Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest

Transcription

1 United States Department of Agriculture Forest Service Huron-Manistee National Forests Manistee Ranger Station 412 Red Apple Road Manistee, MI (Voice) (Fax) (TTY) File Code: 1570 Date: December 20, 2012 Route To: Subject: To: Appeal of the Decision Notice and Finding of No Significant Impact for the Millsteck Project Environmental Assessment, Marienville Ranger District, Allegheny National Forest, Appeal # A215 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest This letter constitutes my recommendation for the above-referenced appeal by Mr. Dick Artley. This appeal challenges the decision for the Millsteck Project, Marienville Ranger District of the Allegheny National Forest (ANF). District Ranger Robert T. Fallon signed the Decision Notice for this project on October 3, 2012, and the legal notice was published October 5, 2012, in the Kane Republican (Kane, Pennsylvania). My review has been conducted pursuant to 36 C.F.R. Part 215 Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities. To ensure the analysis and decision were completed in compliance with applicable laws, regulations, and agency policies, I have considered the issues set forth by the Appellant in the Notice of Appeal (NOA) and have reviewed the decision documentation submitted by the ANF. My recommendation is based upon a review of the Project Record (PR), including but not limited to the scoping letter, public comments, Environmental Assessment (EA), the Decision Notice and Finding of No Significant Impact (DN/FONSI) and the Response to Comments (RTC). Appeal Issues Issue 1: The Responsible Official did not Respond to the Responsible Opposing Viewpoints Submitted by the Appellant. The Appellant states, The Responsible Official did not respond to all of the opposing views or major points of view specifically related to the environmental impacts of the alternatives including the proposed action submitted by the appellant as attachments to his comments on the pre-decisional EA. Not responding to an opposing view in the final EA is an option for the Responsible Official only if he can show why the opposing view is not responsible. The Responsible Official did not indicate whether the opposing views were responsible or not. First, the Responsible Official took the appellant s comments out of context and reworded them into a single sentence shown below. Page D-11 of Appendix D cites comment 3-17 that does not exist in the appellant s August 3, day comments on the Millsteck project. ( ) Appellant s comments: (ed. note: refers to Appellant s comments in response to comment 3-17) 40 CFR (b) says nothing about Responsible Officials not responding to opposing views because they: are not peer-reviewed scientific literature are opinion documents Indeed opposing views ARE (emphasis added) opinions.

2 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 2 describe commonly recognized impacts that can result from forest management activities None of the opposing views submitted by the Appellant are websites. Below each opposing view the Appellant supplied the online sources for the opposing views for the Responsible Official s convenience if he wanted to read the opposing view in context. Either the Responsible Official 1) does not understand the requirements of 40 C.F.R (b), or 2) he chose not to respond the opposing views submitted by the Appellant. Either way, the Responsible Official has violated 40 C.F.R (b). ( ) and court precedent (ed. note: refers to Seattle Audubon Society v. Lyons). (NOA, pp. 1-3) Response: I find the Responsible Official adequately considered the opposing views and major points of view specifically related to the environmental impact of the alternatives including the proposed action submitted by the Appellant. Code of Federal Regulations (C.F.R), 40 C.F.R (a) states an agency preparing a final environmental impact statement shall assess and consider comments both individually and collectively, and shall respond by one or more of the means listed below, stating its response in the final statement. Possible responses are: 1. Modify alternatives including the proposed action, 2. Develop and evaluate alternatives not previously given serious consideration by the agency, 3. Supplement, improve, or modify its analysis, 4. Make factual corrections, 5. Explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency s position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response. All substantive comments received on the draft statement (or summaries thereof where the response has been exceptionally voluminous), should be attached to the final statement whether or not the comment is thought to merit individual discussion by the agency in the text of the statement. The Forest stated in the DN/FONSI (p. 10) that the decision was based on review of the record that shows consideration of relevant scientific information, including responsible opposing views... Also in DN/FONSI Appendix D stated, The responsible official and the Millsteck interdisciplinary team have considered all information provided in the attachments sent by the respondent. It is worth noting that only some of the documents were peer-reviewed scientific literature; many were opinion documents, and many were websites. Many of the submitted documents describe commonly recognized impacts that can result from forest management activities. The Forest Service is aware of this information, recognizes that these potential impacts can exist in certain environments and landscapes, and considers them in the decision making process.

3 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 3 Appendix D (pp. D-5, D-6, D-8 through D-10, and D-11) and the PR show evidence of a thorough review and diligent consideration (see Table 1for an example extracted from the PR). The PR shows about 48 pages of documentation where the Forest reviewed all of the references submitted by the Appellant (Folder 2, Subfolder 2, Documents 16a-16d). Forest staff reviewed each document and indicated how the literature was used and provided rationale on whether or not the literature was applicable to the Millsteck project. Documents may have been identified as not peer reviewed or opinion pieces but still contained rationale for why or why not the information was not pertinent. Some of the references included were supportive of the Forest Service findings. Table 1. An example of the Millsteck interdisciplinary team s response to the Appellant s comments related to opposing scientific viewpoints (taken from the Project Record 16a Response to Dick Artley Attachment 1). Cited literature #1 Al-jabber, Jabber M Habitat Fragmentation: Effects and Implications #2 Anderson, P.G Sediment generation from forestry operations and associated effects on aquatic ecosystems Proceedings of the Forest-Fish Conference: Land Management Practices Affecting Aquatic Ecosystems, May 1-4, 1996, Calgary, Alberta. #3 Applying Ecological Principles to Management of the U.S. National Forests Issues in Ecology Number 6 Spring 2000 How Considered? Not used; Consistent with other science used Not used; Consistent with other science used This document is applicable and consistent with literature used in the analysis Rationale/Comments In general, this article discusses the effects and implications of habitat fragmentation, primarily the negative effects. The statement by the respondent that The following document contains pertinent color pictures showing logging damage, is misleading. The document contains one color picture with the caption Clearcuts and forest fragmentation, Willamette NF, Oregon. Habitat fragmentation is analyzed in the Millsteck Environmental Assessment. This article discusses the effects of logging and roads on aquatic habitats, particularly in relation to sediment delivery to streams. The article recommends measures to limit effects. These are similar to the Forest Plan standards and guidelines and project design features used for this project. Consistent with other science used to minimize sediment. This article identified major ecological considerations that should be incorporated in sound forest management policy and their potential impacts on current practice. The project would maintain structural diversity by implementing Forest Plan standards and guidelines and project design features. Based on my review of the PR, I have determined that the Appellant s claim is without merit. The interdisciplinary team closely followed the regulations (40 C.F.R (a)) and did an

4 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 4 excellent job in reviewing the information submitted by the Appellant. The tables in the appendix clearly demonstrate of a thorough review and diligent consideration. Issue 2: The EA does not Disclose whether a NPDES Permit was Issued by the EPA. The Appellant states, Water pollution degrades surface waters making them unsafe for drinking, fishing, swimming, and other activities. As authorized by the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. ( ) The disturbed area for the selected alternative is greater than 1 acre. Since the EA does indicate that the Responsible Official was issued a NPDES permit by the that allows him to exceed 1 acre with his clearing, grading, and excavating activities that occur during road construction, Ranger Fallon has violated Federal Water Pollution Control Act Amendments of Response: The Appellant did not bring up this issue during initial scoping but did bring up a similar issue in his comments during the 30-day comment period for the EA. I find no place in the Millsteck EA or PR that indicates the responsible official was issued a NPDES permit. The Ninth Circuit Court of Appeals, in NEDC v. Brown, ruled that permits are required for discharges of pollutants from ditches, culverts, and channels that collect stormwater runoff from logging roads. On June 25, 2012, the Supreme Court decided to review the Ninth Circuit s decision in NEDC v. Brown. A decision is expected in the first half of 2013, and could affect whether any NPDES permitting requirements apply to stormwater discharges from logging roads. Currently, the Environmental Protection Agency (EPA) is not requiring agencies to obtain NPDES permits for stormwater discharges from logging roads. On September 4, 2012, the EPA proposed revisions to its Phase I stormwater regulations to clarify that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that a NPDES permit is not required (Federal Register / Vol. 77, No. 171 pp ). The final rule from EPA was published December 7, The rule eliminates any regulatory uncertainty about silvicultural activities and NPDES permits. The only facilities under the code in question considered industrial are rock crushing, gravel washing, log sorting, and log storage. Other silvicultural facilities, such as logging roads, do not require an NPDES permit (EPA, Final Rule, 12/7/12 Federal Register). I find the Millsteck Project to be in compliance with the Clean Water Act. NPDES permits related to the discharge of stormwater runoff associated with silvicultural activities other than those listed above are not required pursuant to the final rule of December 7, Issue 3: The Responsible Official Illegally Rejects Alternative Suggestions Submitted by the Owners of the Allegheny National Forest.

5 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 5 The Appellant states, The Responsible Official identifies the alternatives suggested by the owners of the Allegheny National Forest at pages 13 and 14 of the EA. Tragically, the Responsible Official rejected these citizen-generated alternatives by placing them in the Alternatives Considered but Eliminated from Detailed Study section of Chapter 2. The Responsible Official s reasons for rejecting these alternatives is that they fail to meet the purpose and need for this project. The Courts of the United States have ruled on cases where the Responsible Official has chosen the selected alternative prior to public involvement. The Responsible Official knew that if he honestly analyzed a citizen alternative in detail it would jeopardize the implementation of the pre-selected alternative. Because the Responsible Official failed to tell the public why their suggested alternatives not analyzed in detail are unreasonable the EA EIS violates 40 CFR (e). (NOA, pp. 4-6) Response: According to the Council on Environmental Quality (CEQ) Regulations for Implementing the National Environmental Policy Act (NEPA), in Section Alternatives including the proposed action, the Forest Service is required to rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated. Accordingly, in the Millsteck EA, Section II, Alternatives, Alternatives Considered but Eliminated from Detailed Study, pages 13 through 15, the interdisciplinary team (IDT) does briefly discuss the reasons for the elimination of the five alternatives referenced by the Appellant. In all, a total of nine alternatives were considered by the IDT, with six alternatives being dropped (including the five previously discussed) because they did not meet the purpose and need of proposed action. This action follows the requirements of the NEPA and is, therefore, not an illegal rejection of the suggested alternatives. Finally, 40 C.F.R (e) states that Federal agencies shall to the fullest extent possible use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment. Again, the Forest Service did consider reasonable alternatives, including the No Action alternative. For those alternatives considered but eliminated from detailed study, the rationale for dropping those alternatives was briefly discussed in the EA as outlined in the NEPA regulations. In reviewing Forest Service decisions similar to this project, courts have found that the range of alternatives may be limited to those alternatives that meet the purpose and need of the proposed action. In Allegheny Defense Project v. Forest Service, No (W. D. Pa 2003), the Forest Service limited the scope of a Threatened and Endangered Species Amendment to requirements of a Biological Opinion and the Court upheld the narrow purpose and need. The Forest Service was not required to consider in detail alternatives that did not accomplish the purpose and need for the action.

6 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 6 While the Appellant may not agree with the choices for alternatives analyzed in detail or the rationale for dropping alternatives not considered in detail, based on my review, I have determined that the EA adequately explored a range of alternatives and followed the regulations. Issue 4: The EA does not Analyze how the Project will affect Climate Change. The Appellant states, ( )Two USFS Chiefs have provided field-level line officers with direction to analyze how proposed projects will affect climate change. They have given the public the expectation that when they read NEPA documents climate change will be addressed, Not analyzing climate change does not serve the public. Saving a few dollars on NEPA costs is an unethical response to one of the most important issues of our time. Omitting an analysis of whether and how this timber sale affects climate change violates 40 CFR (b). (NOA, pp. 6-7) Response: Chief Kimball s February 15, 2008, letter and other Forest Service information on how to address climate change in the NEPA refer to scoping as an integral part of determining if climate change issues are specifically related to the proposed action (Forest Service internal paper, Climate Change Considerations in Project Level NEPA Analysis January 13, 2009, p. 3). The CEQ regulations for implementing the procedural provisions of the NEPA state [40 C.F.R (b)] Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail. The CEQ regulations for implementing the procedural provisions of the NEPA state [40 C.F.R (c)]. NEPA s purpose is not to generate paperwork even excellent paperwork but to foster excellent action. Also, 40 C.F.R (b) states NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The ANF satisfied both of these CEQ regulations by not formulating an issue that was not relevant to the action in question. The Forest referenced and tiered to analysis in the Forest Plan FEIS (p. 3-83) and the Record of Decision (ROD) which allows that the Forest Plan allows for enhancing the resiliency of the forest to respond to changing conditions. This is accomplished by maintaining a diversity of plant and animal communities (Forest Plan ROD, p. 24). The response also asserts that the Millsteck project is an appropriate place to analyze changing climates, Because of its global scope, climate change is most appropriately addressed at the policy scale. The effects analysis will determine if an EIS is required for this project (PR, Folder 02, Subfolder 02, Document 45). The Millsteck project completed the appropriate scoping and public involvement procedures (DN, pp. 6-7). During this process the Appellant did not raise this issue (PR, Folder 02, Subfolder 01, Document 20). Other commenters did raise concerns with impacts to climate change resulting from the project and the PR addresses those concerns (PR, Folder 02, Subfolder 02, Document 45). The DN/FONSI addressed Uncertainty, unique or unknown risks (p. 8, #5). The Responsible Official referenced both the Forest Plan and the Forest Service internal papers, referenced above (Climate Change Considerations in Project Level NEPA Analysis January 13, 2009). The

7 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 7 Project Record includes a Climate Change EA Discussion which considers the uncertainty with the effects that the Millsteck project may have on climate change, as well as the effects climate change may have on the project area over the long-term (PR, Folder 05, Subfolder 13, Document 26). The document states, Millsteck vegetation treatments are designed to be adaptive and contribute towards... sustaining a diversity of vegetation patterns and species composition across the ANF landscape. Additional evidence of climate change analysis occurs in the PR. A discussion paper on Oak Management was included (PR, Folder 05, Subfolder 05, Document 38a). Specifically this document referenced Iverson, L.R. et al, Modeling potential climate change impacts on the trees of the northeastern United States. Mitigation and adaptation strategies for global change; McDill, M Forests and wildlife; and Woodall, C.W. et al An indicator of tree migration in forests of the eastern United States. As evidenced in the PR, I find the Responsible Official was not in violation of any direction in considering the climate change issue in the Millsteck project analysis and decision. Based on my review, I find that the Forest considered climate change, without presenting it as an issue and the Responsible Official did not violate any regulations (40 C.F.R (b)). Issue 5: The Environmental Consequences (Chapter 3) of the EA is Inadequate NEPA requires a broad examination of environmental effects. The Appellant states, Chapter 3 does not specifically analyze the effects of the commercial tree removal and road construction activities on all the non-vegetative natural resources in and downstream from the project that could be affected by this timber sale. The EA contains no analysis of how fisheries (T&E, sensitive, and non-listed species habitat and individuals) will be affected by the timber sale activities. The EA doesn t provide the public with the species of fish that are potentially affected by the timber sale activities. A hydrology analysis is no substitute for a fisheries analysis. Excluding natural resources that might potentially be affected by the selected alternative violates 40 CFR Failing to analyze and document the cumulative, direct and indirect effects of implementing this timber sale to the natural resources that may occur in the general timber sale area violates and might be 40 CFR Not disclosing the predicted effects to the natural resources potentially affected by the project because the Responsible Official determines there will be no adverse effects does not comply with NEPA requirements. If there are no predicted adverse effects then the Responsible Official must say this in Chapter 3. When resources in the project area are not mentioned the public wonders why the Responsible Official excluded it. (NOA, pp. 7-8)

8 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 8 Response: The Millsteck EA is tiered to, and references information found in various specialist reports in the PR. It seems that the Appellant is concerned with riparian habitat within the project area, as well as non-vegetative natural resources associated with these riparian habitats. The Appellant goes on to make various references to fish and fisheries, and so the assumption is made that the non-vegetative natural resources referred to in this appeal issue has to do with various aquatic species. Within the Biological Evaluation and Report (BER) specifically written for this project, one can find numerous references to riparian habitats, and the aquatic species that occupy these habitats, as well as the potential effects of the various alternatives on them. Since these alternatives contain within them all the activities proposed, including the commercial tree removal and road construction referenced in the appeal point, it is reasonable to assume that there is in fact extensive analysis of the impacts of these activities on the aquatic resources. For example in the BER on pp is a discussion and analysis of the potential effects of the various alternatives on the streams found within the project area. Pages of the BER analyzes the effects of the proposed activities on wetlands within the project area. In the BER on pp is an analysis of the potential effects of the various proposed activities on aquatic invertebrates. Additional analyses can be found throughout the document on page 66 through page 126, discussing numerous aquatic species including fish, additional invertebrates, amphibians, and mollusks, as well as non-aquatic species that may utilize riparian habitat. Much of this analysis, especially concerning the most sensitive aquatic species, is synthesized and presented in Table 8: Determinations for ANF Regional Forester s Sensitive Species found in the BER on pages In addition, the EA does have a discussion of potential impacts to aquatic species, including invertebrates (EA, pp ) and game species (including trout) (EA, pp ). Finally, much of the analyses from the BER and EA is synthesized and presented in Table 1: Summary of determinations for federally threatened, endangered, and candidate species and for Regional Forester s sensitive species found in the EA on pp The Appellant states that a hydrology analysis should not be used for a fisheries analysis and that does not occur in this document. As previously pointed out, the aquatics analysis can be found in both the BER and the EA, while the hydrology analysis looks at the potential effects of the various alternatives of the water resource within the Project Area. Finally, the Appellant s contention that there is a violation of 40 C.F.R is not correct. The environmental consequences of the alternatives and potential effects have been examined in both the BER and the EA. Issue 6: The EA is Inconsistent with CEQ Mitigation Guidance. The Public (and this Appellant) have the Expectation that the Responsible Official will Comply with this Guidance. The Responsible Official Fails to Offer the Public a Reason for Ignoring CEQ. The Appellant states, Since the Responsible Official ignores this guidance the public expects the Responsible Official to explain why this project is so unique that following the CEQ guidance is voluntary.

9 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 9 Without information showing the public the mitigation was effective under similar conditions in the past the public does not know if or how the mitigation will reduce the adverse environmental impacts. ( ) This EA does not offer the public any information assuring them that the resources are available to perform the mitigation. ( ) The EA does not carefully specif[y] measurable performance standards or expected results of mitigation application so as to establish clear performance expectations. ( ) The EA does not explain the mitigation monitoring process for the public. Neither does it tell the public how they might receive a mitigation monitoring report specific to the mitigation effectiveness on this project. ( ) The EA does not mention that enforcement clauses, including penalty clauses have been developed to assure purchaser mitigation measure compliance and where such enforcement and penalty clauses can be found. The Millsteck project is inconsistent with the CEQ NEPA Mitigation Guidance. The Responsible Official does not offer the public an explanation for why he chose not to comply with the CEQ mitigation guidance. This omission of mitigation effectiveness information from the EA: does not provide the public with an accurate analysis which violates [40 CFR 40 CFR (b)] diminishes the professional integrity, including scientific integrity of the discussions and analyses in the EA which violates (40 CFR ) 40 CFR (c) Requires the Responsible Official to: (c) State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. A monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation. The EA does not indicate whether a monitoring and enforcement program has been adopted to assure the required mitigation has been done and done correctly. The EA does not indicate whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted. The Responsible Official violates 40 CFR (c). (NOA, pp. 8-11)

10 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 10 Response: The Appellant asserts that the Forest did not follow the CEQ NEPA Mitigation Guidance; thus it did not comply with the CEQ mitigation guidance putting the EA in violation of 40 C.F.R (b) and 40 C.F.R The Appellant further asserts that the Responsible Official failed to include information on a monitoring and enforcement program and therefore is in violation of 40 C.F.R (c). The January 14, 2011, CEQ memorandum to Federal departments and agencies, referred to by the Appellant as the CEQ NEPA Mitigation Guidance, contains no guidance on providing the public with information on the past effectiveness of proposed mitigation measures. The memorandum does state that an agency should.commit to mitigation monitoring in important cases when relying upon an EA and a mitigated FONSI. Monitoring is essential in those important cases where the mitigation is necessary to support the FONSI and thus is part of the justification for the agency s determination not to prepare an EIS. The memorandum further states In cases that are less important, the agency should exercise its discretion to determine what level of monitoring, if any, is appropriate. The requirement cited from 40 C.F.R (c) is for decisions requiring environmental impact statements. The EA for this project is tiered to the Allegheny Forest Plan which contains a detailed description of the monitoring requirements (Forest Plan, 37 52), and specific design criteria consisting of Standards and Guidelines (Forest Plan, 53-99). The Forest Plan states on page 53 that Standards and guidelines are sideboards that impose limitations on activities or uses for reasons of environmental protection, public safety, risk reductions of to achieve a desired condition or objective. These standards and guidelines apply to all project decisions The site-specific design features of this project are clearly spelled out in the Design Features section of the EA, p The Allegheny Forest Plan identifies the commonly used term of mitigations measures as design features in the document and this terminology is carried forward in the Millsteck EA. I find that the Millsteck EA Project does not violate any law, policy or regulation. I find the project to be consistent with the CEQ guidance related to mitigation and monitoring. Recommendation After reviewing the PR materials for the Millsteck Project and after reviewing and considering the concerns raised by the Appellant, I find no merit in this appeal. I recommend that the decision for this project be affirmed. /s/ Jim A. Thompson JIM A. THOMPSON Appeal Reviewing Officer District Ranger

11 Appeal Deciding Officer, Forest Supervisor, Allegheny National Forest 11 cc: Patricia R Rowell