VWC-EIS, Objection Issues and Responses #26, #27, #28

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 26: In violation of NEPA, the FEIS fails to analyze the feasibility of, and the possible impacts from, a grade separated interchange at the village access road with Highway 160

Issue 27: The FEIS fails to analyze the comparative impacts of expanding federal control via the scenic easement

Issue 28: Failure to reinitiate consultation for the yellow-billed cuckoo pursuant to Section 7 of the Endangered Species Act

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Issue 26: In violation of NEPA, the FEIS fails to analyze the feasibility of, and the possible impacts from, a grade separated interchange at the village access road with Highway 160 

Objectors contend that by failing to analyze the feasibility of a grade-separated interchange at the village access road with Highway 160, the Forest Service has violated NEPA. 

Analysis 

Objectors cite the 2011 Feasibility Analysis which did state that a grade-separated interchange would be built. However, the Feasibility Analysis is a first-level screen completed before the Agreement to Initiate is signed (Forest Service Handbook 5409.13, section 32.4). It is not a decision document. The Feasibility Analysis was completed in January 2011, prior to project scoping in April 2011. The scoping notice from April 2011 identifies that “a grade separated interchange off Highway 160 capable of handling full build-out traffic estimates will be required to be built from the very beginning of development.” However, following the public and internal scoping process, the Proposed Action was further refined to include Low, Moderate and Maximum Density Development Concepts. The point of identifying and analyzing a range of development density scenarios for the private land is to provide a full and transparent account of potential indirect effects that could result from authorization of a land exchange (Alternative 2) or road easement (Alternative 3). The effects are indirect. 

As stated repeatedly throughout the FEIS (e.g., vol. 1, Section 2.4, p. 2-6), the Forest Service lacks sufficient authority to regulate the degree or density of development on private land. This is the jurisdiction of Mineral County, and it is unknown what development configuration or density Mineral County may approve in the future. 

The Social and Economic Resources Analysis (FEIS, vol. 1, p. 4-196) indicates that implementation of the Maximum Density Development Concept would likely occur over a 30-year period. Any long-term projection for residential development of the private land carries a great deal of uncertainty, as potential economic cycles, regional demographics, societal shifts, and technology shifts result in many unknowns. Therefore, whether or not the densities assumed for the Maximum Density Development Concept would ever be achieved is purely speculative at this time. 

As indicated in the FEIS, an at-grade intersection is anticipated to be sufficient for both the Low and Moderate Density Development Concepts. However, the FEIS acknowledges that CDOT may require a grade-separated intersection at some point in the future if traffic related to private land development were to reach a certain threshold. This concept is confirmed in the November 2011 memo from Felsburg Holt and Ullevig (FHU, 2012) that says “CDOT has indicated that they are open to the concept of an at-grade intersection as a preliminary access to the Village, and would allow such an access configuration up to the point where Village traffic creates poor operations at the intersection. FHU agreed to conduct an operational analysis of the intersection under increased traffic conditions to determine the peak traffic threshold where the intersection would no longer be able to safely and effectively move traffic, and would need to be replaced by a grade-separated interchange.” 

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

Therefore, the potential need for a grade-separated interchange could become a limiting factor for private land development beyond the Moderate Density Development Concept. Should such a threshold be reached at some point in the future, LMJV would be required to submit a project proposal to CDOT, and if accepted, a site-specific NEPA analysis (per FHWA regulations) would need to be prepared to analyze the direct, indirect, and cumulative impacts of a grade-separated interchange. 

Ultimately, if a grade-separated interchange were to become necessary to accommodate residential development, it would likely be in the distant future. Due to the speculative nature of a grade-separated interchange resulting from development of the Village at Wolf Creek, building of the interchange does not meet the definition of a “reasonably foreseeable future action” warranting cumulative effects analysis in the FEIS (36 CFR §220.3). The Draft ROD notes that LMJV does not have a “right” to a grade-separated interchange. 

Conclusion 

Based on my review of the FEIS, Draft ROD, and project record I find the responsible official complied with NEPA and is not required to analyze a grade-separated interchange. 

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Issue 27: The FEIS fails to analyze the comparative impacts of expanding federal control via the scenic easement 

Objectors state that the ANILCA alternative is never compared to a land exchange alternative based on the power to enforce and impose federal control. 

Analysis 

The FEIS addressed the scenic easement which is the only authority the Forest Service has over the private land development. The scenic easement only allows the Forest Service to object to development plans based on “non-compliance with the terms of this easement” and the easement provides no authority to impose terms and conditions in order to reduce environmental impacts. Moreover, any objection goes to mandatory arbitration and the Forest Service does not have final veto power, only the arbitrators have that authority. The terms of the scenic easement were established in 1987 and slightly amended in 1998. The terms of the scenic easement are specific rather than elastic and they do not establish authority to “expand” federal control. 

The 1998 Amended Scenic Easement was a voluntary agreement between the LMJV and Wolf Creek Ski Corporation (collectively, the Grantors), and the United States of America (the Grantee). Per the easement, the Grantors confirmed their desire to manage and develop the private land acquired via a land exchange in accordance with the 1986 Decision Notice that approved it. The scenic easement is designed to ensure that development of private lands is “compatible with and complimentary to” the Wolf Creek Ski Area. At the outset of the current analysis, the decision was made not to analyze deed restrictions on the National Forest System land that would be conveyed to the LMJV as a result of a land exchange. 

Section 4.10.1.5.1 of the FEIS, titled “Scenic Easement Applicability,” discusses how the existing Scenic Easement would apply to private lands under each alternative. The Scenic Easement itself (recorded legal instrument) is included in Volume 2 of the FEIS as Appendix F. 

As discussed in the FEIS, the Scenic Easement only applies to existing private lands for both Alternatives 2 and 3. Thus, under Alternative 2, the 120 acres of the existing private inholding that 

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

would remain in private ownership as a result of the proposed land exchange would still be subject to the Scenic Easement. All other lands to be acquired by the proponent (approximately 177 acres) would be subject to Mineral County land use regulations. These lands would not have Scenic Easement controls removed, because no scenic restrictions currently exist on this land beyond County regulations. Under Alternative 3, the Scenic Easement would apply to the entire (± 288-acre) private inholding. 

As explained in the Scenic Easement and Sections 3.10.3.2 and 4.10.1.5.1 of the FEIS, “the easement is not intended to conflict with or intrude upon land use controls of the State of Colorado, Mineral County, or other unit of local government.” The Forest Service has determined that, as a Federal land management agency, it would be inappropriate to attempt to enforce additional regulations on private lands. This position is explicitly expressed in agency policy within the Forest Service Manual. 

Except as authorized by law, order, or regulation, Forest Service policies, practices, and procedures shall avoid regulating private property use. (FSM 5403.3) 

Avoid regulation of private lands when considering and authorizing access to those private lands. (FSM 2730.3) 

The Forest Service did consider whether to impose restrictions on the development of LMJV’s land as condition of the land exchange in response to Rocky Mountain Wild’s 2015 objection but ultimately found such conditions inappropriate and not needed to protect the public interest. While the Forest Service has discretion to seek restrictions on land conveyed out of federal ownership, (36 CFR 254.3(h), that discretion is to be used sparingly. As explained in the Forest Service Handbook, deed restrictions have the negative result of imposing a perpetual administrative responsibility on the Forest Service and potentially reducing the appraised value of the federal estate, “causing more Federal acreage to be conveyed to equalize the value of the non-Federal land.” (Land Acquisition Handbook, U.S. Forest Service, FSH 5409.13, Ch. 33.41c.33). Therefore, “[d]eed restrictions controlling future use and development of Federal lands conveyed into non-Federal ownership should be used only when required by law, regulation, or Executive order, or when the intended use of the conveyed Federal land would substantially conflict with established management objectives on adjacent Federal lands.” Id. (emphasis added). In this case, imposing development restrictions was not required by any law, regulation, or executive order, and LMJV’s use of the land for ski resort is consistent with the use of the adjacent property as a ski area. The Rio Grande Land and Resource Management Plan (1996, p. IV- 39) states that visitors can expect to see facilities associated with the ski area, and four-season recreation resource uses are encouraged (1996 Forest Plan p. IV-39). Per Draft ROD rationale (Section 5.0 – Part 6, p.18), it is a logical conclusion that development of private lands for a residential village would be compatible with the theme, setting, and desired conditions of Management Area 8.22 for ski- based resorts. 

Thus the Forest Service reasonably opted not to assume the perpetual administrative burden of an easement, and to allow the local regulatory authorities to exercise control. The County’s PUD process is the appropriate mechanism for land use control on private lands. 

It is important to note that future development on the private inholding is not a component of the federal action. During the public comment process and litigation, it became clear that there is considerable confusion over the extent and source of Forest Service regulatory authority over LMJV’s use of its private inholding. The Draft ROD addressed Forest Service authority under the scenic easement. 

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

Under the scenic easement, potential development is limited to “a mix of residential, commercial, and recreational uses typical to an all-season resort village” and provides the Forest Service the ability to “veto” certain non-conforming uses of the property. But the scenic easement does not purport to give general regulatory authority to the Forest Service that would allow it to control the degree or density of the private development. As long as the development is typical of an all-season resort village, the scenic easement does not constrain the size of the development in any manner. In fact, the FEIS recognizes that Alternative 3, where the entire private inholding is constrained by the scenic easement, could still result in a residential and commercial development with 403 hotel units; 998 condominium units; 504 townhomes; 76 single family residences and 221,000 square feet of commercial space. The scenic easement also specifically recognizes that Mineral County retains general regulatory authority and expresses the intent not to “conflict with or intrude upon” that development authority. Thus nothing in the scenic easement gives the Forest Service “actual control” of the development on the private land. 

Conclusion 

Objectors accurately note that the FEIS did not analyze a land exchange alternative that would have imposed deed restrictions similar to the scenic easement which was analyzed on the existing private parcel. Objectors are concerned that this analytical choice deprived the decision-maker of an opportunity to select a land exchange alternative with deed restrictions. However, the Draft ROD notes that the responsible official did consider seeking deed restrictions for the land exchange alternative. The FEIS provided a contrast between alternatives with regard to deed restrictions but the analysis showed that either action alternative could result in a substantial winter resort. Members of the public, including objectors, made clear their preference for deed restrictions in the land exchange alternative. One clear choice the responsible official could make would be to seek deed restrictions in a land exchange but it would be unrealistic to expect LMJV to agree to deed restrictions that are substantially more restrictive than those in the scenic easement. The consideration of deed restrictions in the FEIS was sufficient under the NEPA “rule of reason” as addressed in response to Issue 2. 

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Issue 28: Failure to reinitiate consultation for the yellow-billed cuckoo pursuant to Section 7 of the Endangered Species Act 

Objectors allege that changes in flows to North and South Pass Creeks under the action alternatives will negatively impact habitat for the yellow-billed cuckoo. 

Analysis 

As stated in the Supplemental Information Report for Village at Wolf Creek Access Project (p. 3), “the yellow-billed cuckoo and their designated or proposed critical habitat still are not known to occur in the project area, nor are [yellow-billed cuckoo] expected to be affected by activities that may occur in the project area or the Rio Grande National Forest.” The yellow-billed cuckoo was analyzed in the 2013 Wildlife BE for the Village at Wolf Creek Access Project (Table 6-1, pp. 33-34 and Table 9-1, p. 134). At the time of report publication (September 2013), and until November 12, 2014, the species was a candidate species for the federal list of threatened and endangered species. By Forest Service policy in Region 2, candidate species automatically carry Region 2 sensitive species status including specific analysis in Biological Evaluations (BE). 

For the Village at Wolf Creek Access project, the BE concluded that Alternative 3 would have ‘no impact’ to the yellow-billed cuckoo or its habitat as a sensitive species because habitat does not exist 

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

within the project area, and the project area is above the altitudinal range of the species (2013 BE, p. 134). On November 3, 2014, the western distinct population segment of the yellow-billed cuckoo was designated as federally threatened by the USFWS (79 FR 59991) and on December 2, 2014, proposed critical habitat was designated by USFWS (79 FR 71373). At the time of publishing the BE (September 2013), the new status was not formally analyzed in the project BA or BO as the species was still a candidate species when those documents were finalized. 

The impact determination (for sensitive species) or effect determination (for threatened or endangered species) would have been the same no matter the status of yellow-billed cuckoo due to the lack of adequate habitat in the project area. 

Moreover, the 2018 BA provided ‘New Information Since the 2015 Wolf Creek ANILCA Land Exchange Decision’ which included the status of the yellow-billed cuckoo (p. 30). The 2018 BA documented a query of the USFWS Information for Planning and Consultation (IPaC) on May 2, 2018 which affirmed there is no new information (p. 33). Additionally, Table 2 of the 2018 BA (p. 39), states that the yellow-billed cuckoo was dropped from further analysis because low elevation riparian habitats and critical habitats do not occur in the project area and are not expected to be affected indirectly by the proposed activities. No critical habitat has been proposed for National Forest System lands in Region 2, including Rio Grande National Forest. As stated on page 36 of the 2018 BA, “Currently proposed critical habitat for the yellow-billed cuckoo begins on the Rio Grande River, approximately four and a half river miles east and downstream of the town of South Fork (Unit 59, CO–6 Upper Rio Grande 3; 79 FR 48547), below where the augmentation flows enter the Rio Grande River. Therefore, any water depletions associated with the Proposed Action would not extend to or affect any critical habitat of the yellow-billed cuckoo. Thus, a reinitiated consultation for a species that would not be affected by the Proposed Action is not necessary to meet section 7 requirements.” 

Conclusion 

The information in the project record, including the BE, FEIS, and 2018 BA, affirms that re-initiation of Section 7 consultation for yellow-billed cuckoo is not necessary for Alternative 3. Therefore, I find that the responsible official complied with law, regulation, and policy.