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 29: Bias and proponent control of the third party NEPA contractor was built into the contract
Issue 30: Failure to consider new information
Issue 31: Failure to consider the best available science
Issue 32: Failure to adhere to NEPA’s public involvement mandates
Issue 33: Reasonable use and enjoyment that minimizes environmental effects requires an analysis of the visual effects to the congressionally designated Continental Divide National Scenic Trail
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Issue 29: Bias and proponent control of the third party NEPA contractor was built into the contract
Objectors claim that the Forest Service violated NEPA because proponent bias and control of the third party contractor resulted in a flawed and biased NEPA process.
Analysis
Third party NEPA contractors are under the direction of the Forest Service. However, per the terms of the MOU between the Forest Service and LMJV scheduling or billing issues could be addressed between the contractors and the proponent. The instance referenced by objectors involved conversations between the NEPA contractors and LMJV’s Adam Poe.
There is no evidence that Mr. Poe interjected bias into the third party contractors work product and the Forest Service was responsible for the content of the final analysis. Some contacts between Mr. Poe and other LMJV representatives do show LMJV attempted to assert influence over the Forest Service especially regarding timing of the analysis. However, the Forest Service was able to deal with those contacts and manage the third party contractor to get a sufficient environmental analysis completed.
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Conclusion
Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses
Objection Issues and Responses
I find no evidence of bias relating to the third party NEPA contractor. Based on review of the project record and supporting information, I find that the responsible official followed the MOU (Administrative Record 2.4 - 20110507 Signed USFS-LMJV MOU.pdf) in compliance with NEPA (40 CFR 1506.5(c)).
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Issue 30: Failure to consider new information
Objectors state that the FEIS fails to consider significant new information available on yellow-billed cuckoo, water supply, Canada lynx, boreal owl, Continental Divide National Scenic Trail Unit Plan, and other relevant information.
Analysis
A Supplemental Information Report dated June 28, 2018, was completed for the Village at Wolf Creek Access Project to review any new information and changed circumstances that arose since the FEIS was published in November 2014. Specific to the yellow-billed cuckoo, the review determined that the effects disclosed in the 2014 FEIS remain unchanged given that their designation or proposed critical habitat are not know to occur in the project area (see response to Issue 28).
All new information related to Canada lynx disclosed consistency with the agency's understanding of lynx habitat needs and use central to the discussions and effects analyses for the alternatives considered in the FEIS. Review of the new information and changed circumstances related to Canada lynx did not change the overall characterization of impacts described in the alternatives. The FEIS summarized the analyses for the two action alternatives, which both reached a "may affect, likely to adversely affect" determination (FEIS, vol. 1, pp. 4-123, 4-139).
Although the changed circumstances and new information do not change the overall characterization of the environmental effects documented in the 2014 FEIS, several citations related to Canada lynx were referenced in the Supplemental Information Report, including a current study being conducted on the Rio Grande National Forest by John Squires of the US Forest Service Rocky Mountain Research Station titled “Lynx Habitat Ecology in Beetle-impacted Forests.” Other new scientific information related to Canada lynx has been incorporated into the Draft ROD and BA (2018) and included in the ongoing consultation with USFWS under Section 7 of the ESA regarding the selection of Alternative 3 (see response to Issue 19).
The Supplemental Information Report reviewed the effects analyses relating to water supply by updating a summary of projects in the analysis area already completed or initiated since the FEIS was completed. Only one project directly involving water was identified, addressing safety concerns with water seepage at the base of the Alberta Park Reservoir dam. Direct impacts from that project were determined to be of a short-term nature thus not directly changing the environmental effects described in the FEIS. The Supplemental Information Report also included a review of the annual groundwater monitoring reports associated with the remediation efforts at the highway maintenance facility on the north side of Highway 160, and concluded that the new information is consistent with the effects originally considered in the FEIS. The response to issue 26 above provides additional information and clarification regarding the concerns associated with water uses resulting from the potential for development on private lands.
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Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses
Objection Issues and Responses
No new information specific to the Continental Divide Scenic Trail Unit Plan was identified as part of the Supplemental Information Report. Nonetheless, the FEIS (pp. 2-35; 3-11 to 3-12; 4-70 to 4-71) considered a range of potential impacts to the trail as a result of the alternatives being considered.
Conclusion
My review of information in the project record and the Supplemental Information Report did not identify any new information or circumstances that would change the determination of impacts disclosed in the FEIS (November 2014). Additional consideration relating to the boreal owl is included in the response to Issue 31, relating to the yellow-billed cuckoo in Issue 28, and relating to Canada lynx in Issue 18. 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. I find that the responsible official complied with NEPA by addressing new information and/or changed conditions since the FEIS was published.
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Issue 31: Failure to consider the best available science
Objectors allege the FEIS failed to incorporate the results from the most recent boreal owl survey and thus did not include the best available science.
Analysis
As described in the Biological Evaluation (BE) prepared by Western Ecological Resources for the FEIS, boreal owls were detected in 2005 (p. 51) “No boreal owls were detected in 2004; in 2005 a single male and a male/female pair within an active nest territory were detected on lands within the current Federal exchange parcel.” Due to the documented presence of a boreal owl pair, the BE goes on to state (p. 52), “The boreal owl analysis area for this project includes all areas within the estimated home range of 3,700 acres, well beyond the disturbance areas associated with Alternatives 2 and 3.” The BE (p. 55) made a determination for both Alternatives that stated, “Regarding boreal owls, direct, indirect, and cumulative effects of Alternatives 2 and 3 may impact individuals, but are 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.”
Objectors provided additional information on boreal owls being detected (i.e., one in Silver Creek on the east side of the SUP area, one above Wolf Creek Pass meadows on the west side of the SUP area, and one on the private parcel). This ‘additional information’ was documented in an email exchange between the biologist contracted to conduct the analysis and a Forest Service biologist, though no year of detection was stated. The new information is not significant because the analysis in the BE (2014) assumed that the boreal owl habitat blocks were occupied. The new information would not change the analysis.
Conclusion
In reviewing the project record, including the BE and the FEIS, I find that best available science was considered in the effects analysis conducted for boreal owl and its habitat. Therefore, I find the responsible official complied with law, regulation, and policy.
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Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses
Objection Issues and Responses
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Issue 32: Failure to adhere to NEPA’s public involvement mandates
Objectors allege that the Forest Service violated the public involvement mandates of NEPA as well as FOIA.
Analysis
An initial administrative record for the Village at Wolf Creek Access Project was maintained and made available to the public in its entirety via the Forest Service’s Planning, Appeals and Litigation System (PALS) website on November 28, 2014. The total number of documents uploaded was 399. The complete Administrative Record was also sent via DVD to two people who requested it.
Although FOIA and NEPA are interrelated, they are separate laws. There have been several FOIA requests from Rocky Mountain Wild over the history of this project. The agency response to the 2015 objections summarizes the requests received and the number of documents produced as of that date. As noted by objectors, Rocky Mountain Wild has litigated the Forest Service regarding FOIA and the Forest Service has received instructions from the court with regards to those cases. That process is ongoing and another FOIA request was submitted by Rocky Mountain Wild on July 20, 2018. It is currently being processed.
Public and agency involvement in the project under NEPA is described in Section 1.5 of the FEIS. The Forest Service initiated a scoping period that began April 15, 2011; held a comment period on the DEIS beginning August 17, 2012, which was later extended; and initiated an objection period on the FEIS and the land exchange draft ROD beginning November 21, 2014 as required by 36 CFR 218. An objection period for the second decision selecting the ANILCA access alternative began July 22, 2018.
Federal regulations govern the duration and requirements of public comment and objection periods within the NEPA process. Comments on a proposed project or activity to be documented in an EIS are accepted for a minimum of 45 days beginning on the first day after the date of publication in the Federal Register of the notice of availability of the DEIS. Computation of the comment time period involves using calendar days, including Saturdays, Sundays, and federal holidays. However, when the time period expires on a Saturday, Sunday, or federal holiday, comments are accepted until the end of the next federal working day (11:59 p.m. in the time zone of the receiving office for comments filed by electronic means such as email or facsimile) (36 CFR 218.25). Written objections including attachments must be filed with the reviewing officer within 45 days following the publication date of the legal notice of the Draft ROD in the newspaper of record, and it is the responsibility of objectors to ensure that their objection is received in a timely manner (36 CFR 218.26). These requirements for objection filing were included in the legal notice published in the newspaper of record (Valley Courier) and on the Forest Service project website on July 21, 2018.
Conclusion
Based on my review of the FEIS, Draft ROD, and project record I find no violation of NEPA or FOIA with regard to public involvement for the proposed project. The record demonstrates that the Forest Service ensured adequate public involvement and participation in the NEPA process consistent with applicable law, regulation, and policy.
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Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses
Objection Issues and Responses
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Issue 33: Reasonable use and enjoyment that minimizes environmental effects requires an analysis of the visual effects to the congressionally designated Continental Divide National Scenic Trail
Objectors claims that the FEIS has not assessed the reasonableness of LMJV's development scenarios in terms of their impact on visual resources of the Continental Divide National Scenic Trail (CDNST). The Draft ROD cannot be based on a determination of reasonable use that never considers visual effects on a congressionally designated unit, the CDNST.
Analysis
Objectors ask “How can the RGNF determine that any particular use is reasonable without knowing the impact on a nearby Congressionally-designated unit?” The FEIS states that “Under both Action Alternatives, modifications to the scenic environment would occur primarily on private lands and would not be specifically subject to the Forest Service’s Scenery Management System or Recreation Opportunity Spectrum classifications .... However, no comparable evaluation metric exists to analyze effects to scenic resources on private lands. Thus, for the purposes of this analysis, the Scenery Management System and Recreation Opportunity Spectrum classifications are applied to both federal and non-federal lands to provide consistent metrics for which to measure the future, indirect effects of development that could occur as a result of Forest Service approval for either a land exchange or an access road.” (Section 3.10.1, p. 3-106). The FEIS states that applying these tools in order to disclose effects “is for comparative, analytical purposes only and in no way imposes any restrictions or standards outside of the Forest Service’s jurisdiction.” (vol. 1, pp. 3-106 through 3-107)
The FEIS also notes that the section of the CDNST in the analysis area for this project is within Management Area 8.22, Roaded Natural, in the current Rio Grande National Forest Land and Resource Management Plan (forest plan, 1996). Management Area 8.22 allows for a moderate level of development (Section 3.10.3.1.1, p. 3-109). “Foreground, middleground and background views from the CDNST include Wolf Creek Ski Area, the private land parcel and National Forest System lands to the east, rolling peaks and forested ridges, the Weminuche Wilderness Area, other portions of the Rio Grande and San Juan National Forests and the Hwy 160 corridor.” (FEIS, vol. 1, p. 3-112). The forest plan states that visitors can expect to see facilities associated with the ski area and four-season recreation resource uses are encouraged in Management Area 8.22. (USDA, 1996, p. IV-39)
Objectors also claim “The FEIS has not assessed the reasonableness of LMJV's development scenarios in terms of their impact on visual resources of the CDNST. How can the RGNF determine that any particular use is reasonable without knowing the impact on a nearby Congressionally-designated unit?” Determination of the “reasonableness” of LMJV’s development scenarios is not part of the purpose and need of the FEIS because it is not within the authority of the responsible official to regulate development on private land. It is possible objectors confuse the Forest Service’s responsibility under ANILCA to determine the reasonable use and enjoyment of the private parcel for determining access needs with a determination of reasonable development scenarios. As mentioned previously in this response to objections the Draft ROD makes the determination that the reasonable use and enjoyment of the private parcel is as a winter resort including commercial and residential properties. See response to Issues 4 and 10 for discussions of reasonable use and enjoyment.
Objectors further state that “One stated rationale for need for the revised forest plan was to address changes in the management of the CDNST. The draft plan creates unit specific management direction for the CDNST. The RGNF's desired conditions for the CDNST are to maintain high scenic values
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Village at Wolf Creek Access Project Draft 11/15/18
Objection Issues and Responses
Objection Issues and Responses
from the CDNST, that "the foreground of the trail [defined as that area less than 0.5 miles from the trail] is naturally appearing, and generally appears unaltered by human activities." The forest plan is currently undergoing revision. Until the ROD is signed adopting the revised forest plan for the Rio Grande National Forest, the current forest plan remains in effect. The revised forest plan will contain desired conditions and other plan components (i.e., goals, standards, guidelines) for management of the CDNST. However it is unlikely that management area direction for the analysis area will change drastically given the presence of the ski area and private property.
Conclusion
Based on my review of the FEIS, Draft ROD, and project record I find the responsible official complied with law, regulation and policy.
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