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October 02, 2003
Review of Notice of Intent - Part I
The Notice of Intent to revise the Forest Plan deserves detailed attention. Therefore this is the first of a set of a 5 part series analyzing the Notice of Intent to revise the Allegheny National Forest "Forest Plan"
I talked some yesterday about the public involvement issues. I will continue that discussion as Part V of this review. Until then check out that post below.
The Legal Background
The Planning process must primarily comply with two principle environmental laws - the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA).
The National Forest Management Act
First, the NFMA explains the revision process as involving the same process and requirements as in the development of a forest plan (16 USC 1604(f)(5)).
There are several indications in the Notice of Intent, as well as in earlier communications, that the Forest service intends to short-circuit this process. One of these is by limiting the number of significant issues that are actually address (which I will address below in relation to the NEPA). Another is in insinuating that "The Allegheny National Forest proposes to narrow the scope of revising the Forest Plan by focusing on issues identified as being most critically in need of change." (FR 68(186): 55364) On its face, this statement contradicts the very notion of the NFMA which provides that the revision process must comply with the same provisions that are required in the development of a new forest plan. When we get to the variad of issues in the next part of this series you will see how significant this is.
The Notice of Intent does list the five areas where Forest Plans make decisions, and except for the exclusion of administrative designations of special areas the list seems to be accurate. However, the list of issues is qualified by the questionable statement cited above which undermines the seemingly accurate list of issues.
The National Environmental Policy Act
The Notice of Intent is issued as part of what is called the "scoping" process (which lasts until after the public comment period is closed) under the NEPA which requires:
Determine the scope (§1508.25) and the significant issues... (40 CFR § 1501.7(2))Identify and eliminate from detailed study the issues which are not significant... (40 CFR § 1501.7(3))
Scope consists of the range of actions, alternatives, and impacts to be considered in an environmenal impact state. (40 CFR § 1508.25)
Now there is more to it, but we can see two things here. Number one, is that the threshold for whether or not an issue gets discussed is whether or not that issue is significant. The more significant issues there are the more issues that need to be discussed in detail. This is why arbitrarily limiting the process to a specific number of issues (the Forest Service has indicated they will limit to 3 or 4 issues) is illegal. The next two parts in this will get into detail what issues the Forest Service plans to discuss and what significant issues are somehow left out.
Now I said that there are two issues here. The second one has to do with their intent to narrow the scope of revision to those most "critically in need of change." I should mention here that there is a lot of case law about this that makes it clear that the scope of an Environmental Impact Statement cannot be arbitrarily narrowed to ignore significant issues. Here the Forest Service appears to be intending to narrow the scope from "significant issues" (which is a much broader category) to issues "critically in need of change." The result would unquestionably be an environmental impact statement that doesn't adequately address the environmental impacts or a broad range of alternatives.
More on the Notice of Intent
Part I - Legal Issues
Part II - Preliminary Issues
Part III - Other Revision Changes
Part IV - Issues Not Addressed
Part V - Public Participation
Disclaimer: This is a quick review of the Notice of Intent to help folks understand the context better. Therefore, there may be significant pluses or minuses that are overlooked.
Posted by jkleissler at October 2, 2003 01:15 PM
Comments
When can we expect part II of your analysis, Jim?
Rj
Posted by: RJ at October 14, 2003 07:48 PM
RJ,
Thanks for the nudge. I had some technical difficulties on my end (part computer, part disfunction in my brain). I should have part II up tomorrow sometime.
-jim k
Posted by: Jim K at October 14, 2003 11:44 PM
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