LETTER: Governors highlight state consultation in Forest Service directive process

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March 17, 2016

Mr. Earnest Rawles
Acting Assistant Director
Office of Regulatory and Management Services – Directives and Regulations Branch
United States Forest Service
U.S. Department of Agriculture
1400 Independence Avenue, S.W.
Washington, D.C. 20227

Via: This email address is being protected from spambots. You need JavaScript enabled to view it.

RE: Request for Information Regarding Involving the Public in the Formulation of Forest Service Directives

Dear Mr. Rawles:

The Western Governors’ Association (WGA) appreciates the opportunity to provide comments on the Request for Information (RFI) Regarding Involving the Public in the Formulation of Forest Service Directives (80 FR 74740) of the U.S. Forest Service.


WGA represents the Governors of 19 western states and 3 U.S.-flag islands. The association is an instrument of the Governors for bipartisan policy development, information exchange and collective action on issues of critical importance to the western United States.

More than 75 percent of our national forest and grassland system is located in Western states. The Governors emphasize the importance of these public lands in their recently adopted WGA Resolution 2014-01, National Forest and Rangeland Management. Public lands are critical economic drivers, and they provide numerous conservation benefits, water supply, and recreational opportunities for Western communities and the nation.


Governors have a particular interest in improving the active management of federal forest lands. State governments possess trust authority over wildlife and forest resources. They also exercise primary authority and expertise over water management, as well as health and safety. Poorly managed forests can have significant widespread negative impacts on the landscapes and communities of the West. These include increased occurrences of catastrophic wildfire, poor air quality, degradation of rivers and streams, reduced forage for domestic livestock, impaired habitats for wildlife and fish, and the loss of forest products and jobs.

When the Forest Service undertakes land management planning proceedings or proposes directives, Governors and state governmental entities typically engage through the only process available to them – the public participation process. Accordingly, the Governors have a substantial interest in any changes the Forest Service may make to its public participation procedures. It is particularly critical that Governors be consulted if the proposed directive will impact states’ legal authority or if it will otherwise have substantial effects on states.


The Forest Service Directive System consists of the Forest Service Manual and Handbooks, which codify the agency's policies, practices, and procedures. As stated in Forest Service publications and materials, “The [directive] system serves as the primary basis for the internal management and control of all programs and the primary source of administrative direction to Forest Service employees.”

In the recent past, the Forest Service has issued or attempted to issue directives that are complex and substantive – and could operate as rules or regulations. These directives or proposed directives include: Groundwater Resource Management, Water Quality Protection Best Management Practices, Ski Resort Water Rights Clause, Land Management Planning, Year Round Recreation at Ski Resorts, and Wind Energy Special Use Authorizations.

The Forest Service indicates that it intends to move the Directive System away from Administrative Policy Act (APA) § 553 informal rulemaking notice-and-comment procedures to an abbreviated or streamlined process. (1) Governors are concerned with this prospective shift in Forest Service policy. Given the breadth of Forest Service lands in the West, this change would be particularly significant for Governors’ constituents. Any process that reduces the Forest Service’s responsibility to actively inform the public of its actions represents a retreat from openness and transparency.

It is equally important that the Forest Service engage Governors and states in a meaningful way, independent of its obligation to ensure public participation.


This Notice is only the most recent administration of a number of initiatives that concern Western Governors regarding the nature and scope of consultation of federal agencies with states. As stated in WGA Resolution 2014-09, Respecting State Authority and Expertise, “Western Governors support early, meaningful and substantial state involvement in the development, prioritization and implementation of federal environmental statutes, policies, rules, programs, reviews, budget proposals, budget processes and strategic planning.”

Governors expect federal agencies will expand opportunities for such involvement, particularly where states are working to help their federal partners improve management of federal lands within their states’ borders. Also, Governors expect the consultation process to respect states as sovereignties and full partners, not simply as stakeholders or members of the public. As the chief executive officers of their states, Governors can assist federal agencies in determining the best-situated state governmental entity with which to consult.

WGA respectfully requests that the Forest Service consult with Governors and state governmental entities with respect to any initiative, proposal or prospective policy impacting state authority or their constituencies. Such consultation should occur at the earliest stages of consideration, prior to publication of any proposal. WGA would like to work with the Forest Service to develop a state consultation process that reflects the unique position of states as sovereignties and full partners. (2)


As the Forest Service considers the consultation process with Governors and state governmental entities, the Governors request that it review the recent Groundwater Directive Process - an important case study on the need for early and meaningful consultation with the Governors.

On May 6, 2014, the Forest Service proposed a directive on groundwater resource management (76 FR 25815) (proposed groundwater directive). This proposed groundwater directive ignored state authority over water management and was published without prior substantive consultation with the Governors.

WGA repeatedly expressed its concerns about the proposed groundwater directive - Letter to Secretary Tom Vilsack (July 2, 2014); Comment Letter to Michael Eberle, WFWARP, Forest Service (August 21, 2014); Comment Letter to Elizabeth Berger, WFWARP, Forest Service (October 2, 2014); and Testimony of James D. Ogsbury, Executive Director, WGA to House Committee on Natural Resources, Subcommittee on Water, Power, and Oceans (April 14, 2015). After much controversy, Forest Service withdrew the proposed groundwater directive. This failed directive illustrates why any consultation process must be enhanced, not abbreviated or streamlined.

Western Governors are troubled that the Forest Service may be drafting another version of the groundwater directive without early, meaningful involvement of the Governors. We expect the Forest Service to engage with Governors before taking any action on a new version of the groundwater directive.

The Governors request the Forest Service to provide:

  • A written detail of consultation with Western Governors to date;
  • A list of governmental entities that the Forest Service has specifically consulted; and
  • A detailed timeline and plan for obtaining comments from individual Governors and state governmental entities.


The Forest Service should work to enhance and bolster the process. Any process that reduces the Forest Service’s responsibility to actively inform the public of actions represents a step backwards. Abbreviating or streamlining the process from the existing APA § 553 informal rulemaking notice-and-comment procedures will not enhance input provided by the Governors, state governmental entities and the public.

Governors encourage the Forest Service to engage in early, meaningful, and substantive consultation with the states on any change to the public participation process. The Governors also encourage the creation of a robust, independent consultation process for the states.

Should you have any questions about these comments or require additional information, please contact James D. Ogsbury, Executive Director, Western Governors’ Association.


Matthew H. Mead
Governor, State of Wyoming
Chairman, WGA

Steve Bullock
Governor, State of Montana
Vice Chair, WGA

(1) § 553 applies when an agency issues substantive rules, or regulations that affect the legal rights of private parties.
(2) WGA staff listened to both the December 15, 2015 public webinar and the January 12, 2016 webinar for members of WGA and Western States’ Water Council (WSWC). During both webinars, Forest Service staff discussed the reasons behind modifying the public participation process and possible changes that are being considered. However, no draft language or any other specifics were provided. The Governors wish to make clear that WGA and WSWC participation in such general webinars do not constitute consultation from the states’ perspective.

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