HEARING - H.R. 3102

June 18, 2004

House bill would give NEPA process to universities

Allison A. Freeman, Greenwire reporter

Congress is considering a proposal that would put universities rather than government regulatory agencies at the helm of the environmental review process for grazing allotments in Arizona and New Mexico.

The bill would allow the Agriculture Department to enter into cooperative agreements with land-grant institutions in the two states for 10-year plans and studies required by the National Environmental Policy Act. Under the proposal, New Mexico State University, the University of Arizona and Northern Arizona University would conduct the NEPA studies.

The bill would also revamp the Endangered Species Act requirement for full consultation between the Forest Service, which manages much of the federal government's grazing lands, and the Fish and Wildlife Service by placing just one FWS employee on NEPA review teams.

The measure, introduced by Rep. Steve Pearce (R-N.M.) last fall, reflects a broader effort by Republicans in the White House and Congress to streamline environmental reviews. Last year's Healthy Forest Restoration Act, for example, contained similar streamlining provisions to those being offered in the grazing bill. The Bush administration has already proposed changes this year to its grazing policy and NEPA review process.

Pearce said the bill is important to protect ranching in his home state, where the Forest Service has a backlog of grazing permit applications and insufficient data on which to base its reviews. The agency is fighting a congressional deadline to complete outstanding NEPA analyses of 4,100 allotments by 2010

But environmentalists have said the Pearce bill would threaten rangeland and species and undermine ESA protections.

NEPA requires the Forest Service to complete environmental impact analyses for all of its grazing permits. The process, which includes opportunities for public comment on six or seven alternatives, usually takes more than two years for each allotment, according to Forest Service officials.

The issue is further complicated in New Mexico and Arizona, where there is tension between environmental groups, the Forest Service and owners of grazing allotments, according to lawmakers who attended a hearing on the bill yesterday.

Environmentalists say cattle grazing causes many environmental problems, including streambank erosion, soil compaction and loss of plant diversity. Groups have increasingly used NEPA and ESA to challenge grazing permits in the courts, filing multiple challenges to grazing permits in New Mexico and Arizona on grounds they do not provide enough protection for endangered and threatened species.

Randy Moorman of Environmental Defense said the Pearce proposal would undermine protections for wildlife, removing needed environmental reviews and cutting the public out of the decisionmaking process.

At least one academic, Joseph Feller of Arizona State University, concurred with that view in his testimony yesterday before a House resources subcommittee. He said NEPA consultations require independent oversight, but the land grant institutions have been historically allied with the farming and ranching industry. Further, the institutions have research abilities but do not have the structure to oversee a public comment process, he said.

But John Fowler of New Mexico State University said research from the universities is desperately needed since the Forest Service often relies on data from the 1960s in making its decisions. "You cannot do an environmental assessment for NEPA unless you have an assessment of the environment, the rudimentary basics," Fowler said. "We've lost the basics and put in the cart in front of the horse."

Agriculture Undersecretary Mark Rey said his department has some reservations about the appointment of a single FWS employee to the NEPA team to satisfy ESA requirements, since the NEPA process and ESA process are not the same. Further, he said if the universities took over all range analysis and planning, it could take away from the Forest Service's role in managing rangelands.

Nevertheless, Rey did not discount the proposal. "I'm happy to work with Mr. Pearce and the subcommittee to reconcile those differences as the legislation moves forward," he said.

Rey said the NEPA process has taken too much of the agency's resources, keeping it from performing needed rangeland checks and collecting data.

The following is an excerpt from the testimony of Darrel Allred of Glenwood NM, representing Save Our Rural Economy.

....The USFS is trying their best to get the job done. However, due to the condition of our nation’s forests, the increase in wildfires, and the constant barrage of lawsuits filed by environmental groups, they can no longer keep up. Over the past few years, there is usually just a skeleton crew in our district office who sees to the day to day operations. All other personnel are out fighting fire. This is also a critical time of the growing season when data needs to be collected concerning grazing analysis on allotments, not to mention that all work is put on hold until personnel have returned back to their usual duties. This means NEPA on an allotment can take years. During which time, there is usually some type of change in personnel, a new district ranger or range consultant, and the way data is collected and viewed changes completely. It’s like starting the whole process over. There are also inconsistencies from district to district as to how data is collected and processed. Many districts are still using the old cage and clippings method, instead of becoming up to date on current methods and technology and letting the rancher become more involved with monitoring and decision making. The USFS also uses seasonal, unqualified employees for the purpose of collecting data and performing surveys, which can greatly affect allotments.

For example, Marinel Poppie is a local rancher, she purchased the commensurate or deeded property from a three generation ranching family in 2001, who waived their grazing preference to her and therefore she also acquired the grazing permit for the Roberts Park Allotment on National Forest land. The Roberts Park Allotment was transferred to Ms. Poppie at 396 head of cattle and 8 horses. On June 13, 2003 the Glenwood District Ranger, Larry Raley, sent out a proposed action to authorize cattle grazing on the Roberts Park Allotmenti. The proposed action was to issue a 10-year grazing permit that authorized up to 240 head of livestock per year, a cut of 156 head of cattle, approx. 35%. This letter of notice was sent out without any notice to Ms. Poppie. The letter was also sent out on Wilderness District letterhead with comments to be received by all interested parties by July 16, 2003 and stated that there were only 5 pastures located within the allotment, when there are actually 7. This proposed action was typed up and sent out without any type of on the ground data being performed. When Ms. Poppie asked for a copy of all the data that had been collected to generate this action, she was given a one-page hand written document from 1998ii. This document indicated, only ocular surveys had been performed, but it didn’t specify who had collected the data, why or where it was collected from on her allotment. Ms. Poppie then had to hire her own Range Consultant at her expense to actually come out to her allotment and collect data. The findings were significantly different from the USFS findings. The USFS then had their personnel go out to the allotment and collect data; their findings were very close to the private range consultant.

The NEPA process on the Roberts Park Allotment is currently ongoing and Ms. Poppie is constantly attending meetings/negotiations and getting help from the outside to show the improvements and forage are in place to graze the current numbers on her allotment. During this time there has been at least four changes in personnel, a new district ranger and three different range consultants. The range consultant who started the proposed action on the allotment has been transferred to the Supervisor’s office over the district to a position on the NEPA Planning Team. He as taken personal offense to his decision being challenged and is part of the reason the process is being held up on this particular allotment.

Another example of problems with the current system in place happened in January of 2003. A rancher in our area, Mr. Hugh B. McKeen, who has the Cedar Breaks Allotment, was told he had to remove his cattle off of the allotment, because the current pasture is was utilizing, the Stout Mesa pasture, was at the available forage limits and the rest of the allotment pastures were at the same or worse conditions. Shortly after removing his cattle, the Glenwood Ranger District hosted a range monitoring class for area ranchers for the purpose of teaching the ranchers the new range monitoring method, the Holechek stubble heighth method, the district was implementing. The NMSU Range Task Force personnel attended, including Dr. Jerry Holechek, who developed the method.

After discussion, the group went out on the ground to show how to perform the method on the ground. It was decided to go to the Stout Mesa pasture on the Cedar Breaks Allotment. Mr. McKeen was present and agreed. After the group arrived, the Range Consultant for the USFS, Glenwood Ranger District, Mr. Ed Halloway started telling the group according to the new method being put into place the available forage within the pasture was only 20% and 80% had already been utilized. Dr. Holechek decided to go ahead and just do some on the ground teaching and check the pasture. They had gone to one of the key areas so Dr. Holechek started showing the group how to collect the data and perform the methods is order to get your results. Dr. Holechek then told Mr. Halloway he was quite wrong, only 20% of the forage had been utilized and 80% was still available. He then proceeded to ask Mr. Halloway if he had been asleep in class that day has Mr. Holechek had taught Mr. Halloway in college.

Approx. six weeks after this class, the Glenwood District Ranger, Mr. Larry Raley sent out a letter to all the ranchers stating the district would implementing a new range monitoring system which would include only some or parts of the Holechek system. This is an example of the mad scientist approach to range monitoring and analysis as the method being used would never be able to be backed up in court, as the USFS is not using a tried and proven method. Mr. McKeen was not allowed to put his cattle back and eventually suffered a 25% cut on his allotment numbers.

One last example of the problems with the USFS doing their own analysis is shown on the Catwalk National Recreation Trail/Whitewater Picnic Area or Catwalk. The Catwalk was in need of some repairs and maintenance, so the Glenwood District Ranger, Larry Raley, decided to rebuild the old Catwalk and build a new handicap accessible trail on the other side of Whitewater Creek along the canyon wall. Instead of performing an EA or an EIS, the USFS used a Categorical Exclusion and in the biological assessment for the project they determined that the project would have “no effect” on loach minnow or spikedace, two endangered species of the area, yet on allotments in the area the USFS found their would be “a likely to affect” concerning cattle grazing. The USFS proceeded with the project and performed major blasting along the canyon walls in order to install the new trail, which sent all kinds of debris and sediment into the creek, not to mention all of the equipment which was used in the canyon, driven back and forth up the streambed. A complaint was filed with the Fish & Wildlife Service (F&WS). Upon their investigation they found the USFS to be in violation of the Endanger Species Act under 7(a)(1)iii.

These are just some of the examples with the problems, inadequacies and inconsistencies with the grazing analysis program and how the NEPA process is currently being performed. Our organization believes HR 3102 will make a huge difference in the condition of the forest, especially in rangelands, and make a huge tax savings to the taxpayers of this country....

TEXT OF H.R. 3102

108th CONGRESS

1st Session

H. R. 3102
To utilize the expertise of New Mexico State University, the University of Arizona, and Northern Arizona University in conducting studies under the National Environmental Policy Act of 1969 in connection with the grazing allotments and range and continuing range analysis for National Forest System lands in New Mexico and Arizona, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

September 16, 2003
Mr. PEARCE introduced the following bill; which was referred to the Committee on Resources



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A BILL
To utilize the expertise of New Mexico State University, the University of Arizona, and Northern Arizona University in conducting studies under the National Environmental Policy Act of 1969 in connection with the grazing allotments and range and continuing range analysis for National Forest System lands in New Mexico and Arizona, and for other purposes.


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. COOPERATIVE AGREEMENTS FOR STUDIES RELATED TO FOREST SERVICE GRAZING ALLOTMENTS, NEW MEXICO AND ARIZONA.

(a) USE OF STATE COOPERATIVE INSTITUTIONS-

(1) COOPERATIVE AGREEMENTS- The Secretary of Agriculture shall enter into a cooperative agreement with the State cooperative institutions specified in paragraph (2) to use such institutions to conduct all studies required by the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) and perform related activities in connection with the 10-year plan of the Forest Service grazing allotments for National Forest System lands in New Mexico and Arizona.

(2) COVERED INSTITUTIONS- The State cooperative institutions referred to in paragraph (1) are New Mexico State University, the University of Arizona, and Northern Arizona University.

(b) COVERED STUDIES- The studies and related activities referred to in subsection (a) shall include at a minimum the following:

(1) Range studies.

(2) Human dimension studies.

(3) Economic impact studies.

(4) Cumulative effects shown in all studies.

(5) Involvement in the planning and implementing of the 10-year plan.

(6) Water quality studies.

(c) RANGE ANALYSIS- The Secretary shall also utilize the State cooperative institutions specified in subsection (a)(2) to perform all range and continuing range analysis for National Forest System lands in New Mexico and Arizona, including the following activities:

(1) Monitoring, including the conduct of vegetative monitoring to determine long-term conditions and trends, as consistent with the Public Rangelands Improvement Act of 1978 (43 U.S.C. 1901 et seq.), Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), and the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.).

(2) Involvement in consultation required by section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).

(3) Involvement in the planning and implementation of annual operating plans.

(d) RELATION TO ESA CONSULTATION REQUIREMENT- The United States Fish and Wildlife Service shall assign an employee to serve as a member of the NEPA study team. Assignment of this employee shall be deemed to satisfy the consultation requirements of section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536).

(e) FUNDING- There is authorized to be appropriated to the Secretary $10,000,000 to carry out this section. The Secretary may also utilize savings realized by reduction in Forest Service costs due to competitive outsourcing, as proposed by Office of Management and Budget Circular A-76.