VWC-EIS, Objection Issues and Responses #20, #21, #22

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 

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

Contents 

Issue 20: The Lynx Conservation Strategy was developed without any public involvement, in violation of NEPA

Issue 21: Application of any conservation measures is at best uncertain

Issue 22: The action alternatives would harm other wildlife

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Issue 20: The Lynx Conservation Strategy was developed without any public involvement, in violation of NEPA 

Objectors state that because the biological opinion is missing from the FEIS it has not been made available to the public for comment and review. 

Analysis 

Lynx Conservation Measures were developed during the informal consultation process with the USFWS conducted pursuant to ESA Section 7, as indicated in the Biological Opinion dated November 15, 2013. Consultation under ESA Section 7, be it informal or formal, does not require public involvement. The Lynx Conservation Measures are briefly summarized in Section 2.7.2 of the FEIS, with an expanded explanation provided in Appendix B (FEIS vol. 2, p. 13). These initial conservation measures were agreed upon by the USFWS, Forest Service, and LMJV, and have been part of the NEPA process as well as the public record. 

More recently, the USFWS, Forest Service, and the LMJV began negotiating a new Memorandum of Understanding (MOU) to address concerns expressed by the Court. Appendix B of the BA (pp. 77-84) includes the proposed MOU for Canada Lynx Conservation Measures. This includes detailed explanations of the conservation measures, commitment to funding, and creation of a technical panel, that will be in charge of enforcement of the conservation measures. 

Additionally, the Draft ROD provides information on the conservation measures as part of the NEPA process (pp. 3-4) “Due to the anticipated indirect effects resulting from development on the private land, the Forest Service, USFWS and LMJV developed conservation measures to minimize adverse effects to lynx. These conservation measures were developed during the section 7 consultation process on effects of the subject project to species and habitats listed under the ESA as specified in the November 15, 2013 Biological Opinion. The conservation measures were committed to by LMJV in writing, and would have been binding on the future developers/owners of the Village should LMJV sell, in whole or in part, the development. On April 12, 2018, LMJV sent the Forest Service a slightly revised proposed Memorandum of Understanding (MOU) which will provide a legal mechanism for enforcing these conservation measures. The original conservation measures can be found in the Biological Opinion and in an appendix to the FEIS. The proposed MOU forms the basis for a Forest Service Biological Assessment and consultation with the USFWS.” The conservation measures are addressed in FEIS and Draft ROD, are the basis for the BA (2018), and are detailed in full in Appendix B of the BA (pp. 77-84). The conservation measures have now been addressed with the public in the 2015 objection process and the 2018 objection process. 

The Forest Service is responsible for initiating consultation under Section 7 of the ESA when presented with proposals to access non-federal lands, as outlined by “Application of the Endangered Species Act to proposals for access to non-federal lands across land administered by the Bureau of Land Management and Forest Service.” 2003 Interagency Guidance from USFWS and NOAA. The Interagency Guidance states (p. 2), “a finding of “may affect, likely to adversely affect” requires 

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

formal consultation. Formal consultation resulting in a no jeopardy conclusion may include discretionary conservation recommendations. Conservation recommendations must be limited to the proposed federal action itself – the right-of-way across federal lands.” 

The MOU for conservation measures (BA, Appendix B, pp. 77-84) is an agreement between the USFWS, Forest Service, and LMJV that has gone above and beyond any discretionary conservation recommendation that would have been limited to the right-of-way access across federal land. 

Conclusion 

Review of the project record and associated information affirms that the 2013 version of conservation measures were included in the FEIS and were subject to the 2014/2015 objection process. The new MOU has been included in the 2018 Draft BA. I find that the responsible official has complied with the relevant law, regulation, and policy. 

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Issue 21: Application of any conservation measures is at best uncertain 

Objectors feel that it is the responsibility of the Forest Service to ensure connectivity of lynx habitat is maintained and lynx populations can recover to a fully viable population. 

Analysis 

The USFWS, Forest Service, and LMJV are negotiating a new MOU to address concerns expressed by the Court. On April 12, 2018, LMJV sent the Forest Service a revised MOU that provides a legal mechanism for enforcing these conservation measures. The MOU for Canada Lynx Conservation Measures (BA, Appendix B, pp. 77-84) includes detailed explanations of the conservation measures, a commitment to funding, and creation of a technical panel. The technical panel will be in charge of enforcement of the conservation measures. As stated previously, the Forest Service is responsible for initiating consultation under ESA Section 7 when presented with proposals to access non-federal lands as outlined by “Application of the Endangered Species Act to proposals for access to non-federal lands across land administered by the Bureau of Land Management and Forest Service.” The 2003 Interagency Guidance states (p. 2), “a finding of “may affect, likely to adversely affect” requires formal consultation. Formal consultation resulting in a no jeopardy conclusion may include discretionary conservation recommendations. Conservation recommendations must be limited to the proposed federal action itself – the right-of-way across federal lands.” The MOU for conservation measures (BA, Appendix B, pp. 77-84) has gone above and beyond any discretionary conservation recommendation that would have been limited to the right-of-way access across federal land. 

The MOU will be a legally binding document and the change of circumstances in the event of potential delisting of the Canada lynx by the USFWS have been addressed in two parts: 1) legal mechanism as stated in part 5 of the MOU (Appendix B of BA, p. 83), “This MOU shall be binding on LMJV, and its successors and assigns, and shall be recorded in the public land records of Mineral County, Colorado as a covenant that runs with the land which shall be binding upon subsequent purchasers of the Property to the extent unsatisfied”; and 2) change in circumstances as stated in part 6 of the MOU (Appendix B of BA, p. 84), “In the event that the Canada lynx is delisted as an endangered species in Colorado the parties agree to consult in good faith to determine whether these conservation measures should be modified in light of such delisting. However, unless otherwise agreed, these conservation measures shall remain binding notwithstanding delisting of the Canada lynx.” 

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Conclusion 

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

I have reviewed the information in the BA and associated project record documents, and find that the conservation measures can be met with certainty given that the MOU is a legally binding document that will be filed in Mineral County, outlines financial commitments by LMJV, and will be enforced by the technical panel. Therefore, I find that the responsible official complied with law, regulation, and policy. 

Instruction 

The Final ROD will address the Biological Opinion and its approach to the conservation measures. The enforcement mechanism for the conservation measures may change. However, the final ROD must address the conservation measures and document their certainty. 

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Issue 22: The action alternatives would harm other wildlife 

The objectors allege that by limiting the scope of the analysis to just the proposed village area, the Forest Service has violated NEPA by not being aware of the true impacts to wildlife. 

Analysis 

In July 2010 Western Ecological Resources was contracted to complete the assessment of wildlife species that may be affected by the proposed action. The completed assessment includes analyses for the Forest Service Rocky Mountain Region’s (Region 2) sensitive species list that consists of pine marten, boreal owl, and olive-sided flycatcher, as well as the management indicator species (MIS) brown creeper, Wilson’s warbler, hermit thrush, and Lincoln’s sparrow. Assessments were completed for both the private parcel and federal parcels, and both of these documents are part of the project record. 

In September of 2013, Western Ecological Resource prepared a wildlife biological evaluation (BE) and specialist report for Region 2 sensitive species that includes pine marten, boreal owl, olive-sided flycatcher and the MIS brown creeper, Wilson’s warbler, hermit thrush, and Lincoln’s sparrow. This BE and wildlife specialist report (2013) includes many other wildlife species in addition to the species listed above, and is incorporated into the FEIS. As part of the analysis (BE, p. 76), it was determined that “Alternatives 2 and 3 may impact individual American marten, northern goshawks, American peregrine falcons, boreal owls, olive-sided flycatchers, and Rio Grande cutthroat trout on the RGNF, but is not likely to result in a loss of viability on the planning area, nor cause a trend to Federal listing or a loss of species viability rangewide.” For all other Region 2 sensitive species, it was determined that Alternatives 2 and 3 would have ‘no impact’. 

An analysis was completed for the following MIS: brown creeper, Wilson’s warbler, hermit thrush, and Lincoln’s sparrow, as well as elk, mule deer, Rio Grande cutthroat trout, and brook trout. It was determined there could be localized affects, but that Forest-wide MIS populations would remain stable (BE, pp. 77-132). 

The responsible official analyzed in detail the effects of Alternative 3 on Region 2 sensitive species and MIS, which included big game species such as elk and deer (FEIS, vol. 1, pp. 4-139 through 4-147). Under Alternative 3, the ANILCA road would be about 1,610 feet in length and be within a 100-foot corridor with a total area of about 3.7 acres. The existing Tranquility Road would be extended east about 530 linear feet across National Forest System lands to provide access between the inholding and 

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

Wolf Creek Ski Area, and would provide limited, restricted and seasonal access between Hwy 160 and the private land inholding. Tranquility Road would also provide a route for emergency access. 

In addition, a Supplemental Information Report for the Village at Wolf Creek Access Project was completed June 28, 2018, to assess if any substantial change in conditions or information arose between the FEIS and the 2018 Draft ROD. No new information was discovered for pine marten, boreal owl, brown creeper, Wilson’s warbler, hermit thrush, Lincoln’s sparrow, or olive-sided flycatcher. 

The analysis area on National Forest System land is small in acreage relative to the amount of detailed analysis completed. 

Conclusion 

I have reviewed the relevant information in the project record, and found that potential impacts to wildlife have been identified and presented in the FEIS, BE, and wildlife specialist report (2013). I find that the responsible official complied with law, regulation, and policy.