[Federal Register: June 5, 2003 (Volume 68, Number 108)]
[Notices]
[Page 33813-33824]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn03-133]
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Part V
Department of Agriculture
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Forest Service
Department of the Interior
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National Environmental Policy Act Determination Needed for Fire
Management Activities; Categorical Exclusions; Notice
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DEPARTMENT OF AGRICULTURE
Forest Service
DEPARTMENT OF THE INTERIOR
RIN 0596-AB99
National Environmental Policy Act Documentation Needed for Fire
Management Activities; Categorical Exclusions
AGENCY: Forest Service, USDA, and Department of the Interior.
ACTION: Notice of final National Environmental Policy Act implementing
procedures.
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SUMMARY: The Department of Agriculture, Forest Service and the
Department of the Interior give notice of revised procedures for
implementing the National Environmental Policy Act (NEPA) and Council
on Environmental Quality (CEQ) regulations. These final implementing
procedures are being issued in Forest Service Handbook 1909.15, Chapter
30, Section 31.2, and Department of the Interior Manual 516 DM, Chapter
2, Appendix 1, which describe categorical exclusions, i.e., categories
of actions, which do not individually or cumulatively have a
significant effect on the human environment and therefore normally do
not require further analysis in either an environmental assessment or
an environmental impact statement. The revision adds two such
categories of actions to the agencies' NEPA procedures: (1) Hazardous
fuels reduction activities; and (2) rehabilitation activities for lands
and infrastructure impacted by fires or fire suppression. The
Departments reviewed the effects of over 2,500 hazardous fuel reduction
and rehabilitation projects and concluded that these are categories of
actions which do not individually or cumulatively have a significant
effect on the human environment. The agencies have also conducted a
review of peer-reviewed scientific literature identifying the effects
of hazardous fuels reduction activities, which is available at http://www.fs.fed.us/emc/hfi.
This combination of reviews give the agencies
confidence that the categorical exclusions are appropriately defined.
These two categorical exclusions will facilitate scientifically sound,
efficient, and timely planning and decisionmaking for the treatment of
hazardous fuels and rehabilitation of areas so as to reduce risks to
communities and the environment caused by severe fires.
The hazardous fuels reduction category will apply only to
activities identified through a collaborative framework as described in
``A Collaborative Approach for Reducing Wildland Fire Risks to
Communities and the Environment 10-Year Comprehensive Strategy
Implementation Plan'' (hereafter called 10-Year Comprehensive Strategy
Implementation Plan). An example of the framework's structure is
available at http://www.fireplan.gov/reports/mou/fuelstreatment.pdf.
Moreover, these hazardous fuels reduction activities: (1) Will not be
conducted in wilderness areas or where they would impair the
suitability of wilderness study areas for preservation for wilderness;
(2) will not include the use of herbicides or pesticides; (3) will not
involve the construction of new permanent roads or other
infrastructure; (4) will not include sales of vegetative material that
do not have hazardous fuels reduction as their primary purpose; (5)
will not exceed 1,000 acres for mechanical hazardous fuels reduction
activities and will not exceed 4,500 acres for hazardous fuels
reduction activities using fire; (6) will only be conducted in
wildland-urban interface or in Condition Classes 2 or 3 in Fire Regime
Groups I, II, or III, outside the wildland-urban interface.
Activities carried out under the rehabilitation category will take
place only after a wildfire. These activities cannot use herbicides or
pesticides, nor include the construction of new permanent roads or
other infrastructure, and they must be completed within three years
following a wildland fire. Activities carried out under the
rehabilitation categorical exclusion will not exceed 4,200 acres.
Activities conducted under these categorical exclusions must be
consistent with agency and Departmental procedures and with applicable
land and resource management plans, and must comply with all applicable
Federal, State, and Tribal laws for protection of the environment.
These categorical exclusions will not apply where there are
extraordinary circumstances, such as adverse effects on the following:
threatened and endangered species or their designated critical habitat;
wilderness areas; inventoried roadless areas; wetlands; impaired
waters; and archaeological, cultural, or historic sites.
In response to comments on the proposed categorical exclusions,
several revisions were made to the original proposal: (1) Grazing
activities for the maintenance of fuel breaks were removed from the
hazardous fuels reduction category; (2) the hazardous fuels reduction
category was clarified to explicitly state that a proposed action could
only include the sale of vegetative material where the primary purpose
of hazardous fuels reduction; (3) one of the requirements for hazardous
fuels reduction activities was revised to state that such activities
must be identified through a collaborative framework as described in
the 10-Year Comprehensive Strategy Implementation Plan, rather than be
consistent with the framework; (4) the hazardous fuels reduction
category was modified to make the list of activities an exhaustive one
instead of illustrative; (5)) the hazardous fuels reduction category
was modified to limit its use to wildland-urban interface or in
Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, outside
the wildland-urban interface; (6) hazardous fuels reduction activities
using fire are limited to 4,500 acres; (7) mechanical hazardous fuels
reduction activities are limited to 1,000 acres; (8) fire
rehabilitation activities are limited to 4,200 acres; and (9) the
definition of rehabilitation was revised to be consistent with the
National Wildland Fire Coordinating Group interagency definition.
EFFECTIVE DATE: The categorical exclusions are effective June 5, 2003.
ADDRESSES: The new Forest Service categorical exclusions are set out in
Interim Directive No. 1909.15-2003-1, available electronically via the
Internet at http://www.fs.fed.us/im/directives. The new Department of
the Interior categorical exclusions are set out in 516 DM, Chapter 2,
Appendix 1, available electronically via the Internet at http://elips.doi.gov/table.cfm.
Single paper copies are available by
contacting Dave Sire, Forest Service, USDA, Ecosystem Management
Coordination Staff (Mail Stop 1104), 1400 Independence Avenue, SW.,
Washington, DC 20250-1104 or Willie Taylor, Department of the Interior,
Office of Environmental Policy and Compliance (Mail Stop 2342), 1849 C
Street, NW., Washington, DC 20240. Additional information and analysis
can be found at http://www.fs.fed.us/emc/hfi.
FOR FURTHER INFORMATION CONTACT: Dave Sire, USDA Forest Service,
Ecosystem Management Coordination Staff, (202) 205-2935, or Willie
Taylor, Department of the Interior, Office of Environmental Policy and
Compliance, (202) 208-3891. Individuals who use telecommunication
devices for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 1-800-877-8339 between 8 a.m. and 4 p.m., Eastern
Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION: On August 22, 2002, President Bush
established the
[[Page 33815]]
Healthy Forest Initiative, directing the Department of Agriculture and
the Interior and the Council on Environmental Quality to improve
regulatory processes to ensure more timely decisions, greater
efficiency, and better results in reducing the risk of catastrophic
wildfires by restoring forest health.
In response to this direction, the Departments of Agriculture and
the Interior proposed two new categorical exclusions on December 16,
2002 (67 FR 77038). The first, addressing hazardous fuels reduction
activities, is intended to better protect lives, communities, and
ecosystems from the risk of high-intensity wildland fire. The second,
addressing rehabilitation activities, is intended to better restore
natural resources and infrastructure after a fire. The supplementary
information section of the notice published in December contains
comprehensive background information on the need, development, and
rationale for these categorical exclusions. The specific language for
the proposed categories of actions are set out for comment in the
notice was as follows:
[sbull] Hazardous fuels reduction activities (prescribed fire, and
mechanical or biological methods such as crushing, piling, thinning,
pruning, cutting, chipping, mulching, grazing and mowing) when the
activity has been identified consistent with the framework described in
``A Collaborative Approach for Reducing Wildland Fire Risks to
Communities and the Environment 10-Year Comprehensive Strategy
Implementation Plan.'' Such activities:
[sbull] Shall be conducted consistent with agency and Departmental
procedures and land and resources management plans; and
[sbull] Shall not be conducted in wilderness areas or impair the
suitability of wilderness study areas for preservation as wilderness;
and
[sbull] Shall not include the use of herbicides or pesticides or
the construction of new permanent roads or other new permanent
infrastructure.
[sbull] Activities (such as reseeding or planting, fence
construction, culvert repair, installation of erosion control devices,
and repair of roads and trails) necessary for the rehabilitation of
habitat, watersheds, historical, archeological, and cultural sites and
infrastructure impacted by wildfire and/or wildfire suppresion. Such
activities:
[sbull] Shall be conducted consistent with agency and Departmental
procedures and land and resource management plans; and
[sbull] Shall not include the use of herbicides or pesticides or
the construction of new permanent roads or other new permanent
infrastructure.
Comments on the Proposal
Almost 39,000 responses in the form of letters, postcards, faxes,
and e-mail messages were received during the comment period. These
comments came from private citizens, elected officials, and groups and
individuals representing businesses, private organizations, and Federal
agencies. Responses consisted of nearly 1,900 individual letters and
over 37,000 form letters.
Public comment on the proposal addressed a wide range of topics,
many of which were directed generally at the President's Healthy Forest
Initiative and hazardous fuels reduction. Many people supported the
proposal or favored further expansion, while many other opposed the
proposal or recommended further restrictions.
Comment: Some respondents voiced general agreement with the
proposal. Some indicated that they think current analysis and
documentation requirements are too burdensome and that the proposal
would provide for more efficient management. Others believed that the
proposal had appropriate limitations on the use of the categorical
exclusions and that the agencies had done sufficient analysis to
include that the categories of hazardous fuels reduction activities and
fire rehabilitation activities do not individually or cumulatively have
significant effects. Still others agreed that the collaboration
requirements ensure that local affected communities will be involved.
Response: These comments were in support of the proposal and need
no specific response. A summary of the remainder of public comments and
the agencies' responses follows:
Comment: Some respondents stated that the proposal is not needed
inasmuch as current laws and policies allow sufficient action to be
taken to lower the forest fire risk in urban-wildland interface areas.
They stated that agency policies already provide sufficient authority
of using categorical exclusions.
Response: The Forest Service and the land management agencies
within the Department of the Interior have various categorical
exclusions for fire management in their NEPA procedures. Consequently,
there are inconsistencies among agencies. Some agencies have the
ability to categorically exclude some or all hazardous fuels reduction
activities and some of or all fire rehabilitative activities while
others cannot. For example, the U.S. Fish and Wildlife Service has
utilized similar categories for fire management activities since 1997.
In contrast, before the issuance of the categories set out in this
notice, a jointly proposed Forest Service and Bureau of Land Management
(BLM) hazardous fuels reduction activity using prescribed fire would
have required BLM to prepare an environmental assessment, while the
Forest Service may have categorically excluded such an action. These
final categories provide a tool for more efficient planning of
hazardous fuels reduction and fire rehabilitation activities. Having
the same categories available to all of these land management agencies
will facilitate inter-agency coordination and allow for more efficient
planning and more timely decisions across agency jurisdictions. It will
also provide greater consistency of practice. The addition of these
categories, however, does not represent a substantial change for some
agencies nor does it replace or prevent the use of existing categories
with similar purposes. See ``Comparision of USDA Forest Service and
Department of the Interior Agency Categorical Exclusions'' at http://www.fs.fed.us/emc./hfi
.
Comment: Some respondents stated that the proposal inappropriately
adopts a nationwide approach over a site-specific approach and that
certain geographical regions or areas with specific ecological
characteristics should not be included in the category. They suggested
that fire does not play a significant role in some areas due to high
precipitation and humidity. Suggestions included taking the Southern
Appalachian forests, national monuments, Eastern forests, forests in
the Pacific Northwest, old growth, and alpine forests out of these
categories of actions.
Response: Data on hazardous fuels reduction and fire rehabilitation
activities was collected from field units within the Forest Service,
Bureau of Land Management, Bureau of Indian Affairs, Fish and Wildlife
Service, and National Park Service, across the United States. Based on
a review of this data, it is the professional judgment of the
Departments that the categories of actions identified in the hazardous
fuels reduction and fire rehabilitation categorical exclusions do not
individually or cumulatively have significant effects on the human
environment. The data represents a broad spectrum of hazardous fuels
reduction activities across vegetation types, geographic regions, and
agency jurisdictions. Indeed, it is this broad representation of
activities that leads the
[[Page 33816]]
agencies to conclude that the hazardous fuels reduction and fire
rehabilitation categories should not be restricted to any specific
geographic area, vegetation type, or jurisdiction. Additional
information is available at http://www.fs.fed.us/emc/hfi. The
categorical exclusion are provided as a tool to improve planning
efficiency.
The applicability of hazardous fuels reduction activities and the
level of NEPA documentation appropriate to any given area is a matter
for informed professional judgment on the part of the local resource
manager. The hazardous fuels categorical exclusion has been modified to
limit its use to areas in wildland-urban interface or in Condition
Classes 2 or 3 in Fire Regime Groups, I, II, or III, outside the
wildland-urban interface. Further, hazardous fuels reduction actions
using this category will be identified through a collaborative process
as described in ``A Collaborative Approach for Reducing Wildland Fire
risks to communities and the Environment 10-Year Comprehensive Strategy
Implementation Plan'' (hereafter called the 10-Year comprehensive
Strategy implementation Plan). Therefore, if hazardous fuels reduction
activities are not needed or appropriate, they are not likely to be
identified through this process.
The rehabilitation category is to be used only for rehabilitation
of resources and infrastructure after a wildfire, so it is already
limited to those areas impacted by wildland fire and wildfire
suppression. Further restricting this category to certain geographic
areas may exclude areas that, while not typically susceptible to
wildland fire, may be subject to wildland fire because of conditions
such as extreme drought, blow down, or insect infestation.
Moreover, the two categories will not apply where there are
extraordinary circumstances, such as adverse effects on the following:
threatened and endangered species or their designated critical habitat;
wilderness areas; inventoried roadless areas; wetlands; impaired
waters; and archaeological, cultural, or historic sites.
Comment: Some respondents stated that the public cannot adequately
comment until they have reviewed the results of the required Council on
Environmental Quality (CEQ) consultation for the proposed categorical
exclusions.
Response: Pursuant to regulations at 40 CFR 1505.1 and 1507.3, the
USDA Forest Service and the Department of the Interior consulted with
CEQ during the development of the categorical exclusions. Prior to the
publication of these final categorical exclusions, CEQ provided written
confirmation that amending the Forest Service and Department of the
Interior NEPA procedures by adding the new categorical exclusions was
in conformity with NEPA and the CEQ regulations.
Comment: Some respondents stated that the agencies should have
provided addresses listing where hard copies of information can be
obtained. These respondents said that they do not have access to the
Internet and that they have not been able to obtain information.
Response: Two contacts and their phone numbers were provided in the
Federal Register notice (67 FR 77038) as sources for additional
information. Paper copies of the information were available on request
from the two contacts.
Comment: Some respondents questioned why the public should have to
cite specific laws, regulations, or policies when making comments.
Response: There was no request for the public to cite specific
laws, regulations, or policies when making comments.
Comment: Some respondents stated that, according to the Federal
Register notice, instructions for applying the proposed fire management
categorical exclusions will not be issued until after the procedures
are finally established; thus neither the agencies nor the public can
comment on how, where, and how often these categorical exclusions will
be utilized.
Response: The only instructions not yet produced are those
providing Department of the Interior agencies guidance for the format
and content of memos that will document the agency's use of either of
these two categorical exclusions. Historically, requirements for
documenting decisions concerning categorically excluded activities have
varied across agencies within the Department of the Interior. The new
Department of the Interior instructions will be consistent with
existing Forest Service requirements and provide for standardized
documentation for using the hazardous fuels reduction and fire
rehabilitation categorical exclusions among agencies. The Forest
Service requirements are available at http://www.fs.fed.us/im/directives/fsh/1990.15/1909.15
,30.txt. The Department of Interior
instruction can be found at http://www.doi.gov/oepc/esms. html.
Comment: Some respondents said they believe that the proposal will
restrict public involvement and that timber harvest for purposes other
than hazardous fuels reduction will be categorically excluded.
Response: The hazardous fuels reduction categorical exclusion
explicitly states that it may only be used where the primary purpose of
the project is hazardous fuels reduction. Moreover, it is restricted to
activities identified through a collaborative framework as described in
the 10-Year Comprehensive Strategy Implementation Plan. As stated in
the 10-Year Comprehensive Strategy Implementation Plan, ``Local level
collaboration should involve participants with direct responsibility
for management decisions affecting public and/or private land and
resources, fire protection responsibilities, or good working knowledge
and interest in local resources. Participants should include Tribal
representatives, local representatives, local representatives from
Federal and State agencies, local governments, landowners and other
stakeholders, and community-based groups with a demonstrated commitment
to achieving the four goals described in the Comprehensive Strategy 10-
Year Implementation Plan (improve fire prevention and suppression,
reduce hazardous fuels, restore fire-adapted ecosystems, and promote
community assistance). Existing resource advisory committees, watershed
councils, or other collaborative entities may serve to achieve
coordination at this level. Local involvement, expected to be broadly
representative, is a primary source of planning, project
prioritization, and resource allocation and coordination at the local
level.''
This requirement supports public involvement and collaboration, and
helps ensure a focus on reducing wildland fire risks. Through such
collaboration, actions believed necessary to abate the risk of high-
intensity wildfire will be identified. This collaboration will, where
appropriate, seek to address conflicts concerning alternative uses of
resources and be used by the federal agencies to consider, as
appropriate, reasonable alternatives to recommend courses of action. 42
U.S.C. 4332(2)(E). The hazardous fuels reduction category will utilize
a collaborative framework as described in the 10-Year Comprehensive
Strategy Implementation Plan even after the ten years of the 10-Year
Comprehensive Strategy Implementation Plan have passed. In addition,
the use of the hazardous fuels reduction category is limited to the
reduction of fuels in the wildland-urban interface or in Condition
Classes 2 or 3
[[Page 33817]]
in Fire Regime Groups I, II, or III, outside the wildland-urban
interface.
Comment: Some respondents asked the agencies to clarify the public
involvement process for the rehabilitation categorical exclusion.
Response: Responsible officials will consider options for involving
potentially interested and affected agencies, organizations, and
persons in the analysis process, commensurate with public interest in a
proposed action, regardless of how the analysis is documented.
Comment: Various respondents questioned the methodology used to
gather and interpret activity information used in the agencies'
conclusion that the proposed category of hazardous fuels reduction
actions do not individually or cumulatively have a significant
environmental effect on the human environment. Some do not believe
there is sufficient evidence for this conclusion. Others suggest
various biases are reflected in the activities selected. Some
respondents suggested that the time period in which the data were
collected from field units was too short to gather accurate data.
Response: To identify activities for review, the Forest Service
relied on a national database implemented in October 2000. The database
includes fuel hazard reduction and rehabilitation and stabilization
projects accomplished in fiscal years 2001 and 2002. The Forest Service
reviewed 100 percent of the completed projects in the database. The
Department of the Interior, having comprehensive fuel hazard reduction
and rehabilitation and stabilization project records dating back many
years, chose a 100 percent sample of projects accomplished in fiscal
year 2002 and a 10 percent random sample of projects accomplished in
fiscal years 1998 through 2001. As the request of both the Forest
Service and Department of the Interior, field units added additional
hazardous fuels reduction and rehabilitation projects that had not been
entered in their respective national databases. The information request
was distributed to field units to verify and supplement the project
information because that is the organizational level where project
information would be readily available. Field units responded to
questions about projects for which they had already reported
accomplishments through their agency reporting systems. Field units
responded with over 3,000 hazardous fuels reduction and fire
rehabilitation projects. The information supplied included 30 different
data items for each activity, including information on activity
location and size, vegetation cover type, fuels treatment type,
predicted environmental effects, actual environmental effects after
activity completion, and mitigation measures. Over 2,400 of the
projects reviewed had some form of validation of the environmental
effects predicted, in the form of formal monitoring, forest plan
monitoring, or personal observation. Some of these included multiple
activities. Environmental effects included ecological, aesthetic,
historic, cultural, economic, social, or health effects as defined in
40 CFR 1508.8. The agencies identified some inconsistencies and missing
information in the data provided by the field units and followed up
with specific units for clarification.
The agencies relied on the professional judgment of the responsible
officials concerning the significance of environmental effects. The
agencies believe that resource specialists and stakeholders involved in
the design and analysis of each specific on-the-ground project were
best qualified to identify resulting environmental effects or whether
extraordinary circumstances were present.
Comment: Some respondents questioned the fire statistics presented
in the proposal. Some said that the fire statistics fail to provide
sufficient information to make any conclusions that justify the
proposal.
Response: The fire statistics in the preamble to the proposal where
drawn from the Administration's ``Healthy Forests: An Initiative for
Wildfire Prevention and Stronger Communities'' and ``A Collaborative
Approach for Reducing Wildland Fire Risks to Communities and the
Environment 10-Year Comprehensive Strategy.'' Statistics for past fire
seasons are also available from the National Interagency Fire Center at
http://www.nifc.gov/stats. The statistics were provided to explain why
the agencies believed the proposal was necessary and timely. These
statistics are not a basis for evaluating the significance of the
environmental effects of hazardous fuels reduction or rehabilitation
activities.
The proposal is focused on how the attendant environmental analyses
will be documented. The CEQ regulations implementing NEPA direct
agencies to reduce excessive paperwork by using categorical exclusions
to define categories of actions which do not individually or
cumulatively have a significant effect on the human environment and for
which, therefore, neither an environmental assessment nor an
environmental impact statement is required. The agencies believe that
the projects they reviewed provided ample information to define the two
categorical exclusions.
Comment: Some respondents believe that the initiative is contrary
to the Roadless Area Conservation Rule which prohibits road
construction in roadless areas unless needed to protect public health
and safety under an imminent threat of a catastrophic event that would
cause the loss of life or property. Others say that roadless areas
should be included in the proposed categorical exclusions.
Response: Categorically excluded actions must be consistent with
applicable law, regulations and policy. The Roadless Area Conservation
Rule (36 CFR 294) prohibits certain activities in inventoried roadless
areas. Further, Forest Service NEPA procedures continue to require an
environmental impact statement for proposals that would substantially
alter the undeveloped character of an inventoried roadless area of
5,000 acres or more (FSH 1909.15, Section 20.6(3)).
Comment: Some respondents state that the agencies should strengthen
the proposed fire management categorical exclusions by adding a
paragraph that specifies that they also apply in extraordinary
circumstances in either Presidential Disaster Declaration areas, or
areas where it is demonstrated that a high risk to human life, safety,
property, or infrastructure exists.
Response: The categorical exclusions are based on the agencies'
conclusion that these are categories of actions, which do not
individually or cumulatively have a significant effect on the human
environment. The need for emergency actionis not justification for a
categorical exclusion. CEQ regulations provide for procedures that
allow action in emergencies when an environmental impact statement
would be required (40 CFR 1506.11).
Comment: Some respondents stated that the agencies should modify
the initiative to specify that the proposed fire management categorical
exclusions can be used in storm/wind damaged forest areas.
Response: The proposed categorical exclusion for hazardous fuels
reduction may be used in storm/wind damaged areas as long as the
criteria in the text of the categorical exclusion are met. The agencies
do not believe that such additional specificity is necessary.
Comment: Some respondents suggest specific criteria to further
define and limit the proposed categories of actions, e.g., project
goals, outcomes, acreage limitations, the number of activities within a
single watershed, and the types of forests for which methods apply.
Some respondents state that the
[[Page 33818]]
agencies should limit the size of the proposed fire management
categorical exclusions to 40 acres or less and within one-half mile of
communities. Some state that the agencies should limit activity size to
no more than 250 acres, while others suggest that the agencies should
restrict removal for a specific activity to 250,000 board feet.
Response: The categorical exclusions are limited to activities with
a specific goal and outcome as suggested by some respondents.
Accordingly, activities could include the sale of vegetative material
only if hazardous fuels reduction is the primary purpose of the
activity. The hazardous fuels categorical exclusion is limited to
activities identified through a collaborative process as described in
the 10-Year Comprehensive Strategy Implementation Plan. The
collaborative process will identify areas that are a priority for
treatment using the hazardous fuels reduction categorical exclusion.
Project data was collected from five land management agencies
across the United States. The data represents the spectrum of hazardous
fuels reduction and fire rehabilitation projects of different sizes
across vegetation types, geographic regions, agency jurisdictions. Not
all projects reviewed had post activity validation of the predicted
environmental effects. The agencies focused on an analysis of the
acreage figures from over 2,500 hazardous fuels reduction and
rehabilitation activities where the environmental effects were
predicted to not be significant and where those predictions were
validated. Hazardous fuels reduction activities using fire, ranged in
size from less than one acre to 90,000 acres. Mechanical hazardous
fuels reduction activities, ranged in size from less than one acre to
11,690 acres. Fire rehabilitation activities, ranged in size from one
acre to 39,000 acres.
In response to requests fromore specificity of limits, the agencies
have further constrained the hazardous fuels categorical exclusion ot
activities within wildland-urban interface or in Condition Classes 2 or
3 in Fire Regime Groups I, II, or III, outside the wildland-urban
interface.
The wildland urban interface is defined in the Forest Service and
Department of the Interior Federal Register notice ``Urban Wildland
Interface Communities Within the Vincinity of Federal Lands That Are at
High Risk From Wildfire'' published January 4, 2001 (66 FR 753), as an
``interface community'' and an ``intermix community''. For purposes of
defining these communities, a structure is understood to be either a
residence or a business facility, including Federal, State, and local
government facilities. Structures do not include small improvements
such as fences and wildlife watering devices.
The ``interface community'' exists where structures directly abut
wildland fuels. The wildland interface community exists where humans
and their development meet or intermix with wildland fuel. There is a
clear line of demarcation between residential, business, and public
structures and wildland fuels. Wildland fuels do not generally continue
into the developed area. The development density for an interface
community is usually 3 or more structures per acre, with shared
municipal services. Fire protection is generally provided by a local
government fire department with the responsibility to protect the
structure from both an interior fire and an advancing wildland fire. An
alternative definition of the interface community emphasizes a
population density of 250 or more people per square mile.
The ``intermix community'' exists where structures are scattered
throughout a wildland area. There is no clear line of demarcation;
wildland fuels are continuous outside of and within the developed area.
The development density in the intermix ranges from structures very
close together to one structure per 40 acres. Fire protection districts
funded by various taxing authorities normally provide life and property
fire protection and may also have wildland fire protection
responsibilities. An alternative definition of intermix community
emphasizes a population density of between 28-250 people per square
mile.
Based on coarse scale national data, Fire Condition Classes measure
general wildfire risk as follows:
Condition Class 1. For the most part, fire regimes in this Fire
Condition Class are within historical ranges. Vegetation composition
and structure are intact. Thus, the risk of losing key ecosystem
components from the occurrence of fire remains relatively low.
Condition Class 2. Fire regimes on these lands have been moderately
altered from their historical range by either increased or decreased
fire frequency. A moderate risk of losing key ecosystem components has
been identified on these lands.
Fire Regime Groups are defined in the 10-Year Comprehensive
Strategy Implementation Plan, which is available on a number of Web
sites including http://www.fs.fed.us/emc/hfi. A fire regime is a
generalized description of the role fire plays in an ecosystem. It is
characterized by fire frequency, predictability, seasonality,
intensity, duration, scale (patch size), as well as regularity or
variability. Five combinations of fire frequency, expressed as fire
return interval in fire severity, are defined as Groups I through V.
Groups I and II include fire return intervals in the 0-35 year range.
Group I includes ponderosa pine, other long needle pine species, and
dry site Douglas-fir. Group II includes the drier grassland types, tall
grass prairie, and some Pacific chaparral ecosystems. Groups III and IV
include fire return intervals in the 35-100+ year range. Group III
includes interior dry site shrub communities such as sagebrush and
chaparral ecosystems. Group IV includes lodgepole pine and jack pine.
Group V is the long interval (infrequent), stand replacement fire
regime and includes temperate rain forest, boreal forest, and high
elevation conifer species.
In response to requests to consider acreage limitations on the
categorical exclusions for hazardous fuel reduction and fire
rehabilitation activities, the agencies reviewed the data to determine
prudential limits on the scope of these categorical exclusions.
Although the data did not establish a relationship between acres
treated and environmental effects, the agencies have elected to limit
the categorical exclusion for hazardous fuels reduction activities
using fire to 4,500 acres, hazardous fuels reduction activities using
mechanical methods up to 1,000 acres, and fire rehabilitation
activities to 4,200 acres. These acreages are well within the range of
the data. This responds to public concerns while maintaining the
effectiveness of the categorical exclusions as a management tool.
Using timber volume as a limitation, instead of acreage, does not
reflect the size of an activity inasmuch as a small project in one part
of the country may result in as much timber volume as a much larger
project in another part of the country. Moreover, activities in the
review that were identified as having significant environmental effects
were not those of a particular activity, location, or size but were
identified as having extraordinary circumstances, which precluded the
use of a categorical exclusion.
These acreage limits for the hazardous fuels reduction and fire
rehabilitation categories differ from those in a separate Forest
Service proposal for three categorical exclusions for limited timber
harvest (68 FR 1026). In conducting the review for its limited timber
harvest categories, the Forest Service selected projects that would
have qualified
[[Page 33819]]
under the agency's former Categorical Exclusion 4, which allowed up to
1 million board feet of salvage and 250,000 board feet of merchantable
wood products. As previously discussed, volume per acre can vary
considerably from place to place or by treatment method. However, by
limiting timber harvests in the Forest Service's review for its limited
timber harvest categorical exclusions to actions limited by a specified
volume, the projects in the review were still inherently limited in
acreage. Conversely, the activities reviewed for the hazardous fuels
reduction and fire rehabilitation categorical exclusions were not
constrained by a acreage or board feet limitations. Accordingly, the
acreage limits proposed for the Forest Service's three limited timber
harvest categorical exclusions are smaller than the acreage limits in
these hazardous fuels and fire rehabilitation categorical exclusions.
Since the Forest Service's limited timber harvest categorical exclusion
data is constrained, it is not comparable to the hazardous fuels and
fire rehabilitation categorical exclusions data.
Comment: Some respondents stated that the initiative contradicts
the original intent of categorical exclusions, which is to expedite
minor, routine administrative actions. According to these respondents,
there will be more stringent requirements for administrative actions
such as moving and trail maintenance than for vegetation management on
hundreds of thousands of acres of land, under this initiative.
Response: Categorically excluded actions include those that are
minor, routine, and administrative. Forest Service NEPA procedures do
apply the term ``routine'' in reference to some of the actions that are
currently categorically excluded. In addition, the categorical
exclusions are intended to expedite actions that fit within categories
of actions that do not individually or cumulatively have a significant
effect on the human environment and for which, therefore, neither an EA
nor an EIS is required. In this case, the agencies have analyzed a
substantial body of data. As the agencies' experience with
environmental analysis for natural resource management activities
grows, it stands to reason that additional categorical exclusions will
be defined.
Comment: Some respondent said the application of extraordinary
circumstances screens is insufficient and open to abuse. Others stated
a belief that hazardous fuels reduction and fire rehabilitation actions
automatically trigger the Department of the Interior's exceptions to
categorical exclusions, including ``controversy,'' ``uncertainty,'' and
``precedent for future action'' and, as such, cannot be categorically
excluded.
Response: When using these two categorical exclusions, the
responsible officials will consider, on a project-by-project basis,
whether or not any of the Department of the Interior's exceptions and
Forest Service extraordinary circumstances apply. The responsible
official will prepare a decision memo that will be available for public
review.
Comment: Some respondents suggested that the agencies monitor
categorically excluded hazardous fuels and rehabilitation activities
actions to ensure that they do not have significant environmental
effects.
Response: Monitoring would take place after the categories are
established and after they are used for a particular action. Monitoring
is not relied upon as a basis or rationale for establishing these
categorical exclusions. Although the data established that the covered
activities do not individually or cumulatively have a significant
effect on the human environment, the agencies, nevertheless, recognize
the need for a scientifically sound and consistent approach to
environmental monitoring for both hazardous fuels reduction and
rehabilitation actions and agree that a monitoring program should apply
to a representative sampling of those hazardous fuels reduction and
rehabilitation projects conducted using these new categorical
exclusions. Therefore, guidance for the development of monitoring
protocols, one for fuels treatments and one for rehabilitation actions,
is being prepared. It will be peer reviewed and is scheduled for
completion in May. Monitoring protocols will be prepared shortly
thereafter. The agencies will monitor the effects of categorically
excluded hazardous fuels reduction and fire rehabilitation activities
to assess whether the categorical exclusions are being applied within
their prescribed parameters and to confirm the agencies' assessment of
their individual and cumulative environmental impacts.
Comments: Some respondents suggested changing the categorical
exclusion language to specify that the proposed fire management
categorical exclusions will be ``guided by'' rather than ``be
consistent with'' the 10-Year Comprehensive Strategy Implementation
Plan. They state that failure to implement such changes will result in
new causes for appeals and litigation due to ``inconsistency.''
Response: The agencies have modified the proposal to limit it to
activities identified through a collaborative framework as described in
the 10-Year Comprehensive Strategy Implementation Plan. The change was
made to eliminate any confusion concerning consistency.
Comment: Some respondents stated the initiative's list of routine
actions (e.g., reseeding and replanting) is misleading inasmuch as the
effects from the listed actions are not comparable to the effects that
will be created by road construction, skid trail and landing
construction, and timber harvest. Some respondents also stated that
phrases such as ``small combustibles,'' ``overstocked stands,'' and
``brush thinning'' are inadequate with reference to likely timber
harvest activities under the initiative.
Response: Reseeding and replanting are allowed under the fire
rehabilitation category, which does not include skid trail and landing
construction, or timber harvest. Fuel reduction activities involving
the sale of vegetative material are allowed under the hazardous fuels
category only where the primary purpose of the activity is hazardous
fuels reduction. Thinning brush and overstocked stands characterize
common tasks allowed under the hazardous fuels reduction categorical
exclusion. The phrase ``small combustibles'' was not used in the
proposed or final text. The examples provided in the proposal were
intended to illustrate a range of possible activities. The text of the
hazardous fuels reduction categorical exclusion defines the specific
actions for which each may be applied.
The agencies' review of hazardous fuels reduction and fire
rehabilitation projects encompassed the specific activities included in
the two categorical exclusions. Hazardous fuels reduction activities
reviewed involved broadcast burning and burning of piles, and
mechanical treatments consisting of crushing, piling, thinning,
pruning, cutting chipping, mulching, and mowing.
Comment: Some respondents assert that the stated requirements that
activities must be consistent with land and resource management plans
is misleading since Forest Service plans will be categorically
excluded.
Response: Forest Service NEPA procedures do not presently provide a
categorical exclusion for amendments to land and resource management
plans. The Forest Service may, if it implements its proposed planning
rule, identify a category of plan decisions which do not individually
or cumulatively have a significant effect on the human environment and
may, therefore, be
[[Page 33820]]
categorically excluded from NEPA documentation in an environmental
assessment or an environmental impact statement. The public would have
an opportunity to review and comment on such an amendment to the Forest
Service handbook if such a categorical exclusion proposal is made.
It should be noted that under the proposed Forest Service planning
regulations, new plans, plan revisions, and amendments continue to
require a rigorous public involvement process. Categorical exclusions
apply to the level of documentation required under CEQ's regulations
implementing NPEA ( 40 CFR 150.4(p) and 1508.4). Any action that is not
consistent with an applicable land and resource management plan's
standards, guidelines, goals, and objectives would require a plan
amendment. The Forest Service will continue to conduct the appropriate
level of environmental analysis and disclosure commensurate with the
significance of environmental effects, for both land and resource
management plans and project-level planning.
Comment: Some respondents suggested that the agencies should
clearly define such terms as ``hazardous fuels,'' ``primary purpose''
``ecosystem integrity,'' and ``adverse effect'' as they pertain to
extraordinary circumstances.
Response: ``Hazardous fuels'' consist of combustible vegetation
(live or dead) such as grass, leaves, ground litter, plants, shrubs,
and trees, that contribute to the threat or ignition, and high fire
intensity and/or high rate of spread. The term ``primary purpose'' is
not a term of art and has only the dictionary definition. Synonymous
phrasing is that the ``main reason'' for the activity must be hazardous
fuels reduction. ``Ecosystem integrity'' is defined in ``A
Collaborative Approach for Reducing Wildland Fire Risks to Communities
and the Environment 10-Year Comprehensive Strategy'' as the
completeness of an ecosystem that at geographic and temporal scales
maintains its characteristic diversity of biological and physical
components, composition, structure, and function. The use of the term
``adverse effect'' was used in conjunction with the agencies'
descriptions of extraordinary circumstances in their NEPA procedures.
Specific agency direction pertinent to identifying extraordinary
circumstances may be found in Forest Service Handbook 1909.15, section
303.3 (67 FR 54622), and Department of the Interior Manual 516 DM 2,
Appendix 2.
Comment: Some respondents commented that the proposal was
misleading because it stated that the proposed hazardous fuels
reduction categorical exclusion would not cover timber sales that do
not have hazardous fuel reduction as their primary purpose, but then
several pages later stated that products would be sold.
Responses: The intent of the statement concerning timber sales was
to point out that only timber sales with hazardous fuel reduction as
their primary purpose could be categorically excluded under the
proposal. The categorical exclusion for hazardous fuels reduction
allows for the sale of vegetative material as one method for removal.
The sale of vegetative material includes all types of products from
plant material, including biomass, posts, poles, and sawlogs. The
hazardous fuels reduction categorical exclusion has been edited to add
that activities may include the sale of vegetative material if the
primary purpose of the activity is hazardous fuels reduction.
Comment: Some respondents suggested that, without NEPA analysis,
categorically excluded actions would not consider the best available
science and managers would be unaware of extraordinary circumstances
that preclude the use of a categorical exclusion.
Response: The agencies have repeatedly conducted NEPA analyses for
hazardous fuels reduction and fire rehabilitation projects using the
best available science. Based upon the projects reviewed for these
categorical exclusions, the agencies have concluded that these
categorical exclusions describe categories of actions which do not
individually or cumulatively have a significant effect on the human
environment.
Consistent with existing direction, agencies must conduct
sufficient review to determine that no extraordinary circumstances
exist when using categorical exclusions. This determination includes
appropriate surveys and analyses, using the best available science,
attendant in appropriate consultation with Tribes and consultation with
regulatory agencies, such as those required by the Endangered Species
Act, the National Historic Preservation Act, Clean Water Act, and Clear
Air Act.
The agencies will take the additional measure of monitoring to
determine that these categories are being appropriately used and to
further validate the agencies' conclusions regarding environmental
significance.
Comment: Some respondents stated that NEPA and other environmental
laws have served the country well for years, and the agencies should
follow these laws in conducting fuels reduction efforts. Respondents
suggest that if rule changes are needed, they should be made through
Congress, not through administrative actions.
Response: The agencies are not changing laws or regulations. The
CEQ regulations implementing NEPA provide for three levels of
environmental documentation: environmental impact statements;
environmental assessments; and categorical exclusions. The agencies are
following CEQ's regulations, which direct agencies to define
categorical exclusions to reduce excessive paperwork. Activities
conducted under those categories must be consistent with all applicable
Federal, State, local, and Tribal laws and requirements imposed for
protection of the environment.
Comment: Some respondents indicated that there should be no
restriction on new road construction, while others believe that no
roads should be constructed, as the absence of roads indicates an
activity is too far from a community. Other respondents suggested that
up to one mile of low-standard road should be allowed, while others
believed that roads should only be constructed in rare cases.
Response: Hazardous fuels reduction activities and rehabilitation
activities involving new permanent roads are not included in the
proposed categorical exclusions. Proposals for activities that involve
new permanent road construction would be analyzed and documented in an
environmental assessment or an environmental impact statement.
Comment: Some respondents suggested that any road construction
should only be carried out following a thorough environmental analysis.
Others indicated that culverts should not be replaced or upgraded
without a watershed analysis.
Response: The categorical exclusions provide only for construction
of temporary roads. Where temporary road construction or culverts are
being proposed, agencies must review the proposed action to ensure that
no extraordinary circumstances exist.
Comment: Some respondents suggested that the categorical exclusions
should specify that temporary roads will be constructed only where the
project ensures that they will be reclaimed/obliterated upon activity
completion.
Response: Whether temporary roads are needed and to what extent,
along with how they are closed, reclaimed, and/or obliterated are
project-specific decisions and therefore appropriately decided at the
project level.
Comment: Some respondents asked the agencies to clarify the role of
grazing
[[Page 33821]]
in the proposal. Other respondents suggest that the agencies should not
allow grazing to be categorically excluded as a fuels reduction
technique because grazing removes grasses, allowing woody vegetation to
invade, which contributes to hotter, more intense fires.
Response: The grazing activity included in the proposed hazardous
fuels reduction categorical exclusion, as the sole biological method,
was intended to be limited to livestock grazing to maintain fuelbreaks.
Subsequent review determined that only four of the projects reviewed
involved livestock grazing for fuelbreak maintenance. While some
agencies have effectively used livestock grazing to maintain fuelbreaks
in certain circumstances without significant environmental effects, the
agencies believe they have not gathered sufficient data for its
inclusion in this categorical exclusion. The agencies will continue to
review the effects of this type of activity. Therefore, the hazardous
fuels reduction categorical exclusion has been modified to remove
``biological'' and ``grazing'' from the list of included activities.
Comment: Some respondents stated that some prescribed burns have
resulted in unanticipated effects such as burns too cool/hot to meet
objectives and increases in noxious weeds/non-target grasses.
Response: The agencies' review of hazardous fuels reduction and
fire rehabilitation projects found 11 cases where the actual results
were other than what was predicted. These cases reported that
prescribed fires burned either cooler or hotter than anticipated.
Cooler than expected burns resulted in less fuel being consumed by
fire, and, therefore, not completely achieving the project's fuel
reduction objective. Hotter than expected burns resulted in increased
scorch of tree crowns and more tree mortality than predicted. In some
instances undesirable grass species occupied the site after treatment.
In each of these cases, however, the unanticipated effects were found
not to be significant.
Comment: Some respondents asked that the categorical exclusion for
rehabilitation be modified to include, but not be limited to, specific
suggested activities such as fire and safety hazard tree removal,
natural or mechanical soil rehabilitation, and rehabilitation of
recreation sites.
Response: The rehabilitation categorical exclusion does not include
removal of fire and safety hazard trees. Removal of fire hazards is
addressed in the hazardous fuels reduction categorical exclusion.
Safety hazard trees associated with roads, trails, recreation
facilities, and administrative sites may be removed as part of routine
maintenance of those facilities. Most agencies already categorically
exclude these maintenance activities from further analysis and
documentation in an environmental assessment or environmental impact
statement. Post-fire soil rehabilitation, either natural or mechanical,
and recreation site rehabilitation are included in the category of
actions described in the rehabilitation categorical exclusion. The list
of examples is not exhaustive.
Comment: Some respondents indicated a belief that the proposal for
rehabilitation is unnecessary as existing legal frameworks provide for
emergency fire rehabilitation.
Response: In January 2003, the Wildland Fire Leadership Council, a
cooperative, interagency organization dedicated to achieving consistent
implementation of the goals, actions, and policies in the National Fire
Plan and the Federal Wildland Fire Management Policy, identified three
types of fire recovery activities: Emergency stabilization;
rehabilitation; and restoration. Emergency stabilization is defined as
planned actions within one year of a wildland fire to stabilize and
prevent unacceptable degradation to natural and cultural resources, to
minimize threats to life or property resulting from the effects of a
fire, or to repair/replace/construct physical improvements necessary to
prevent degradation of land or resources. The rehabilitation
categorical exclusion does not cover emergency stabilization. The
Wildland Fire Leadership Council defines rehabilitation as ``Post-fire
efforts (<3 years) to repair or improve lands unlikely to recover to a
management approved condition from wildland fire damage, or to repair
or replace minor facilities damaged by fire.'' The Wildland Fire
Leadership Council defines restoration as the continuation of
rehabilitation beyond three years. The rehabilitation categorical
exclusion has been edited to be consistent with the Wildland Fire
Leadership Council's definition of rehabilitation. The scope of fire
rehabilitation activities allowed under the proposed categorical
exclusion has not changed as a result of this new definition. What has
changed is the time limit of three years for completion of those
activities and a size limit of 4,200 acres.
Comment: Some respondents believe that rehabilitation activities
should require an environmental impact statement. Others believe that
these activities should not be carried out at all. They say the use of
heavy equipment generates noise, air and water pollution, soil
compaction, vegetation and habitat changes, and ecosystem modifications
greater than those which follow fires. Still others cite research
studies (e.g., Beschta, et al., 1995) that report that there is
generally no ecological need to act, and that quick actions may create
new problems.
Response: The agencies have repeatedly conducted NEPA analyses for
fire rehabilitation projects using the best available science. Based
upon approximately 300 fire rehabilitation projects reviewed, the
agencies have concluded that the category of activities described do
not individually or cumulatively have a significant effect on the human
environment. When using the rehabilitation categorical exclusion,
agencies must review the proposed action to ascertain whether
extraordinary circumstances exist.
While the Beschta report focused on salvage logging, there are also
statements on rehabilitation practices in the report. This report
questions, in general, the effectiveness of installation of hard
structures and their siting on the landscape. This report also
criticizes introduction of non-native species. Situations such as steep
slopes, drinking water protection, and threats of invasive species may
influence the need to act in local situations. Years of research since
the Beschta report have informed current choices of technologies. The
utility of fire rehabilitation practices chosen and the need for these
practices will be decided on a site-specific basis using current
knowledge and technologies. Thus, the projects selected, based on local
scientific expertise, will both meet the environmental protection goals
for the projects and have no potential to individually or cumulatively
have a significant effect on the human environment.
Comment: Some respondents requested that herbicide use be allowed
under the fire rehabilitation categorical exclusion, while others
oppose herbicide use and even want an explicit prohibition against
herbicide use on future activities that follow categorically excluded
actions.
Response: the agencies will continue to review and analyze new
information on the effects of herbicides used for hazardous fuel
reduction. At the present time, the agencies have elected to not
include actions involving herbicide use.
Comment: Some respondents are concerned that 30 days was
insufficient time to review the proposed categorical exclusions along
with the other proposals. Others criticized the release
[[Page 33822]]
of the proposal during the Christmas holidays.
Response: The agencies extended the comment period through January
31, 2003.
Comment: Some respondents expressed frustration with e-mail errors
near the comment period deadline.
Response: The office receiving e-mail comments notes that many e-
mail comments were received during the final days of the comment
period. The office receiving the e-mail comments analyzed e-mail server
performance. No problems were identified.
Comment: Some respondents said they do not believe that the
agencies should block e-mail originating from a third party e-mail
generator. These respondents said that such e-mail generators are
important to groups interested in the environment and that such
blocking prevents voices from being heard.
Response: The Forest Service regrets any difficulty experienced in
submitting comments. The Forest Service is committed to electronic
government and is a participant in the Regulations.gov project, which
will allow third-party e-mail generators to submit electronic comments.
In the meantime, the Forest Service has provided maintainers of public
comment web pages with a simple procedure that they can use to keep
their messages from being blocked by the Forest Service's spam filter.
For more information please contact Sandra Watts, (703) 605-4695.
Comment: Some respondents stated that agencies should accept and
consider all comments and not just those deemed to be ``original and
substantive.''
Response: The agencies agree and accepted and considered all
comments. Each comment was considered on its own merits.
Comment: Some respondents said that the 10-Year Comprehensive
Strategy Implementation Plan should have been included with the
proposal.
Response: The 10-Year Comprehensive Strategy Implementation Plan is
available on a number of Web sites including http://www.fs.fed.us/emc/hfi.
In addition, two contacts were provided in the Federal Register
notice for additional information. These contacts were available to
provide more information on this strategy.
Comment: Some respondents expressed a desire for public hearings to
record testimony.
Response: The agencies believe that the public comment opportunity
provided was the most efficient means of gathering public input for a
proposal of this nature and that public hearings were not necessary.
Comment: Some respondents wanted the agencies to specify which
implementation tasks within the 10-Year Comprehensive Strategy
Implementation Plan are addressed by the proposed fire management
categorical exclusions.
Response: The categorical exclusions contribute to the
implementation task, ``Assess state and federal regulatory process
governing projects and activities done in conformance with the 10-Year
Comprehensive Strategy and Implementation Plan and identify measures to
improve timely decision-making.'' This task is under ``Goal Two--Reduce
Hazardous Fuels.''
Comment: Some respondents suggested that the agencies should
provide opportunities for public involvement on the initiative
following the release of the report from the General Accounting Office
on the relationship between administrative appeals and fuels reduction
activities.
Response: Because of controversy over whether appeals and
litigation have delayed implementation of Forest Service hazardous
fuels reduction activities, the General Accounting Office was requested
to provide information to Congress on the number of decisions involving
hazardous fuels reduction activities, the number of these decisions
appealed or litigated, and the acreages affected. The agencies did not
believe that this information would be helpful in defining these
categorical exclusions, nor aid the public in commenting on the
agencies' proposal.
Comment: Many respondents asked that the agencies adhere to various
laws, executive orders, and agency policies such as: the Endangered
Species Act, Clean Air Act, Clean Water Act, National Forest Management
Act, Migratory Bird Treaty Act, National Historic Preservation Act,
Forest Service Transportation System Management Policy, Northwest
Forest Plan, the Grizzly Bear Recovery Plan, and executive orders on
management of floodplains and wetlands, and Tribal consultation.
Response: The agencies agree. The level of NEPA consideration does
not affect agency responsibility to follow applicable laws,
regulations, executive orders, and policies. For example, categorically
excluded hazardous fuels reduction and fire rehabilitation actions are
reviewed for their potential to impact waters listed as impaired by
State water quality agencies and for compliance with smoke management
plans. When appropriate, the Forest Service and the Department of the
Interior agencies conduct appropriate consultation with Federal, State,
and Tribal agencies for hazardous fuels and fire rehabilitation
actions. For example, agencies must consult with Tribal governments
when an action may have Tribal implications, even though it may be
categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement. Agencies
must also review the potential effects from these types of actions on
threatened and endangered species and designated critical habitat and
consult as appropriate with the U.S. Fish and Wildlife Service and the
National Oceanic and Atmospheric Administration (NOAA), Fisheries.
Similarly, categorically excluded actions are reviewed for potential
effects on properties protected by the National Historic Preservation
Act along with appropriate consultation with State and Tribal Historic
Preservation Officers. Such consultations help ensure that cumulative
effects across jurisdictions will not be significant.
Comment: Some respondents stated that rehabilitation work should
only be carried out in areas already consumed by fires.
Response: The agencies agree. The proposed and final categorical
exclusion for rehabilitation activities state that it is for
rehabilitation of habitat, watersheds, historical, archaeological, and
cultural sites and infrastructure damaged by wildfire and/or wildfire
suppression.
Comment: Some respondents said that agencies should follow the 10-
Year Comprehensive Strategy Implementation Plan and that additional
laws or regulations are not needed.
Response: The categorical exclusions are prepared in conformity
with the law (NEPA) and CEQ regulations. They contribute to the
implementation task under the 10-Year Comprehensive Strategy
Implementation Plan's ``Goal Two--Reduce Hazardous Fuels,'' which says,
``Assess state and federal regulatory process governing projects and
activities done in conformance with the 10-Year Comprehensive Strategy
and Implementation Plan and identify measures to improve timely
decision-making.'' In addition, the hazardous fuels reduction
categorical exclusion will apply only to activities identified through
a collaborative framework as described in the 10-Year Comprehensive
Strategy Implementation Plan.
Comment: Some respondents asked that the agencies work
collaboratively with Federal and State agencies in developing proposed
activities and
[[Page 33823]]
determining effects on wildlife resources prior to approval of specific
activities.
Response: Hazardous fuels reduction activities will be identified
collaboratively with governments and stakeholders, through a
collaborative framework as described in 10-Year Comprehensive Strategy
Implementation Plan.
Comment: Many respondents offered suggestions about Forest Service
and Department of the Interior management and funding, where and how to
focus hazardous fuels reduction efforts, the efficacy of various
hazardous fuels treatments and post-fire rehabilitation measures,
technologies for utilization of small-diameter trees, alternative fiber
sources, fire suppression tactics, land acquisition, multiple-use, the
President's Healthy Forests Initiative, and the 10-Year Comprehensive
Strategy Implementation Plan.
Response: Respondents offered many creative and original
suggestions that addressed issues beyond the proposal. The agencies
provided these comments to appropriate personnel for their
consideration.
Comment: Some respondents stated that the agencies should comply
with Executive Order 12866 by assessing the economic costs and benefits
of the initiative. Respondents say that this assessment should include
the non-market costs of the initiative to landowners, businesses,
communities, water quality, recreation, scenery, non-traditional forest
products, and game.
Response: In compliance with Executive Order 12866, the agencies
have determined that these categorical exclusions will not have an
annual effect of $100 million or more on the economy or adversely
affect productivity, competition, jobs, the environment, public health
or safety, or State, Tribal, or local governments. The economic effect
expected to result from this action is a reduction in the
administrative burden of preparing unnecessary environmental
assessments and findings of no significant impact, and benefits to the
environment and nearby communities as a result of expeditious fuel
reduction and post-fire rehabilitation activities. These benefits were
not quantified due to the level of uncertainty associated with the
amount of time saving and the number of projects that would use these
categorical exclusions.
Conclusion
The USDA Forest Service and the Department of the Interior find
that the categories of action defined in the categorical exclusions
presented at the end of this notice do not individually or cumulatively
have a significant effect on the human environment. The agencies'
findings is first predicated on the reasoned expert judgment of the
responsible officials who made the original findings and determinations
in the hazardous fuels and fire rehabilitation projects reviewed; the
resource specialists who validated the predicted effects of the
reviewed activities through monitoring or personal observation of the
actual effects; synthesis of peer-reviewed scientific publications; and
finally, the agencies' belief that the profile of the past hazardous
fuels reduction and fire rehabilitation activities represents the
agencies' past practices and is indicative of the agencies' future
activities.
Regulatory Certifications
Environmental Impact
These categorical exclusions add direction to guide field employees
in the USDA Forest Service and the Department of the Interior regarding
procedural requirements for National Environmental Policy Act (NEPA)
documentation for fire management activities. The Council on
Environmental Quality does not direct agencies to prepare a NEPA
analysis or document before establishing agency procedures that
supplement the CEQ regulations for implementing NEPA. Agencies are
required to adopt NEPA procedures that establish specific criteria for,
and identification of, three classes of actions: Those that require
preparation of an environmental impact statement; those that require
preparation of an environmental assessment; and those that are
categorically excluded from further NEPA review (40 CFR 1507.3(b)).
Categorical exclusions are one part of those agency procedures, and
therefore establishing categorical exclusions does not require
preparation of a NEPA analysis or document. Agency NEPA procedures are
internal procedural guidance to assist agencies in the fulfillment of
agency responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The requirements for establishing agency
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3, and the USDA
Forest Service and the Department of the Interior have provided an
opportunity for public review and have consulted with the Council on
Environmental Quality during the development of these categorical
exclusions. The determination that establishing categorical exclusions
do not require NEPA analysis and documentation has been upheld in
Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73
(S.D. Ill.1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).
Regulatory Impact
These categorical exclusions have been reviewed under Departmental
procedures and Executive Order 12866 on Regulatory Planning and Review.
The Office of Management and Budget (OMB) has determined that this is a
significant regulatory action as defined by Executive Order 12866.
Accordingly, this action is subject to OMB review under Executive Order
12866 and OMB has reviewed these categorical exclusions at both the
proposed and final stages.
This action to add two categorical exclusions to the agencies' NEPA
procedures will not have an annual effect of $100 million or more on
the economy or adversely affect productivity, competition, jobs, the
environment, public health or safety, or State, Tribal, or local
governments. This action may interfere with an action taken or planned
by another agency or raise new legal or policy issues. Finally, this
action will not alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
of such programs.
Moreover, this action has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is hereby
certified that the categorical exclusions will not have a significant
economic impact on a substantial number of small entities as defined by
the act because it will not impose record-keeping requirements on them;
it will not affect their competitive position in relation to large
entities; and it will not affect their cash flow, liquidity, or ability
to remain in the market.
Federalism
The agencies have considered these categorical exclusions under the
requirements of Executive Order 13132, Federalism, and have concluded
that they conform with the federalism principles set out in this
Executive Order; will not impose any compliance costs on the States;
and will not have substantial direct effects on the States or the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, the agencies have determined that no further
assessment of federalism implications is necessary.
[[Page 33824]]
Consultation and Coordination With Indian Tribal Governments
These categorical exclusions do not have tribal implications as
defined by Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments, and therefore advance consultation with
Tribes is not required.
No Takings Implications
These categorical exclusions have been analyzed in accordance with
the principles and criteria contained in Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and it has been determined that the proposed
categorical exclusions do not pose the risk of a taking of
Constitutionally protected private property.
Civil Justice Reform
In accordance with Executive Order 12988, it has been determined
that these categorical exclusions do not unduly burden the judicial
system and that they meet the requirements of sections 3(a) and 3(b)(2)
of the Order.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the agencies have assessed the effects of these categorical
exclusions on State, local, and Tribal governments and the private
sector. These categorical exclusions do not compel the expenditure of
$100 million or more by any State, local, or Tribal government or
anyone in the private sector. Therefore, a statement under section 202
of the act is not required.
Energy Effects
These categorical exclusions have been reviewed under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use. It has been determined that these
categorical exclusions do not constitute a significant energy action as
defined in the Executive Order.
Controlling Paperwork Burdens on the Public
These categorical exclusions do not contain any additional record
keeping or reporting requirements or other information collection
requirements as defined in 5 CFR part 1320 that are not already
required by law or not already approved for use, and therefore, impose
no additional paperwork burden on the public. Accordingly, the review
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) and its implementing regulations at 5 CFR part 1320 do not apply.
Dated: May 29, 2003.
For the Forest Service, U.S. Department of Agriculture.
Sally D. Collins,
Associate Chief.
Dated: May 29, 2003.
For the U.S. Department of the Interior:
P. Lynn Scarlett,
Assistant Secretary--Policy, Management, and Budget.
Categorical Exclusions
Note: The USDA Forest Service and the Department of the Interior
have issued the categorical exclusions in their respective NEPA
procedures. The categorical exclusions appear in Forest Service
Handbook (FSH) 1909.15, Environmental Policy and Procedures, ID
1909.15-2003-1, and Department of the Interior Manual 516 DM,
Chapter 2, Appendix 1, Departmental Categorical Exclusions.
Reviewers who wish to view the entire chapter 30 of FSH 1909.15 may
obtain a copy electronically from the USDA Forest Service directives
page on the World Wide Web at http://www.fs.fed.us/im/directives/.
Reviewers who wish to view the Department of the Interior Manual 516
DM may obtain a copy electronically from the Department of the
Interior page at http://elips.doi.gov/table.cfm.
Following is the text of the two categorical exclusions:
[sbull] 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. Such activities:
[sbull] Shall be limited to areas (1) in wildland-urban interface
and (2) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III,
outside the wildland-urban interface;
[sbull] Shall be identified through a collaborative framework as
described in ``A Collaborative Approach for Reducing Wildland Fire
Risks to Communities and the Environment 10-Year Comprehensive Strategy
Implementation Plan;''
[sbull] Shall be conducted consistent with agency and Departmental
procedures and applicable land and resource management plans;
[sbull] Shall not be conducted in wilderness areas or impair the
suitability of wilderness study areas for preservation as wilderness;
[sbull] Shall not include the use of herbicides or pesticides or
the construction of new permanent roads or other new permanent
infrastructure; and may include the sale of vegetative material if the
primary purpose of the activity is hazardous fuels reduction.
[sbull] Post-fire rehabilitation activities not to exceed 4,200
acres (such as tree planting, fence replacement, habitat restoration,
heritage site restoration, repair of roads and trails, and repair of
damage to minor facilities such as campgrounds) to repair or improve
lands unlikely to recover to a management approved condition from
wildland fire damage, or to repair or replace minor facilities damaged
by fire. Such activities:
[sbull] Shall be conducted consistent with agency and Departmental
procedures and applicable land and resource management plans;
[sbull] Shall not include the use of herbicides or pesticides or
the construction of new permanent roads or other new permanent
infrastructure; and
[sbull] Shall be completed within three years following a wildland
fire.
[FR Doc. 03-14104 Filed 6-2-03; 12:53 pm]
BILLING CODE 3410-11-M