean perhaps even having folks retire 
with a basis of fast knowledge that went into the plan and 
ultimately not being able to utilize that perhaps as 
effectively as we would have otherwise in a more reasonable 
timeframe to finish the plans. Thank you, Mr. Chairman.
    Mr. Grijalva. Mr. Bishop.
    Mr. Bishop. Thank you. Mr. Rey, what has been the effect of 
the Earth Island decision on Forest Service efficiency?
    Mr. Rey. The Earth Island decision has indicated for a 
certain number of categorical exclusions that the requirements 
of the Appeals Reform Act mandate that the Forest Service must 
give an opportunity for notice and comment and administrative 
appeal of individual activities conducted under those 
particular categorical exclusions. What that has done is it has 
extended the timeframe for doing projects under those 
categorical exclusions anywhere from around 90 to 120 days to 
something closer to eight months to a year.
    Mr. Bishop. Can I also ask why has such a large percentage 
of treated acreage or areas been analyzed as categorical 
exclusions?
    Mr. Rey. The reason is because we have focused most of our 
efforts over the last several years on the wildland urban 
interface developing projects that were approved by community 
wildfire protection plans, and therefore the general consensus, 
the close-in aspect to the wildland urban interface and the 
fact that they fit within the framework of the categorical 
exclusions has allowed us to use those categorical exclusions 
more extensively.
    As Ms. Nazzaro noted, we are starting now to see a dip in 
that as we start to focus in areas where we have treated the 
wildland urban interface into more remote areas, and those will 
more often than not require an environmental assessment because 
they are going to be larger, more projects or even 
environmental impact statement.
    Mr. Bishop. OK. I appreciate that. Ms. Nazzaro, as you have 
done your summary--and I realize you said the data is not 
sufficient, you need newer data to make an overall decision--
but as you have been reviewing the Forest Service use of 
categorical exclusions, have you found anything definitive to 
indicate that this agency is misusing its authority?
    Ms. Nazzaro. The scope of our review was not to look at how 
they were using the categorical exclusions from the same angle 
that you are talking about. It was just flat out pulling 
together numbers. What did they do? How did they use them? You 
know for which ones. We did not actually look to see whether 
they had been appropriately applied.
    Mr. Bishop. All right.
    Ms. Nazzaro. This was a first effort to just pull together 
numbers on how frequently they were using them and which ones 
were being used.
    Mr. Bishop. OK. I realize your office is to go in after the 
battle and count the bodies. So you have no definitive answer? 
You are not willing to make any kind of definitive statement as 
to use or misuse in any way then?
    Ms. Nazzaro. There was only one area where we looked at the 
actual use, and that was for the improving timber harvest and 
wildlife habitat categorical exclusion. There is no acreage 
limitation. So we went in to look to see how many acres had 
been treated using that categorical exclusion, which could get 
at an issue of had it been abused, and we found that on average 
those were 5,000 acres or less, which is within the threshold 
of the largest amount of land that can be treated is for 
reducing hazardous fuels at 4,500 if it is a prescribed fire. 
So we found it was consistent with that usage, but that was 
probably the only area where we actually did some analysis of 
data and how were they using it.
    Mr. Bishop. thank you. I appreciate that. Mr. Pollak, I 
understand that your office filed suit to challenge the state 
petitions rules for roadless areas, and that the ruling 
invalidated the state petition rule and precluded the Governor 
from applying any rules in seeking a California-specific 
roadless rule. Was that then in consultation working with the 
Governor's office?
    Mr. Pollak. Well again, our office represents the Governor, 
and so we would not have filed it without having consulted with 
the appropriate state agencies.
    Mr. Bishop. And the Governor's office was in concurrence 
with what you were doing?
    Mr. Pollak. Well I do not know if we had direct 
consultation with the Governor's office. We certainly would 
have consulted with the agency directly responsible for----
    Mr. Bishop. How about the people in the office? Did you 
consult with them?
    Mr. Pollak. Again----
    Mr. Bishop. Or just the door?
    Mr. Pollak.--I was not involved directly in that case so I 
do not know the answer to that.
    Mr. Bishop. Mr. Pollak, I have to tell you that I think you 
are an extremely good lawyer. I have been impressed with your 
testimony. If I was ever guilty of a felony, I think I would 
want you to defend me.
    Mr. Pollak. Thank you.
    Mr. Bishop. But I would also want to say that especially in 
view of the fact the California State Resource Agency and 
CalFire were in support of the management plan of the Forest 
Service and you still sued anyway, I think your agency is doing 
a wonderful job in going through the process but maybe the 
listening skills need to be honed a slight bit there, but I 
appreciate you coming all the way from California to give this 
testimony. I do not have any more questions of these three 
witnesses.
    Mr. Grijalva. Thank you. Mr. DeFazio.
    Mr. DeFazio. Thank you, Mr. Chairman. To Secretary Rey, I 
just want to better understand this new process for forest 
planning. It does take too long to revise a plan but it seems 
to me what you have proposed has become very polarizing. So 
where is the meaningful public participation in this new forest 
planning process that you envision?
    Mr. Rey. Public participation in forest planning is not 
fundamentally governed by NEPA. It is required by the National 
Forest Management Act, and we have done nothing to change that. 
The public is involved at every step of the forest planning 
process. First during scoping, second during public comment and 
the draft, second in a pre-final or post-final consultation, 
third in an administrative appeal, and fourth, if they want, 
after the first are not satisfactory, to seek judicial review.
    So nothing has changed in that regard. The only appreciable 
difference is instead of participating in the development of a 
draft forest plan and a draft environmental impact statement 
during the scoping and public comment process, they are only 
participating in scoping and reviewing a draft forest plan. A 
lot of people prefer that. A lot of the public who wants to be 
involved says, I cannot hang in there for 15 years. You can 
wear us down. You, the agency, can keep at it until we no 
longer can have an appreciable effect on what you do because it 
takes so long.
    Mr. DeFazio. So how long do you envision under this new 
process it would take to revise a forest plan?
    Mr. Rey. Two to three years is our ideal.
    Mr. DeFazio. OK. Now the forest plan, as developed, would 
still--I mean, we are still going to broadly categorize parts 
of the forest in terms of essentially what the public might 
consider--sort of like zoning? This is an area which is 
recreational, non-motorized recreational use. This is an area 
for managed forest use. This is an area for wildlife. Those 
sorts of things? How much more specific are you going to get?
    Mr. Rey. I think the linchpin will be that to the extent in 
the development of those strategic options we preclude future 
options will do a more detailed environmental analysis. That 
is, I think the trick is that we are not going to make any 
judgments in the development of a forest plan that will 
preclude somebody's opportunity to later say, you know more 
detailed project level of analysis that we would like to 
consider this alternative as opposed to that alternative.
    Mr. DeFazio. But would there not have to be some sort of 
exclusion? I mean you are going to say we envision this to be, 
let us just say, a non-motorized recreation area. Do you want 
to have some sort of certainty with the plan or would you say 
the whole forest is open, and we are going to decide ranger 
district by ranger district or subdistrict, you know, what 
options?
    Mr. Rey. We will probably do more detailed analysis to open 
areas for off highway vehicle use as a project-level decision.
    Mr. DeFazio. And then how do we get the cumulative impacts? 
If these are all going to be then ultimately analyzed at the 
project level, how are we going to relate those back to a 
cumulative impact analysis?
    Mr. Rey. You are going to do that through monitoring of how 
the projects are framed, conducted, and their impacts 
thereafter. The flaw in the 1982 regs in the current system 
that we are operating under is that we do not have enough time 
or money left to monitor the decisions that we ostensibly make 
in those plans. So we spend 10 to 15 years trying to develop a 
predictive plan that is going to predict what the outcomes are 
going to be, and by the time we finally exhaust ourselves doing 
that, two things occur.
    One, those predictions are out-of-date because life goes on 
while you are making plans, and the second thing is that we 
have spent all of our money developing this large, extensive, 
predictive analysis so we do not really have the energy or 
money left to really monitor how the projects are being 
conducted. Designed and conducted on the ground and what the 
impacts really are.
    Mr. DeFazio. There was some Federal money invested in 
developing a new planning tool in Oregon. It became a big 
controversy. It was never actually applied because the 
controversy becomes what are the underlying criteria that you 
know evaluate your outcomes, but the point is it established 
something where a person could manipulate a small area of a 
forest, change the use, and then you would then be able to 
understand impacts throughout the forest or cumulatively in the 
forest. Are we moving toward any sort of models where it is a 
little more sort of user friendly for the public to rather than 
just looking at all of these scattered pieces of paper and maps 
with 17 overlays and these sorts of things?
    Mr. Rey. It is our hope that these plans will be 
substantially more user friendly in the sense that they will 
provide the information necessary to talk about broad 
strategies for what we want to do with the forest going forward 
as well as an assessment of what the timeline for projects are 
and what the monitoring program is going to be to the extent 
that people want to participate in the monitoring.
    We expect under the environmental management system to also 
use a lot more multi-party monitoring so that instead of 
limiting our interaction with the public to a theoretical 
discussion over piles of paper on a table in a boardroom, we 
actually involve them in monitoring some of the projects on the 
ground so that they can see what the projects are really doing, 
hopefully positively, and in some cases maybe in unexpected 
ways that we did not anticipate that are not as positive as we 
would like and indicate changes that need to be made in its 
stream.
    Mr. DeFazio. OK. Thank you, Mr. Chairman.
    Mr. Grijalva. Thank you very much. I am going to have 
questions, and then I will turn to any member that desires to 
ask any follow-up questions with the panel. My questions are 
directed to Mr. Pollak. Since you gained a great deal of 
popularity from the members of the Committee, I thought I 
should join in as well.
    As we went through the discussions, some of the testimony, 
and some of the questioning, simplistically part of the 
rationale I am hearing for categorical exclusions is delay, 
cost, blame and then that pesky, gets-in-the-way judicial 
review and decisions as we go along. So let us talk about the 
delay issue here for a second, counsel. You have mentioned in 
your testimony that the Forest Service's repeated attempts to 
eliminate the public from the planning process leads to more 
delays, and if you could elaborate on that point.
    Mr. Pollak. Sure. One way that the attempts to eliminate 
the public from the process can lead to delays is a way that 
has been brought up several times during this hearing, 
litigation. I take issue with this idea that delays caused by 
litigation need to be attributed to or blamed on the parties 
that brought the litigation.
    Now oftentimes litigation results in invalidating what the 
Forest Service has done. That certainly has been the case 
recently, and one of the reasons for that is that the Forest 
Service has not properly involved the public in its processes, 
and so with the 2005 NFMA rules, for example, if there had been 
more public involvement and more response, substantive response 
to the public's comments, you might not have had the situation 
we have today where implementation of those rules has been 
enjoined.
    Mr. Grijalva. I do not have any other questions. Mr. 
Bishop?
    Mr. Rey. I would like a chance to respond to that because 
that is not why the Court invalidated the 2005 rules.
    Mr. Grijalva. I am done with my question, Mr. Under 
Secretary. Thank you. Sir.
    Mr. Bishop. Yes, Mr. Rey, would you like to respond to 
that?
    Mr. Rey. Yes. The 2005 rule was not invalidated as a 
consequence of a lack of public participation. There was public 
participation in the 2005 rule and a substantial amount of it 
over the course of the development of that rule. The rule was 
struck for procedural grounds under the Administrative 
Procedures Act and the National Environmental Policy Act. We 
think the decision was wrongly decided but you know that is the 
way it goes, and we will remedy the flaws that the Court found.
    Mr. Pollak did put words in my mouth that I would like to 
reel back in because I said that there was a lack of consensus 
at times associated with the value of fuels treatment projects, 
and that is broadly speaking the case. It would be helpful to 
our Federal-state relations, however, if there was better 
consensus within the State of California agencies about the 
best course of action because you know the Attorney General and 
the Governor are separately elected under the California 
constitution but they are not separately elected to represent 
different Californias.
    Mr. Bishop. I yield back.
    Mr. Grijalva. Thank you very much, and let me thank the 
panel, and invite the second panel to come forward. Thank you.
    [Pause.]
    Mr. Grijalva. Thank you very much. Let me welcome the 
second panel and begin with Thomas Jensen. Sir.

         STATEMENT OF THOMAS C. JENSEN, SONNENSCHEIN, 
             NATH & ROSENTHAL LLP, WASHINGTON, D.C.

    Mr. Jensen. Good morning, Mr. Chairman, Congressman Bishop. 
Thank you for letting me testify today. NEPA implementation 
deserves----
    Mr. Bishop. Sir, can you just talk into the mike? Yes, 
good.
    Mr. Jensen. NEPA implementation deserves this type of 
careful oversight. The law is at the heart of how Federal 
agencies make many of their decisions and, very importantly, it 
is a key way that agencies engage the American public in the 
work of governing. NEPA is a doorway. It gives Federal 
decisionmakers a convenient way to bring citizens in to their 
decisionmaking and to bring decisionmaking to the American 
people.
    If agencies use NEPA wisely, the law helps agencies make 
efficient and intelligent decisions. If used correctly, NEPA 
helps build public credibility for the agencies themselves, 
their leaders and their programs. Categorical exclusions are an 
important and entirely legitimate part of using NEPA wisely. 
Not every Federal agency decision is consequential in terms of 
impacts on the human environment.
    Categorical exclusions are a way of making sure that 
agencies can comply with NEPA without requiring anyone to waste 
time pouring over things that do not matter. My written 
testimony describes the systems of categorical exclusions used 
by the Army, the FAA, Department of Energy and the U.S. 
Marshall Service. These are all sound approaches to NEPA and 
the use of categorical exclusions. They are readable. They make 
sense, and they have either withstood or not attracted 
litigation.
    But as others have noted, categorical exclusions can be 
abused and when they are, they become a way for agencies to 
evade accountability, at least in the short term. Agencies and 
administrations and their leaders always have reasons to wish 
to do some things without accounting for them, at least at the 
time, and these are weaknesses inherent in government and in 
human beings, and it is an entirely nonpartisan problem.
    The negative consequences eventually afflict every type of 
stakeholder, though at any given moment, the burden tends to 
follow the political whims. Unlawful categorical exclusions 
come in three different forms, and my written testimony 
provides specific examples of each. I think I have 11 cases 
cited that cover a variety of agencies and circumstances.
    The first problem occurs when an agency fails to establish 
a rational, empirical basis for deciding that certain decisions 
or actions do not have significant impacts on the human 
environment, and the second typical case occurs when an agency 
disregards empirical evidence of potentially significant 
impacts from certain categories of actions, and usually this 
means that the agency has decided to ignore the fact that 
``significance'' as that term is used in NEPA, is really a 
carefully nuanced term that requires agencies to consider as 
evidence not just things like scale or cost or toxicity or 
tonnage or other conventional metrics, but also context, 
intensity and the public controversy surrounding a planned 
action, and the third formulation is really not a flaw with 
categorical exclusions but it is the case where agencies simply 
disregard their own rules for using categorical exclusions.
    I am a former seasonal employee of the Forest Service, and 
I worked closely with excellent Forest Service officials in 
many different contexts over the years, and I have great 
respect for the complexity of the agency's mission. There is no 
escaping the difficulty of providing stewardship for so many 
places and things about which so many different people care so 
deeply and in incompatible ways. The Courts and others on this 
panel are busy with the debate whether the Forest Service's 
recent approach to categorical exclusions is legal or not. I 
want to make a different point and explore a different issue.
    My thought is that the agency's approach to categorical 
exclusions appears to have had the effect of further weakening 
the credibility and the capability of the agency. This is of 
real concern in an era when the very nature of our forest is 
under dramatic pressure from climate change with associated 
shifts in precipitation, disease, fire, species distribution 
and human needs.
    Right now is the time when the ability of the Forest 
Service to lead with credibility and competence is vitally 
important. Exclusion of the public from involvement in 
decisions that the public cares about may provide short-term 
benefits to the agency in the form of expediency, convenience 
and perceived momentum, yet in our democracy, the approach has 
all the hallmarks of tactical advantage gained at the expense 
of strategic victory.
    Healthy forests represent a goal for our nation that every 
one of us can and should endorse, but the goal will give every 
appearance of a potentially misleading slogan, so long as and 
to the extent that the Forest Service operates in a way that 
invites suspicion of its motives, conduct or impacts. Healthy 
public forests will ultimately depend on healthy public 
governance, and I fear that approach to public engagement that 
creates the impression that the Forest Service is uninterested 
in knowing or disclosing or discussing the impacts of its 
actions will cripple the Service's ability to lead for a long 
time to come. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Jensen follows:]

    Statement of Thomas C. Jensen, Sonnenschein Nath & Rosenthal LLP

    Mr. Chairman, Ranking Member Bishop, and members of the 
Subcommittee, thank you for inviting me to testify today.
    The subject of National Environmental Policy Act implementation 
deserves careful continuing oversight from this Subcommittee and the 
Congress as a whole. Since its enactment in 1969, NEPA has become a 
fundamental feature of the architecture of American governance.
    NEPA is at the heart of how federal agencies make decisions and 
engage the American public in the work of governing.
    There is simply nothing else like NEPA Other laws, like the 
Administrative Procedure Act or the Freedom of Information Act, offer 
the American people a window into their federal government. NEPA is 
different. It isn't a window--it's a doorway. It provides federal 
decision-makers with a convenient way to bring citizens into the 
decision-making process and to bring decision-making to the American 
people.
    If agencies use NEPA wisely--and, as discussed below, many do--the 
law helps agencies make efficient and intelligent decisions. Used 
correctly, NEPA helps agencies build public credibility for the 
agencies themselves, their leaders, and their programs.
    Categorical exclusions are an important part of using NEPA wisely. 
The purpose of categorical exclusions is to accommodate the reality 
that not every federal agency decision is consequential in terms of 
impacts on the human environment, and thus not every decision merits 
incremental analysis and public engagement. There are thousands of 
decisions made by agencies every week that do not have consequences of 
a scale or nature that justify re-opening the NEPA door to re-engage 
the public in the agency's decision-making. Categorical exclusions 
boiled down to their simplest ingredient are a way of making sure that 
NEPA compliance does not mean that agencies or members of the public 
have to waste time poring over things that do not matter very much.
    There are risks inherent in the use of categorical exclusions. They 
can be abused. Intentional or not, an ill-founded categorical exclusion 
is nothing more than a device by an agency to evade accountability for 
the impacts on the human environment of decisions the agency chooses to 
make.
    Agencies and Administrations always have reasons to wish to do some 
things without accounting for them. Individual agency officials have 
biases and agendas that do not show well in daylight. These are 
weaknesses inherent in government and human beings. They are entirely 
non-partisan. The negative consequences eventually afflict every type 
of stakeholder, though at any given moment the burden tends to follow 
the political winds.
    Federal officials who are unwilling to be honest, or allow their 
agencies to be honest about the potential adverse impacts of actions 
they intend to take are malignancies in our system of governance. 
Unlawful categorical exclusions are symptoms of that underlying 
malignancy; they tend to come in three different forms.
    The first occurs when an agency fails to establish a rational, 
empirical basis for deciding that certain decisions or actions do not 
have a significant impact on the human environment. These cases 
typically involve agencies that never take a serious look at the 
potential impacts of a category of actions pursuant to NEPA and decide 
simply to declare by fiat that the particular category of actions does 
not involve significant impacts. We can call this situation ``Flying 
Blind.''
    The second typical case occurs when an agency disregards empirical 
evidence of potentially significant impacts from certain categories of 
actions. The problem usually is not that the agency pretends that 
documented impacts don't exist. Instead, the agency usually 
acknowledges the potential impacts, but decides that the impacts are 
not ``significant'' as that term is used in NEPA, and thus do not 
require further review under NEPA. Usually this means that the agency 
has decided to ignore the fact that ``significance,'' as that term is 
used in NEPA, is a carefully nuanced term that requires agencies to 
consider as evidence not just geographic scale, toxicity, tonnage, cost 
or other conventional metrics, but context, intensity, and the public 
controversy surrounding a planned action. In other words, in this 
second category of unlawful categorical exclusions, the agency will to 
look past the controversial nature of planned action and simply declare 
the impacts to be insignificant. We can call this situation ``Flying 
with Eyes Shut.''
    The third formulation occurs when an agency disregards its own 
rules governing use of categorical exclusions. This probably deserves 
the description of ``Trying to Fly Without Wings.''
    It should not need saying that the federal government should not 
fly blind or with its eyes shut or without wings. These are reckless, 
unnecessary actions that manifest either incompetence in managing 
agency business or a willful disregard for the core functions of 
government.
    I am a former seasonal employee of the Forest Service and have 
worked closely with excellent Forest Service officials in many 
different contexts over the years. I have great respect for the 
complexity of the agency's mission and the inescapable difficulty that 
confronts an agency responsible for stewardship of so many places and 
things about which so many different people care so deeply.
    Without taking a position on the legality of the Forest Service's 
use of categorical exclusions in recent years, or the actual on-the-
ground impacts of the actions taken under those categorical exclusions, 
I feel confident saying that at least in some respects, the agency's 
approach to categorical exclusions appears to have had the effect of 
further weakening the credibility and capability of the agency.
    It is not evident how it has benefited the agency, or the agency's 
mission, to adopt measures that reduce the level or quality of 
engagement between the agency and the public that is interested in the 
agency's work.
    This ought to be of particular concern in an era when the very 
nature of our forests is under dramatic pressure from climate change, 
with associated shifts in precipitation, disease, fire, species 
distribution, and human needs. Right now is a time when the ability of 
the U.S. Forest Service to lead with credibility and competence is 
vitally important.
    NEPA is a tool that, used properly, brings federal agencies and the 
public into a shared understanding about the consequences of agency 
choices. It works to engage the public in the hard work of governance. 
Many agencies and agency leaders use NEPA in exactly that way and reap 
rewards in the form of better decisions, greater credibility and 
enhanced deference from stakeholders.
    Exclusion of the public from involvement in decisions that the 
public cares about may provide short-term benefits to the agency in the 
form of expediency, convenience, and perceived momentum. Yet, in our 
democracy, the approach has all the hallmarks of tactical advantage 
gained at the expense of strategic victory. Healthy forests represent a 
goal for our nation that everyone of us can and should endorse. It 
shouldn't be a heavy lift or require a hard sell. But that goal will 
give every appearance of a misleading slogan so long as, and to the 
extent that the Forest Service operates in a way that invites suspicion 
of its motives, conduct, or impacts.
    Healthy public forests will ultimately depend on healthy public 
governance. I fear, however, that today's real or perceived procedural 
infirmities, particularly those that create the impression that the 
Forest Service is uninterested in knowing or disclosing or discussing 
the impacts of its actions, will cripple the Forest Service's ability 
to lead for a long time to come.
    If the Congress and the Forest Service choose to look ahead to new 
policy choices, it will be helpful to take guidance from concrete 
examples of appropriate use of categorical exclusions shown in other 
agency NEPA procedures and on cases where the federal courts have found 
agency actions involving use of categorical exclusions to be unlawful. 
Attachment A to this testimony describes the NEPA categorical exclusion 
procedures of four different agencies. These approaches have generally 
withstood legal challenges and show on their face carefully drawn 
boundaries between those activities that may cause significant impacts 
and those that are highly unlikely to do so. The second major section 
of Attachment A also describes eleven recent federal court decisions 
involving agencies using categorical exclusions in ways found to be 
unlawful.
    Thank you for this opportunity to testify. I would ask that my full 
statement be included in the record. I would be happy to respond to 
questions.
                                 ______
                                 

              Attachment A--Testimony of Thomas C. Jensen

I. Appropriate Use of Categorical Exclusions: Four Examples
    The National Environmental Policy Act (NEPA) provides a concise 
definition for categorical exclusions:
        ``Categorical Exclusion'' means a category of actions which do 
        not individually or cumulatively have a significant effect on 
        the human environment and which have been found to have no such 
        effect in procedures adopted by a Federal agency in 
        implementation of these regulations...and for which, therefore, 
        neither an environmental assessment nor an environmental impact 
        statement is required.... Any procedures under this section 
        shall provide for extraordinary circumstances in which a 
        normally excluded action may have a significant environmental 
        effect. 1
---------------------------------------------------------------------------
    \1\ 40 C.F.R. Sec. 1508.4 (1978).
---------------------------------------------------------------------------
    Most federal agencies have incorporated use of categorical 
exclusions into their policies and regulations governing NEPA 
implementation. Examples from four very different agencies illustrate 
how agencies have employed categorical exclusions appropriately.
    a. Department of the Army
    The Department of the Army's categorical exclusion guidelines are 
especially relevant when considering the types of categorical 
exclusions that have been used with such frequency by agencies under 
the Bush Administration.
    The guidelines for determining when it is appropriate to exempt an 
action from EA or EIS analysis under a categorical exclusion require 
that three main conditions are met: (1) the action has not been 
segmented; (2) no exceptional circumstances exist; (c) one (or more) 
categorical exclusion(s) encompasses the proposed action. 2
---------------------------------------------------------------------------
    \2\ 67 Fed. Reg. 61, Sec. 651.29(a). (March 29, 2002).
---------------------------------------------------------------------------
    The categorical exclusions approved by the Department of Army 
include the following broad types of activities, each of which is 
further described with detailed examples and restrictions:
    (b) Administration/operation activities:
     (1)  Routine law and order activities performed by military/
military police and physical plant protection and security personnel, 
and civilian natural resources and environmental law officers.
     (2)  Emergency or disaster assistance.
     (3)  Preparation of regulations, procedures, manuals, and other 
guidance documents that implement, without substantive change, the 
applicable HQDA or other federal agency regulations, procedures, 
manuals, and other guidance documents that have been environmentally 
evaluated (subject to previous NEPA review).
     (4)  Proposed activities and operations to be conducted in an 
existing non-historic structure which are within the scope and 
compatibility of the present functional use of the building, will not 
result in a substantial increase in waste discharged to the 
environment, will not result in substantially different waste 
discharges from current or previous activities, and emissions will 
remain within established permit limits, if any.
     (5)  Normal personnel, fiscal, and administrative activities 
involving military and civilian personnel.
     (6)  Routinely conducted recreation and welfare activities not 
involving off-road recreational vehicles.
     (7)  Deployment of military units on a temporary duty or training 
basis where existing facilities are used for their intended purposes 
consistent with the scope and size of existing mission.
     (8)  Preparation of administrative or personnel-related studies, 
reports, or investigations.
     (9)  Approval of asbestos or lead-based paint management plans.
    (10)  Non-construction activities in support of other agencies/
organizations involving community participation projects and law 
enforcement activities.
    (11)  Ceremonies, funerals, and concerts.
    (12)  Reductions and realignments of civilian and/or military 
personnel that: fall below the thresholds for reportable actions as 
prescribed by statute and do not involve related activities such as 
construction, renovation, or demolition activities that would otherwise 
require an EA or an EIS to implement.
    (13)  Actions affecting Army property that fall under another 
federal agency's list of categorical exclusions when the other federal 
agency is the lead agency, or joint actions on another federal agency's 
property that fall under that agency's list of categorical exclusions.
    (14)  Relocation of personnel into existing federally-owned or 
commercially-leased space, which does not involve a substantial change 
in the supporting infrastructure.
    (c) Construction and demolition:
    (1)  Construction of an addition to an existing structure or new 
construction on a previously undisturbed site if the area to be 
disturbed has no more than 5.0 cumulative acres of new surface 
disturbance, not including construction of facilities for the 
transportation, distribution, use, storage, treatment, and disposal of 
solid waste, medical waste, and hazardous waste.
    (2)  Demolition of non-historic buildings, structures, or other 
improvements and disposal of debris therefrom, or removal of a part 
thereof for disposal, in accordance with applicable regulations.
    (3)  Road or trail construction and repair on existing rights-of-
ways or on previously disturbed areas.
    (d) Cultural and natural resource management activities:
    (1)  Land regeneration activities using only native trees and 
vegetation, including site preparation. This does not include forestry 
operations.
    (2)  Routine maintenance of streams and ditches or other rainwater 
conveyance structures and erosion control and stormwater control 
structures.
    (3)  Implementation of hunting and fishing policies or regulations 
that are consistent with state and local regulations.
    (4)  Studies, data collection, monitoring and information gathering 
that do not involve major surface disturbance.
    (5)  Maintenance of archaeological, historical, and endangered/
threatened species avoidance markers, fencing, and signs.
    (e) Procurement and contract activities:
    (1)  Routine procurement of goods and services (complying with 
applicable procedures for sustainable or ``green'' procurement) to 
support operations and infrastructure.
    (2)  Acquisition, installation, and operation of utility and 
communication systems, mobile antennas, data processing cable and 
similar electronic equipment that use existing right-of-way, easement, 
distribution systems, and/or facilities.
    (3)  Conversion of commercial activities under the provisions of AR 
5-20. This includes only those actions that do not change the actions 
or the missions of the organization or alter the existing land-use 
patterns.
    (4)  Modification, product improvement, or configuration 
engineering design change to materiel, structure, or item that does not 
change the original impact of the materiel, structure, or item on the 
environment.
    (5)  Procurement, testing, use, and/or conversion of a commercially 
available product which does not meet the definition of a weapon 
system, and does not result in any unusual disposal requirements.
    (6)  Acquisition or contracting for spares and spare parts, 
consistent with the approved Technical Data Package.
    (7)  Modification and adaptation of commercially available items 
and products for military application, as long as modifications do not 
alter the normal impact to the environment.
    (8)  Adaptation of non-lethal munitions and restraints from law 
enforcement suppliers and industry for military police and crowd 
control activities where there is no change from the original product 
design and there are no unusual disposal requirements.
    (f) Real estate activities:
    (1)  Grants or acquisitions of leases, licenses, easements, and 
permits for use of real property or facilities in which there is no 
significant change in land or facility use.
    (2)  Disposal of excess easement areas to the underlying fee owner.
    (3)  Transfer of real property administrative control within the 
Army, to another military department, or to other federal agency, 
including the return of public domain lands to the Department of 
Interior, and reporting of property as excess and surplus to the GSA 
for disposal.
    (4)  Transfer of active installation utilities to a commercial or 
governmental utility provider, except for those systems on property 
that has been declared excess and proposed for disposal.
    (5)  Acquisition of real property where the land use will not 
change substantially or where the land acquired will not exceed 40 
acres and the use will be similar to current or ongoing Army activities 
on adjacent land.
    (6)  Disposal of real property where the reasonably foreseeable use 
will not change significantly.
    (g) Repair and maintenance activities:
    (1)  Routine repair and maintenance of buildings, airfields, 
grounds, equipment, and other facilities.
    (2)  Routine repairs and maintenance of roads, trails, and 
firebreaks.
    (3)  Routine repair and maintenance of equipment and vehicles which 
is substantially the same as that routinely performed by private sector 
owners and operators of similar equipment and vehicles. This does not 
include depot maintenance of unique military equipment.
    (h) Hazardous materials/hazardous waste management and operations:
    (1)  Use of gauging devices, analytical instruments, and other 
devices containing sealed radiological sources; use of industrial 
radiography; use of radioactive material in medical and veterinary 
practices; possession of radioactive material incident to performing 
services such as installation, maintenance, leak tests, and 
calibration; use of uranium as shielding material in containers or 
devices; and radioactive tracers.
    (2)  Immediate responses in accordance with emergency response 
plans for release or discharge of oil or hazardous materials/
substances; or emergency actions taken by Explosive Ordnance Demolition 
detachment or Technical Escort Unit.
    (3)  Sampling, surveying, well drilling and installation, 
analytical testing, site preparation, and intrusive testing to 
determine if hazardous wastes, contaminants, pollutants, or special 
hazards are present.
    (4)  Routine management, to include transportation, distribution, 
use, storage, treatment, and disposal of solid waste, medical waste, 
radiological and special hazards, and/or hazardous waste that complies 
with agency requirements. This CX is not applicable to new construction 
of facilities for such management purposes.
    (5)  Research, testing, and operations conducted at existing 
enclosed facilities consistent with previously established safety 
levels and in compliance with applicable federal, state, and local 
standards. For facilities without existing NEPA analysis, including 
contractor-operated facilities, if the operation will substantially 
increase the extent of potential environmental impacts or is 
controversial, an EA (and possibly an EIS) is required.
    (6)  Reutilization, marketing, distribution, donation, and resale 
of items, equipment, or materiel; normal transfer of items to the 
Defense Logistics Agency. Items, equipment, or materiel that have been 
contaminated with hazardous materials or wastes will be adequately 
cleaned and will conform to the applicable regulatory agency's 
requirements.
    (i) Training and testing:
    (1)  Simulated war games (classroom setting) and on-post tactical 
and logistical exercises involving units of battalion size or smaller, 
and where tracked vehicles will not be used.
    (2)  Training entirely of an administrative or classroom nature.
    (3)  Intermittent on-post training activities (or off-post training 
covered by an ARNG land use agreement) that involve no live fire or 
vehicles off established roads or trails.
    (j) Aircraft and airfield activities:
    (1)  Infrequent, temporary (less than 30 days) increases in air 
operations up to 50 percent of the typical installation aircraft 
operation rate.
    (2)  Flying activities in compliance with Federal Aviation 
Administration Regulations and in accordance with normal flight 
patterns and elevations for that facility, where the flight patterns/
elevations have been addressed in an installation master plan or other 
planning document that has been subject to NEPA public review.
    (3)  Installation, repair, or upgrade of airfield equipment.
    (4)  Army participation in established air shows sponsored or 
conducted by non-Army entities on other than Army property.
    Extraordinary circumstances that preclude the use of a categorical 
exclusion are:
     (1)  Reasonable likelihood of significant effects on public 
health, safety, or the environment.
     (2)  Reasonable likelihood of significant environmental effects 
(direct, indirect, and cumulative).
     (3)  Imposition of uncertain or unique environmental risks.
     (4)  Greater scope or size than is normal for this category of 
action.
     (5)  Reportable releases of hazardous or toxic substances.
     (6)  Releases of petroleum, oils, and lubricants except from a 
properly functioning engine or vehicle, application of pesticides and 
herbicides, or where the proposed action results in the requirement to 
develop or amend a Spill Prevention, Control, or Countermeasures Plan.
     (7)  When a review of an action that might otherwise qualify for a 
Record of Non-applicability reveals that air emissions exceed de 
minimis levels or otherwise that a formal Clean Air Act conformity 
determination is required.
     (8)  Reasonable likelihood of violating any federal, state, or 
local law or requirements imposed for the protection of the 
environment.
     (9)  Unresolved effect on environmentally sensitive resources.
    (10)  Involving effects on the quality of the environment that are 
likely to be highly controversial.
    (11)  Involving effects on the environment that are highly 
uncertain, involve unique or unknown risks, or are scientifically 
controversial.
    (12)  Establishes a precedent (or makes decisions in principle) for 
future or subsequent actions that are reasonably likely to have a 
future significant effect.
    (13)  Potential for degradation of already existing poor 
environmental conditions. Also, initiation of a degrading influence, 
activity, or effect in areas not already significantly modified from 
their natural condition.
    (14)  Introduction/employment of unproven technology. 3
---------------------------------------------------------------------------
    \3\ Sec. 651.29(b)
---------------------------------------------------------------------------
    A list of the environmentally sensitive resources mentioned in 
Sec. 651.29(b)(9) is provided in Sec. 651.29(c):
    (1)  Proposed federally listed, threatened, or endangered species 
or their designated critical habitats.
    (2)  Properties listed or eligible for listing on the National 
Register of Historic Places.
    (3)  Areas having special designation or recognition such as prime 
or unique agricultural lands; coastal zones; designated wilderness or 
wilderness study areas; wild and scenic rivers; National Historic 
Landmarks; 100-year floodplains; wetlands; sole source aquifers; 
National Wildlife Refuges; National Parks; areas of critical 
environmental concern; or other areas of high environmental 
sensitivity.
    (4)  Cultural Resources as defined in AR 200-4.
    Of course, if an action can be excluded from environmental study 
under a categorical exclusion, the agency must still comply with other 
applicable statutes. 4
---------------------------------------------------------------------------
    \4\ Sec. 651.29(d).
---------------------------------------------------------------------------
    The Department of Army encourages regular review and modification 
of existing categorical exclusions. 5
---------------------------------------------------------------------------
    \5\ Id. at Sec. 651.31.
---------------------------------------------------------------------------
    b. Department of Justice
    The United States Marshals Service, Department of Justice, 
supplemented its procedures for NEPA compliance in 2006. 6 
These procedures detail the extraordinary circumstances that bar the 
application of a categorical exclusion as well as actions that could be 
eligible for a categorical exclusion. The actions that would normally 
qualify for a categorical exclusion are presented first in this 
discussion.
---------------------------------------------------------------------------
    \6\ 71 Fed. Reg. 236. (Dec. 8, 2006).
---------------------------------------------------------------------------
    7. Categorical Exclusions
    (c) Actions that normally qualify for a categorical exclusion 
include:
     (1)  Minor renovations or repairs within an existing facility, 
unless the project would adversely affect a structure listed in the 
National Register of Historic Places or is eligible for listing in the 
register;
     (2)  Facility expansion, or construction of a limited addition to 
an existing structure, or facility, and new construction or 
reconstruction of a small facility on a previously developed site. The 
exclusion applies only if:
             (i)  The structure and proposed use comply with local 
            planning and zoning and any applicable State or Federal 
            requirements; and
            (ii)  The site and the scale of construction are consistent 
            with those of existing adjacent or nearby buildings.
     (3)  Security upgrades of existing facility grounds and perimeter 
fences, not including such upgrades as adding lethal fences or major 
increases in height or lighting of a perimeter fence in a residential 
area or other area sensitive to the visual impacts resulting from 
height or lighting changes;
     (4)  Federal contracts or agreements for detentions services, 
including actions such as procuring guards for detention services or 
leasing bed space from an existing facility operated by a State or a 
local government or a private correctional corporation;
     (5)  General administrative activities that involve a limited 
commitment of resources, such as personnel actions or policy related to 
personnel issues, organizational changes, procurement of office 
supplies and systems, and commitment or reallocation of funds for 
previously reviewed and approved programs or activities;
     (6)  Change in contractor or Federal operators at an existing 
contractor-operated correctional or detention facility,
     (7)  Transferring, leasing, maintaining, acquiring, or disposing 
of interests in land where there is no change in the current scope and 
intensity of land use;
     (8)  Transferring, leasing, maintaining, acquiring, or disposing 
of equipment, personal property, or vessels that do not increase the 
current scope and intensity of USMS activities;
     (9)  Routine procurement of goods and services to support 
operations and infrastructure that are conducted in accordance with 
Department of Justice energy efficiency policies and applicable 
Executive Orders;
    (10)  Routine transportation of prisoners or detainees between 
facilities and flying activities in compliance with Federal Aviation 
Administration Regulations, only applicable where the activity is in 
accordance with normal flight patterns and elevations for the facility 
and where the flight patterns/elevations have been addressed in an 
installation master plan or other planning document that has been the 
subject of a NEPA review; and
    (11)  Lease extensions, renewals, or succeeding leases where there 
is no change in the intensity of the facility's use.
    (b) Extraordinary circumstances must be considered before relying 
upon a categorical exclusion to determine whether the proposed action 
may have a significant environmental impact...the following 
circumstances preclude the use of a categorical exclusion:
    (1)  The project may have effects on the quality of the environment 
that are likely to be highly controversial;
    (2)  The scope or size of the project is greater than normally 
experienced for a particular action;
    (3)  There is potential for degradation, even if slight, of 
already-existing poor environmental conditions;
    (4)  A degrading influence, activity, or effect is initiated in an 
area not already significantly modified from its natural condition;
    (5)  There is a potential for adverse effects on areas of critical 
environmental concern or other protected resources including, but not 
limited to, threatened or endangered species or their habitats, 
significant archaeological materials, prime or unique agricultural 
lands, wetlands, coastal zones, sole source aquifers, 100-year-old 
flood plains, places listed, proposed, or eligible for listing on the 
National Register of Historic Places, natural landmarks listed, 
proposed, or eligible for listing on the National Registry of Natural 
Landmarks, Wilderness Areas or wilderness study areas, or Wild and 
Scenic River areas; or
    (6)  Possible significant direct, indirect, or cumulative 
environmental impacts exist.
    The United States Marshals Service's approach to use of categorical 
exclusions seems to be especially concerned with those actions that 
would alter the intensity and scope of current land uses. The agency's 
approach also shows concern as to whether that a proposed activity is 
within the same scope and intensity of other activities commonly 
exempted under the categorical exclusion.
    c. Department of Transportation-FAA
    To facilitate the use of categorical exclusions for airports, the 
Federal Aviation Administration provides a checklist 7 to be 
completed when submitting a proposed activity for exemption from 
environmental study under a categorical exclusion. The FAA has also 
produced tables detailing types of categorical exclusions and 
extraordinary circumstances that prevent use of such exclusions from 
NEPA review. The checklist mirrors the requirements set forth in the 
guidelines and tables provided and discussed below.
---------------------------------------------------------------------------
    \7\ Available at http://www.faa.gov/airports_airtraffic/airports/
regional_guidance/central/environmental/environmental_review/catex/. 
Accessed 6/18/2007.
---------------------------------------------------------------------------
    The FAA characterizes categorical exclusions as either situations 
that may involve extraordinary situations or those that are unlikely to 
involve extraordinary circumstances. The situations the FAA has 
determined unlikely to involve extraordinary circumstances include:
      Grants for airport planning;
      Bond retirement for terminal development;
      Conditional airport layout plan approval;
      Grants to prepare environmental documents;
      Grants to prepare noise exposure maps and compatibility 
programs;
      Approval of passenger facility charge;
      Issuing policy and planning documents;
      Safety equipment for airport certification
      Security equipment purchase. 8
---------------------------------------------------------------------------
    \8\ FAA Order 5050.4--National Environmental Policy Act 
Implementing Instructions for Airport Projects. Chapter 6 Categorical 
Exclusions. Table 6-1.
---------------------------------------------------------------------------
    The list detailing categorical exclusions that may involve 
extraordinary circumstances is significantly longer. Included in Table 
6-2, these actions center around physical airport maintenance and 
improvement, and other regular airport activities that affect the 
physical space and air near airports:
      Airfield barriers.
      Airfield improvements, aircraft parking areas.
      Airfield improvements, roads.
      Airfield improvements, runways.
      Airfield improvements, storage areas.
      Airfield lighting.
      Cargo building.
      Conveying Federally-owned airport land.
      Deicing/anti-icing facility.
      Fill activity.
      General landscaping.
      Heliport at an existing airport.
      Low emission technology equipment, including the 
Voluntary Airport Low Emission Program
      Non-radar facilities.
      Noise barriers.
      Noise compatibility programs.
      Non-U.S. waters, including wetlands in which 
categorically excluded actions are proposed.
      On-airport obstruction treatment.
      Ownership change by purchase or transfer.
      Parking areas.
      Passenger handling building.
      Radar installation.
      Releasing airport land.
      Relocation.
      Repair and maintenance.
      Replacement structures.
      Restrictions, aircraft access.
      Runway threshold.
      Security.
      Transfer land by long-term lease or acquisition.
      U.S. Waters, including wetlands, in which categorically 
excluded actions are proposed.
      Utility line construction, temporary.
      Wildlife Hazard Management Plan implementation. 
9
---------------------------------------------------------------------------
    \9\ FAA Order 5050.4--National Environmental Policy Act 
Implementing Instructions for Airport Projects. Chapter 6 Categorical 
Exclusions. Table 6-2.
---------------------------------------------------------------------------
    Table 6-3 details the extraordinary circumstances that may require 
an otherwise excluded action undergo environmental studies. Largely, 
these circumstances mirror those seen in the previously considered 
categorical exclusion guidelines. There are, however, a number that are 
unique to the FAA:
      Air quality.
      Coastal zone areas.
      Community disruption.
      Cumulative impacts.
      Endangered species.
      Farmlands conversion.
      Floodplains.
      Hazardous materials.
      Highly controversial action.
      Historic or cultural property.
      Inconsistency with applicable laws.
      Noise.
      Traffic congestion.
      U.S. waters, including jurisdictional wetlands.
      Water quality.
      Wild and Scenic Rivers. 10
---------------------------------------------------------------------------
    \10\ FAA Order 5050.4--National Environmental Policy Act 
Implementing Instructions for Airport Projects. Chapter 6 Categorical 
Exclusions. Table 6-3.
---------------------------------------------------------------------------
    d. Department of Energy
    The Department of Energy's guidelines on categorical exclusions is 
an especially useful approach because the analysis required for a 
categorical exclusion determination is presented in a step-by-step 
format. 11
---------------------------------------------------------------------------
    \11\ Sec. 1021.410(b). Available at http://www.eh.doe.gov/NEPA/
tools/REGULATE/NEPA_REG/1021/nepa1021_rev.pdf. Accessed 6/22/2007.
---------------------------------------------------------------------------
    First, the agency determines whether the activity falls into one of 
the categories of activities that can qualify for a categorical 
exclusion. The agency has detailed both general agency actions and 
specific agency actions.
    Categorical exclusions applicable to general agency actions:
    A1 Routine actions necessary to support the normal conduct of 
agency business, such as administrative, financial, and personnel 
actions.
    A2 Contract interpretations, amendments, and modifications that are 
clarifying or administrative in nature.
    A3 Adjustments, exceptions, exemptions, appeals, and stays, 
modifications, or rescissions of orders issued by the Office of 
Hearings and Appeals.
    A4 Interpretations and rulings with respect to existing 
regulations, or modifications or rescissions of such interpretations 
and rulings.
    A5 Rulemaking interpreting or amending an existing rule or 
regulation that does not change the environmental effect of the rule or 
regulation being amended.
    A6 Rulemakings that are strictly procedural, such as rulemaking 
establishing procedures for technical and pricing proposals and 
establishing contract clauses and contracting practices for the 
purchase of goods and services, and rulemaking establishing application 
and review procedures for, and administration, audit, and closeout of, 
grants and cooperative agreements.
    A7 Transfer, lease, disposition, or acquisition of interests in 
personal property or real property, if property use is to remain 
unchanged; i.e., the type and magnitude of impacts would remain 
essentially the same.
    A8 Award of contracts for technical support services, management 
and operation of a government-owned facility, and personal services.
    A9 Information gathering, data analysis, document preparation and 
dissemination, but not including site characterization or environmental 
monitoring.
    A10 Reports or recommendations on legislation or rulemaking that is 
not proposed by DOE.
    A11 Technical advice and planning assistance to international, 
national, state, and local organizations.
    A12 Emergency preparedness planning activities, including the 
designation of onsite evacuation routes.
    A13 Administrative, organizational, or procedural Orders, Notices, 
and guidelines.
    A14 Approval of technical exchange arrangements for information, 
data, or personnel with other countries or international organizations, 
including, but not limited to, assistance in identifying and analyzing 
another country's energy resources, needs and options.
    A15 Approval of DOE participation in international ``umbrella'' 
agreements for cooperation in energy research and development 
activities that would not commit the U.S. to any specific projects or 
activities. 12
---------------------------------------------------------------------------
    \12\ Appendix A to Subpart D of Sec. 1021.
---------------------------------------------------------------------------
    Categorical exclusions applicable to specific agency actions are 
significantly more detailed. Descriptions of these activities are 
abbreviated here:
    B1 Categorical exclusions applicable to facility operation. 
Representative examples include:
        B1.3 Routine maintenance/custodial services for buildings, 
        structures, infrastructures, equipment;
        B1.4 Installation/modification of air conditioning systems for 
        existing equipment;
        B1.5 Improvements to cooling water systems within existing 
        building, structure;
        B1.7 Acquisition/installation/operation/removal of 
        communication systems, data processing equipment;
        B1.9 Placement of airway safety markings/painting (not 
        lighting) of existing lines, antennas;
        B1.13 Construction/acquisition/relocation of onsite pathways, 
        short onsite access roads/railroads;
        B1.16 Removal of asbestos from buildings;
        B1.21 Noise abatement;
        B1.22 Relocation of buildings;
        B1.27 Disconnection of utilities;
    B2 Categorical exclusions applicable to safety and health. 
Representative examples include:
        B2.1 Modifications to enhance workplace habitability;
        B2.3 Installation of equipment for personnel safety and health;
    B3 Categorical exclusions applicable to site characterization, 
monitoring, and general research. Representative examples include:
        B3.3 Research related to conservation of fish and wildlife;
        B3.8 Outdoor ecological/environmental research in small area;
        B3.9 Certain Clean Coal Technology Demonstration Program 
        activities;
    B4 Categorical exclusions applicable to Power Marketing 
Administrations and to all of DOE with regard to power resources. 
Representative examples include:
        B4.1 Contracts/marketing plans/policies for excess electric 
        power;
        B4.2 Export of electric energy;
        B4.6 Additions/modifications to electric power transmission 
        facilities within previously developed area;
        B4.7 Adding/burying fiber optic cable;
        B4.11 Construction or modification of electric power 
        substations;
    B5 Categorical exclusions applicable to conservation, fossil, and 
renewable energy activities. Representative examples include:
        B5.1 Actions to conserve energy;
        B5.2 Modifications to oil/gas/geothermal pumps and piping;
        B5.6 Oil spill cleanup operations;
        B5.7 Import/export natural gas, no new construction;
        B5.12 Workover of existing oil/gas/geothermal well;
    B6 Categorical exclusions applicable to environmental restoration 
and waste management activities. Representative examples include:
        B6.1 Small-scale, short-term cleanup actions under RCRA, Atomic 
        Energy Act, or other authorities;
        B6.4 Siting/construction/operation/decommissioning of facility 
        for storing packaged hazardous waste for 90 days or less;
        B6.8 Modifications for waste minimization/reuse of materials;
        B6.9 Small-scale temporary measures to reduce migration of 
        contaminated groundwater;
    B7 Categorical exclusions applicable to international activities;
        B7.1 Emergency measures under the International Energy Program;
        B7.2 Import/export of special nuclear or isotopic materials. 
        13
---------------------------------------------------------------------------
    \13\ Appendix B to Subpart D of Sec. 1021.
---------------------------------------------------------------------------
    Second, the guidelines require a determination that no 
extraordinary circumstances exist that could affect the level of 
environmental impact of the activity. The extraordinary circumstances 
detailed by the Department of Energy differ from the types of 
circumstances found in the Department of the Army and U.S. Marshals' 
regulations:
      Unique situations presented by specific proposals, such 
as scientific controversy about the environmental effects of the 
proposal;
      Uncertain effects or effects involving unique or unknown 
risks;
      Or unresolved conflicts concerning alternative uses of 
available resources. 14
---------------------------------------------------------------------------
    \14\ Sec. 1021.410(2).
---------------------------------------------------------------------------
    Third, the guidelines require that the proposed action is not 
connected to other activities that do have substantial environmental 
impacts or to other proposed actions that cumulatively will have a 
substantial environmental impact. 15
---------------------------------------------------------------------------
    \15\ Sec. 1021.410(b)(3).
---------------------------------------------------------------------------
II. Unlawful Categorical Exclusions: Eleven Examples
    In recent years, the federal courts have been called on to assess 
the legality of categorical exclusions adopted by a variety of 
agencies, including the Forest Service, Department of the Interior, 
Department of Energy, and Department of Transportation. The following 
cases illustrate a range of circumstances in which the use of 
categorical exclusions were found to be illegal.
    Heartwood v. United States Forest Service. 16 The 
plaintiffs here--a land owner with property adjacent to the Shawnee 
National Forest in Southern Illinois, a user of national forests and an 
environmental group--challenged a proposed Forest Service categorical 
exclusion concerning timber harvests. Following notice and comments in 
1991, the Forest Service had issued new categorical exclusions in 1992 
that had the effect of increasing by ten times the amount of 
salvageable wood product and by 2.5 times the amount of live trees that 
could be harvested without environmental analysis. The U.S. District 
Court for the Southern District of Illinois found that these 
substantial increases were simply not supported by any findings in the 
administrative record. The court also found that the administrative 
record did not provide support for, and in fact the Forest Service did 
not address, whether actions of this magnitude would truly have no 
significant individual or cumulative effects on the environment, as is 
required by NEPA for categorical exclusions. 17
---------------------------------------------------------------------------
    \16\ 73 F.Supp.2d 962 (S.D. Ill. 1999).
    \17\ Id. at 975-76.
---------------------------------------------------------------------------
    Riverhawks v. Zepeda. 18 This case centered around 
motorboat use on a wild portion of the Rogue River in Oregon. The 
plaintiff here, a river advocacy group, claimed that extraordinary 
circumstances precluded the Forest Service's use of a categorical 
exclusion because of evidence that motor boats on the river would 
significantly impact populations of juvenile salmonids and Western Pond 
Turtles, as well as some vegetation. The categorical exclusion in 
question allowed the Forest Service to grant special issue permits for 
commercial tour and fishing boats without engaging in NEPA analysis. 
The District Court for the District of Oregon found that the 
administrative record supported the plaintiff's argument. The Decision 
Memo issued by the Forest Service for the categorical exclusion 
specifically stated that the turtles and salmon might be affected. The 
court found that the level of impact was not addressed in the 
administrative record; the agency failed to provide justification for 
issuing a categorical exclusion in the face of acknowledged but 
unquantified impacts. 19 The court refused to uphold the 
agency's use of this categorical exclusion, and granted summary 
judgment for the plaintiff on their NEPA claim. 20
---------------------------------------------------------------------------
    \18\ 228 F.Supp.2d 1173 (D. Or. 2002).
    \19\ Id. at 1189-90.
    \20\ Additional challenges related to this categorical exclusion 
were mounted by the plaintiffs; only the challenge here was successful.
---------------------------------------------------------------------------
    High Sierra Hikers Assoc. v. Blackwell. 21 This 2002 
case focused on the use of a Forest Service categorical exclusion to 
exempt one-year renewals of trail permits to commercial packstock 
operators in the John Muir and Ansel Adams wilderness areas. This use 
of a categorical exclusion failed because the Forest Service's internal 
regulations do not allow the use of categorical exclusions for 
activities in wilderness areas. Because the Forest Service acted in 
violation of its own regulations on the use of categorical exclusions, 
the court held that an EA or EIS was required for these permit 
renewals. 22
---------------------------------------------------------------------------
    \21\ 390 F.3d 630 (9th Cir. 2004).
    \22\ Id. at 641.
---------------------------------------------------------------------------
    Wilderness Watch v. Mainella. 23 At the district court 
level, summary judgment was granted in favor of the National Park 
Service where the plaintiff sought an injunction to disallow motor 
vehicle tours in a designated wildness area on Cumberland Island, 
Georgia. 24 The National Park Service allowed the tours 
without environmental analysis, arguing the action fell under a 
categorical exclusion. The categorical exclusion invoked by the Park 
Service excluded ``routine and continuing government business, 
including such things as supervision, administration, operations, 
maintenance and replacement activities having limited context and 
intensity; e.g. limited size and magnitude or short-term effects.'' 
25 The court rejected use of the categorical exclusion 
because the Park Service provided no evidence in the administrative 
record that the action was considered a categorical exclusion when 
these tours were actually permitted (that is, the categorical exclusion 
was a post hoc rationalization). Further, the court did not accept the 
Park Service's assertion that approval of such motor vehicle tours 
properly fell within the category of ``routine and continuing 
government business,'' finding that obtaining a large van to 
accommodate fifteen tourists hardly appeared to be a routine and 
continuing form of administration and maintenance. 26
---------------------------------------------------------------------------
    \23\ 375 F.3d 1085 (11th Cir. 2004).
    \24\ Id. at 1087.
    \25\ Id. at 1094.
    \26\ Id. at 1095.
---------------------------------------------------------------------------
    California v. Norton. 27 In this 2002 case, the 
California Coastal Commission filed suit against the Department of the 
Interior's Minerals Management Service challenging a categorical 
exclusion drafted for suspensions of off-shore oil leases. The agency 
suspended the leases so they would not expire. 28 California 
argued that the Department of the Interior was required to prepare an 
EIS before suspending the leases. Interior asserted that the agency was 
not required to perform any environmental analysis because lease 
suspensions were categorically excluded from NEPA review. The 
plaintiffs argued that the agency had not relied upon a categorical 
exclusion determination when it suspended the leases and was relying on 
the existence of the exclusions as a post hoc rationalization for 
failure to perform an environmental review. 29
---------------------------------------------------------------------------
    \27\ 311 F.3d 1162 (9th Cir. 2002).
    \28\ Id. at 1164-65.
    \29\ Id. at 1175.
---------------------------------------------------------------------------
    The Ninth Circuit heard the case on appeal following a district 
court ruling in favor of the plaintiffs, who sought to enjoin the 
suspensions pending environmental analysis as well as a justification 
for the use of the categorical exclusion. 30 The court 
underscored the importance of an administrative record for judicial 
review: ``It is difficult for a reviewing court to determine if the 
application of an exclusion is arbitrary and capricious where there is 
no contemporaneous documentation.'' 31 Additionally, the 
court expressed some skepticism about the use of a categorical 
exclusion here. ``At the very least, there is substantial evidence in 
the record that exceptions to the categorical exclusion may apply, and 
the fact that the exceptions may apply is all that is required to 
prohibit use of the categorical exclusion.'' 32 The case was 
remanded to the district court to determine exactly what level of NEPA 
analysis would be required. 33
---------------------------------------------------------------------------
    \30\ Id. at 1165.
    \31\ Id. at 1176.
    \32\ Id. at 1177.
    \33\ Id. at 1178.
---------------------------------------------------------------------------
    West v. Sec'y of the Dep't of Transportation. 34 The 
Federal Highway Administration's categorical exclusion of a highway 
interchange project in Washington was challenged by a citizen. In 
examining whether a categorical exclusion applied to the a new highway 
construction project, the court found that the Federal Highway 
Administration's own regulations disallowed this type of categorical 
exclusion. 35 The court found that the agency's own 
regulations do not allow reliance on categorical exclusions for 
projects that will significantly impact travel patterns. The underlying 
reason for the new interchange was to relieve traffic congestion. 
36 The court rejected the agency's argument that a new 
highway project could simultaneously relieve traffic congestion without 
significantly impacting travel patterns.
---------------------------------------------------------------------------
    \34\ 206 F.3d 920 (9th Cir. 2000).
    \35\ Id. at 927, 929.
    \36\ Id. at 929.
---------------------------------------------------------------------------
    Citizens for Better Forestry v. United States Dep't of Agriculture. 
37 In this case, the Forest Service sought to implement a 
programmatic rule that changed the forest management requirements 
related to species viability and diversity within national forests. The 
2005 rule in question, which was not open to public notice or comment, 
eliminated special viability and diversity requirements for forest 
management first established in the 1982 Planning Regulations that 
built on the National Forest Management Act of 1976. 38 The 
agency took the view that the rule should be exempt from environmental 
analysis because the rule itself simply provided a starting point for 
NEPA analysis, rather than directly producing environmental effects. 
39 This 2005 rule was exempted by the Forest Service under a 
categorical exclusion that includes ``routine administrative, 
maintenance, and other actions.'' 40 The court noted that no 
Ninth Circuit court has ever upheld such a broad action as appropriate 
under a categorical exclusion. 41 The court found that the 
agency could not document any findings that supported the assertion 
that no significant effects would result from the rule change, and 
required that the agency perform either an EA or EIS. 42
---------------------------------------------------------------------------
    \37\ 481 F.Supp.2d 1059 (N.D. Cal 2007).
    \38\ Id. at 1064-67.
    \39\ Id.
    \40\ Id. at 1082.
    \41\ Id. at 1087.
    \42\ Id. at 1090.
---------------------------------------------------------------------------
    California v. United States Dep't of Agriculture. 43 
This complex case involved the replacement of a Forest Service rule 
limiting road construction in national forests. In 2001, the Forest 
Service promulgated the Roadless Rule, prohibiting road construction, 
road reconstruction and timber harvesting in specific roadless areas 
nationwide. 44 This initial rule was set to take effect on 
March 13, 2001, but President Bush issued a moratorium on pending 
Clinton administration regulations before the Roadless Rule went into 
effect. 45 Court proceedings were initiated in Idaho and 
Wyoming. 46 While these cases were pending, the Forest 
Service enacted the State Petitions Rule, which eliminated the uniform 
national protections found in the 2001 rule, reverting oversight of 
construction projects back to forest-by-forest analysis, and adding a 
state-by-state appeals process through which states could take over the 
forests within their borders. 47 The agency argued that the 
new rule fell within the scope of a categorical exclusion that covered 
routine administrative procedures. 48 The court found that 
the agency was still required to study the new rule, as it could not 
fall under a categorical exclusion because the new rule substantially 
impacted the environment. 49
---------------------------------------------------------------------------
    \43\ 459 F.Supp.2d 874 (N.D. Calif. 2006).
    \44\ Id. at 879-80.
    \45\ Id. at 880.
    \46\ Id. at 880-81. Kootenai Tribe v. Veneman, 142 F.Supp.2d 1231 
(D. Idaho 2001); Wyoming v. United States Dep't of Agric., 277 
F.Supp.2d 1197 (D. Wyo. 2003).
    \47\ Id. at 881.
    \48\ Id. at 894.
    \49\ Id. at 904.
---------------------------------------------------------------------------
    Arkansas Nature Alliance v. United States Army Corps of Eng'rs. 
50 In this case from 2003, heard in the Eastern District of 
Arkansas, the Army Corps of Engineers approved a change to the height 
and length of a bridge using a so-called ``Letter of Permission.'' This 
Letter of Permission was issued on January 22, 2001. Under a Corps 
categorical exclusion, Letters of Permission do not require individual 
environmental review. The plaintiffs argued and the court agreed that 
the proposed action could have a significant environmental effect, was 
not a minor action, and was likely to be met with controversy--all of 
which disqualified the action from coverage under categorical 
exclusion. 51 The new bridge, however, had already been 
completed when this court heard the case. Nonetheless, the court ruled 
that the Corps' use of the categorical exclusion, because unreasonable, 
should be revoked. What's more, full NEPA analysis was required of the 
original application. The court ordered that the bridge be returned to 
its original dimensions, but stayed this order pending environmental 
analysis of the original application. 52
---------------------------------------------------------------------------
    \50\ 266 F.Supp.2d 876 (E.D. Ark. 2003).
    \51\ Id. at 886-87.
    \52\ Id. at 894-95.
---------------------------------------------------------------------------
    Sierra Club v. United States Dep't of Energy. 53 This 
case centers on an easement on Department of Energy land that was 
granted to a mining company for use in connection with new, then 
unapproved, gravel mining operations. 54 The court found 
that, while the easement itself may not have had significant 
environmental effects, the Department of Energy's internal regulations 
disallow a categorical exclusion that is ``connected to other actions 
with potentially significant impacts.'' 55 Because the 
granting of the easement and establishment of the new mining operation 
were linked, they were required to be considered together. Agency 
assurances that the mine would be studied under NEPA guidelines in the 
future were not sufficient. The categorical exclusion was found 
arbitrary and capricious. 56
---------------------------------------------------------------------------
    \53\ 255 F.Supp.2d 1177 (D. Colo. 2002).
    \54\ Id. at 1181.
    \55\ Id. at 1183, citing 10 C.F.R. Sec. 1021.410(b)(3).
    \56\ Id. at 1185.
---------------------------------------------------------------------------
    Comm. for Idaho's High Desert v. Collinge. 57 The 
plaintiff here, an environmental group, initiated this case to enjoin a 
sage grouse population control program initiated by the U.S. Fish and 
Wildlife Service; the district court granted the plaintiff a 
preliminary injunction to remain in effect until the propriety of this 
categorical exclusion use by the Service was litigated. 58 
The sage grouse control program involved killing avian predators of the 
sage grouse, as well as using various hunting techniques to control 
other predators, including coyotes, red foxes, black bears, mountain 
lions, bobcats, raccoons, badgers, striped skunks, ravens and magpies. 
59 The Service categorically excluded an action to control 
sage grouse populations under two possible categorical exclusions:
---------------------------------------------------------------------------
    \57\ 148 F.Supp.2d 1097 (D. Idaho 2001).
    \58\ Id. at 1099.
    \59\ Id. at 1100.
---------------------------------------------------------------------------
        ``(i) Activities that are carried out in laboratories, 
        facilities, or other areas designed to eliminate the potential 
        for harmful environmental effects-internal or external-and to 
        provide for lawful waste disposal;'' 60 or ``routine 
        measures.'' 61
---------------------------------------------------------------------------
    \60\ Id. at 1101.
    \61\ Id. at 1102.
---------------------------------------------------------------------------
    In choosing to issue an injunction requested by the plaintiff to 
enjoin these activities, the court found that the plaintiffs were 
likely to succeed in their case in large part because the agency failed 
to keep an administrative record that supported their use of the either 
of the proposed categorical exclusions. 62
---------------------------------------------------------------------------
    \62\ Id. at 1103.
---------------------------------------------------------------------------
                                 ______
                                 
    Mr. Grijalva. Thank you, sir. Let me now turn to Mr. Mark 
Menlove. Sir.

        STATEMENT OF MARK MENLOVE, EXECUTIVE DIRECTOR, 
                   WINTER WILDLANDS ALLIANCE

    Mr. Menlove. Thank you, Mr. Chairman. Again, my name is 
Mark Menlove. I live in Boise, Idaho, and I am the Executive 
Director with Winter Wildlands Alliance. I am testifying today 
on behalf of the Outdoor Alliance, which is a coalition of six 
national member-based organizations devoted to conservation and 
stewardship of our public lands through responsible human-
powered outdoor recreation.
    Outdoor Alliance includes Access Fund, American Canoe 
Association, American Hiking Society, American Whitewater, 
International Mountain Bicycling Association, and Winter 
Wildlands Alliance. Collectively, we have members in all 50 
states. We have a network of nearly 2,000 local clubs and 
advocacy groups, 22 of which are located in Idaho where I live 
now, 32 in Arizona, another 21 in my home State of Utah.
    As a native Utahan I grew up hiking, skiing and camping in 
the Wasatch Mountains. Those childhood experiences in the 
outdoors have had a profound impact and influence on my life, 
and indeed served as the catalyst for my pursuing a career in 
the outdoor and winter recreation industry.
    I worked as a backcountry ski guide. I am a certified 
professional avalanche and snow safety professional. I worked 
for the U.S. Ski Team. Served as president of the Utah Ski 
Association, and in that role I was involved in Salt Lake 
City's successful bid for the 2002 Winter Olympic games, and 
then I had the privilege of going back and working for the 
Olympic Committee during those games. Much of my time these 
days is spent passing on my love of the outdoors to my three 
children, and I am pleased to say that they are enthusiastic 
partners in our outdoor adventures.
    Outdoor Alliance and our members have a clear stake in 
forest planning. As outdoor enthusiasts, we need public lands 
and their topography to do what we do. Kayakers need rivers. 
Climbers need escarpments. Mountain bikers and hikers need 
trails, but what really unites our broader community is an 
unshakable conviction and ethic toward stewardship and 
conservation of our public lands.
    This ethic is reflected in the thousands of volunteer hours 
that our members spend on their local forests each year and in 
our active involvement in management of national forest lands. 
Though Outdoor Alliance is a fairly new coalition, our member 
organizations have filed comments on river management plans, 
climbing management plans, travel plans and forest plans for 
decades. The trend to subject more Forest Service decisions to 
categorical exclusions causes our community concern.
    In particular, we believe that excluding forest plans from 
NEPA review is a grave mistake for a number of reasons. 
Decisions made in forest plans have huge material impacts on 
our community. The U.S. Forest System is a multiple use land 
management agency, and while 192 million acres may seem like 
all the space in the world, it can get crowded very quickly 
when all these uses including timber, mining and a broad 
diverse spectrum of recreation are pursued in the same place or 
at the same time.
    Thankfully, forest planning creates a framework for 
managing an entire forest, including designations that 
specifically allow or disallow different uses on all or part of 
a forest. The allocation of different uses in a multi-use 
landscape begs for the type of analysis that NEPA provides so 
effectively. Proper NEPA analysis in the planning stage ensures 
balanced management and also makes sure that individual 
projects fit within an overarching forest management framework 
for the forest-wide system.
    Informed and meaningful public participation helps the 
Forest Service and inspires greater public confidence in agency 
decisions. Participation in land use decisionmaking is a two-
way street. The outdoor community treasures our ability to 
provide our perspectives and have them considered but, more 
than that, our members traverse virtually every foot of trail 
and river and backcountry ski route in the Nation each year, 
which is far more than any agency can claim of their collective 
staff.
    We thus bring not only our interests but a broad based and 
practical knowledge and information to the planning process, 
which is critical to responsible management of those lands. The 
ability to bring that useful perspective to the forest planning 
process is certainly not unique to the outdoor recreation 
community. Indeed it is this process of collecting and 
analyzing and sharing all of the various perspectives and 
insights that make a forest plan developed with a NEPA review 
one that has earned the public's trust.
    Outdoor Alliance is concerned with the ambiguous 
administrative review process when forest planning is 
categorically excluded from NEPA analysis. A critically 
important attribute of NEPA review is an administrative appeal 
framework which provides meaningful opportunities to resolve 
differences without immediately looking to the Courts.
    Many have derided NEPA review for involving too much red 
tape and for taking too long. Though we are all in favor of 
increased government efficiency and better implementation, 
efficiency cannot trump meaningful public input, especially on 
something as far reaching as a multi-year plan for an entire 
forest.
    To be clear, the Outdoor Alliance does not oppose 
categorical exclusions in their proper place and time. As has 
already been stated, they are a useful tool, but we do believe 
they should be used judiciously and that they are inappropriate 
for a forest planning process. Responsible management and 
stewardship decisions require multiple perspectives. These 
decisions cannot take place in a vacuum and should not take 
place without the informed exploration of reasonable 
alternatives regarding how a forest should be managed over a 
stretch of years.
    For multiple uses to properly coexist, the forest planning 
process must be transparent, have robust public input, be 
premised on informed decisionmaking and have mechanisms to 
assure accountability. NEPA may not be a perfect process, but 
it is a process that works and enjoys the public's trust. In 
short, NEPA protects more than the environment. It protects our 
constituents' opportunity for healthy recreation on forest 
lands. By categorically excluding forest planning from NEPA 
analysis, that protection is lost. Thank you for the 
opportunity.
    [The prepared statement of Mr. Menlove follows:]

              Statement of Mark Menlove, Outdoor Alliance

    Mr. Chairman and Members of the Subcommittee:
    I am Mark Menlove. I live in Boise, Idaho and I serve as the 
Executive Director of Winter Wildlands Alliance.
    I am testifying today on behalf of the Outdoor Alliance, a 
coalition of six national, member-based organizations devoted to 
conservation and stewardship of our nation's public lands and waters 
through responsible human-powered outdoor recreation. Outdoor Alliance 
includes: Access Fund, American Canoe Association, American Hiking 
Society American Whitewater, International Mountain Bicycling 
Association, and Winter Wildlands Alliance, and represents the 
interests of the millions Americans who hike, paddle, climb, mountain 
bike, ski and snowshoe on our nation's public lands, waters and 
snowscapes.
    Collectively, we have members in all fifty states and a network of 
almost 2,000 local clubs and advocacy groups across the nation, 
including 22 in Idaho where I live, but also 32 in Arizona and 21 in 
Utah.
    As a native Utahn, I grew up hiking, skiing and camping in Utah's 
Wasatch Mountains. My childhood time in the outdoors profoundly 
influenced my life and, indeed, served as the basis for my pursuing a 
career in the outdoor and winter recreation industry. Among other 
recreation jobs, I worked for the U.S. Ski Team and served as President 
of the Utah Ski Association. I've also worked as a backcountry ski 
guide and am a certified avalanche and snow safety professional. I was 
involved, through my role at Ski Utah, in the Salt Lake Olympic bid 
efforts and later had the honor of working for the Salt Lake Olympic 
Committee by running the press operation for all of the Olympic events 
held at Park City Resort.
    Much of my time these days is spent passing on my love of the 
outdoors to my three children. Almost any weekend will find my family 
and me tent camping in the Payette or Boise National Forests, hiking 
the trails or fly fishing from our drift boat on one of Idaho's many 
rivers. Winter weekends find us at our local ski hill, Bogus Basin, 
located on the Boise National Forest, or backcountry skiing or 
snowshoeing into the Sawtooth National Recreation Area. This winter, as 
we do every winter, we made a family trek into one of Idaho's 
backcountry yurts for an overnight stay. I put my five-year-old-son, 
Asa, on cross-country skis for the first time and to see the sense of 
accomplishment and sheer joy he got from skiing all the way into the 
yurt and back out by himself was one of the most rewarding parenting 
experiences of my life.
I. Outdoor Alliance's Stake in Forest Management
    As outdoor enthusiasts, we need public lands and their topography 
to do what we do--kayakers need rivers, climbers need escarpments and 
hikers and mountain bikers need trails; but what truly unifies our 
broader community is an unshakeable conservation and stewardship ethic 
towards the land. This ethic is reflected in practicing outdoor 
principles such as ``Leave No Trace'' to spending thousands of 
volunteer hours devoted to infrastructure design, construction and 
maintenance. We recognize that our pursuits depend on healthy lands and 
waters and that recreational access must sometimes be subordinate to 
resource conservation and protection of fragile ecosystems and 
sensitive wildlife habitats.
    Our community's conservation and stewardship ethic is also 
reflected in our active involvement in how public lands are managed by 
the Federal agencies. Our central opportunity for participation is 
through the NEPA process. Though Outdoor Alliance is a fairly new 
coalition, the member organizations have filed comments on river 
management plans, climbing management plans and travel plans as well as 
forest management plans for decades.
    We recognize that the NEPA process does not mandate any particular 
decision and does not require an agency to favor alternatives that 
enhance habitat, the environment, or wildlife, let alone our outdoor 
pursuits. What it does require is a hard look at how decisions could 
impact the human environment. It requires land managers to put all 
pertinent information on the table in order to make sound decisions; 
and also brings diverse interests to the table to ensure that the 
public, who actually own the lands, is vested in the process.
    NEPA, with its transparent process, accountability and informed, 
meaningful public involvement enables our community to live up to our 
conservation and stewardship ethic and to have a meaningful voice in 
management decisions impacting our respective recreational pursuits. 
Volunteering for a trash pick-up day at a local forest district is 
certainly important, but nothing can take the place of having the 
informed public weigh-in on critical agency decisions.
    The trend to subject more and more Forest Service decisions to 
categorical exclusions causes our community concern. In particular, we 
believe that excluding forest plans from NEPA review is a grave mistake 
for a number of reasons.
II. Decisions Made in Forest Plans Materially Impact our Community
    The U.S. Forest System is a multiple use land management agency. 
While 192 million acres seems like all the space in the world, it can 
get crowded very quickly when all these uses, including timber 
harvesting, mining and the spectrum of different types of recreation 
are pursued at the same time or at the same place. Thankfully, forest 
planning creates a framework for managing an entire forest, including 
management designations that effectively allow or disallow specific 
recreational use on all or part of a particular forest. The process of 
arriving at a final forest plan, therefore, is profoundly important to 
the active outdoor recreation community. The Forest Service wisely 
recognizes that a balanced, zoned approach, which designates different 
areas for different use is the best way to meet the diverse needs of 
the many different appropriate uses of our public forests.
    Outdoor Alliance supports the Forest Service's zoned approach. 
However, the allocation of different uses in a multi-use landscape begs 
for the type of analysis that NEPA provides so effectively. How can you 
balance different recreation uses without first determining the needs 
and use patterns of these diverse groups as well as forest-wide 
capacity to accommodate different uses? The public needs to (1) be made 
aware of these zoning implications and (2) be able to share their 
positions as well as their own information. Proper NEPA analysis at the 
planning stage helps ensure balanced management at the project level 
and helps make sure the individual projects make sense not only for the 
forest, but also relative to all the other existing and future 
projects.
    The environmental analysis that NEPA facilitates ensures informed 
decision-making. The collective effort and public participation 
embedded in the NEPA process results in better management decisions and 
assures the greatest good for the greatest number of people.
III. Informed and Meaningful Public Participation Helps the Forest 
        Service and Inspires Greater Public Confidence in Agency 
        Decisions
    Participation in land use decision-making at the Forest Service is 
a two-way street. The outdoor community treasures the ability to have 
our perspectives considered. However, our perspectives can be 
particularly valuable to the Forest Service. Our community spends time 
in places few managers ever go. In fact, as a community we traverse 
virtually every foot of trail and river and backcountry ski route in 
the nation each year--something no agency can claim of their collective 
staff. We thus bring not only our interests to federal land management 
planning processes--but also practical, on-the-ground knowledge and 
information that is critical to responsible management of those lands. 
The ability to bring a useful perspective to the forest planning 
process is not unique to the outdoor recreation community. Indeed, it 
is the process of collecting, analyzing and sharing all of the various 
perspectives and insights that make a forest plan developed with a NEPA 
review one that has earned the public's trust.
    NEPA facilitates intelligent, informed public input. Though the 
Forest Service has explored ways to secure public participation without 
a NEPA analysis (such as is contemplated in the recently stayed 2005 
Forest Planning regulation at 36 CFR Part 219), these efforts 
ultimately ring hollow. Simply directing the Responsible Official at a 
forest to use a ``collaborative and participatory approach'' is of 
limited utility if no one has the benefit of the type of necessary 
information generated under a proper NEPA analysis. NEPA provides the 
``critical mass'' of facts necessary for collaboration between the 
agency and the public to transpire in a meaningful way.
    Furthermore, leaving the public involvement requirement open to the 
interpretation of a local Responsible Official rather than a time-
proven NEPA public involvement process creates confusion among the 
public and unacceptable disparity from one forest to another. As 
mentioned earlier, our constituents are knowledgeable, participatory 
and committed to responsible stewardship of public lands. We thus offer 
a valuable resource to forest managers. To cut us, or any other 
community, out of the forest planning process is unfair and ultimately 
imprudent.
    The Forest Service motto is ``Caring for the Land and Serving the 
People.'' To us, this means that the agency should be listening to the 
people it serves so that it can care for the land in a manner that best 
meets the people's needs.
IV. Forest Planning Developed Under a NEPA Analysis Assures Straight-
        Forward Administrative Review
    Outdoor Alliance is concerned with the ambiguous administrative 
review process when forest planning is categorically excluded from a 
NEPA analysis. A critically important attribute of a NEPA review is the 
administrative appeal framework, which provides meaningful 
opportunities to resolve difference without immediately looking to the 
courts. We support the thorough administrative appeals process afforded 
by NEPA and appreciate the higher level of public trust that process 
engenders. Creating a well-informed initial plan with adequate public 
participation and built-in accountability will reduce conflicts down 
the road.
V. Forest Planning with NEPA Review--More Efficient Over the Long Term
    Many have derided NEPA review for involving too much red tape and 
for taking too long. Though we are all in favor of increased government 
efficiency and better implementation, efficiency cannot trump 
transparent agency decision-making that takes into account informed and 
meaningful public input when the topic is a multi-year plan for an 
entire forest. This is not to say that categorical exclusions are not 
an important part of NEPA compliance, but we feel that their use should 
be judicious and that categorical exclusions are inappropriate for the 
forest planning process. Put more directly, it pays to do things the 
``right way'' the first time, even if it takes a little bit longer.
    In terms of doing things the ``right way'', take, for example, the 
recently developed plan for the Monongahela National Forest--which 
forms the headwaters of the Potomac. The draft environmental assessment 
that informed the forest plan drew over 13,000 public comments, many of 
which were based on the explicitly defined outcomes expected from the 
implementation of specific alternatives. These comments, coming from 
Outdoor Alliance member organizations as well as individual members of 
the outdoor community, led to several substantive changes to the forest 
plan, including additional protective measures for wild areas of great 
interest to our community. NEPA allowed the Regional Forester to 
balance resource extraction interests with resource conservation 
interests and recreation interests based on a well-defined set of 
alternatives and a wealth of data on anticipated effects of those 
alternatives. Without NEPA, these decisions on which lands should be 
zoned for various levels of protection, extraction or recreational use 
would not have undergone rigorous analysis and public scrutiny.
Conclusion
    Responsible management and stewardship decisions require multiple 
perspectives. These decisions cannot take place in a vacuum and 
certainly should not take place without the informed exploration of 
reasonable alternatives regarding how a forest should be managed over a 
stretch of years. For multiple uses to properly coexist, the forest 
planning process must be transparent, have robust public input, be 
premised on informed decision-making, and have mechanisms to assure 
accountability. NEPA may be an imperfect process, but it is a process 
that works and enjoys the public's trust.
    In short, NEPA protects more than the environment, it protects our 
constituencies' opportunity for healthy recreation on public lands. By 
categorically excluding forest planning from NEPA analysis, that 
protection is lost.
    Thank you for the opportunity to appear before the Subcommittee.
                                 ______
                                 
    Mr. Grijalva. Thank you. Let me turn now to Dr. Barry Noon.

            STATEMENT OF DR. BARRY NOON, PROFESSOR, 
                   COLORADO STATE UNIVERSITY

    Mr. Noon. Mr. Chairman and members of the Subcommittee, I 
want to thank you for the opportunity to submit testimony for 
the record of this hearing. My name is Barry Noon. I am a 
Professor in the Department of Fish, Wildlife and Conservation 
Biology at Colorado State University. I have worked on land 
management and wildlife conservation issues for the past 33 
years, 15 of those as a Federal research scientist.
    I am not an expert on NEPA. However, I have contributed to 
land management planning under NEPA requirements on several 
occasions, including the Northwest Forest Plan Sierra Nevada 
framework, and I also served on a Forest Service commissioned 
committee of scientists tasked with evaluating the National 
Forest Management Act regulation. My comments today reflect in 
part my experiences on the committee of scientists. However, I 
do not speak for the committee. I speak only for myself.
    The purpose of my testimony is to comment on the importance 
of retaining a transparent, thorough, deliberative and science-
based process to evaluate ecological impacts of land management 
decision. I will address four issues that arise naturally in 
the NEPA process and are crucial to transparent and science-
based planning on the national forest.
    The first of these will be the need for management 
alternatives. The second would be cumulative effects analyses. 
The third, accountability as it is achieved by ecological 
monitoring, and fourth, the related issue of how the absence of 
the vertebrate species viability requirement from the current 
regulations increases the need to retain NEPA analyses.
    When Congress enacted the NFMA of 1976, it adopted a 
provision to create a committee of scientists to advise the 
Forest Service on the drafting of regulations to implement the 
Act. The original committee of scientists convened in 1979 had 
a significant impact on biodiversity conservation on Forest 
Service lands. Their recommendations, which eventually appeared 
in the 1982 regulations to implement the Act, included a 
commitment to the viability of all vertebrate species in 
accordance with the NFMA requirement to provide for a diversity 
of plant and animals.
    The charge to the second committee was to develop 
management principles and guidelines for the sustainable use 
and conservation of Forest Service lands. Similar to the first 
committee of scientists report, this committee implicitly 
supported the continuance of rigorous environmental 
assessments, including those under NEPA. Considering full NEPA 
disclosure is important for several reasons. One, consideration 
of land management alternatives.
    Projects such as timber harvest, insulation of dams, 
exploitation of mineral deposits and the construction of roads 
are proposed to achieve specific management objectives. Because 
such activities always result in at least short-term 
environmental impacts, they are appropriately accompanied by 
EIS'. The NEPA process requires the Forest Service to propose 
and evaluate alternative ways of achieving these objectives to 
reduce or mitigate adverse consequences to the environment. In 
my experience, this structured process has made explicit the 
tradeoffs between social, economic, and environmental 
objectives.
    Second, the importance of cumulative effects. The impacts 
of land management activities accumulate across space and time, 
and in terms of meaningful human timeframes may lead to 
irreversible changes. The reality is that it is impossible to 
evaluate the ultimate effect of any proposed project without 
also considering the synergistic effects of past management 
actions and other proposed changes in land use.
    Third, accountability through ecological monitoring. When 
NEPA was first enacted in 1970, it required each agency to 
identify and develop methods which will ensure that presently 
unquantified environmental amenities and values may be given 
appropriate consideration in decisionmaking. This purpose can 
be addressed by identifying objective, measurable criteria that 
can be used to judge the success of forest management plans in 
terms of environmental stewardship and other management 
objectives. In my experience, keeping track of environmental 
impacts has been addressed in part by the development of 
species based monitoring programs.
    Fourth, loss of species viability requirement. The 2000 
NMFA regulations increased the Federal government's commitment 
to the protection of biodiversity, specified specific criteria 
for assessment during the NEPA process, and gave the public a 
meaningful opportunity to offer comment and exert oversight on 
the implementations of the regulations. The year 2000 regs were 
short lived, however.
    In January 2005, without convening a committee of 
scientists, the Forest Service issued a new set of regulations. 
The 2005 regulations eliminated as a goal the obligatory 
protection of biological diversity, the requirement to prepare 
environmental impact statements pursuant to NEPA, and reduce 
the role and influence of science in the development and 
implementation of forest plans. In my opinion, absent the 
viability requirement, NEPA assessments are the only place that 
fish and wildlife are evaluated at appropriate spacial and 
temporal scales.
    In conclusion, the historic role of the Forest Service has 
been to sustain the health, diversity and productivity of the 
nation's forests and grasslands. This mandate is especially 
relevant today. However, because of accelerating rates of land 
transformation on private lands, invasion of exotic species, 
spread of animal and plant diseases and climate change, for 
example, fulfilling this mandate is more difficult than ever 
before.
    What is needed now is not a reduction in our government's 
commitment to environmental stewardship, but rather a 
strengthening of our resolve to conserve species and 
ecosystems. This will require the use of the best available 
science and a full disclosure of the environmental tradeoffs 
that accompany multiple use and resource exploitation. Thank 
you.
    [The prepared statement of Mr. Noon follows:]

 Statement of Barry R. Noon, Professor, Department of Fish, Wildlife, 
          and Conservation Biology, Colorado State University

    Mister Chairman and members of the subcommittee, I want to thank 
you for the opportunity to submit testimony for the record of this 
hearing. My name is Barry Noon--I am a professor in the Department of 
Fish, Wildlife and Conservation Biology at Colorado State University. I 
have worked on land management and wildlife conservation issues for the 
past 33 years, 15 of those years as federal research scientist. For 10 
years, I directed a Forest Service Wildlife Research Program in the 
Pacific Northwest and in 1995, I served as Chief Scientist of the 
National Biological Service, Department of the Interior.
    I am not an expert on the National Environmental Policy Act; 
however, I have contributed to the land management planning process 
under NEPA requirements on several occasions, including the Northwest 
Forest Plan, the Sierra Nevada Framework, and a Forest Service 
commissioned Committee of Scientists tasked with evaluating the 
National Forest Management Act (NFMA) regulations in 1997. My comments 
today reflect, in part, my experiences on the Committee of Scientists--
but, I do not speak for the Committee--only for myself.
    The purpose of my testimony is to comment on the importance of 
retaining a transparent, thorough, deliberate, and science-based 
process to evaluate the ecological impacts of land management 
activities on Forest Service lands. In addition to my relevant 
experience as a COS member, I will address 4 issues that arise 
naturally in the NEPA process and are crucial to transparent and 
science-based planning on the National Forests:
    (1)  A consideration of management alternatives which brings into 
focus the unavoidable tradeoffs among competing objectives;
    (2)  The cumulative effects of multiple land-use projects;
    (3)  Accountability achieved by means of science-based ecological 
monitoring programs;
    (4)  How the absence of the vertebrate species viability 
requirement from the current National Forest Management Act regulations 
increases the need to retain NEPA analyses.
Committee of Scientists and Ecological Sustainability
    When Congress enacted the National Forest Management Act (NFMA) of 
1976, it adopted a provision to create a Committee of Scientists to 
advise the Forest Service on the drafting of regulations to implement 
the Act. The original Committee of Scientists, convened in 1979, had a 
significant impact on biodiversity conservation on Forest Service 
lands. Their recommendations, which eventually appeared in the 1982 
regulations to implement the Act, included a commitment to the 
viability of all vertebrate species in accordance with the NFMA 
requirement to provide for a diversity of plant and animal communities.
    The charge to the second Committee of Scientists was to develop 
management principles and guidelines for the sustainable use and 
conservation of Forest Service lands. The committee produced a report, 
delivered to the executive and Congressional branches of government, 
entitled ``Sustaining the People's Land: Recommendations for 
Stewardship of Our National Forest and Grasslands Into the Twenty-first 
Century.'' Similar to the first COS report, the second report lead to a 
new set of NFMA regulations, enacted in November 2000.
    A defining characteristic of the second Committee of Scientists 
report was its assertion that the primary responsibility of Forest 
Service managers was to sustain the integrity of all ecological systems 
on Forest Service lands, and that ecological sustainability was an 
essential prerequisite to economic and social sustainability. As such, 
the report implicitly supported the continuation of rigorous 
environmental assessments, including NEPA. Continuing full NEPA 
disclosure is important for the following reasons.
1) Consideration of Land Management Alternatives in Forest Planning 
        Decisions Is Important for Balancing Competing Demands on 
        Natural Resources
    Projects such as timber harvest, installation of dams, exploitation 
of mineral deposits, and the construction of roads are proposed to 
achieve specific land management objectives.. Because such activities 
always result in at least short-term environmental impacts, they are 
appropriately accompanied by environmental impact analyses. The NEPA 
process requires the Forest Service to propose and evaluate alternative 
ways of achieving these objectives to reduce or mitigate adverse 
consequences to the environment, including the alternative of no 
action. In my experience, this structured process makes explicit the 
inescapable tradeoffs between social, economic, and environmental 
objectives.
    Constructing alternative scenarios requires planners to take a big 
picture perspective to land management. Alternatives are often 
portrayed as maps, which allow planners (and the public) to view fully 
the spatial location and extent of proposed actions. This process is 
particularly important because of the rapid land use change that is 
occurring on private lands adjacent to our national forests, which are 
often the last place to conserve natural resources at meaningful 
scales. To the extent that essential environmental goods and services 
are diminished on private lands, the need for public lands to 
compensate for those losses becomes more pronounced.
2) Assessing Cumulative Effects of Land-Use Practices Is Critical To 
        Reducing Impacts to the Environment
    The impacts of land management activities accumulate across space 
and time, and, in terms of meaningful human time frames, may lead to 
irreversible changes. The reality is that it is impossible to evaluate 
the ultimate effect of any proposed project without also considering 
the synergistic effects of past management actions and other proposed 
changes in land use.
    In 1978 the Council on Environmental Quality defined cumulative 
effects as
        the impact on the environment resulting from the incremental 
        impact of the action when added to other past, present, and 
        reasonably foreseeable actions regardless of what person or 
        agency undertakes such actions
    This definition is useful, but no longer sufficient, to guide 
relevant cumulative effects analyses. The reason is that it assumes 
that effects are simply additive and it fails to acknowledge the 
interaction between natural disturbance processes and land management. 
Additivity is no longer tenable because we now know that stresses to 
ecological systems are often multiplicative leading to non-linear 
relationships and steep threshold responses
    We now also recognize that natural disturbance events commonly 
interact with management to produce unexpected outcomes. Examples 
provided in the Committee of Scientists report include, the decision 
not to thin an overstocked forest that has high fuel loads may result 
in significant watershed effects if a wildfire occurs; a poorly 
designed road may not be a problem until after a large storm when 
numerous road-related landslides occur; and overgrazing in riparian 
areas may not result in loss of woody plants until after a drought has 
occurred.
    These and other cumulative effects are often only considered and 
evaluated in process of land management planning (e.g., the forest 
plans) and are triggered by NEPA requirements. Individual project 
assessments often fail to address cumulative effects and are not a 
substitute for the comprehensive evaluations that characterize 
environmental impact assessments.
3) Accountability Through Ecological Monitoring Is Needed To Address 
        Broad Changes To The Environment
    When NEPA was first enacted in 1970 it required each agency to 
``identify and develop methods and procedures--which will insure that 
presently unquantified environmental amenities and values may be given 
appropriate consideration in decision-making along with economic and 
technical considerations''. This purpose can be addressed in an 
environmental impact statement by identifying objective measurable 
criteria that can be used to judge the success of the forest plans in 
terms of environmental stewardship and other management objectives. In 
my experience, environmental impacts have been addressed in forest 
plans by the development of science-based monitoring programs to assess 
broad scale changes in environmental attributes (e.g., vegetation 
community types and their successional stages) and the direct 
monitoring of a small number of focal or management indicator species. 
Current NFMA regulations do not require the direct monitoring of any 
plant or animal species and it may now be that the only time when 
wildlife and fish are directly assessed is during NEPA analyses of land 
management plans. Excluding forest management from NEPA would eliminate 
a key process that could prevent the listing of still more species as 
threatened or in danger of extinction.
4) Loss of the Species Viability Requirement Compromises Environmental 
        Stewardship
    Based on recommendations of the most recent Committee of Scientists 
report, the 2000 NFMA regulations proposed a focal species approach to 
biodiversity assessment as a sensible compromise to the requirement to 
assess the viability of all vertebrate species as required in the 1982 
regulations. In total, the 2000 regulations increased the federal 
government's commitment to the protection of biodiversity on U.S. 
National Forest lands, specified specific criteria for assessment 
during the NEPA process, and gave the public a meaningful opportunity 
to offer comment and exert oversight on the implementations of the 
regulations.
    The year 2000 regulations were short-lived. In January 2005, 
without convening a committee of scientists, the Forest Service issued 
a new set of regulations (70 Fed. Reg.1022 (January 5, 2005:1022-1061). 
The 2005 regulations eliminated as a goal the obligatory protection of 
biological diversity, the requirement to prepare environmental impact 
statements pursuant to the National Environmental Policy Act (NEPA), 
and reduced the role and influence of science in the development and 
implementation of forest plans.
    The National Forest Management Act expressly requires that forest 
plans be developed in compliance with NEPA (16 USC 1604 (g) (1)). The 
new regulations, which ``categorically exempt'' future plan amendments 
and revisions from NEPA analysis, greatly increase the likelihood that 
significant, adverse environmental impacts will occur on Forest Service 
lands throughout the United States. As I noted previously, in the 
absence of NEPA requirements, there will be no mandatory consideration 
of cumulative impacts or alternative actions when plans are developed 
or revised. Furthermore, it is my understanding that the Forest Service 
has separately created a number of other ``categorical exemptions'' for 
individual actions, such as fuels reduction and disease control. The 
net result is that entire categories of actions will not undergo NEPA 
review, and thus could be implemented without due consideration of the 
best available science.
Concluding Remarks
    The historic role of the Forest Service has been to sustain the 
health, diversity, and productivity of the nation's forest and 
grasslands in order to meet the needs of present and future 
generations. This mandate is especially relevant today. However, 
because of accelerating rates of land transformation on private lands, 
the invasion of exotic species, the spread of plant and animal 
diseases, and climate change, for example, fulfilling this mandate is 
more difficult than ever before. What is needed now is not a reduction 
in our government's commitment to environmental stewardship but rather 
a strengthening of our resolve to conserve species and ecosystems. This 
will require the use of the best available science and a full 
disclosure of the environmental tradeoffs that accompany multiple use 
and resource exploitation.
    Unfortunately, in the last few years we have seen increasing 
priority given to activities that have a long history of compromising 
ecological sustainability on public lands. These include rollbacks to 
forest protections in the Northwest, lack of administrative support for 
the roadless rule, greatly increased levels of oil and gas development 
in ecologically sensitive areas, and increased access for motorized 
recreation in our few remaining back country areas. As a result, we 
have seen decreased consideration given to environmental protection on 
Forest Service lands at a time when the threats to species and 
ecosystems on these lands is at all time high. Exempting the forest 
planning process from the requirements of NEPA decreases the likelihood 
that environmental protection will be given the priority it deserves in 
the planning process.
                                 ______
                                 
    Mr. Grijalva. Thank you. Mr. Nathaniel Lawrence. Counsel.

   STATEMENT OF NATHANIEL LAWRENCE, SENIOR ATTORNEY, NATURAL 
                RESOURCES DEFENSE COUNCIL (NRDC)

    Mr. Lawrence. Chairman Grijalva and Mr. Bishop, thank you 
very much for hearing my testimony today. To come right to the 
point, what distinguishes the Forest Service today is not 
whether it uses categorical exclusions. Agencies for years have 
successfully used categorical exclusions as an efficiency 
device when projects they undertake are known not to have 
environmental impacts. What distinguishes the Forest Service is 
its across-the-board application of categorical exclusions that 
are so ill-defined they cannot possibly prevent environmental 
impacts on the ground.
    Today under this Administration wherever you look in the 
Forest Service you find categorical exclusions instead of NEPA 
review, and it is this shell game that whatever decision you 
are looking at happens to be the wrong one for NEPA review that 
distinguishes this agency now and ought to concern the 
Committee.
    Let us be clear about one thing. The use of a categorical 
exclusion is not NEPA review. NEPA provides for categorical 
exclusions but once a categorical exclusion is invoked, NEPA 
standards for environmental review fall away. NEPA requires, it 
has enforceable standards, for scientific accountability, for 
responsiveness to the public, and for fresh thinking to combat 
tunnel vision and bureaucratic momentum.
    These standards are missing. They fall away when a CE is 
invoked. By its wholesale reliance on CEs, the Forest Service 
is shortchanging itself as well as the environment and the 
public because NEPA is how you get the best information about 
how your actions will affect the environment over the long 
haul, and for an agency that is charged with managing the 
environment, that information is critical.
    We hear a great deal about forest health problems today and 
it is used as a rationale for stripping away NEPA review. The 
hard truth is that the forest health problems we have on 
national forests have occurred on the Forest Service's watch 
over the last 100 years, mostly without the benefit of 
environmental review. This is the wrong time to be throwing 
away our best chance to get it right in our national forests.
    The Forest Service is also wrong about NFMA plans. NFMA 
plans make a difference. Congress enacted NFMA to make a 
difference. The statute requires that plans make a difference. 
That they ensure against resource damage, damage to soils, to 
water courses, to lakes, to species diversity, and the plans 
that comply with NEPA, they will make a difference, and because 
they make a difference, they need full NEPA review.
    To suggest that the Supreme Court cases you heard about 
today say anything about whether Congress can mandate plans 
that make a difference is a misstatement of such breadth that 
it really takes my breath away. The agency is also wrong that 
its categorical exclusions for fuels reduction thinning and for 
salvage can be counted on to avoid environmental impacts. Fuels 
reduction thinning, if it is done right, if it is small trees 
and brush, if it is done without roads, if it is done in places 
that have previously seen management, it has management 
problems and a road infrastructure in place, that kind of fuels 
reduction thinning can be counted on, I think, to be benign, 
but the reality is our scientific understanding of the long-
range impact of how thinning affects long-range fire 
susceptibility is in its infancy.
    The scientific literature is full of studies of how models 
predict what will happen when you thin but it is very, very 
spare on on-the-ground studies of how real-world thinning done 
by loggers actually impacts subsequent fire. The studies we 
have do have very mixed results and they show that sometimes 
commercial thinning can increase fire danger instead of 
reducing it.
    That is what happened in the Hayman fire incidentally in 
Colorado where retrospective studies by the Forest Service and 
academics show that thinning did not affect subsequent fire 
intensity or sometimes made it worse. The same thing is true 
for salvage. A recent study, a very recent study, joint Federal 
government study with academic institutions of the Bisque fire 
in southern Oregon showed that where there had been salvage 
logging and replanting prior to the fire, when the fire came 
through, fire intensities were up to 60 percent more intense 
than in neighboring areas, adjacent similar areas that had not 
had salvage logging.
    I do not want to close without saying a thing or two about 
the situation in Tahoe. I have two things to say. The first is, 
the last time I went to the Tahoe basin, I saw some thinning 
work that the Forest Service had done that was really a thing 
of beauty. The agency can get it right. It can do small 
diameter thinning without roads, without leaving behind small 
flammable fuels, and it can really improve the situation.
    The second this is it is a real mistake to confuse safety 
for homeowners with restoring ecological integrity in the 
backcountry. The thing that saves homes is intensive logging, 
intensive thinning right around the homes, and fireproof roofs. 
If they have those two things, thinning within a few hundred 
feet and fireproof roofs, they survive even intense fires.
    Conversely, if they do not have those things they do not 
survive them. That is what happened in Los Alamos where an 
intense backcountry fire came into town, dropped down to the 
ground, and burnt through as a low intensity ground fire and 
still burnt home after home after home because they did not 
have that kind of home site preparation. Thank you very much.
    [The prepared statement of Mr. Lawrence follows:]

   Statement of Nathaniel Lawrence, Natural Resources Defense Council

    Mr. Chairman and Members of the Subcommittee:
    Thank you for your invitation to appear today and offer my views on 
the U.S. Forest Service's use of Categorical Exclusions from 
environmental review. The Natural Resources Defense Council (NRDC), 
whose Forestry Project I direct, represents more than 1.2 million 
members and activists. These people have an intense interest in the 
welfare of our national forest system lands. On their behalf, NRDC has 
worked for many years to improve agency decisionmaking affecting these 
lands, often through rulemakings and public processes involving our 
nation's environmental charter, the National Environmental Policy Act 
(NEPA). We have provided detailed analysis of and comments on multiple 
generations of national forest management plans across the country as 
well as proposals for the planning regulations to govern formulation of 
those plans. We have often participated in public environmental review 
processes for individual projects implementing or affecting management 
plans. When, in recent years, the Forest Service has proposed new 
exemptions from NEPA review, we have also carefully scrutinized its 
rationales for doing so and furnished the agency with our analysis of 
its proposals. And we have gone to court when needed, both to defend 
good processes and decisions the Forest Service has made, and to have 
poor ones corrected.
Overview: The Forest Service's Flight from NEPA Review.
    In recent years, the U.S. Forest Service has developed a 
regrettable and deep-seated aversion to the public scrutiny, scientific 
accountability, and fresh thinking required by NEPA. The agency still 
does NEPA review, and sometimes does so admirably. Increasingly, 
though, it treats NEPA review as a burden to be shirked, across the 
board. Whatever decision the agency is considering, it appears always 
to be the wrong time to take a hard look at environmental impacts, 
consider whether a different approach would be better, or open up 
agency thinking and evidence to outside experts, sister agencies, and 
the affected public. The result is something approaching a shell game, 
with NEPA review never there, no matter where we look for it.
    By ducking NEPA review, the Forest Service errs in several ways. As 
discussed in detail below, the agency is wrong as a legal matter that 
categories of decisions it exempts from NEPA review fall below the 
threshold for preparation of environmental documentation. Also 
elaborated below are factual reasons why decisions that meet its 
exemption criteria may affect the environment significantly. The 
agency's biggest error, though, may be in repudiating the benefits of 
NEPA review for so many of its management responsibilities.
NEPA's High Standards and Accountability Improve Agency Decisions.
    For decisions with potential environmental consequences, which are 
much of the bread and butter work of the Forest Service, it is NEPA 
compliance that creates reliably high quality results, combats tunnel 
vision, and promotes public buy-in. At the same time that it empowers 
your constituents, Representatives, with the details of agency 
proposals and a right to have their concerns responded to, it firmly 
guides bureaucrats toward good government. NEPA's well-established 
rules, detailed regulations, and court-enforceable standards work as 
nothing else does against sloppy and wishful thinking, the sweeping of 
problems under rugs, and the lack of responsiveness that are typically 
at the root of agency's decisions that we all later come to regret.
    NEPA provides strong, reliable information about the likely real-
world impacts of a decision through its information quality 
requirements. In run-of-the mill decision-making under the 
Administrative Procedure Act, agencies need only show that they were 
non-arbitrary. See, e.g., Massachusetts v. E.P.A., 127 S.Ct. 1438, 1459 
(2007). Under NEPA, they are charged to ``insure the professional 
integrity, including scientific integrity, of the[ir] discussions and 
analyses.'' 40 C.F.R. Sec. 1502.24. They must not only lay out the 
reasoning behind their conclusions, but also disclose and respond to 
responsible scientific criticism. Navajo Nation v. U.S. Forest Service, 
479 F.3d 1024, 1056 (9th Cir. 2007); Save Our Ecosystems v. Clark, 747 
F.2d 1240, 1245, n.6 (9th Cir. 1984).
    NEPA helps overcome the natural tendency of decisionmakers to do 
what they are most familiar with or think of first, without fully 
reflecting on whether that is really the best course. It requires that 
reasonable alternatives to the agency's first instinct be fleshed out 
and considered, in the search for a better way to do things. An 
environmental impact statement (EIS) must ``[r]igorously explore and 
objectively evaluate all reasonable alternatives,'' to the agency's 
initial proposal. 40 C.F.R. Sec. 1502.14(a). Even in an environmental 
assessment (EA), a short review of projects that are found not to have 
significant environmental impacts, NEPA directs agencies to develop 
``appropriate alternatives to recommended courses of action in any 
proposal which involves unresolved conflicts concerning alternative 
uses of available resources.'' 42 U.S.C. 102(2)(E).
    This alternatives requirement, often described as the ``heart of 
NEPA,'' see, e.g., Department of Transportation v. Public Citizen, 541 
U.S. 752, 757, (2004), is also a key way for agencies to bring the 
public into their process, and achieve acceptance of the outcome. An 
agency's ``duty under NEPA is to study--``significant alternatives'' 
suggested by other agencies or the public during the comment period.'' 
Roosevelt Campobello International Park v. U.S. Environmental 
Protection Agency, 684 F.2d 1041, 1047 (1st Cir. 1982). This mandate to 
look at how the public would like to see a project undertaken, if a 
reasonable way of doing so is put forward, gives interested parties a 
horse in the race. With tangible evidence that their views have been 
taken seriously, they are far more likely to accept the outcome, then 
if they think they were excluded from the outset. Public buy-in is 
important not simply for whether a decision will go unchallenged. It 
also contributes to how favorably the entire agency is viewed, a factor 
in how well the agency may find its future projects received and 
funded.
Categorical Exclusions from NEPA Review are Important But Misused 
        Tools.
    The Forest Service's chosen mechanism for avoiding NEPA review is 
an important efficiency device known as a categorical exclusion (CE). 
Properly used, CEs allow agencies to dispense with formal NEPA review 
for classes of actions known not to have significant environmental 
impacts. 1 See 40 C.F.R. Sec. 1508.4. Originally conceived 
of as applying to decisions not meaningfully affecting the physical 
environment at all, from picking uniforms to mowing lawns, they are now 
used as well for scaled down versions of management actions that could 
otherwise require an EIS. This latter use requires care. Such 
exclusions from NEPA review are not really categorical; they are a 
matter of degree. Unless they are kept truly de minimis, it takes field 
experience to determine whether a given class and scale of projects can 
legitimately be categorically excluded. Importantly, any CE must 
identify an escape hatch in the form of ``extraordinary circumstances 
in which a normally excluded action may have a significant 
environmental effect'' and therefore requires NEPA review. 40 C.F.R. 
Sec. 1508.4.
---------------------------------------------------------------------------
    \1\ An EIS is required if a project may affect the environment 
significantly. See, e.g., Arkansas Wildlife Federation v. U.S. Army 
Corps of Engineers, 431 F.3d 1096, 1100-1101 (8th Cir. 2005). An EA is 
the required environmental document if, among other reasons, an agency 
is unsure whether to prepare an EIS. Utah Environmental Congress v. 
Troyer, 479 F.3d 1269, 1274 (10th Cir. 2007).
---------------------------------------------------------------------------
    CEs properly utilized are beneficial to all parties. They allow 
agencies and the public to focus their resources on projects that 
really do entail potential impacts on the environment. It is crucial, 
though, that they be well defined, limited to categories demonstrably 
free of impacts, and with a robust extraordinary circumstances 
mechanism in place. The fact that decisions to invoke CEs are made out 
of the public eye make these safeguards all the more important.
    The Forest Service, unfortunately, has in recent years applied 
poorly defined and/or unjustified CEs at every stage in the process of 
regulating public land use. The result is an agency lurching toward a 
NEPA-free existence. Whole management plans for national forests have 
no impacts, if the Forest Service is to be believed, and can be adopted 
under a CE. Changing the regulations that govern management plans also 
has no impact. Implementing plans on the ground, for large and ill-
defined categories of logging, also turns out not to have impacts, and 
again requires no NEPA review. And decisions that used to be made in 
EAs about whether a project might have significant impacts, likewise, 
are done behind closed doors.
The Forest Service is Mistakenly Trying to Exempt Forest Management 
        Plans, Which Do and Must Affect the Environment, From NEPA 
        Review.
    In perhaps its most novel and disturbing form, the Forest Service's 
expansion of CEs now includes the doctrine that entire, long-range, 
forest management plans may not need public NEPA review. Late last 
year, the agency adopted a new CE that covers amendment or revision of 
forest management plans. 71 Fed. Reg. 75481 et seq. (Dec. 15, 2006); 
Forest Service Handbook 1909.15, chap. 30, sec. 31.2(16). These plans 
are, on their face, the kinds of actions that require NEPA review. The 
Council on Environmental Quality NEPA regulations define ``major 
federal action,'' triggering EIS eligibility, to include ``formal 
plans--which guide or prescribe alternative uses of federal resources, 
upon which future agency actions will be based.'' 40 C.F.R. 
Sec. 1508.18(b)(2). In promulgating a CE for forest management plans, 
the Forest Service argued that such plans would henceforth only guide 
future decisions, and not themselves have potential impacts. See, e.g., 
70 Fed. Reg. 1023, 1024--1025 (Jan. 5, 2005). However, under the NEPA 
regulations quoted above, neither the fact that plans ``guide'' other 
actions, nor the future nature of those actions, makes a forest plan 
any the less the kind of ``formal plan'' which is a major federal 
action. Additionally, deferring NEPA review at the forest management 
plan stage is inconsistent with the directive that ``[a]gencies shall 
integrate the NEPA process with other planning at the earliest possible 
time.'' 40 C.F.R. Sec. 1401.2.
    Moreover, numerous factors inherent in forest management plans make 
it plain that they may affect the environment significantly. These 
factors include the geographic scope of forest plans (up to 17 million 
acres), their duration (up to 15 years), and the potential that they 
will make possible or prohibit actions of great potential impact on the 
environment. These actions include large scale logging and road 
construction, widespread use of off-road vehicles, grazing, and 
determination of the allowable locations for and intensity of 
recreational use. Moreover, past forest management plans unquestionably 
affected the environment significantly. They determined where logging 
could take place, what resource protections would be used, whether 
grazing and motorized recreation would continue. And each of them was 
accompanied by an EIS that chronicled the ways in which it would affect 
the environment and compared them to the effects of alternative 
planning options. Thus, even if forest management plans could be 
adopted to avoid such provisions, the change from the previous, more 
meaningful plans, from binding protections to none, from resource use 
decisions to none, has environmental consequences. If the agency really 
leaves open all questions about resource allocations and protections in 
its next generation of plans, then it must at least be deciding at that 
time to create a risk that they will not be as well protected in later 
decisions as the plan could assure. And creating a substantial risk for 
those resources means potentially having a significant impact on the 
environment.
    At all events, forest management plans cannot legally be so devoid 
of protective provisions and decisions about implementation. Under the 
National Forest Management Act (NFMA), forest plans must, among other 
things, make choices about forest management systems and harvesting 
levels. 16 U.S.C. Sec. 1604(e). They must ``provide for diversity of 
plant and animal communities.'' Id. at Sec. 1604(g)(3)(B). Forest plan 
regulations must ``insure that timber will be harvested--only where--
watershed conditions will not be irreversibly damaged'' and 
``protection is provided for streams, streambanks--and other bodies of 
water.'' Id. at Sec. 1604(g)(3)(E). Plans must insure that clearcutting 
and other regeneration cuts are only used under certain environment-
protecting conditions. Id. at Sec. 1604(g)(3)(F). Because the assurance 
of these safeguards, or the failure to assure them, will have 
significant impacts on the environment--and manifestly Congress would 
not have specified them if it thought the safeguards were 
insignificant--the statute mandates that plans be the kind of 
instruments to which NEPA review attaches. Moreover, NFMA requires that 
forest plans include, in writing, ``the planned timber sale program.'' 
16 U.S.C. Sec. 1604(f)(2). Thus, while the required timber sale program 
may change over time, each forest management plan is required to 
propose actions which, by any standard, normally could significantly 
affect the environment, requiring an EIS.
Lack of Environmental Review for Management Plans is Aggravated By Also 
        Exempting the Regulations Governing Them From NEPA Review.
    Up a level from forest management plans, in adopting forest 
planning regulations, the Forest Service is also applying CEs to avoid 
NEPA review. Regulations the agency adopted in 2005 attempted to lay 
the groundwork for eliminating NEPA review of forest management plans 
by changing their content to make them non-decision documents. See 70 
Fed. Reg. 1022 et seq. (Jan. 5, 2005). Despite itself describing this 
new approach as ``a paradigm shift in land management planning,'' id. 
at 1024, the agency sought to adopt the new rules under a CE. In March 
of this year, a federal court, finding that the agency relied on a CE 
that had never previously been used for a regulation of such magnitude, 
had no record to support its invocation of the CE, and appeared to be 
engendering potentially significant environmental consequences, struck 
the rule down. Citizens for Better Forestry v. USDA, 481 F.Supp.2d 
1059, 1087-90 (N.D. Cal. 2007).
    The Forest Service, though, has not given up. It had already 
modified its CE rules explicitly to cover ``[e]stablishing procedures 
for amending or revising Forest Land and Resource Management Plans.'' 
Forest Service Handbook 1909.15, chap. 30, sec. 31.12(2)(f); see also 
id. at sec. 31.2(16). It has also recently recommenced its revision of 
the planning regulations. Any effort, however, to drop planning 
regulations that do mandate effective protections will encounter the 
same problem as dropping protections from the plans themselves. The 
decision to stop protecting the environment is itself a decision with 
environmental consequences. Claiming otherwise is like arguing that 
eliminating speed limits has no impact because a non-limit does not 
mandate anything. 2
---------------------------------------------------------------------------
    \2\ In addition, of course, any version of planning regulations 
drafted to keep plans from having actual impacts will run afoul of the 
NFMA requirements discussed above, as well as the general NEPA 
regulatory admonition to incorporate environmental review as early 
planning processes as possible.
---------------------------------------------------------------------------
Failure to Undertake Environmental Review At the Project Level 
        Completes a Clean Sweep of NEPA Avoidance.
    The Forest Service's flight from NEPA extends down to the 
individual management project level. In arguing against NEPA review at 
the forest management plan stage, the agency claimed that plan 
implementing projects would provide a superior forum for such analysis. 
See, e.g. 70 Fed Reg. at 1064 (``NEPA analysis and documentation will 
be timed to coincide with meaningful stages in agency planning and 
decisionmaking''); id. (``[a]ny proposed use in an area identified [in 
a forest management plan] as suitable for that use must be considered 
under agency NEPA procedures at the time of a project decision''). In 
fact, however, under the Forest Service's evolving approach, many plan 
implementing activities are themselves conducted under statutory or 
regulatory authority that eliminates or truncates NEPA review. This 
includes CEs for thinning and salvage operations, which collectively 
comprise the large majority of logging rationales currently used 
throughout the National Forest System. It also includes misuse of 
legislated CEs and the much curtailed NEPA process authorized under the 
Healthy Forest Restoration Act, Public Law 108-148, sec. 104. This 
elimination of NEPA review at the project level completes the shell 
game of avoidance, the failure ever to provide high quality, 
accountable, and responsive analysis of environmental analysis at any 
management stage at all.
1. Thinning CEs.
    Central to, and emblematic of, this rejection of NEPA review even 
at the project level, is the agency's CE for forest thinning in the 
name of fuel reduction. Current Forest Service rules allow for such 
thinning on up to 1,000 acres, about one and a half square miles, under 
a CE. Forest Service Handbook 1909.15, chap. 30, sec. 31.2(10). Though 
there are some sidebars on the practice, the agency imposes no limits 
on the logging methods that can be used, or the size of trees removed. 
Heavy-duty, industrial logging systems, designed to keep costs low 
rather than avoid environmental damage, are perfectly allowable. And 
while public rhetoric about fuels reduction focuses on thick brush and 
small trees, the CE allows the Forest Service to remove huge trees 
without NEPA review. This is not a hypothetical concern, since the 
agency rationalizes removal of up to 30 inches in diameter five feet 
off the ground, in the name of reducing fire risk. 3
---------------------------------------------------------------------------
    \3\ This rationale was advanced, for example, even in the agency's 
planning for a national monument. The Giant Sequoia National Monument 
Management Plan Draft Environmental Impact Statement expressly proposed 
to log trees up to 30 inches diameter at breast height to reduce fire 
risks.
---------------------------------------------------------------------------
    In justifying adoption of its fuels reduction CE, the Forest 
Service erroneously looked to recent experience with projects that 
might or might not resemble those allowed by the CE. The agency relied 
heavily on a spreadsheet tally of some 3,000 projects as proof that new 
projects authorized to go forward without NEPA review under the CE 
could be counted on to avoid environmental impacts. 68 Fed. Reg. 33814, 
33817 (June 5, 2003). NRDC carefully reviewed the database utilized for 
this spreadsheet. We found that the large majority of reviewed projects 
were small scale. Well under 10% involved mechanical thinning of over 
250 acres. 4 This small size made the reviewed projects more 
likely to be suited to a CE. At the same time, however, it made them 
irrelevant in gauging the impacts of a CE that allowed much larger 
scale logging. The lack of adequate limitations on the size, intensity, 
or location of fuels reduction logging in the CE the agency ultimately 
adopted means that future projects need not be remotely like those 
included in the spreadsheet. Past performance is therefore no guide to 
future impacts or the need for NEPA review.
---------------------------------------------------------------------------
    \4\ Analysis available from NRDC upon request.
---------------------------------------------------------------------------
    Equally seriously, the spreadsheet does not appear to reflect much 
actual on-the-ground monitoring of impacts to environmental factors, 
such as soil compaction, spread of exotics, usage by disturbance-averse 
and/or interior-adapted wildlife species, or in-stream turbidity. NRDC 
made spot inquires on some of the larger-acreage mechanical fuels 
treatment projects. Not surprisingly, given the recent vintage of most 
projects, many did not have monitoring completed. The Sequoia National 
Forest, for example, wrote us back that none of the three projects we 
inquired about--the Hotel A, McGee, and Dry Eshom--had completed 
monitoring. See Exhibits A and B. Similarly, the Gallatin National 
Forest told us that it had no reportable monitoring for the spreadsheet 
projects we inquired about. See Exhibit C. The Klamath National Forest 
referred us to forestwide monitoring on its website for some projects, 
but the forestwide reports had no information specific to the projects. 
See Exhibits D and E. Other forests, like the Plumas and Modoc National 
Forests, reported that the only monitoring documents that existed for 
projects about which we inquired were the ``daily logs'' filled out 
during contract operations by Forest Service staff, not records of the 
projects' actual impact on environmental factors. 5 Far from 
having long-term on-the-ground monitoring of the projects' actual 
environmental impacts, the agency did not even have near term results.
---------------------------------------------------------------------------
    \5\ Personal communication from Michael Condon.
---------------------------------------------------------------------------
    The need for environmental review for at least some of the logging 
allowed by the fuels reduction CE is obvious. The on-the-ground results 
of such thinning are highly uncertain. A recent study of seven thinning 
projects in the Sequoia National Forest showed that subsequent wildfire 
was more intense in all of the thinned plots than in similar adjacent 
areas that had not been thinned. 6 As an eminent panel of 
fire ecologists wrote to President Bush in 2003 about western forest 
fire threats: ``neither the magnitude of the problem nor our 
understanding of treatment impacts would justify proceeding in panic or 
without thorough environmental reviews. 7
---------------------------------------------------------------------------
    \6\ Hanson, C.T., Odion, D.C. 2006. Fire Severity in mechanically 
thinned versus unthinned forests of the Sierra Nevada, California. In: 
Proceedings of the 3rd International Fire Ecology and Management 
Congress, November 13-17, 2006, San Diego, CA. Attached as Exhibit F.
    \7\ Christensen, N., et al. 2003. Letter to President Bush of 9/24/
02. Attached as Exhibit G. These preeminent scientists did not conclude 
that only passive management or non-mechanical treatments could be 
appropriate. Rather they warned of the importance of carefully 
analyzing site specific factors when fuels reduction through mechanical 
thinning is attempted: ``responding to this fire situation requires 
thoughtfulness and care.''
---------------------------------------------------------------------------
    The most fundamental reason for care and environmental review in 
using thinning for fuels reduction is the gaping lack of empirical 
studies concerning its effectiveness as applied in the field. The 
scientists quoted above noted that ``[t]he most debated response to 
alleviating future fires--mechanically thinning trees--has had limited 
study.'' Researchers for the federal government's Joint Fire Science 
Program pointed out that ``[t]he lack of empirical assessment of fuel 
treatment performance has become conspicuous.'' 8 The 
authors, after canvassing the existing scientific literature concluded 
that, other than theirs, only one lone study ``included both 
statistical analysis and comparison of stand conditions in treated and 
untreated areas such that differential fire effects could be directly 
related to the intensity of fuels manipulation.'' 9
---------------------------------------------------------------------------
    \8\ Omi, P. & E Martinson. 2002. Effect of Fuels Treatment on 
Wildfire Severity. Submitted to the Joint Fire Science Program 
Governing Board, March 25, 2002, and online at: http://
www.cnr.colostate.edu/FS/westfire/FinalReport.pdf.
    \9\ Omi & Martinson's study showed that for a few prescribed fire 
and pre-commercial/noncommercial thinning projects, the intensity of 
subsequent fire was reduced. Nevertheless, they concluded, ``[s]till 
unanswered are questions regarding necessary treatment intensities and 
duration of treatment effects.''
---------------------------------------------------------------------------
    Numerous other reviews and reports, many of them generated by the 
federal government, confirm the scientific uncertainty surrounding how 
thinning actually affects subsequent fire intensity. For example, a 
Department of Interior publication states that ``[s]cant information 
exists, however, on the efficacy of fuel treatments for mitigating 
wildfire severity.'' 10 An Environmental Assessment 
published by Grand Canyon National Park reports that ``methodologies 
appropriate for returning ``natural'' forest function and process are 
the subject of considerable debate.'' 11 As one U.S. Forest 
Service publication notes with understatement, ``[s]ome uncertainty--
surrounds management treatments.'' 12 It continues: ``[a]t 
landscape scales, the effectiveness of treatments in improving 
watershed conditions has not been well documented.'' 13 And 
the Forest Service's retrospective examination of the relationship 
between fuel reduction activities and subsequent fire intensity in 
Colorado's Hayman Fire found no systematic benefit: ``each of the 
different types of fuel modification encountered...had instances of 
success as well as failure in terms of altering fire spread or 
severity.'' 14
---------------------------------------------------------------------------
    \10\ U.S. Department of Interior. People, Land & Water, vol. 8, no. 
10 (May/June 2002), p. 17.
    \11\ National Park Service. 2002. ``Environmental Assessment and 
Assessment of Effect: Research on Wildfire Hazard Reduction in 
Ponderosa Pine Ecosystems at Grand Canyon National Park,'' p. 1.
    \12\ U.S. Forest Service. 2002. Protecting People and Sustaining 
Resources in Fire-Adapted Ecosystems: A Cohesive Strategy. October 13, 
2002, p. 32.
    \13\ Ibid, p.34.
    \14\ Finney, et al. 2002. ``Report on Fire Behavior, Fuel 
Treatments, and Fire Suppression'', in Interim Hayman Fire Case Study 
Analysis, R. Graham, tech ed. U.S. Forest Service, Rocky Mountain 
Research Station. Nov. 13, 2002. Page 82. Available online at: http://
www.fs.fed.us/rm/hayman_fire/print/02finney_print.pdf.
---------------------------------------------------------------------------
    The need for careful study of fuels reduction projects is 
heightened by the fact that they can, as shown by the Hanson & Odion 
on-the-ground study quoted above 15, actually increase 
subsequent fire effects. In their letter to President Bush 
16, Christensen, et al. summarize the situation: 
``[a]lthough a few empirically based studies have shown a systematic 
reduction in fire intensity subsequent to some actual thinning, others 
have documented increases in fire intensity and severity.'' A Forest 
Service science publication reports: ``Depending on the type, 
intensity, and extent of thinning, or other treatment applied, fire 
behavior can be improved (less severe and intense) or exacerbated.'' 
17 A report of the Secretaries of Agriculture and Interior 
to the President warned that ``the National Research Council found that 
logging and clearcutting can cause rapid regeneration of shrubs and 
trees that can create highly flammable fuel conditions within a few 
years of cutting. Without adequate treatment of small woody material, 
logging may exacerbate fire risk rather than lower it.'' 18 
In fact, a whole series of studies from the scientific literature shows 
post-thinning increases in fire intensity and/or spread. 19
---------------------------------------------------------------------------
    \15\ Supra note 6.
    \16\ Supra note 7
    \17\ Graham, R., et al. 1999. The Effects of Thinning and Similar 
Stand Treatments on Fire Behavior in Western Forests. U.S. Forest 
Service, Pacific Northwest Research Station. General Tech. Rpt PNW-GTR-
463. Sept. 1999. Page 15.
    \18\ Babbitt, B. and D. Glickman. 2002. ``Managing the Impact of 
Wildfires on Communities and the Environment: A Report to the President 
In Response to the Wildfires of 2000. September 8, 2000.'' Page 12. A 
second explanation for increases in fire intensity post-thinning is the 
increased drying effect of sun and wind in stands that have been opened 
up. See, e.g., Christensen, et al., 2002 (supra note 7); Rapp, 2002, 
``Fire risk in east-side forests'' in Science Update. Portland, OR: 
U.S. Department of Agriculture, Forest Service, Pacific Northwest 
Research Station. September (2): 1-12, at 8; U.S. Forest Service, 2000, 
Final Environmental Impact Statement for the Roadless Areas 
Conservation Rule, vol. 1, p. 3-110, available online at http://
roadless.fs.fed.us/documents/feis/documents/vol1/chap3--health.pdf.
    \19\ Many of these studies were reviewed by the Forest Service in 
connection with the Final Environmental Impact Statement for the 
Roadless Areas Conservation Rule (FEIS); supra note 17. The fire 
specialist review of scientific literature for this FEIS summarizes 
their findings. See id., Fuel Management and Fire Suppression 
Specialist's Report, available online at: http://
www.roadless.fs.fed.us/documents/feis/specrep/xfire_spec_rpt.pdf, at 22 
(``The Congressional Research Service...noted: ``timber harvesting does 
remove fuel, but it is unclear whether this fuel removal is 
significant;'' ``Covington (1996)...notes that, `scientific data to 
support such management actions [either a hand's off approach or the 
use of timber harvesting] are inadequate''' (brackets in the source)); 
id. at 22-23 (``Kolb and others (1994)--conclude that--management 
activities to improve forest health [such as fuel management] are 
difficult to apply in the field'' (brackets in the source)); id. at 21 
(``Fahnstock's (1968) study of precommercial thinning found that timber 
stands thinned to a 12 feet by 12 feet spacing commonly produced fuels 
that `rate high in rate of spread and resistance to control for at 
least 5 years after cutting, so that it would burn with relatively high 
intensity;''' ``When precommercial thinning was used in lodgepole pine 
stands, Alexander and Yancik (1977) reported that a fire's rate of 
spread increased 3.5 times and that the fire's intensity increased 3 
times''); id. at 23 (``Countryman (1955) found that ``opening up'' a 
forest through logging changed the ``fire climate so that fires start 
more easily, spread faster, and burn hotter'').
---------------------------------------------------------------------------
    A real world illustration of this phenomenon comes from the Ninth 
Circuit Court of Appeal's review of the record for the Douglas Fire 
Bark Beetle Project of the Colville and Panhandle National Forests. 
There, the Court found that the evidence showed ``risk of fire during 
the first few years of timber harvest under the Project will actually 
be greater than the risk of fire if no action is taken.'' 20
---------------------------------------------------------------------------
    \20\ Land Council v. Vaught, No. 01-35088. Memorandum of August 14, 
2001 at 4. (This is an unpublished opinion of the Ninth Circuit).
---------------------------------------------------------------------------
2. Salvage CEs
    A second growth area for NEPA-free logging is post-disturbance 
salvage. Along with the fuels CE discussed immediately above, the 
Forest Service adopted another poorly defined CE, this one for salvage 
logging. Forest Service Handbook 1909.15, chap. 30, sec. 31.2(13). Some 
of its potential to mask significant environmental impacts is reduced 
by the 250 acre size limit, though a companion CE for ``post-fire 
rehabilitation'' also by its terms applies to such logging and has a 
huge 4,200 acre limit. See id. sec. 31.2(11).
    Use of a CE for any substantial salvage logging is unjustifiable 
because, as Forest Service researchers have concluded, salvage logging 
spreads exotic species, causes erosion, and reduces wildlife usage, 
among other harms. 21 These researchers found that 
``postfire logging is certain to have a wide variety of effects, from 
subtle to significant, depending on where the site lies in relation to 
other postfire sites of various ages, site characteristics, logging 
methods, and intensity of fire.'' Post-fire soils are particularly 
susceptible to logging damage and associated loss of productivity. 
22
---------------------------------------------------------------------------
    \21\ McIver, J. D., and L. Starr, tech. eds. 2000. ``Environmental 
Effects of Postfire Logging: Literature Review and Annotated 
Bibliography.'' U.S. Forest Service, Pacific Northwest Research Station 
PNW-GTR-486. Portland, OR. Available online at: http://www.fs.fed.us/
pnw/pubs/gtr486.pdf.
    \22\ Beschta, R.L, et al. 1995. ``Wildfire and Salvage Logging.'' 
Oregon State University. Corvallis, OR. Available online at: http://
www.isu.edu/departments/bios/Minshall/Publications/
Wildfire%20and%20Salvage%20Logging.pdf.
---------------------------------------------------------------------------
    Scientists both inside and outside the Forest Service agree there 
is little or no evidence that post-fire logging reduces the risk of 
later reburn, and warn that site-specific factors are critical in 
assessing the impacts of salvage logging. 23 Another Forest 
Service publication notes that ``[t]raditional salvage harvests do 
little to reduce crown fire hazard'' and ``the potential for severe 
fire may actually be increased, if the fuels are not reduced.'' 
24 Moreover, like thinning, salvage logging can actually 
exacerbate subsequent fire. A recent joint federal agency and 
university study of Oregon's Biscuit Fire showed that earlier salvage 
logging and tree planting increased fire severity by up to 61%, 
compared to similar non-logged but previously burned stands. 
25
---------------------------------------------------------------------------
    \23\ See also Beschta et al., supra note 22; Everett, R. 1995. 
``Review of Beschta document.'' Letter dated August 16 to John Lowe. On 
file with: U.S. Forest Service, Pacific Northwest Research Station, 
Wenatchee, WA.
    \24\ Rapp, V. 2002. ``Fire risk in east-side forests'' in Science 
Update. Portland, OR: U.S. Department of Agriculture, Forest Service, 
Pacific Northwest Research Station. September (2): 1-12.
    \25\ See attached Exhibit H.
---------------------------------------------------------------------------
    One feature shared by the salvage and fuels CEs particularly 
increases the likelihood of environmental harm. Both allow road 
construction, the salvage CE of up to a half mile and the fuels CE 
without limit. Both restrict the construction to temporary roads. The 
Forest Service itself, however, has found that temporary roads can have 
the ``same long-lasting and significant ecological effects as permanent 
roads.'' 26 The U.S. Department of Justice confirmed this 
finding, in its Memorandum in Support of Motion for Summary Judgment in 
Billings County v. Veneman, U.S. Dist. Ct., D. N.D., Civ. No. A1-01-
087, dated Aug. 9, 2002, at page 49.
---------------------------------------------------------------------------
    \26\ U.S. Forest Service. 2000. Final Environmental Impact 
Statement for the Roadless Area Conservation Rule, vol. 1, page 2-18.
---------------------------------------------------------------------------
    Despite this accumulating scientific evidence, the Forest Service 
remains enthusiastic about salvage logging without environmental 
review. Attached are photos of the ongoing Eightmile Meadow Salvage 
operation on the Mt Hood National Forest. Exhibit I shows a unit slated 
for logging. Exhibit J shows a logged unit. One not need pass judgment 
on whether such logging should proceed in order to understand from the 
photographic evidence that if it is done, it could have significant 
environmental impacts and deserves NEPA review prior to decisionmaking.
3. CEs for Permit Renewals
    The Forest Service has multiple CE categories that allow for 
renewal of permits and use authorizations without NEPA review. See 
Forest Service Handbook 1909.15, chap. 30, sections 31.12(9) & (10), 
31.2(3) & (15) Many such renewals could sensibly be performed under a 
CE. The lax criteria the agency has adopted for such renewals, however, 
mean the CEs can be applied where environmental harm is a real 
possibility and NEPA review indicated. None of these CEs looks to 
whether prior uses ever had the benefit of NEPA review or whether new 
information or changed circumstances make such review needed at the 
time of renewal.
    The Forest Service has similarly broad extraordinary authority to 
renew expiring grazing permits without conducting NEPA review, provided 
by Congress, as long as the decision to do so meets certain conditions. 
This provision, Section 339 of the FY 2005 Interior and Related 
Agencies Appropriations Act, P.L. 108-447, was the result of 
congressional concerns that the Forest Service had failed to process 
expiring grazing permits in a timely manner in compliance with NEPA. 
While Section 339 allowed the agency to exclude grazing permits from 
NEPA review, it did not give the Forest Service a blank check. The 
agency was required to comply with three distinct mandates as spelled 
out in the FY 2005 rider:
        (1) the decision continues current grazing management; (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 Forest Service has demonstrated a thorough-going inconsistency 
in providing the public with notice of these categorical exclusions. 
Often, the agency does not issue any public notice. When a National 
Forest does provide notice, it rarely makes clear whether public 
comment will actually be considered in the decision making process, or 
whether the public will retain the right of appeal after an agency 
decision is made to indeed categorically exclude an allotment. There 
are discrepancies within the same National Forest in implementing the 
Section 339 authority. Without public involvement, it is virtually 
impossible to hold the agency responsible if publicly owned resources 
are damaged or threatened by inappropriate or inadequate grazing 
management.
    Rather than choosing categorical exclusions for allotments where 
there is a well-established record of sound grazing management, the 
agency has too frequently selected permits where there exists 
controversy surrounding the grazing practices. For instance, in Region 
Four (with forests in Southern Idaho, Nevada, Utah, and Western 
Wyoming), a region where inappropriate grazing decisions have well-
demonstrated deleterious effects on public lands, the agency has 
categorically excluded, or is planning to, nearly two thirds of the 
permit renewals. Many of the permits that have been categorically 
excluded do not meet the requirements of the Section 339 program. In 
the Bridger-Teton National Forest, for example, home to a number of 
charismatic endangered species, some two million acres will have been 
categorically excluded from NEPA review by the time the program is 
finished.
    Even designated wilderness is not considered a high enough bar to 
prevent the use of categorical exclusions. In NRDC's investigation of 
this program, we have found twenty-two allotments that operate within 
some part of a designated wilderness system which have received a 
categorical exclusion. An additional sixteen allotments that operate 
within wilderness are pending a categorical exclusion decision as well; 
including two allotments in the Sequoia National Forest whose 26,543 
permitted acres operate entirely within a designated wilderness area. 
We have also has identified 58 categorically excluded allotments that 
operate primarily within a designated Inventoried Roadless Area, one 
additional allotment that was categorically excluded even though it 
operated primarily within a designated Wilderness Study Area, and nine 
allotments that currently operate within a designated Research Natural 
Area.
    In the Gila National Forest of southwestern New Mexico, the agency 
has also been proposing categorically exclusions for permits on public 
lands that contain large swaths of wilderness. Moreover, along with 
portions of the Apache National Forest, the entire Gila National Forest 
has been designated as the sole recovery area for the critically 
endangered Mexican gray wolf. Despite the fact that wolf-livestock 
conflicts pose the greatest hurdle to successful Mexican gray wolf 
recovery, the Forest Service continues to propose categorical 
exclusions on its grazing management decisions for the area. And in the 
Pacific Northwest, where unmitigated cattle grazing can damage the 
spawning beds for migrating salmon and steelhead trout, the Umatilla 
National Forest elected to categorically exclude a number of grazing 
allotments that included this kind of essential salmonid habitat.
4. Expansion of CEs Through Misuse of Extraordinary Circumstances
    The Forest Service's misuse of its ``extraordinary circumstances'' 
rule, which identifies the need for full NEPA review, adds to 
inappropriate application of CEs. The Forest Service interprets its CE 
rules so that the presence of an extraordinary factor does not trigger 
the protections of documentation under the National Environmental 
Policy Act (NEPA) and public review. Rather, an agency official makes 
an in-house determination of whether or not impacts related to the 
factor could be significant. 27 These, however, are exactly 
the sorts of decisions that NEPA contemplates will be made in a public 
Finding of No Significant Impact, after review of an EA and public 
comment. Made out of the light of day, they are prone to letting 
problems be ``swept under the rug,'' a central reason that Congress 
understood NEPA was needed.
---------------------------------------------------------------------------
    \27\ See U.S. Forest Service. 2002. Background for the Proposed 
Hazardous Fuels and Rehabilitation/Stabilization Categorical 
Exclusions, p. 5.
---------------------------------------------------------------------------
Conclusion.
    The Forest Service's efforts to shirk NEPA make it stand alone in 
the federal family. Other agencies may sometimes wish to vault over 
environmental review and get right to work. None, however, has embarked 
on anything like so wholesale an effort to avoid it.
    Increasingly, this disparity shows, among other places, in the 
litigation record. NEPA suits against the Forest Service accounted for 
50 of a total of 118 cases filed in 2005, the last year for which 
statistics are available. See http://www.nepa.gov. Adverse orders or 
decisions against the Forest Service resulted in over 50% of those 
cases, compared to 25% for the remaining agencies.
    In some sense, it is understandable that the Forest Service rankles 
at NEPA. It is staffed by professionals who trust their own 
professional judgment and want, often, to be left to exercise it 
without interference. The hard truth, however, is that the forest 
health problems the agency so often cites as the reason to plough ahead 
without NEPA, are almost all things that happened on the Forest 
Service's watch. Had NEPA been there over the years, with its high 
standards for information, responsiveness, and accountability, things 
might now be different. 28
---------------------------------------------------------------------------
    \28\ Though much of the information bearing on forest health 
problems is of relatively recent vintage, the Forest Service has known 
for more than seventy years that fire suppression caused subsequent 
fires to burn more and more intensely. See Benedict, M.A. [Supervisor 
of the Sierra National Forest]. 1930. Twenty-one years of Fire 
Protection in the National Forests of California. Journal of Forestry 
28: 707-710.
---------------------------------------------------------------------------
    Thank you for the opportunity to testify today. I would be happy to 
answer any questions you might have.
                                 ______
                                 
    Mr. Grijalva. Mr. Ray Vaughan. Sir.

                   STATEMENT OF RAY VAUGHAN, 
                  EXECUTIVE DIRECTOR, WILDLAW

    Mr. Vaughan. Thank you very much, Mr. Chairman. As my 
written testimony outlines, what I and WildLaw have done over a 
number of years is to get very detailed project-by-project 
review of the use of CEs, particularly the HFI and CE6 CEs in 
the southern region, region 8. This type of in-depth review 
goes beyond just the raw numbers of use and acreage. I do not 
know of it being duplicated anywhere else in the nation, and so 
you cannot necessarily extrapolate to other parts of the 
agency. However, region 8 is probably the largest user of CEs 
and of projects as a whole particularly because of the very 
large prescribed burning program there.
    The emphasis of what I did is back in 2003 I had the same 
fears that these would be massively abused, and looking at the 
raw language of the regulations that potential is clearly 
there. However, District Rangers do not read the regulations 
when they implement a CEs. They read guidance they get from the 
agency, and they talk to other people who have used the CEs, 
and they sometimes talk to people like me.
    The actual guidance the agency issued on HFICs and on HFRA 
as well is excellent guidance and makes it real clear what you 
should do and what you should not do, and our experience in 
region 8 has been that overall final decisions on categorical 
exclusions are in complete compliance with the law, and make 
sense, and seem to be scientifically valid 92 percent of the 
time. I can show you the environmental assessments done by the 
national forest in Mississippi back in the 1990s. Every single 
one of them, more than 100, broke the law. Every one of them 
was in noncompliance.
    The difference is the people and what the people try to do, 
and if the people in the agency have a context for these CEs, 
they are not just using them to use them, but a context of 
restoration, sustainability as they do in the national forest 
in Alabama and now in the national forest in Mississippi, 
invariably they do a really good job on it. They have lots of 
collaboration up front.
    When EAs were used in Mississippi exclusively, they never 
had collaboration. They never listened to the public. Now 
District Rangers call me and everyone else who is concerned on 
every single CEs they do, the majority of which in Mississippi 
are two acres or less. Dealing with southern pine beetle 
outbreaks, we do not need to revisit the science and knowledge 
of controlling southern pine beetles every time you have a one-
acre spot.
    The reality is there can be very legitimate uses but the 
abuses can be very damaging, often perception and most of 
concern on the ground, and so they should not be tolerated even 
if they are a minority of the instances, and we believe we have 
been able to identify the vast majority of the areas the 
problems fall into, the mistakes, the errors, the abuses, and 
have detailed for the Committee what we think the agency could 
do to bring in the side boards a little bit and make sure that 
the CEs and those abuses do not occur again.
    And just one point. The Earth Island case, by the way, does 
not extend the time it takes to do a CE if it is used properly 
because if there are not adversarial comments received on the 
CE, the appeal does not have to be given. The appeal time does 
not run, and so therefore when they do it right, that 
particular case did not add anything to the time it took to 
implement the CEs, but it was very useful in helping people 
like me reign in abuses. The worst abuses we see are 
segmentation, where they take a 3,000 acre project and divvy it 
up into 70-acre chunks and go, OK, we have 25, 30 CEs, and we 
do not have to do an environmental analysis or cumulative 
impacts review.
    Because Earth Island made some of those in the one bad 
district in Mississippi a couple of years ago reviewable, I was 
able to appeal them. A new supervisor had just come in. He saw 
that that was an abuse. He stopped it, and that does not occur 
any more there.
    CEs are a wonderful tool for small projects, like a 
screwdriver for tightening screws and building things. However, 
screwdrivers cannot do everything. In the planning area, the 
1982 regulations and the implementation of planning now is a 
mess and does need to be fixed, but planning can be made 
shorter not by going the CE route, but by making the plan a 
guide to a desired future instead of just a broad predictor of 
all possible futures, and plans are not supposed to be just 
aspirational. That is not enough.
    There needs to be a decision made on which aspirations we 
are going to choose to pursue during the planning period and in 
the management of the forest. I believe a broader guide of the 
agency for restoration, sustainability and protection will give 
that type of context that will make everything from CEs to EIS' 
to plans work much better. Thank you very much.
    [The prepared statement of Mr. Vaughan follows:]

         Statement of Ray Vaughan, Executive Director, WildLaw

I. Categorical Exclusions
    As part of the processes under the National Environmental Policy 
Act (NEPA), Categorical Exclusions (CEs) are used to analyze projects 
and actions that an agency can demonstrate have no environmental 
impacts. Thus, projects that fall within the bounds of a CE do not need 
the lengthy environmental impact analysis process of an Environmental 
Impact Statement (EIS) or the shorter Environmental Analysis (EA). When 
used rationally and appropriately, CEs can be useful and proper tools 
for handling certain types of small projects and immediate but limited 
needs.
    Like all tools for accomplishing work, CEs can be properly used, 
improperly used or abusively misused. There is nothing inherently wrong 
with CEs, any more so than there is anything wrong with EAs and EISs. 
While some decry CEs as ways to limit public participation and 
eliminate review of environmental impacts, others laud them as the 
prime solution to getting good work done on public lands. Both views 
miss. CEs are nothing but a NEPA tool. They are not the cause of abuse 
or the cause of solutions; they are merely the mechanism by which some 
abuses and some solutions can be accomplished.
    Are CEs being abused by the Forest Service and sometimes used to 
limit or eliminate public participation in management of public lands? 
Absolutely. But so are the EA and EIS processes. I can show you full 
blown EISs that are garbage, nothing but ruses for doing things that 
the laws passed by Congress do not allow. I can show you EAs that got 
less environmental analysis, public participation and on-the-ground 
monitoring than some CEs.
    Every agency this size has people in it that will abuse any 
authority they have to achieve goals that are not in the public 
interest. Like with all human endeavors, this abuse is done by a small 
minority of the people involved. Still, such abuses can loom large in 
physical consequences and in public perception. But just because a 
murder uses a hammer to kill someone, you do not condemn hammers.
    Are there proper uses of CEs by the Forest Service? Absolutely. 
Indeed, in WildLaw's experience (which is mainly in Region 8, the 
Southern Region), we find that the vast majority of uses of CEs are 
proper. It cannot be assumed, however, that the experiences in Region 8 
translate to the entire National Forest System. What few CEs we have 
reviewed outside Region 8 have mostly been improperly used. The 
detailed review and tracking WildLaw does of CEs in most of Region 8 
does not appear to have been replicated by anyone else in any other 
Region, to our knowledge. I do know that the agency itself does not 
track the use of CEs in the detail that we do, and the Forest Service 
does not have a national data set to tell you or anyone the full extent 
of CE use and misuse. This lack of comprehensive information on the use 
of CEs is troublesome but solvable through the use of an independent 
ombudsman.
    The main issue with CEs is whether they are being properly used in 
a context that will produce good results on the land and for the people 
who care about and depend on National Forests. When used by a line 
officer in the context of a good management plan that emphasizes 
restoration of the natural forests and that encourages sustainability, 
CEs are almost always a useful tool for developing and implementing 
small projects which fit within that larger restoration and 
sustainability framework. See attachment.
II. Healthy Forest Initiative CEs
    In 2003 the Forest Service adopted new CEs. See 68 Fed. Reg. 33813 
(June 5, 2003).
        The types of projects being conducted by these agencies under 
        the NFP include prescribed fire (including naturally occurring 
        wildland fires managed to benefit resources), mechanical fuels 
        treatments (thinning and removal of fuels to prescribed 
        objectives), emergency stabilization, burned area 
        rehabilitation, road maintenance and operation activities, 
        ecosystem restoration, and culvert replacement actions.
Id. at 33807.
    WildLaw currently tracks and monitors almost every HFI CE project 
in the Southern Region (except for Arkansas and Texas). Out of those 
approximately 350 projects that we know of, we found 58 that, when 
proposed, did not comply with the law, which includes the applicable 
HFI regulations themselves and the applicable sections of the Appeals 
Reform Act (ARA), the Administrative Procedures Act (APA) and the parts 
of the National Environmental Policy Act (NEPA) that apply to the HFI. 
Out of those 58, 27 were corrected after we brought the problem to the 
attention of the agency. Thus, in Region 8, you could give the agency a 
preliminary grade of ``83,'' a ``B.'' Then, upon further work and 
correction of problems, the grade rises to ``92,'' an ``A-.'' We have 
also reviewed certain specific HFI projects in many states throughout 
the country. Over all, our analysis is based on our review and work on 
more than 400 HFI projects, a level of review that exceeds the level of 
review done by the agency itself when it adopted some of these very 
regulations. (For example, when the Forest Service developed the Fire 
CE, the number of thinning projects it reviewed in that process was 
only 81. The Forest Service supported adoption of the Small Timer Sale 
CE with a review of only 154 projects.)
    This high compliance rate in Region 8 is impressive for a set of 
CEs that had been predicted by many (including by me) to be a potential 
source of massive abuse. However, the media and many environmental 
advocates usually do not focus on the compliance but on the ugliness of 
some of the few projects that are noncompliant. Here is why: while an 
``A-'' compliance rate seems pretty good, the impacts of one bad 
project can far outweigh the positive effects of many, many good 
projects. A really destructive noncompliant project, such as one that 
logs old growth unnecessarily, can do orders of magnitude more damage 
than the good that comes from most compliant projects. The few bad 
projects can taint the work and image of the many good ones. And the 
media has a natural tendency to focus on the bad, the controversial, 
rather than on the good and the acceptable.
    Of those projects that do not comply with the applicable 
authorities, the vast majority of problems involved break down into 
just four areas. Therefore, fixing the problems and making the programs 
successful should not be that difficult. This monitoring by WildLaw 
does not show systemic abuses or widespread problems with HFI CEs but 
shows localized and sporadic abuses of these new authorities, more 
often through ignorance rather than actual intent. There is a real 
potential for the success of these programs as they were set forth to 
Congress and the public, if the problem areas are addressed and 
monitored closely and if some changes are made to Forest Service CEs in 
general to make them more adaptable and less prone to erroneous uses 
and abuse.
    These four main problems areas of the HFI CEs are:
    1.  Failure to provide adequate scoping notice of an HFI project. 
While most ranger districts monitored provide good scoping notices that 
adequately describe the proposed project and the potential impacts (and 
thus the areas of concern for public participation), there are some 
districts that produce insufficient notices, such as two-paragraph 
scoping notices that do not even tell the public where the project will 
occur and what the project will entail. This clearly defeats the main 
purpose of the HFI of making public participation be more cooperative 
and occur earlier in the process.
    2.  Failure to have an open, collaborative public participation 
process in the development of projects that will be decided with a CE. 
Invariably, the National Forests with the most success with, and least 
abuse of, CEs are those that bring the public into a conversation about 
the proposals long before they become locked into stone. Such 
collaborative work includes field trips to review proposed project 
sites, the seeking of input from the public on the need and scope of 
the projects and much more. Really good examples of public 
participation can currently be found in the Bankhead National Forest in 
Alabama, the De Soto National Forest in Mississippi and the Ocala 
National Forest in Florida.
    3.  Segmentation of a larger project into smaller chunks so as to 
make the smaller ``projects'' qualify for the CEs of the HFI. While not 
common, when this abuse occurs, it is often quite blatant and obviously 
intentional. Commentary with the HFI regulations plainly states that 
the new CEs provided under the HFI are NOT to be used to segment larger 
projects into smaller ones that could use the CEs, but the regulations 
themselves do not specifically prohibit segmentation. Segmentation is a 
major NEPA violation.
    4.  Failure to protect larger trees and old growth as impliedly 
required by the HFI. Cutting larger, older, fire-resistant trees is 
clearly not in the best interests of healthy forests and of protecting 
communities from catastrophic wild fires. Where this abuse occurs, 
needed work to thin young trees in the wildland urban interface (WUI) 
is often sacrificed in order to cut the bigger trees further from 
communities. This violates the spirit of the HFI as it was presented to 
the public and Congress.
    Easy actions to limit these problem areas (such as strong guidance 
documents from the Chief and interpretive regulations on these areas) 
and constant tracking and monitoring could solve the vast majority of 
problems with the implementation of the HFI CEs and would go most of 
the way to solving public relation problems with the programs.
    More fundamentally, though, the long-term solution to problems with 
CEs is the same solution to most problems with the National Forest 
System. CEs will work best (and thus be less abused) when they are used 
in a framework of restoration and sustainability for the National 
Forest involved. The best examples of good use of HFI CEs are found in 
Alabama and Mississippi, where the National Forests there have adopted 
restoration programs for their forests overall. Therefore, adoption of 
a national policy of restoration and sustainability as the guiding 
theme for the National Forests would provide a context for better and 
consistent use of CEs, as well as all other authorities and tools the 
agency uses. See attachment.
Possible Solutions
      Require that all scoping notices for CEs provide adequate 
information on what actions are being proposed, where they are being 
proposed, and why they are being proposed. Adequate maps should be 
required. Guidance should encourage explanations in the scoping notice 
of the current conditions needing to be addressed, including good 
explanatory photographs of the current conditions and the desired 
conditions after the project is complete. We have seen excellent 
examples of all this being done in five pages and can provide Congress 
and the agency with those examples.
      Encourage more up-front public participation, train line 
officers and support the use of more cooperative conservation 
collaboration techniques and efforts in the development, shaping and 
implementation of project proposals.
      Explicitly place segmentation prohibitions in all CEs. 
Conduct a public rulemaking process to amend the CEs to include 
specific language instructing line officers not to segment larger 
projects into smaller segments that can each fit within the acreage 
limits of the CEs. Guidance should also be issued to flesh out the 
perimeters of what is and is not improper segmentation.
      Amend the small timber sale CE (CE 12, FSH 1909.15--
31.2(12)), the salvage CE (CE 13, FSH 1909.15--31.2(13)), and the 
hazardous fuels reduction CE (CE 10, FSH 1909.15--31.2(10)) to include 
protection and retention of large trees as much as possible. I suggest 
incorporating the old growth and large tree protection and retention 
sections of the Healthy Forest Restoration Act (HFRA) as a good 
example. The HFRA contains two large tree sections that would be good 
additions to the HFI regulations:
        1. ``In carrying out a covered project, the Secretary 
shall fully maintain, or contribute toward the restoration of, the 
structure and composition of old growth stands according to the pre-
fire suppression old growth conditions characteristic of the forest 
type, taking into account the contribution of the stand to landscape 
fire adaptation and watershed health, and retaining the large trees 
contributing to old growth structure.'' HFRA Sec. 102(e)(2).
        2. In areas outside of delineated old growth stands (which 
have to meet the requirements in Sec. 102(e)(2)), the HFRA also 
provides requirements for the keeping of large trees in project areas. 
Sec. 102(f) mandates that projects be carried out so that they (1) 
focus largely on small diameter trees, thinning, strategic fuel breaks, 
and prescribed fire to modify fire behavior and (2) maximize the 
retention of large trees, as appropriate for the forest type, to the 
extent that the trees promote fire-resilient stands.
      Initiate more in-depth training for line officers to 
teach them the proper use of the HFI CEs and how they should and should 
not be used. This training needs to include instruction on how to build 
a good collaborative process for public participation in development of 
CE projects. This should be a cooperative effort that includes non-
agency personnel who can provide a perspective agency staff needs in 
order to make these regulations succeed. Many line officers (more than 
75) have sought assistance in the proper use of CEs from WildLaw, 
because they could not get that from the agency.
      Establish, fund and contract for an independent Healthy 
Forests Ombudsman to provide independent, comprehensive and unbiased 
review of HFI (and HFRA) projects and training and assistance for line 
officers.
      Long-term, the Forest Service needs to adopt as a guiding 
mission the restoration of the National Forests and the sustainable 
protection and use of those lands. See attachment.
    While not necessary to fix current problems with HFI CEs, we feel 
that some additional changes to the CEs are needed to make them more 
flexible and make their proper uses clearer to line officers who often 
have difficulty knowing when and how to use these tools. Also, like all 
``top down'' regulations that attempt a ``one size fits all'' rule, 
these CEs do not fit equally everywhere. A 70-acre logging thinning 
project in young Longleaf Pine may be fine, while a 10-acre project in 
a cove hardwood forest could be devastating. The CEs need better 
guidelines for their proper use and to prevent abuses. Our suggested 
changes/additions to the CEs are:
      Revisit the data and information used to establish these 
CEs. Because these CEs have been used hundreds of times since their 
adoption, there is now a much better data set on their impacts, uses 
and effectiveness than existed when they were adopted. Examples:
        Data used to adopt the small timber sale CE did not 
support 70 acres as the limit; the administrative record had good 
information to support a 10-acre CE. Now, though, the CE has been used 
on projects up to 70 acres. Revisiting that information may support use 
of 70 acres or may show that a different limit or set of limits is 
required. Some forest types may handle 70 acres of logging without any 
adverse impacts while other types may have suffered adverse impacts at 
smaller acreages.
        The acreage limits in the hazardous fuels reduction CE 
need to be refined to general forest type. Fire-dependent forest types 
(such as Longleaf Pine) clearly can handle a 4,500 prescribed burn, and 
use of a CE on that level is appropriate. Fire-intolerant forest types, 
though (such as Southern Appalachian cove hardwoods), do not need 
prescribed fire at all, and a burn of any size there can have 
devastating impacts. Fire-adapted or tolerant forest types (such as 
Oak-Hickory in the Piedmont or Cumberland Plateau) can handle 
infrequent fires but do not need them regularly for their health. For 
those types of forests, more analysis may be needed to justify fires of 
more than 1,000 acres or so.
      Based upon that review, refine the acreages and proper 
uses of these CEs and give better guidance on their proper usage. 
Adding requirements about taking forest type and the ecosystems 
involved in a proposed CE project into account in determining whether 
or not the CE is applicable would be helpful.
      Prohibit use of the hazardous fuels reduction CE for fire 
in fire-intolerant forest types.
      Consider adoption of a specific wildland urban interface 
(WUI) CE, to be used in conjunction with Community Wildfire Protection 
Plans. Many of the HFI CEs have been used to conduct projects in the 
WUI, and the HFRA has WUI-specific authorizations in it. With this new 
experience and information, it may be appropriate at this time to 
explore the adoption of a CE specifically designed for use in the WUI 
for small community protection projects; this would be a CE tailored to 
fit the needs of WUI projects. That may work better than trying to fit 
a WUI project into the current HFI CEs, which are more generalized and 
not specifically designed for WUI needs and work.
III. CE for National Forest Plans
    WildLaw does not support the development and use of a CE for the 
adoption or major revision of National Forest management plans, as 
required by NFMA. Certainly, planning as it exists under the 1982 NFMA 
regulations has become too complex and cumbersome and needs a major 
overhaul. But to throw the baby out with the bath water is not the 
solution. CEs are screwdrivers, tools to get small, routine jobs done. 
Plans are the framework of the entire ``house'' that is a National 
Forest's long-term management; you cannot build the frame of a house 
with just a screwdriver.
    Forest plans are critically important documents that embody the 
overarching goals and objectives for our National Forests and establish 
guidelines for how to achieve them. It is imperative that these forest 
plans are drafted with extensive input from scientific experts and the 
interested public so that wilderness, old-growth, drinking water, 
recreation, and wildlife habitat are adequately provided for and 
protected. Plans determine what types of projects can occur and where 
they can occur, even if they do not determine exactly which projects 
will occur or when. Since all projects, permits, contracts, etc. must 
be consistent with the forest plan (16 U.S.C. Sec. 1604(i)), it is 
clear that plans are important in determining what activities can 
occur. Forest plans also make final decisions, such as designation of 
special areas, opening of lands to mineral exploration and development, 
and recommendations for wilderness areas. Thus, their development 
should be subject to detailed and thorough NEPA analysis and public 
participation.
    Instead of avoiding the problems with planning by attempting to get 
around it with a CE, the Forest Service should finally attempt to solve 
the problems with NFMA's implementation. The Forest Service should take 
the time to do a good job and really figure out new regulations (1) 
that really comply with NFMA and give the agency a strong scientific 
basis for management and (2) that resolve most of the conflict around 
management of the public's forests. Using cooperative conservation 
approaches, new NFMA regulations and directives should be developed 
through a facilitated group problem-solving process involving all the 
diverse interests involved in management of the National Forests. 
Instead of an agency-driven and developed set of NFMA regulations, we 
propose a collaborative development of solutions to National Forest 
problems that then lead to new regulations to implement those 
solutions.
    In February 2003, as part of the adoption of the 2005 regulations, 
the Forest Service brought together approximately 100 interested people 
to discuss options for protecting biological diversity on the National 
Forests under the new National Forest Management Act regulations. I was 
one of the participants in that workshop and the only environmentalist/
conservationist who gave a presentation at it. While the agency 
ultimately ignored what this group suggested, the people and the 
balance of types of people (agency, industry, scientists, 
environmentalists, etc.) at that workshop were excellent. No party of 
interest could claim not to be adequately represented there. Given a 
few more days and a real mandate to find common ground solutions to 
problems on the National Forests, I guarantee that that group would 
have found at least a handful of common sense solutions 90% of everyone 
would have agreed with. The agency could have then moved forward on 
those consensus items and left more contentious issues aside for the 
time being, thus accomplishing much needed work in the public forests 
and reducing litigation significantly.
    Despite the legal limbo of the various Roadless Rules, the creation 
of the Roadless Area Conservation National Advisory Committee (RACNAC, 
of which I am a member) has proven to be a unique success. For the 
first time ever, the agency has successfully brought together diverse 
interests, got them talking without conflict baggage and seen them 
produce proposed solutions, some of which go beyond the boundaries of 
just roadless areas. Other agencies have had success with standing FACA 
committees and other advisory groups that work to resolve long-standing 
issues. It is time the Forest Service tried this conflict resolution 
approach on a larger scale, on the scale of planning for all the 
National Forests.
IV. CE 6
    In our experience, the worst problem area with CEs appears to be 
with an old CE, CE 6, which was adopted long before this 
Administration. WildLaw has already submitted an APA petition to the 
Secretary to fix the problems with CE 6. Having this Subcommittee 
advise the Secretary on that CE may also be useful. WildLaw has 
reviewed, commented on and challenged numerous improper uses of CE 6; 
we have also reviewed, commented on and supported numerous proper uses 
of CE 6.
Summary of the CE 6 Problem
A. Southeast Situation
    Categorical Exclusion 6 was adopted some time ago, well before this 
present Administration. Agency records on the adoption of CE 6 are 
scant to nonexistent, and the original intent behind it is not readily 
apparent. In the Southeast, in particular, CE 6 has been abused 
frequently. While Tennessee is notable for its frequent reliance on CE 
6 in large projects, South Carolina is notorious for applying it to 
very large projects, some more than 66,000 acres in size. Florida is 
similar to South Carolina, except worse, with some CE 6 prescribed fire 
projects there being more than 100,000 acres in size. We got most of 
those abuses stopped.
B. Nationwide Situation
    The Forest Service does not know the extent of its use of CE 6. 
WildLaw has tracked Forest Service CE 6 projects in the Cherokee, 
Pisgah, Nantahala, Sumter, Francis Marion, Apalachicola, Ocala, 
Osceola, Alabama and other National Forests in Region 8. The materials 
we received in response to a Freedom of Information Act request on the 
use of CE 6 shows clearly that the Forest Service is not tracking its 
own use of CE 6--it took months to get a full response and then it came 
from each region, not a centralized location.
    Basically, CE 6 is often used to get around the acreage limitations 
in the HFI CEs. This CE needs to be revisited and overhauled.
Description of CE 6
    The language of CE 6 is exceptionally broad:
    31.2--Categories of Actions for Which a Project or Case File and 
Decision Memo Are Required
    6. Timber stand and/or wildlife habitat improvement activities 
which do not include the use of herbicides or do not require more than 
one mile of low standard road construction (Service level D, FSH 
7709.56). Examples include but are not limited to:
        a.  Girdling trees to create snags.
        b.  Thinning or brush control to improve growth or to reduce 
        fire hazard including the opening of an existing road to a 
        dense timber stand.
        c.  Prescribed burning to control understory hardwoods in 
        stands of southern pine.
        d.  Prescribed burning to reduce natural fuel build-up and 
        improve plant vigor.
    FSH 1909.15, chapter 31.2(6)(emphasis added).
    CE 6 evolved from two CEs no longer in existence:
    1.  ``Low-impact silvicultural activities that are limited in size 
and duration and that primarily use existing roads and facilities, such 
as firewood sales; salvage, thinning, and small harvest cuts; site 
preparation; and planting and seeding,'' (``Low-impact Silvicultural 
CE''). FSH 1952.2 (4), and
    2.  ``Fish and wildlife management activities, such as improving 
habitat, installing fish ladders, and stocking native or established 
species.'' (``fish and wildlife CE'') FSH 1952.2 (9).
50 Fed. Reg. 26078 (June 24, 1985).
    The CEs scoped and issued at the same time as the Low-impact 
Silvicultural CE and the Fish and Wildlife CE included exemptions from 
NEPA's requirements when the Forest Service controlled poisonous plants 
in campgrounds, removed small mineral samples, and constructed picnic 
facilities--all mundane tasks with little chance of causing significant 
impacts either individually or cumulatively. See 50 Fed. Reg. 26078 
(June 24, 1985).
    At the time the Low-impact Silvicultural CE was adopted, the Forest 
Service provided assurance to commenters concerned about abuse of the 
broadly-worded authority, saying that ``[t]he guiding principal is that 
the depth and breadth of the environmental analysis, the extent of 
public involvement, and the type of documentation for a proposed action 
must be commensurate with the scale and intensity of the anticipated 
effects.'' 50 Fed. Reg. 26,078 (June 24, 1985)(emphasis added). Only 
where ``both past experience and environmental analysis demonstrate 
that no significant effects on the human environment will result, 
individually or cumulatively (FSM 1952.2)'' were actions to be excluded 
from documentation. 50 Fed. Reg. 26,078 (June 24, 1985).
    The final language of CE 6 was adopted in 1992. See 57 Fed. Reg. 
43180. Once again, the Forest Service made clear that ``[t]he intent of 
the agency is that only routine actions that have no extraordinary 
circumstances should be within categories for exclusion.'' 57 Fed. Reg. 
43180 (Sept. 18, 1992). During scoping for the language change, the 
Forest Service defined a routine action as one which ``will have little 
potential for soil movement, loss of soil productivity, water and air 
degradation or impact on sensitive resource values and is consistent 
with Forest land and resource management plans.'' 56 Fed. Reg. 19718 
(April 29, 1991).
    The historical justification for CE 6 is important because ``CEQ 
must review all CEs before the FS adopts them to assure the CE's 
compliance with CEQ and NEPA regulations.'' Heartwood, Inc. v. United 
States Forest Serv., 73 F. Supp. 2d 962, 966 (D. Ill., 1999); see also 
48 FR 34263 (July 28, 1983) (``Categorical exclusions promulgated by an 
agency should be reviewed by the Council at the draft stage.''). 
``Agencies shall continue to review their policies and procedures and 
in consultation with the Council to revise them as necessary to ensure 
full compliance with the purposes and provisions of the Act.'' 40 
C.F.R. Sec. 1507.3. Since the CEQ must approve CEs and revisions are to 
be made in consultation with CEQ, only those actions contemplated at 
the time of approval as falling under a CE can be validly excluded from 
normal NEPA procedural requirements without further consultation. Any 
other reading renders the CEQ review meaningless.
    In our FOIA request, WildLaw formally requested, among other 
things, ``[a]ny documents describing the scope, purpose, and/or the 
intended use of CE 6's predecessors in application,'' and ``[d]ocuments 
which the Forest Service has in its possession regarding the Forest 
Service's present understanding of the scope and application of CE 6.'' 
See WildLaw FOIA request of April 6, 2005. The Forest Service was 
unable to provide any documents justifying either CE 6 or its 
predecessors.
    CEs should be used for ``only routine actions that have no 
extraordinary circumstances.'' 57 Fed. Reg. 43180 (September 18, 1992). 
The Forest Service defined routine as: ``the activity will have little 
potential for soil movement, loss of soil productivity, water and air 
degradation or impact on sensitive resource values and is consistent 
with Forest land and resource management plans.'' 56 Fed. Reg. 19718 
(April 29, 1991). Both good and bad effects can be significant--it is 
the degree of impact, not the quality of impact that matters.
    The Forest Service is misusing Categorical Exclusion 6 (``CE 6''), 
also called the timber stand improvement CE (``TSI CE''). The Forest 
Service is often using CE 6 to effect sweeping management objectives, 
not the small routine actions for which the CE was originally written 
and approved by the CEQ. While it is clear that some in the agency are 
using CE 6 to avoid NEPA as it makes management decisions for hundreds 
of thousands of acres of land in the Southeast, it is equally clear 
that the Washington Office of the Forest Service has no idea how many 
acres of land are being treated under this authority.
    As part of the Healthy Forests Initiative, the Forest Service 
adopted a new set of CEs for thinning and prescribed fire use. The 
administrative records for those new CEs demonstrate clearly that the 
use of a CE for such projects cannot be justified for more than 4,500 
acres for prescribed fire and 1,000 acres for thinning. Yet, the agency 
is using CE 6 for projects in the tens and even hundreds of thousands 
of acres that are precisely the same as the ones in CEs 10, 11, 12 and 
13 that said projects larger than of such size cannot be justified 
through the use of a CE.
    The Forest Service is performing large prescribed burns and 
thinnings using CE 6 precisely for the purpose of having a significant 
impact on the environment: to reduce fuel loadings, improve habitat, or 
to restore a former fire regime. ``A categorical exclusion, however, is 
appropriate only when the agency determines that the proposed action 
will have ``no effect'' on the environment.'' Riverhawks v. Zepeda, 228 
F. Supp. 2d 1173, 1189-1190 (D. Or., 2002)(citing 40 C.F.R. 
Sec. 1508.4)(holding that the potential for impacts on turtles and 
salmon, as well as conflicts between various user groups precluded the 
use of a CE), Heartwood, Inc. v. United States Forest Serv., 230 F.3d 
947, 954 (7th Cir., 2000) (``categorical exclusions, by definition, do 
not have a significant effect on the quality of the human 
environment''). The only way for the Forest Service to avoid the 
conclusion that its actions are having an effect on the environment is 
to claim that many of its management activities are not accomplishing 
the goals and objectives that the Service uses to justify funding these 
same projects. This is not a novel position by an agency, but it is not 
one that courts appreciate either. The West v. Secretary of the DOT 
court did not appreciate a similar approach by the Federal Highway 
Administration:
        The FHWA regulations forbid the use of a categorical exclusion 
        for projects that will have ``significant impacts on travel 
        patterns.'' 23 C.F.R. Sec. 771.117(a). The new South DuPont 
        interchange was designed with the intent that it have 
        significant impacts on travel patterns. It was designed and 
        constructed because the agencies predicted that the existing 
        interchanges were inadequate to handle the traffic from the 
        anticipated growth. It is axiomatic that a new, fully-
        directional interchange cannot simultaneously relieve traffic 
        congestion and yet have no significant impact on travel 
        patterns.
206 F.3d 920, 929 (9th Cir. 2000).
    CE 6's vague, broad language has allowed projects having 
significant environmental effects to be carried out without normal NEPA 
environmental review. That these projects apparently fit within the 
language of CE 6 proves that the categorical exclusion may be illegal 
on its face. The hope of WildLaw is that CE 6 can be modified in order 
to save it for proper use.
    While we have much more information on CE 6, a brief summary of it 
is that there is evidence suggesting that the Forest Service did not 
originally intend the present misuse of CE 6, and therefore did not 
establish that it could be categorically excluded from NEPA.
    First, the Forest Service has not been able to produce 
documentation of an evaluation of similar projects to support its 
conclusion that the type of projects it is proposing and carrying out 
outside of NEPA do not have a significant effect on the environment.
    Second, as with the Low-impact Silvicultural CE, CE 6 was 
introduced in the context of other CEs of a much more mundane nature 
than the projects the Forest Service is presently claiming fall within 
the scope of CE 6.
    Third, anecdotally (and since the Forest Service does not know how 
often it uses CE 6, anecdotes are all we have) the Forest Service in 
Region 8 (and apparently elsewhere) has only recently begun to exploit 
the nearly unbounded authority it provided itself in CE 6.
    Fourth, the Forest Service recently introduced the Healthy Forest 
Initiative CEs which would be completely redundant with CE 6 if CE 6 
were given the expansive reading some in the Forest Service now claim.
    Lastly, one clue exists in CE 6 itself; the CE clearly states that 
it is for ``Timber stand--improvement.'' Note the use of the SINGULAR 
version of the word ``stand.'' CE 6 is for improvement to a ``stand'' 
of timber, not multiple ``stands'' of timber. Use of the word 
``stands'' would make CE 6 unbounded, as it is being used too many 
times now. Use of the singular word ``stand'' does indeed limit the CE 
to a discrete area that can arguably fall with the proper use of 
categorical exclusions, as most stands are only a few tens of acres in 
size.
    The Forest Service has not recently examined the use of CE 6 as it 
is required to do. Because of changes in use over time, a CE that was 
valid at adoption may be applied illegally now. ``CEQ suggested...that 
agencies conduct periodic reviews of how existing categorical 
exclusions are used, how frequently EAs for repetitive actions result 
in FONSIs, and then establish comprehensive databases, preferably 
electronic.'' The NEPA Task Force Report To The Council on 
Environmental Quality: Modernizing NEPA Implementation, 5.2.2, 
Importance of the Administrative Record (Sept. 2003). There is no 
evidence that the Forest Service has taken this precaution. Indeed, it 
took months for the Forest Service to fully answer WildLaw's FOIA 
request for documentation of CE 6 projects and ultimately each region 
sent its own answer, all formatted differently.
Proposed Changes to CE 6
    The administrative records for the new HFI CEs show that use of a 
CE on this scale for thinning and prescribed fire cannot be justified 
in any way. Therefore, by definition, a CE is not appropriate, and the 
Forest Service should prepare at least an environmental assessment 
(``EA'') for projects beyond the 1,000 acres of thinning or 4,500 acres 
of prescribed fire. Our suggested solutions include:
      Initiating a full investigation of the uses of CE 6 to 
get a clear picture of how it has been used properly and how it has 
been used improperly. WildLaw is aware of a number of projects that are 
good examples of the proper uses of CE 6.
      During this review of CE 6, guidance and instructions 
should be issued to all line officers ordering them not to use CE 6 on 
projects larger than the acreage limits in the HFI CEs.
      Conducting a public rulemaking process to amend the CE to 
include specific language limiting the acres it may be used on or 
making it clear that it can be used only on a singular stand, not 
multiple ones.
      Amending the CE to change the stated uses for CE 6, to 
make it clear that it is not a substitute for the other thinning and 
burning CEs. Make it clear that CE 6 is for other uses in stand 
improvement.
      Issuing clear and unequivocal guidance to all forests and 
districts on the proper use of CE 6 and how it is for use in a singular 
stand and how it cannot be used as a way to get around the limitations 
in the HFI CEs.
      Initiating multi-party training for line officers to 
teach them the proper use of CE 6, how it should interact with the HFI 
CEs, and how CE 6 should and should not be used.
CONCLUSION
    I deeply appreciate this opportunity to address the Subcommittee 
and present this testimony before it.
    CEs have their place and can be useful tools for implementing small 
projects under NEPA. Like all tools, the CEs used by the Forest Service 
have the potential for abuse. The massive and widespread abuses 
predicted at the adoption of the HFI CEs have not materialized, at 
least in Region 8; only occasional abuses have occurred there. Perhaps 
Region 8 is an exemplary region, the best of the agency. Without better 
monitoring and information, we cannot know exactly how abused CEs are 
in the other regions; although, anecdotal information indicates that 
abuses are worse outside Region 8. Abuses of CEs can have serious 
impacts and jeopardize the proper use of CEs. However, the ways for the 
agency to fix the main problem areas exist.
    I think that improvements and additions to the HFI CEs and a major 
overhaul of CE 6 will go far in making these tools into what they need 
to be. With targeted changes and additions, these CEs can be more 
useful for the agency and communities while also being less susceptible 
to abuse and misuse. The Forest Service should also attempt a more 
innovative and collaborative approach to reform NFMA planning instead 
of using a CE for plans.
    Thank you.
                                 ______
                                 
Attachment
A Modest Proposal for the U.S. Forest Service (Short Version)
A White Paper by Ray Vaughan, WildLaw
    ``Harmony with land is like harmony with a friend; you cannot 
cherish his right hand and chop off his left.'' ``A thing is right when 
it tends to preserve the integrity, stability and beauty of the biotic 
community. It is wrong when it tends otherwise.'' Aldo Leopold.
    ``Conservation is the foresighted utilization, preservation and/or 
renewal of forests, waters, lands and minerals, for the greatest good 
of the greatest number for the longest time.'' Gifford Pinchot, first 
Chief of the U.S. Forest Service.
    After decades of conflict over a handful of issues involving our 
National Forests, perhaps it is time to ask whether common ground can 
be found and progress made on areas of agreement. Can those parties and 
interests who have fought so long over the public lands put aside those 
conflicts and work together on other issues that make the public's 
forests healthier? Can an agency so long captured by a political 
mindset of short-term extraction move toward the goals of stewardship 
and sustainability it was originally formed to achieve? Can a way of 
resolving issues be found instead of people being stuck in a backward-
looking paradigm of endless conflict?
    We think that the answer to all those questions is ``Yes.'' Here 
are our suggestions for moving forward. What does WildLaw want?
    First, what we do not want. WildLaw does not want an agency that is 
a slavish and harried servant of the irreconcilable self-interested and 
shortsighted demands of ``multiple use,'' as if anyone really knows 
what that term means. We do not want an agency wrapped in controversy 
and endless conflict. We do not want a land management agency that 
hides in a bunker of ``agency expertise,'' afraid of really engaging in 
conversation with the people who own the forests, who pay the salaries 
of their managers and who often know those forests better than the 
agency experts.
    We want a USFS that is a model agency the public can be proud of, 
an agency taxpayers want their money spent on, and an agency that 
Congress sees as a problem-solver it wants to support. We want a Forest 
Service that embraces genuine ecological restoration, protection and 
sustainability such that the many uses of and desires for the National 
Forests can finally be reconciled by a guiding principle that puts the 
good of the forest first, in the long-term, over the good of any one 
interest in the short-term. We want an agency driven by science, not 
politics. We want an agency that accepts the various public interests 
involved in our National Forests as indispensable partners in land 
management decision-making. We want a new USFS.
    And a new USFS is coming; internal agency demographics and external 
realities make that inevitable. The issue is what type of new Forest 
Service we will have. This is our proposal.
From Conflict to Cooperative Conservation
    From our many conversations with USFS personnel at all levels, 
industry folks, and other interested people, it is clear that a 
critical mass of people involved in our National Forests are ready to 
change how business as usual is done. The seemingly endless days of 
conflict and trench warfare among competing concerns wear down parties 
while the needs of the forests are sidelined.
    Instead of frustration and anger, we propose a new course for 
positive change in the USFS and on our National Forests. Instead of 
focusing on the issues and principles we each hold that have divided us 
over the past decades, we need to begin talking with each other with 
respect and open minds. Let us focus on the areas of common ground 
where we can agree on the problems facing our forests, on the issues 
involved and on the solutions. We can always come back to the 
contentious issues later, and when we do, we may well find that after a 
few years of cooperation on common ground issues, we are not so far 
apart on those problem issues either.
    We all now have an opportunity to figure out how to fix real 
problems and encourage the real innovations and successes the agency 
can achieve. Such an effort can be exciting while producing a better 
agency, better public relations, more certainty in forest management, 
and much less litigation. While there will be issues and areas where we 
do not agree, we can put those aside for the time being and work on the 
issues and areas upon which we can agree. In our experience, we find 
that 20% of the issues on the National Forests divide us, and the 
conflict around those issues prevents conversations and solutions on 
the other 80%. In every instance where we have been open to exploring 
the neglected 80%, we have found common ground with all reasonable 
people who care for our public lands.
    As one of the top litigators against the Forest Service, WildLaw 
knows where the agency cuts corners and where the agency shines. We 
know many good people in this agency, good people who are true public 
servants. We also know the few bad people in the Forest Service, bad 
people who will do anything they can to make short-term money for their 
buddies in industry at the expense of the public at large. The few bad 
folks spoil things for the many good agency employees. Every agency or 
collection of people is subject to this dynamic of a few dragging down 
the work of the whole; this is not unique to the Forest Service. But, 
at this time, we believe that we all really have the chance to reverse 
this dynamic for the Forest Service, to seize this opportunity to end 
the days of the few holding back the rest.
    It is clear that collaborative efforts and cooperative conservation 
plans have been notably successful in many areas throughout the nation; 
WildLaw and our Executive Director Ray Vaughan have participated in 
several such efforts and know some of those successes. But as admirable 
as those success stories are, they are still the exception, not the 
rule, of how conservation work is done in America or on our National 
Forests. Clearly, more efforts are needed so that they become more of 
the rule.
    Cooperative conservation efforts on our National Forests can 
produce results as good as the rhetoric. One example of success is the 
largest timber sale in agency history: the Hurricane Katrina salvage 
project in Mississippi (490,000,000 board feet) was conducted by a 
collaborative, cooperative process, and it was a success at every 
level.
    If cooperative conservation succeeds on a broader, national scale, 
all of us can celebrate. If it does not, our forests will continue to 
degrade and command-and-control regulatory warfare will return. Trusts 
will be betrayed if cooperation does not lead to better forest 
management, but the possibilities cannot be known without trying.
Details of the WildLaw Proposal for National Forests
    Since WildLaw's founding a decade ago, litigation and other legal 
actions have been our key methods for stopping egregious and illegal 
projects on public lands. During these ten years, we have developed 
critical links between regional efforts to facilitate restoration-based 
management on both public and private lands. Building upon and 
branching out from litigation, we have learned to use a broad array of 
tools in a proactive approach to both public and private resource 
management issues in our region: legal defense, economic reform, 
community empowerment, capacity building, and technical support.
    WildLaw's concept of ecological restoration and sustainability for 
National Forests can help serve as a national policy statement to guide 
sound forest management. By including social and economic criteria, 
ecological restoration also bridges the gap between what is good for 
the land and what is good for communities and workers. Our concept 
would increase the amount of good work being done in our forests and 
reverse centuries of unwise resource extraction and development that 
have fundamentally altered most of America's forests. This history of 
unguided management has directly contributed to a dramatic loss of 
habitat, decline in water quality, and disappearing old-growth forests, 
as well as economic and social harm to communities and workers. Such 
good restoration efforts only work, however, if they are based on 
science and recognize that ecosystems are complex and our understanding 
of them is still limited.
    Through a process of truly doing what is best for the land through 
restoration and management based on sustainability, the Forest Service 
needs to fully examine the role it could play in restoring community-
based forestry economies and cultures in the regions surrounding our 
National Forests. During a period of significant change in forest 
policies at the federal, state and local level, WildLaw's vision of 
ecological forest restoration and sustainability establishes a viable 
vision for restoring natural ecosystems and a sustainable human 
relationship with the land.
    Simply being an oppositional organization seeking to stop bad 
projects, while a worthwhile strategy and an integral part of our 
history, cannot be the only focus for WildLaw. We have an obligation to 
find ways to make the National Forests more vital and functioning 
ecosystems that meet the needs of a diverse set of people who use and 
love these lands. Through our initial experiences with pushing science-
based ecological restoration and sustainability, WildLaw has begun a 
new and proactive/positive avenue of affecting forest management for 
the better.
    We are faced with a synergistic combination of crisis and 
opportunity, and WildLaw is proposing three strategies:
    1.  Facilitating ecosystem-based forest management that restores 
and enhances the ecological health and sustainability of forests while 
producing services and goods for human communities, whether those 
economic opportunities are recreational or physical byproducts of 
ecosystem restoration.
    2.  Developing local, regional, and national markets, value-added 
enterprises, and business networks that maximize the economic benefits 
of sustainable forest management for the Forest Service, local private 
landowners, workers, and communities.
    3.  Developing a skilled workforce of forestry professionals with 
access to the technical expertise, equipment, and financial resources 
required to carry out restoration and low-impact management activities 
on the ground.
    Facilitating ecosystem-based forest management restores and 
enhances the ecological health of forests while producing services and 
goods for human communities.
Ecological Restoration Projects
    In the late 1990s, WildLaw pioneered the model of ecosystem 
restoration on the National Forests in the South. Starting in Alabama, 
WildLaw worked with the USFS to develop the first forest-wide, science-
based restoration programs in the nation. These restoration programs in 
the National Forests in Alabama have been extremely successful and have 
become national models. Our goal is to spread this model throughout the 
entire National Forest System nationwide.
    Obviously, what is restoration of functioning forest ecosystems and 
what is sustainable management of those ecosystems will vary from 
forest to forest. There clearly can be no ``one size fits all'' 
approach to what is required on the ground. Some areas will need a 
hands-off approach, letting nature heal itself. Some areas will need 
road maintenance, road obliteration, stream restoration and other site-
specific actions. Some areas will need thoughtful, long-term 
manipulation of the vegetation, sometimes through mechanical 
treatments, sometimes through prescribe fire. Some areas will need 
aggressive invasives treatment. Some areas will need planning for 
eliminating uncontrolled harmful recreation while still providing fun 
and safe areas for all forms of recreation. There is much genuine 
restoration work to be done.
    While the work required on the ground might be different for each 
Forest, the process for arriving at a consensus of what the restoration 
and sustainable management needs of a particular Forest are can be 
universal. It is not a matter so much of using once set of laws and 
regulations over another. It is more about common sense, openness, 
humility and a willingness to listen and learn from others whom you may 
not agree with right now.
    To make cooperative restoration programs work on our National 
Forests, folks like us at WildLaw must maintain vigilance in reviewing, 
commenting on and, when necessary, challenging projects on our public 
lands. Cooperative conservation only works when those who would abuse 
the land and the public for short-term gain cannot do so and when those 
whom they would adversely influence know they have the room to do the 
right thing, despite the politics of exploitation. So, we are not going 
away if cooperative conservation works; if anything, we will be more 
involved. We hope that the Forest Service and industry will get more 
involved also; that will be the only way for solutions to work.
For the USFS, to make a change in direction that solves most of the 
        current problems in management of the National Forests, it 
        needs to do these things:
    Follow the law, use good science, be honest and open with the 
public.
    For folks in the industry who are frustrated by the unpredictable 
and intermittent flow of materials from the National Forests and for 
agency personnel frustrated by the inability to get work done and the 
inability to do needed management, I want you to image something. 
Imagine a place where the flow of timber off the National Forests is at 
a known level and stable and predictable for at least 50 years, a place 
where the harvesting of that timber is not controversial and projects 
to approve that harvesting are not appealed or litigated, a place where 
industry, forest practitioners, environmentalists, scientists and 
agency personnel have all agreed on the management needed. Well, you do 
not have to imagine such a place. That place is the National Forests in 
Alabama.
    The solution to analysis paralysis lies not so much in changing the 
rules of analysis but in changing how you do your analysis. For too 
long, the agency has compartmentalized (literally) its forests and its 
work. Trying to make each project look small and insignificant seemed 
like a good way to avoid doing population data collection, cumulative 
impacts analysis and a host of other things required by law for ``big'' 
projects. This scheme has not served either the forests or the Forest 
Service.
    The Forest Service must stop managing merely by compartment and 
individual project. Instead, step back and assess at a landscape or 
watershed level what it is that the forests need and what can be done 
to meet those needs over a longer term, at least five years. Fifty 
years would be better. This is not planning but how to implement plans 
with a broad vision instead of a microscope. The Forest Service also 
must not focus on ``product'' being produced for sale; having timber 
quotas has never helped the forests or the agency. It would be far 
better to focus on acres restored, watersheds healed, rivers and 
streams restored, wild places protected, visitor experiences enhanced, 
conflicts resolved, new workforces created, and the like. Do what the 
land needs, use the right tools to do the right job, and there will be 
products and services provided in their own due course. Focus on the 
work, the land and the people; the rest will take care of itself and be 
much better than artificial targets.
    Take a year or two to develop a full and quality EIS on what 
restoration really means for your district or forest. Think big. Look 
at all forest needs, road repair and road obliteration, stream 
rehabilitation, indeed entire watershed rehabilitation, invasives 
removal, native forest restoration, etc. Involve all stakeholders at 
every step, especially at the start of the process. Instead of 
proposing actions, share each Forest's problems with all the 
collaborative stakeholders and seek their input on what the solutions 
(and thus the management actions) should be to solve those problems. 
Seek out ideas and assistance. Think big. Instead of a series of 
``small'' projects that cumulatively are big (but which you claim are 
not), admit that what you are doing is one big project and analyze and 
act accordingly.
    In woodworking, the saying goes ``measure twice, cut once.'' It 
means to take the time to make sure the planned action is correct and 
then you get to take that action without making major mistakes and 
without having to do the work over. For NEPA, NFMA and ESA analysis, 
the same is true. Take the time to make sure what you are doing is 
right and done well, then you can do it without having a judge tell you 
to go do it over again. And over again....
    To see how to do this right, look at the Conecuh National Forest in 
Alabama which prepared an EIS on a five-year program to restore 
Longleaf Pine over some 4,222 acres. It would give Forest Service 
restoration work better direction and improved validity if it abandoned 
all the piecemeal projects and instead looked at the forest as a whole 
to prepare and implement a full EIS on a comprehensive restoration 
program for each forest that could guide the timber management and 
other actions for a five-year period. One comprehensive and more-
thorough analysis gives a better picture of the work that needs to be 
done (and where it really needs to be done) and can be done without the 
problems that arise from piecemeal implementation.
    Now, all the forests in Alabama have prepared restoration programs. 
The Talladega National Forest released their five-year Longleaf Pine 
restoration EIS in early 2004. It covers 19,000 acres. They had MIS 
data for the entire area over several years, as well as complete PETS 
surveys for every acre of that 19,000 acres. That created a baseline 
and a need which no one could challenge.
Benefits of a Restoration/Sustainability Paradigm for the Forest 
        Service
    There are many benefits for all interested parties from a shift to 
this paradigm for the Forest Service:
      The USFS reduces conflict and litigation, most likely a 
significant amount.
      An end to ``analysis paralysis,'' ``process 
predicament,'' or whatever you call the excessive paperwork the agency 
engages in to justify plans and projects.
      Legal requirements for the development and implementation 
of projects and programs become clearer and better defined.
      Resources needed to plan and propose programs and 
projects are reduced while resources for actual implementation of work 
and monitoring on the ground increase.
      The timber industry and local communities gain a 
predictable and sustainable supply of economic and ecologic services 
and products from the National Forests. This paradigm will never 
recreate the unsustainable heyday of 12,000,000,000 board feet of 
lumber coming off the National Forests, but the intended sustainable 
reality of a more diverse economic engine from the National Forests 
will emerge.
      The public and conservation organizations gain the 
comfort that special areas in the National Forests are not the target 
of exploitation and management resources are expended on restoration of 
areas that really need that better management.
      Conflicts over hot-button issues are reduced, and 
``judgment day'' on dealing with those issues is postponed, if not 
eliminated.
      Communications, dialogue and cooperation among previously 
adversarial parties increases and could lead to a new level of 
understanding that will solve many of the problems and conflicts on 
these public lands.
      Restoration and sustainable management improve habitat 
conditions for all native wildlife on the National Forests.
      The number of species headed toward extinction will be 
reduced, and those listed under the Endangered Species Act will head 
more toward recovery.
      Habitat for game species will be enhanced and improved.
      Protection of watershed values and clean water coming off 
the National Forests will increase.
      Clean air provided by natural forests will increase.
      Forests will become more resilient. Long-term restoration 
and sustainable management will reduce the National Forests' 
susceptibility to major damage from fire, insects, drought, hurricanes 
and other events.
      Restoration of natural ecosystems and sustainable 
management of those ecosystems will make the forests better able to 
handle changes due to climate change.
      Restoration and sustainable management make the National 
Forests a partial solution in reducing the severity of climate change.
      Conflicts between recreational users will be reduced as 
careful planning of where and how to accommodate the various uses 
sustainably will help resolve these conflicts.
      Training and new opportunities for forest practitioners 
and local communities will increase and provide long-term, predictable 
opportunities.
      A unified and agency-wide program for solving problems 
through this new paradigm with the widespread support of diverse 
interests could convince Congress to be more supportive of the agency 
and its funding needs.
      The National Forests and their management paradigm of 
restoration and sustainability would be a powerful and true model for 
the management of private forest lands.
      Work on the National Forests would be a jumpstart for the 
development of sustainable local economies based around the forests. 
There has been a lot of difficulty of developing new markets for 
private forest landowners and practitioners. The National Forests could 
provide the genesis for this and give it the ability to grow into the 
broader realm of forestry on all lands.
U.S. Forest Service and Its Opportunities with Communities
    WildLaw feels that the U.S. Forest Service has both a relationship 
to the communities in the areas surrounding its forests as well as an 
opportunity to help better those same communities. First, many areas 
near National Forests tend to be rural, with little or no real industry 
to provide employment. Second, the artificially high and unsustainable 
harvests of the 1970s and 1980s created a reliance on those forests for 
jobs that were not sustainable for the long-term. Third, by harvesting 
most of the resource ``capital'' from these forests without any 
accompanying reinvestment, the Forest Service in effect stole from 
residents in communities surrounding these forests, and they have an 
obligation to right those wrongs from past mismanagement.
    After years of dis-investment from rural, forest dependent 
communities, it is time for a major change. Elsewhere, especially in 
the West, communities and the Forest Service have recognized this need 
and have been working towards the creation of a restoration economy. 
The trick is how to get dollars for the work. The Forest Service and 
Congress seem intent on trying to make the forests pay for this out of 
dwindling forest reserves. To accomplish this, the Forest Service all 
too often puts out timber sales that involve harvesting the limited old 
growth or mature, functioning forests in order to pay for restoration. 
This is like borrowing money at 8% to reinvest it at 4%. It is taking 
the last capital out of the bank which will continue to bankrupt the 
forests and surrounding communities.
    A sounder approach is to recognize the depleted accounts and to 
make a reinvestment that could be used to rebuild the capital so that 
once again we could live off the interest of a sustainable endowment in 
our forests and communities. This approach allows for the development 
of local workforces due to the sustainable nature of forest investments 
and activities, each Forest having its unique set of restoration needs 
and unique situation for sustainability.
    WildLaw feels strongly that the Forest Service is in a position to 
do this. Science-based ecological restoration could provide the dual 
benefits of improving and restoring areas of the forests to more 
natural state and at the same time providing sustainable, well-paying 
jobs in the process.
    As an agency guiding principle, the U.S. Forest Service needs to 
recognize and embrace the need for ecological restoration and 
sustainable management on the National Forests. True restoration and 
sustainability implemented on National Forests can be accomplished by 
engaging in the following strategies:
    1.  Every National Forest should engage in an open, cooperative 
public process to develop a vision for what that Forest needs and 
should move toward, like all the National Forests in Alabama did. All 
the restoration needs of that Forest need to be examined and 
prioritized in a collaborative process that gives all interests the 
assurance that they are heard and that their needs are met to at least 
a reasonable level. All available scientific knowledge and expertise on 
the particular Forest's ecosystems must be fully integrated into the 
entire collaborative process. The agency should let proposed management 
actions come out of that process instead of proposing actions prior to 
the process. If additional authority and funding for this collaborative 
process are needed, the agency should go to Congress to seek that, 
showing them the successes the agency has thus far and how this 
approach can solve many of the problems facing the National Forests.
    2.  At the project level and the Forest planning level, the USFS 
should advocate for ecological restoration whenever appropriate, 
including having restoration-only alternatives developed for proposed 
projects. As an example, the 2004 revised plan for the National Forests 
in Alabama emphasizes restoration as the main management goal for the 
next 15 years in all the Forests in the state.
    3.  At every level, starting at the Washington Office, Forest 
Service decision-makers need to make it a priority to move the National 
Forests toward this model of ecological restoration. protection and 
long-term sustainability. Needed changes to regulations, additions to 
the Handbook and the Manual, and any needed guidance on this type of 
work should be developed and adopted with full public participation.
    4.  More work by the Research Stations should be focused on 
restoration and sustainability, both in general and in what particular 
Forests need. For some ecosystems, Longleaf Pine as the primary 
example, the actions needed to restore the ecosystem are well known. 
For most forest ecosystems, though, what is needed to restore the 
forest to a healthy state and keep it in a sustainable management 
regime is not yet known, or not well known. For such forests, 
restoration plans should start with well-monitored pilot and 
experimental projects before moving to a large scale, forest-wide 
program. For a well designed and monitored project to test restoration 
techniques for such forests, all parties involved must be willing to 
accept risk and be willing to allow the agency to fail occasionally 
without punishment.
    5.  To make all of the above possible and attractive for Line 
Officers in the agency, the Forest Service should engage in a thorough 
and comprehensive training program for its personnel to show them how 
to engage in the collaborative process to produce good restoration and 
sustainable management for their individual Forests. There are 
personnel in the agency who know how to do this; folks in groups like 
WildLaw and in industry also know how to do this. The agency should 
sponsor a program of training and education that brings together these 
people who have experience in this new paradigm so that they can 
educate others in this process and help them find the cooperative 
solutions that work for their individual Forests. WildLaw is fully 
prepared and ready to assist in this educational effort wherever it is 
needed.
    Litigation risk and adversarial relationships would diminish 
drastically with this approach.
    One of the greatest obstacles to accomplishing good forest 
management on the ground is the lack of skilled professionals 
practicing low-impact forestry. Our forest industry has mainly evolved 
to rely on large-scale logging operations that maximize short-term 
timber production, often at the cost of forest health. As a result, the 
vast majority of our logging workforce is deeply invested in expensive 
harvesting systems that require very high ``production efficiency'' to 
achieve profitability. While timber harvests have increased, the size 
of our workforce has actually declined. Loggers have had little choice 
but to follow the lead of industrial forestland owners and timber 
buyers to remain competitive.
    With increasing interest in, as well as demand for, ecosystem-based 
forest management, the time is right to begin facilitating skill 
development for logging crews and other forestry and restoration 
practitioners. Pursuing this goal will require a significant investment 
in education, equipment financing, business development assistance, and 
technical assistance, and will require that we engage a new array of 
partners.
    The U.S. Forest Service needs to work with partners such as 
community colleges, universities, established local logging crews, 
local mills, and nonprofits such as WildLaw and the Southern Forests 
Network (SFN) to explore opportunities for workforce development using 
such strategies as:
    1.  Meet with potential partners to introduce them to new ideas and 
gauge their interest in working together (our SFN program recently net 
with a local university forestry program and community college forestry 
& logging program).
    2.  Facilitate collaborative development of pilot projects on 
National Forests where there is the need to learn how to restore the 
forest ecosystems there.
    3.  Examine new markets and new products that can come from 
restoration activities, including small diameter wood products and 
products from thinning and clearing of undergrowth (including biomass 
energy, mulch, specialty crafts, carbon sequestration market credits, 
and other products).
EVALUATION
    While a new paradigm in forest protection and management will take 
time to take hold and grow, there are ways to recognize and know that 
it is doing just that:
      Increasing number of valid restoration programs and 
projects on more National Forests.
      Open recognition by the USFS at all decision-making 
levels that restoration and sustainability are the goals of management.
      Increased involvement and interest by private forest land 
interests in the restoration work on National Forests and use of that 
restoration work as models for their private land work.
      New and increased market and economic opportunities for 
local communities and forest practitioners in sustainable forestry 
work, both on public and private lands.
      More National Forest management plans that directly and 
openly embrace restoration as the primary management goal, such has 
been done in Alabama, and to a lesser extent, Florida.
      More individual National Forest projects that are 
restoration based and fewer projects that fail to comply with the law.
      Where legal actions are necessary, they lead to the 
litigants and the Forest Service using the cases as opportunities to 
reevaluate management, instead of blindly defending past mistakes or 
blindly attacking the agency. And for those who challenge the agency, 
those groups must be open to finding a new direction for management, 
instead of just saying ``no'' to any management. Industry must be 
willing not to demonize environmentalists who challenge real violations 
of the law and bad management decisions; industry should not defend bad 
agency actions in a mentality of ``defend it all, right or wrong.'' 
Industry must be willing to admit that certain activities should not be 
conducted on the public lands (or not conducted in certain ways or for 
certain reasons) in order to get better and truly sustainable 
management on the National Forests. Basically, trench warfare amongst 
all parties must end, and litigation must be reserved for truly illegal 
and unwise management decisions.
      Increased reporting of the ideas and implementation of 
restoration and sustainable management, both in the mainstream press 
and in forestry and academic publications.
      New and increased participation by traditional forestry 
industry in sustainable forestry efforts to help communities and 
workers make their work truly sustainable for the land and themselves.
                                 ______
                                 
    Mr. Grijalva. Thank you, sir. Let me turn now to Mr. John 
Stavros. Thank you, sir.

          STATEMENT OF JOHN STAVROS, NEW HARMONY, UTAH

    Mr. Stavros. As you said, my name is John Stavros. I come 
from a part of the country where you hear people say it's hot, 
but it is a dry heat. So a little different than here. I grew 
up in Salt Lake City and moved to New Harmony 11 years ago. I 
live on four acres of Forest Service boundary land, and I share 
a fence with the Dixie National Forest. I am an application 
developer for a large Boston-based financial services firm. My 
manager is in Boston, and I am lucky enough to work from my 
home office in the middle of nowhere.
    You have heard testimony regarding categorical exclusions 
and their use and misuse, and you have heard it from experts on 
all sides of the issue. So why am I here? I am here to make it 
personal. This is my house. We see pictures like these coming 
out of Lake Tahoe this week, and it is easy to become numb to 
them. Let me tell you, when it is your house, it is a different 
set of emotions.
    As you look at the pictures in my written testimony, you 
can see that this was a very close call. The Blue Springs fire 
roared into the community on the evening of June 27, 2005, just 
two years ago yesterday. There are many reasons why my house 
still stands. As Mr. Lawrence mentioned in his closing 
comments, it has a great deal to do with the conditions of the 
home itself, and we planned and built for the conditions in 
which we live.
    I created a green space around my home and built it with 
fire-safe materials. Also my roof was thoroughly wet. Three 
built-in rooftop Rain Birds were soaking my house during all of 
this, and the heroics of the brave pilots and firefighters 
cannot be overstated.
    In 2003 through 2005, two efforts were going on 
concurrently. First, the Forest Service informed the community 
in writing that they planned to cut a fuel break through the 
area just behind the community on Forest Service land. This 
thorough four-page document which began, ``Your input is being 
sought'', demonstrated how well thought out the plan was, and 
it offered a variety of contact methods if people had concerns. 
My only concern was, would the work happen quickly enough to do 
any good?
    Did the fuel break stop the fire in its tracks? No. Did it 
help? I am certain that it did, as I observed the fire from as 
close as you would ever want to be. I believe that the fuel 
break bought precious minutes, allowing the helicopter to make 
one or two additional drops. It gave the community a few extra 
minutes to evacuate when the fire abruptly blew up in the early 
evening.
    Second, the Utah State Department of Forestry, in 
cooperation with the local fire department and the U.S. Forest 
Service, organized my neighborhood to engage in work parties to 
reduce the fuel load, mitigate ladder fuels, and make the 
community as fire safe as it could be. We contributed dozens of 
hours over many weekends using chainsaws and hand tools while 
the state provided a chipper to shred the piles of useless 
slash.
    My neighbors and I know that we have chosen to live in a 
higher risk area, and we do not expect the government to make 
us safe while we sit on the deck and sip lemonade. We grabbed 
onto the opportunity presented to us, got organized, and 
accomplished much, and as you might guess, following the fire 
we redoubled our efforts and worked even harder, but becoming 
fire-safe did not require that we clear-cut our beautiful 
properties. The Federal and state forestry officials taught us 
the concept of ladder fuels and helped us retain the wild 
beauty while reducing the hazard.
    I understand that some people believe that the public was 
excluded from the planning of the fuel break and that the 
motivation to move so quickly was based in part on greed. 
Somehow the Forest Service was going to make a buck on the 
trees they pulled from the fuel break while everyone was caught 
napping. In this situation, this is absurd. Junipers and scrub 
oak are brushy, gnarled trees with really little value beyond 
perhaps firewood.
    The fuel break work began on schedule in the summer of 
2003. It was going on just 1 or 200 feet behind my home so we 
could see and hear the daily progress of the work crews. Each 
evening my wife and I walked back into the cut zone to observe 
the results of the day's efforts. While we embraced the 
importance of the work, we expected to have our hearts broken 
by the site of the denuded land and a chaotic job site. 
Instead, we saw that the crews took care to preserve the beauty 
and habitat of the zone, and that they stacked the useless 
slash neatly into piles exactly as the decision memo said they 
would. When winter lowered the fire danger to zero, crews 
returned and burned the slash.
    Did I speak up or did I sit by passively? I am not a person 
who sits back and lets the government do as it wishes. When I 
moved out of the city, I quickly learned that in a sparsely 
populated region a few engaged people can make a difference. I 
am president of the local cycling club, and I serve on the 
national mountain patrol, a trained volunteer organization 
similar to a ski patrol.
    I participated in numerous planning meetings with local and 
Federal land managers where the recreational interests of 
mountain bikers needed representation. I have proactively 
organized groups to support the mutual goals of land managers 
and cyclists. In turn, the land managers call on me when they 
need at the table a rational thinking representative of 
mountain biking. It is a relationship borne of trust and 
respect over the years. I believe that this history 
demonstrates that I am not passive when it comes to issues 
about which I am passionate.
    If I felt that the Forest Service had planned anything not 
in the public's and my best interest, I would have spoken up. I 
know how to speak up, and I like to engage in the process. That 
is why I came 2,000 miles to spend five minutes with you today, 
and I see that my time is up so I do thank you for your 
attention.
    [The prepared statement of Mr. Stavros follows:]

 Statement of John Stavros, Resident of New Harmony, Utah, Application 
Developer in the private sector, Testifying at the request of the U.S. 
                             Forest Service

CONTENTS
    1.  Summary of witness credentials
    2.  Photographs from the Blue Springs Fire of June 27, 2005
    3.  Letter to residents regarding fuel break plans
    4.  Decision memo
    5.  Summary of oral testimony
I. Summary of witness credentials
    The following establishes my credibility as a witness. I bring the 
following experiences and circumstances to this hearing:
      I am not affiliated with any government agency. I am 
employed in the private sector as an application developer in a large 
financial services firm.
      I've lived in the West all my life. I grew up in Salt 
Lake City and moved to southern Utah 11 years ago.
      I share a border with the Dixie National Forest. The back 
fence of my 4-acre home is the Forest boundary.
      I was informed about a planned fuel break well in advance 
of the commencement of work and had reasonable opportunity to oppose it 
had I wanted to. (I did not oppose it and opted not to make contact.)
      I observed the crews as they completed the fuel break and 
had no problems with the way they conducted their work. It proceeded 
efficiently in a workman-like way.
      On June 27, 2005 a large forest fire came within 60 feet 
of my home giving me a frighteningly close view of the fire fighters' 
remarkable suppression efforts. I also witnessed the effects of the 
fuel break and the role it played in saving my home.
      I am president of the local cycling club and serve on the 
National Mountain Bike Patrol, a trained volunteer organization that 
functions much like the ski patrol does in ski resorts. These roles put 
me in frequent contact with local land managers.
      I have a running history of advocacy with local, state, 
and national land managers regarding recreation issues important to 
mountain bikers. I am proactive about being at the table during 
planning sessions and can rally local mountain bikers to volunteer in 
support of the mutual goals of land managers and cyclists.
      In 2004 and 2005, a dozen of my neighbors and I worked 
with the State Forestry people to reduce the fuel load on our 
properties. We cleared deadfall and cut the lower limbs from trees in 
an effort to hinder the progress of a fire. The neighbors provided the 
tools and labor and the State provided a big chipper to turn our huge 
slash piles into mulch.
II. Photographs from the Blue Springs Fire of June 27, 2005
    [NOTE: Photographs have been retained in the Committee's official 
files.]
III. Letter to residents from the USFS regarding fuel break plans
June 12, 2003

Dear Interested Party:

    Your input is being sought on an analysis for the New Harmony Fuels 
Treatment on the Dixie National Forest. This letter and the attached 
maps will provide you with information on the background of the 
project, the Purpose & Need, the Proposed Action, the decision to be 
made, as well as a request for your comments.
    If the analysis demonstrates there are no issues, the responsible 
official will document this in a Decision Memo. The responsible 
official for this project is the Pine Valley District Ranger of the 
Dixie National Forest.
    Background. The rapidly growing community of New Harmony has 
expanded along the National Forest boundary where structures have been 
built in the existing dense vegetation. Recently, large wildland fires 
like the Sequoia (8,100 acres) in 2002 and the Harmon Creek (493 acres) 
in 2000, and numerous small wildland fires, have burned around New 
Harmony. New Harmony is listed in the Federal Register as a ``Community 
at Risk'' to wildland fire. It is also an Interagency Urban Interface 
Focus Area. As such, the BLM and Utah Forestry, Fire, & State Lands 
Department are currently planning and executing different fuel 
treatments to make wildland fires easier to contain and extinguish.
    Purpose. The purpose for this project is to modify fire behavior 
around New Harmony by reducing fire rate of spread and intensity, and 
by creating conditions that support desirable fire behavior. This 
project strives to have residences and community infrastructure 
adjacent to Forest Service land less susceptible to impacts from 
wildland fires. Fire behavior conditions associated with thick, 
continuous stands of brush and trees can fuel intense wildland fires in 
many areas along the National Forest/private land boundary. These 
conditions limit suppression effectiveness, and compromise the safety 
of initial response firefighting resources that are called on to 
protect these structures.
    Need. To help protect New Harmony from future wildland fires, fuel 
modification is needed along the National Forest boundary. The 
modification should result in fire behavior (specifically, flame 
lengths) that is low enough so firefighters can be effective if 
suppression action is necessary.
    Proposed Action. Construct a shaded Fuelbreak 4.9 miles long and 
240 ft. wide by mechanical treatment and pile burning. The proposed 
action treats 145 acres to a fuel loading that produces flame lengths 
less than 4 ft. on all but the worst 10 percent of the weather days.
    The shaded fuelbreaks (see attached map) will consist of new 
construction (240 ft wide) and widening of existing fuelbreaks that are 
50 ft. wide to 240 ft. The fuelbreak will reduce dead and down fuel 
loading to less than 5 tons an acre. The brush and shrubs would be cut 
to approximately 6 inches or less in height. Pinyon and Juniper trees 
less than 8 feet tall would be cut, piled and burned. Pinyon and 
Juniper trees over 8 feet tall would be retained at a minimum crown 
spacing of 15 feet to a maximum crown spacing of 60 feet. A minimum of 
1 snag per acre would be retained. Fuel wood gathering would not be 
possible because of limited vehicle access.
[GRAPHIC] [TIFF OMITTED] 36475.011

.epsProposed action for new fuelbreak construction.
      A total of 2.6 miles of new fuel break will be 
constructed to a width of 240 ft (92 acres). Of this, 2.1 miles 240 ft 
wide (76 acres) will be accomplished by chainsaw cutting and subsequent 
pile burning. Pile burning will occur during winter months. The 
remaining 0.5 mile, 240 ft. wide (15 acres) of new line construction 
will be accomplished using a mechanical brush mower in a previously 
treated area that contains a lower level of Pinyon and Juniper fuels 
that may be accomplished with this type of equipment.
Proposed action for widening existing fuelbreak.
      The existing fuelbreak was constructed under a wildland 
fire emergency action in 2002. The existing fuelbreak is 2.3 miles long 
and 50 ft. wide, the proposed action will widened it to 240 ft. (53 
acres). This widening will be accomplished by chainsaw cutting and 
subsequent pile burning. Pile burning will occur during winter months.
Proposed Action Maintenance and Implementation Design
      The fuelbreak will be maintained by using goats to reduce 
encroaching grass and shrub vegetation at regular intervals (1-3 years) 
based on vegetation height (; to 3 ft in height). The goats will be 
utilized only within the fuelbreak area (145 acres), and be controlled 
with movable electric fence and consistently monitored by a herder. If 
goats are unavailable, maintenance will be accomplished by the use of 
chain saws and/or brush cutters with subsequent pile burning in fuels 
are in excess of prescription parameters. The area that is initially 
treated by mowing may be maintained by mowing when vegetation 
parameters are met (; 3 ft in height).
      Seeding of the constructed fuelbreaks would occur to 
reduce the relative amount of fine fuel produced by cheatgrass. This 
seed would be a mixture of non-native seed.
      The proposed action has been designed to limit access by 
ATVs. This would be accomplished by not removing existing vegetation 
barriers where there is potential for ATV access. Other areas of 
potential access will employ physical barriers (i.e. large rocks) to 
prevent access.
    Location. The proposed action would be constructed south and west 
of the town of New Harmony (see map). The proposed action would be 
constructed in Sections 20, 27, 28 and 34 of Township 38S Range 13W and 
Section 2 of Township 39S Range 13W.
    Timeline. Please respond to this letter with comments by June 25, 
2003 to

Bevan Killpack
U.S. Forest Service
Pine Valley Ranger District
196 E. Tabernacle, Room 40
St. George, UT 84770
(435) 652-3100
ATTN: New Harmony Fuelbreak

    Thank you for your time and interest in your National Forest.

BEVAN KILLPACK
District Ranger
[GRAPHIC] [TIFF OMITTED] 36475.012

.epsIV. Decision memo

                             Decision Memo

                          USDA Forest Service

                         Dixie National Forest

                      Pine Valley Ranger District

New Harmony Fuel break
LOCATION AND EXISTING CONDITION
    The project would create a fuel break in the dense brush on 
National Forest System lands south of the town of New Harmony, 
Washington County, Utah. Please see the attached map for the location.
    Existing fuels consist of primarily curlleaf mahogany, gambel oak, 
serviceberry and Utah juniper. There is a high content of dead and down 
fuels in the area. Edges would be ``feathered'' and islands of 
untouched vegetation would be left to provide visual softening and 
hiding cover for wildlife.
    Biological Evaluations (BE) were performed for sensitive plant and 
animal species, and a Biological Assessment (BA) was completed for 
threatened, and endangered plant and animal (biological evaluations and 
assessments are included in the project file) The BE determined no 
effect to sensitive species. The BA also determined there would be no 
effect on threatened and endangered species, nor on their critical 
habitat.
PURPOSE AND NEED FOR THE ACTION
    The purpose for the proposed project is to:
      Create a defensible space around private property 
adjacent to National Forest System lands in case of fire.
      Increase potential effectiveness of initial attack 
firefighter resources within New Harmony.
    The fuel break is needed for two reasons:
      Completing the proposed project would provide 
firefighters a defensible space in which they could more effectively 
suppress fires approaching the town of New Harmony from the south.
      Increase potential effectiveness of initial attack 
firefighter resources from the Dixie National Forest and cooperators.
    This project is the third in a series of actions designed to 
provide better fire protection for the private and public land in and 
around New Harmony. The first action was the cooperative completion of 
the fuel break on the adjacent BLM administered land and the second was 
the construction of the fuel break in conjunction with the Sequoia 
wildfire. This action will complete the fuel break between the BLM and 
the fuel break created in conjunction with the Sequoia wildfire.
PROPOSED ACTION
    Construct a shaded Fuelbreak 4.9 miles long and 240 ft. wide by 
mechanical treatment and pile burning. The proposed action treats 145 
acres to a fuel loading that produces flame lengths less than 4 ft. on 
all but the worst 10 percent of the weather days.
    The shaded fuelbreaks (see attached map) will consist of new 
construction (240 ft wide) and widening of existing fuelbreaks that are 
50 ft. wide to 240 ft. The fuelbreak will reduce dead and down fuel 
loading to less than 5 tons an acre. The brush and shrubs would be cut 
to approximately 6 inches or less in height. Pinyon and juniper trees 
less than 8 feet tall would be cut, piled and burned. Pinyon and 
juniper trees over 8 feet tall would be retained at a minimum crown 
spacing of 15 feet to a maximum crown spacing of 60 feet. A minimum of 
1 snag per acre would be retained. Fuel wood gathering would not be 
possible because of limited vehicle access.
Proposed action for new fuelbreak construction.
      A total of 2.6 miles of new fuelbreak will be constructed 
to a width of 240 ft (92 acres). Of this, 2.1 miles 240 ft wide (76 
acres) will be accomplished by chainsaw cutting and subsequent pile 
burning. Pile burning will occur during winter months. The remaining 
0.5 mile, 240 ft. wide (15 acres) of new line construction will be 
accomplished using a mechanical brush mower in a previously treated 
area that contains a lower level of Pinyon and Juniper fuels that may 
be accomplished with this type of equipment.
Proposed action for widening existing fuelbreak.
      The existing fuelbreak was constructed under a wildland 
fire emergency action in 2002. The existing fuelbreak is 2.3 miles long 
and 50 ft. wide, the proposed action will widen it to 240 ft. (53 
acres). This widening will be accomplished by chainsaw cutting and 
subsequent pile burning. Pile burning will occur during winter months.
Proposed Action Maintenance and Implementation Design
      The fuelbreak will be maintained by using goats to reduce 
encroaching grass and shrub vegetation at regular intervals (1-3 years) 
based on vegetation height (; to 3 ft in height). The goats will be 
utilized only within the fuelbreak area (145 acres), and be controlled 
with movable electric fence and consistently monitored by a herder. If 
goats are unavailable, maintenance will be accomplished by the use of 
chain saws and/or brush cutters with subsequent pile burning in fuels 
are in excess of prescription parameters. The area that is initially 
treated by mowing may be maintained by mowing when vegetation 
parameters are met (; 3 ft in height).
      Seeding of the constructed fuelbreaks would occur to 
reduce the relative amount of fine fuel produced by cheatgrass. This 
seed would be a mixture of non-native seed.
    The proposed action has been designed to limit access by ATVs. This 
would be accomplished by not removing existing vegetation barriers 
where there is potential for ATV access. Other areas of potential 
access will employ physical barriers (i.e. large rocks) to prevent 
access.
DECISION
    It is my decision to construct and maintain the project as 
described above.
CATEGORY
    The Proposed Action is categorically excluded from documentation in 
an environmental impact statement or an environmental assessment 
(Forest Service Handbook 1909.15 (31.2). A project file has been 
prepared and is located on the Pine Valley Ranger District. The 
Proposed Action is a routine activity as defined in FSH 1909.15 Section 
31.2. It will not individually or cumulatively affect the human 
environment and will not have effects on procedures adopted by the 
Agency.
The Proposed Action falls within category 10, of Section 31.2:
        ``Hazardous fuels reduction activities using prescribed fire, 
        not to exceed 4,500 acres, and mechanical methods for crushing, 
        piling, thinning, pruning, cutting, chipping, mulching, and 
        mowing, not to exceed 1,000 acres''
FINDING THAT NO EXTRAORDINARY CIRCUMSTANCES EXIST
    This analysis considered the extraordinary circumstances defined in 
FSH 1909.15, Section 30.3. It has been determined that no conditions 
exist which might cause the action to have significant effects on the 
human environment. The analysis also revealed that no extraordinary 
circumstances exist which may cause the Proposed Action to have 
significant effects. A summary evaluation is described below.
    a.  Steep slopes or highly erosive soils: The proposed action 
occurs on slopes and soils suitable for the project.
    b.  Threatened and endangered species or their critical habitat: A 
finding of ``no effect'' has been determined for all threatened and 
endangered plant and animal species.
    c.  Flood plains, wetland and municipal watersheds: The proposed 
action will not affect any flood plains or municipal watersheds.
    d.  Congressional designated areas, such as wilderness, wilderness 
study areas, national recreation areas: These designations do not occur 
within the project area.
    e.  Inventoried roadless areas: The treatment units do not occur 
within any inventoried roadless area.
    f.  Native American religious or cultural sites, archeological 
sites, or historic properties or areas: No known sites will be 
affected.
    g.  Public health: Public health will not be affected.
    h.  Federal, State or local laws or requirements imposed for 
environmental protection: This proposal will comply with any laws or 
requirements imposed for the protection of the environment including 
the Endangered Species Act, Clean Air Act, and the National Historic 
Preservation Act.
PUBLIC INVOLVEMENT AND SCOPING PROCESS
    Public input for this proposal was obtained by sending a scoping 
letter to members of the public who could be affected by, or have 
requested to be notified of similar proposals. Comments received were 
utilized in developing the proposed action. Scoping information is 
located in the project file.
FINDINGS REQUIRED BY OTHER LAWS
    The National Forest Management Act and accompanying regulations 
(FSH 1909.15.30) require that several findings be documented at the 
project level. These findings are as follows:
Forest Plan Consistency
    This analysis is tiered to the Dixie National Forest Land and 
Resource Management Plan (DNF-LRMP). The Proposed Action addressed 
under this decision is consistent with management direction identified 
in the DNF-LRMP for the Management Area; 5A Big Game Winter Range (non-
forest) and 4C Wildlife Habitat (Shrub Areas).
Agency Road Rule
    This action does not fall within any suspension category as 
described in the Interim Road Rule; 36 CFR 212.
IMPLEMENTATION
    Implementation may take place immediately.
ADMINISTRATIVE REVIEW AND APPEAL OPPORTUNITIES
    Pursuant to 36 CFR 215.8 (a) (4), this decision is not subject to a 
higher level of review.
CONTACT PERSON
    For additional information on this decision, please contact Brett 
Fay, Interdisciplinary Team Leader, Dixie National Forest Supervisors 
Office, 1789 N. Wedgewood Ln., Cedar City, UT; phone: (435) 865-3700.
V. Oral Testimony Summary
    My name is John Stavros. I grew up in Salt Lake City and moved to 
New Harmony 11 years ago. I live on 4 acres of national forest boundary 
land and share a fence with the Dixie National Forest. I'm an 
application developer for a large Boston-based financial services firm. 
My manager and work group are in Boston, and I am lucky enough to 
perform my big-city job from my home office in the middle of nowhere.
    You've heard testimony regarding the planning and creation a fuel 
break near the town of New Harmony. You've seen the documents and given 
thought to the rules, regulations, and processes involved. Why am I 
here? I'm here to make it personal.
    This is my house. We all see pictures like these on the news every 
summer as fires inevitably burn thousands of acres and destroy 
countless homes, and it's easy to become numb to the images. Let me 
tell you that when it's your house, it's a different set of emotions. 
As you look at the pictures in my written testimony, you can see that 
this was a very close call. The Blue Springs Fire roared into the 
community on the evening of June 27, 2005 (2 years ago yesterday). I 
included an image that shows the Forest boundary and the fire 
containment boundary relative to my home.
    There are many reasons why my house still stands. We planned and 
built for these conditions. I created a green space around my home and 
built it of fire-safe materials. Also, my roof was thoroughly wet. 
Three built-in rooftop rain birds were soaking my house during all of 
this. And the heroics of the brave pilots and firefighters cannot be 
overstated.
    In 2003 through 2005, two efforts were going on concurrently.
      First, the Forest Service informed the community in 
writing that they planned to cut a fuel break through the area just 
behind the community on Forest Service land. The thorough, 4-page 
document demonstrated how well thought-out the plan was and it offered 
a variety of contact methods if people had concerns. The first line of 
the letter is, ``Your input is being sought.'' My only concern was, 
would the work happen quickly enough to do any good.
         Did the fuel break stop the fire in its tracks? No. Did it 
        help? I believe it did. As I observed the fire from as close as 
        you'd ever want to be, I believe that the fuel break bought 
        precious minutes allowing the helicopter to make 1 or 2 
        additional drops. It gave the community a few extra minutes to 
        evacuate when the fire abruptly blew up in the early evening.
      Second, the Utah State department of forestry in 
cooperation with the local fire department and the U.S. Forest Service 
organized the neighbors in Harmony Heights to engage in work parties to 
reduce the fuel load, mitigate ladder fuels, and make the community as 
fire-safe as it could be. The neighbors contributed dozens of hours 
over many weekends using chain saws and hand tools while the State 
provided a chipper to shred the piles of useless slash.
    My neighbors and I know that we have chosen to live in a higher-
risk area. We do not expect the government to make us safe while we sit 
on the deck and sip lemonade. We grabbed on to the opportunity 
presented to us, got organized, and accomplished much. As you might 
guess, following the fire, we redoubled our efforts and worked even 
harder. This effort did not require that we clear-cut our beautiful 
properties. The federal and state forestry officials taught us the 
concept of ladder fuels, explained how to estimate flame wall height 
for different kinds of vegetation, and helped us retain the wild beauty 
while reducing the hazard. Pictures included in my written testimony 
show a typical area of the neighborhood before and after our work.
    I understand that some people believe that the public was excluded 
from the planning of the fuel break and that the motivation to move so 
quickly was based, in part, on greed. Somehow the Forest Service was 
going to make a buck on the trees they pulled from the fuel break while 
everyone was caught napping. This is absurd. Junipers and scrub oak, 
the predominant foliage in the zone, are brushy, gnarled trees with 
little value beyond perhaps firewood.
    The fuel break work was going on just one or two hundred feet 
behind my house, so we could see and hear the daily progress of the 
work crews. Each evening, my wife and I walked back into the cut zone 
to observe the results of the day's efforts. While we embraced the 
importance of the work, we expected to have our hearts broken by the 
site of denuded land and a chaotic job site. Instead, we saw that the 
crews took care to preserve the beauty of the zone and that they 
stacked the useless slash neatly into piles. When winter lowered the 
fire danger to zero, crews returned and burned the slash. What we saw 
matched exactly with the treatment prescribed in the decision memo that 
I included in my written testimony.
    I am not a person who sits back and lets the government do as it 
wishes. When I moved out of the city, I quickly learned that in a 
sparsely populated region, a few engaged people can make a difference.
    I am president of the local cycling club and serve on the National 
Mountain Bike Patrol, a trained volunteer organization similar to a ski 
patrol. I've participated in numerous planning meetings with local and 
federal land managers where the recreational interests of mountain 
bikers needed representation. I proactively organize volunteer groups 
to support the mutual goals of land managers and cyclists. In turn, the 
land managers call on me when they need at the table a rational, 
thinking representative of mountain biking.
    It's a relationship born of trust and respect over the years. I 
believe that this history demonstrates that I am not passive when it 
comes to issues about which I am passionate. If I felt that the Forest 
Service had planned anything not in the public's and my best interest, 
I would have spoken up. I know how. I like to engage the process. 
That's why I came 2,000 miles to spend 5 minutes with you today. I see 
that those 5 minutes are about up. Thanks for your attention.
                                 ______
                                 
    Mr. Grijalva. Thank you, sir. Let me begin some questions 
and hopefully we will go as quickly as possible so that we can 
get in as many questions as possible during the timeframe. A 
couple of questions for Mr. Jensen, if you do not mind, sir. 
What other Federal agencies beyond the Forest Service have 
categorically excluded their land management plans from NEPA do 
you know of?
    Mr. Jensen. Well Interior has coordinated its approach with 
the Forest Service. I think the most important--let me back up 
just a bit. There is a lot of governmental action undertaken 
everyday that affects Forest Service lands, public lands, 
private lands and is done so in a way that works in relative 
harmony with NEPA as it has conventionally been used.
    I look at the programs administered by the Federal Energy 
Regulatory Commission, by FERC, the hydropower licensing 
program, the natural gas pipeline permitting program. Big, 
controversial. All sorts of issues attached to them. They use 
NEPA. They use it up front. They have a very strong commitment 
to public involvement early rather than late in the process and 
that works.
    Mr. Grijalva. On that point, you said healthy forests 
depend on a healthy----
    Mr. Jensen. Governance.
    Mr. Grijalva.--governance and public governance. Elaborate 
just on that point.
    Mr. Jensen. On that point. Well I think the core----
    Mr. Grijalva. Because we have heard that it can be an 
intrusion. It can delay. It can extend. Yes.
    Mr. Jensen. I think I start from the premise that the 
Forest Service's job is never going to be easy because Congress 
and the public are many different minds about what ought to 
happen on forest land. There is not a perfect outcome. There is 
not a perfect decision for any acre, any forest, any district.
    The best we can do in our democracy is show respect for the 
diversity of opinion and make the best informed judgment within 
the timeframe available to decide, and I think there is a real 
confusion within the Forest Service. I think they are 
disoriented. I think they have been beaten up for so many years 
from so many different directions, whipsawed between extremes, 
that they are still reacting rather than planning for how to 
bring the public into a partnership, an effective partnership 
with the Forest Service.
    My comments today are really aimed at a deep concern that 
an agency that Congress has entrusted with these lands is 
losing the ability to lead. Whether you are on the timber side 
of the equation or the non commercial side of the equation, 
that is a problem.
    Mr. Grijalva. Thank you. Let me turn to Dr. Noon. You 
mentioned that you served on the committee of scientists under 
a previous administration that reviewed forest planning 
regulation. You indicated there was no committee convened to 
look at the 2005 planning rule. Has there been a review, a 
comment since that point to review the 2005 review and comment 
by a panel of scientists or a committee of scientists, 
particularly with regards to one of the issues we talked about 
and that is the cumulative effect issue, and if you could 
comment on both of those.
    Mr. Noon. Yes. To the best of my knowledge, there has not 
been an external committee of scientists, let us say from 
academia, that do not have connections with agencies that have 
reviewed the 2005 regulations. There have been some 
publications, one of which I coauthored in scientific 
literature talking about some of the potential consequences to 
biodiversity conservation in the 2005 regs.
    Mr. Grijalva. Thank you. Mr. Lawrence, what are appropriate 
uses of a categorical exclusion? If you can give an example or 
a comment on that.
    Mr. Lawrence. Categorical exclusions are appropriate when 
they limit the scope and the nature of an activity so we can 
count on it not to have environmental impacts. So in the case, 
for example, of a fuels reduction CE which I think we could 
legitimately use, it would need to limit the activity to small 
diameter trees and brush, the kinds of things that we hear need 
to be cleaned out, and it would avoid the use of roads which 
are associated with increased fire danger and all kinds of 
ecological effects.
    The Forest Service's CE by contrast has no limit on the 
diameter of the trees that can be logged, and this is a serious 
thing because the agency is on record saying that trees as 
large as 30 inches can be logged. Thirty inches in diameter at 
breast height. This is a huge tree. Can be logged for fuels 
reduction purposes.
    The CE allows that kind of logging to go over one and a 
half square miles, and that is going to produce bad results. 
You need limits on the type of work that can be done, as well 
as the size of the area.
    Mr. Grijalva. Mr. Vaughan, I appreciated your testimony 
about working with the reality of CEs and having to deal with 
those. For my clarification, do you support the 2005 forest 
planning rule that categorically excludes forest land from 
NEPA?
    Mr. Vaughan. No, sir, we do not.
    Mr. Grijalva. OK. Last question and then I will turn it 
over to the Ranking Member. I mentioned in my opening statement 
that I was concerned that the Forest Service is systematically 
weakening NEPA by finalizing categorical exclusions, not just 
in the project and planning phase and that that begins to 
weaken it. Mr. Lawrence, in that big picture view of NEPA and 
the Forest Service, what is your impression under this 
administration?
    Mr. Lawrence. Under this administration, the Forest Service 
is in full flight from NEPA. It is doing everything it can to 
apply CEs wherever it can to avoid NEPA compliance. Sometimes 
the results are good, as I mentioned. I have seen great work 
done in the Lake Tahoe basin, as Mr. Vaughan mentioned. He has 
had great experiences. This depends on the individual people on 
the ground and how they implement the CE, and there are lots of 
good people in the Forest Service who do good work.
    What is missing is enforceable standards that create real 
accountability and give us some real confidence that across the 
board the use of CEs is going to be good, not bad, for the 
environment.
    Mr. Grijalva. Thank you. Mr. Bishop.
    Mr. Bishop. Thank you. Let me ask just a couple of 
questions to different members of the panel if I could. Mr. 
Jensen, if I could simply ask you in your personal experience 
have you personally compared levels of public involvement 
required under the 2005 planning rule with prior planning 
rules?
    Mr. Jensen. I have not.
    Mr. Bishop. OK. I appreciate that. Mr. Vaughan, I 
appreciate your what I would say at least balanced testimony at 
this hearing as you are talking about how it can be used for 
both good and evil at the same time. A lot of people were 
saying when the healthy forest initiatives were passed that 
there would be massive and widespread abuse, and I am assuming 
that you are saying that at least in the region 8 that you are 
aware that has not been the case.
    Mr. Vaughan. That is correct. I was one of those people who 
were predicting that type of abuse, and at least in my region, 
my neck of the woods, it has not materialized.
    Mr. Bishop. Well shame on you then. You have heard of abuse 
in other areas. Is it anything that is more than anecdotal 
stages?
    Mr. Vaughan. We have reviewed specific projects in other 
regions, particularly in region 9, that were abuses and illegal 
uses of the CEs but again we did no thorough review of all the 
uses of the CEs. We had people come to us and go, we have this 
project. It looks bad, and so I mean that is one of the nature 
of things. You know the bad things pop up and you see them. 
Unless you go look at everything, you do not have a context for 
them. So I have no context but so in a way it is anecdotal but 
we did do specific reviews of those specific projects.
    Mr. Bishop. All right. That is good. You mentioned much of 
that in your written testimony. I appreciate that. It was 
extremely good written testimony I might add.
    Mr. Vaughan. Thank you.
    Mr. Bishop. Could you just take a moment talking about your 
perception of what levels should or could be helpfully used 
with having a healthy forest ombudsman?
    Mr. Vaughan. Yes, sir. This is an idea I discussed with 
Under Secretary Rey, and he expressed a great deal of interest 
in it in that it would be a way to one, independently monitor 
the use of the healthy forest authorities, both from HFI and 
HFRA itself, and two, collect that sort of data and give that 
broad perspective to where you know in our experience reviewing 
one region's CEs and use of the authorities we do not think it 
is a huge stretch that you could have an office of a few people 
dedicated, two or three people dedicated to that job that would 
be able to give individual review of every single use of the 
CEs and HFRA authorities that would then be able to give you 
broader context than just raw numbers.
    Where are they being abused? How? Why? Are they being 
misused? If so, how? And help the agency and everyone else get 
the type of picture we have in region 8 for the entire country.
    Mr. Bishop. Thank you. I appreciate that. I appreciate your 
testimony. Mr. Stavros, I appreciate you coming up here.
    Mr. Stavros. Thank you.
    Mr. Bishop. I even forgot to ask you, did I assume you flew 
out of Cedar City or St. George first?
    Mr. Stavros. Out of St. George.
    Mr. Bishop. OK. Then I cannot ask you how Mesa Airline is 
doing.
    Mr. Stavros. Well you know why I flew out of St. George.
    Mr. Bishop. All right. I think you answered my question. 
Thank you. The picture behind you, I do not think anyone cannot 
understand the kind of horrific attitude or consequences that 
were going through your mind as you were seeing that coming up 
there. I am under the assumption that the firebreak that was 
done was done as a categorical exclusion?
    Mr. Stavros. I believe that is true.
    Mr. Bishop. Was there anything in your experience with that 
that you think diminished your ability of having some kind of 
input? Was there anything with that process with which you have 
a problem either now or at the time?
    Mr. Stavros. I do not, not then and not now. In my written 
testimony I submitted the exact four-page document that was 
mailed to me and all my neighbors. As I said, the opening line 
was, ``Your input is being sought.'' So from the very first 
paragraph they were trying to include the neighbors, and they 
laid out the plan very clearly.
    This is how wide it is going to be. This is how long it is 
going to be. This is where we are going to do it. They included 
a map that showed exactly where it was going to be. If you have 
any issues, please contact this number. Here is a phone number. 
Here is an address. We would love to hear you know.
    So at the time I spoke with some of my neighbors. My first 
thought was, great. When do we start? And of course no one can 
predict the future, and in hindsight had this particular little 
project required two or three or four years of study, this fire 
may have had a much different outcome for my neighbors and I.
    Mr. Bishop. I appreciate you being here, and that you are 
still involved in the process there in New Harmony. Just so it 
is very clear, New Harmony is not in my district, although when 
they redistrict I would be more than happy to have New Harmony 
and all the way to St. George in my district.
    Mr. Stavros. It is a tiny little place in the southwest 
corner, and I just want to say my lack of contact when I got 
that letter was not because I am passive. I enjoy speaking out 
and working with land managers, and I feel certain that had it 
been a concern that we would have in this case as well.
    Mr. Bishop. OK. My last set of questions are for Mr. 
Lawrence, and then I will be done, Mr. Chairman. Mr. Lawrence, 
I am assuming that your organization has testified before 
Congress before.
    Mr. Lawrence. Yes, that is correct.
    Mr. Bishop. Do you have attorneys on your staff there? I 
mean you sued EPA 35 times. I am assuming you have some 
attorneys there.
    Mr. Lawrence. We have a number of attorneys on the staff. I 
myself am an attorney just to clarify.
    Mr. Bishop. Thank you. The rules of this committee are that 
testimony should be received 48 hours before the Committee 
starts. Your particular testimony was given to us 40 minutes 
before this committee started. My question is: Why was your 
testimony so tardy, and was it a conscious and contemptuous act 
on your part in giving us the testimony when we had absolutely 
no time to review it before this committee began?
    Mr. Lawrence. No, it certainly was not, and I apologize for 
the tardiness.
    Mr. Bishop. Why was it tardy?
    Mr. Lawrence. I got it done as soon as I could. In fact, I 
wound up trying to email it from the airport yesterday before I 
took my transcontinental flight here, and simply could not get 
it to transmit.
    Mr. Bishop. When did you actually send your testimony to 
this committee?
    Mr. Lawrence. Last night when I got to my hotel.
    Mr. Bishop. Not this morning?
    Mr. Lawrence. You know it was well after midnight when I 
got to my hotel. I sent the exhibits yesterday, and for some 
reason sitting there in the airport I could not get the local 
Wi-Fi connection to send my testimony. I even had a fellow 
traveler try to send it from her laptop. I really apologize.
    Mr. Bishop. Were you aware----
    Mr. Lawrence. I think this puts you in an awkward position, 
and I think it is regrettable.
    Mr. Bishop. It is a little bit more than regrettable, and 
it is unacceptable. Were you aware of the 48-hour rule?
    Mr. Lawrence. I was not notified of it.
    Mr. Bishop. You were not aware of the----
    Mr. Lawrence. But it is a matter of common sense that you 
need an opportunity to review the testimony.
    Mr. Bishop. Were you aware of the 48-hour rules in the 
other times? You know you are part of the usual suspects. It 
looks like reading Casablanca again. Was your committee aware 
of that rule in the past?
    Mr. Lawrence. It has been some time since I myself 
testified here, and I do not remember being informed of a 
specific rule. I remember being asked for my testimony at a 
specific time.
    Mr. Bishop. Part of the process that the rules require not 
only the 48 hours but also a disclosure requirement. Your 
organization did not submit a disclosure requirement as well. 
So let me ask you some of the questions that would be on there. 
What, for example, is the business phone number?
    Mr. Lawrence. I can certainly use the Committee's time 
answering these questions to the best of my ability. I would 
also be happy to submit the disclosure requirement if that 
would be a more efficient use of your time.
    Mr. Bishop. Well maybe you can just give them to me right 
now. Let us go to one. Are there any Federal grants or 
contracts from the Department of the Interior which you have 
received since October of 2000?
    Mr. Lawrence. The phone number is (212) 727-2700 for the 
organization's headquarters in New York City.
    Mr. Bishop. Thank you.
    Mr. Lawrence. I am unaware of any grants from the Interior 
Department. I do know that there are staff scientists at NRDC 
who administer grants from EPA, and I think also from the 
Energy Department.
    Mr. Bishop. Do you have any grants or contracts that would 
include subgrants or subcontracts with the Department of the 
Interior since the year 2000?
    Mr. Lawrence. Again, I think the best answer to that would 
come from an organizational officer who oversees those grants 
but I am certainly unaware of any.
    Mr. Bishop. You are actually right in your testimony, and 
it would be best if it came from them. Any other information 
you wish to convey which might aid the members of this 
committee to better understand the context of your testimony?
    Mr. Lawrence. I would be happy to talk about the issue in 
front of the Committee at length and at your convenience, sir.
    Mr. Bishop. Well take the next 57 seconds and try it.
    Mr. Lawrence. I want to correct a misstatement about the 
time that it took to prepare the Tongas land management plan 
and the challenges that it faced. The Forest Service prepared 
the Tongas land management plan first in 1979, completed a plan 
and it went without challenge. When the Forest Service came 
back to the replanning process to revise that process in the 
early 1990s, its schedule was upset by the passage of 
Congressional legislation.
    Mr. Bishop. The disclosure rule is the disclosure of 
anything that you have going on there with programs that you 
are doing that may have an impact on the testimony, not 
necessarily the restatement of your testimony.
    Mr. Lawrence. I am unaware of any such programs.
    Mr. Bishop. Are there any officers, elected positions, 
representative capacities held in the organization on whose 
behalf you are testifying?
    Mr. Lawrence. I am testifying on behalf of the organization 
and its more than 1.2 million members and activists. Beyond 
that, there are no officers within NRDC who I represent here.
    Mr. Bishop. All right. I appreciate that. Let me just say 
once again that receiving this kind of testimony 40 minutes 
before this starts from your organization, an organization that 
knows what timelines are because you are attorneys, and an 
organization that has been here before is something I do find 
unacceptable, and my assumption is that we got it late simply 
because your organization got it late to this particular 
committee, and I am hoping that is the truth but it should 
never, never happen again, and it puts us at a disadvantage for 
this entire committee.
    The Chairman has the ability in such situations of removing 
the testimony from the record or barring your testimony here 
given orally. He can do whatever he wants to, and I have 
actually no intentions of giving him advice on that but I 
simply want to note that you put this committee at an unfair 
disadvantage, and it is simply unacceptable especially with the 
experience that you had in testifying before Congress before. 
With that I yield back.
    Mr. Grijalva. Thank you very much, Mr. Bishop, and let me 
thank the panelists, and indicate to all that all the 
testimony, oral and written and extraneous information, will be 
part of the record of this particular hearing and, with that, 
we are adjourned.
    [Whereupon, at 12:08 p.m., the Subcommittee was adjourned.]

                                 
