NEPA

Plan revision on the Rio Grande

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They are a little ahead of the Helena-Lewis & Clark discussed on Nov. 29.  They are taking comments on their draft plan and EIS.  I haven’t read either, but this article provides an overview.  Here’s the big picture:

“The purpose and need for revising the forest plan is the changed economic, social, and ecological conditions in the plan area that have occurred since the current forest plan was approved in 1996,” Dallas stated this fall when the draft was released for public review. “These changes include the spruce beetle infestation, closure of mills and timber-related infrastructure in southwest Colorado, changes in communications technology, increased development along the Forest boundary, and the need to shift fire management direction focused on suppression to the use of fire for resource benefit.”

Unlike what we saw on the HLC, this seems to reflect some of the issues that preoccupy this blog (especially the last item recently).  Similar to the HLC, there are only two action alternatives, but they are the more traditional left and right of the proposed action (more or less active management).

Alternative B, the draft plan that the Forest is proposing, provides for a balance of multiple uses; Alternative C would increase acreage available for multiple uses and reduce the amount of management areas; and Alternative D would propose less active management of resources and increase semi-primitive, non-motorized opportunities.

I think the planning process can work with a small number of alternatives if they are well-designed to address the relevant issues and impacts and if, as the Rio Grande says here, the parts can be mixed and matched to produce a final preferred alternative that is within the range of what was in the DEIS.  Here’s the Forest’s explanation of what their plan does:

Blakeman said the draft plan is broken down into: overarching goals that provide “big picture” guidance such as protecting water resources and terrestrial ecosystems and contributing to economic sustainability; desired conditions representing the vision of what the Forest should look like in the future; concise, measurable objectives, which guide the process and timeline to attain the desired conditions; and standards, guidelines and management approaches that provide constraints and/or site-specific direction. Blakeman said standards and guidelines are harder to change once in place but management approaches can be changed to adapt to changing conditions on the ground.

“Management approaches” are a possible red flag.  I’ve seen them used where the standards and guidelines are needed.  If the Forest can change or ignore management approaches, this has to be recognized in the effects analysis.  And they shouldn’t count towards meeting requirements for plan components (like diversity) because they are not plan components.

One other pet peeve.  Why can’t they use map colors that mean something, like mirroring the active/passive management scheme?

Case on forest plan wilderness recommendations

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Ten Lakes Snowmobile Club v. U. S. Forest Service

(Mentioned by Brian Hawthorne here, with links to an article and the opinion.)

This case was about the decision in the 2015 revised Kootenai and Idaho Panhandle National Forest plans to recommend (to Congress) areas for wilderness and to manage them to protect their wilderness values.  The Montana district court upheld the forests’ wilderness evaluation methodology, and their decision that effects on several wildlife species warranted prohibition of motorized and mechanized activities in the recommended wilderness areas (RWAs).  It also reiterated precedents that the Forest Service may choose to manage non-wilderness areas similar to designated wilderness.  It found that the EISs included proper no-action alternatives, and that the Kootenai properly coordinated with the Glen Lake Irrigation District (and did not have to be consistent with their “Natural Resource Plan.”)

Existing policy is that areas recommended for wilderness designation will be managed to prohibit activities that would “reduce the wilderness potential” or “compromise the wilderness values” of the area.  At issue is the role that Forest Service Region 1 policy played in the decision to exclude over-snow vehicles and mechanized use from these areas; specifically whether it improperly influenced the required site-specific analysis for each area.  Plaintiffs argued that the policy “created an inflexible prohibition of all motorized and mechanized travel in the RWAs.”  The court found this argument to be “unfounded and purely speculative,” and, “The record demonstrates that the FEIS in the Kootenai and Panhandle Forests considered site-specific impacts of motorized and mechanized vehicles.”

Plaintiffs also challenged decisions to manage areas as recommended wild and scenic rivers.  The court found that the Forest Service violated NEPA by including two creeks that had not been considered in any alternatives in the planning process prior to the final Record of Decision, which was after the public objection process.  It remanded the Kootenai plan for the narrowly defined purpose of providing an objection period for that decision for these areas.  It did not require a supplemental EIS because the area involved was 0.1% of the national forest which constituted “a minor variation that was qualitatively within the spectrum of alternatives that were discussed in the FEIS.”  It did agree with the Forest Service that the creeks meet the requirements of the Wild and Scenic Rivers Act to be considered eligible.

Another September case

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Wild Wilderness v. Allen seems to have not shown up on the Forest Service litigation reports, but here is a newspaper version.  On Sept. 8, the Ninth Circuit found that the decision to build the Kapka Sno-Park, a parking lot for snowmobile users on the Deschutes National Forest, was consistent with the forest plan and did not require an EIS.  I found a couple of points interesting.

One was the court’s treatment of forest plan “standards and guidelines” that were prefaced with language indicating discretion.  The court said, “But nothing in this provision mandates closure of any area to motorized use. It merely outlines steps that “will generally be taken” in the event of user conflicts. The Forest Plan outlines “an aspiration, not an obligation” and therefore “there is no law for us to apply in second-guessing the agency.””  It similarly dismissed language from the Recreation Opportunity Spectrum as “nonbinding guidance.” Note to the public participating in forest planning – if the plan doesn’t say “must” or “shall” the Forest Service won’t have to.  (Recreation, unlike wildlife, doesn’t have any substantive requirements that a plan must meet using mandatory language.)

On the NEPA side, the court held that the forest didn’t have to explain why it changed from an EIS to an EA, as long as it justified the EA.  It rejected the comparison “to cases in which agencies failed to provide reasoned explanations for changes in their position on matters of policy or factual findings.”  The court stated, “The Forest Service here, however, never changed its mind on any factual or policy matter but only on how it planned to comply with its own procedural requirements. There was no agency decision to reverse, as a draft EIS is not an agency decision at all.”  An EIS is not a decision, but this holding only makes sense to me if an EIS also does not represent a finding that there are significant impacts, which is would be a “factual finding.”  In fact, an EIS may be prepared by an agency even if effects are not significant, so changing from an EIS to an EA doesn’t necessarily trigger an additional burden of explanation for the agency.

What is Beyond the “Fog of War”?

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There are scary and uncertain times ahead for our forests. There is just too much “Fog of War” going on for the public to sort out and fact-check for themselves. Even the ‘fact-checkers’ should be suspect, until proven reliable and bias-free. The rise of ‘fake news’ has blurred multiple lines, and many people, even in mass media, fall for the hoaxes, satire or misinformation. (Example: An article appeared on the Grist website, showing concern about a recall of “Dog Condoms”, presenting the link to www.dogcondoms.com )

Why NEPA Docs are Long… Example of Agency Comments (EPA)

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I would bet if you examined agency comments from the agencies involved in reviewing NEPA docs for actions proposed by other agencies, you would find almost entirely “you need to do more’s” and not many “you could have shortened this section by leaving out’s”. Culturally, reviewers tend to be supporting their agency’s view, or a specific resource/interest, or both. If the reviewer couldn’t add something of importance, it would bring into question if the reviews are really necessary (this is a human characteristic true of any kind of review).

To paraphrase the old expression about a picture, an example is worth a thousand words. I ran across this letter from EPA in 2010 about a garden variety vegetation management project. You may think that some of this detail is unnecessary to inform the decision maker and the public about the alternatives, or the analysis is speculative, or the answers fundamentally unknowable in any meaningful sense. Nevertheless, if someone says you should, you have to answer why not, and the judge might not agree. Still, the worst that happens is the judge tells you to do something, and once that is on the table, through the next iteration the finish line is in sight :).

Here’s a link to the letter. It says it’s an exhibit, so may have been in a legal case. You can pick any topic and see that EPA thinks that more is better (more baseline data, more analysis, more monitoring). There’s nothing wrong with their having opinions, but they only tend to go in one direction (more is better). This is one reason environmental docs, especially EIS’s, tend to be long.

Prescribed Fire: The action alternatives of the Big Moose Vegetation Management Project include the application of prescribed burning to acreage varying from 1,263 to 6,000 acres, depending on the alternative. This significant prescribed fire activity may cause degradation of air quality and visibility in the region. While we realize that the individual burn plans for this project would quantify expected emissions from the prescribed burns, EPA is concerned that the DEIS does not contain any air impact analysis presenting direct, indirect, or cumulative air quality impacts that would be associated with prescribed burning on the large acreage under consideration. Such information should be included in the Final EIS and is necessary for the decision-maker to ensure protection of air quality and visibility if the prescribed burns are ultimately conducted.

and part of the letter on climate change

The Final EIS should discuss reasonable alternatives and/or potential means to mitigate or offset the GHG emissions from the action. We understand that the action is intended to mitigate the likelihood of future stronger and potentially wide-ranging wildfires in the area.
Nevertheless, the Final EIS should discuss whether there are any reasonable alternatives or means to mitigate GHG emissions associated with the proposed action (e.g., would GHG emissions be reduced with alternatives that entail the harvest but omit the prescribed burning proposed under Alternatives 3 and 4?). (My italics- an alternative that doesn’t include PB but only MTs)

Further, EPA recommends that the “Affected Environment” section of the Final EIS include a brief summary of the ongoing and projected climate change impacts relevant to the action area, based on U.S. Global Change Research Program assessments and other relevant peer-reviewed studies. In addition, EPA recommends that the Final EIS identify any potential need to adapt the proposed action to ongoing and projected regional climate change, as well as any potential impacts from the proposed action that may be exacerbated by climate change. For example, how might ongoing and predicted climate change affect the viability of the DEIS goal of promoting aspen regeneration in this area? With regard to exacerbation of impacts, how might climate change exacerbate the water quality and other impacts from this proposed action?

This should give folks who have not been there a taste for “how docs get long” :).

Logging in potential wilderness could foreclose forest plan options

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Taking this story about the Pisgah National Forest at face value, it raises the question of what kind of management is appropriate while a national forest is revising its forest plan.  We just looked at another example of how the Helena-Lewis and Clark National Forest appeared to be anticipating changes that would result from its revised plan, possibly requiring a plan amendment to do so if the proposed project is not consistent with the current plan.

Here, let’s assume that the project to log an area that the locals want to be wilderness is consistent with the current plan, but it would be inconsistent with alternatives being considered for plan revision (normally there would be a forest plan alternative with all potential wilderness areas recommended for wilderness).  NEPA addresses this situation:  “Agencies shall not commit resources prejudicing selection of alternatives before making a final decision” (40 §CFR 1502.2(f)).  However, for a “program environmental impact statement” that is in progress, it implies an exception for where activities are “covered by an existing program statement” (40 CFR §1506.1(c)); it actually restricts actions where they are NOT covered by a plan EIS and is silent on where they are.

I have sometimes wondered if the project planning teams and the forest planning team are talking to each other.  It certainly doesn’t look good when they seem to be working at cross-purposes, and it could be illegal.

Forest Service wins A to Z

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The Ninth Circuit affirmed the district court denial of a preliminary injunction for the North Fork Mill Creek A to Z Project on the Colville National Forest, which has been discussed here. Of note, the question of contractor-NEPA was not addressed, although the court said that the Forest Service “reviewed and approved” the EA, and “The Forest Service subsequently retracted and revised the EA to address concerns raised by the public.”

That’s right, an EA on a 13,000 acre logging project with some at-risk species. How could that be? The short answer is essentially full mitigation of effects. For pine marten and fisher, the plaintiffs agreed that goals in the forest plan would protect the habitat, and that the project was consistent with those goals by correctly identifying the habitat and leaving it alone. The legal arguments they made were more technical and weaker. So, while there are some differences here from the Colorado Tennessee project in lynx habitat, it appears that the Colville forest-wide conservation strategy for these species also simplified the project NEPA process. Full mitigation basically also occurred for sediment and open road density (It also probably didn’t hurt that, “The project was the result of a multi-year collaboration among elected officials, environmental organizations, Native American tribes, the timber industry, and community organizations.”  And maybe that had something to do with why the FS agreed to this degree of mitigation.)

The opinion includes an interpretation of the 2012 Planning Rule’s requirement for the use of the “best available scientific information in the forest planning process” (despite the fact that the new Planning Rule does not apply to either the existing plan or to any projects). Quoting a Ninth Circuit case: A party challenging the Forest Service’s scientific analysis cannot simply “cite studies that support a conclusion different from the one the Forest Service reached” and must instead provide “scientific studies that indicate the Forest Service’s analysis is outdated or flawed.”

Tennessee Creek Project in Colorado- Successful EA for Large Project

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Management areas within the project area

This case is from the July 28, 2017 Litigation Weekly but maybe deserves separate discussion. Previously folks have said you shouldn’t do EA’s but should do EIS’s, seemingly based on case law more than the NEPA regulations themselves (or as it has been characterized “DOJ won’t defend EA’s”). So we had been watching to see what EAs made it through litigation. This one has 13,580 treated acres and an endangered species (Canada lynx). I wonder if there’s something these folks did that others don’t do, or whether it’s just a “crapshoot” to go to court as my former colleague once said… It can’t be a lack of litigants, as these are folks who litigate frequently and are presumably good at it.

Here’s a list of hypotheses:
1. High quality NEPA work and consultation from the Leadville Ranger District (always one of my favorite hypotheses :))
2. Something about lynx is easier to accomplish than other ESA requirements..
3. Judges have different points of view
4. Judges in different circuits tend to have different points of view.
5. DOJ defense was above average.
6. Plaintiffs work was below average.
Other hypotheses?

Here’s a link to the project documents, the final EA (and draft) are under the “analysis” tab. It’s in the neighborhood of 150 pages, and it’s very readable. There is a draft and final EA, and the project went through the objection process.

Here’s what FS Litigation Weekly said about the case:

3. Wildlife I Region 2
The District of Colorado ruled favorable for the Forest Service on a National Environmental Policy Act (NEPA) suit challenging the Tennessee Creek Project on the San Isabel National Forest in WildEarth Guardians v. Conner. Plaintiffs challenges to the project focused namely on the Forest Service’s Canada lynx analysis under the Southern Rockies Lynx Amendment (SRLA) and to the use of an Environmental Assessment (EA) rather than an Environmental Impact Statement (EIS).
Plaintiffs claimed the EA failed “to disclose, analyze, and otherwise take a hard look at the environmental effects on lynx and specific types of lynx habitat.” They argue the EA: 1) should have included site-specific analysis and details as to treatment locations; 2) should have taken a harder look at lynx denning habitat; and 3) should have disclosed the location of existing lynx winter habitat within the project area. The court rejected these assertions.
Site-specific analysis is only required, as per the court, if environmental impacts are reasonably foreseeable. As the plaintiffs did not claim any such foreseeable impacts, the court concluded site specific analysis and treatment location details were unnecessary.
For denning habitat, the court found “the SRLA sets forth the appropriate framework for evaluating the effects of a project on lynx.” As the Forest Service complied with the SRLA through mapping lynx habitat, generally excluding spruce-fir habitat and habitat with dense horizontal cover, and attempting to promote foraging habitat, the court found the Forest Service’s analysis of lynx habitat in compliance with NEPA.
For lynx winter habitat the court found the Forest Service “focused on maintaining high-quality winter snowshoe hare habitat, per the SRLA guidance… The Service thus designed the project to exclude high-quality snowshoe hare habitat from treatment based on the best available science.” Accordingly, the court concluded the Forest Service satisfied its duty to take a hard look at the project’s impact on lynx winter habitat.
Plaintiffs next contended that the Forest Service was required to prepare an EIS due to the unique characteristics of the project area and the project’s impacts on it. The court, however, found the project activities insignificant when compared to the area in which they will be undertaken and that the agency did consider the characteristics of the project area, demonstrated by the constraints imposed on the project to protect high quality lynx habitat.

Here’s what the project does:
• Regenerate lodgepole pine through clear cutting on 2,370 acres.
• Thin 6,765 acres of mature lodgepole pine stands. Pre-commercial thin 345 acres of advanced regeneration of lodgepole pine.
• Improve aspen stands through prescribed fire and/or harvesting on 115 acres.
• Utilize prescribed fire on 6,040 acres with an average of 150 -300 acres of prescribed fire treatment per year.
• Remove encroaching conifers in meadows and sagebrush (1,345 acres) and use prescribed fire treatments in meadows throughout the project area (1,330 acres).
• Create small openings (less than 5 acres) in mixed conifer stands adjacent to spruce-fir by harvesting lodgepole pine to promote regeneration (375 acres).
• Remove spruce infested with or killed by insects (up to 1,395 acres).
• Maintain vegetation cover and increase age class and structure diversity over the long-term within the Ski Cooper Ski Area permit boundary (1,052 acres) utilizing mechanical and prescribed fire treatments in lodgepole and spruce-fir.
• Treatments adjacent to the Continental Divide National Scenic Trail (CONST) will be modified in accordance with Design Criteria #45 -47 (see the appendix to this decision).
• In order to conserve Canada lynx, the proposed action is specifically designed to comply with all objectives, standards, and guidelines in the Southern Rockies Lynx Amendment. To further protect quality lynx habitat, all areas in mapped lynx habitat with greater than 35 percent dense horizontal cover will not be treated.
• Mechanical treatments (thinning / clearcuts) will average 300 – 500 acres per year.
• Improve aquatic organism passage through the removal or replacement of 5 – 7 non-functioning culverts on National Forest System roads.
• Construct 2 – 4 nesting platforms at Turquoise Lake.
• Improve erosion and compaction issues by ripping, contouring, mulching, seeding, and/or installing erosion control netting in four developed sites (campgrounds and picnic areas).
• Improve aquatic habitat, reconstruct channel geometry, reduce erosion, and normalize sediment transport in 2.3 miles of Halfmoon Creek.
• Improve and maintain approximately 14 miles of Forest System roads including widening a portion of Forest System Road 109.
• Create approximately 20 miles of temporary roads and open approximately 1.5 miles of closed roads over the life of the project; roads will be closed and rehabilitated after treatments are complete.

“Not Enough Analysis”: The Ongoing Saga of the Village at Wolf Creek

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This is the map of the ski area.

When I was working in Region 2, I used to call this project “Reasonable Access for Unreasonable People”- I think at that point it involved ANILCA access to private land, and not a land exchange. This is a later incarnation of the same project.

For those who don’t remember the first incarnation, there was the infamous Redskin Tickets and Tetratech. Note that this is from a 2007 Denver Post editorial titled “scale back oversized plans for pristine area”:

Colorado Wild researchers may have found the proverbial “smoking gun” to back up their charges. According to the Herald, the project foes found e-mails from Tetra Tech executive Mark Blauer to Honts, asking for Washington Redskins football tickets for members of his staff who “put their heart and soul into your EIS.”

District Judge John Kane blocked construction of the roads until the case is finished and said the e-mails between Blauer and Honts raise concerns about the integrity of the EIS process.

It’s interesting that the Post editorial board (or the headline writer) called the area “pristine.” It was next to a ski area. So in the next incarnation, the proponents tried this.

Why is the proposed Land Exchange better?

We believe the Village at Wolf Creek Land Exchange offers an opportunity to develop a village that is unique in character compared with other ski villages. Specifically, by moving the Village into the trees away from the ski mountain, it creates a place of tranquility and solitude not found at other ski areas. Not to mention that it minimizes any disruption to the experience one feels when skiing at Wolf Creek. Here are the potential public benefits as outlined by the Forest Service in their Draft EIS:
development of private lands would be moved further east from Wolf Creek Ski Area, and would minimize impacts to skiers and ski area operations.
the land exchange would focus residential development and associated infrastructure in an area that is more suitable due to topography, natural resources, and proximity to US Highway 160.
the proposed land exchange would lead to a net gain of wetlands and perennial streams in public ownership.
the proposed exchange would accommodate a lower density development.
the land exchange would replace the need for ANILCA access.

If the ski area is full of people, and can be seen from the area proposed, could that area be “pristine”?

Anyway, in this incarnation, we have Judge Matsch who says (according to this Durango Herald article, I did not read the judge’s opinion)

Senior Judge Richard P. Matsch in no uncertain terms agreed with those concerns.

“What NEPA (National Environmental Policy Act) requires is that before taking any major action, a federal agency must stop and take a careful look to determine the environmental impact of that decision, and listen to the public before taking action,” he wrote in his decision. “The Forest Service failed to do that.”

Matsch noted “predictive bias” in the Forest Service’s decision to approve the land swap, suggesting the agency relied on environmental reviews that favored the developers and their request.

“Public awareness of the fragility of the natural environment has greatly increased in the intervening 30 years, and the need for a scientifically based analysis of the impact of the Forest Service decisions in managing national forest system lands to support a decision is imperative in explaining the decision to the public,” he wrote.

Matsch also took issue with the public comment process.

“The 900 public comments in the record show this heightened public awareness of the effects of human disruption of the native environment,” Matsch wrote. “Notably, responses to the public comments were prepared by the contractors who did the work. They would not be expected to find that work to be flawed.”

I think this is interesting that the judge said this about analysis, because even when I was involved (and I retired five years ago), there was no shortage of analysis including that with a “scientific” basis. I don’t know for sure, but the times I was involved, specialists from the forest reviewed the work of the contractors. I wonder what evidence the judge had that the FS wasn’t doing an adequate job of this?

The other thing about this project is that it shows that even with different political parties, with their own proclivities, in charge, some projects have staying power (30 years?). This should be encouraging to those who are worried about the impacts of the new administration.

And finally, as a citizen, I’d like to thank the people who have worked on the many incarnations of this project, caught between the legal requirements of ANILCA, and the opposition to the project. They have certainly put their hearts and souls into these many iterations and perhaps some generous soul could donate Broncos tickets to them!

Planning for pipelines – not

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A Draft Record of Decision document released by the United States Forest Service would allow 11 exceptions to the Jefferson National Forest Plan and adopt an amendment that allows old growth forests, rare species and wetlands to be destroyed by the proposed Mountain Valley Pipeline.

The Draft Record of Decision (ROD)  states that “the proposed plan amendment is needed…because the MVP Project cannot meet several Forest Plan Standards…to protect soil, water, riparian, old growth, recreational and visual resources.” (ROD, pg. 4)

The ROD refers to Executive Order 13766 recently issued by President Trump that directs the USFS to “expedite, in a manner consistent with the law, environmental reviews and approvals for all infrastructure projects that are a high priority for the Nation, such as …pipelines.”

Time for the energy development battles to move to court?   This article mentions two potential litigation risks.  The Forest did not consider any pipeline alternatives that would be consistent with the forest plan.  It also adopts plan amendments that were not included in the DEIS (arguably these are new decisions that were never scoped).  It could also test the amendment procedures under the 2012 Planning Rule.