United States: US Forest Service Proposes NEPA Streamlining Rule: Implications For The Outdoor Recreation Industry

On June 13, the US Forest Service announced a proposal to streamline environmental review of proposed projects on National Forest System land.1 The proposed rule would modify the agency's regulations implementing the National Environmental Policy Act (NEPA). 

NEPA requires federal agencies to assess the environmental impacts of their proposed actions, including approvals of private activities on federal land. Compliance requires considerable agency resources, even when the NEPA process is funded by project proponents. Consistent with widespread federal efforts to streamline regulations, and in the face of skyrocketing Forest Service expenditures on wildland firefighting (which accounted for 57 percent of its annual spending in 2018), the agency is placing a renewed emphasis on efficiency.2  

Three proposed revisions are particularly relevant for current and prospective Forest Service permit holders: (1) addition or expansion of Categorical Exclusions (CE), which define categories of activities that are exempt from detailed analysis under NEPA; (2) modification of requirements for public engagement on the appropriate scope of NEPA analysis ("scoping"); and (3) reduction of redundant NEPA reviews for proposed actions that are similar to previously analyzed actions. If finalized, those changes would reduce regulatory burdens on ski areas, outdoor recreation providers, and other project developers working on National Forest land.

Proposed Categorical Exclusions

NEPA requires an often-lengthy environmental analysis of all major federal actions, including permit approvals. That analysis often takes the form of an Environmental Assessment (EA) or Environmental Impact Statement (EIS). Activities covered by a CE, including those undertaken by special use permit holders on National Forest land, do not require an EA or EIS except in extraordinary circumstances3—significantly reducing time, cost, and resources associated with the approval process. The proposed rule expands several CEs relevant to project developers and recreational special use permit holders.

Construction at an Existing Recreation Site

The proposed regulations include a new CE, which would "cover the construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site."4 This broad CE would include not only existing recreation sites but also "infrastructure or improvements that are adjacent or connected to an existing site and provide access or utilities for that site."5 Recreation sites include both sites managed by the Forest Service and those managed by special use permittees, such as ski areas, campgrounds, fishing sites, and trailheads.6 Examples of actions covered by the proposed CE include replacing a ski area chairlift, constructing or reconstructing a parking area, and reconstructing or expanding a recreational rental cabin.7 

Construction at an Existing Administrative Site

A similar proposed CE would cover construction, reconstruction, or decommissioning of an existing Forest Service administrative site. Administrative sites are areas of land within, adjacent to, or even at a considerable distance from a National Forest boundary; typically, those lands are used for forest headquarters, ranger stations and similar Forest Service activities. However, it is not uncommon for ski areas and other private parties to lease administrative sites for use in their operations. This CE would improve the process of converting such sites to visitors' centers, employee housing, or other purposes.

Activities Requiring Less than 20 Acres of Land

The Forest Service also proposes to expand an existing CE to cover "the approval, modification, or continuation of special uses of National Forest lands that require less than 20 acres of land."8 The current version of the CE excludes only "minor" activities that require less than five acres of land; the proposed CE quadruples the acreage threshold and removes the term "minor."9 Historically, the Forest Service has relied on the existing CE to approve projects such as ski chairlift replacements and fire mitigation activities. The proposed changes would increase flexibility by allowing permit holders and developers to avoid EA/EIS processes for larger projects, so long as those projects are contained within 20 acres. 

Additional Activities 

Another proposed CE would cover authorization of new activities in existing facilities or areas in which those activities are consistent with existing Forest Service approvals.10 That change would allow managers of existing recreation sites to expand the activities they offer without undertaking full NEPA analyses. Examples of such expansions include issuance of outfitting and guiding permits for backcountry skiing or mountain biking and permits for special events.11

"Right-Sizing" Scoping and Public Participation

NEPA requires opportunity for public participation. The extent of public involvement varies according to the proposed action, but it can prove time-consuming and costly. One of the Forest Service's proposed changes is aimed at "right-sizing" public engagement opportunities.12 Currently, the agency exceeds Council on Environmental Quality requirements by conducting scoping for all proposed actions, including those that are unlikely to have a significant environmental impact.13 The proposed rule would require scoping only for an EIS (not a CE or EA), thereby allowing the agency to allocate its resources to projects that are "potentially more complex or have greater public interest."14 At the same time, the agency proposes to allow for more public engagement at the discretion of the local responsible official.15  

Determining NEPA Adequacy

In another effort to increase efficiency, the Forest Service proposes a process for determining whether an existing NEPA analysis, such as an EA or EIS, can "suffice for a new proposed action."16 This Determination of NEPA Adequacy (DNA) poses a series of questions that evaluate a proposal's similarity to previously analyzed actions, alternatives, and effects, as well as new information associated with the proposal under review. The agency would not need to undertake a new NEPA process for actions that are sufficiently similar to others that already have undergone NEPA analysis. The DNA is modeled after similar procedures used by the Department of the Interior and other federal agencies. 

Opportunity for Engagement

The proposed rule will not be finalized until after the public comment period ends on August 12, 2019. Interested and potentially affected parties should consult with counsel to frame targeted comments that will inform finalization of the rule. 

  1. National Environmental Policy Act (NEPA) Compliance, 84 Fed. Reg. 27544 (proposed June 13, 2019) (to be codified at 36 C.F.R. pt. 220). 
  2. Id.
  3. See 40 CFR § 6.204(b), identifying extraordinary circumstances that may render a project ineligible for categorical exclusion; e.g., potential impacts to federally listed threatened or endangered species or their critical habitat.
  4. Id. at 27548. 
  5. Id.
  6. Id.
  7. Id. at 27557. 
  8. Id. at 27547. 
  9. Id. at 27547–48. 
  10. Id. at 27555. 
  11. Id.
  12. Id. at 27551.
  13. See, e.g., 36 CFR 220.4(e)(1) ("Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS").
  14. 84 Fed. Reg. 27544, 27551.
  15. Id. at 27553.
  16. Id. at 27553.

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