Appeal Deciding Officer Forest Supervisor Leanne Marten. The Responsible Official was not able to resolve any of the appeal issues informally.

Transcription

1 Forest Service Ottawa National Forest Kenton Ranger District 4810 E. M28 Kenton, MI (906) (906) (FAX) (906) (TTY) File Code: 1570 Date: May 5, 2011 Route To: Subject: To: Appeal of the Decision Notice and Finding of No Significant Impact for the De Young Project Environmental Assessment, Allegheny National Forest (ANF), Appeal # A215 Appeal Deciding Officer Forest Supervisor Leanne Marten This letter constitutes my recommendation for the subject appeal filed on behalf of the Allegheny Defense Project on the De Young Project on the Allegheny National Forest (ANF). District Ranger Robert Fallon signed this Decision Notice and Finding of No Significant Impact (DN/FONSI) on January 28, The legal notice was published in The Kane Republican on February 4, My review was conducted pursuant to 36 C.F.R. 215 Notice, Comment, and Appeal procedures for National Forest System Projects and Activities. To ensure the analysis and decision are in compliance with applicable laws, regulations, policies, and orders, I have reviewed and considered each of the Appellant s issues and the decision documentation submitted by the ANF. My recommendation is based upon review of the Project Record (PR) including but not limited to, the scoping letter, public comments, DN/FONSI (DN), and the Environmental Assessment (EA). The Responsible Official was not able to resolve any of the appeal issues informally. Background The De Young Project does not involve the issuance of Notices to Proceed for outstanding or reserved oil and gas development (OGD) on the ANF. Instead, the De Young Project involves actions that address other multiple-use resource management goals and objectives including vegetative management to enhance habitat diversity, control of the spread of non-native invasive species, introduction of large woody debris to streams to improve riparian function, reforesting plugged well sites, and maintenance of the existing roads, including expansion of stone pits, to provide a safe and economical transportation system. This project was first proposed in January of 2010 on the Schedule of Proposed Actions for the ANF. On November 30, 2009, a detailed scoping report was made available to the public that explained the need for the action, as well as the location and types of activities. The proposal was posted on the Forest website and mailed to 411 individual and organizations, including adjacent landowners and subsurface mineral owners (DN p. 4). A news release was sent to the local media. Four comments were received (PR Bk 1, tabs 10, 11, 13, 14). Two significant issues were developed from scoping. On August 5, 2010 the EA was mailed to those interested parties who submitted comments during the scoping period. A legal notice was published in the paper of record, a news release was sent to local media and the EA was posted to the ANF website. There was one comment It s Cool to Be Safe Printed on Recycled Paper

2 letter during the 30-day comment period (PR Bk 1, tabs 23-24). After review of the comments, a third alternative was developed to respond to the significant issues and the responsible official decided to revise the EA with a new 30-day comment period. On November 24, 2010, the revised De Young EA was mailed to those interested parties who submitted comments during the scoping period. Once again a legal notice was published in the paper of record, a news release was sent to local media, and the EA was posted to the ANF website (DN p. 5). One response was received during the 30-day comment period; it was from the Appellant (PR Bk 2). The project analysis was informed by a considerable body of scientific information and data including that compiled during revision of the Forest Plan. The project analysis was appropriately tiered (40 C.F.R ) to the programmatic Environmental Impact Analysis (EIS) developed for the revised Plan concerning vegetation management. Likewise, the most recent science and analysis developed for the supplemental Forest Plan EIS prepared in response to the Chief s instructions in the administrative appeal decision for the revised 2007 Forest Plan was also taken into consideration in project development, as well as the public involvement for the supplemental programmatic EIS. In addition, the EA was informed by the record compiled for the Transition EIS, a Forest-wide environmental analysis to authorize reasonable access for site-specific proposals to develop reserved and outstanding mineral rights with provisions to mitigate impacts to surface resources. Both of these NEPA analyses overlapped in time with De Young project development. Although the De Young project did not involve reserved and outstanding mineral development, the information contained in the records for these separate NEPA analyses was particularly helpful in evaluating the cumulative effects of future oil and gas operations within the De Young project area (DN p. 3 and 9). In addition, the De Young Interdisciplinary Team (IDT) likewise completed a detailed site-specific analysis within the project area. The science and data supporting the project effects analysis is summarized in the De Young EA which incorporates by reference numerous specialist reports containing detailed disclosure and supporting documentation. Appeal Issues The Appellant raised nine major issues in their appeal of the De Young project. Issues were addressed in the order found in the appeal. No appeal issues were resolved through informal resolution. Issue 1: The Appellant claims the EA is invalid because it tiered to an invalid Forest Plan and unfinished NEPA documents. Specific assertions related to this claim include: i. The De Young EA, including (but not limited to) the Environmental Consequences Analysis is invalid because it relies on and incorporates by reference the ANF Forest Plan FEIS (USDA-FS-2007b) Chapter 3, which provides an invalid analysis of resources due to the fact that the Forest Service refused to consider oil and gas drilling as a significant issue throughout the Forest Plan revision process. (NOA p. 37) ii. The Forest Service cannot satisfy its NEPA obligations by tiering to or incorporating by reference unfinished NEPA analysis. (NOA p. 72) Response: The National Forest Management Act (NFMA), 16 U.S.C et seq., requires that administration of National Forest System lands be guided by an approved Land and

3 Resource Management Plan (i.e., Forest Plan). NFMA allows considerable discretion to the agency with regard to the amendment and implementation of Land and Resource Management Plans, see Section 1604(f)(4). On February 2, 2007, then-regional Forester Randy Moore approved the revised Forest Plan for the ANF. The 2007 Forest Plan was based upon considerable scientific and public involvement through the preparation of a programmatic EIS. The Regional Forester s decision was subject to administrative appeal pursuant to the transition provision of the NFMA planning regulation, 36 C.F.R (a) (2000), and was affirmed by the Chief of the Forest Service in The IDT accurately responded to this issue in the De Young response to comments (EA Appendix D, p. D-2). The Appellant asserts that there are inadequacies in the 2007 Plan, and therefore it should be invalidated. The Chief of the Forest Service reviewed the Allegheny Defense Project s administrative appeal of the programmatic Plan, as well as the extensive record compiled for the Plan and affirmed the 2007 decision. While the Chief instructed that certain items pertaining to oil and gas be reviewed, the vegetation management aspects of the Plan were upheld in their entirety. As the Appellant indicates, the ANF is currently evaluating information on OGD to fulfill the Chief s direction related to administrative appeals filed on the 2007 Plan revision. This ongoing programmatic OGD review does not require the Forest to halt all management of the vegetation and other multiple use resources. The Appellant s view that vegetation management must be halted pending the outcome of the OGD review is not supported by the NFMA, planning regulations, or the Chief s decision on the administrative appeals of the revised Plan. The De Young analysis tiers only to the programmatic EIS for the 2007 Forest Plan analysis, not the ongoing supplemental analysis related to OGD, which is considered in the De Young EA as part of the best available information (EA p ). As mentioned previously, the De Young project does not involve issuance of Notices to Proceed for reserved or outstanding oil and gas on the Forest. Cumulative effects for this project were extensively evaluated using detailed information summarized in two documents entitled, Programmatic Effects of Private Oil and Gas Activity on the Allegheny National Forest and Site Specific Effects of Private Oil and Gas Activity on the Allegheny National Forest. As discussed in more detail below, the PR clearly shows the IDT and Responsible Official took a hard look at the cumulative effects in the analysis area and considered the impacts of past, present, and reasonably foreseeable actions, including OGD. The Appellant provided no evidence that the vegetation management analysis set forth in the programmatic EIS for the 2007 Allegheny Forest Plan is invalid, nor did they address the site specific needs for taking action (as set forth in the PR). The IDT has compiled a considerable body of site specific resource data and local science to support its analysis of the effects and trade-offs associated with the proposal. However, the Appellant focuses its attention on OGD issues at the programmatic scale, ignoring the detailed disclosure and analysis that the IDT completed for this project. As discussed below, considering both context and intensity, the IDT concluded that the proposal would not have significant adverse effects upon the environment. Moreover, the NFMA does not contemplate a halt to resource management during land and resource management plan monitoring, evaluation, amendment, or revision efforts. The EA explains the relationship to other documents very clearly (EA p. 2, 22-23). The Forest did not tier to non-nepa documents. Based upon my review of the Record and applicable legal

4 requirements, I find the De Young project IDT s consideration of the programmatic NEPA analyses during project development was appropriate. The Appellant expressed their preference for halting all vegetation management pending the outcome of the OGD review, but I find based on review of the Record (especially site specific resource information related to the purpose and need for this action) that suspension of vegetation management in this project area is not in the best interests of the natural resources in the project area involved nor is it required by law. Issue 2: The Forest Service must prepare an Environmental Impact Statement. The Appellant claims the De Young project needs to be analyzed in an Environmental Impact Statement (EIS) because it meets several of the criteria for significance, especially when considered in the combination with effects from oil and gas drilling. Response: Specific assertions related to this claim are addressed as sub-points to this issue individually below. The Appellant s overarching claim is that the De Young project meets several of the criteria for significance ( ). The NEPA regulations require federal agencies to assess project significance based upon the application of particular factors in the context of the proposed action. The requirement for the preparation of an EIS is the result of an analysis of direct, indirect and cumulative effects that concluded that significant effects are likely to occur. Pennsylvania courts have recognized the twin aims of NEPA are to obligate federal agencies to examine the significant aspects of the environmental impacts of a proposed action and to ensure the agency informs the public and reaches an informed decision after considering the environmental effects of its decision. The NEPA does not require federal agencies to assess every effect of an action, but only the effects on the environment which are causally related to the action. In other words, agencies must look at the relationship between the environmental effect and the change in the physical environment caused by the federal action. There must be a reasonably close causal connection between the effect and the action. The Pennsylvania courts have recognized that there must be a manageable line between those causal changes that may make an actor responsible for an effect and those that do not. New Jersey DEP v. U.S. NRC, 561 F.3d 132, 139 (3 rd Cir. 2009). While the agency is responsible to consider objections raised by the public, the Appellant must address the effects analysis and reasoning set forth in the Record and provide evidence that demonstrates the rationale of the FONSI is unreasonable. Citizens Advisory Comm. v. U.S. Dept. of Justice, 197 F. Supp. 2d 226, 262 (W.D. Pa. 2001). Having determined which effects are properly to be assessed, the NEPA requires the agency to take a hard look at the environmental effects of its proposal. The NEPA regulations at 40 C.F.R state that agencies must assess the context and intensity of their actions to determine significance. The Third Circuit has long recognized that the review of context and intensity involves consideration of both short and long term environmental consequences. Lower Alloways Creek Township v. Public Service Elec. & Gas Co., 687 F.2d 732, 740, (3 rd Cir. 1982). When an agency concludes in a FONSI that its action will not have a significant effect on the environment, the agency must briefly present the rationale for its finding. The agency must take a hard look at effects and document its findings, but it is the Appellant s responsibility to demonstrate specifically how and why... the finding of no significant impact was somehow

5 erroneous or unreasonable. Id. at 743. Neither broad-sweeping or bald assertions regarding the significance of effects, nor mere dissatisfaction with the outcome of an analysis, is sufficient to show that a FONSI is arbitrary or capricious. Id. at 747. The Appellant must address or confront the detailed and comprehensive analysis and studies complied by the agency in order to show the project will have significant effects. Id.; see also Friends of the Astor v. City of Reading, 1998 U.S. Dist. Lexis at * 21 (E.D. Pa. 1998) (plaintiff failed to show likelihood of success on the merits by relying on broad, general allegations concerning the NEPA significance of effects) The De Young Environmental Assessment summarizes the potential site specific effects identified and analyzed during project development. As noted above, the project EA is appropriately tiered (40 C.F.R ) to the programmatic discussion of vegetation management in the EIS prepared for the revised Forest Plan. The EA discloses the site specific effects to air, water, soils, vegetation, wildlife, recreation, and other resources. The decision documentation incorporates the analysis set forth in the EA and is informed by the specific discussions, by resource, included in the EA and referenced documents in the Project Record (DN p. 2 and 5). The DN/FONSI considers the context and intensity factors of 40 C.F.R and documents the findings of the Responsible Official that the De Young project contains no significant effects that would trigger the need to prepare an EIS (DN p. 5-8). Public participation was a key part of De Young project development. During the scoping process the Forest provided numerous documents that provided a comprehensive description of the proposed action. NEPA and its regulations provide considerable discretion as to the detail required to describe the agency s proposal. The De Young Project Proposed Action details individual treatments in terms of their relevance to the Forest Plan, as well as their spatial and temporal context on the Forest. The included maps further identify the locations of proposed treatments. The Scoping Letter instructed interested parties as to the means by which they could comment on the proposals. As described in more detail below, I concur with the Responsible Official s analysis in the DN/FONSI that the De Young project does not contain significant environmental effects and therefore preparation of an EIS is not necessary. i. The USFS attempts to avoid significance by breaking down into component parts what should have been one project consisting of the Pine Bear Project and the De Young Project. (NOA, p. 59) Response: Council on Environmental Quality (CEQ) regulations discuss how an agency should determine the scope of an environmental analysis (40 C.F.R ). CEQ identifies three categories of actions that should be discussed in a single analysis: connected actions, actions that will cumulatively have significant impacts, and similar actions when the best way to address the combined impacts is to consider them in a single analysis. The Pine Bear and De Young projects are not connected actions; one does not automatically trigger the other, each can occur without the other, and they are not otherwise interdependent. They are not phases in a larger project, and the purpose and need for each proposal is grounded in local, site specific resource conditions. Pine Bear is one of the projects considered in the cumulative effects analyses for the De Young Project (PR Bk 3, Tabs 26 and 27; EA p. 36, 46-50), but this analysis determined that there

6 would not be significant cumulative effects. While the two projects could be considered similar actions given their proximity, CEQ does not require that similar actions be considered together and the Responsible Official chose to analyze the effects of these actions in separate documents because the projects are in different 5 th level watersheds (EA Appendix D, p. D-4) and are separated by a divide in the landscape (PR Bk 3, Tab 27, p. 30). I have considered these site specific factors, as well as the rationale set forth in the record as to why separate analyses were prepared and have concluded that Pine Bear and De Young projects are not connected actions. The explanation for why the projects were analyzed in separate NEPA documents is well documented in the record and reasonable. The Appellant asserts that the USFS is attempting to avoid acknowledging the cumulative significant impacts of multiple federal actions in the project area. The IDT acknowledged past, present, and reasonably foreseeable future activities (EA, p. 24) including the activities in the Pine Bear Project (EA, p. 36; PR, Bk 3, Tabs 26 and 27) and presented the effects of all past present and reasonably foreseeable future activities within the cumulative effects area for each resource area (EA, p. 2-4, 10-11, 14,15, 16, 21, 31, 36, 37, 46, 64; PR, Bk 5, Tabs 5, 9 &10; PR, Bk 3, Tabs 26, 31; PR, Bk 4, Tabs 4, 6). This analysis included federal as well as non-federal activities in the analysis area. The Forest took a hard look at the cumulative effects associated with the project, however, no significant cumulative effects were identified for any resource area. The Appellant has not provided any evidence or convincing information supporting their assertion that the project will have significant adverse cumulative effects. There is no evidence that the IDT overlooked or ignored evidence concerning cumulative effects in an effort to avoid a conclusion that the effects would be significant. I find that the Responsible Official did not violate CEQ regulations by breaking a single project into component parts, nor did the ANF avoid acknowledging cumulative impacts from other past, on-going, and reasonably foreseeable projects in the area. ii. Within the De Young Project boundary are numerous high quality aquatic habitats, which will be adversely affected by the actions proposed in the De Young Project (e.g., by clearcutting, and herbiciding). (NOA p.59) (T)he following specific Compartments and their respective Stands must be dropped from the De Young Project due to their proximity to the HQ Cold Water Fisheries of Spring Creek and Bear Run and to the Naturally Reproducing Trout Streams listed above and by Compartment below: (NOA, p. 61; see appeal for list of stands) Response: The topic of high quality aquatic habitats was first raised during scoping and responded to in Appendix A of the revised EA (non-significant issue 3, p. A-3 to A-4; non-issues 5 and 6, p. A-5 to A-7). It was raised again in the Appellant s comments during the final 30-day comment period (EA Appendix D, p. D-7). The Appellant alleges that the proposed actions will damage creeks and streams with high quality habitats, providing a list of creeks and streams recognized as Naturally Reproducing Trout Streams (NOA, p. 60). The Appellant specifically claims that damage will occur from increased runoff and siltation, warming from canopy openings, and pollution from herbicide treatments as the result of the proposed activities.

7 Eleven of the thirteen streams listed in the appeal (NOA p. 60) are located wholly or partially within the project area or the cumulative effects analysis area for hydrology and aquatic species (EA, Map 6). Two of the streams listed by the Appellant are located outside the project and cumulative effects analysis area boundaries: the Pine Run tributary of Bear Creek and the Big Run tributary of Spring Creek, so proposed activities would not have any impact on them. The EA explicitly recognizes that all nine named streams within the De Young Project area are classified as High Quality Cold Water Fisheries (EA, p.52). The EA (p. 55) states that five of the named streams support limited populations of Brook Trout; the other four named streams have not been surveyed for Brook Trout, but could potentially support them. The Appellant claims that the proposed vegetation treatments will result in increased runoff and siltation causing damage to the streams. However, they do not present any evidence or references to support this claim. While the EA does not specifically use the terms runoff and siltation, the Hydrology effects analysis discusses in detail the direct and indirect effects and cumulative effects of the proposed activities on water quality and quantity (EA, pp ). This includes discussions of potential impacts related to altered streamflow and sedimentation associated with proposed road maintenance, vegetation treatments, and stream improvements. The EA points out that given the proposed size of the vegetation treatment areas and the staggering of the completion of the treatments over a 10 year period, the area of disturbed land as a percentage of all land in the project area at any one time will be substantially less than that recognized as likely leading to a negative impact on water quality or quantity due to increased runoff or sedimentation (EA, p. 35). Additionally the EA points out that the De Young Project activities will be completed following approved standards and guidelines in the Forest Plan for minimizing effects to water resources and water quality, including the use of buffer strips to separate treatment areas from water bodies (EA, p. 38). Furthermore, the Project Needs and Objectives include managing soil disturbances and minimizing soil erosion and sedimentation (EA, p. 4), as well as placing large woody debris in streams to trap sediment (EA, p. 5). Other project activities intended to reduce runoff and sedimentation reduction include increased road maintenance (EA, p. 36). The EA concludes: Based on the implementation of timber harvest activities in either action alternative in combination with approved and reasonably foreseeable Forest Service and private activities, cumulative effects to water quality and water quantity within the project and cumulative effects analysis areas are expected to be minimal. This conclusion is supported by the following: (1) Forest Plan standards and guidelines are designed to minimize effects to water resources and water quality (USDA-FS 2007a) and they meet or exceed Pennsylvania BMPs; (2) treatments would be spread across the landscape and over time; (3) the majority of treatments are located away from streams; (4) proposed road improvements in the project area; and (5) private OGD would be regulated by Pennsylvania DEP to minimize effects to water resources. (EA, p. 36). The Appellant claims that the proposed action to increase large woody material in streams will result in a loss of shading canopy that will damage the streams (or presumably their associated habitats). More specifically they argue the proposal to cut 80 to 120 trees per mile along 38 miles of streams must be carefully analyzed in an EIS. That could result in up to 4,560 trees cut along the stream corridors of Watson Branch, Rappe Run, Warner Branch, East Branch Spring

8 Creek, Wagner Creek, Hunter Creek and Little Hunter Creek. (NOA, p. 60). They also claim that the Forest Service acknowledges that such actions could result in reduced stream shading, which could obviously diminish the habitat goals of introducing large woody debris to the streams. (NOA, p. 60). The Appellant does not provide any additional supporting evidence or references. The Appellant s claim with respect to the proposed action to place large woody debris in select streams only acknowledges the initial part of the proposed action and overlooks the rest of it which states that this action would only take place where large woody debris is lacking and where trees are available to be felled without reducing stream canopy (EA, p ). While it is true that the ANF implicitly acknowledges that this type of action could in some circumstances lead to a loss of important stream shade, the EA explicitly says that cutting of trees to provide large woody debris to enhance aquatic habitat will not be done where there would be an adverse impact upon stream shading. The record clearly documents that the Forest listened to scoping comments, considered the shading issue, and included measures to ensure that it will not result in a significant adverse effect. The Appellant asserts that, The De Young project will impact freshwater species through the use of glyphosate. The toxicity of glyphosate (and the surfactants commonly used with this herbicide) to aquatic species is widely accepted. (NOA, p. 60). However, the statement is vague and no other evidence or references are provided to support or clarify it. This risk to aquatic and other organisms is addressed in the EA and supporting documents. The proposed uses of herbicides, including glyphosate, are based on practices designed to minimize the potential for herbicide releases to surface water bodies at levels that will impact aquatic organisms. The EA states that the use of herbicides, including glyphosate, is expected to have no impacts on water quality since the majority of treatments will occur away from streams while the remainder will occur in areas separated from streams by designated buffers (EA, p. 60). The EA references the Forest Plan standards and guidelines for maintaining water quality and application of herbicides, including guidance on how riparian buffers will be determined based on information such as type of water body, type of herbicide, herbicide application rate, and application method. The Forest Plan is supported by the Forest Plan FEIS, which provides a detailed analysis of potential environmental impacts associated with the herbicides proposed for use in the EA, including glyphosate. Appendix G of the Forest Plan FEIS provides hazard analysis, exposure assessment, and risk characterization based on a review of available scientific literature for the proposed herbicides. As described in Appendix G, potential risks for a variety of organisms, including aquatic organisms, is calculated based on a combination of the critical toxicity value and exposure values calculated based on different application rates. This results in a unique calculated value for estimate risk, or hazard quotient, for each of these organisms or groups of organisms. These calculations show that only one calculated hazard quotient would potentially exceed an acceptable limit for glyphosate. This is for the case of long-term consumption of vegetation by a large bird in an area treated at 3 or 4 lb/acre (FEIS, Appendix G, p. G2-7). This risk would be minimized by limiting the use of glyphosate at these application rates to a limited

9 number of small areas using methods that apply the herbicide directly to the target plants to reduce potential release to water bodies. In summary, I find that the proposed actions for the De Young Project are designed to avoid negative impacts to surface water bodies, including those designated as High-Quality, Cold Water Fisheries and Naturally Reproducing Trout Streams. The Forest was aware of the Appellant s concerns and the record documents that the IDT took a hard look at potential effects upon surface waters. These actions are based on a thorough analysis of the best available scientific information. I also find that the effects from proposed activities to these resources were analyzed and disclosed in the Project Record and no significant impacts were identified. The analysis, backed by field work and knowledge of published science, supports the conclusions set forth in the FONSI. Therefore the Appellant s claim is unfounded and there is no need to drop any of the stands to protect aquatic habitats. iii. (R)esearch suggests that current forest service practices (e.g., the use of glyphosate 69 and fertilizers 70 ) threaten mycelium viability. (NOA, p. 62; see appeal for citations) Response: The Appellant describes the importance of fungal mycelia to forest ecosystems and present two research papers (NOA p. 62). This research, the Appellant contends, shows the risk that Forest Service use of glyphosate and fertilizer poses to mycelium viability. From this the Appellant concludes these practices pose an unknown risk that should be analyzed in an EIS. In the Response to Comments (RTC; EA Appendix D, p. D-9), the De Young EA expressly addresses the effects of glyphosate and fertilizer on mycelia. Ample evidence in the Record indicates that adverse impacts to mycelia are not an unknown risk. In the RTC (p. D-9), the ANF specifically considers the two research papers cited by the Appellant as evidence and concluded, [c]lose examination of the references cited by the commenter does not provide compelling evidence that proposed activities in the De Young project would have significant negative effects on fungal mycelia or the ecological functions they perform. The Forest s response to the Appellant s comment demonstrates that local resource experts considered the importance and function of fungal mycelia and soil microbes in general (RTC p. D-9). In addition, the De Young Soil Resource Report (PR, Bk 3, Tab 27, p ), the ANF analyzes the effects of herbicide use on soils, and they cite ANF Forest Plan Appendix G, which analyzes in great detail the risk of glyphosate to many resources, including impacts on soil productivity. Forest Plan Appendix G (p. G1-G44) summarizes research on glyphosate effects on soil fertility based on assays for soil microbial biomass, and concludes that glyphosate use has not been demonstrated to have long term negative effects on soil nutrient cycling. The Forest Plan FEIS also summarizes the potential for herbicides and fertilizer to affect soils (FEIS p to 3-36), indicating that proposed mitigation measures will minimize effects and avoid significant impacts. Appendix G also summarizes monitoring conducted by the ANF that, while not specific to mycelia, does present a considerable wealth of knowledge concerning the effects upon forest health. In the RTC (EA Appendix D, p. D-9), the ANF indicates that adverse effects to these communities [soil microbes], including species of fungi that produce mycelia, would indirectly result in other indicators of low forest health. Some indicators of forest health summarized in

10 the monitoring in Appendix G (p. G1-G43) demonstrate that on the ANF, glyphosate has not had long term negative effects on seed banks, plant species diversity, tree seedling stocking, and soil fertility. The Forest analyzed and documented its finding that past use of glyphosate, with appropriate mitigation measures to protect resources, has not had a significant adverse effect upon these indicators. This finding supports the reasonable conclusion that the proposed herbicide use would not have a significant adverse effect on mycelia. In the Soil Resource Report (PR, Bk 3, Tab 27, p. 8-9), the ANF also analyzes the effects of fertilizer on soils. Although mycelia are not directly addressed, the analysis includes consideration of indirect factors or indicators such as soil nutrients, nutrient cycling, and fertilizer effects to tree regeneration. The analysis concludes that the effects of fertilizer would be beneficial to vegetation at some sites. Within the PR there is good evidence that the Responsible Official considered the effects of herbicide and fertilizer on the soil resource and forest health, both of which are directly tied to mycelia health. The Forest has long experience with both practices; for example, see Allegheny Defense Project v. Forest Service, 2004 U.S. Dist. Lexis (W.D. Pa. Mar. 23, 2004) (affirming analysis of extensive herbicide use on the ANF and, recognizing previous EISs compiled to provide broader scale analysis of herbicide use). I concur with the Responsible Official s finding that, We have considerable experience with the types of activities to be implemented. Treatments proposed for this project constitute well-established methods for vegetation management, timber harvesting, reforesting stands, enhancing wildlife habitat, treating NNIP species, maintaining roads, and protecting water quality. Much is known regarding the outcomes when using even-aged management on the ANF. The effects analysis discloses the known effects, and the proposal does not involve unique or unknown risks (revised EA, pp ). The Forest considered the literature provided by the Appellant and determined that it did not indicate potential for significant adverse effects to mycelia. The Forest considered both the short and long term effects, and considered the intensity or amount of herbicide use in context. Therefore I conclude that fertilizer and glyphosate use as proposed do not pose an unknown risk and there is no evidence of a significant adverse effect requiring the preparation of an EIS. iv. The potential impact to the habitat of T&E, and to all of the 78 species with potential viability concerns must be studied in an EIS. The De Young Revised EA provides no evidence that site-specific analysis on the presence of these species or suitable habitat for these species, or on the presence of threatened or endangered species or suitable habitat for T&E species has been conducted for the specific treatment areas in the proposed action. (both NOA, p. 70) Response: Contrary to the Appellant s assertion, evidence is abundant in the Record that site specific surveys were completed for the rare plants and animals in the De Young project area, and the information in these surveys was used to evaluate the effects of specific actions proposed within specific stands in the De Young project. The De Young EA (p. 43, 51-54) summarizes the site specific effects analysis found in the Wildlife Report (PR, Bk 4, Tab 9), Biological Assessment (EA Appendix C), and Biological Evaluation (PR, Bk 4, Tab 11) for the project, which are incorporated in the EA analysis by reference.

11 The Wildlife Report (p. 1-3) lists all the site specific species surveys conducted for the De Young Project. The wildlife transects (PR, Bk 4, Tab 7) collected data on threatened, endangered, and sensitive species presence/absence and suitable habitat. A comparison of the list of wildlife transect stands (PR, Bk 4, Tab 7) with the list of Alternative 3 stands proposed for treatment shows most of the stands selected for a wildlife transect also have a management treatment proposed. Field reviews conducted by biologists, botanists, foresters, and biological technicians were conducted to further refine rare species presence/absence and to help refine the proposed action to minimize impacts to rare species (Wildlife Report, p. 2). Site specific surveys for the federally listed small whorled pogonia and northeastern bulrush were conducted in areas of high potential suitable habitat (Wildlife Report, p. 2; BA, p.22, 26-27). A GIS model was used to identify high potential habitat for the pogonia (PR, Bk 4, Tab 4); suitable habitat for the bulrush is wetlands, which are identified in the Record (Bk 4, Tab 8). Site specific surveys for sensitive plants were also conducted in the De Young project area. Survey results are documented in the Record (PR, Bk 6). Twenty five sites in and within a ½ mile radius of the De Young project area received mist net surveys for the endangered Indiana bat from 1998 to 2004 (Wildlife Report, p. 2), using USFWS protocols. Survey results are shown in the De Young Biological Assessment (p. 9). No Indiana bats have been found on the ANF since 1998 (BA p. 8). The Wildlife Report, Biological Assessment, and Biological Evaluation use all the collected data to describe the existing condition and provide a site specific effects analysis for this project. The Biological Assessment analyzes effects to the federally listed Indiana bat, small whorled pogonia, and northeastern bulrush and their suitable habitats. The Biological Evaluation analyzes effects to the sensitive plants and animals and their suitable habitat. The Wildlife Report provides supporting information for these analyses and evaluates potential effects to other species of viability concern. The US Fish and Wildlife Service concurred with the finding of the BE that the De Young project may impact but is not likely to adversely impact the Indiana bat and there would be no effect to any other endangered or threatened species. I find the Appellant s claims to be unfounded. Project effects to TES plants and animals were analyzed in detail in a site specific manner, and the Forest clearly took a hard look at potential effects on TES. These analyses do not document any adverse effects to T&E species and thus do not represent a significant effect that would require the preparation of an EIS. v. The Forest Service currently violates and threatens to violate Pennsylvania Common Law in allowing oil and gas drillers to use surface waters in the ANF for private oil and gas development projects. (NOA, p. 70) Response: As pointed out in the Forest s response (EA Appendix D, p. D-14) to this same comment (1-Z) from the Appellant during the 30-day comment period, the De Young Project does not propose or involve the approval of private oil and gas drilling or water withdrawal activities. As a result, any State laws related to such withdrawals are not relevant to this project. The Project does not preclude the ANF from taking any actions under applicable State and Federal laws to address such withdrawals, if appropriate. Therefore I find the Appellant s claim

12 that the Forest Service is violating State law with this vegetation management project to be without merit. vi. These activities [De Young, Millsteck, and Pine Bear] will have a significant impact on the environment, arguably greater than that in Mortality II [Curry v. U.S. Forest Service] The Forest Service must prepare an EIS because of the intensity of this project. (NOA, p. 71) Response: The Appellant asserts that the action is significant because it involves approximately 2,153 acres and that the combined acreage proposed for treatment in three projects in the project analysis area makes the cumulative effects significant. The Appellant inappropriately equates size and NEPA significance. As noted above and discussed in the response to a comment from the Appellant (EA Appendix D, p. D-3 to D-4), the NEPA and its regulations set forth a framework (context and intensity) for evaluation of the significance of a federal action. Neither the NEPA nor its regulations utilize the size of the area affected as an factor pertaining to significance of environment effects. In other words, there is no acreage threshold associated with NEPA significance. Instead, significance is determined by the context and intensity factors set forth in 40 C.F.R The Appellant s assumption that the magnitude of this project necessitates an EIS is not supported by law, regulation or on-theground resource conditions (as discussed in the Record). It should be noted that the Appellant is factually incorrect in suggesting that the Millsteck Project is in the cumulative effects analysis area for the De Young project. As discussed above, the Forest correctly concluded that Pine Bear and De Young projects are not connected actions. Pine Bear was, however, considered in the cumulative effects disclosure for the De Young analysis. The IDT properly concluded that there would be no significant adverse cumulative effects for the De Young project. The court s decision in Curry was based on the particular record and analysis compiled by the agency for the Mortality II project in the 1990s. Each project must be evaluated based on its environmental analysis and project record. The Responsible Official explains in the DN/FONSI (p. 8) that the best available science and years of experience (including post-project monitoring and evaluation) with similar projects support the determination of non-significance in the De Young FONSI. In addition, the IDT considered the expert opinions of a number of resource professionals to evaluate the effects related to the proposal, mitigation efficacy, and significance. Furthermore, the Responsible Official explained (DN p. 6-8) that the IDT explicitly evaluated all ten of the intensity factors as mandated by CEQ regulations, including considering the cumulative effects of Pine Bear and other projects. The EA and Project Record document the Responsible Official s diligence in informing himself of the potential environmental effects, onthe-ground conditions, mitigation possibilities, and resource trade-offs prior to making a decision regarding NEPA significance. The FONSI is supported by an extensive Record documenting that the adverse effects of an action of this size will not be significant. Both long and short term effects have been fully considered (DN p. 6), as have cumulative effects (DN p. 7). The IDT and Responsible Official took a hard look at proposed harvest methods and their site specific resource effects (EA, Chapter 3; PR, Bk 3, Tabs 2, 9, 14, 27, 29; Bk 4, Tabs 9-11; Bk 5, Tabs 18, 23). The Responsible Official appropriately stated that the ANF has considerable experience with the types of activities proposed and that the effects of these actions are well understood based on monitoring and other field work (DN p. 6-7).

13 The IDT and Responsible Official listened to the concerns submitted by the Appellant during the scoping period and two project comment periods, considered those comments to identify alternatives, and responded to the concerns on the record (EA Appendices A and D). Neither the comments submitted nor the administrative appeal contains persuasive information refuting the analysis of any of the significance factors, as discussed elsewhere in this appeal review. The IDT utilized their collective education, training and experience coupled with the latest available science, including peer-reviewed literature, to design mitigation measures (EA p ) that would preclude significant environmental effects in connection with the De Young proposal. As stated earlier, the court s decision in Curry was based on the record and analysis for the Mortality II project. Each project must be evaluated based upon the analysis and record compiled for that action; simply equating Curry to De Young because both involve vegetation management is inappropriate and misleading. I find that the Record for the De Young project supports the Responsible Official s conclusion that the project would not have significant adverse effects. Moreover, I find that the Appellant is incorrect in their assertion that an EIS must be prepared for De Young Project as a result of the Curry decision. I have given careful consideration to the court s reasoning and conclusions, and find that the decision is distinguishable on the facts and law. The De Young Record clearly indicates that the Forest was aware of the scale of its action in the context of the surrounding forested landscape. Further, nothing in NEPA or its regulations equate project size to significance of environmental effects. vii. The recent court decision in the 9 th Circuit, NEDC v. BROWN, draws conclusions which must be evaluated in an EIS. It should be noted that a recent court decision by the 9 th Circuit made a decision [sic] in NEDC v. Brown, which concludes that NPDES [National Pollutant Discharge Elimination System] permits are required under the Clean Water Act for stormwater runoff discharges from logging roads. (NOA, p. 20 and p. 72) Response: NEDC v. Brown, 617 F.3d 1176 (9 th Cir. 2010), considered application of the 1987 amendments to the Clean Water Act, 33 U.S.C , including the Section 402 (33 U.S.C. 1342) permitting requirements related to storm water runoff, and EPA s implementing regulations (40 CFR 122), which apply a two phase regulatory approach to deal with stormwater discharges. 1 In NEDC v. Brown, the defendants (the Oregon State Forester, the Oregon Board of Forestry, and private companies engaged in logging operations) argued that (1) the logging roads did not require permits because they were covered by the EPA s silvicultural point source regulations at 40 CFR (b), commonly known as the Silvicultural Rule, 2 and (2) the 1 Section 402(p) requires NPDES permits for the most significant sources of stormwater discharge, including stormwater discharges associated with industrial activity, pursuant to Phase I regulations (33 U.S.C. 1342(p)(2)(B)). Pursuant to Section 402(p)(6), other types of storm water discharge are under the EPA s Phase II regulations (40 CFR (a)(9)(i)) and other sections. Stormwater discharges not covered by Phase I and II regulations are exempt from Clean Water Act permitting requirements. 2 The EPA s silvicultural rule (40 CFR ) identifies harvesting, road construction, and maintenance from which there is natural runoff as non-point source silvicultural activities. See 45 Federal Register 33290, (May 19, 1980). In 1976, the EPA determined that discharges remained nonpoint sources even where they passed through ditches, pipes, or drains meant to channel, direct, or convey the runoff. See 41 Federal Register 6281, 6282 (Feb. 12, 1976). I take note also of the Silvicultural Rule, as set forth in the preamble to the Phase I rule, 55 Federal Register at and and 60 Federal Register 50804, (Sept. 29, 1995) and the EPA s

14 alleged stormwater discharges from logging roads did not qualify as Phase I discharges, but were regulated by the EPA under the Phase II regulations. This argument is consistent with a Ninth Circuit decision (Environmental Defense Ctr. v. EPA, 344 F.3d 832, , 879 (9th Cir. 2003)) indicating Section 402(p)(6) EPA regulation of storm water discharges from forest roads (if any) would likely occur under Phase II regulations. The district court agreed with defendants and dismissed the complaint, NEDC, 476 F.Supp. 2d 1188 (D. Or. 2007). In August, 2010, the Ninth Circuit reversed the district court and concluded that logging roads are point source discharges for which an NPDES permit is required under the Phase I regulations when designed and constructed with systems of ditches, culverts, and/or channels that collect and convey storm water runoff. NEDC, 617 F.3d at The Circuit Court focused on the manner in which the pollutants reached the rivers and streams. In the Circuit s view, the logging roads at issue in NEDC were connected to a drain system that discharged storm water into adjacent rivers, making them a point source of pollution. The Circuit rejected the argument that the Phase I regulations exempted silvicultural discharges. I have carefully considered the appellant s allegations, the Ninth Circuit s decisions and reasoning in both EDC v. EPA and NEDC v. Brown, the scientific information compiled in the project record, and the site specific circumstances associated with the De Young project. It is important to note that neither the Forest Service nor any other federal agency is a party to the NEDC litigation (although a friends of the court brief was filed in the Ninth Circuit by the United States in February 2011). The relief afforded in NEDC was limited to the parties in that case and applicable only to the stormwater discharges before the Circuit in that case. The ruling in that case is not binding on a non-party to the litigation. I note also that the August 2010 NEDC decision does not constitute mandatory legal precedent outside of the Ninth Circuit. The appellant s assertions do not consider the Eighth Circuit s opinion in Newton County Wildlife Ass n. v. Rogers, 141 F.3d 803, 810 (8th Cir. 1993) ( EPA regulations do not include the logging and road building activities cited by the Wildlife Association in the narrow list of silvicultural activities that are point sources requiring NPDES permits. ). I considered these varying legal viewpoints in my review. The permit exemptions for storm water runoff associated with the existing EPA silvicultural rule remain available for federal and state regulatory authorities in the State of Pennsylvania. I also recognize that litigation before the Circuit concerning the August 2010 NEDC decision is ongoing. Petitions for rehearing en banc are pending before the Circuit. Arguments concerning the deference afforded to EPA s interpretation of its regulations are pending before the Circuit. Therefore the final outcome of NEDC v. Brown is uncertain at this time. In addition, as indicated in the Forest s response to the Appellant s comment on this topic, the facts in NEDC are distinguishable from those associated with the De Young project (EA Appendix D, p. D-14). In NEDC, stormwater runoff from logging roads was collected by a discussion and views concerning the meaning of the term natural runoff in the government s December 6, 2006 friend of the court brief filed in the district court in NEDC v. Brown, (D. Or.) at pp 13-16