U.S. Forest Service - Land Use Plan Amendment (1-FD-d)
Note: If the USFS determines that a new LMP is necessary to accommodate a project, the USFS may issue a revision, rather than an amendment. 36 C.F.R. §§ 219.6, 219.7. A revision is a multi-year effort, which may be undertaken when there is a significant need to change or add several plan components to an LMP. Unlike an amendment, which modifies an LMP, a revision replaces the applicable LMP. 36 C.F.R. § 219.7. As a practical matter, most renewable energy or transmission projects will require an amendment, rather than a revision. However, if a project requires a revision, see U.S. Forest Service - Land Use Planning Process:
The USFS has authority to amend LMPs for units of the National Forest System (NFS) pursuant to the National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq. LMPs provide a framework for managing NFS unit resources and guide project and activity decision making for national forests. 36 C.F.R. § 219.2(b). All projects and activities, which are approved to take place on USFS managed land must be consistent with the applicable LMP in place. 36 C.F.R. § 219.15(d). If a project is not consistent with the applicable LMP, then the project design must be changed or the USFS may issue a project-level plan amendment. 36 C.F.R. § 219.13. An amendment adds, modifies or removes one or more components of an LMP.
U.S. Forest Service - Land Use Plan Amendment Process
1-FD-d.1 – Notify Public of Intent to Initiate Plan Amendment
The USFS must formally notify the public before initiating the LMP amendment process. 36 C.F.R. § 219.16(a)(1). If an amendment requires the preparation of an Environmental Impact Statement (EIS), public notification must be published online and in the Federal Register. If an amendment that does not require an EIS, notice must be published in the applicable newspaper of record. 36 C.F.R. § 219.16(a)(1).
1-FD-d.2 to 1-FD-d.3 – Conduct Assessment of Existing Information (Optional); Assessment Report (Optional)
The USFS may conduct an assessment prior to issuing an amendment. An assessment is optional for plan amendments. If the USFS determines that a new assessment is needed for the amendment, the USFS has the discretion to determine the scope, scale, process, and content, depending on the topic or topics to be addressed. 36 C.F.R. § 219.6(c).
The assessment evaluates existing information regarding relevant “ecological, economic, and social conditions, trends, and sustainability and their relationship to the land management plan within the context of the broader landscape.” 36 C.F.R. § 219.5. The information may come from governmental or non-governmental studies, assessments, plans, reports, or other sources of relevant information. In addition, the USFS may coordinate with other branches of the Forest Service, governmental agencies, Indian tribes and the public in order to obtain relevant information for the assessment. 36 C.F.R. § 219.6(a)(2).
The assessment is documented in a report that is made available to the public. The report must document how the best available scientific information (BASI) was used to inform the assessment. The report must also document how BASI was determined. 36 C.F.R. § 219.6(a)(3). The assessment report may contain an analysis of information relevant to the following areas if the USFS Official determines that it is needed to inform the decision for the plan amendment:
- Terrestrial ecosystems, aquatic ecosystems, and watersheds;
- Air, soil, and water resources and quality;
- System drivers, including dominant ecological processes, disturbance regimes, and stressors, such as natural succession, wildland fire, invasive species, and climate change; and the ability of terrestrial and aquatic ecosystems on the plan area to adapt to change;
- Baseline assessment of carbon stocks;
- Threatened, endangered, proposed and candidate species, and potential species of conservation concern present in the plan area;
- Social, cultural, and economic conditions;
- Benefits people obtain from the NFS planning area (ecosystem services);
- Multiple uses and their contributions to local, regional, and national economies;
- Recreation settings, opportunities and access, and scenic character;
- Renewable and nonrenewable energy and mineral resources;
- Infrastructure, such as recreational facilities and transportation and utility corridors;
- Areas of tribal importance;
- Cultural and historic resources and uses;
- Land status and ownership, use, and access patterns; and
- Existing designated areas located in the plan area including wilderness and wild and scenic rivers and potential need and opportunity for additional designated areas. 36 C.F.R. § 219.6(b).
1-FD-d.4 – Preliminary Identification of the Need to Change the Plan
The plan amendment must be based on a preliminary identification of the need to change a plan. The preliminary identification gives focus to the planning process. For a plan amendment, the preliminary identification may be informed by a new assessment, a monitoring report, or other documentation of new information, changed conditions or changed circumstances. In addition, analysis of a special use authorization may be used as documentation for the preliminary identification. 36 C.F.R. § 219.12(b)(1). A special-use authorization is a legal document such as a permit, term permit, lease, or easement, which allows occupancy, use, rights, or privileges of agency land.
1-FD-d.5 to 1-FD-d.6 – Begin Outreach to the Public and Governmental Entities
The USFS must provide opportunities for public and agency participation during the amendment process. In addition, the USFS must provide opportunities for public and agency participation if it conducts an assessment prior to initiating the amendment process. The USFS has wide discretion to determine the nature of the participation. The USFS should encourage Indian tribes, governmental agencies, and the public to participate in the amendment process and provide opportunities for engagement. 36 C.F.R. § 219.4
36 C.F.R. § 219.4 requires the USFS to:
- Consult with federally recognized Indian tribes regarding the plan amendment;
- Request information from the tribes regarding native knowledge, land ethics, cultural issues, and sacred and culturally significant sites; and
- Coordinate with other public planning efforts.
1-FD-d.7 – Develop Proposed Plan Amendment
The USFS develops a proposed LMP amendment. An LMP may be amended at any time, and the USFS has the discretion to determine whether and how to amend an LMP. An amendment is required to add, remove or modify one or more LMP components or to change how or where an LMP component applies to all or part of the plan area. An amended LMP must contain the following components:
- Desired Conditions;
- Guidelines; and
- Suitability of lands. 36 C.F.R. § 219.7(e)(1).
Another component, goals, is optional. For more information regarding LMP components, see 36 C.F.R. § 219.7(e)(1).
1-FD-d.8 – Complete NEPA Process
The USFS must consider the environmental effects of the LMP amendment by conducting NEPA review in conjunction with the amendment process. 36 C.F.R. § 219.5. In some cases, NEPA compliance requires the USFS to prepare an EIS for the proposed amendment. Unlike plan development or revision, however, a plan amendment may not require an EIS if a Categorical Exclusion (CE) applies or if an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) will suffice. An EA and FONSI will suffice when the agency finds that there will be no significant impact on the environment.
An EA is a concise public document that serves to help the agency determine whether an EIS or FONSI is required. It should include a brief assessment of the amendment and an analysis of the evidence relating to the need for an EIS. It should also include an analysis of the effects of the proposed action and an analysis of the alternatives. 40 C.F.R. § 1508.9. A FONSI is a document prepared by a federal agency that briefly explains why an action will not have a significant effect on the human environment. 40 C.F.R. § 1508.13.
Analysis of environmental effects during the EA process may result ina finding that there may be significant effects caused by the proposed federal action that cannot be mitigated. At that point the Responsible Official would decide that an EIS is required in orsder to meet NEPA requirements. An EIS should contain a discussion of all of the environmental impacts of the proposed federal action, alternatives to the proposed action, and mitigation measures. 40 C.F.R. § 1502.3. In addition, the EIS will describe the purpose and need for the amendment.
Although the NEPA and plan amendment processes are intertwined, and although a NEPA review must be completed before an amendment may be adopted, this section only addresses steps directly related to the amendment of LMPs. NEPA steps are included only if they are performed in conjunction with a step required by the amendment process. Consequently, this section does not include a complete list of NEPA steps required by the Council on Environmental Quality (CEQ) and USFS NEPA regulations. For a complete explanation of the USFS NEPA process, see U.S. Forest Service - NEPA Process:
Once development of the amendment is complete, public notice is issued to invite comments on the amendment and the NEPA analysis.
1-FD-d.9 to 1-FD-d.10 – Proposed Plan Amendment / Draft EIS or EA and FONSI; Comment on Proposed Amendment and Draft EIS or EA/FONSI
After conducting a NEPA analysis, the USFS produces a proposed amendment and a draft EIS or draft EA/FONSI, depending on the environmental impact of the proposal. 36 C.F.R. § 220.5(f) requires the draft of an EIS to be filed with the Environmental Protection Agency (EPA). The EPA publishes a notice of availability (NOA) when the draft EIS is issued and available for public review in the Federal Register. The EPA NOA serves as the public notice required by 36 C.F.R. § 219.16(a)(2) and begins the public comment period. 36 C.F.R. § 219.16(3)(3). If the draft is an EA/FONSI, notice is usually published in the newspaper of record. The public comment period for a draft EIS must be at least 90 days, while the comment period for a draft EA/FONSI must be at least 30 days.
During the public comment period, interested parties may submit comments regarding the proposed amendment and draft EIS or draft EA/FONSI. The comments must be assessed, considered, and addressed by the USFS in the final EIS or EA/FONSI.
1-FD-d.11 to 1-FD-d.12 – Respond to Comments; Final EIS or EA/FONSI
The USFS responds to comments received during the public comment period on the proposed amendment and the final EIS. The USFS must either incorporate substantive comments into the final EIS or explain why further response is not warranted. The USFS is required by 40 C.F.R. § 1503.4 to respond to comments in the final EIS in one of the following ways:
- Modify alternatives, including the proposed plan;
- Develop and evaluate alternatives not previously given serious consideration;
- Supplement, improve, or modify the analysis;
- Make factual corrections; and
- Explain why comments do not warrant further response, citing the sources, authorities, or reasons that support the agency’s position, and, if appropriate, indicate those circumstances that would trigger reappraisal or further response.
All substantive comments should be attached to the final EIS. The final EIS should correct errors in the draft EIS identified through the public comment process. 40 C.F.R. § 1502.9(c)(1) requires the USFS to prepare a supplement to the final EIS if substantial changes are made to the proposed action that are relevant to environmental concerns or if there is significant new information or change in circumstances that are relevant to environmental concerns.
If a final EA is prepared instead of an EIS, 36 C.F.R. § 220.7(b) requires it to include:
- The need for the proposal;
- The proposed action and alternative(s);
- The environmental impacts of the proposed action and alternative(s); and
- Agencies and persons consulted.
If a draft EA was issued for public comment, an analysis of the substantive comments should be included in the final EA.
1-FD-d.13 to 1-FD-d.15 – Begin Objection Filing Period with Public Notice; File Objections; Respond to Objections, If Necessary
Section B of 36 C.F.R. § 219 establishes a pre-decisional administrative review process, also known as an objection, for LMP amendments. Only individuals or entities who have submitted substantive formal comments during comment periods may object. 36 C.F.R. § 219.53. The objection must be filed with the reviewing officer for the plan, and it must include the following:
- The objector's name and address, along with a telephone number or email address if available;
- Signature or other verification of authorship upon request (a scanned signature for electronic mail may be filed with the objection);
- Identification of the lead objector, when multiple names are listed on an objection. Verification of the identity of the lead objector if requested;
- The name of the plan amendment being objected to, and the name and title of the responsible official;
- A statement of the issues and/or the parts of the plan amendment to which the objection applies;
- A concise statement explaining the objection and suggesting how the proposed plan decision may be improved. If applicable, the objector should identify how the objector believes that the plan amendment is inconsistent with law, regulation, or policy; and
- A statement that demonstrates the link between prior substantive formal comments attributed to the objector and the content of the objection, unless the objection concerns an issue that arose after the opportunities for formal comment. 36 C.F.R. § 219.54(c).
The USFS publishes a public notice to begin the objection period, unless no substantive comments were received during the comment periods, in which case no objection period is necessary. Written objections must be filed within 60 days following the publication date of the public notice. 36 C.F.R. § 219.56(a). The USFS must publish a notice of all objections within 10 days after the close of the objection period.
The USFS issues a written response to all objections within 90 days, unless that time period has been extended under 36 C.F.R. § 219.56(f). The response must set forth the reasons for the decision. The review and response to the objection is limited to the issues and concerns contained in the objection. The written response constitutes a final agency decision. The USFS official and the objector may meet before the written response is issued, at the request of either party, to discuss issues raised and possible solutions. Other interested parties must be allowed to participate and the meetings are open to observation by the public. See 36 C.F.R. § 219.57.
1-FD-d.16 to 1-FD-d.17 – Record of Decision or Decision Notice
The USFS must provide notification to the public after them amendment is approved. 36 C.F.R. § 219.16(a)(4). In addition, the USFS must record approval of the amendment in the decision document prepared according the USFS NEPA procedures. If an EIS is prepared, the decision document will be a Record of Decision (ROD). The ROD must include:
- The rationale for approval;
- An explanation of how the plan components meet the sustainability requirements of 36 C.F.R. § 219.8, the diversity requirements of 36 C.F.R. § 219.9, the multiple use requirements of 36 C.F.R. § 219.10, and the timber requirements of 36 C.F.R. § 219.11;
- A statement of how the plan amendment applies to approved projects and activities (36 C.F.R. § 219.15);
- The documentation of how the best available scientific information was used to inform planning, the plan components, and other plan content, including the plan monitoring program (36 CFR 219.3);
- The concurrence by the appropriate research station director with any part of the plan applicable to any experimental forests or experimental ranges 36 CFR 219.29b)(4); and
- The effective date of the plan amendment.
In addition, 40 C.F.R. § 1505.2 requires the ROD to identify and discuss all alternatives considered by the USFS during the NEPA process and state whether all practicable means to avoid or minimize environmental harm were adopted, and if not, why not.
If an EA/FONSI is prepared instead of an EIS, the decision document will be the decision notice. The decision notice must meet all of the requirements of 36 C.F.R. § 219.14(a), listed above. In addition, 36 C.F.R. § 220.7(c) requires the decision notice “document the conclusions drawn and the decision(s) made based on the supporting record, including the EA and FONSI.” 36 C.F.R. § 220.7(c)(1)-(9) requires the decision document include:
- A heading, which identifies the:
- The title of document;
- The agency and administrative unit;
- The title of the project; and
- The location of the action, including county and State.
- The decision and rationale;
- A brief summary of public involvement;
- A statement incorporating by reference the EA and FONSI if not combined with the decision notice;
- Findings required by other laws and regulations applicable to the decision at the time of decision;
- The expected implementation date;
- Administrative review or appeal opportunities and, when such opportunities exist, a citation to the applicable regulations and directions on when and where to file a request for review or an appeal;
- Contact information, including the name, address, and phone number of a contact person who can supply additional information; and
- The responsible Official's signature, and the date the notice is signed.
The amendment becomes effective on the date specified in the ROD or decision notice. In addition, 36 C.F.R. § 219.14(a) requires the USFS to notify the public when an amendment is approved.
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