VWC-EIS, Objection Issues and Responses #7, #8, #9 #10

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 7: Alternatives involving mitigation measures and ANILCA terms and conditions were not analyzed

Issue 8: The no-action alternative is inappropriately dismissed

Issue 9: The Forest Service failed to incorporate the input of several key cooperating agencies

Issue 10: ANILCA and existing Forest Service regulations do not require enhanced road access be provided to the federally encumbered Leavell-McCombs Joint Venture parcels

_______________________________________________________________

Issue 7: Alternatives involving mitigation measures and ANILCA terms and conditions were not analyzed 

Objectors state that the FEIS contains no analysis of the Forest Service’s ability under ANILCA to provide only so much access as ANILCA requires nor how terms and conditions might have been imposed under ANILCA to minimize environmental effects. 

Analysis 

Regarding mitigation measures for potential impacts on federal lands, NEPA does not require the agency to impose a full mitigation plan (Robertson v. Methow Valley Citizens Council, 490 U.S. 322, at 352-3 (1989)), and the ANILCA regulations provide no authority to regulate private property by imposing mitigation as a condition of access (36 CFR 251.111 (definition of adequate access), 36 CFR 251.114(a) and (f)(2)). All references to minimizing effects are strictly limited to effects on federal or National Forest System lands and resources. 

The FEIS addresses a strategy for development of mitigation measures and best management practices for potential impacts on federal land (FEIS, vol. 1, Section 2.7), consistent with 40 CFR §1502.14(f)). The potential effects of construction and operation of access roads and associated utilities are disclosed throughout Chapter 4 of the FEIS. 

Within the Rocky Mountain Region, water protection measures applied to such projects are adopted from Forest Service Handbook 2509.25 (Water Conservation Practices Handbook), and it is within this handbook that the effectiveness of such measures are reviewed and discussed. 

Conservation measures for potential impacts to lynx were developed during the consultation process with the U.S. Fish and Wildlife Service (USFWS). They are briefly summarized in Section 2.7.2 of the FEIS, and an expanded explanation of these measures is provided in Appendix B (FEIS, vol. 2). Appendix B includes detailed explanations of the eight conservation measures, as well as discussions about enforcement and efficacy of the overall lynx conservation strategy. The Draft ROD confirms that compliance with these conservation measures will be required, and that they will be formalized with the proponent (p. 3-4). 

Additionally, the Draft ROD clearly states that the decision would require LMJV to obtain all required permits and hence comply with the mitigation and monitoring requirements of those permits. The Forest Service legal instrument likely to be used in granting a special use authorization for ANILCA access across National Forest System lands (Form FS-2700-9j) includes a standard clause wherein the grantee is compelled to comply with all Federal and State law and State standards “for public health 

page 12 

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

and safety, environmental protection, and siting, construction, operation, and maintenance of or for rights-of-way for similar purposes.” This provision is required under agency regulations (36 CFR 251.56(a)(1) and (2)), and ensures that the grantee is still responsible for adhering to any regulatory requirements for resource protection that are not specified in the FEIS. 

Regarding mitigation measures for potential impacts on non-federal or private lands, the Forest Service does not regulate development on private land, and has no authority under ANILCA to regulate development on private land. Responsibility to protect environmental resources on private lands rests with other Federal or State agencies and local governments. 

Additionally, Forest Service policies explicitly caution agency decision-makers to refrain from engaging in de facto regulation of the use and development of private property: 

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 FEIS considers impacts of three distinct conceptual development densities (low, moderate, maximum) for both Alternative 2 and Alternative 3. These impacts are disclosed in detail throughout FEIS Chapters 2 and 4. Specific mitigation measures for actions occurring on private lands were not considered in the analysis because a site-specific proposal has yet to be developed. Water quality and storm water mitigation will be determined through the National Pollutant Discharge Elimination System permitting process (FEIS, Section 4.1). As stated in the Response to Comments (FEIS vol. 2, p. 125), wetland mitigations for private land development would be determined during the Clean Water Act – Section 404 wetland permitting process. 

Comments on mitigation measures and best management practices are disclosed in the response to comments in the FEIS vol. 2, Appendix I, Section 06 (Surface Water), Section 10 (Climate and Air Quality), and Section 12 (Wetlands and Waters of the United States). The size and type of wetland mitigation that may be required would be determined by the U.S. Army Corps of Engineers as part of the Clean Water Act 404 wetland permitting process when LMJV applies for development of the parcel with Mineral County. The response to comments also explains that the Forest Service does not regulate development on private land, but is responsible for protecting resources on National Forest System land. It is the proponent’s responsibility to comply with all Federal, State and Mineral County regulations. 

Conclusion 

Based on the analysis and associated documentation in the project record, I find that the responsible official’s actions are consistent with relevant provisions of the National Environmental Policy Act
(40 CFR 1500.2, 1502.14, 1505.3, and 1508.20), the Alaska National Interest Lands Conservation Act (36 CFR 251.110(a) and (d), 251.111, 251.113), and the Federal Land Policy and Management Act (36 CFR 251.56(1)). The Draft ROD emphasizes that the Forest Service has, since 1991, interpreted ANILCA as not allowing it to tell a landowner what use may be made of private land. Thus, the Draft ROD clearly establishes that ANILCA does not give the Forest Service the authority that the objector asserts. See also responses to Issues 2 and 4. 

page 13 

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

_______________________________________________________________

Issue 8: The no-action alternative is inappropriately dismissed 

Objectors claim that Forest Service failure to consider a true “no-action” alternative, which does not allow any access or development on private land, is a violation of NEPA. Objectors state that “a true no action alternative is properly set out as no federal approvals and therefore no construction.” The objector further states that “enhanced” access is not required by ANILCA in the no-action alternative. 

Analysis 

Under the no-action alternative there would not be “enhanced” access to the private parcel. The no-action alternative maintains existing seasonal access with no changes to land management and assumes no development. 

As directed by NEPA and the interpreting direction of the CEQ (Council on Environmental Quality – 40 Most Asked Questions), the Forest Service must address the no-action alternative when preparing an EIS to provide a benchmark, enabling decision-makers to compare the magnitude of environmental effects of the action alternatives. It is also an example of a reasonable alternative outside the jurisdiction of the agency that must be analyzed (40 CFR 1502.14(c)). The FEIS considers the CEQ interpretations of the existing no-action alternative, representing a continuation of existing land ownership on the 288-acre private parcel and seasonal use of National Forest System Road 391 to access the property (FEIS, vol.1, p. 2-1). 

The responsible official did not select the existing no-action alternative because it did not meet the purpose and need of allowing LMJV access to its property to secure “reasonable use and enjoyment” thereof as provided in ANILCA and Forest Service regulations while minimizing environmental effects to natural resources within the project area (FEIS, vol. 1, p. 1-29, FEIS, vol. 2, Appendix I, pp. 73 and 91). 

Conclusion 

Based on my review of the FEIS, Draft ROD, and documentation in the project record, I find the responsible official’s treatment of the no-action alternative is consistent with NEPA direction and regulations. 

_______________________________________________________________

Issue 9: The Forest Service failed to incorporate the input of several key cooperating agencies 

Objectors claim that the Forest Service violated NEPA (44 U.S.C. §§4331-4332) and the CEQ implementing regulations 40 CFR 1501.6 by not having a formal cooperating agency agreement (per 40 CFR 1501.6). 

Analysis 

Objectors state “NEPA regulations implement the mandate that Federal agencies prepare NEPA analyses and documentation ‘in cooperation with State and local governments’ and other agencies with jurisdiction by law or special expertise. 40 CFR §§ 1501.6, 1508.5,” which they equate with a formal cooperating agency agreement between agencies. This equivalency is incorrect. A Federal agency has the discretion to determine whether or not to invite other agencies to participate as a cooperating agency, and CEQ guidance provides factors to consider when deciding to invite, decline, or end cooperating agency status. “Once cooperating agency status has been extended and accepted, 

page 14 

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

circumstances may arise when it is appropriate for either the lead or cooperating agency to consider ending cooperating agency status” (CEQ Memorandum, January 30, 2002, Attachment 1). 

Objectors believe that there is a “‘one EIS’ requirement,” but no such requirement for “one EIS” exists in law or implementing regulations. 

On May 4, 2011, the Forest Service invited numerous local, State, and Federal agencies to participate in a cooperating agency meeting in South Fork, Colorado, to solicit their input to the NEPA process. The USFWS and the U.S. Army Corps of Engineers later accepted the Forest Service’s invitation to be cooperating agencies for the project EIS. Per CEQ guidance above, following consideration of timelines, scheduling needs, and critical project milestones, the Forest Service as the lead agency (40 CFR Part 1501.5), decided not to have cooperating agencies (40 CFR Part 1501.6). 

Nevertheless, the Forest Service coordinated closely and consulted with local, State, and Federal agencies throughout the NEPA process, and considered and addressed other agency concerns and comments, including those of the USFWS and the U.S. Army Corps of Engineers. The FEIS documents agency involvement in the NEPA process (Section 1.5, p. 1-6), agency consultation and coordination (Chapter 6), and other coordination with agencies that have jurisdiction over specific resources, including wetlands (e.g., Army Corps of Engineers) (see Section 6.0, 01 Surface Water, Response 3. p. 70; and Section 6.0, 01 Surface Water, Response 5. pp. 71-72). 

While there was not a formal cooperating agency agreement, the Forest Service coordinated and consulted with local, State, and Federal agencies throughout the NEPA process. 

Conclusion 

Based on my review of the FEIS, Draft ROD, and project record, I find no violation of the NEPA guidance on cooperating agencies (40 CFR 1501.6). The responsible official engaged with other agencies appropriately as required by NEPA. 

_______________________________________________________________

Issue 10: ANILCA and existing Forest Service regulations do not require enhanced road access be provided to the federally encumbered Leavell- McCombs Joint Venture parcels 

Objectors allege that the Forest Service’s 2014 FEIS is based on the arbitrary contention that the Forest Service has no choice but to offer “improved” year-round commercial access via ANILCA or a land exchange. 

Analysis 

ANILCA is intended to ensure adequate access to non-federally owned land within the boundaries of the National Forest System in order to secure to the owner the reasonable use and enjoyment thereof, provided such owner complies with rules and regulations applicable to ingress and egress to or from National Forest System land. Determining the agency’s obligations under ANILCA requires a clear understanding of the terms “adequate access,” “reasonable use and enjoyment,” and “similarly situated lands.” 

Adequate access to an inholding is defined by Forest Service regulations as “a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System land and resources” (36 CFR 251.111). 

page 15 

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

Reasonable use and enjoyment of the lands is based on contemporaneous uses made of similarly situated lands in the area and any other relevant criteria (36 CFR 251.111). 

Similarly situated lands is not a defined term in Forest Service regulations or policies, which is precisely why case law confirms that the Forest Service is vested with considerable discretion in determining the particular properties that should be taken into account for a similarly situated lands determination (High Country Citizens Alliance v. United States Forest Service (10th Cir. 2000)). 

ANILCA, similarly situated lands, adequate access, and reasonable use and enjoyment determinations were discussed in the FEIS, vol.1, pp. 1-17 through 1-28, Section 1.10 in its entirety; FEIS vol. 2, Appendix I, Section 6.0, 02 Purpose and Need, pp. 72-78; and Draft ROD Section 3, pp. 11-12. 

The FEIS Section 1.10 provides a detailed analysis of ANILCA and related Forest Service regulations as they pertain to the Wolf Creek Access Project, including: 

Adequate Access 

“Adequate access” to an inholding is defined by 36 CFR 251.111 as “a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System lands and resources.” Furthermore, the authorizing officer shall determine what constitutes reasonable use and enjoyment of the lands based on contemporaneous uses made of similarly situated lands in the area and any other relevant criteria. 

Similarly Situated Lands 

The defining characteristics of LMJV’s inholding are its size, proximity to a snowplowed public road, and its proximity to an existing winter recreational development/attraction. The responsible official conducted a search for similarly situated non-Federal lands on the Divide Ranger District (the district upon which LMJV is seeking access to their inholding by crossing National Forest System land). Recognizing that the Wolf Creek Ski Area was the only existing winter recreational development on the Divide Ranger District, the responsible official began the search utilizing the two remaining important characteristics of the LMJV inholding to determine if any of the properties located on the Divide Ranger District were similarly situated. Although these two characteristics present important factors for determining similarly situated lands, further analysis was used to ensure a thorough evaluation. The two evaluation characteristics included: 

•   Size of parcel
  
•   Lands located within one mile of a snowplowed public road.
  The similarly situated analysis in the 2014 FEIS (Section 1.10.2, pp. 1-19 through 1-27) shows that access has been requested and granted to a number of different private properties of varying sizes with a variety of uses; the responsible official could not discern a clear pattern in the uses or sizes of the parcels with regard to reasonable use or mode of access. This process resulted in the determination that none of the 19 properties evaluated on the Divide Ranger District were similarly situated, and the responsible official did not find that these properties compelled him to grant or deny snowplowed access to the LMJV parcel. Moreover, none of the 19 properties were in close proximity to a winter recreational development such as a ski area.
  The responsible official then expanded the search statewide within Colorado but focused on inholdings associated with ski areas to determine whether commercial or residential uses were being conducted with or without snowplowed access. The responsible official identified 34 private inholdings 

page 16

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

associated with ski areas in Colorado. In addition to expanding the search statewide within Colorado, winter sports managers in the Forest Service’s Rocky Mountain Regional Office were tapped to help identify additional potential similarly situated lands outside of the state. One additional potential property at a Utah ski area that had sought winter access was added to the evaluation. None of the 35 properties located in close proximity to a ski area were considered “similarly situated” for determining the reasonable use and enjoyment of the LMJV inholding. 

Reasonable Use and Enjoyment 

As no property was found to be “similarly situated” to the LMJV inholding after the extensive search described above, “other relevant criteria” were considered as required by agency regulations (36 CFR 251.114). 

The history of the LMJV parcel shows that the property is indeed uncommonly situated. The original intent of the Forest Service in authorizing the 1987 land exchange that created the parcel was to facilitate commercial and residential development associated with the Wolf Creek Ski Area. The 1986 Environmental Assessment assumed development of a winter resort with 208 residential units, two restaurants, two day lodges, and six retail shops. While access was not expressly granted at that time, ANILCA was in effect and the development scenario disclosed in the 1987 exchange informs the reasonable use and enjoyment of the parcel. 

Furthermore, agency policy explicitly cautions decision-makers to refrain from regulating private property: 

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) 

It is essential not to confuse or conflate terms used in the two distinct processes being described in this analysis: comparing properties for appraisal purposes versus comparing properties for ANILCA similarly situated lands purposes. It is important to separate appraisal terms from ANILCA terms. 

Common terms used to determine market value during the appraisal process include “highest and best use,” “seasonal and over snow access.” These terms are specific to the appraisal process and not associated with ANILCA determinations for “reasonable use and enjoyment,” “similarly situated properties,” or “adequate access.” Additionally, the appraisal is not used to justify a land exchange or a grant of road access. Rather, the appraisal is needed to meet the “Federal Land Policy and Management Act of 1976 [requirement] that the value of the non-Federal and Federal lands be equal, or if they are not equal, the values shall be equalized by the payment of money not to exceed 25 per centum of the value of the Federal land” (Federal Land Policy and Management Act of 1976, 43 USC 1701 et seq. (FLPMA)). 

The Supplemental Report to Appraisal of Real Property (September 12, 2014) utilizes a sales comparison approach wherein parcels that sold were compared to the 177-acre non-Federal parcel included in the exchange proposal. Differences between the 177-acre subject property and properties that previously sold were 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 appraisal, defensible conclusions were reached regarding appraised values. However, the elements 

page 17 

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

used in the comparison, which describe current conditions and characteristics, are not applicable to an ANILCA similarly situated lands analysis, which instead is used to determine whether a proposed future use of the property is reasonable. 

Conclusion 

Based on my review of the FEIS, Draft ROD, and associated documentation in the project record, the responsible official’s actions are consistent with relevant provisions of the Alaska National Interest Lands Conservation Act and implementing regulations (36 CFR 251 Subpart D). The analysis shows that ANILCA does require “enhanced” snowplowed access.