Red Knight Restoration Project Environmental Assessment (EA) Appeal Statements and Responses Fremont-Winema National Forest December 2013

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1 Red Knight Restoration Project Environmental Assessment (EA) Appeal Statements and Responses Fremont-Winema National Forest December 2013 Appellant Appeal Number Dick Artley Fisheries and Watershed Appellant Statement #1: Appellant states that the fisheries values of streams and the direct, indirect and cumulative effects to fisheries were not adequately disclosed or considered. Appeal at 1 and 2. In particular, appellant believes that the EA did not consider the following for each stream: are fish present and if so, what species; if fish are present are they fishable ; the current status of the fish habitat; and if the fish habitat is degraded, how it can be mitigated. Appeal at 2. Response: I find that the EA discussed the direct, indirect, and cumulative effects to fisheries, including which species are present and the status of the fish habitat. The Code of Federal Regulations (CFR) at 36 CFR 220.7(b)(3)(iii) states that the agency may consider the direct, indirect, and cumulative impact(s) of the proposed action and any alternatives together in a comparative description The EA at 139 describes the fish bearing streams that are in and adjacent to the Red Knight planning area. Specifically, brook trout are found in Jackson Creek, while redband trout, Miller Lake lamprey, lamprey, blue chub, tui chub, speckled dace, Klamath largescale sucker, and brook trout are all found in the Upper Williamson River. EA at 139. The EA notes that the Upper Williamson River is outside of the planning area (EA at 138) while it also describes Jackson Creek as the only fish-bearing stream in the project area. EA at 134. The EA fully discloses that while Jackson Creek is the largest tributary of the Upper Williamson River, it is no longer connected to the Upper Williamson River because of water diversion and power generation on private lands that have disconnected flows. EA at 134. The EA goes on to clearly indicate that there is a need to maintain current spawning and rearing habitat in Jackson Creek as it is used recreationally for fishing by the public as well as by members of the Klamath Tribe. EA at 134. In addition, the EA notes that none of the other project streams are perennial or seasonally fish bearing, and that within the project area boundary, there are no known redband trout. Stream habitat is described in the EA at 134. The EA describes the stream survey results from the ODFW and notes that Jackson Creek is rated as moderate according to ODFW benchmarks and notes that the one benchmark rated as undesirable was percent sand, silt, and organics in riffle complexes and that because of the soil types in the area, both natural and human-induced erosion may be the causes for these percentages. EA at 134. The EA then goes on to describe the effects of the no action and action alternative on stream habitat and aquatic species. EA at The EA clearly states that any treatment units within the vicinity of Jackson Creek have been designed to assure that the potential for sediment delivery is minimized or eliminated, and that there will be no mechanical entry into the Class 1 INFISH riparian habitat conservation area (RHCA) in the area where aspen restoration will occur. EA at 136. The two unnamed Page 1 of 12

2 intermittent streams in the project area that are tributary to Jackson Creek will also receive full INFISH buffers, thus assuring that sediment delivery potential is minimized. EA at 136. Thus, I find that the EA did disclose the potential effects to fisheries and their habitats, and that it disclosed where fish are found, the condition of the habitat, and the measures taken to reduce impacts. Appellant Statement #2: Appellant states that the effectiveness of the best management practices (BMPs) is overstated and that the conclusory statements made in the EA do not fulfill NEPAs mandate to take a hard look. Appeal at 2 and 3. Appellant states that streams, riparian areas and wetlands should be avoided rather than counting on BMPs to be effective. Response: I find that the EA fully described how best management practices (BMPs) would be effective in reducing potential impacts. The activity that would occur in or adjacent to Jackson Creek, which is the only perennial creek in the planning area is described in the EA at 32. For the Jackson Creek corridor and Boundary Spring, reducing conifer densities less than 7 inches in diameter is prescribed, with lopping and scattering of these trees or handpiling and burning to remove the fuels. Building removal (Jackson Creek Guard Station) and toilet removal and replacement would restore the area and lessen the potential for health and accessibility concerns. The Boundary Springs would be restored by removing water development infrastructure. EA at 32. Lodgepole pine encroachment and removal would also occur. The EA at and Appendix F fully disclosed the effectiveness of BMPs. In Appendix F, the objective of each BMP is described, and then explained as to how the BMP will reduce impacts. Implementation and responsibility are described, as is monitoring. Appendix F at In the EA, resource protection and mitigation measures are described in order to minimize or prevent potential impacts of the action alternative. EA at Appellant Statement #3: Appellant states that the EA fails to consider the effects of landings and skid trails on watersheds and aquatic habitats. Appeal at 4. Appellant states that he requested a map showing locations of past landings, skid trails and temporary roads and a map of the approximate location of proposed new landings, skid trails and roads, and that none was provided in the Final EA. Appeal at 4. Response: I find that the EA documented the effects of landings and skid trails on watersheds and on aquatic habitats. I also reviewed appellant s scoping and 30-day comment letters and find that he did not request any such maps, and thus, none were provided. Design criteria for landings and skid trails are addressed in the EA at 42. Effects are addressed in the EA at 137. Here, the EA clearly articulates that Roads account for most of the sediment problems in a watershed because they are a link between sediment source areas (skid trails, landings, and cutslopes, Page 2 of 12

3 etc.) and stream channels. A study of eroded material travel distances below fill slopes shows that more than 95 percent of relief culverts can be prevented from contributing sediment to streams if the travel distance is 300 feet or more. Roads with broad-based dips have nearly 100 percent of the contributing eroded material stopped within a travel distance of 100 feet (Burroughs and King, 1989). In addition, maintaining a buffer between the road and stream channel provides a filter that minimizes the introduction of fine sediment into the stream channel. The EA at 168 notes that Soil compaction is apt to occur on skid trails and landings when tractors and skidders make multiple passes over a particular area numerous times. In studies, as few as 4 passes of equipment can compact the ground surface and greatly reduce the infiltration capability of the soil profile (Geist, 1991). The use of mechanical harvesters, although lighter than some traditional equipment, normally results in a greater area of ground disturbance since they are not confined to skid roads. Based on the disclosure in the EA, I find that adequate information was included for the Responsible Official to make an informed decision. Appellant Statement #4: Appellant states that the EA does not discuss the post-project costs of mitigating and ameliorating habitat damage caused by the project and road construction, which he requested during the comment period. Appeal at 5. Response: I find that the EA discussed mitigation for temporary road construction and use. The EA at 176 states that While no permanent system roads would be constructed, temporary roads within or adjacent to individual units would be needed to access the treatment areas under Alternative 2. Temporary roads are built to facilitate ground-based harvest systems for the purpose of removing forest products from a treated stand more efficiently. While every effort is made to utilize old skid trails and landings, construction of new temporary roads is likely to be needed to implement the action alternative. The EA further states that Decommissioning of temporary roads after completion of harvest activities would reduce the detrimental soil conditions over time. The cumulative detrimental soil impacts from the landings, temporary roads and skid trails would not exceed the standards and guidelines in the LRMP. From past experience on the Chemult District, temporary roads are needed at the rate of about one mile for every thousand acres accessed depending on the topography and volume harvested. EA at 176. Construction and decommissioning costs associated with temporary roads is paid for by the timber purchaser, and as such, are not included in an economic analysis. I reviewed appellant s comments, but cannot find where he requested an analysis of costs associated with mitigation or amelioration of impacts. As such, none was provided. However, adequate information is found in the EA such that the Responsible Official could make an informed decision. Appellant Statement #5: Appellant states that the EA failed to consider the presence and impacts of roads that are in close proximity to streams and riparian management areas. Appellant also states that the EA did not contain a map showing where proposed roads were in relationship to streams. Appeal at 6. Response: I find that the EA fully considered the impacts of roads to streams and riparian areas. Page 3 of 12

4 See response to Appellant Statement #6 below for detailed information as to how the EA considered impacts of roads to streams and riparian areas. Appellant Statement #6: Appellant states that the EA failed to consider road-stream connectivity and the impacts to fisheries and watershed values. Appeal at Response: I find that the EA fully considered road-stream connectivity and the potential impacts to fisheries and watershed values. Road-stream connectivity is addressed in the EA at 136 and 137. The EA clearly states that Forest road impacts to hydrology and sediment yield are often correlated with road density and the number of stream crossings. Additionally, the connectivity between roads and streams can be affected by soil conditions, slope steepness, and road standards (USDA and USDI 2003). The EA then goes on to describe the potential impacts to fish and their habitat by stating that Fine sediment depositing in stream channels can cause hydrologic alterations affecting fish habitat in a variety of ways. Increases in sedimentation resulting from increased erosion may significantly affect fish habitat effectiveness. The accumulation of fine sediment can affect winter rearing habitat capabilities by decreasing the availability of interstitial spaces among rocks, roots, and large woody debris. It can affect summer rearing habitat capability by decreasing the amount of resting and holding pool habitat available to fish. Increased sediment can also affect the quality and quantity of spawning habitat available and subsequent egg survival. EA at 137. Effects to watershed values are documented in the EA at , which describes the potential for soil erosion to occur. Based on the information presented in the EA, I find that the analysis adequately supported the decision. Appellant Statement #7: Appellant states that the watershed and fisheries data in the EA is inadequate and unreliable because reliable stream surveys were not done and/or survey information was not disclosed. Appeal at 7. Appellant states that the lack of baseline data severely hampered the ability of the EA to consider impacts. Appeal at 7. Response: I find that the EA disclosed that stream surveys were conducted and what the results of the surveys were. The EA states that Jackson Creek is only fish-bearing stream in the Red Knight project area. While Jackson Creek is potentially the largest tributary stream of the upper Williamson River, it is no longer directly tributary to the upper Williamson River. Extensive development for water diversion and power Page 4 of 12

5 generation on private lands between the national forest and the upper Williamson River has effectively disconnected the surface flow historically reaching the Williamson River. EA at 134. The EA goes on to document that ODFW conducted a stream survey for Jackson Creek in October/November of 1991 and recorded the data in GIS format (ODFW 1999). The ODFW stream survey data was compared to ODFW habitat benchmarks (ODFW benchmarks provided in Appendix C of the fisheries report). Relative to the ODFW benchmarks for healthy streams, most reaches of Jackson Creek rated as moderate. Two out of five reaches contained an equal number of benchmarks rated as undesirable and desirable. Another two reaches had more desirable benchmarks than undesirable benchmarks. Only one reach contained more undesirable benchmarks than desirable. The benchmark most commonly identified as rating as undesirable was the percent sand, silt, and organics in riffle complexes. Interestingly, the benchmark most commonly identified as desirable was the percent gravel content of riffle complexes. As with elsewhere in the basin, the erodible pumice soils of the basin may be the cause for the high percentage of sand and silt found in Jackson Creek. It is uncertain how much of this is a result of natural erosion processes and how much is a result of past land management practices (i.e., logging, road development, grazing, etc.). Benchmarks generally rated as desirable included shading and the quantity and volume of large woody debris. EA at 134. In addition, the Fisheries Specialist Report, Appeal Record at 4-6, displays the habitat attributes by reach that were surveyed. In addition, the Fisheries Specialist Report, Appeal Record at 7 notes that electrofishing occurred in Jackson Creek in 2009, which helped document that non-native brook trout were the only species physically present in the creek. Finally, a stream habitat survey (Level II) was conducted along Jackson Creek in 2004; the results are documented in the Fisheries Specialist Report, Appeal Record at 9. Thus, the EA fully disclosed the surveys that were conducted and included the information obtained from those surveys. I find that the information presented in the EA and the record more than adequately informed the decision that was made. Appellant Statement #8: Appellant states that EA does not disclose the current water temperatures of streams affected by the project and that it does not address how stream temperatures might change as a result of sale implementation. Appeal at 7. Appellant also states that the EA failed to consider the loss of stream shading at road crossings and omits consideration of roads and landings in proximity to streams. Appeal at 7. Response: I find that the EA and Appeal Record fully disclosed the temperatures of streams that are potentially affected by the project. The Fisheries Specialist Report, Appeal Record at 10 and 11, explains in detail the 7-day maximum water temperatures that were recorded in Jackson Creek. The report goes on to state that Water temperatures in Jackson Creek, while meeting the redband standard of summer highs less than 20 C, remain too warm for fall spawning brook trout, and do not meet the INFISH RMO for fall spawning and adult rearing (Table 7). Sources of stream shading should be protected and improved in the short and long-term. Fisheries Specialist Report, Appeal Record at 28. The report goes on to state that all shade will be retained and as such, no impacts to temperature would occur. Fisheries Specialist Report, Appeal Record at 45. In addition, the EA at 140 and 165 discusses the existing condition of stream Page 5 of 12

6 temperatures, which takes into account the fact that road crossings have already removed streamside shade. The EA and report fully disclose that because of design criteria and the fact that all streamside shade would be retained, the project would not affect stream temperatures. Restoration efforts actually have the potential to improve stream temperatures. EA at 167 and 169. Wildlife Appellant Statement #9: Appellant states that the EA does not evaluate how the logging and slash burning activities will affect protected bird species. Appeal 8 and 9. Response: I find that the EA does disclose how thinning and slash burning have the potential to affect bird species. Landbirds, or birds of conservation concern, are described in the EA at These are the same species protected by the Migratory Bird Treaty Act. The effects of thinning and burning are disclosed in the EA at 118 and 119. The EA fully documents that for some species, the effects would be beneficial, while for others, the effects would be adverse. Disturbance to species is also addressed. EA at 118. Nest sites would also be protected. EA at 118. Appellant Statement #10: Appellant states that the EA did not discuss how the timber sale s logging and slash burning treatments will affect bird species protected under the Migratory Bird Treaty Act of Appeal at 14. Appellant states that the EA does not include mitigation measures to protect migratory birds and chicks from burning, that the Act wasn t even mentioned, and that the proposed actions do not comply with the MOU. Appeal at 14. Response: I find that the EA fully complies with the Migratory Bird Treaty Act of See response to Appellant Statement #9. The EA fully complies with the Act and contains adequate disclosure in the section titled Landbirds. In addition, the Appeal Record contains the background information on the Migratory Bird Treaty Act of See Incorporating Migratory& Resident Bird Concerns into the National Environmental Policy Act Process Region Six Forest Service & OR/WA Bureau of Land Management May 9, Scale of Analysis Appellant Statement #11: Appellant states that the EA does not analyze effects on ecologically meaningful scales and does not describe the scales of the analysis. Appeal at 11 and 12. Response: I find that the EA analyzed potential impacts on appropriate scales. Page 6 of 12

7 Various scales were used throughout the analysis, depending on the resource. For some resources, the planning area provided an adequate scale, while for others the watershed scale or larger were used. For example, impacts to marten were assessed at both the project scale and at the scale of the entire Chemult Ranger District. EA at Goshawk were assessed both at the project scale and the Forest Scale. EA at Impacts to big game were assessed at the scale of the Silver Lake Game Management Unit. EA at 128. Impacts to fisheries were assessed at the scale of Jackson Creek, which is appropriate given the physical disconnect between Jackson Creek and the Upper Williamson River. EA at 134. NEPA/Procedural Violations Appellant Statement #12: Appellant states that the Red Knight Timber Sale decision notice (DN) contains violations of law and that the Forest Service must comply with the laws of the United States. Appeal at 1. Response: I find that the DN does not contain violations of law. See responses to next seven appeal points. Appellant Statement #13: Appellant states that the EA does not discuss required disclosures identified by 40 CFR , including the disclosures of: Energy requirements and conservation potential of various alternatives and mitigation measures; Natural or depletable resource requirements and conservation potential of various alternatives and mitigation measures; Urban quality, historic and cultural resources, and the design of the built environment, including the reuse and conservation potential of various alternatives and mitigation measures. Appeal at 5. Response: I find that the Responsible Official use appropriate documentation to support his finding within the Red Knight Restoration Project EA. In addition, the Responsible Official considered all public comments when making the Red Knight decision. The regulation at 40 CFR describes the content requirements of the environmental consequences section of an environmental impact statement, while 36 CFR 220.7(b)(3) describes the requirements for documenting the environmental impacts in an EA. This section specifically states that the EA shall briefly provide sufficient evidence and analysis, including the environmental impacts of the proposed action and alternative(s), to determine whether to prepare either an EIS or a FONSI (40 CFR ). The Responsible Official found that an EIS was not necessary (DN/FONSI at 8 through 11) and clearly followed the direction found at 36 CFR 220.7(b)(3). Chapter 2 of the EA describes and compares the alternatives developed for this project. EA at 28 through 53. Environmental effects of the proposed action and alternatives are analyzed and described in Chapter 3 of the Red Knight Restoration Project EA at 53 through 194. Specifically, related to this appeal point the Responsible Official analyzed the effects of the Red Knight Restoration Project on cultural resources (EA at 157 through 159) and the Yamsay Mountain as a Cultural Landscape (EA at 57 through 65). Irreversible and irretrievable effects were also described in Page 7 of 12

8 the Red Knight Restoration EA at 189 through 190. Further, the Responsible Official addressed aspects of the project that may affect carbon emissions or sequestration and how the forest environment might respond to a changing climate. EA at 171 through 173. Appellant Statement #14: Appellant states that the range of alternatives in the EA was inadequate because only one action alternative was analyzed, even though the public requested that other alternatives be analyzed. Appeal at 6. Appellant states that the single action alternative that was analyzed failed to address obligations to protect clean water, maintain habitat for sensitive and subsistence species, and manage forests for multiple uses. Appeal at 6. Response: I find that the Responsible Official evaluated a reasonable number of alternatives, including the three the appellant submitted himself. Furthermore, I find that the Responsible Official adequately addressed obligations to clean water, habitat maintenance, and multiple uses. The regulation at 40 CFR requires agencies 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. Additionally, the regulation at 36 CFR 220 established Forest Service procedures for compliance with the National Environmental Policy Act (NEPA) of The regulation at 36 CFR 220.7(b)(2) directs the agencies to consider public comments from scoping in order to identify unresolved conflicts and develop alternatives that meet the need for action. The regulation at 36 CFR 220.7(b)(2)(i) states that when there are no unresolved conflicts concerning alternative uses of available resources (NEPA, section 102(2)(E)), the EA need only analyze the proposed action and proceed without consideration of additional alternatives. The Responsible Official considered five alternatives in the EA as a result of collaboration and public scoping comments: the no action alternative; the Modified Proposed Action; an alternative with no temporary roads; an alternative with no amendment to the Forest Plan (trees over 21 inch DBH would not be removed); and an alternative with no commercial harvest. EA at 28 through 30. Three of these alternatives were considered as a direct result of public comment. EA at through 29; Project Record at Scoping Period FS Responses. Upon consideration, the Responsible Official explained why these alternatives were not considered in detail. EA at 28 through 29. The Responsible Official used issues identified from scoping and a collaborative process to refine the proposed action into Alternative 2: Modified Proposed Action and resolved any unresolved issues. EA at 25 through 27. The Responsible Official found that the Red Knight Restoration Project will not violate Federal, State, and local laws or requirements for the protection of the environment. Applicable laws and regulations were considered in the EA at In addition, the action is consistent with the Winema Land and Resource Management Plan, as amended, and the Eastside Screens. EA at 6; DN/FONSI at 11. Appendix F of the Red Knight Restoration Project EA describes the standard operating procedures (Best Management Practices) used for the protection of water quality, which are the primary mechanism to enable the achievement of water quality standards. The application of BMPs to management activities is mandatory. EA at Appendix F. Additionally, the Responsible Official described and adopted resource protection measures for Soil, Hydrology and Riparian Areas, Wildlife, Sensitive Plants, Air Quality, Disease Control, Roads and Recreation, and Heritage Resources to minimize or prevent potential adverse effects of the action alternative. EA at 41 through 50. Appellant Statement #15: Appellant states that the EA does not identify methods and procedures required by section 102(2)(B) to insure that presently unquantified environmental amenities and values Page 8 of 12

9 may be given appropriate consideration. Appeal at 8. Appellant states that he requested that this be added to the final EA and that it was not. Appeal at 8. Response: I find that during the analysis of the Red Knight Restoration Project the Responsible Official properly considered unquantifiable environmental amenities and values, following Title 1 Section 102 [42 USC 4332] (2)(B). The National Environmental Policy Act of 1969, Title I, Sec. 102 [42 USC 4332] (2)(B) directs that, to the fullest extent possible, all agencies of the Federal Government shall identify and develop methods and procedures which will insure that presently unquantifiable environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations. The regulation at 36 CFR 220 was developed for the explicit purpose of establishing Forest Service procedures for compliance with the NEPA of 1969 and the CEQ regulations for implementing the procedural provisions of NEPA, including those to insure that presently unquantifiable environmental amenities and values are given appropriate consideration. Additionally, the Forest Service has issued policy in the form of Manual (FSM 1950) and Handbook (FSH ) direction to provide further instruction on implementing the NEPA provisions. The Responsible Official directly addressed unquantifiable values in multiple sections of the EA including Scenic and Visuals (EA at 184 through 187), Recreation (EA at 187 through 189), and Yamsay Mountain as a Cultural Landscape (EA at 57 through 65). Specialist reports for recreation, scenery and visual resources, wilderness provide additional information regarding unquantifiable values. Project Record at Specialists Reports. In addition, the Responsible Official tiered to and incorporated information from many documents that had previously identified and analyzed a range of environmental amenities and values. Included among these were the Final Environmental Impact Statement (FEIS) for the Winema National Forest Land and Resource Management Plan, as amended, the Decision Notice for the Revised Continuation of Interim Management Direction Establishing Riparian Ecosystem, and Wildlife Standards for Timber Sales (Eastside Screens, 1995), the Decision Notice for Inland Native Fish Strategy (INFISH, 1995), the Pacific Northwest Region FEIS for the Invasive Plant Program. EA at 6. The Responsible Official also implemented a multi-pronged approach to public engagement to surface and resolve issues and concerns. Because of the diverse public values reflected in ecological restoration projects, the Responsible Official chose to engage in a collaborative process for proposing, designing and resolving issues raised during scoping. EA at 25. In addition to collaborating closely with the Klamath Tribes, the Responsible Official provided opportunities for additional public comment though scoping, field trips, and four collaborative discussions. EA at 27. All comments received were used to identify key issues associated with the proposed action and add to the completeness of the assessment. EA at 27 through 28 and Appeal Record, Scoping Period Comments and Scoping Period Forest Service Responses Folders. As required, a 30-day comment period was held for the pre-decisional review of the EA. DN/FONSI at 5 and Appeal Record, Comment Period Documents and Comment Period Forest Service Responses Folders. Since the appellant did not bring up a specific amenity or value that was not considered, I can only speak in generalities. Generally speaking, I find that the Responsible Official adequately analyzed the project s unquantifiable environmental amenities. For example, inventoried roadless areas, undeveloped areas and potential wilderness was analyzed in EA at 177 through 184, scenery and visual resources were analyzed in EA at 184 through 187, and the effects of burning on air quality were analyzed in EA at Page 9 of 12

10 Appellant Statement #16: Appellant states that the EA fails to use high quality information or address gaps in data. The appellant asserts that the Responsible Official did not provide scientific literature describing adverse effects from logging and road construction and therefor has withheld important information from the public and is in violation of 40 CFR (d). Appeal at 12. Response: I find that the Responsible Official used appropriate documentation to support his findings and decision. In addition, the Responsible Official considered all public comments when making the Red Knight decision. The regulation at 40 CFR explains the purpose of the NEPA, which is not make sure high quality information is free flowing, and to ensure that Responsible Official s make decisions that are based on understanding of environmental consequence, and take action to protect, restore, and enhance the environment. The regulation at 40 CFR (d) requires Federal agencies, to the fullest extent possible, to encourage and facilitate public involvement in decisions which affect the quality of the human environment. Within the EA and DN, the Responsible Official outlined the public involvement process for the Red Knight Restoration Project. EA at 27; DN/FONSI at 5 through 6. The Responsible Official explained in the EA how scoping comments were considered and used. EA at 27 through 29 and Project Record at Scoping Period FS Responses. Additionally, comments received during the legal notice and comment period and the Responsible Official s consideration and responses to those comments can be found in Appendix G of the EA. Specifically, the appellant s comments were considered by the Responsible Official within these documents. The Responsible Official fully complied with the requirements of law, regulation and policy for an EA, and responded specifically to the appellant s comments, clearly displaying consideration of the comments submitted. Considering the public involvement process undertaken in the Red Knight Restoration Project, both the EA and the DN display (EA at 25 through 27 and DN/FONSI at 13 through 14) how information was flowing between the Responsible Official and the interested publics. In addition, the Responsible Official supplied a logical decision rationale within the DN/FONSI at 2 through 5. The regulation at 36 CFR 220.4(c)(2) directs the Responsible Official to consider public comments when making a decision on relevant environmental documents. The Responsible Official displayed this consideration in the Red Knight Restoration Project by responding to appellants and other interested public s comments documented in the project record and in Appendix G of the EA. In getting to the root of the appellant s reference to the lack of scientific literature regarding the resource impacts caused by timber harvest and temporary road construction, the regulation at 36 CFR 220.7(b)(3)(iv) directs the agency to discuss the impacts of the proposed action and any alternatives. Forest Service policy (June 20, 2007) directs the Responsible Official to base their decision on technically sound science. I see this point as an appellant assertion that the project s effects analysis, as outlined in the EA, was not adequate or properly supported. The regulation at 36 CFR 220.7(b)(3)(iii) directs the agency to describe the effects of the proposed action and any alternatives in terms of context and intensity. The effects of the selected alternative, Alternative 2, were thoroughly described. EA at 53 through 194. Both beneficial effects and adverse effects were discussed. For example, potential beneficial forest fuel effects were discussed (EA at 80) and potential adverse soil and hydrology effects were discussed (EA at 159 through 170). Page 10 of 12

11 In addition, the Responsible Official detailed project resource protection and mitigation measures within the EA at 41 through 51. These measures and criteria minimize the potential adverse environmental effects from the Red Knight Restoration Project. The Red Knight Restoration Project displayed an unbiased analysis through a variety of reference types (EA at 196 through 209) and considered all references brought forward during scoping and during the formal comment period (EA at Appendix G, response to comments). Further, a separate document in the project record responds specifically to each of the appellant s literature submissions (Project Record #7A). Specifically, the references that were used in the Red Knight Restoration Project were academic articles, professional organization articles, government agency articles, past NEPA decisions, and professional experience (education, past training, years of experience, and certification knowledge). The Responsible Official and his resource specialists surfaced the best available science from various mediums and adequately met the best available science provisions of the Forest Service guiding regulation and policy. Appellant Statement #17: Appellant states that the Forest Service violated NEPA and NFMA in developing the EA for the Red Knight timber sale because the Acting Forest Supervisor predetermined the scale, location, and duration of the project through a number of unlawful pre-project procedures. Appeal at 13. Response: I find that the Responsible Official did not violate the National Environmental Policy Act or the National Forest Management Act in developing the EA for the Red Knight Restoration Project. The regulation at 36 CFR 220.7(b)(1) requires the Responsible Official to briefly state the need for action in an EA. Further the CEQ regulations at 40 CFR describe scoping as an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action. The Forest Service Handbook at , 11.2 specifies that a proposed action should include the following components: who is proposing the action, what is being proposed, where is the action being proposed, when will the action occur and how will the action be implemented. Consequently, an identified purpose and a need and specific proposed action are required to meaningfully evaluate public comment, identify issues, and develop alternatives to the proposed action. Without a specific proposed action, which includes scale, location and duration, the public cannot meaningfully comment on a proposal. The Responsible Official clearly identified the purpose and need for action in the Red Knight Restoration Project EA. EA at 5 and 22. From that purpose and need, the Responsible Official proposed a specific action as required by NEPA and the FSH. EA at 22 through 25. The specific proposed action the appellant refers to was then distributed to the public for comment. DN/FONSI at 5 through 6 and EA at 27. From the scoping comments received, issues were identified and alternatives developed as required by regulation at 40 CFR and (c). Appellant Statement #18: Appellant states that the EA does not specifically state whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted as required by law as appellant requested in his comments. Appeal at 13 and 14. Response: I find that the Responsible Official appropriately supported the Finding of No Significant Impact and minimized environmental harm, utilizing project design criteria and mitigation measures within the Red Knight Restoration Project EA. Page 11 of 12

12 The regulation at 40 CFR 1500 is divided into different subsections that focus on regulations for environmental impact statements (EIS) and other environmental analysis documents. The regulation at 40 CFR (c) directs the Responsible Official to state whether all practicable means to avoid or minimize environmental harm from the selected alternative have been adopted or why they have not. This section of the regulation speaks specifically to EISs. Due to the context and intensity of this project, the Responsible Official addressed the effects of the Red Knight Restoration Project in an EA. DN at 7. Therefore, the specific regulations at 40 CFR (c) does not apply to the Responsible Official s Red Knight Restoration Project EA. However, the Red Knight Restoration Project EA displayed ten pages of resource protection and mitigation measures. EA at 41 through 51. These features were reviewed by the Responsible Official to make sure overall objectives and action consequences were addressed appropriately. The activities and their effects, including the implementation of project design elements, will be monitored as described in the EA. EA at 45, 50, 56, 71, 134, and 172. These are described by the Responsible Official in order to show how certain implementation actions, or the lack thereof, can minimize adverse project effects. Appellant Statement #19: Appellant states that each statement of adverse effects to various natural resources in Chapter 3 is followed by a statement intended to dilute, minimize, and diminish the importance of the stated adverse effects without identifying the USFS employee responsible for that particular analysis. Appeal at 15. Appellant states that the EA failed to identify who wrote the scenery and visual section, recreation section, inventoried roadless/potential wilderness/undeveloped areas section, and wildlife section and failed to list their qualifications. Appeal at 15. Response: I find that the Responsible Official went beyond what was required by regulation in identifying those responsible for writing various sections of the Red Knight Restoration Project Environmental Assessment. The regulation at 40 CFR speaks to the requirements for environmental impact statements, stating that a list of the names, together with their qualifications (expertise, experience, professional disciplines), of the persons who were primarily responsible for preparing the environmental impact statement or significant background papers, including basic components of the statement. It goes on to state, where possible the persons who are responsible for a particular analysis, including analyses in background papers, shall be identified. The regulation at 40 CFR (b) describes the content requirements for environmental assessments stating that environmental assessments shall include brief discussions of the need for the proposal, of alternatives, of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted. The Red Knight Restoration Project Environmental Assessment went beyond the content requirements described in the CEQ regulations for EAs and included in Chapter 5 a list of each member of the interdisciplinary team along with their subject matter area of expertise (EA at 195). Additionally, all specialist reports summarized in the environmental assessment are located in the Red Knight Restoration Project EA project record (Project Record at Specialist Reports). Each of these reports are signed and dated by the author. Reports for the scenery and visual section, the recreation section, the inventoried roadless/potential wilderness/undeveloped areas section, and the wildlife section are all located in the project record (Project Record at Specialist Reports), thus complying with the requirements of content in an EA. Page 12 of 12