Administrative Review

The DOI BLM administrative review process was not modified by the HFRA.

Section 105(a) of the HFRA replaces the USDA Forest Service’s administrative appeals process with an objection process that occurs before the decision approving authorized fuel-reduction projects under the act. The Secretary of Agriculture has established interim final regulations for a predecisional administrative review process for authorized hazardous-fuel reduction projects on NFS lands. The interim final rules were published January 9, 2004 (69 FR 1529, http://www.regulations.gov/fredpdfs/04-00473.pdf).

Only authorized hazardous-fuel reduction projects, as defined by the HFRA (Section 101(2)), on NFS lands that have been analyzed in an EA or EIS are subject to these special procedures.

Participation in the predecisional review process is available to individuals and organizations who have submitted specific written comments related to the proposed authorized hazardous-fuel-reduction project during opportunities for public comment provided when an EA or EIS is being prepared for the project (Section 105(a)(3), 36 CFR 218.6).

Written objections, including any attachments, must be filed with the reviewing officer within 30 days after the publication date of the legal notice of the EA or final EIS in the newspaper of record (Section 218.4(b)). It is the responsibility of objectors to ensure that their objection is received in a timely manner.

Before the issuance of the reviewing officer’s written response, either the reviewing officer or the objector may request to meet to discuss issues raised in the objection and their potential resolution. The reviewing officer has the discretion to determine whether or not adequate time remains in the review period to make a meeting with the objector practical. All meetings are open to the public.

The reviewing officer will issue a written response, but is not required to provide a point-by-point review, and may include instructions to the responsible official, if necessary. In cases involving more than one objection to a proposed authorized hazardous-fuel-reduction project, the reviewing officer may consolidate objections and issue one or more responses.

The responsible official may not issue a record of decision or decision notice concerning an authorized hazardous-fuel-reduction project until the reviewing officer has responded to all pending objections.

Judicial Review

Persons may bring a civil action challenging an authorized hazardous-fuel-reduction project in a Federal District Court only if they raised the issue during the administrative review process and they have exhausted the administrative review process established by the Secretary of Agriculture or the Secretary of the Interior.

Section 106 of the HFRA establishes direction governing judicial review of lawsuits challenging hazardous-fuel-reduction projects authorized under the act. The section:

• Requires lawsuits to be filed in the U.S. District Court where the project is located (Section 106(a)).
  
  
• Encourages expeditious judicial review of authorized fuel-treatment projects (Section 106(b)).
  
  
• Limits preliminary injunctions and stays to 60 days, subject to renewal. At each renewal, parties to the action shall provide the court with updated information on the project (Sections 106(c)(1) and (2)).
  
  
• Directs courts to balance the impact of the short- and long-term effects of undertaking or not undertaking the project when weighing the equities of any request for an injunction of an authorized hazardous-fuel-reduction project (Section 106(c)(3)).

Documentation

The agencies’ analyses and documentation of the short- and long-term effects of action or taking no action (figures 16 and 17) will be important to the court’s evaluation of any request for injunctive relief.

Figure 16—The Bucktail fire burned through this treated stand on the
Uncompahgre National Forest in western Colorado. Burning within
the stand was low intensity and patchy, despite the
dead trees and branches on the forest floor.

Figure 17—This stand (adjacent to the stand shown in figure 16)
burned much more intensely the same day. Because this stand
had not been treated, environmental damage was significantly greater.

Although a no-action alternative does not always have to be considered for HFRA-authorized projects, it is important that the specialists’ report retained in the project files document the anticipated short- and long-term effects of proposed HFRA treatments.

The analysis and documentation for the short- and long-term effects of action or taking no action are intended to be integrated with the analysis and documentation done under current NEPA guidance and other relevant guidance.

Documentation from the long list that follows would include only information directly relevant to evaluating the short- and long-term effects of implementing or not implementing the proposed project:

Fuel Conditions and Fire Behavior

• Describe the area based on the type of fire and fire behavior expected in foreseeable fire scenarios.
  
  
• Address the short- and long-term effects of proposed treatments and of taking no action.
  
  
• Describe the desired condition from a fire-behavior perspective. What target fuel conditions will provide a change in unwanted fire behavior to meet the description of purpose and need in the EA or EIS? Include a description of the results of taking no action. What is likely to happen if the fuel conditions are not treated?
  
  
• Provide maps of recent fires and photos of present conditions. Describe in words, computer simulations, photographs, or some combination of the three, what the area will look like with and without treatment.
  
  
• Gather and document pertinent scientific information.

Threatened and Endangered Species

• Document the presence of threatened or endangered species, or of any threatened or endangered species that potentially could be affected, either by wildland fires (with or without fuel reduction) or by the fuel-reduction action itself.
  
  
• Document the importance of fire (wildland or prescribed) to any threatened or endangered species or to the ecosystem on which they depend.
  
  
• Document the risk of future wildland fires, including fires of different intensity.
  
  
• For any threatened or endangered species involved:
  
  
  • Document the threats or benefits that are possible or likely from future wildland fires if hazardous fuel is not reduced.
    
    
  • Document which habitat components would be improved by hazardous-fuel reduction, even if wildland fires never occur.
    
    
  • Document which habitat components would be protected from the adverse effects of future wildland fires by hazardous-fuel reduction.
    
    
  • Document which habitat components would be improved by wildland fires because hazardous-fuel reduction will change the fire regime or condition.
    
    
• For the above evaluations, document both the short- and long-term (or any other relevant timeframe) situations regarding such risks, threats, benefits, components, and effects.

Insects and Disease

• Describe the hazard- or risk-assessment procedures used (such as published risk assessments, local guidelines, or field visits by consulting entomologists or pathologists).
  
  
• Describe procedures used (such as field survey, inventory data, or aerial photo interpretation) to establish vegetative conditions when assessing the hazard or risk (see Glossary) associated with insects and diseases within the stand or landscape.
  
  
• Include maps of recent or current disturbances, such as insect or disease activity, wind throw, ice damage, and so forth, including estimates of the disturbances’ effects.
  
  
• Provide treatment alternatives with supporting literature describing how they address the description of purpose and need in the EA or EIS.
  
  
• Address the short- and long-term effects of proposed treatments and of taking no action.
  
  
• Discuss treatment methods that are not appropriate—for example, the limited scope of the proposed treatment may not effectively address the disturbance.
  
  
• Document any consultation with entomologists or pathologists.

Municipal Watersheds and Water Supplies

• Describe the expected effects of the worst-case fire scenario on water supply, water quality, contaminants, and water supply facilities, including the immediate and long-term effects on watershed functions and human uses.
  
  
• Provide a similar analysis of the expected effects if no fuel-reduction measures are implemented within the municipal watershed or close to the water system infrastructure, over the short and long terms.
  
  
• Evaluate the list of factors included in the At-Risk Municipal Watersheds section of this Field Guide to inform the decision-maker of the short- and long-term consequences of taking no action and of implementing the proposed fuel-reduction projects.
  
  
• Include copies (or references to them) in the files of available published and unpublished reports, data, and any other information about the municipal watershed and the community water supply system. Maps or descriptions of the water intake locations, pipelines, and treatment facilities are considered to be sensitive data and must be kept in locked, secure cabinets or computers, or as otherwise required by the U.S. Environmental Protection Agency and the U.S. Department of Homeland Security.

General information on the scientific basis for modifying wild­land fire behavior and severity by changing forest structure can be found in the Rocky Mountain Research Station’s report RMRS–GTR–120 (see References).