VWC-EIS, Objection Issues and Responses #14, #15, #16

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.

___________________________________________________________________

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 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Contents 

Issue 14: The property appraisal confirms adequate access and comparable properties exist

Issue 15: The effects on wetlands are inadequately analyzed

Issue 16: The ANILCA alternative would lead to a loss of Canada lynx habitat and reduced functioning of an important Canada lynx linkage

_______________________________________________________________

Issue 14: The property appraisal confirms adequate access and comparable properties exist 

Objectors allege the Forest Service constrained the appraisals, thus avoiding difficult questions and making the ANILCA approval a foregone conclusion. 

page 23 

Analysis 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Appraisals were prepared using the following: a. the editions of the UASFLA (Uniform Appraisal Standards for Federal Land Acquisitions) and USPAP (Uniform Standards of Professional Appraisal Practice) that were current at that time, and b. the Forest Service Statement of Work written specially for this assignment. The purpose of the appraisals is to provide an opinion of market value as defined at 36 CFR 254, Subpart A (36 CFR 254.2): “Market value is defined as the most probable price in cash, or terms equivalent to cash, which lands, or interests in lands should bring in a competitive and open market...” 

Appraisals must be completed to determine if the values of the parcels proposed for exchange are equal, or may be made equal with a cash equalization payment less than 25 percent of the value of the federal parcel, as per the requirement of the FLPMA, not ANILCA. The FEIS discusses how appraisals are used as a requirement of FLPMA and that value for federal and non-federal parcels is determined by appraisal (FEIS, vol. 1, Section 1.8, pp. 1-15 through 1-16). The responsible official responded to comments regarding appraised highest and best use, and how appraisals are conducted. As part of the Supplemental Report to the Appraisal of non-Federal land (September 1, 2014), the instructions state, in part, that the contract appraiser shall “...make a detailed field inspection of the subject property and conduct as many investigations and studies as are necessary to derive sound conclusions.” 

The instructions do not direct a specific type of appraisal approach. Possible appraisal approaches include using comparable sales or using the development approach. However, the instructions note that the development approach should not be relied upon as the primary indicator of value when comparable sales are available; and, that if the development approach is used, the contract appraiser shall adhere to the UASFLA direction pertaining to this highly sensitive and complex method of valuation. Further, UASFLA, which the contract appraiser was instructed to comply with, states, “When a property’s market value can be reliably estimated using comparable sales, the development approach should not be relied upon as a primary indicator of value, as its underlying assumptions are ‘largely speculative’ and ‘subjective elements...enhance the risk of error’” (2016 UASFLA, Section 4.4.5.4, p. 145). 

When properly developing a sales comparison approach for appraisals, differences between the subject property and properties that have sold are considered. The contract appraiser determined that relevant elements of comparison were: property rights conveyed, financing terms, conditions of sale, market conditions (time), location, ski area influence, access, adjacent land uses, utility availability, natural features, topography, views/exposure, property size, and zoning/land use. By considering these differences in the two appraisals (one each for the federal and non-federal parcels and both with effective dates of value of September 1, 2014), validity of the two sales comparison approaches was achieved. 

Regarding the sales comparison approach in relation to an ANILCA similarly situated lands comparison, terms used for property comparisons related to land valuation appraisals have distinct definitions and are not to be confused with terms used for property comparisons related to ANILCA similarly situated lands comparisons. Terms used to determine market value and the appraisal process are located in 36 CFR 254.9. Standard terms used to determine market value during the appraisal process require definition of highest and best use, comparable property, and description of legal access. These terms are not associated with the ANILCA determinations for reasonable use and enjoyment, similarly situated properties, or adequate access. Importantly, this “Appraisal vs ANILCA” distinction is perhaps most evident when one considers that Forest Service policies direct appraisers to look at 

page 24 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

existing access – including legal limitations – for current use (or non-use) (FSH 5409.12 – Sections 12.22(9) and 13.32(5)), whereas ANILCA regulations charge the agency to determine adequate access for a proposed (i.e., future) land use, once that land use is deemed reasonable by the agency (36 CFR 251.114(a)). 

Additional information regarding the appraisal process, instructions, and review information are provided in the following. 1) Technical Appraisal Review Report of Kevin A. Chandler, MAI Appraisals for the federal and non-federal parcels in the Proposed Village at Wolf Creek Land Exchange (September 12, 2014), 2) the transmittal letter to the Rio Grande National Forest from the Rocky Mountain Regional Appraiser (September 15, 2014), and 3) the letter to the Director of Recreation, Lands and Minerals from the Rocky Mountain Regional Appraiser (November 19, 2014). 

Appraisals are not line officer decisions subject to appeal. They are developed by trained and licensed professionals and are technically reviewed and the conclusions approved for agency use by other trained and licensed professionals. 

While the two appraisals, one each for the federal and non-federal parcels, both with effective dates of value of September 1, 2014, were completed to ensure compliance with 36 CFR 254, were excluded from NEPA analysis, the conclusions reached in the appraisal process were considered in the NEPA decision. As a requirement of 36 CFR 254.3(c), the appraisals (and the review reports that approved them for agency use) are used by the responsible official when making decision, but are developed parallel and external to the NEPA process. Comments received on the appraisal during scoping for this project were provided to the contract appraiser and considered in the updated appraisal report as per the supplemental appraisal instructions. This was discussed in the response to comments in Appendix I of the FEIS (Section 6.0, p. 80). 

Objections were raised regarding instructions provided by the Forest Service Review Appraiser to the appraiser wherein the appraiser was directed to apply a hypothetical condition that current encumbrances on the federal parcel currently authorized as permits (i.e., licenses) be considered as easements for the purposes of the appraisal. It is important to note that the Statement of Work within the Supplemental Appraisal Instructions (dated August 22, 2014, pp. 7-8) explains that such a hypothetical condition is necessary for an accurate appraisal because those permits would be converted to easements upon transfer of the federal parcel into non-federal ownership. It is also important to emphasize that this hypothetical condition applies to current encumbrances on the federal parcel in favor of third parties (electric and telecommunication providers), and does not speak to infrastructure/facilities on the non-federal parcel owned by LMJV or some other third party, which – if those facilities are to be retained subsequent to an exchange – would be authorized not through the issuance of a Forest Service special use authorization, but through a reservation in the deed from LMJV to the USA. Such reserved or outstanding rights typically do not require separate express authorization from the Forest Service nor an assessment of annual land use fees. 

Conclusion 

The process followed for the development of appraisals for the federal and non-federal properties proposed for exchange, and the subsequent review of the appraisals by the Forest Service’s Rocky Mountain Regional Appraiser, complies with applicable law, policy and appraisal standards. 

Based on my review of the analysis and associated documentation in the project record, I find that the responsible official’s actions are consistent with the relevant provisions of the Federal Land Policy and 

page 25 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Management Act (36 CFR 254.9) and the Alaska National Interest Lands Conservation Act (36 CFR 251.111 and 251.114(a)). 

Issue 15: The effects on wetlands are inadequately analyzed 

_______________________________________________________________

Objectors claim that the FEIS and Draft ROD are deficient because they fail to adequately assess the effects to wetlands and groundwater in analyzing the scenarios considering potential development of private lands. 

Analysis 

Issue 15 (a): The 2015 Objection Responses to issues 11c, 11d, 11e, and 11h collectively provide supporting information in the project record specific to the range of potential impacts to wetlands as a result of the alternative being considered and analyzed in the FEIS. Specifically, groundwater investigations conducted in 2005 and 2006 were focused on the Alberta Park Wetland Complex, and were designed to evaluate the potential impacts to wetlands resulting from development of the private parcel. The responsible official acknowledges that potential disruptions to groundwater hydrology of wetlands could occur, and that further investigations were not essential to a reasoned choice between the alternatives. 

The FEIS contains an evaluation of potential disruptions to the groundwater hydrology of the project area as well as an acknowledgement of the lack of groundwater data for the area east of the Alberta Park Wetland Complex. The FEIS states that “the historic flow path of groundwater must be maintained to near its historic condition to mitigate effects to the wetlands” (FEIS, vol. 1, Sections 4.2.1.2.2 and 4.2.1.3.1, pp. 4-32 through 4-35). 

Further, consistent with Forest Service direction found in FSM 5403, which speaks specifically to the agency’s role in regulating activities on private lands, section 4.2 of the FEIS provides additional clarification of the continuing roles of the county, state, and other Federal agencies in the enforcement and conditioning of activities on private lands. 

Conclusion 

Based on my review of the project record, including the FEIS and Draft ROD, I find the responsible official complied with the requirements of NEPA, CEQ regulations, the Clean Water Act, and agency regulations in FSM 2730.3 and FSM 5403 specific to authorizing access to private lands. 

Analysis 

Issue 15 (b): Although the final size, location, and design of buildings is not known, the FEIS contains a qualitative evaluation of the potential for disruptions to groundwater hydrology of wetlands based on the general locations and sizes provided in the conceptual development plans (FEIS, vol. 1, Sections 4.2.1.2.2 and 4.2.1.3.1, pp. 4-32 through 4-35). Chapter 2.4.2 of the FEIS in the “ANILCA Road Access” alternative considered a range of potential changes to wetlands and fens based on Low, Moderate, and Maximum Density of Development scenarios. The impacts from hotel and residential housing foundations, underground parking, and the roadway underpass below the ski lift are specifically discussed for each of the density development concepts. Discussion of mitigations addressing the impacts to groundwater hydrology of wetlands is further provided in in the FEIS (Chapter 2, Section 4.7.2.2). 

page 26 

Conclusion 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Based on review of supporting information in the project record, the FEIS and Draft ROD comply with the requirements of NEPA, CEQ regulations, the Clean Water Act, and agency regulation. 

_______________________________________________________________

Issue 16: The ANILCA alternative would lead to a loss of Canada lynx habitat and reduced functioning of an important Canada lynx linkage 

The objector alleges that the decision to grant an access easement, which would indirectly allow for development on private land, would fail to protect lynx habitat and further impair the Wolf Creek Pass Lynx Linkage. 

Analysis 

Issue 16 (a) -The Southern Rockies Lynx Amendment (SRLA) updated land and resource management plans (forest plans) for seven national forests in the Southern Rockies to include measures to conserve the Canada lynx. Under the Endangered Species Act (ESA), the Forest Service, including the Rio Grande National Forest, is required to protect threatened and endangered species and complete Section 7 consultation if an action may affect a listed species or designated critical habitat. 

Effects to lynx and lynx habitat are disclosed throughout the FEIS and Appendices (2014), the Biological Assessment of Alternative 2 (BA, 2013), and the Draft ROD and BA for Alternative 3 (2018). In addition, the effects to Canada lynx and their habitat were addressed for Alternative 2 in the Biological Opinion (BO) provided by the USFWS in 2013. The indirect effects identified to Canada lynx and their habitat in the analysis of Alternative 3 led to the determination that the project actions “may affect, likely to adversely affect” the species. The USFWS is currently drafting a BO for Alternative 3 in response to formal consultation initiated by the responsible official. 

The loss of lynx habitat is minor on the Rio Grande National Forest, however, due to the indirect effects anticipated from any development on private land, the Forest Service, USFWS, and LMJV developed conservation measures to minimize adverse effects to lynx (Draft ROD, p. 4). 

Issue 16 (b): The concern for reducing habitat function and connectivity was addressed in the SRLA to the forest plans of the National Forests in the southern Rockies, and is expressly the rationale for developing Lynx Analysis Units (LAUs) and Linkage Areas under the SRLA (2008). However, the Forest Service lacks jurisdiction to directly regulate private land or to regulate highways. The Draft ROD states (p. 16), “SRLA Standard ALL S1 provided that “permanent developments” and vegetation management projects must maintain habitat connectivity in an LAU and/or Linkage Area. If the Forest Service were proposing to construct a winter resort on National Forest System lands under a special use authorization, Standard ALL S1 would apply. But, Standard ALL S1 was not developed to prevent the Forest Service from authorizing access to developments on private land even where those developments have adverse impacts on connectivity. Rather, Standard ALL S1 applies only to developments on National Forest System land – where the Forest Service has jurisdiction. Thus, ALL S1 was not applicable to the Wolf Creek Village development on private land.” 

Conclusion 

Review of the information provided in the project record affirms that the ANILCA alternative does identify indirect, adverse effects to Canada lynx habitat and the linkage area, and is disclosed as required in an EIS and formal consultation initiated with USFWS on effects to the Canada lynx. The 

page 27 

Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses 

Forest Service does not have jurisdiction over private land or the highway. Therefore, I find that the responsible official complied with law, regulation, and policy.