Pacific Northwest Region

Transcription

1 United States Department of Agriculture Forest Service Pacific Northwest Region 333 SW First Avenue (97204) PO Box 3623 Portland, OR File Code: 1570 Date: March 7, 2007 Harold Shepherd Executive Director Center for Water Advocacy PO Box 583 Clifton, CO Dear Mr. Shepherd This constitutes my decision, pursuant to 36 CFR 215, on your appeal of Forest Supervisor Jeff Walter s Record of Decision (ROD) for the Maury Mountains Allotment Management Plan Environmental Impact Statement (EIS). I have considered the appeal record for the project and the recommendations of the Appeal Reviewing Officer. The Appeal Reviewing Officer focused his review on the appeal record and the issues raised in your appeal. A copy of his recommendation is enclosed. I find that the record fully addressed the appeal issues. The Forest Service addressed cumulative effects on both private and federal lands, defined a purpose and need that complies with the Ochoco National Forest Land and Resource Management Plan (as amended) and Forest Service Policy, presented a reasonable range of alternatives, and complies with INFISH standards and riparian management objectives (RMOs). I affirm the Responsible Official s decision and deny your requested relief. This decision constitutes the final administrative determination by the U.S. Department of Agriculture and is not subject to further administrative review. Sincerely, /s/ Liz Agpaoa (for) LINDA GOODMAN Regional Forester Enclosure cc: Clifford Dils, Jill Dufour, Philip J Mattson, Jeff Walter, Paul Cuddy Caring for the Land and Serving People Printed on Recycled Paper

2 United States Department of Agriculture Forest Service Umpqua National Forest 2900 NW Stewart Parkway Roseburg, OR File Code: 1570 Date: March 7, 2007 Route To: Subject: To: Maury Mountains Allotment Management Plan EIS Appeal Review Regional Forester This memorandum documents my recommendations regarding the disposition of two appeals received regarding Maury Mountains Allotment Management Plan EIS and Record of Decision. I have enclosed a summary of the appellants issues, along with a short description of my findings. The appeal review was conducted in accordance with 36 CFR 215 and Regional procedures. I recommend affirming the decision made by the Responsible Official. I have reviewed the project documentation provided by the Forest and considered the appellants appeal issues. I have noted that the Decision reduces permitted livestock numbers and is intended to improve resource conditions. The decision documentation is consistent with National Environmental Policy Act (NEPA) requirements, the National Forest Management Act (NFMA), and the Ochoco National Forest Land and Resource Management Plan, as amended. I believe that the project analysis adequately supports the decision and that it was conducted consistent with law and policy, specifically: The Forest Service evaluated cumulative effects analysis. The Purpose and Need complies with the Ochoco National Forest Land and Resource Management Plan and Forest Service policy. The FEIS complies with NEPA, NFMA, the Clean Water Act, the Migratory Bird Treaty Act, and the MUSYA. The FEIS complies with INFISH Riparian Management Objectives and provides measures by which to assess compliance. The FEIS and Record of Decision disclose previous deficiencies in agency monitoring and provide a plan to improve monitoring. The appellants requested relief was that the decision be withdrawn and notice of the withdrawal be placed in the newspaper of record. After reviewing the appeal record, I recommend that the requested relief be denied and the Responsible Official s decision affirmed on all points. My responses to the appeal issues raised by the appellants are enclosed /s/ Clifford Dils CLIFFORD DILS Appeal Reviewing Officer Enclosure Cc: Clifford Dils, Jill Dufour

3 Appeal Issues and Responses Maury Mountain Livestock Grazing Allotment Ochoco National Forest January 2007 Prepared by the Appeals Review Team 26 February 02 March 2007 Appeal # : Center for Water Advocacy On January 22, 2007, the Center for Water Advocacy (CWA) filed an appeal of Forest Supervisor Jeff Walter s Record of Decision (signed decision on October 26, 2006, published decision on December 10, 2006) for the Maury Mountain Livestock Grazing Allotment Final Environmental Impact Statement. Appellant believes that the Forest Supervisor s decision is in error and that the Forest has not addressed CWA s comments or issues raised in the comments. Appellant believes that the FEIS fails to adequately prevent the effects of livestock grazing on riparian and stream habitats and fish species listed under the ESA, instead relying on PACFISH standards to comply with ESA consultation. Appellant believes that the FEIS lacks sufficient information to determine consistency with the LRMP and consultation requirements. Appellants request that the EIS adequately analyze issues they have brought forward in their appeal, analyze a modified version of the current Alternative 3, and select a modified version of the current Alternative 4. Appellant Statement #1: The FEIS fails to comply with NEPA (appeal page 3). The appellant asserts that the FEIS fails to fully disclose or analyze information on the effects of grazing on fish habitat in violation of this requirement. The appellant states that the FEIS fails to fully disclose: a) that average water temperatures in the Crooked River do not meet PACFISH and INFISH standards (appeal page 3); The Crooked River is not on NFS lands and is not in the project area. INFISH standards only apply to streams on NFS lands. At least three streams within the project area feed into the Crooked River. The cumulative effects of the project on the Crooked River are analyzed (FEIS pg. 88). b) that grazing will significantly thwart attainment of the bank angle standards under PACFISH and that selecting the no grazing alternative would result in more rapid rates of recovery of overhanging streambanks than the preferred alternative (Appeal page 4). The EIS describes potential effects to bank stability (pp ) and potential effects to riparian vegetation (pp ). Bank angle is not of major relevance for this project, given its limited application (as discussed in response to comments, FEIS p. 254). c) continued grazing will impede progress towards reduced summer water temperature needed by anadromous species in the Maury Mountains (appeal page 4); No anadromous fish species or their habitats are in the project area. See page 90 of the FEIS.

4 d) that grazing significantly retards the recovery of width/depth ratios (appeal page 4); Response from page 254 of the FEIS: Livestock grazing in the preferred alternative would not retard the recovery of width/depth ratios. The FEIS (p. 68) states Streambank alteration (from trampling, hoof shear, and/or post holing) typically leads to the development of unstable banks, cutbank, alteration of width/depth ratios, entrenchment, lowering of the water table and sediment input to the stream. The selected alternatives include a trigger of 10 percent bank alteration to indicate that pasture moves are needed. This trigger is designed to reduce the amount of streambank alteration to low levels that do not result in unstable stream banks. The selected alternatives are expected to result in decreases in sediment yield and width/depth ratios as riparian vegetation increases. e) that the FEIS fails to adequately differentiate among the alternatives with respect to their effects on width/depth ratios based on the best available information (appeal page 4); See response to item 1e, above. Table S-2 (FEIS pg. VI-X) displays the differences between alternatives. The bank stability portion of the form indicates the triggers for each alternative for livestock movement on each allotment. f) that the FEIS fails to adequately note that assessments have repeatedly concluded that no grazing is more compatible with the protection and restoration of aquatic habitats than grazing (appeal page 4). The FEIS acknowledges that grazing causes more impacts than not grazing. Grazing on National Forest system lands is considered a legitimate use under current laws and policy. The purpose and need is consistent with the Ochoco Forest Plan s long term goals and objectives identified in the Ochoco Forest Plan, Chapter 4, Section 1 (pgs. 4-1 to 4-39), as stated in the ROD, pg. 8. g) Appellant states that the FEIS does not have an adequate range of alternatives (appeal page 4), because beside the status quo and no action alternative, it addresses only removal of livestock from the planning area and no other options that may be more politically acceptable and would have low impacts to certain areas overall. The range of alternatives in the FEIS include a No Action (No Grazing) alternative, A Current Management alternative (Alt. 3), and two alternatives (Alts 2 & 4) that provide different livestock distribution strategies and restoration practices. These four alternatives provide a reasonable range of alternatives to address the purpose and need as stated. In addition, seven alternatives were considered but eliminated from detailed study in the FEIS (FEIS pgs ). i) Appellant states that the Forest has not considered whether non-federal activity will increase the impacts of the selected alternative (appeal page 4). The FEIS considered cumulative effects in Chapter 3 of the FEIS. Those activities significant to the action in question (livestock grazing) were analyzed to determine if a cumulative effect would occur. Table 15 of the FEIS, pg , lists all past, present and reasonable foreseeable actions that were considered for cumulative effects. Where a resource issue was pertinent to livestock grazing environmental consequences,

5 incremental effects were disclosed (FEIS pg. 88). This included non-federal lands (eg. the Crooked River valley (FEIS pg. 88). j) Appellant states that the FEIS fails to reasonably disclose existing cumulative effects on salmonid populations and habitats within the area affected by the proposed allotment management and does not discuss the actual amount of land disturbance within the project area for activities that it acknowledges cumulatively affect aquatic conditions (e.g. roads, timber harvest) (appeal page 5). The only salmonid species found within the project area is the redband trout. Potential direct, indirect and cumulative effects to this and other aquatic species are described in detail in the FEIS (pp ). k) Appellant states that the FEIS fails to address the cumulative effects of conditions on federal lands together with effects and actions on non-federal lands, including significant floodplain alteration, grazing, and water withdrawal. The appellants further assert that the FEIS fails to provide an analysis of the cumulative effects of conditions on downstream nonfederal lands and for federal lands on channel form, substrate conditions, flow levels, and water temperature and must include the effects of water withdrawal, grazing, logging, roads, and agriculture and the extent of recently logged areas and roads within the affected watershed (Appeal page 5). Table 15 of the FEIS, pg , lists all past, present and reasonable foreseeable actions that were considered for cumulative effects. Where a resource issue was pertinent to livestock grazing environmental consequences, incremental effects were disclosed. This included non-federal lands, e.g. the Crooked River valley (FEIS pg. 88). The response to this comment can be found in the FEIS, pg It cites the Council on Environmental Quality (CEQ) Memorandum on Guidance of the Consideration of Past Actions in Cumulative Effects Analysis. CEQ recommends analyzing the cumulative effects of past actions warranting consideration because they are continuing to cause identifiable effects in the project area. These actions are identified in Table 15 (FEIS pgs ). The ART concurs that the FEIS complies with NEPA. Appellant Statement #2: a) The appellant states that the FEIS violates the Wallow-Whitman Land and Resource Management Plan (appeal page 5). This project occurs on the Ochoco National Forest, and is consistent with the Ochoco National Forest Land and Resource Management Plan (ROD pg. 8, FEIS, Table 16, pgs ). b) Appellant believes that the FEIS fails to disclose existing compliance with the substrate standard, analyze likely compliance with this standard within the project area and in affected downstream reaches and adequately differentiate among the alternatives with respect to their consistency with meeting the standard, based on the best available science (appeal page 5). This project is in the area covered by INFISH, which has no substrate standard. The RMOs applicable to this project area do not require <20% surface fine sediment in

6 spawning habitat and <30% cobble embeddedness in rearing habitat for listed salmonids. Those standards are found in PACFISH. PACFISH does not apply to this project area. (Page 265, FEIS) The ART concurs that the FEIS is consistent with the Ochoco Forest Plan. Appellant Statement #3: The FEIS violates PACFISH Standards (appeal page 5). a) Appellant believes that the FEIS fails to explicitly disclose all applicable PACFISH RMOs, the degree that existing conditions in affected streams meet these RMOs, and how the activities in the preferred alternative affects the RMOs (appeal page 6). PACFISH does not apply to this project. The FEIS discloses the potential effects of the project on RMO habitat features (FEIS p. 92, 99 and 107. The Resource Report and Biological Evaluation for Aquatic Species provide details of how the RMOs are potentially affected by using the Cutbank and Shade characterizations (pages 4-5). The ART concurs that the FEIS is consistent with INFISH standards. Appellant Statement #4: The FEIS is inconsistent with LRMP standards (appeal page 6). a) Appellant states that the FEIS fails to reasonably differentiate among the alternatives with respect to likely effects on habitat attributes, including those set as LRMP standards (appeal page 6). The FEIS differentiates between the alternatives on Table S-2 (FEIS) pg. vii and viii. The effects analysis for habitat attributes also differentiates between the alternatives (FEIS pgs. 70, 74,77, 86, 88, and 89). b) Appellant states that the FEIS fails to discuss available information indicating that bank stability is consistently degraded or impedes recovery under grazing. Appellant asserts that current USFS grazing practices are either continuing to degrade bank stability or are retarding recovery (appeal page 7). The FEIS acknowledges that existing conditions are sometimes below standards (FEIS, pgs , 81, and 82). The selected alternatives are designed to improve conditions towards recovery (FEIS pg. 74, 80, 86 and 88). The ART concurs that the FEIS is consistent with LRMP standards. Appellant Statement #5: The FEIS violates ESA standards (appeal page 7). a) Appellant asserts that because page 92 of the FEIS is missing on the ONF website, they cannot determine if an analysis of watershed conditions via the Matrix of Pathways and Indicators was performed (appeal page 7). Because no threatened or endangered aquatic species are in the project area, the Matrix of Pathways and Indicators is not required.

7 b) Appellant asserts that the FEIS fails to adequately disclose the RMOs for bank stability and substrate, as required by NMFS BO for LRMPs as amended by PACFISH (appeal page 8). Because no threatened or endangered aquatic species are in the project area, the Matrix of Pathways and Indicators is not required. Furthermore, the project area is covered by INFISH, and INFISH does not have requirements for substrate. Bank stability is addressed in the Aquatics section under the Cutbank characterization. See Item 3a, above. c) Appellant states that the FEIS fails to list standard NOAA Fisher(ies) requirements that the ONF pursue a bank stability objective of 90% on all streambanks in non-forested systems, <20% surface fine sediment in spawning habitat and <30% cobble embeddedness in rearing habitat for listed salmonids (appeal page 8). Response from page 265 in the FEIS: The PACFISH amendment does not apply to this project area. Anadromous fish are not able to access streams above Prineville Reservoir. The management direction for this area includes the INFISH amendment. The RMOs identified in INFISH are different than the RMOs in PACFISH. The RMOs applicable to this project area do not require a bank stability objective of 90% on all streambanks in non-forested systems, <20% surface fine sediment in spawning habitat and <30% cobble embeddedness in rearing habitat for listed salmonids. The INFISH RMOs indicate that streambanks in nonforested systems should be 80 percent stable or greater. There are no objectives for fine sediment or cobble embeddedness. The (FEIS pgs ) describes the effects of each alternative on bank stability. d) Appellant states that the FEIS also completely fails to provide any analysis of the degree of current compliance with these objectives and how the alternatives will differ with respect to meeting these RMOs (appeal page 8). Because no anadromous fish reside in the project area, compliance with the 90% bank stability, <20% surface fine sediment, and <30% embeddedness is not required. See also Item 3a, above. e) Appellant states that the FEIS does not address what utilization standards for range forage in riparian areas will be (appeal page 8). The FEIS address utilization standards for all pastures included in the analysis (FEIS p ) f) Appellant states that the FEIS fails to disclose and analyze existing consistency with, and effects of the alternatives on the 10 PACFISH ecological goals and that without such analysis, the USFS cannot assert consistency with the goals (appeal page 8). Response from page 265 of the FEIS: The 10 PACFISH ecological goals do not apply to this project. There are no threatened or endangered aquatic species within the project area (FEIS p. 90). The INFISH management direction includes riparian goals and RMOs that are applicable to this project. INFISH also includes several standards and guidelines that are used during project planning and implementation. This project is consistent with the applicable INFISH standards and guidelines. In addition, Chapter 2 describes the

8 monitoring that will be used to ensure that the standards and guidelines are effective in moving toward the goals and objectives. g) Appellant states that the FEIS fails to adequately discuss cumulative impacts on aquatic or riparian habitats or fish and any discussion of such impacts is primarily limited to the effects of livestock and big game grazing and the impacts of distribution, stocking rates and economics to private lands (appeal page 8). Refer to response #1-k above. The FEIS considered cumulative effects on riparian habitats in Chapter 3 of the FEIS (FEIS pgs. 84, 86, 87, 88, and 90) and fish and aquatic habitats (FEIS pgs. 96, 97, 100, 101, 103, 104, 106, 111, 112, 114, 115, 116, 117, and 118). Cumulative impacts were identified as directed by CEQ (FEIS pg. 257). The Draft and Final EISs appropriately identified the direct and indirect effects of the proposed action and other alternatives. The FS is not required to assess cumulative effects where there is no overlap in time and space of effect. h) Appellant states that the FEIS fails to meet agency and Endangered Species Act objectives for Special Status Animal Species, and that the preferred alternatives in the FEIS fail to provide adequate attention to the specific requirements of individual species (appeal page 8). Forest Service (Region 6) Sensitive Species (aquatic, terrestrial wildlife, and plants) are identified on page 90, 91, 118, and of the FEIS. Direct, indirect, and cumulative effects on these species are disclosed on pages , , and of the FEIS. The ART concurs that the FEIS is consistent with ESA. Appellant Statement #6: a) The FEIS fails to protect potential Sage grouse habitat (appeal page 9). The closest population of sage grouse is located within 5 miles of the project area. The FEIS (p125) and the Resource Report for Wildlife (p16) state that there is currently no suitable sage grouse habitat in the project area. Potential habitat has varying levels of juniper encroachment that makes these areas unsuitable for lekking, nesting, or brood rearing habitat (Resource Report for Wildlife p11). b) Appellant believes that analysis in the FEIS provides vague and limited rules for their management, and that the FEIS must elevate the sage grouse to a special management or indicator species equal to the California bighorn sheep (appeal page 10). The Resource Report for Wildlife and FEIS state that the Sage Grouse is classified as a Region 6 Sensitive Species (p3 and p118). Direct, indirect, and cumulative effects on this species are described in the Resource Report for Wildlife (p16) and FEIS (p125). Under all alternatives, there would be no impact on the sage grouse. Designating sage grouse as a management indicator species is outside the scope of this action.

9 c) Appellant states that the current/prescribed levels of livestock grazing under the FEIS will not allow the sage grouse to recover (appeal page 10). The FEIS and Resource Report for Wildlife state that the proposed activities under all alternatives will have no impact on the sage grouse (p125 and p3, respectively). It is also noted in the FEIS and Resource Report for Wildlife that the sage grouse do not use the project area and that all potential habitat is currently in an unsuitable condition, largely due to juniper encroachment (p124,125 and p10,16). The ART concurs that the FEIS adequately addresses sage grouse populations and habitat. Appellant Statement #7: a) The decision fails to comply with the Endangered Species Act (appeal page 10). Consultation was conducted for all T&E species, and all necessary Biological Evaluations and Assessments were signed and dated prior to the decision date, and can be found in the project file. b) Appellant states that the Forest has not completed consultation with NOAA fisheries for the mid-columbia River steelhead trout (appeal page 10). Consultation is not required because mid-columbia steelhead trout are not present or there is no habitat in the project area (FEIS pg.90, ROD pg. 9). Summer steelhead and spring Chinook may have occurred in the Maury Mountains before dams were built on the Deschutes and Crooked Rivers. Anadromous fish are not currently present in the project are because of downstream blockages at dams that do not provide fish passage facilities (FEIS pg 90). c) Appellant states that the FEIS is inconsistent with the standards for riparian and aquatic health provided in PACFISH based on the water quality and habitat degradation information from federal and state documents including the FEIS itself (appeal page 11). PACFISH does not apply to this project area. In the FEIS, conclusions regarding the INFISH RMO habitat features are drawn for Alternative 2 on page 99, and for Alternative 4 on page 107. In the Affected Environment, discussion is found on page 92. d) Appellant states that the FEIS fails to acknowledge PACFISH s prohibition on use of critical instream flows to provide forage for livestock or wildlife use for the purpose of mitigating proposed livestock use on fish and wildlife habitat (appeal page 11). PACFISH does not apply to this project area. INFISH requires instream flows and habitat conditions for hydroelectric and other surface water development proposals that maintain or restore riparian resources, favorable channel conditions, and fish passage, reproduction, and growth. The FEIS considers INFISH standards in the Water Quality and TES Aquatic species effects analyses (FEIS pgs ).

10 e) Appellant believes that the agency claims that grazing will not otherwise harm listed steelhead are directly contradicted by numerous studies cited in Appellant s RFS and other studies (appeal page 11). Effects to steelhead are not considered in the FEIS because steelhead are not present or have no habitat in the project area (FEIS pg. 90, ROD pg. 9). f) Appellant states that the FEIS fails to mention compliance with the Magnuson-Stevens Act by consulting with NMFS on grazing activities that may adversely affect the Essential Fish Habitat (appeal page 11), and that the Forest has provided no description or explanation of Essential Fish Habitat (appeal page 12). Compliance with the Magnuson-Stevens Act is not an issue because Essential Fish Habitat, as described in the Act, applies only to anadromous fish species. No anadromous fish species are present or have habitat within the project area (FEIS pg 90, ROD pg.9), therefore, the project would have no effect on mid-columbia River spring Chinook or Essential Fish Habitat (FEIS pg. 107) The ART concurs that the FEIS complies with the Magnuson-Stevens Act. Appellant Statement #8: Monitoring requirements are inconsistent with RMO s (appeal page 12). a) Appellant states that the monitoring in the FEIS is inadequate to ensure compliance with preferred in-channel and forage standards or to determine compliance with RMOs (appeal page 12). The Ochoco National Forest, as well as many other National Forests and BLM Districts, follow the guidance in the Final Range Resource Implementation Monitoring Module (July 2002). This monitoring module was specifically developed to ensure compliance with the PACFISH and INFISH management strategies (FEIS, pg. 245). The FEIS (FEIS pgs ) describes the effectiveness monitoring that will occur to determine compliance with RMOs. b) Appellant believes that FEIS monitoring is inadequate because it does not require forage utilization/stubble height monitoring at least weekly in all grazed areas to assess streambank stability, and more frequently as limits are approached (appeal page 12). Implementation monitoring occurs during the grazing season and consists of spot checks of permittee maintenance, checks of all pastures to ensure compliance with the AOI, stubble heights (by permittee and checked by the Forest Service), and utilization. The monitoring protocol and criteria are identified in the Monitoring section of the FEIS (pp ). Permittees are aware of these thresholds and are involved in monitoring with the Forest Service. (FEIS, App. A, p 242). The ART concurred that monitoring requirements are consistent with RMOs. Appellant Statement #9: The FEIS violates the Administrative Procedures Act (appeal page 12). a) Appellant believes that the agency action is arbitrary and capricious (appeal page 12).

11 The analysis is consistent with all laws, regulations and policy (ROD pg. 8), therefore, the Responsible Official s decision to implement the preferred alternative is not considered arbitrary and capricious, and the analysis complies with the Administrative Procedures Act. The ART concurred that the decision was not arbitrary and capricious.