VWC-EIS, Objection Issues and Responses #11, #12 #13

TUESDAY, NOVEMBER 20, 2018

Index of VWC-EIS, Objection Issues and Responses. 33 issues addressed 

United States Department of Agriculture Forest Service

Rocky Mountain Regional Office 

Response to Objections on the Village at Wolf Creek Access Project, Rio Grande National Forest

My post of the "Index of the VWC-EIS, Objection Issues and Responses" has been amazingly well visited.  Ironically, I also put together a series of posts of highlights from those 33 responses.  Then I ran out of steam and it didn't seem important, and other matters were, and I was gone, now I'm thinking perhaps it's more important than I thought and that it would be good to post them after all.

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United States Department of Agriculture Forest Service

Rocky Mountain Regional Office 

Response to Objections on the Village at Wolf Creek Access Project, Rio Grande National Forest 

November 2018 

Contents 

Issue 11: New information and stale (dated) analysis requires new NEPA process

Issue 12: ANILCA as preferred alternative is not compared to other alternatives

Issue 13: The consideration of connected actions and indirect and cumulative impacts in the DEIS is inadequate

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Issue 11: New information and stale (dated) analysis requires new NEPA process 

Objectors raise several points under this heading, detailed below. However, the new information provided for consideration is limited. 

Issue 11 (a): Objectors allege that the Forest Service failed to meet the NEPA standard for supplementation in its review of the new information contained in the Supplemental Information Report. The standard is found at 40 CFR § 1502.9(c)(1)(i)-(ii) and courts have characterized this standard as requiring the agency to determine whether the new information or changed circumstances present a seriously different picture of the environmental effects than presented in the FEIS. Objectors state, “No effort is made to assess the significance of any of the impacts listed in the Supplemental Information Report. Each alone, and taken together, involves significant new circumstance and information related to the environmental concerns....” As noted by objectors, the Forest Service shall prepare a supplemental NEPA document “if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 CFR 

§ 1502.9(c)(1)(i)-(ii). Objectors bring up a few examples of what they believe are changed circumstances, including the 2013 Rio Grande Cutthroat Trout (Oncorhynchus clarkii virginalis) Conservation Strategy, and further indicate they “are not required to demonstrate certain harm to trigger Forest Service NEPA duties.” However, objectors do not provide the requisite information on how the new circumstances or information are relevant to their environmental concerns or have bearing on the alternatives considered or impacts described in the FEIS. 

Analysis 

Regarding Rio Grande cutthroat trout, it should be noted that Colorado Parks and Wildlife is a member of the Conservation Team and that they also manage the populations of Rio Grande cutthroat trout in the vicinity. The FEIS (pp. 3-63 to 3-63, 3-86 to 3-87, 3-103, 4-98 to 4-106 and 4-128 to 4-144) and Biological Evaluation (pp. 65-76) address the species, maintaining water flow (various discussions of instream flow), and water quality, which are habitat requirements for the species and concerns of climate change. The 2013 Conservation Strategy specified is not new information as it was published prior to the 2014 FEIS. Further, Rio Grande cutthroat trout is not a threatened or endangered species that would be addressed in the revised Biological Assessment (it is, however, addressed in the existing September 2013 Biological Evaluation (BE)). Similar concerns mentioned by objectors, including the effects of climate change and water use and quality on other species, do not provide additional materials for consideration or how those concerns are related to the analysis (i.e., September 2013 BE at p. 134 says there is no yellow-billed cuckoo habitat present in the project area and therefore the project would have “no effect” on the species). 

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Objectors also suggest that LMJV’s January 12, 2018, letter presents new information requiring a supplemental EIS, but the Forest Service did not accept that letter as a proposal and the Draft ROD selects Alternative 3, not LMJV’s January 12, 2018, letter. 

Conclusion 

Based on information contained in the project record, I find the responsible official previously addressed concerns related to Rio Grande cutthroat trout and other species, and I find there are no changes in the effects analysis as a result of the Conservation Strategy. Therefore supplementation of the FEIS is not required under 40 CFR 1502.9(c)(1)(i)-(ii) and Forest Service Handbook FSH 1909.15 Section 18. The responsible official complied with the requirements of NEPA. 

Issue 11 (b): Objectors claim that the Forest Service cannot rely on the FEIS because of the 2017 court order. In his May 19, 2017, order Judge Matsch, “ordered that the Record of Decision dated May 21, 2015, is set aside” (Order at 40). 

Analysis/Conclusion 

Judge Matsch’s order expressly addresses the 2015 Final ROD and does not present new environmental information or changed circumstances not considered in the FEIS. Therefore, the court decision does not present new information requiring supplementation of the FEIS. Also see response to Issue 2. 

Issue 11 (c): Objectors allege that the Forest Service issued the Draft ROD before initiating ESA Section 7 consultation. 

Analysis 

The responsible official reinitiated consultation with the USFWS with a Biological Assessment dated July 18, 2018, and is waiting on consultation completion as indicated in the Draft ROD (p. 1). 

Conclusion 

There is no Forest Service or NEPA requirement regarding timing of ESA processes except that the Forest Supervisor cannot issue a Final ROD before consultation is complete. Based on my review of the project record, I find the requirements of both NEPA and ESA will be met. 

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Issue 12: ANILCA as preferred alternative is not compared to other alternatives 

Objectors allege that the Forest Service violated NEPA (40 CFR 1502.14(e)) by failing to identify the ANILCA Alternative (Alternative 3) as the preferred alternative. 

Analysis 

The DEIS identified the land exchange as the preferred alternative (DEIS, p. 2-50). Both the 2015 Final ROD and the 2018 Draft ROD identify the no-action alternative as the preferred alternative. Also see responses to Issues 15 and 23 (wetlands). 

Conclusion 

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NEPA regulations only require the agency to identify the preferred alternative. They do not require the agency to select the preferred alternative. The Draft ROD identifies the no-action alternative as the environmentally preferable alternative but explains why it is selecting the ANILCA access alternative. NEPA regulations do not require more. 40 C.F.R. 1500.3. 

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Issue 13: The consideration of connected actions and indirect and cumulative impacts in the DEIS is inadequate 

Objectors raised several points under this heading specific to further consideration of the potential build-out options as connected actions. For clarity, these issues are further itemized and detailed below. 

Analysis 

Issue 13 (a): Objectors claim that the Forest Service failed to assess and disclose how the power requirements of the Village at Wolf Creek would be met, without which it cannot make a reasoned determination of whether the existing power infrastructure would be adequate, or whether on-site power production (and its attendant air quality and other impacts) would be necessary, or whether power line expansion (and its attendant impacts) would be necessary. As objectors note with regard to the FEIS, San Luis Valley Rural Electric Cooperative (SLVREC) is the public utility that could provide power for the development concepts. While it is uncertain what SLVREC’s methodology is in the FEIS, they are the subject matter experts. 

SLVREC’s projections for various development scenarios, if or when proposed, would be reflected in load scenarios and regulations administered by Colorado Department of Regulatory Agency’s Public Utilities Commission (C.R.S. 723) and applicable federal regulations that govern public utilities. The responsible official consulted with SLVEC, and they responded that upgrading the existing electrical grid that supplies power to this area is in SLVEC’s future plans (within the existing right-of-ways). SLVEC felt these upgrades would accommodate the potential development under Alternatives 2 or 3. The FEIS (pp. 2-7 to 2-10) discloses these findings, and points the reader toward Appendix A, Table A- 3, for further information (FEIS vol. 1, pp. 2-7 through 2-10). Although some objectors acknowledge that “the Forest Service faces a challenge in correctly anticipating the true impacts of the Village at Wolf Creek, since many of those impacts will ultimately depend on the increase in skier numbers and local traffic on Highway 160 and on the Pass itself that the Village at Wolf Creek may bring...” they also claim that site-specific analysis has not been adequately completed. 

All development scenarios in the FEIS are conceptual for the purpose of analysis and cannot be analyzed so site-specifically that they address any possible future development configuration on private land that may cause effects. Proposals to use designated utility corridors will be subject to site- specific environmental analysis (1996 Rio Grande National Forest Land and Resource Management Plan, p. III-38). Any proposed upgrades to existing electrical transmission lines (overhead and buried) within existing rights-of-way that service this area and cross National Forest System lands would require additional Forest Service analysis and approval (FEIS Appendix A, Table A-3, p. 5). The FEIS discloses that an on-site natural gas distribution facility would be needed under the Moderate and Maximum Density Development Concepts in Alternatives 2 and 3 (pp. 2-7 to 2-10 and Appendix A, Table A-3). 

With regard to Propane, Liquefied Natural Gas (LNG), and Natural Gas Pipeline, the FEIS alludes to “Supplemental Power Options,” with an explanation as to how they would be transported to the site, “that may be evaluated” at a future time. (FEIS vol. 2, Chapter 11, Appendix A, Table A-3, p. 5). As 

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described in the response to comments from the Environmental Protection Agency (EPA), site-specific NEPA analyses may be required during the Mineral County permitting process (FEIS, vol. 2, Appendix I, p. 84). The responsible official analyzed and disclosed potential effects of what can be reasonably assumed from conceptual development plans with the input of the subject matter expert (SLVREC). 

NEPA does not require the analysis of a “worst case” scenario, which here would be to assume that the high development scenario should apply as suggested by objectors. The CEQ direction regarding worst case scenario was withdrawn in 1986 when the final rule was promulgated (Federal Register/Vol. 50, No. 154 / Friday, August 9, 1985). The 1985 proposed rule says “the Council has concluded that the “worst case analysis” requirement is an unsatisfactory approach to the analysis of potential consequences in the face of missing information. The requirement challenges the agencies to speculate on the “worst” possible consequence of a proposed action. Many respondents to the Council's Advance Notice of Proposed Rulemaking pointed to the limitless nature of the inquiry established by this requirement; that is, one can always conjure up a worse “worst case” by adding an additional variable to a hypothetical scenario.” The Forest Service indicates the specific points which may require additional site-specific analysis, thereby identifying incomplete or unavailable information (40 CFR 1502.22). 

Issue 13 (b): Objectors allege the Forest Service violated NEPA by failing to address the impacts of communication facilities (specifically utility corridors) associated with the potential development of Village at Wolf Creek. Objectors are not clear if there is adequate room to install utilities adjacent to the road within the right of way. Rio Grande National Forest forest-wide Standards and Guidelines would apply at any such time as changes to communication infrastructure that crosses National Forest System lands are considered. The FEIS (vol. 1, p. 2-8) assumes the power and communication infrastructure to be within the road corridor, and thus specifically addresses objectors’ concerns regarding where communication equipment would go on National Forest System lands: “The power and communications infrastructure would extend from existing utilities in the Hwy 160 ROW south to the development via the entry road across the private property.” The right-of-way would be 100 feet wide with a road width of 22-24 feet, and thus there would be ample space for the utilities.See also FEIS Appendix A, Tables A-1 and A-3. Because the disturbances would be included in the road corridor and are covered by the disturbance for the roads in the development scenarios, this issue has been addressed in response to objector’s stated concern and in compliance with NEPA. 

Issue 13 (c): Objectors claim that the FEIS fails to assess the air quality impacts of air pollution emissions (specifically particulate matter (PM), sulfur dioxide, and nitrogen oxides (NOx) affecting visibility) from up to 1,500 new wood burning stoves and fireplaces that could result from the potential development of the Village, in violation of NEPA and the Clean Air Act (42 U.S.C. §7491-Visibility protection for Federal class I areas). Particulates are the most common pollutant affecting visibility (FEIS, vol. 1, p. 3-35). The FEIS acknowledges that the “most likely sources responsible for visibility impact are wood burning...” The FEIS addresses impacts on air quality based on the maximum development scenario from 1,981 gas fireplaces assumed to be burning simultaneously (FEIS, vol. 1, Table 4.5-3) that could conceivably be installed instead of wood burning fireplaces, as it has become standard practice to install natural gas or propane fireplaces in newly constructed housing, often to comply with state efficiency standards (Colorado International Energy Conservation Code 2015) and occasionally local ordinances. 

The FEIS (pp. 4-62 to 4-63) describes the methodology, summarizes modeling data for NOx and PM, and describes visibility impacts. The analysis assumes that all housing units in a maximum development scenario have fireplaces and result in inconsequential impacts to air local and regional 

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quality. The analysis also describes visibility impacts on the Weminuche and South San Juan Wilderness areas using the EPA VISCREEN model, which predicts no degradation to visibility (FEIS pp. 4-62 through 4-63). Even if wood burning stoves were used, they must meet EPA Phase II standards to meet air quality regulations and meet the particulate emissions limit of 4.5 grams per hour for non-catalytic, catalytic, and pellet wood heaters, which FEIS (Appendix A, Table A-3) assumptions acknowledge. Perhaps most notable among these emissions affecting visibility is the very low particulate matter, estimated to be 0.05 tons per year. Because all development scenarios are hypothetical, the FEIS analysis presents a conservative approach to address emissions from possible fireplaces to determine compliance with National Ambient Air Quality Standards and Prevention of Significant Deterioration while simultaneously meeting the hard look requirements of NEPA. 

Issue 13 (d): Objectors allege the Forest Service violated NEPA by not addressing the impacts of on- site diesel emissions during construction on air quality. The responsible official conducted thorough analysis of the potential effects on Air Quality, and disclosed the effects of diesel engine emissions during construction (FEIS, vol. 1, pp. 4-56 through 4-72). Effects of diesel engines are expected to be controlled by best management practices (FEIS, vol. 1, pp. 4-61, 4-63, 4-64, 4-67, 4-69). Cumulative effects on Air Quality indicate that “total incremental contribution to cumulative climate and air quality impacts is not considered substantive, even in combination with the worst case alternative being evaluated in this action.” (FEIS, vol. 1, p. 4-72). The responsible official addressed the effects of diesel emissions consistent with NEPA and found they do not exceed Clean Air Act standards. 

Issue 13 (e): Objectors claim that the Forest Service declined to assess the indirect impacts of greenhouse gases from the project on climate change using the cost-benefit Social Cost of Carbon protocol. Social Cost of Carbon is used to estimate the monetized damages associated with an incremental increase in greenhouse gas emissions in a given year. Social Cost of Carbon has been used in rulemaking for Corporate Average Fuel Economy (CAFE) standards, pollution standards for future power plants, emissions guidelines for new and existing stationary sources for commercial and industrial solid waste incineration units, and other rule-making activities (Fact Sheet: Social Cost of Carbon, November 2013). 

The responsible official recognizes the Social Cost of Carbon methodology, but also recognizes the limitations in applying it for this analysis. The Wolf Creek Land Exchange is not a regulatory action. The purpose of the land exchange is to secure for the land owner reasonable use and enjoyment of the private property, as provided in ANILCA. To meet the purpose and need, along with the scope, scale, and context of this project, the Forest Service determined a regional economic impact analysis (which analyzed direct, indirect and induced impacts) was an appropriate quantitative tool for the FEIS (FEIS at 4-194 to 4-237). Economic impacts, or distributional effects, include consequences to jobs and labor income within the economic study area. The economic impact analysis describes effects that agency activities may have on economic conditions, and is the basis for evaluating potential economic impacts by the Forest Service in an area (FSM, chap. 1970). The results of the regional economic impact analysis represent effects to the local economy. 

A cost-benefit analysis is an approach used to determine economic efficiency by focusing on changes in social welfare by comparing whether the monetary benefits gained by people from an action/policy are sufficient in order to compensate those made worse off and still achieve net benefits (Watson et al. 2007, EPA 2010, Kotchen 2011). A cost-benefit analysis requires the identification and valuation of all the costs and benefits associated with an action/policy in a common monetary measure and is often expressed either as net benefits or as a cost-benefit ratio, which indicates the value of benefits obtained from each dollar of costs (Field 2008, EPA 2010). 

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The results from a regional economic impact analysis are not considered benefits or costs (Watson, Wilson, Thilmany and Winter 2007). Cost-benefit analyses and regional economic impact analyses are very different methods that are focused on quantifying or monetizing different measures (social welfare and economic activity, respectively), are based upon differing assumptions and terminology, and are not interchangeable. As such, the FEIS did not attempt to monetize the economic benefits which would be included in the benefit side of a cost-benefit analysis associated with greenhouse gas emissions resulting from heating or construction associated with the possible housing development. 

Notably, the FEIS did not include the total economic benefits of electricity generation and use, expressed in terms of annual cost savings of domestic power generation. This type of information, along with the social cost of carbon estimates or other monetized costs, would be needed for a cost- benefit analysis to be meaningful to the public and the decision-maker. The absence of any economic benefit information limits the usefulness of the social cost of carbon analysis as the information would not be placed in an appropriate context (FEIS, vol. 1, pp. 4-194 through 4-198). 

The Forest Service recognizes that when data on incremental changes in domestic and global greenhouse gases is available (and other comparable monetized costs and benefits are also estimated), the Social Cost of Carbon protocol can serve as a useful tool to estimate global climate change impacts in monetary terms. However, this information was not available for this project level analysis. Quantifying economic benefits (e.g., annual cost savings of domestic power generation) and costs (e.g., Social Cost of Carbon) associated with different alternatives was not feasible in this FEIS in the absence of an analysis of domestic and international energy and economic systems as a whole. In particular, if the responsible official had estimated the Social Cost of Carbon based on the assumptions in FEIS (pp. 3-33 to 3-34), it would have been a failed analysis. Not only would it have been an unbalanced analysis by presenting only costs, but it would also have been substantially flawed by using total greenhouse gas emissions associated with the project rather than the incremental domestic and global change in greenhouse gasses between the no-action and action alternatives. Therefore, the responsible official applied the best available scientific information to select greenhouse gasses as the common metric to compare effects across alternatives, using the maximum development scenario for each (FEIS, vol. 1, 4-60). 

Conclusion 

Based on my review of the FEIS and the project record, I find that the responsible official complied with the requirements of NEPA (40 CFR 1501.2) by addressing social and economic factors in its analysis and by quantifying greenhouse gasses consistent with CEQ recommendations.