Pacific Northwest Region

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1 United States Department of Agriculture Forest Service Pacific Northwest Region 1220 SW Third Avenue PO Box 3623 Portland, OR File Code: 1570 Date: January 29, 2014 Karen Coulter Blue Mountains Biodiversity Project/League of Wilderness Defenders 5622 NE 7th Avenue Portland, OR CERTIFIED MAIL RETURN RECEIPT REQUESTED NUMBER: Dear Ms. Coulter: This constitutes my decision, pursuant to 36 CFR (b)(1), on your appeal (# ) of Ochoco National Forest Supervisor, Kate Klein s Record of Decision (ROD) for the Fox Canyon Cluster Allotment Management Plans Final Environmental Impact Statement (FEIS), on the Paulina Ranger District, Ochoco National Forest. Background On September 27, 2013, Kate Klein, Forest Supervisor for the Ochoco National Forest, signed a ROD for the Fox Canyon Cluster Allotment Management Plans FEIS. Her decision to implement Alternative 2 authorizes the following: Allow livestock grazing on the Fox Canyon, Gray Prairie, and Antler Allotments under revised allotment management plans. As noted in the Final EIS, the actual season for livestock use may be less than permitted in order to meet Forest Plan goals and objectives/desired conditions. The number of days livestock spend on each allotment may be adjusted annually based on variations in weather and range readiness or unpredictable events such as wildfire and drought. The dates identified are target dates for grazing. o Antler Allotment will consist of 843 acres, divided into eight pastures. The following activities will be authorized for the Antler Allotment: Active management of livestock will be required. The grazing system will be an eight pasture deferred rotation where livestock will not graze a specific pasture during the first rotation through the allotment. This allows vegetation in that pasture to complete the growing season prior to being grazed. Each year the deferred pasture will be rotated. Grazing will be conducted in a high intensity, short duration cycle through the pastures. Grazing rarely occurs for more than 15 days within any one pasture at any given time and usually totals less than 23 days of total use per pasture each year. Existing structural improvements will be authorized, including 11 miles of fence. Riparian restoration activities including but not limited to hardwood planting, creation of physical barriers to protect hardwoods and improve bank stability, and aspen stand enhancement/protection. Caring for the Land and Serving People Printed on Recycled Paper

2 Karen Coulter 2 o o Fox Canyon Allotment will consist of 13,612 acres divided into four pastures. The following activities will be authorized for the Fox Canyon Allotment: Existing structural improvements would be scheduled for reconstruction, including 12 water developments and approximately 20 miles of fence. Five new water developments are proposed. Active management of livestock will be required. Riparian restoration activities including but not limited to hardwood planting, creation of physical barriers to protect hardwoods and improve bank stability, and aspen stand enhancement/protection. Gray Prairie Allotment will consist of 11,630 acres divided into five pastures. The following activities will be authorized for the Gray Prairie Allotment: Existing structural improvements will be scheduled for reconstruction, including 13 water developments and approximately 21.5 miles of fence. Five new water developments are proposed. Two new cattle-guards will be installed between the North and Gray Prairie pastures. Active management of livestock will be required. Riparian restoration activities including but not limited to hardwood planting, creation of physical barriers to protect hardwoods and improve bank stability, and aspen stand enhancement/protection. Implementation of Alternative 2 will include effectiveness monitoring and adaptive management. The final EIS, pages 27-28, describes these measures in detail. Grazing permit administration includes adaptive management, which is described under Alternative 2. Following completion of riparian restoration projects and range improvements described under Alternative 2, and after allowing for time for effects to be observable, the following activities may be appropriate based on monitoring data: o o If there is indication that upland water sources and physical barriers are effective in modifying cattle use patterns and protecting riparian areas, requirements for active management of livestock may be modified. If there is indication that upland water sources, physical barriers and active management of livestock are ineffective in modifying cattle use patterns and protecting riparian areas, future analysis will consider fences to exclude cattle from riparian areas. Pursuant to 36 CFR , an attempt was made to seek informal resolution of the appeal. The record indicates that informal resolution was not reached. My review of this appeal has been conducted in accordance with 36 CFR , Formal review and disposition procedures. I have reviewed the appeal record, including the recommendations of the Appeal Reviewing Officer. A copy of her recommendation is enclosed. The Appeal Reviewing Officer focused her review on the appeal record and the issues that were raised in your appeal.

3 Karen Coulter 3 Appeal Decision After a detailed review of the record and the Appeal Reviewing Officer s recommendation, I affirm the Responsible Official s decision for the Fox Canyon Cluster Allotment Management Plans and deny your requested relief. This decision constitutes the final administrative determination of the Department of Agriculture [36 CFR (c)]. A copy of this letter will be posted on the national appeals web-page at Sincerely, /s/ Rebecca Lockett Heath (for): KENT P. CONNAUGHTON Regional Forester Enclosures cc: Kathleen Klein, Marcelle Anderson, Jeff Marszal, Debbie Anderson, Adam A Felts

4 Forest Colville Headquarters Office Service National 765 South Main Forest Colville, WA Fax: File Code: 1570 Date: January 23, 2013 Route To: Subject: To: Appeal Recommendation, Fox Canyon Cluster Allotment Management Plans Regional Forester, R6 On September 27, 2013, Kate Klein, Forest Supervisor for the Ochoco National Forest signed a Record of Decision (ROD) for the Fox Canyon Cluster Allotment Management Plans Final Environmental Impact Statement (FEIS). Her decision to implement Alternative 2 authorizes the following: Allow livestock grazing on the Fox Canyon, Gray Prairie and Antler Allotments under revised allotment management plans. As noted in the Final EIS, the actual season for livestock use may be less than permitted in order to meet Forest Plan goals and objectives/desired conditions. The number of days livestock spend on each allotment may be adjusted annually based on variations in weather and range readiness or unpredictable events such as wildfire and drought. The dates identified are target dates for grazing. o Antler Allotment will consist of 843 acres, divided into eight pastures. The following activities will be authorized for the Antler Allotment: Active management of livestock will be required. The grazing system will be an eight pasture deferred rotation where livestock will not graze a specific pasture during the first rotation through the allotment. This allows vegetation in that pasture to complete the growing season prior to being grazed. Each year the deferred pasture will be rotated. Grazing will be conducted in a high intensity, short duration cycle through the pastures. Grazing rarely occurs for more than 15 days within any one pasture at any given time and usually totals less than 23 days of total use per pasture each year. Existing structural improvements will be authorized, including 11 miles of fence. Riparian restoration activities including but not limited to hardwood planting, creation of physical barriers to protect hardwoods and improve bank stability, and aspen stand enhancement/protection. o Fox Canyon Allotment will consist of 13,612 acres divided into four pastures. The following activities will be authorized for the Fox Canyon Allotment: Existing structural improvements would be scheduled for reconstruction, including 12 water developments and approximately 20 miles of fence. Five new water developments are proposed. USDA okr America's Working Forest Caring Every Day in Every Way Printed on Recycled Paper 111/11.

5 Active management of livestock will be required. Riparian restoration activities including but not limited to hardwood planting, creation of physical barriers to protect hardwoods and improve bank stability, and aspen stand enhancement/protection. o Gray Prairie Allotment will consist of 11,630 acres divided into five pastures. The following activities will be authorized for the Gray Prairie Allotment: Existing structural improvements will be scheduled for reconstruction, including 13 water developments and approximately 21.5 miles of fence. Five new water developments are proposed. Two new cattle-guards will be installed between the North and Gray Prairie pastures. Active management of livestock will be required. Riparian restoration activities including but not limited to hardwood planting, creation of physical barriers to protect hardwoods and improve bank stability, and aspen stand enhancement/protection. Implementation of Alternative 2 will include effectiveness monitoring and adaptive management. The final EIS, pages 27-28, describes these measures in detail. Grazing permit administration includes adaptive management, which is described under Alternative 2. Following completion of riparian restoration projects and range improvements described under Alternative 2, and after allowing for time for effects to be observable, the following activities may be appropriate based on monitoring data: o If there is indication that upland water sources and physical barriers are effective in modifying cattle use patterns and protecting riparian areas, requirements for active management of livestock may be modified. o If there is indication that upland water sources, physical barriers and active management of livestock are ineffective in modifying cattle use patterns and protecting riparian areas, future analysis will consider fences to exclude cattle from riparian areas. One appeal (# ) was filed by League of Wilderness Defenders - Blue Mountains Biodiversity Project. The appellant's requested relief was to have the Responsible Official withdraw her decision and "prepare adequate NEPA documentation for a project that will actually lead to the short and long term restoration of the project area, in accordance with the issues that we have discussed in both our comments and appeal." Pursuant to 36 CFR , an attempt was made to seek informal resolution of the appeal. The record indicated that informal resolution was attempted on Wednesday, January 15, 2014; the Forest notified the Regional Office that resolution of the appeal was not reached with the appellant.

6 Review and Findings My review was conducted in accordance with 36 CFR to ensure that the analysis and decision are in compliance with applicable laws, regulations, policies, and orders. The appeal record, including the appellant's issues, has been thoroughly reviewed. Having reviewed the Record of Decision, Final Environmental Impact Statement and the project record as required by 36 CFR (b), I conclude the following: 1. The decision clearly describes the actions to be taken in sufficient detail that the reader can easily understand what will occur as a result of the decision. 2. The decision considered a range of alternatives that was adequate to respond to the Purpose and Need. The purpose and need and alternatives considered in the FEIS reflect a reasonable range of alternatives, consistent with law, regulation and policy and the grazing management handbook. 3. The decision is consistent with or moves toward attainment of Forest Plan standards and guidelines. 4. The decision and supporting documentation takes a hard look at the impacts to fish populations, water quality, and impacts to soils and other unique habitats. I believe that the decision clearly leads towards an improvement over the existing situation and helps restore important riparian habitats in the watershed. 5. The decision is consistent with all policy, law, direction, and supporting evidence. The record contains documentation regarding resource conditions and the Responsible Official's decision document is based on the record and reflects a reasonable conclusion. After considering the claims made by the appellant and reviewing the record, I found that the Responsible Official conducted a proper and public NEPA process that resulted in a decision that is consistent with the Ochoco National Forest Land and Resource Management Plan. I found no violations of law, regulations, or Forest Service policy. Recommendation After reviewing the appeal record, I recommend affirming the decision. I believe that the project documentation adequately supports the Forest Supervisor's decision with regards to all appeal points raised by the appellant. Enclosed with this memo are my responses to each appeal issue. u.005f-- LAURA JO ST Forest Supervisor cc: Debbie Anderson, Adam A Felts

7 Fox Canyon Cluster Allotment Management Plan (AMP) Project Final Environmental Impact Statement (FEIS) Appeal Statements and Responses Ochoco National Forest January 2014 Appellant Appeal Number Blue Mountains Biodiversity Project Purpose and Need Appellant Statement #1: Appellant states that the AMP is not consistent with the expressed purpose and need goals because it is not consistent with several Forest Plan standards, which appellant asserts are not being met. Appeal at 2-4. Appellant states that the purpose of facilitating the achievement of the Forest Plan standards can t be met because the area is severely degraded and mitigation measures aren t sufficient. Appeal at 4. Response: I find that the Responsible Official properly developed the Purpose and Need statement in accordance with agency direction and that the purpose and associated needs presented are reasonable and could be achieved through selection of an action alternative presented. The Code of Federal Regulations (CFR) at 40 CFR states that a purpose and need statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action. The Responsible Official briefly described the purpose for the project and the needs associated with this purpose. FEIS at Based on the stated purpose and need she developed a proposed action that was designed to be responsive to the stated purpose of achieving and/or maintaining consistency with the Ochoco National Forest Land and Resource Management Plan (LRMP). FEIS at 9. The proposed action identified specific actions and locations of actions that were designed to help move the project area toward desired conditions described in the Ochoco National Forest Land and Resource Management Plan (LRMP). Range of Alternatives Appellant Statement #2: Appellant states that the Forest Service failed to consider a reasonable range of alternatives. Specifically, they state that the Forest Service should have considered an alternative in detail that eliminated grazing and restored riparian resources, which appellant states are degraded. Appeal at 4. Response: I find that the Responsible Official considered an appropriate range of alternatives that respond to the purpose and need of the Fox Canyon Cluster Allotment Management Plan (AMP) project and the issues identified during scoping. Page 1 of 12

8 The regulation at 40 CFR states the agency should study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. As documented in the FEIS, three alternatives were considered for analysis, a no grazing alternative and two action alternatives. FEIS at Furthermore, the FEIS documented three additional alternatives that were considered, but eliminated from detailed study. FEIS at The Responsible Official, in her consideration of all alternatives, considered the elimination of grazing on the allotment (Alternative 1, FEIS at 14-15) as well as activities to restore riparian resources (Alternative 2, FEIS at 15-20). The FEIS also demonstrates that a specific alternative that combined the two above activities (specifically no grazing and restoration) were already within the range of Alternatives 1 and Alternative 2, which were both considered in detail. FEIS at 29. Thus, no additional action alternative was needed to make an informed decision. Cumulative Effects Appellant Statement #3: Appellant states that the cumulative effects analysis is both inadequate and perfunctory. Appeal at 4 and 5. Appellant specifically states that the discussion of degradation from past management should have been discussed more thoroughly, particularly past management failures so that future grazing can move forward more responsibly. Appeal at 5. Response: I find that the Responsible Official adequately disclosed relevant cumulative effects for the Fox Canyon Cluster FEIS. The regulation at 40 CFR states that a cumulative impact on the environment is one which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. The FEIS discloses the requirements for cumulative effects analyses. FEIS at As described there, the Council on Environmental Quality (CEQ) regulations do not require agencies to catalogue or exhaustively list and analyze all individual past actions. Simply because information about past actions may be available or obtained with reasonable effort does not mean that it is relevant and necessary to inform decision making. FEIS at 244. The CEQ also stated that the existing condition captures residual effects of past actions. FEIS at The potential cumulative effects for various resources are disclosed throughout chapter 3 of the FEIS. They can be found in the FEIS at 54-55, 69, 75, , , , 171, 172, 189, 193, 195, 197, 201, , 215, 227, , 237, and 240. The FEIS at describes the existing condition of the area for range resources, which accounts for past impacts from grazing. The FEIS at 54 also clearly disclosed the impacts from past grazing by stating that unrestricted grazing, mostly by large numbers of sheep, occurred between the late 1800s and early 1900s and that those practices contributed to legacy Page 2 of 12

9 impacts that can still be seen upon the landscape and these continue to contribute to current vegetative conditions. Finally, the Range Report, Appeal Record at 11 and 12, clearly describes the historic grazing practices that were eventually modified by the establishment of the Ochoco National Forest, and demonstrates how unrestricted grazing created impacts that lasted for decades, thus responding to appellant s issue regarding consideration of past management practices. Mitigation Appellant Statement #4: Appellant states that the Forest has created a monitoring program to evaluate its mitigation, but has failed to mention or discuss enforcement, as required by 40 CFR (c). Response: I find that the Responsible Official adequately identified a monitoring program as well as a project design elements in her Record of Decision (ROD) at 2-6. The regulation at 40 CFR (c) states that a Record of Decision is required to 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 ROD adopts all the design elements and monitoring referenced in Chapter 2 of the FEIS. ROD at 2. Further, implementation of Alternative 2 includes adaptive management which allows for adjustments in management if standards are not being met. FEIS at 62. I note that the riparian restoration activities that the appellant appears to refer to as mitigations are identified in the FEIS as management actions and not mitigations. These management actions are intended to improve riparian conditions in the project area. Monitoring of the management actions is included in the Project Design Features. FEIS at With respect to enforcement, the Responsible Official clearly stated in her ROD that her decision adopts the design elements and monitoring referenced in Chapter 2 of the FEIS. ROD at 2. Appendix C incorporates the technical guide for the National Water Quality Best Management Practices for Water Quality Management on National Forest System Lands (USDA 2012), which outlines the best management practices (BMP) specific to range. FEIS at Best Management Practice (BMP) Range-2, as described in the technical guide at 83, outlines that changes needed in management practices as a result of monitoring will occur through operational changes in the Annual Operating Instructions (AOI), which is consistent with Forest Service Handbook and Manual direction on enforcing design features and monitoring outlined in the range NEPA document. Thus, enforcement of implementation of the selected alternative occurs through the use of AOIs. Page 3 of 12

10 Appellant Statement #5: Appellant states that the Forest claimed it will minimize harm through new management procedures, but made no commitment to actually minimizing environmental harm. Appeal at 5. Appellant believes that the FEIS reveals that the Forest will not and cannot commit to implementing the mitigation measures proposed (because of potential lack of funding and personnel) and believes the ROD is misleading and in violation of NEPA because the impacts of grazing would continue to occur and the FEIS did not disclose what would happen if mitigation did not occur. Appeal at 6-8. Appellant concludes that it is not reasonable for the Forest to base its decision on mitigation measures that have only a reasonable probability of implementation over a year period due to uncertain and limited funding. Appeal at 8. Response: I find that the Responsible Official adequately demonstrated how her decision will improve conditions in the project area and that her decision commits the Forest to implement Alternative 2 as described in the ROD. The Responsible Official provided rationale for the selection of Alternative 2, and she provided rationale for not selecting other alternatives. ROD at 2-9. Additionally, I find that the Responsible Official, through her selected alternative, has expressed her full intent to implement Alternative 2 as designed. The regulation at 40 CFR (a) and (b) states that a Record of Decision must state what decision has been made as well as identify all alternatives considered by the agency in reaching its decision. As stated previously, the riparian restoration activities that the appellant appears to refer to as mitigations are identified in the FEIS as management actions that are part of Alternative 2. By her signature in the ROD, the Responsible Official has fully committed to implementing the selected alternative in its entirety. The ROD at 9 clearly states that the selected alternative includes mechanisms to improve livestock distribution, including additional water developments, physical barriers and active management of livestock, all of which are fully articulated in the ROD at 2-6. The FEIS includes a schedule for implementation of the activities proposed under Alternative 2. FEIS at 278. With regard to appellant s assertion that the FEIS does not contain a description of what would happen if the restoration activities were not implemented, Alternative 3 fully documents the effects of not implementing the restoration activities associated with Alternative 2. FEIS at Scientific Integrity Appellant Statement #6: Appellant states that the Forest failed to use adequate science in analyzing the effects of grazing on riparian areas. Appeal at 8. Specifically, appellant states that the Forest did not cite any scientific studies that show effectiveness of the proposed mitigation measures. Appellant states that the Forest has little scientific data, surveys or studies on the properly functioning condition (PFC) of the pastures that are being used, which means that they have no baseline of normal to compare the effects of grazing. Appeal at 8 and 9. Page 4 of 12

11 Response: I find that the Responsible Official utilized the best available science in the course of analysis for this project. The regulation at 40 CFR states the agency should insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. As stated previously, the riparian restoration activities that the appellant appears to refer to as mitigations are identified in the FEIS as management actions that are part of Alternative 2. The effects of grazing on riparian areas are described in Chapter 3. FEIS at Scientific studies are cited throughout the effects analysis. Agency monitoring data including PFC assessments are referred to and included throughout Chapter 3, including results from monitoring in designated monitoring areas (DMAs), condition and trend cluster transects, and PFC assessments. FEIS at In addition, monitoring based on the LRMP and INFISH has also been conducted. FEIS at The FEIS cites an adequate number of peer reviewed literature and in some cases uses best professional judgment to discuss the effects of grazing on riparian areas. FEIS at Thus, I find that the FEIS does include both scientific references and adequate monitoring data for the Responsible Official to have made an informed decision. Hard Look Appellant Statement #7: Appellant asserts that the Forest failed to take a hard look at the efficacy of the mitigation measures proposed and that the FEIS does not include a full and fair discussion of the likelihood of success if the measures were implemented, nor does the FEIS discuss what would happen if the measures weren t implemented. Appeal at 10. Response: I find that the Responsible Official did take a hard look at the environmental effects associated with all proposed alternatives and took this into consideration in making her decision. The regulation at 40 CFR states that the discussion in the environmental consequences section should contain a discussion of environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man s environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. As stated previously, the riparian restoration activities that the appellant appears to refer to as mitigations are identified in the FEIS as management actions that are part of Alternative 2. Alternatives 1 and 3 discuss the effects of not implementing the project design features and the management actions. FEIS at 51-55, 60-61, and 68-69; FEIS at Chapter 3. The restorative elements of the project rely on an adaptive management approach, which by definition is fluid and may not be an exact science. The descriptions of the adaptive Page 5 of 12

12 management actions are based on changes that would be made if monitoring shows that compliance with standards aren t occurring. The FEIS footnotes the if / then approach to management; for example, if proposed activities don t improve resource conditions, fence installation may be necessary. FEIS at 28. The FEIS does outline thresholds for moving cattle and the implementation and effectiveness monitoring that would occur. These thresholds, if met, trigger adaptive management, which could include moving livestock, adjusting the grazing regime and season of use, implementation of pasture rest, closing pastures or areas of pastures, use of full time riders, etc. FEIS at These triggers, if reached, may also result in other management actions being prescribed, such as fencing, which may be outside the scope of the current NEPA analysis, thus requiring additional NEPA analysis. FEIS at 28. As stated in response to Appellant Statement #5, by her signature in the ROD, the Responsible Official has fully committed to implementing the selected alternative in its entirety, which includes a commitment to the restoration activities described under Alternative 2. With regard to appellant s assertion that the FEIS does not contain a description of what would happen if the restoration activities were not implemented, Alternative 3 fully documents the effects of not implementing the restoration activities associated with Alternative 2. As clearly described in the FEIS, Alternative 3 does not improve pasture conditions as quickly as Alternative 2 (FEIS at 60-61) and has the most potential for continued adverse impacts to soils. FEIS at 78. Rates of recovery of riparian conditions would be less under Alternative 3. FEIS at 154. Improvement in width-to-depth, pools and entrenchment would not likely occur. FEIS at 155. Habitat for redband trout and Columbia spotted frogs would remain static or in a downward trend. FEIS at 155. Riparian vegetation would recover more slowly than under Alternative 2, resulting in slower stream temperature recovery. FEIS at 155. Finally, recovery of streambanks and sediment production would occur more slowly because of the lack of active management. FEIS at 156. NFMA Concerns Appellant Statement #8: Appellant states that the Forest s Land and Resource Management Plan (LRMP) is outdated (it was approved in 1989) and has not been revised as per NFMA (every 15 years), and as such, no projects can be authorized until the plan is revised. Appeal at 10 and 11. Response: I find that the Responsible Official is appropriately utilizing the Ochoco National Forest s Land and Resource Management Plan to authorize this action. The United States Congress continues to authorize the Forest Service s use of existing Land and Resource Management Plans. The following citation of law provides authorization for the Responsible Official to continue to utilize the Ochoco National Forest s LRMP. Section 409 of Public Law , div. E, title IV, Sec. 409, Dec. 23, 2011, 125 Stat stated that The Secretary of Agriculture shall not be considered to be in violation of subparagraph 6(f)(5)(A) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604(f)(5)(A)) solely because more than 15 years have passed without revision of the plan for a unit of the Page 6 of 12

13 National Forest System. Nothing in this section exempts the Secretary from any other requirement of the Forest and Rangeland Renewable Resources Planning Act (16 U.S.C et seq.) or any other law: Provided, that if the Secretary is not acting expeditiously and in good faith, within the funding available, to revise a plan for a unit of the National Forest System, this section shall be void with respect to such plan and a court of proper jurisdiction may order completion of the plan on an accelerated basis. Thus, by congressional direction and the continuing resolution that was passed by Congress in 2013, the Ochoco National Forest may continue to use their existing LRMP until it has been revised. Appellant Statement #9: Appellant states that the Forest s policy is to make forage available for livestock on suitable lands where consistent with the LRMP. Appellant states that the ability to offer forage depends on meeting standards and guidelines, which appellant says cannot be met with the minimal mitigation proposed, which are not anticipated to be implemented for up to 15 years. Appeal at 11 and 12. Response: I find that the Responsible Official adequately documented how Forest Plan standards and guidelines would be met. Section 6(i) of the National Forest Management Act of 1976 requires that resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans. This means that projects planned under the NEPA must be consistent with the LRMP or amended such that the project complies. The LRMP states that the Forest will provide forage for wildlife and domestic livestock in a manner consistent with other resource objectives and environmental constraints, while maintaining or improving ecological conditions and plant community stability. LRMP at The FEIS clearly documents consistency with the LRMP and that implementation of the activities would move the area towards meeting the Standard and Guidelines. FEIS at 133. The restoration components of Alternative 2 are included to accelerate the recovery of stream habitats and improve water quality faster than the proposed changes to grazing management alone. FEIS at 133. As stated previously, the riparian restoration activities that the appellant appears to refer to as mitigations are identified in the FEIS as management actions that are part of Alternative 2. Aquatics/Streams Appellant Statement #10: Appellant states that the impacts of the selected alternative further impacts severely degraded aquatic resources and is not in compliance with PACFISH/INFISH RMOs (GM-1, GM-3, FW-1, temperature increases, and shade provisions) or other Forest Plan Standards and Guidelines, including those listed at LRMP (riparian area management strategy for range AMPs); LRMP (grazing on scablands); LRMP (attention to lands 100 feet from water and giving preferential consideration to riparian-dependent resources); Page 7 of 12

14 and LRMP (retention of at least 80% of the potential ground cover in grass-forb riparian communities). Appeal at Response: I find that the Responsible Official appropriately analyzed and disclosed the environmental effects of the proposed action on aquatic species and riparian habitat and that the proposed action clearly improves the condition of the watershed. The regulation at 40 CFR states the discussion in the environmental consequences section should contain a discussion of environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man s environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. The Fox Canyon Grazing Allotment Cluster FEIS clearly documents that the proposed action was designed to achieve and/or maintain consistency with the Forest Plan. FEIS at 9. The proposed action that was developed included a reduction in grazing and restorative activities that are intended to put watershed elements such as stream shade, bank stability and width to depth ratio on a positive trajectory. The FEIS clearly states both Forest Plan Standards (FW-1, temperature increases and shade provisions) and INFISH standards would be met. FEIS at I also note that for this project, PACFISH is not applicable. The FEIS discloses that it is expected that the re-establishment of some riparian shade would be measureable after 15 years. In entrenched systems (G and F type channels) it is expected that the recovery of riparian vegetation would take decades and active restoration is needed for vegetation recovery; this is why restoration actions were designed as part of the proposed action. FEIS at The selection of Alternative 2 by the Responsible Official is in compliance with the INFISH RMOs GM-1, GM-3 and FW-1. Implementation of Alternative 2 makes changes to livestock management and includes project design features and restoration activities that are consistent with the Forest Plan and INFISH and meets the purpose and need of the project. FEIS at 16; FEIS at 133 through 134. Appellant Statement #11: Appellant states that the aquatic management indicator species (MIS), sensitive species, threatened and endangered species, and other fish species will be adversely affected by the AMP approval and that the habitat for these species is already severely degraded and cannot be further degraded. Appeal at 12 and 13. Appellant states that the Forest has done very little to nothing to meet the goals set forth in the LRMP for riparian area improvement and has refused to protect riparian resources by discontinuing grazing or making significant changes to grazing management. Appeal at Response: I find that the Responsible Official disclosed effects to aquatic management indicator species (MIS), sensitive species, threatened and endangered species, and other fish species. Page 8 of 12

15 The regulation at 40 CFR states the discussion in the environmental consequences section should contain a discussion of environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man s environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. The potential for impacts to occur to fish species present in the project area was documented in the FEIS. The aquatic MIS, sensitive species, threatened and endangered species and other fish were evaluated and found to be compliant within standards for the Forest Plan standards and INFISH. FEIS at 193. The FEIS fully documents the current condition of the project area and notes that past and current habitat degradation from grazing, road building, timber harvest, and construction of impassible barriers has occurred. FEIS at 169. The FEIS then documents how further degradation would not occur because of the changes made to grazing practices under the selected alternative. Specifically, the activities proposed in Alternative 2 would move stream form and riparian vegetation towards meeting INFISH standards, thus improving habitat for redband trout. FEIS at 170. This improvement would also occur to habitat for Columbia spotted frogs. FEIS at 172. No other listed aquatic species occur in the project area. FEIS at 161. With regard to the Forest s actions to restore and improve riparian areas, I find that the selected alternative will result in greatly improved range and riparian conditions. By maintaining the current course of action (Alternative 3), the FEIS documents that improvements to riparian resources would not occur as quickly, if at all. FEIS at Thus, I find that the Forest Supervisor selected an alternative that results in a responsible course of action that will change grazing management practices in a manner that leads to restoring and improving riparian and rangeland resources. Appellant Statement #12: Appellant states that the agency is required by NFMA to ensure the ecologic integrity and population viability of species, and that adding further impacts to aquatic habitat does not ensure ecologic integrity and fails to maintain viable populations of Columbia spotted frog, redband trout, all other fish species, and other MIS and rare aquatic species in violation of NFMA. Appeal at 17. Response: I find that the Responsible Official disclosed environmental effects and made viability determinations for Columbia spotted frog, redband trout, and other MIS species. The regulation at 40 CFR states the discussion in the environmental consequences section should contain a discussion of environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man s environment and the maintenance and enhancement of long-term productivity, and any irreversible or Page 9 of 12

16 irretrievable commitments of resources which would be involved in the proposal should it be implemented. The potential for impacts to occur to fish species present in the project area was documented in the FEIS. The aquatic MIS, sensitive species, threatened and endangered species and other fish were evaluated and found to be compliant within standards for the Forest Plan standards and INFISH. FEIS at 193. The FEIS fully documents the current condition of the project area and notes that past and current habitat degradation from grazing, road building, timber harvest, and construction of impassible barriers has occurred. FEIS at 169. The FEIS then documents how further degradation would not occur because of the changes made to grazing practices under the selected alternative. Specifically, the activities proposed in Alternative 2 would move stream form and riparian vegetation towards meeting INFISH standards, thus improving habitat for redband trout. FEIS at 170. This improvement would also occur to habitat for Columbia spotted frogs. FEIS at 172. No other listed aquatic species occur in the project area. FEIS at 161. The Fox Canyon Cluster AMPs Project complied with NFMA by finding that the proposed action may impact individuals or habitat, but are not likely to contribute to a trend toward federal listing or cause a loss of viability to redband populations or the species. FEIS at 193. Appellant Statement #13: Appellant states that the impacts of the selected alternative further impacts severely degraded aquatic resources and is not in compliance with PACFISH/INFISH or other Forest Plan Standards and Guidelines. Appeal at 12. Response: I find that the selected alternative demonstrates how improvements to aquatic resources would occur and is in compliance with INFISH and the Forest Plan Standards and Guidelines. See responses to Appellant Statement s #10, #11 and #12. Appellant Statement #14: Appellant states that streams classified under the Clean Water Act as 303(d) listed will be further degraded, and that the Forest cannot further degrade water quality in listed streams and would be in violation of the Clean Water Act. Appeal at 18. Response: I find that the Responsible Official analyzed and disclosed effects to water quality as well as Clean Water Act compliance. The regulation at 40 CFR states the discussion in the environmental consequences section should contain a discussion of environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man s environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. The planning area includes listed water bodies that are contained in the Deschutes River basin. Determination of the Total Daily Maximum Loads (TMDL) and a comprehensive Water Quality Restoration Plan (WQRP) are in the process of being developed for this area as per the Clean Page 10 of 12

17 Water Act Section 303(d). Although the TMDL and WQRP have not been fully developed, the Fox Canyon Cluster FEIS documents that the proposed action would protect designated beneficial uses and would be consistent with the Clean Water Act and Executive Orders 11988, 11900, and FEIS at and Soils Appellant Statement #15: Appellant states that the NFMA requires that an agency s Forest Plan insures that timber will be harvested from National Forest System lands only where: soils, slope, or other watershed conditions will not be irreversibly damaged and that grazing significantly impacts soils in the uplands, scablands, riparian areas, and all areas in between. Appeal at Appellant also states that macrobiotic crusts would be irreversibly damaged by grazing. Appeal at 17. Response: I find that the Responsible Official analyzed and disclosed the environmental effects associated with soil resources. The regulation at 40 CFR states the discussion in the environmental consequences section should contain a discussion of environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man s environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. Appellant s citation of NFMA applies to timber harvest, as stated in their appeal. This is a grazing project, not a timber sale. Regardless, I find that the effects to soils were documented in the FEIS. The FEIS at 57 provides a general overview of effects to soils and the anticipated rates of recovery under Alternative 2. The FEIS refers to Land and Resource Management Plan Standards and Guidelines for management of Fragile Areas. LRMP at Included in these fragile areas are shallow soil scablands, elk wallows, and other areas which exhibit sensitivities that require special care. Scablands represent 41% of the allotment area (FEIS at 71) and 26% of the total project area (watershed or planning area). FEIS at 74. The LRMP describes scablands as among the most fragile ecosystems on the Ochoco. FEIS at 74. Long term data (45 to 50 years of monitoring) by Fred Hall, retired USFS ecologist, has shown that scablands throughout the Forest are some of the most stable ecosystems under dry season grazing. Appeal Record, Soils Report at 6. The FEIS documented that scablands would contribute some forage; however they would not be considered or mapped as primary range in an allotment, thus complying with the LRMP. FEIS at 74. The sensitivity of Microbiotic and Vesicular Crusts was also addressed. FEIS at 73 and 76. These areas are described as easily disturbed by livestock hoof action and a comparison of grazed and ungrazed sites revealed lower cover of biotic crusts, N-fixing, lichens in the grazed Page 11 of 12

18 transects. FEIS at 73. Implementation of Alternative 2 is expected to improve uplands through improved cattle distribution. Effects are expected to be localized and of short duration, thus the selected alternative would meet Forest and Regional standards and guidelines for soils. FEIS at 78. Botany Appellant Statement #16: Appellant states that the selected alternative interferes with the Forest s mandate to maintain viable populations of the following plant species: Botrychium species, Peck s Mariposa lily, Henderson s needlegrass, and other sensitive riparian and scabland vegetation. Appeal at 17 and 18. Appellant states that these species are at risk because of trampling and invasive plant spread and that the Forest has not done adequate surveys for these plants and as such, cannot know the impact to viability of these species. Appeal at 18. Response: I find that the Responsible Official analyzed and disclosed the environmental effects associated with botanical resources. The regulation at 40 CFR states the discussion in the environmental consequences section should contain a discussion of environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of man s environment and the maintenance and enhancement of long-term productivity, and any irreversible or irretrievable commitments of resources which would be involved in the proposal should it be implemented. The direct, indirect and cumulative effects to sensitive plants and scabland vegetation are disclosed in the FEIS at 181 through 190. For all sensitive plants species analyzed, the proposed action would result in a biological evaluation determination of may impact individuals or habitats but would not likely contribute to a trend toward federal listing or cause a loss of viability to the populations. FEIS at 186. The project record documents that adequate surveying for these plants occurred. Appeal Record, Botany Biological Evaluation at 4. Finally, the selected alternative includes project design features to minimize the potential for invasive plant spread and includes monitoring for new and/or increased weed populations. FEIS at 23 and 24. Page 12 of 12