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Washington Journal of Environmental Law & Policy

Abstract

The U.S. Forest Service is required to manage the national forests for multiple use, including outdoor recreation, timber production, and more recently, biodiversity conservation. National forest management plans throughout the country are currently being revised under the 2012 Planning Rule. As will be discussed, the 2012 rule provides the Agency with high levels of discretion and management flexibility. The rule does not require maintaining viable populations of all native plant and animal species. The Agency is required to conserve viable populations of “species of conservation concern,” yet the Regional Forester is granted sole discretion in designating these species. The 2012 rule is highly controversial, primarily for the reason that it grants the Agency too much discretion. Wildlife management and policy experts are concerned that the biodiversity provisions within the rule will prove ineffective in the conservation of native wildlife. On closer examination, the conservation mandates presented by the 2012 rule regarding species of conservation concern, and other at-risk species, are actually quite strong, and if strictly followed would influence every aspect of national forest management and effectively constrain agency discretion. Properly understood, the 2012 Planning Rule provides a mix of strong biodiversity provisions with agency discretion and management flexibility. The key to effective biodiversity conservation in the national forests, and an equitable balance of interests, is to ensure that the conservation mandates for at-risk species are genuinely met, at both the management plan and individual project levels. The National Evironmental Policy Act (NEPA) plays an essential role. NEPA regulations remove biodiversity conservation in the national forests from the high levels of discretion and subjectivity granted the Agency by the 2012 rule, providing the strong biodiversity provisions within the rule the strength they have. The 2012 Planning Rule, in the context of NEPA, provides a potentially effective means of conserving native biodiversity in the national forests.

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