Draft Forest Planning Rules: Spotlight on species diversity

Posted: Dec 9, 2019

This entry has been updated substantially here, where most prior comments have been addressed.

The updated version was developed at the conclusion of the National Planning Rule Forum held in Washington, D.C. on March 10, 2011. To the extent possible, it reflects the comments and questions raised at that forum.

By Mark Squillace, Director, Natural Resources Law Center, University of Colorado at Boulder

The much-anticipated draft Forest Service land use planning rules were published in the Federal Register earlier this month. My initial thoughts on the entire document are posted here.

This entry is a focused look at what the Forest Service has to say about managing the "diversity of plant and animal communities," and how that needs to change.

Overall, this section (proposed 36 CFR §219.9) warrants some substantial rethinking and clarification. The general intent behind this section seems appropriate. Efforts to maintain the diversity of native species, contribute to the recovery of threatened and endangered species, conserve candidate species, and maintain populations of “species of conservation concern” are all laudable goals.

Maintaining the diversity of native species

It is hard to see how any of these requirements will be especially meaningful in the context of land use planning. The first subsection (subsection (a)) requires the agency to “maintain the diversity of native species.”

Unfortunately, this requirement seems vague and not particularly meaningful. Is the agency responsible for maintaining the diversity of every native species? If not, who decides which native species warrant protection? If climate change requires adaptation in such a way that the protection of certain native species does not make sense, is the agency free to simply ignore this requirement?

It would certainly seem problematic to maintain the health of a native species in decline because the ecology of an area is changing, perhaps due to climate change, but making such a judgment is fraught with difficulties since the decline of species is often due to myriad factors.

Conserving candidate species

Subsections (b)(1) and (2), which focus on species that are listed under the Endangered Species Act (ESA), really adds nothing to the requirements of that law. In particular, Section 7(a)(1) of the ESA already requires all federal agencies to conserve listed species. Conserving candidate species (that is, species being considered for listing under the ESA (see 50 CFR 424.12(d)) is not specifically required by the ESA and the Forest Service should be applauded for extending its conservation responsibility to such species. But it would be foolhardy to ignore such species during planning since management flexibility could be severely compromised if such species are ultimately listed as threatened or endangered.

Species of conservation concern

Subsection (b)(3) requires the agency to “[m]aintain viable populations of species of conservation concern.” The phrase “species of conservation concern,” is defined in section 219.19 as a species that is not listed or is not a candidate for listing under the Endangered Species Act, but whose “capability to persist over the long term in the plan area” is nonetheless in doubt.

As with candidate species, it makes good sense for the Forest Service to pay close attention to species that are in decline or are at risk. But the rules do not impose any particular obligation to identify any particular species of conservation concern, and it would not be surprising if the responsible officials limited their designations to candidate species, since they will be required to protect these species anyway.

More troubling is the fact that the initial statement in this section of the rule, which requires the agency to maintain viable populations of species of conservation concern, is followed by a sentence that I found largely unintelligible, but which clearly seems designed to undercut the obligation to maintain viable populations:

“Where it is beyond the authority of the Forest Service or the inherent capability of the plan area to do so, the plan components must provide for the maintenance or restoration of ecological conditions to contribute to the extent practicable to maintaining a viable population of a species within its range. Proposed 36 CFR 219.9(b)(3).”

If the intent of this language is to give the agency a pass at maintaining viable populations of species of conservation concern, it needs to explain and justify this position more clearly and transparently.

First, it is entirely unclear how such an obligation would ever be beyond the agency’s authority. It is a bit easier to see how a plan area might be inherently incapable of sustaining viable populations. And if the conditions that give rise to this situation are caused by human disturbance then restoring the ecological integrity of these areas makes sense. But the language is so equivocal as to make this requirement virtually meaningless.

Focal species

Even more puzzling is the agency’s separate treatment of a new category of species described as “focal species.” These are defined in section 219.19 as “a small number of species selected for monitoring whose status is likely to be responsive to changes in ecological conditions and effects of management….”

Oddly, however, these species are only mentioned again in the context of monitoring and are not part of the rule providing for the diversity of plant and animal communities. Moreover, as with “species of conservation concern,” there is no requirement to actually designate focal species and the definition is so vague that it is impossible to know what the agency has in mind.

Interestingly, the preamble to the rule contains a lengthy discussion of the focal species idea. That discussion makes clear that “several categories of species … could be used to inform the selection of focal species, [including] … indicator species, keystone species, ecological engineers, umbrella species, link species, species of concern, and others.”

But the preamble goes on to say that it does not expect “that a focal species [will] be selected for every element of ecological conditions.” Rather, the agency may choose “to monitor a small number of focal species … to properly assess the relevant ecological conditions across the planning area, within the financial and technical capabilities of the Agency.”

No doubt, preserving the integrity and stability of the biological communities in a forest is among the most difficult challenges facing the agency. Perhaps this explains the lack of specificity in the draft rules, and their failure to describe with more clarity how they intend to accomplish that goal. And, given the expense involved in gathering reliable population data, the agency’s unwillingness to commit itself to monitoring populations of particular species is understandable. But surely more can be expected here.

Mapping ecosystems

With that in mind, I would like to make the following suggestion. At the heart of this suggestion is a request that the agency commit itself to mapping the ecosystems of the forest and the surrounding landscapes, including portions of landscapes that are outside forest boundaries. These maps should include information about the condition of these ecosystems and their potential for restoration. So, for example, each area could be identified as “intact,” “modestly degraded,” “moderately degraded,” or “severely degraded.” These areas also could be described as having “low,” “moderate” or “high” potential for short- and long-term restoration.

These maps should also contain information about whether individual areas serve as actual, probable, or possible host to listed species, candidate species, species of conservation concern, and focal species. In their first iteration, these maps will be imperfect. But the Forest Service already has much of the information needed to produce these maps, and the maps will surely get better over time. The information contained in these maps should then be used to inform the collection of new data, including, where appropriate, population data for various species.

Ideally, this mapping exercise will allow the Forest Service to better determine whether it is maintaining viable populations of the various species that it is watching, and it will also help inform changes to the assessment, and amendments to the management and monitoring plans developed for each forest.

Finally, these maps could form the basis for a restoration plan for the forest. Which areas should be targeted first and why? Which areas are most critical to conserving important species? In what areas would restoration provide the most bang for the buck?

Most of us who have been following forest planning for many years understand the critical role of species conservation to forest management. We also appreciate the difficult, even daunting task, that the agency faces. But the draft rules do not go nearly far enough to confront the problem. Much more needs to be done, and I hope that this discussion and recommendation will help lead to some significant changes to the current draft rules.

I'll look forward to reading your comments on these suggestions below.
Learn how to submit public comment on the proposed Planning Rules
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