August 21, 2019

NEPA Services Group
c/o Amy Barker
USDA Forest Service
125 South State Street, Suite 1705
Salt Lake City, UT 841

Subject:  RIN: 0596-AD31, Proposed Rule, National Environmental Policy Act Compliance

Dear Ms. Barker:

I am writing to you on behalf of over 1,700 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed of retired, former, or current employees of the National Park Service (NPS). The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. As a group we collectively represent nearly 40,000 years of experience managing and protecting America’s most precious and important natural and historic resources. Among our members are former directors, regional directors, superintendents, environmental and resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.

The U.S. Forest Service (USFS) administers 154 national forests and 20 national grasslands, many of which share common boundaries with units of the National Park System (parks). As a national parks advocacy group, we are very concerned that the proposed rule published in the Federal Register on June 13, 2019 (84 Fed. Reg. 27,544) could adversely affect numerous parks. In brief, USFS is proposing significant revisions to its National Environmental Policy Act (NEPA) regulations, which would significantly reduce public involvement opportunities. Our concerns about the proposed rule include the following:

  1. The Council on Environmental Quality (CEQ) published its “Advanced Notice of Public Rulemaking for Implementation of the Procedural Provisions of NEPA” on June 20, 2018 (83 Fed. Reg. 28951)– CEQ has started the process of revising its NEPA regulations (40 CFR Parts 1500-1508); the proposed rule has yet to be published for public comment; and it remains to be seen how long CEQ’s rulemaking process will take. As stated in §1500.3 of the existing CEQ rule, sections 1500-1508 are “applicable to and binding on all Federal agencies for implementing the procedural provisions of the National Environmental Policy Act of 1969, as amended.” Until CEQ completes the revision of its NEPA regulations, it is premature for the USFS to propose such drastic changes in its NEPA regulations.
  2. Our experience has been that USFS-authorized activities, such as timber harvesting and construction, that occur along or near park boundaries have the potential to adversely impact park resources, values, and visitor experience opportunities– While the proposed rule would not directly impact NPS management of parks, it has the substantial potential to impact USFS lands adjacent to parks and therefore the potential to adversely affect park resources and values. We fear that the proposed rule, in part, would allow for increased forest clearing and construction activities, including near park boundaries, without the benefit of full public participation through the NEPA process. As a result, the proposal could have far-reaching adverse effects to the places we work to protect.
  3. The proposed rule would drastically reduce the number of public and inter-agency comment opportunities regarding USFS proposed actions – As described in the preamble to the proposed rule, the USFS’s environmental analysis workload from Fiscal Years 2014 to 2018 included approximately 1,590 categorical exclusions (CEs) and 277 environmental assessments (EAs) annually; and the FS proposal to create new CE’s could result in up to 210 fewer EAs being prepared each year. In effect, this would eliminate public scoping and comment on up to 210 additional USFS decisions annually (a 78% reduction in the number of EAs open to public comment!). As a result, the proposal would circumvent public and other agency input on the potential impacts and cumulative effects of numerous USFS actions. As context for our concerns, the majority of existing USFS CEs are reasonable, given that the activities allowed under those CEs would be unlikely to cause new or additional resource impacts. However, some of the proposed new CEs could, in fact, allow significant new and additional resource impacts without disclosure of those impacts to the public or consideration of public comment BEFORE a decision is finalized. Our concerns about specific sections of the proposed rule are described below.
  4. General Requirement §220.4(d) Scoping and Public Notice– This section of the proposed rule would revise minimum requirements for public scoping and notice. First, we state the obvious – public“notice”is not the same as scoping or public comment. For example, the scoping process allows the public and other agencies to identify and raise concerns regarding a USFS proposal to disturb and modify lands adjacent to National Parks. Yet, as proposed, the minimum “notice” required for CEs that require a decision memo and all EAs would be simple publication of the proposed action in the USFS Schedule of Proposed Actions (SOPA), a process that provides no opportunity for scoping or public comment. As stated in the proposed rule, “[a]ny additional public involvement would beat the discretion of the local responsible official…Scoping would be required only for FS environmental impact statements (40 CFR 1501.7).”

In the past few years we have already seen the problems caused other federal agencies issuing EAs without scoping and/or little to no public comment (e.g., Bureau of Land Management oil and gas leasing NEPA documents). Without benefit of public comment, such EAs inevitably fail to consider obvious potential impacts to adjacent park lands and other special resources, and often result in legal challenges to the agency’s decision. We believe that the significant decrease in public involvement that would result from the proposed USFS NEPA regulations is particularly problematic when it comes to timber harvesting and new construction along or near park boundaries.

While a number of agencies have removed “degree of public controversy” from the list of extraordinary circumstances, we note that the Council on Environmental Quality (CEQ) issued guidance[1] on November 23, 2010 to federal agencies on creating, revising and applying CE’s. This CEQ guidance states explicitly that scoping for all levels of NEPA compliance is paramount for the public to have the opportunity to identify important resource concerns for actions proposed by federal agencies. Adequate scoping conducted by the USFS would ensure the public can provide meaningful input on proposed actions adjacent to national parks and inform the NEPA analysis.

  1. General Requirement §220.4(i) Determination of NEPA Adequacy– As described, a Determination of NEPA Adequacy (DNA) would become a new USFS tool to determine whether a previously completed NEPA analysis is sufficient for a subsequent proposed action. The proposal then lists four evaluation factors (in sub-sections i-iv) that should be considered by the responsible official making the adequacy determination. We note that in recent years the Bureau of Land Management (BLM) has been making extensive use of DNAs to clear new oil and gas leasing proposals. This approach has proven to be quite problematic in several regards. First, it has deprived the public of the opportunity to comment or express concerns on numerous new leasing proposals located adjacent to national parks, often elevating the level of controversy and concern not only on the specifics of individual proposal, but also on BLM’s avoidance of “public process.” Second, and perhaps more significantly, many of the DNAs were based on outdated Resource Management Plans (RMPs). For example, some of the RMPs were 15-20 years old and so general in nature that they provided little to no analysis of the potential impacts of the proposed activities at the specific sites and no impact analysis of modern oil and gas extraction techniques, such as fracking. The BLM’s use of DNAs has led to countless lawsuits and often resulted in court orders against the BLM forcing the agency to go back and complete the NEPA process at the site-specific level. In effect, BLM’s attempt to “streamline” and “fast track” the NEPA process for oil and gas development has been far more costly and time consuming than if BLM had prepared a proper NEPA analysis, with opportunities for public involvement, in the first place.

Similar to BLM’s RMPs, USFS Forest Management Plans (FMPs) provide strategic guidance, but often lack detail on site specific conditions and resources. And, also similar to RMPs, many FMPs are often dated and provide insufficient analysis relevant to the current site-specific proposal. This has proven to be troublesome for the public and other agencies to compare older generalized FMPs with new development proposals. In fact, the majority of FMPs we’ve seen are so general that they simply acknowledge there is a national park adjacent to its boundaries (if such is the case). As a result, we do NOT support the use of the DNA process where proposed USFS actions are adjacent to parks. And we remain concerned that USFS DNAs could be based on outdated or overly generalized FMPs. We therefore recommend that the proposed rule be amended to add the following sub-section:

(v) Was the previous analysis prepared in accordance with the current Forest Service Planning Rule (e.g., currently 2012) and the current Forest Service Handbook, FSH 1909.12 , and Manual, FSM 1920 (e.g., both currently 2015)?  If not, then additional site specific analysis must be prepared.

  1. Categorical Exclusions, §220.5(a) General– Federal agency NEPA regulations typically include a provision that a proposed action may NOT be categorically excluded from analysis and documentation in an EA or EIS when there are “extraordinary circumstances” present in the proposed action area. The proposed rule lists “resource conditions that should be considered in determining whether extraordinary circumstances related to a proposed action warrant analysis and documentation in an EA or an EIS.”

The listed conditions are: Federally listed threatened or endangered species or designated critical habitat and species proposed for Federal listing or proposed critical habitat;flood plains, wetlands, or municipal watersheds; Congressionally designated areas (emphasis added), such as wilderness, wilderness study areas, potential wilderness areas, wild and scenic rivers, or national recreation areas; roadless areas designated under 36 CFR part 294; research natural areas; American Indian and Alaska Native religious or cultural sites; and archaeological sites, or historic properties or areas. We contend that national parks are also “Congressionally designated areas” and, as such, should be given special consideration when USFS contemplates using a CE for projects with the potential to impact park resources and values adjacent to the project site.

While the listed resource conditions make sense to us, we are very concerned that the proposed rule would, in effect, redefine and significantly weaken the longstanding “resource conditions” provision in the existing USFS NEPA regulations. As proposed, “[t]he mere presence of one or more of these resource conditions does NOT preclude use of a categorical exclusion.” In other words, a project potentially impacting any or all of the special resources could proceed under this CE as long as the USFS line officer believes (apparently without analysis or public accountability) that the effect(s) on those resources would not be “substantial.” The proposed revision would also allow the line officer to ignore short-term harmful impacts if there are plausibly beneficial long-term effects. In our view, these revisions create significant new loopholes in longstanding CE requirements regarding extraordinary circumstances.

We point to the previously cited November 2010 CEQ guidance[2], which states, in part:

Most Federal agencies do not routinely notify the public when they use a categorical exclusion to meet their NEPA responsibilities. There are some circumstances, however, where the public may be able to provide an agency with valuable information, such as whether a proposal involves extraordinary circumstances or potentially significant cumulative impacts that can help the agency decide whether apply a categorical exclusion (emphasis added).

If USFS is going to use this new CE when extraordinary circumstances are present, such as a Congressionally designated national park in the vicinity of the USFS project site, the proposed rule should include a requirement that draft CE documentation include a proper environmental analysis and that the draft CE is both posted on SOPA and open to public and review comment for at least 30 days.

  1. Categorical Exclusions, § 220.5(e)(17) Approval of a Surface Use Plan of Operations for oil and natural gas exploration and initial development activities– This new CE would authorize new construction and development associated with new or expanded oil and gas development activities. As proposed, the new CE, without additional environmental analysis or public involvement, would allow USFS to authorize commercial oil and gas operators to implement up to: (i) One mile of new road construction; (ii) One mile of road reconstruction; (iii) Three miles of [new] individual or co-located pipelines and/or utilities disturbance; or (iv) Four [new] drill sites. In other words, under the guise of “exploration” or “initial development,” any or all of the above could be approved under a CE without any additional site-specific impact analysis or public involvement.

We can understand the use of a CE to appropriately approve minor adjustments in an already-approved Surface Use Plan of Operations that had proper NEPA analysis done. However, we strongly object to the proposed use of a CE to approve a new plan of operations and/or new or expanded exploration and construction absent site-specific NEPA analysis, especially the level of development described in sub-sections i-iv. We can easily imagine circumstances in which oil and gas development or related construction of that magnitude close to park boundaries could cause significant adverse impacts to park viewsheds and other resources and values. To address these concerns, we recommend that USFS revise the wording of this section as follows (suggested additions are shown in all-capital letters and deletions in Strikethrough):

(17) Approval of MINOR CHANGES TO A PREVIOUSLY APPROVEDSurface Use Plan of Operations for oil and natural 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:

(i) One mile of new road construction;

(ii) One mile of road reconstruction WITHIN THE EXISTING ROAD FOOTPRINT;

(iii) Three miles of NEW individual or co-locatedpipelines and/or utilities disturbance IF CO-LOCATED WITH EXISTING PIPELINES OR UTILITIES; or


  1. Categorical Exclusions, § 220.5 (e)(21) Construction, reconstruction, decommissioning, relocation, or disposal of buildings, infrastructure, or other improvements at an existing administrative site– As written, the new CE could allow considerable new construction and/or expansion of USFS “administrative sites” without further environmental compliance. Although the new CE does not mention specific limits on new construction or expansion of existing facilities, section 502(1)(C) of Public Law 109-54 (119 Stat. 559; 16 U.S.C. 580d note) does reference upper limits to the size of USFS administrative sites. The statute states that the USFS could develop up to “10 isolated, undeveloped parcels per fiscal year of not more than 40 acres each(emphasis added) that were acquired or used for purposes of administration of Forest Service activities.” As a result, the new CE would apparently allow new construction as well as expansion of USFS facilities of that magnitude without additional planning, compliance, or public involvement. If such were to occur near park boundaries, we can imagine potentially significant impacts to park resources and values. To address this concern, we recommend the following word change to section (e)(21), sub-section (ii);

(ii) Construction, reconstruction, or expansion of an office, a warehouse, a lab, a greenhouse, or a fire-fighting facility. HOWEVER, NEW CONSTRUCTION AND FACILITY EXPANSION UNDER THIS CE IS LIMITED TO THE CURRENT AREA FOOTPRINT OF THE EXISTING ADMINISTRATIVE SITE;

  1. Categorical Exclusions, § 220.5 (e)(22) Construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site– Our concern is similar the comment above. Without context or limitation, the new CE would apparently allow new construction or expansion of recreational facilities without additional environmental analysis or public involvement. We recommend this section be amended as follows:

(e)(22) Construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site either managed by the Forest Service or managed under special use authorities, including infrastructure or improvements that are CONSISTENT WITH A PREVIOUSLY APPROVED DEVELOPMENT PLAN AND ARE adjacent or connected to an existing recreation site and provide access or utilities for that site. HOWEVER, NEW CONSTRUCTION UNDER THIS CE IS LIMITED TO THE CURRENT FOOTPRINT AREA OF THE EXISTING RECREATION SITE. Recreation sites include but are not limited to …

  1. Categorical Exclusions, § 220.5 (e)(24) Construction or realignment of up to 5 miles of NFS roads and reconstruction of up to 10 miles of NFS roads and associated parking areas, etc.– While we can understand the use of a CE to authorize minor adjustments in existing roads and parking lots, this CE could apparently be used by USFS to authorize up to 5 miles of new road construction and up to 10 miles of existing road reconstruction, which presumably could include major widening and realignment of existing roads, all without any additional environmental analysis or public involvement. Our experience with road work on public lands has been that even 5 miles of new road construction, depending on the alignment, terrain, and resources nearby, or 10 miles of road reconstruction, especially if it involves widening or realigning an existing road, can cause significant environmental impacts if not properly planned and analyzed. Undoubtedly, many of the “smaller” USFS road projects of the scale described in the CE, particularly proposals that have not been previously identified and studied under an existing travel management plan (or road development plan), would benefit from a proper environmental analysis and public involvement. To address this concern, we recommend this section be amended as follows:

(e)(24) Construction or realignment of up to 5 miles of NFS roads, reconstruction of up to 10 miles of NFS roads and associated parking areas, opening or closing an NFS road, and culvert or bridge rehabilitation or replacement along NFS roads IF SUCH ACTION IS CONSISTENT WITH A PREVIOUSLY APPROVED TRAVEL MANAGEMENT PLAN OR ROAD DEVELOPMENT PLAN. THIS CE DOES NOT APPLY TO NEW ROAD CONSTRUCTION OR MAJOR ROAD RECONSTRUCTION PROJECTS THAT ARE NOT COVERED BY AN EXISTING PLAN. Examples include but are not limited to: …

  1. Categorical Exclusions, § 220.5 (e)(26) Ecosystem restoration and/or resilience activities on NFS lands in compliance with the applicable land management plan– While “ecosystem restoration and/or resilience activities” is generally a good thing, the proposal creates a significant loophole that would invite potential abuse of the new CE. Inexplicably, “commercial harvest” is included, without qualification or context, as a USFS-approved “restoration and resilience activity” (see sub-section H). This appears to be a significant departure from the current USFS CEs related to timber harvest activities. As explained in the Supporting Statement for the Restoration CE[3]:

The USFS has several existing CEs, documented at 36 CFR 220.5(e), that have similar activities to those included in the proposed Restoration CE. These existing CEs include (6) timber stand and/or wildlife habitat improvement; (11) post-fire rehabilitation activities; (12) harvest of live trees; (13) salvage of dead and/or dying trees; (14) commercial and non-commercial sanitation harvest of trees to control insects or disease; (18) restoring wetlands, streams, riparian areas; and (20) activities that restore, rehabilitate, or stabilize lands occupied by roads and trails. All of these CEs apply the consideration of extraordinary circumstances (36 CFR 220.5(b)(2)), and require documentation in a project or case file and a decision memo (36 CFR 220.5(e)).

In other words, for the most part the existing CEs involving “timber harvest” of any sort include clear context in the form of special circumstances or resource objectives that must be met in order to apply the specific CE. And, for the most part, the resource benefit of those harvest activities is articulated in the CE (e.g., “sanitation harvest… to control insects and disease”). In contrast, sub-section H of the proposed new CE is open-ended and without context (“commercial harvest” period). The supporting statement for the new CE goes on to state:

While the types of activities may be similar [to those described in the existing CEs], the proposed Restoration CE is unique from these existing CEs in that 1)  it would allow activities to be implemented on a broader scale (emphasis added), 2) if commercial or non-commercial timber harvest activities are proposed they must be carried out in combination with at 10 least one additional restoration activity and harvested acres cannot exceed 4,200 of the 7,000 acres to meet restoration objectives within the project area.

In other words, under the “broader scale” of the new CE USFS could allow a commercial timber operator to “harvest” (i.e., clear or clear cut) up to 4,200 acres of national forest without direct benefit to the resources as long as the operator also conducts at least one additional “restoration activity” on adjacent acreage not to exceed a combined total of 7,300 treated acres (i.e., 4,200 harvested + 3100 restored). Frankly, we don’t understand how the USFS can possibly consider unrestricted commercial harvest of up to 58% of a 7,300 acre area to be “restoring” it. The proposed CE would invite and allow abuse by timber operator(s) as long as the operator(s) offer to do some sort of restoration work on adjacent acreage. If such projects (i.e., clearing up to 4,200 acres) were proposed near park boundaries, they could adversely impact viewsheds and diminish park resources and values. To address this concern, we recommend that sub-section “(H) Commercial harvest” be struck from the proposed rule and subsequent sub-sections be re-numbered accordingly.

In light of these concerns, we urge the Forest Service to substantially tighten up provisions that would appear to allow significant levels of new impacts without additional environmental analysis or public involvement. We appreciate the opportunity to comment on this important issue.





Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
201 I Street, NE #805, Washington, DC 20002

cc: Vicki Christiansen, Chief. U.S. Forest Service,
Daniel Smith, Director, National Park Service,


[2]Ibid., p. 14