The Objection Goes to the Author

The Forest Service has rewritten the rules under which the public can object to a national forest project before it is approved. The final rule, “Project-Level Predecisional Administrative Review Process,” was published in the Federal Register on Tuesday 13 October at 91 FR 64760 and takes effect on 12 November. It shortens every stage of the process. It also changes who reads an objection: from November it goes to the official who wrote the decision being objected to.

The rule amends 36 CFR part 218, which since 2013 has given anyone who submitted specific written comments on a project the right to file a formal objection before the decision is signed. The Department of Agriculture says the existing comment and objection steps add “at a minimum, 120 to 150 days” to a project documented in an environmental assessment and 135 to 165 days to one that needs an environmental impact statement, and that no statute sets those lengths.

The clock

Under the rule text, the comment period is “15 days for a project or activity that is to be documented in an EA, or 30 days for a project or activity that is to be documented in an EIS, with no extension.” Under the regulation in force until November, comments on an assessment run for 30 days and on an impact statement for a minimum of 45. The February proposal would have cut them to 10 and 20 days; the department lengthened them after comment.

Objections must now be filed “within 10 days following the publication of the draft FONSI or 20 days following the publication of the draft ROD on a USDA website,” meaning the draft finding of no significant impact or draft record of decision, and “the objection filing period will not be extended.” Under the current rule the window is 45 days for most projects and 30 for hazardous-fuel projects under the Healthy Forests Restoration Act. The agency’s written response is due 15 calendar days after the filing period closes for an assessment and 20 for an impact statement, which an official one level up may extend to 35. The current rule allows 45 days, extendable by 30, for most projects. Responses are limited to five pages; objections to 15 pages for an assessment and 30 for an impact statement, excluding attachments.

The desk

The structural change is the reviewer. Since 2013 objections have gone to a separate reviewing officer at a higher level than the official who made the decision. The final rule “consolidates objection review with the responsible official who is most familiar with the environmental analysis and the issues raised,” and states that “an independent reviewing officer is not required by the statutory authorities” for the process, citing the Healthy Forests Restoration Act and section 428 of the Consolidated Appropriations Act of 2012.

The department added one check in response to comments about the loss of an independent review. Where a district ranger or a forest or grassland supervisor writes the response, an official at a level above the forest or grassland supervisor must concur before it is finalised and posted. The responsible official may still ask for an independent review, but is not required to. Objection-resolution meetings, previously provided for in the rule, are dropped as “not statutorily required,” though officials may still hold them.

Notice moves too. Project notices will be posted on Forest Service web pages instead of in newspapers of record or the Federal Register, with a new requirement to notify interested parties directly through tools such as email lists, and direct notification to Tribes.

Who commented

The department received about 2,270 comments on the February proposal, about half of them unique, including from 129 organisations: eight Tribal governments, sixteen state governments, seven local governments, sixteen businesses and industry groups, 81 non-governmental organisations and one educational institution. Its summary says commenters “generally expressed concerns” that the changes would reduce meaningful participation and increase legal and operational risk, while some supported shorter periods and the end of the reviewing officer as a way to cut redundancy. The department’s responses to those comments are in the rule; who files comments shapes what such responses have to address.

Why the length matters

The objection is not only a chance to be heard. For hazardous-fuel projects, the Healthy Forests Restoration Act allows a lawsuit only from someone who has first gone through the administrative review, and objectors generally must have commented earlier to object at all. A shorter comment window therefore narrows who can object, and a shorter objection window narrows what reaches a court.

Projects already under way are sorted by date. Those that published their notice of comment before 6 February stay under the old rule; those that published between then and 12 November without warning that the new rule might apply also stay under the old rule; those that did warn are governed by whichever rule is in force when their objection period opens. Everything noticed after 12 November follows the new one. The rule is separate from the department’s office closures and relocations, which a federal judge stayed this week in a different case.