The U.S. Forest Service finished work on revisions to its environmental permitting regulations that environmentalist groups said could include broad changes to how the agency reviews the impacts of mining activities and other forms of development.
The Forest Service sent a final rule to the Office of Management and Budget, or OMB, on April 7 that would revise its procedures for reviewing projects and permits under the National Environmental Policy Act, or NEPA. It is the last iteration of a proposed rulemaking released in June 2019 that sought comment on ways to streamline its NEPA reviews, part of a larger Trump administration effort to reduce the time the government takes to scrutinize the impacts of its actions, including permitting natural resource extraction. The agency expects to complete the final action in April, though the OMB is allowed to review a rule for 90 days, and there is no minimum period for review.
When the Forest Service released the proposed changes in an advance notice of proposed rulemaking, it said the move was designed to give officials flexibility when addressing wildfires, insect infestations and disease outbreaks and when approving infrastructure for recreational activities such as trails and campgrounds. However, the notice also included provisions that would waive certain mining and energy-related activities from requiring thorough scrutiny under NEPA by making them eligible for a so-called categorical exclusion. Under this exclusion, officials determine that the action would have no significant impact on the environment and therefore does not need to be reviewed. The provisions would also establish a 640-acre threshold for mining operations requiring an environmental impact statement, the most comprehensive form of NEPA review.
Aaron Mintzes, senior policy counsel for Earthworks, said in an interview that Earthworks sees the potential for hard-rock mining activities to "completely escape NEPA review" if the final rule aligns closely with the notice. "Part of what this proposal does is gut NEPA with a thousand cuts," Mintzes said.
Allies of the mining industry in Washington, D.C., said aspects of proposed hard-rock mining projects on Forest Service land, such as the BHP Group/Rio Tinto Resolution copper joint venture in Arizona and Antofagasta PLC's Maturi copper-nickel-platinum project in Minnesota, can spend years under NEPA review because the agency and other sections of the federal government use cumbersome and outdated rules that have not kept up with modern industry practices and technological advancements.
Easing NEPA requirements for these activities would be in line with the Trump administration's push to promote domestic sourcing of minerals considered critical to national and economic security as recommended in a U.S. Commerce Department report issued June 4, 2019. The Forest Service issued its notice June 12, 2019.
In its June 2019 notice, the Forest Service proposed allowing officials to issue categorical exclusions for approving mineral, energy or geophysical investigations and support activities requiring cross-country travel by vehicles and equipment, construction of less than 1 mile of low standard road, or use and minor repair of existing roads. Examples of potential activities included authorizing geophysical investigations that use existing roads that may require incidental repair in order to reach sites for drilling core holes, temperature gradient holes, or seismic shot holes; gathering geophysical data using shot hole, vibroseis, or surface charge methods; and trenching to obtain evidence of mineralization.
The notice also proposed clarifying existing regulations to state that regulators conduct an environmental impact statement for mining operations that involve surface disturbance on greater than 640 acres over the life of the proposed action. Environmental groups opposed this language in public comments filed in response to the notice, declaring the language "unlawful. The groups claimed it would encourage Forest Service to prepare a less intensive review called an environmental assessment for creating road networks, waste rock dumps, leach piles, and "massive" pits as large as 1 square mile.
The Forest Service said the final rule submitted for OMB clearance is "responsive to procedural and public engagement issues" identified during the public comment period for the advance notice of proposed rulemaking, but the agency declined to comment on the environmentalists' comments or the specific proposed regulatory changes related to mining. An OMB spokesperson could not be reached for comment.