Appeal Deciding Officer, Forest Supervisor

Transcription

1 Forest Service Finger Lakes National Forest Hector Ranger District State Route 414 Hector, NY Tel. (607) FAX (607) File Code: 1570 Date: August 29, 2012 Route To: Subject: To: Appeal of the Decision Notice and Finding of No Significant Impact for the Pine Vegetation Management Project, Walker Ranger District, Chippewa National Forest, Appeal # A215 Appeal Deciding Officer, Forest Supervisor This letter constitutes my recommendation for the appeal filed by Mr. Dick Artley on the Pine Vegetation Management Project, Chippewa National Forest (CNF), on July 23, District Ranger Carolyn Upton signed this Decision Notice (DN) and Finding of No Significant Impact (FONSI) on June 13, A legal notice of the decision was published June 13, 2012, in The Pilot Independent (Walker, MN). My review was conducted pursuant to 36 C.F.R. 215, Notice, Comment, and Appeal Procedures for National Forest System Projects and Activities. To ensure the analysis and decision are in compliance with applicable laws, regulations, policies, and orders; I have reviewed and considered each of the points raised by the Appellant and the decision documentation submitted by the CNF. My recommendation is based upon review of the Project Record (PR) including but not limited to the scoping letter, public comments, Environmental Assessment (EA), DN and FONSI. On August 2, 2012, the District Ranger ed the Appellant to arrange discussions for potential informal resolution of his appeal. On the same date, Mr. Artley replied via that he chose to just have the appeal process continue. Therefore, the appeal review process will go forward. APPEAL ISSUES: The Appellant raised five primary issues in his appeal with Issue 1 having four sub-issues, which are addressed below. Issue 1: The Responsible Official did not take a Hard Look at the Environmental Consequences of Implementing the Pine Vegetation Management Project which Violates the Administrative Procedures Act, 40 CFR (b), 40 CFR and 40 CFR Finding: Based on the responses below (Response 1a, 1b, 1c and 1d) I find that the EA adequately takes a hard look at the environmental consequences of the proposed action and alternatives. I also find that the Responsible Official adequately considered public comment and does not violate and law, regulation or policy. America s Working Forests-Caring Every Day in Every Way. Printed on Recycled Paper

2 Appeal Reviewing Officer 2 Issue 1a: EA fails to present opposing scientific opinions. The Appellant states, NEPA requires decision-makers working for Federal agencies to examine the salient points of a project before making the decision. This means examining a reasonable amount of scientific information related to similar projects or projects that implemented the same treatments. Referencing only science literature that shows probable positive project outcomes and excluding science literature that discusses possible unintended harm that the project might cause is an indication that the Responsible Official did not take a hard look at the project s effects. The final EA fails to provide the necessary information or analysis to foster either informed decision making or informal public participation for the Pine Vegetation Management Project. Instead, the final EA contains references that show the project benefits the ecosystem. This action indicates that the Responsible Official is offering the public a biased justification for a preordained result. To comply with the hard look requirements a Responsible Official must review and consider the available information that she knows to exist that relates to the Proposed Action and it s (sic) alternatives. This includes information that both supports and opposes activities that will occur when the selected alternative is implemented. (NOA, p 1-2) Response: EA, Appendix D: Response to Comments responds to 23 issues from two commenters. In the response relating to attachments present[ing] responsible opposing view[s].describ[ing] the resource damage caused by the majority of commercial timber and road construction.activities the EA states (p. D6-8) that The documents referenced by you were considered in my review of the analyses and in reaching the decision. It is worth noting that only some of the documents were peer-reviewed scientific literature; many were opinion documents and many were web sites. Most of the submitted documents described commonly recognized impacts that can result from forest management activities. The Forest Service is aware of this information, recognizes that these potential impacts can exist in certain environments and landscapes, and considers them in the decisionmaking process. The information provided in the attachments sent by you have been reviewed and considered by the Ranger and the Interdisciplinary Team. However, much of the information is general in nature and not specific to this project. We are most concerned with identifying scientific information that would be relevant specifically to the project area and local conditions, especially information that differs from Agency guidance or Forest Plan direction, and any information that would lead the decision maker to develop additional alternatives. Throughout the effects analysis there are citations for a number of scientific studies and monitoring reports from the Minnesota Department of Natural Resources on the effects of similar actions on comparable environments. The Responsible Official states in the Decision Notice (p. 3) I have carefully read and considered the effects discussed in the environmental assessment, the Biological Evaluations, and the comments received during scoping and the 30-day comment period. I also considered

3 Appeal Reviewing Officer 3 applicable laws, the Forest Plan, the MOU requirements on the MBTA (Migratory Bird Treaty Act), and how well each alternative met the purpose and need for the project. Issue 1b: EA fails to include literature provided by appellant. The Appellant states, As part of the appellant s comments on the draft NEPA document, the appellant submitted hundreds of scientific opinions and listed the peer-reviewed source literature that describes how projects similar to the Pine Vegetation Management project are likely to harm and damage the natural resources within and downstream from the project area. The appellant requested the Responsible Official to read this literature and include it in the Bibliography section of the final EA. None of this source literature appears in the Bibliography section of the final EA. The documents listed in the References section of the EA do not describe potential adverse ecological effects that might result from implementing project activities such as those that will occur with the proposed logging. (NOA, p. 2) Response: Reference response to Issue 1a. The bibliography for the EA contains a number a scientific studies and reports on the effects of harvesting in Minnesota and comparable environments, as well as monitoring reports from the Minnesota Department of Natural Resources and the Chippewa National Forest. There is no requirement to include opposing view literature in the reference section of the EA. The Responsible Official states on page 5 of the DN/FONSI, The beneficial effects of the action do not bias my finding of no significant environmental effects. Impacts associated with my decision are discussed in Chapter 3 of the EA. The environmental assessment provides sufficient information to determine that this project will not have a significant impact (beneficial or adverse) on the land and its natural resources, air quality, or water quality (EA pp ). The EA (p. 34) states, Treatment would maintain or enhance riparian health and function by improving health, vigor, and size of remaining trees. The project has a May Impact Individuals or Habitat but will not likely contribute toward federal listing or cause a loss of viability to the population or species finding for Bald Eagle and Goshawk, and Black-backed woodpecker but a not likely to adversely affect finding for Threatened species. The risk of compaction and erosion from the vegetative treatments is mostly low to moderate as shown on the table on page 14 of the EA. The project provides 2,989 acres of habitat improvement, improves forest health on 2,989 acres and increases diversity in 231 acres of white spruce stands. Issue 1c: Decision does not contain rational connection between the facts found and the decision made and so is arbitrary and capricious (APA violation). The Appellant states, The Responsible Official failed to consider an important aspect of the problem by refusing to consider the adverse ecological effects of this timber sale.

4 Appeal Reviewing Officer 4 The Responsible Official made the decision that runs counter to the evidence submitted by the appellant in his opposing views attachments. The Responsible Official failed to consider an important aspect of the problem by excluding literature from the references section that describes the likely ecosystem harm caused by log removal activities. The Responsible Official failed to use reasonable diligence to determine facts necessary to the decision because important facts (adverse environmental effects) contained in the appellant s opposing views attachments was not included in the references section thus it was not cited. (NOA, p 4-5) Response: The DN/FONSI (p. 3 and p. 6) states that in reaching her decision, the Responsible Official, considered the best available science in making this decision. The project record demonstrates a thorough review of relevant scientific information, consideration of responsible opposing views, and, where appropriate, the acknowledgment of incomplete or unavailable information, scientific uncertainty, and risk Based on the context and intensity of the environmental effects documented in the EA and project file, on my experience with similar projects, and factors in 40 CFR , I have determined that the project does not constitute a major Federal action that will significantly affect the quality of the human environment. The DN/FONSI (pp. 4-6) documents reasons why the project would not have significant effects based on an evaluation of the ten significant factors (40 CFR ) and references supporting documentation from the project file for each factor. In addition, the appellant doesn t specify a particular resource or activity that causes the effects he references. Issue 1d: Decision violates 40 CFR (b), 40 CFR and 40 CFR The Appellant states, 40 CFR (b) requires the Responsible Official to conduct an accurate scientific analysis. Accurate scientific analysis is dependent on using all relevant information related to the proposed project. ( ) 40 CFR (b) requires the Responsible Official to make high quality environmental information available to citizens before decisions are made and before actions are taken. 40 CFR requires the Responsible Official to provide the public with supporting evidence that she conducted an appropriate environmental analyses based on best science. No such evidence is included in the EA. In a nutshell Ranger Upton only presented references that support timber harvest. The appellant submitted statements showing how multiple natural resources are harmed or rendered incapable of functioning properly when logging occurs in the same vicinity. These statements were authored and/or signed by over 500 Ph.D. biological scientists not affiliated with the USDA. (NOA, p. 5) Response: Reference Responses to Issues 1a, 1b and 1 c. The regulations at 40 CFR (b) do not require inclusion of opposing views in the references section of the EA. The regulations at 40 CFR do not require the Responsible Official to provide the public with supporting evidence that she conducted an appropriate environmental analyses based

5 Appeal Reviewing Officer 5 on best science ; however as shown in the responses to Issues 1a, 1b and 1c the EA and Project Record show that this happened. The regulations at 40 CFR only applies to discussions and analyses in environmental impact statements. Issue 2: The Responsible Official did not Respond to the Responsible Opposing Viewpoints Submitted by the Appellant. This Violates 40 C.F.R (a) and (b). The Appellant states, The Responsible Official did not respond to all of the opposing views or major points of view on the environmental impacts of the alternatives including the proposed action submitted by the appellant in his comments on the pre-decisional EA. Not responding to an opposing view is an option for the Responsible Official only if she can show why the opposing view is not responsible. Here are the laws requiring the Responsible Official to respond to opposing views and major points of view. The key word is highlighted in bold, underlined font. Clearly the laws do not allow the Responsible Official to dispense with responsible opposing views submitted by the appellant. Draft environmental impact statements shall be prepared in accordance with the scope decided upon in the scoping process. The lead agency shall work with the cooperating agencies and shall obtain comments as required in Part 1503 of this chapter. The draft statement must fulfill and satisfy to the fullest extent possible the requirements established for final statements in section 102(2)(C) of the Act. If a draft statement is so inadequate as to preclude meaningful analysis, the agency shall prepare and circulate a revised draft of the appropriate portion. The agency shall make every effort to disclose and discuss at appropriate points in the draft statement all major points of view on the environmental impacts of the alternatives including the proposed action. [40 C.F.R (a)] The agency shall discuss at appropriate points in the final statement any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency's response to the issues raised. [40 C.F.R (b)]. (NOA, p. 6-7) Response: Reference responses to Issue 1a, 1b, 1c and 1d. The DN and FONSI, section III Public Participation (pg. 2) and Appendix D, documents the response to comments for this project. Appendix D provides responses to 23 issues raised by two respondents during the 30 day comment period. Response D-1.6 PF 2.30 (p. D7) states The information provided in the attachments sent by you have been reviewed and considered by the Ranger and the Interdisciplinary Team. However, much of the information is general in nature and not specific to this project. We are most concerned with identifying scientific information that would be relevant specifically to the project area and local conditions, especially information that differs from Agency guidance or Forest Plan direction, and any information that would lead the decision maker to develop additional alternatives.

6 Appeal Reviewing Officer 6 Under 36 CFR 215.6(b), the Agency is required to consider public comments. Regulations at 40 CFR apply only to the preparation of environmental impact statements. Finding: I find the Responsible Official adequately considered public comments and did not violate any law, regulation or policy. Issue 3: The EA Contains an Overly Narrow Statement of Purpose & Need that Renders ALL Alternatives that do not Harvest Trees Nonresponsive and Ineligible to be Analyzed in Detail. The Appellant states, ( ) P&N statement #1 on page 3 can be achieved using a variety of management techniques. P&N statement #2 on page 4 states: Provide commercial wood for mills in northern Minnesota in an environmentally sustainable and acceptable manner to contribute to the social and economic sustainability and diversity of local communities. Thus in order to meet the P&N an alternative must include commercial logging. Which the Appellant claims violates case law and 40 CFR ( )For timber sales with the goal to provide wood products for the economic stability of the local communities this should be the only Purpose & Need identified. For timber sales that the Responsible Official indicates will provide multiple ecological benefits, providing wood products for the economic stability of the local communities should never be included in the Purpose & Need. (NOA, p. 8-11) Response: Forest Service Handbook (FSH) , states the following regarding defining the Purpose and Need The breadth or narrowness of the need for action has a substantial influence on the scope of the subsequent analysis. A well-defined need or purpose and need statement narrows the range of alternatives that may need to be considered. For example, a statement like there is a need for more developed recreation would lead to a very broad analysis and consideration of many different types of recreation. However, a statement like there is a need for more developed campsites along Clear Creek would result in a more focused analysis with consideration of a much narrower range of alternatives. The EA, Chapter 1 (EA, 1.3 p. 3) states the purpose and need for this project which tiers directly to the Forest Plan (Forest Plan, Chapter 2). The purpose and need tiers directly to the Forest Plan and focuses on three areas (DN, p. 1-2), Improve the growth and vigor of plantation origin conifers; increase or maintain within stand species diversity and begin to create more natural spacing and structure within plantation-origin red pine, white spruce, and white pine stands. Provide commercial wood for mills in northern Minnesota in an environmentally sustainable and acceptable manner to contribute to the social and economic sustainability and diversity of local communities. Lands within the Forest serve to help sustain American Indians way of life, cultural integrity, social cohesion, and economic well-being.

7 Appeal Reviewing Officer 7 FSH , 14 states Under the CEQ [note: Council of Environmental Quality] regulations, the Agency is required to: Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources as provided by section 102(2)(E) of the Act. (40 CFR (c)) For EAs: The EA shall briefly describe the proposed action and alternative(s) that meet the need for action. No specific number of alternates is required or prescribed. 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. (36 CFR 220.7(b)(2)(i)) The EA, Chapter 2 (EA, 2.4) provides further discussion on one alternative considered, based on public scoping comments, and subsequently eliminated from further analysis. Finding: I find the Purpose and Need for the project is well defined providing a focused analysis, tiered directly to the Forest Plan. In addition the Responsible Official adequately considered an appropriate range of alternatives. I find no violation of any law, regulation or policy. Issue 4: The EA EIS Contains No Mitigation Monitoring and Enforcement Program. The Appellant states, 40 CFR (c) Requires the Responsible Official to: (c) State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. A monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation. The EA does not indicate whether a monitoring and enforcement program has been adopted to assure the required mitigation has been done and done correctly. (NOA, p 11) Response: The requirement cited from 40 CFR (c) is for decisions requiring environmental impact statements. The EA for the project is tiered to the Chippewa Forest Plan which contains a monitoring plan. The EA (pg ) contains the following statement about monitoring: The monitoring program is part of Forest Plan (2004) implementation. The NFMA and NEPA require monitoring application of Forest Plan standards. Implementation of the Forest Plan is monitored on a periodic basis for items such as presence of Management Indicator Species (MIS), and types and amounts of harvest. This information is available to the public in the annual Chippewa National Forest Monitoring and Evaluation Report and has been incorporated by reference into this EA. Specific monitoring that would occur if the Project were implemented, subject to available funding is discussed below.

8 Appeal Reviewing Officer 8 Timber sale marking guides would include all appropriate mitigation measures. A certified silviculturist would approve marking guides. During sale preparation and administration activities, the standards outlined in the CNF Timber Theft Prevention Plan (TTPP), which supplements the Region 9 TTPP, would be implemented. Timber sale contract provision would incorporated mitigation measures outlined in this environmental assessment. Temporary road closures would be monitored periodically to ensure effectiveness. Heritage resource sites would be monitored to ensure mitigation measures were implemented and effective. Sensitive species locations, both plant and animal, would be monitored to ensure project activities were implemented and effectively protecting the habitat. Finding: I find that the project does include a monitoring plan above and beyond the requirements for and EA and does not violate any law, policy or regulation. Issue 5: The Responsible Official does not Provide Mitigation Effectiveness Information for the Public. The Appellant states, The EA at page 12 describes mitigation measures that will be required to reduce natural resource damage that might be caused by the Pine Vegetation Management project however it tells the public nothing about the effectiveness of the mitigation to reduce environmental effects. If describing mitigation effectiveness was not important it would not be mentioned in the 20-page CEQ NEPA Mitigation Guidance document. ( ) This EA does not offer the public any information about the effectiveness of the particular mitigation measure proposed to be used with this timber sale when applied to past timber sales. Nor does the DN require mitigation effectiveness monitoring. The EA does not define measurable trigger points applied during implementation that indicate the mitigation is ineffective and other measures must be taken to achieve the resource protection described in the EA. Therefore, the Pine Vegetation Management project is inconsistent with the CEQ NEPA Mitigation Guidance. The Responsible Official does not offer the public an explanation for why she omitted mitigation effectiveness information. The proposed mitigation may or may not prevent damage to the natural resources in spite of the Responsible Officials statements that the mitigation will prevent the damage. This omission of mitigation effectiveness information from the EA: does not provide the public with an accurate analysis. [40 CFR 40 CFR (b)] diminishes the professional integrity, including scientific integrity of the discussions and analyses in the EA. (40 CFR ) (NOA, p 12-13)

9 Appeal Reviewing Officer 9 Response: The EA (pp ) describes mitigation measure, management requirements and monitoring for the project. Further information on the effectiveness of past mitigation measure for resources such as aquatics (p. 34, Chapter 3, section 3.52) and soils (Chapter 3, section 3.6.2, p. 38) are incorporated and analyzed in the EA along with the effectiveness of road closures in the DN (Appendix D, p. D11, D-1.12). The January 12, 2011 CEQ memorandum to Federal departments and agencies contains no guidance on providing the public with information on the past effectiveness of proposed mitigation measures. The memorandum does state that an agency should.commit to mitigation monitoring in important cases when relying upon an EA and mitigated FONSI. Monitoring is essential in those important cases where the mitigation is necessary to support the FONSI and thus is part of the justification for the agency s determination not to prepare an EIS. The memorandum further states In cases that are less important, the agency should exercise its discretion to determine what level of monitoring, if any, is appropriate. Finding: I find the project to be consistent with CEQ guidance related to mitigation and monitoring. Recommendation After reviewing the entire Project Record for the Pine Vegetation Management EA Project, and carefully considering the issues raised by the Appellant, I recommend District Ranger, Carolyn Upton s decision of June 13, 2012, be affirmed. /s/ Jodie L. Vanselow JODIE L. VANSELOW District Ranger Appeal Reviewing Officer cc: Patricia R Rowell Brenda Quale