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Reviewing Officer’s Response to Eligible Objections
Medicine Bow Landscape Vegetation
Analysis Project (LaVA)
Reviewing Officer’s Response to Eligible Objections
June 10, 2020
USDA Forest Service
Rocky Mountain Region
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Contents
Contents ........................................................................................................................................................ 2
Introduction.................................................................................................................................................... 3
National Environmental Policy Act (NEPA) ................................................................................................... 3
Purpose and Need and Proposed Action .................................................................................................... 11
Healthy Forests Restoration Act (HFRA) .................................................................................................... 21
National Forest Management Act ............................................................................................................... 26
Public Engagement ..................................................................................................................................... 29
Adaptive Management and Monitoring ....................................................................................................... 36
Inadequate Mitigation .................................................................................................................................. 39
Range of Alternatives .................................................................................................................................. 40
Economics ................................................................................................................................................... 43
Climate Change .......................................................................................................................................... 46
Best Available Science ................................................................................................................................ 49
Wildlife ......................................................................................................................................................... 59
Endangered Species Act ............................................................................................................................. 72
Temporary Roads ....................................................................................................................................... 77
Travel Management Rule ............................................................................................................................ 85
Roadless Area Conservation Rule (RACR) ................................................................................................ 86
Recreation ................................................................................................................................................... 90
Continental Divide National Scenic Trail (CDNST) ..................................................................................... 92
Hydrology .................................................................................................................................................. 100
Clean Water Act (CWA) ............................................................................................................................ 102
Soils ........................................................................................................................................................... 104
Cultural and Heritage Resources .............................................................................................................. 109
References Cited ...................................................................................................................................... 110
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Reviewing Officer’s Response to Eligible Objections
Introduction
Objection Process Summary: The objection review is conducted at the Regional Forester’s Office
by the delegated Reviewing Officer: Deputy Regional Forester, Jacqueline Buchanan. This
objection process follows Title 36, Code of Federal Regulations, Part 218 (36 CFR 218)
regulatory requirements for project level predecisional administrative review. Specifically, the
Medicine Bow Landscape Vegetation Analysis (LaVA) project falls under Subparts A and C,
which include provisions that are explicit to proposed hazardous fuel reduction projects
authorized under the Healthy Forests Restoration Act (HFRA). The objection filing period began
April 10, 2020, and ended May 11, 2020, and the Forest Service received 30 eligible objection
letters.
The objection issues raised a broad range of project design, resource management, and public use
concerns. However, many issues had similarities that warranted consolidation into specific topic
areas. Issues have been grouped into general resource headings with one response provided for
all objectors to facilitate review of and response to the concerns of the objectors. Therefore,
below is the Reviewing Officer’s collective written response to all objections, and it is an
outcome of a deliberative and extensive review of concerns raised by objectors involving
complex regulatory and management issues. Although some issues raised in objections are not
specifically cited in the responses, all objectors’ concerns have been considered.
This review resulted in instructions for Forest Supervisor Russell Bacon, as the responsible
official for the LaVA project. Instructions are mandatory changes that the Reviewing Officer
determined are required to be completed prior to signing of the Record of Decision (ROD). The
instructions provided are summarized in Enclosure 1.
National Environmental Policy Act (NEPA)
Issue 1
Objectors assert that a supplemental EIS should have been prepared instead of a modified final
EIS:
• Neither NEPA, the Council on Environmental Quality (CEQ), nor the Forest Service’s
NEPA regulations define, describe, or envision a “modified” EIS.
• NEPA requires the preparation of a supplemental EIS when there is significant new
information concerning the proposed action or its effects, and therefore the Forest
Service should provide an additional public comment period.
Response
The objectors are correct in that there is no standard in law, regulation, or policy for a “modified”
EIS as different from a draft or final EIS. However, there is also no law, regulation, or policy that
prohibits the Forest Service from describing the EIS this way. After receiving objections in 2019
on the original final EIS and as noted on page 15 of the modified final EIS, the Medicine Bow-
Routt National Forests (Forest) withdrew the final EIS and draft ROD and then made a number
of clarifications to improve these documents and address concerns raised in the 2019 objection
letters. It is therefore logical to give this clarified document a different name to differentiate it
from the original final EIS.
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The objectors refer to the CEQ NEPA regulations regarding supplementation and new
information, which state that agencies shall supplement a draft or final EIS when “there are
significant new circumstances or information relevant to environmental concerns and bearing on
the proposed action or its impacts” (40 CFR 1502.9(c)(1)(ii)). One objector particularly mentions
the Transportation Report, Wildlife Biological Analysis, and Wildlife Biological Evaluation as
containing new information requiring supplementation. Though these documents do include
some new, post-draft EIS information, it is not significant information with bearing on the
modified proposed action or its impacts. The missing appendices added to the Transportation
Report after the draft EIS provide implementation information and best management practices,
but they do not change the analysis of the effects. Regarding the Biological Assessment, the
objector notes that “the substance of the analysis, assumptions, and conclusions appear to be
essentially the same as the 2019 Wildlife Biological Assessment,” which is consistent with the
minor changes described in the section of the modified final EIS discussing wildlife-related
objection issues raised after publication of the original final EIS (modified final EIS, pp. 21-24).
Conclusion
Through my review of the project record, I have determined that the Responsible Official is not
in violation of law, regulation, or policy in deciding to use the adjective “modified” to
distinguish the subject final EIS from the original final EIS. Modifications to simply augment
existing analysis, not to amend conclusions of effects, does not constitute new information
requiring a supplemental EIS under 40 CFR 1502.9(c)(1)(ii).
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Issue 2
Objectors assert that the environmental analysis is inadequate and in violation of NEPA,
because it lacks site-specific information and generally lacks detail about the project.
Specifically, objectors contend that:
• The depth of analysis in the LaVA modified final EIS is more akin to what one would
expect in a forest plan or programmatic EIS.
• The Forest Service improperly postponed the requisite environmental analysis until it
picks the specific sites for treatment under the project.
• The Forest Service’s conditioned-based approach improperly allows the agency to forgo
meaningful public comment on site-specific actions, essentially creating a blank check
for a range of future activities.
• There is great diversity within the project area, so there should be separate
considerations within the NEPA process on each diverse area.
• The Forest Service’s plans to rely on post-decision implementation checklists to consider
details and site-specific information undermines the purposes of NEPA to ensure
agencies consider and disclose the impacts of their actions before making a decision.
• The Forest Service should consider and learn from the recent federal court decision that
rejected the agency’s attempt to rely on a broad, vague EIS to approve logging and road
building across a vast landscape over the course of more than a decade (Prince of
Wales Decision).
• The Tenth Circuit’s decision in WildEarth Guardians v. Conner (the Tennessee Creek
project) does not absolve the Forest Service of its duty to provide more detailed
information in its analysis of the LaVA project in the modified final EIS.
• In the Tennessee Creek case, the court concluded that despite not specifying the
precise locations within a project area that will be affected, the Forest Service’s “analysis
accounted for the uncertainty about treatment locations by evaluating the Project’s
effects on lynx in a worst-case scenario in which all the mapped lynx habitat…the Forest
Service did not assume a worst-case scenario in assessing impacts of the LaVA project
to Canada lynx and its habitat.
Response
Impacts analysis in an EIS should have a level of detail that is sufficient to support a reasoned
choice among alternatives (40 CFR 1502.1). NEPA does not prescribe a requisite level of detail
or scale. The CEQ NEPA regulations direct that EISs be analytic, rather than encyclopedic (40
CFR 1500.4(b), 1502.2(a)). Data and analyses in an EIS must be commensurate with the
importance of the impact (40 CFR 1502.15), and NEPA documents must concentrate on the
issues that are truly significant to the action in question, rather than amassing needless detail (40
CFR 1500.1(b)). Therefore, conducting a thorough, sufficient site-specific analysis and taking a
hard look at the effects of a proposed action does not always require hard data. If the data
collected, evaluated and disclosed was adequate to inform the decision maker of the likely (non-
speculative) environmental impacts of the project and allowed the public to reasonably comment
on the significant issues, the hard look test was met (reissued draft ROD, p. 38).
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The modified final EIS assumes that the maximum treatment potential will be implemented for
purposes of discussing environmental consequences (MFEIS, p. 111). This assumption helps the
Forest predict a “worst-case-scenario” level of impact, which ensures the direct, indirect, and
cumulative effects of the project were analyzed in a comprehensive and systematic manner.
In addition to assuming maximum treatment potential to ensure adequate analysis of direct,
indirect, and cumulative effects, the Forest decided to lend site specificity to the analysis by
breaking down the project area into 14 accounting units. The accounting units are a way of
subdividing the LaVA project area into subunits to help describe the affected environment,
environmental effects, decision making, and project implementation. Each accounting unit
incorporates a Lynx Analysis Unit (if applicable) and a contiguous group of 7th-level watersheds
(MFEIS, p. 111). Additionally, the modified final EIS is tiered to the Land and Resource
Management Plan (LRMP, also known as a Forest Plan), therefore the accounting units conform
to Management Area standards, guidelines, and associated activity restrictions (MFEIS, p. 384).
Because of this, some objectors contend that this project fits more appropriately as a
programmatic planning document, such as a LRMP. However, LRMPs set forth zoning for what
may happen across the whole forest over its lifetime, but authorize no projects. In contrast, LaVA
authorizes specific actions to accomplish a specific purpose and need on limited acres in a
limited time and responds to a natural event at the scale of that event. The analysis is more
specific than the analysis of a programmatic LRMP. What’s more, each accounting unit within
LaVA is further broken down, with detailed maps, into separate emphasis areas (fuels treatment
and safety emphasis, forest and rangeland resiliency and forest products emphasis, wildlife
emphasis, recreation emphasis, scenic and aspen emphasis, and special area emphasis), or areas
where certain treatments (or lack of treatments) are prioritized over others, or not allowed at all.
The treatment types that may occur and the number of acres on which they may occur are listed
for each emphasis area. The environmental consequences discussion, which is primarily in the
specialist reports, analyzes the impacts of the treatments at a scale that is appropriate for making
a reasoned choice among alternatives, as mentioned, it assumes that all proposed treatments will
be implemented. Therefore, it is not necessary to know the exact tree to be cut in order to
understand the impacts of the modified proposed action.
Utilizing the specific information derived from the accounting units and emphasis areas, the
Forest Service has developed a process that incorporates public and stakeholder input of how
individual treatments will be identified, designed, and implemented. This process, the Adaptive
Implementation and Monitoring Framework (Appendix A of the modified final EIS), includes
mitigation measures, best management practices, decision-triggers, implementation checklists,
and monitoring requirements designed to ensure that treatment activities are consistent with the
modified final EIS and Record of Decision (MEIS, Appendix A ,p. 6). The Framework, is an
essential component of the LaVA Project. It provides the sideboards and constraints for the
design of individual treatments; mechanisms of accountability, tracking, decision-making, and
documentation; and a framework to assure active public engagement throughout the life of the
project (MFEIS, Appendix A, p. 6)
The LaVA project is more akin to the Tennessee Creek Vegetation Project than to Prince of
Wales Landscape Level Analysis Project. LaVA, like Tennessee Creek, aims to be responsive to
the changed forest conditions caused by the mountain pine beetle epidemic through
implementing even-aged and uneven aged treatments in predominately lodgepole pine stands.
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Whereas the Prince of Wales Landscape Level Analysis Project intended to provide a stable level
of forest products to help maintain the expertise and infrastructure of the timber industry. Also,
both the LaVA and Tennessee Creek projects were designed to a level of specificity that allows
for mapped treatment units, estimates of the annual treatment acreages by type of treatment, as
well as 15-year projections. Additionally, both projects were analyzed assuming maximum
treatment potential under the proposed action to ensure adequate analysis of direct, indirect, and
cumulative effects (MFEIS, Table 2, pp. 9-12), including in Lynx Analysis Units.
Regarding decision making, the Forest Service NEPA regulations require that the Responsible
Official “complet[e] the environmental document review before making a decision on the
proposal” and “Consider the alternatives analyzed in environmental document(s) before
rendering a decision on the proposal” (36 CFR 220.4(c)(1), (4)). The Responsible Official has
complied with these requirements through preparing an EIS that fulfills NEPA’s twin aims of
informed decision making and meaningful public participation.
Public Engagement Issue #4 and Adaptive Management and Monitoring Issue #1 address
objectors’ concerns related to meaningful public engagement and its consistence with NEPA
requirement. Additionally, see the response to Healthy Forest Restoration Act Issue #1 and pages
9-13 of the modified final EIS, Appendix B for further discussion on site specificity and
programmatic analysis.
Conclusion
The modified final EIS includes sufficient detail, and at a sufficient scale, for the public provide
meaningful feedback and the responsible official to make a reasoned choice between alternatives.
The mapped accounting units and emphasis areas, annual estimates regarding number of acres
receiving specific treatments, and descriptions of impacts of those treatments are all important to
making such a comparison. I find that the LaVA project is consistent with NEPA from a site-
specificity and decision-making standpoint.
Issue 3
Objectors assert, without providing specifics that the Forest Service has consistently violated
the NEPA process, and those violations are the reason for the modified final EIS and reissued
draft ROD.
Response
As described on page 6 of the reissued draft ROD, the reason for the modified final EIS and
reissued draft ROD, wasn’t due to violations with the NEPA process. Instead, the Responsible
Official wanted to be responsive to public concern that was revealed during the 2019 objection
process. This is the exact reason the pre-decision administrative review process exists, for the
Responsible Official to strengthen the analysis, adopt recommendations, and to improve the
decision. Nevertheless, the modified final EIS discloses the Forest Service’s consistency with the
procedural requirements of NEPA under the CEQ regulations (40 CFR 1500-1508) and to fulfill
its twin aims: informed decision making and meaningful public participation. The modified final
EIS describes the purpose and need for action (MFEIS pp. 31-51) and the agency’s preferred
alternative (40 CFR 1502.14(e)) (MFEIS, pp. 59-97). Additionally, Chapter 3 of the modified
final EIS and individual specialist reports disclose the affected environment and the
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environmental consequences of the project in terms of its likely direct, indirect, and cumulative
effects on the biological, physical, and social environment. Furthermore, the modified final EIS
explains how the Responsible Official worked with a large number of cooperating agencies and
tribal governments in the planning and analysis of this project (MFEIS, pp. 51-52). The
Responsible Official involved and responded to the public’s concerns in developing and
modifying the proposed action and conducting its analysis in the two iterations of this EIS
(MFEIS, pp. 2-8, 52-57).
Conclusion
Based on my review of the modified final EIS and the associated project record, I find that the
Responsible Official conducted the NEPA process consistent with the procedural requirements of
NEPA.
Issue 4
Objectors assert that the newly released documents provide no substantive additional analyses.
As a result, valid questions and concerns that were raised during public comment and objection
periods are almost entirely unanswered and unaddressed.
Response
In accordance with 36 CFR 218.10(a)(9), the 2019 objection process was cancelled by the
Responsible Official. The objections were set aside and a written response to the issues was no
longer required by the Forest Service. Based on a review of the objection letters and project
record, and through discussions with objectors, the Reviewing Officer decided to provide
recommendations to the Responsible Official to assist with his desire to be responsive to issues
raised. Chapter 1 of the modified final EIS includes Table 1, which outlines the objection issues,
the Reviewing Officer’s recommendations, and the Responsible Official incorporation of those
recommendations.
Outside of the 2019 objection process, the Forest Service is required to assess, consider, and
respond to all substantive comments received (40 CFR 1503.4). The Forest documented
responses to comments received on the draft EIS in Appendix B of the modified final EIS.
Objectors provided one specific example that they contend demonstrates otherwise (Comment 1
on p. 8 of Appendix B, MFEIS).
The response explains why a minimum road system is not identified – because temporary roads
are not considered part of the road system. Also see Travel Management Rule Issue 1.
Similar to the question raised above, there is a previous comment on page 57 of the modified
final EIA, Appendix B – Response to Comments document, that asks the Forest Service to
provide assurances that temporary roads will be decommissioned once they are complete. The
Forest responded that “Decommissioning of temporary roads is tracked by the sale
administration team as part of required inspection documentation” (Appendix B, p. 58). This
topic is again discussed on pages 60-61 of the Appendix B. Additionally, the Forest incorporated
a design feature (DF-RdT-1) that will track and ensure that the rehabilitation of temporary roads
will occur within 3 years after the vegetation management treatments have been completed
(MFEIS, Appendix A, p. 62). The Forest also made a change to the modified proposed action in
response to comments on this issue, capping temporary roads at 75 miles open at any one time,
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to ensure that the decommissioning is occurring and current (MFEIS, p. 7). For a summary of
how the Responsible Official responded to public comments, see pages 32-34 in the reissued
draft ROD.
In further review of the project record, there appears to be an incomplete response to comment
801.905 that requests the Forest to decommission existing system roads on page 25 of Appendix
B. The response focuses on the second part of the comment discussing a proposed alternative
with no new roads and does not address road decommissioning.
Conclusion
Through my review of the project record, I have determined that the Responsible Official has
adequately responded to comments raised during the formal public comment period. I am
instructing the Responsible Official to consider and address comment 801.905 in its entirety
prior issuance of the final ROD.
Issue 5
Objectors assert that the Forest Service failed to sufficiently analyze cumulative impacts, and
instead overly rely on the modified final EIS, Appendix A – Adaptive Implementation and
Monitoring Framework.
Response
The CEQ’s implementing regulations for NEPA define cumulative effects as “the impact on the
environment which results from the incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions” (40 CFR 1508.7). As described on page 38 of
the reissued draft ROD, cumulative effects provide decision makers with a detailed accounting of
the likely environmental effects of a proposed action prior to its adoption and informs the public
of, and allows comment on, such effects. The individual specialist reports discuss cumulative
effects and the modified final EIS’s “Summary of Cumulative Effects,” on pages 173-175,
appropriately lists the past, other present, and reasonably foreseeable future actions that should
were considered in the analysis of cumulative effects. The cumulative effects analysis for several
resource areas did not explicitly identify which of the listed projects would contribute
measurable impacts of the same type, in the same location, at the same time period as the effects
of the action being analyzed.
Conclusion
Based on my review of the EIS, I find that cumulative effects were analyzed within individual
specialist reports. However, to provide better clarity and disclosure, I am instructing the
Responsible Official to review the past, present, and reasonably foreseeable activities and ensure
these activities are considered and addressed as part of the cumulative effects analysis.
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Issue 6
Objectors assert that the changes between the draft EIS and final EIS and again between the
final EIS and modified final EIS precluded their opportunity to provide meaningful comments,
because the Forest Service did not demonstrate a “logical outgrowth” from what was initially
proposed as required by the Administrative Procedure Act. Furthermore, objectors contend that
the Forest Service substituted at the last moment one set of data and analysis where previously
there had been none, thereby deprived the public of the notice and opportunity to comment
guaranteed by NEPA.
Response
Objectors are contending that the Forest made changes to the final EIS that were so significant
that they require an opportunity for the public to provide comment on the new material. In such
cases, the CEQ NEPA regulations instruct preparation of a supplemental EIS, which must be
circulated in the same fashion as a draft and final EIS (40 CFR 1502.9(c)(4)). A supplemental
EIS, including an additional opportunity for public comment, is required when (1) agencies make
substantial changes in the proposed action that are relevant to environmental concerns, or (2)
there are significant new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts (40 CFR 1502.9(c)(1)(i),(ii)).
The purpose of public involvement in NEPA is for agencies to make changes in response to
public comment. See State of California v. Block:
The main policy reason for soliciting public comment is to use public input in assessing a
decision's environmental impact. To effectuate this purpose, agencies must have some
flexibility to modify alternatives canvassed in the draft EIS to reflect public input. If an
agency must file a supplemental draft EIS every time any modifications occur, agencies
as a practical matter may become hostile to modifying the alternatives to be responsive to
earlier public comment. Moreover, requiring agencies to repeat the public comment
process when only minor modifications are made promises to prolong endlessly the NEPA
review process.
(690 F.2d 753, 771 (1982); internal cites omitted.) Four of the five options in the CEQ NEPA
regulations for responding to comments revolve around making changes to the document: (1)
Modify alternatives including the proposed action; (2) Develop and evaluate alternatives not
previously given serious consideration by the agency; (3) Supplement, improve, or modify its
analyses; (4) Make factual corrections; and (5) Explain why the comments do not warrant further
agency response, citing the sources, authorities, or reasons which support the agency's position
and, if appropriate, indicate those circumstances which would trigger agency reappraisal or
further response (40 CFR 1503.4). These five options make it evident that the entire purpose of
the NEPA public involvement process is to allow the decision maker to introduce changes that
are responsive to public comment. The logical outgrowth test is not directly applicable because
the notice and comment provisions of the Administrative Procedure Act only apply to rule
making, not project-level decisions. Nonetheless, the LaVA project’s iterative process and
changes from final EIS to the modified final EIS are summarized in Table 1 (pp. 3-6) and pages
61-69 of the modified final EIS. Additionally, the Responsible Official offered several
opportunities for public involvement, including not just scoping, public comment on the draft
EIS, and objections on the original final EIS, but also objections on the modified final EIS. It is
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not only reasonable but an appropriate application of NEPA that the proposed project and
analysis have changed since the draft was issued.
Also see response to Public Engagement Issue 6.
Conclusion
The agency is entitled to combine its NEPA and objection processes in a way that advances the
goals of both by providing opportunities to engage the public in a focused way and allows the
agency to make changes responsive to that engagement. I find that the Responsible Official has
provided adequate opportunity for public involvement and did not violate the Administrative
Procedure Act or CEQ NEPA regulations by choosing to not prepare a supplemental EIS.
Also see conclusion for Public Engagement Issue 6.
Purpose and Need and Proposed Action
Issue 1
Objectors asserts that the Healthy Forests Restoration Act of 2003 is being used as an excuse
to conduct logging operations, and as HFRA mandates, the Forest Service should be
cooperating with forest ecologists from universities. The local forest ecologists oppose LaVA
and have stated many times that the beetle infestation on the Medicine Bow National Forest has
ended.
Response
The purpose and need of the LaVA project are consistent with the 2003 HFRA as amended by the
Farm Bill of 2014. See response to HFRA Issue 1.
Section 602 of HFRA (PUBLIC LAW 113–79—FEB. 7, 2014) defines designated treatment
areas as areas of “declining forest health”. This definition includes a forest that is experiencing
(1) substantially increased tree mortality due to insect or disease infestation; or (2) dieback due
to infestation or defoliation by insects or disease. An insect epidemic that has returned to
endemic levels but has caused increased tree mortality or dieback may qualify as a designated
treatment area under HFRA authority. The LaVA project area is within an expanded insect and
disease treatment area. This designation was approved on March 22, 2017 by the U.S. Forest
Service Washington Office.
The description for modified proposed action explains that a variety of vegetation management
activities will be applied including prescribed fire, mechanical, and hand treatment methods
(MFEIS, p. 62) through “A combination of commercial timber sales, service contracts,
stewardship contracts, cooperative authorities, partner capacity, and Forest Service crews would
be used to implement the project.”
Conclusion
I find that the purpose and need is consistent with HFRA. Furthermore, the modified proposed
action includes a variety of vegetation treatments and methods for implementing those treatments
to meet the purpose and need.
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Issue 2
Objectors assert that the Forest Service should leave the dead trees in the forest to return
nutrients to the system and provide for wildlife habitat.
Response
The LRMP has requirements for snag retention and recruitment, and for desired level of coarse
woody debris. These requirements for snag retention and recruitment are outlined in the table on
page 189 of the modified final EIS. The standard for post treatment coarse woody debris is
outlined in Table 1-12 of the LRMP (pp. 1-38). Coarse woody debris is defined as any piece(s) of
dead woody material, e.g., dead boles, limbs, and large root masses on the ground or in streams
(LRMP, Appendix G, p. G-4) but Table 1-12 further refines the definition to mean a piece at least
3 inches in diameter and 25 feet long.
Appendix A in the modified final EIS provides further guidance on ensuring that snag and coarse
woody debris requirements are met during implementation. Attachment 4 requires that the
silvicultural prescription for each treatment unit includes directions for handling snags and
coarse woody debris and references LRMP standards and guidelines (MFEIS, Appendix A, p.
74). Attachment 5 provides post treatment standard operating procedures. The timber section
directs that monitoring for snags and coarse woody debris to ensure that standards are being met
should be done (MFEIS, Appendix A, p. 78).
Conclusion
I conclude that the Forest has adequately analyzed and provided for the retention and recruitment
of snags and coarse woody debris. Snags and coarse woody debris provide critical habitat for
wildlife and are a critical part of the nutrient cycle along with slash from vegetation management
treatments. The LRMP identified the desired levels of coarse woody debris and snags on the
landscape and the decision does a sufficient job of tying the analysis and implementation of the
project to the LRMP.
Issue 3
Objectors assert that the purpose and need is flawed because understory vegetation is
relatively untouched by the bark beetle epidemic, and age class, structural and vegetative
diversity is already occurring in the absence of treatments.
Response
The purpose and need for this project is described in detail in the modified final EIS on pages 31-
32. Table 3 (p. 32) succinctly summarizes one of the needs as, “To increase age class, structural,
and vegetation diversity across the landscape. Promote forest and rangeland conditions to
improve forage and wildlife habitat. Actively accelerate recovery and regeneration of forest
ecosystems” (MFEIS, p.32). The LRMP direction section of the modified final EIS outlines the
goals from the LRMP and identifies how the purpose and need meets two of the goals (MFEIS,
pp. 32-33). Tables 7, 8, and 9 show the current and desired condition of structural stages across
the project area. These tables help to demonstrate the need for the modified proposed action
(MFEIS, pp. 46-48). This being said, the necessity to increase age class, structural, and
vegetation diversity across the landscape isn’t the only need. There is need to treat hazardous
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fuels and create defensible space, mitigate potential impacts to infrastructure and municipal
water supplies, restore priority areas of wildlife habitat, mitigate hazard trees, and to provide
commercial forest products to local industries. Not treating the stands, as the objectors allude,
will not meet the purpose and need for the project. See Appendix B, the response to comment #2
under 801.01(p. 5), and the response to comment #1 under 821.02 (109-110) for additional
discussion.
Conclusion
I conclude that the analysis demonstrates the need for the proposed treatments. The forested
areas within the project are outside of the desired condition for age class and structural stage and
the modified proposed action would help to better align the current and desired condition. This is
in alignment with LRMP direction. Though individual stands or cover types might be close to the
desired condition the larger landscape is not meeting the objectives of LRMP management
direction. Moreover, the modified proposed action would additionally meet the whole purpose
and need, not just the purpose of enhancing forest and rangeland resiliency to future insect and
disease infestations.
Issue 4
Objectors assert that there is not a sufficient timber value and market to meet the purpose and
need. Therefore, a periodic market analysis should be performed before advertising new
projects to prevent loggers from high grading the stands, defaulting on the contract, and
consequently leaving the stands in an unacceptable condition.
Response
A breakdown of the economic impact of the timber industry in the State of Wyoming can be
found in the Social and Economic Report. Under the modified proposed action, timber harvest is
estimated at approximately 325,000 ccf per year for the first 6.5 years and 190,000 ccf per year
for the latter 8.5 years. This is estimated to support approximately 1,585 jobs, $63 million in total
labor income, and $82 million in GDP contributions for the local economy annually for the first
6.5 years and 925 jobs, $37 million in total labor income, and $48 million in GDP contributions
for the latter 8.5 years of project implementation (Social and Economic Report, p. 18-19). There
are industry meeting notes in the reference materials of the project record that show there is
interest in the material that would be produced as well as a breakdown of mill capacity in the
area. Furthermore, before forest products can be sold an appraisal must be completed to
determine the value of the timber. The appraisal process is very in depth and accounts for current
timber prices, logging costs, transportation costs, and risk. The Timber pre-treatment section of
Attachment 4 of the modified final EIS, Appendix A lists the timber sale appraisal as one of the
pre-treatment steps to complete (p. 74).
Conclusion
I conclude that the Forest has fully considered the value of timber products that could be
removed through the implementation of this project. The reference materials demonstrate that the
Forest has a good working relationship with the local timber producers and that there is a market
for the forest products generated from this project.
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Reviewing Officer’s Response to Eligible Objections
Issue 5
Objectors assert that the proposed vegetation treatments and temporary road construction will
be contrary to the LRMP Management Area 1.2 – Recommended for Wilderness direction of
providing for wilderness characteristics.
Response
The project record documents potential need of treatment within Management Area 1.2 based on
input from the Cheyenne Board of Public Utilities.
No road construction, including temporary roads, is proposed in Management Area 1.2 as
outlined in Table 4 of the modified final EIS (p. 35) and Table 9 of the reissued draft ROD (p.
23)Treatment in Management Area 1.2 may occur on 12,320 acres using a limited suite of tools
(prescribed fire and hand tools). The primary treatment objectives in these areas include, but are
not limited to, protecting the intrinsic values associated with these special areas (reissued draft
ROD, p. 23).
The modified final EIS discusses potential treatment in Special Emphasis Treatment Opportunity
Areas. The primary objectives for treatment in these areas would be to protect the intrinsic values
associated with these special areas. That is, treatments would only be proposed if the mortality
from the beetle epidemics is detracting from purposes for which the areas were designated (for
example, research, botanical values, zoological values). Secondary objectives could include fuels
reduction treatments, wildlife enhancement projects, protection of infrastructure, and protection
of municipal water supplies (MFEIS, p. 81).
Applicable design features and standards and guidelines for Management Area 1.2 are included
in Appendix A of the modified final EIS (Table 14, p. 102 and pp. 110-111).
Also see conclusion for Range of Alternatives Issue 1.
Conclusion
I find that the proposed treatments and associated activities within Management Area 1.2 are
consistent with the LRMP. I instruct the Responsible Official to clarify how treatment in
Management Area 1.2 would preserve wilderness characteristics and thus meet the primary
objective for treatment.
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Reviewing Officer’s Response to Eligible Objections
Issue 6
Objectors assert that the purpose and need, and therefore the modified proposed action,
inappropriately conflicts with the purposes of congressionally designated areas. Specifically,
objectors contend:
• That the project fails to include the congressional mandate to maintain or restore the
resource conditions of Wilderness, Wild and Scenic Rivers, and National Scenic Trails
• That managing for the purposes for which the Continental Divide National Scenic Trail
was established and designated would recognize that when lodgepole pine stands are
located in desired primitive and semi-primitive Recreation Opportunity Spectrum
settings, the Scenery Management System analysis framework is effective. Therefore, a
non-intervention policy would be more appropriate to promote natural processes and
natural rejuvenation.
Response
Wilderness Areas (Management Area 1.13) are not available for treatment (reissued draft ROD,
p. 23).
A full suite of tools may be used on 991 acres, Management Area 3.4 National River System
Scenic River Designated and Eligible. No road construction, including temporary roads, is
authorized (MFEIS, p. 80). The primary objective for treatment in this area is to protect and
perpetuate scenic river corridors. To meet this primary objective, treatments would be designed
to enhance wildlife habitat, promote aspen regeneration, enhance visual quality along scenic
byways by removing hazard trees, and enhance forest and rangeland resiliency to future insect
and disease infestations. Secondary objectives could include fuels reduction treatments,
protection of infrastructure, enhanced access for forest visitors and permittees, and protection of
municipal water supplies (MFEIS, p. 79).
Consideration of the purposes for which the Continental Divide National Scenic Trail (CDNST)
was established and designated are addressed in the modified final EIS (pp. 341 and 342),
Appendix A (p. 100) ((excerpted from 2003 LRMP) SOC-SCN-S.1, SOC-SCN-S.2, SOC-ROS-
S.1), and Appendix A, Design Features pages 56, 57, and 63. The implementation process relies
public participation in projects. The opportunity to provide input to specific proposals in the
vicinity of the CDNST exists at that time.
See response to HRFA Issue 2 and CDNST Issue 1 in regard to the inclusion of the CDNST in
the project area and in potential treatment areas.
Applicable design features and standards and guidelines for the Management Areas 1.2 and 3.4
are included in Appendix A of the modified final EIS.
The purpose and need is summarized in Table 3 of the modified final EIS (p. 32).
Conclusion
I find that the purpose and need and modified proposed action for the LaVA project is consistent
with the congressionally designated areas. The Responsible Official does not propose any
treatments in Wilderness.
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Reviewing Officer’s Response to Eligible Objections
Issue 7
Objectors assert that the modified proposed action would decrease resiliency rather than
increase it. Objectors expressed concern with the amount of even-aged management (including
clearcutting) that is in the modified proposed action and whether the desired condition will or
can be met. Objectors are concerned that healthy parts of the forest will be clearcut and
clearcuts are scientifically contentious, fiscally irresponsible, and ecologically destructive.
Objectors suggest that most clearcut treatment should be done in high mortality areas (>50%)
and should not exceed 40 acres since large clearcuts would repeat the existing problems on the
landscape.
Response
The analysis and modified proposed action are compliant with NEPA, HFRA, the 2003 revised
Medicine Bow LRMP and other relevant Federal and State laws and regulations (reissued draft
ROD, p. 3). The Silviculture Specialist Report states compliance with National Forest
Management Act (NFMA) 16 U.S.C. 1604 (g)(3)(E) and 16 U.S.C. 1604 (g)(3)(F) ensuring that
the clearcut harvesting system is selected only where it is most appropriate and not just for
commercial purposes. The LRMP provides management direction to use the scientifically
defined silviculture systems that meet the management objectives for the landscape or individual
stands of trees within the landscape setting (LRMP, p. 1-35, Standard 2). Tables 1-9 provide
guidance on appropriate silviculture systems by forest cover type (LRMP, p. 1-36) and identifies
clearcut as an appropriate silviculture system for all cover types except Engelmann
spruce/Subalpine fir.
The modified proposed action section of the modified final EIS provides an acreage breakdown
of the three main categories of vegetation management (MFEIS, p. 63). The same section also
gives an annual estimate, in acres or miles, for the activities that could happen under the
modified proposed action (MFEIS, p. 63, Table 15).
A high proportion of the project area is in Management Areas 5.13 and 5.15. For Management
Area 5.13 the LRMP states that these areas will be intensively managed for wood fiber due to
their accessibility, terrain, and resource conditions (LRMP, p. 2-58). For Management Area 5.15
the LRMP states that these areas can be managed for wood fiber while emphasizing conditions
similar to the Historic Range of Variability (LRMP, p. 2-61). The LRMP sets desired conditions,
standards, and guidelines for each management area, and the Silviculture Specialist Report ties
the modified proposed action to the LRMP (Silviculture Specialist Report, pp. 1-9).
The Silviculture Specialist Report (pp. 32-33) gives further explanation of how proposed
treatment categories would alter stand structure, age class and vegetation diversity. Tables 22, 23,
and 24 of the Silviculture Specialist Report show LaVA project treatment types (i.e., stand
initiation; shelterwood, intermediate or uneven-aged; and other vegetation treatments, shrub and
grassland treatments), silvicultural system for each treatment type, mortality, insect and disease
levels where each treatment could be applied, and other associated silvicultural concerns.
All even-aged treatments, including clearcutting, are proposed for stands with current mortality
levels greater than or equal to 50%. These methods are considered optimum since retention of
residual upper canopy trees is unlikely due to stand deterioration. Two-aged treatments would
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Reviewing Officer’s Response to Eligible Objections
retain residual trees however windthrow is a concern in these stands post treatment.
Opportunities for two-aged treatments are very limited in stands with high levels of mortality.
Clearcut harvest method or the end appearance of a clearcut in several treatment types may occur
due to stand conditions from bark beetle mortality. In some stands, potential residual trees would
be damaged by harvest activities or would be likely to become windthrown due to the opening of
the stand. (Silviculture Specialist Report, p. 51).
The exception to this is proposed treatments that are a component of a shelterwood system,
which is also an even-aged system. These treatments would target stands with current mortality
levels of 30 -49%. Conditions in these stands are more conducive to partial retention of the
overstory than stands with mortality levels of 50% or greater. Windthrow is also a concern in
these stands post-treatment.
Exceptions to the 40-acre limit on even-aged openings per the NFMA and the 2003 LRMP
revision are discussed in the LaVA Silviculture Specialist Report:
Areas affected by the bark beetle epidemic are an exception to the 40-acre maximum size. Areas
that are not affected or minimally affected by the bark beetle epidemic will follow the 40-acre
maximum size. (Silviculture Specialist Report, p 2).
Due to the bark beetle epidemics, openings greater than 40 acres may be created, as allowed for
under Silviculture Standard 1b (pp. 1-35) of the LRMP (Silviculture Specialist Report p. 52).
The reissued draft ROD ties this all together in the rational for decision section on page 30
“Resiliency can be achieved by moving forested vegetation toward LRMP desired conditions for
structural stage, age class, and cover type. Treating vegetation to increase resiliency to future
insect and disease epidemics meets the need to promote healthy rangeland conditions because
livestock are unable to access available forage in heavy fuel conditions.” This rational is
supported by the cumulative effect analysis in the Silviculture Specialist Report which states
(Silviculture Specialist Report, p. 47):
The combination of vegetation treatments, bark beetles, and other insects and disease effects
across the project areas will result in a variety of stand structures. Implemented stand initiation
treatments in conjunction with tree mortality will move habitat structural stages from mid and
late seral, HSS3 and 4, to structural stage 1 or 2. This conversion to a more early seral structure
stage will move forest structure closer to the identify Forest Plan 50 year desired conditions.
Implemented intermediate and uneven-aged treatments will create favorable growing conditions
for residual trees which could move stands into larger size classes and develop characteristics of
mid and late serial structural stages. In combination the proposed treatment categories in the
LaVA project will increase structural diversity at the landscape scale and at the stand scale when
uneven-aged treatments are applied. Varying size of treatments from large areas; stands with
high mortality and/or moderate to high insect and disease levels; to small areas; stands with low
mortality and/or low to moderate insect and disease levels; will also increase the structural
diversity of the landscape. By increasing the structural diversity at the stand and landscape scale
resilience to disturbance can be increased (Seidl 2015). The action alternative will be more
effective than the no action alternative at moving the landscape towards the forest plan desired
structural stages.
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Reviewing Officer’s Response to Eligible Objections
The Silviculture Specialist Report cites the following publications as support for clearcut
prescriptions:
Alexander, R.R., and Edminster, C.B. 1980. Lodgepole Pine Management in the Central Rocky
Mountains. Journal of Forestry 196. April.
Rhoades, C.C.; Pelz, K.A., Fornwalt, P.J., Wolk, B.H., Cheng, A.S. 2018. Overlapping Bark
Beetle Outbreaks, Salvage Logging and Wildfire Restructure a Lodgepole Pine Ecosystem.
Forest 2018, 9, 101.
Conclusion
I conclude that the MFEIS and DROD sufficiently demonstrate how the proposed action will
increase resiliency at the stand and landscape level and meet the purpose and need. However, to
help provide clearer rational, I am instructing the Responsible Official to include a definition of
resiliency into the project documents. I also conclude that the Forest Service has done a complete
analysis of appropriate harvesting methods for the variety of forest conditions present within the
analysis area. Clearcut prescriptions and harvesting is just one tool that is proposed to meet the
purpose and need of the project. The proposed action is in compliance with policy and regulation
implements management direction from the Forest Plan.
Issue 8
Objectors assert that the modified final EIS fails to demonstrate how vegetation treatments that
are distant from the Wildland-Urban Interface is an effective way to reduce risk to private
property.
Response
The scope of the purpose and need for the LaVA project goes beyond the protection of private
property in the Wildland-Urban Interface. Vegetation management treatments designed to
achieve this goal are just one of several categories of proposed treatments. Treatments would
occur on a range of land classes, management areas, and vegetation cover types and conditions.
Two of the six purpose and need statements that address the “gap” between existing and desired
conditions would likely have a Wildland-Urban Interface emphasis (MFEIS p. 31):
• Heavy fuel loads have accumulated in conifer stands and around critical infrastructure. This
situation conflicts with LRMP goals and objectives that require reducing the threat of
wildfire damage to communities and reducing fuel loadings in the interface next to homes,
cabins, and other structures (LRMP subgoal 1.c, objective 2, pp. 1-5).
• Overhead hazard trees caused by the bark beetle epidemics decrease public and employee
safety and increase the risk to firefighters in Wildland-Urban Interface areas. There is a need
to remove hazardous trees in these and other critical areas.
Authorized HFRA project areas are not limited to the Wildland-Urban Interface. Section 602 of
the 2014 Farm Bill amends HFRA (Designation of Treatment Areas) to define eligible areas as
forests that are experiencing decline forest health. This is a broad definition. The amended scale
of potential project areas is intended to be landscape level. The building blocks for landscape
scale project areas are sixth level hydrologic units. Sixth level hydrologic units (a.k.a. 12-digit
subwatersheds per U.S. Geological Survey coding protocol) average 40 square miles in size,
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Reviewing Officer’s Response to Eligible Objections
ranging from 10,000−40,000 acres. Areas designated as Wildland-Urban Interface are typically,
but not exclusively, smaller components of eligible HFRA project area subwatersheds.
Conclusion
I find that the vegetation treatments in the modified proposed action are designed to reduce risk
to private property are only one of numerous categories of treatments that would be planned and
implemented to achieve multiple purpose and need goals. The scale of authorized HFRA projects
is not restricted to the Wildland-Urban Interface nor are project goals restricted to the protection
of private property at risk to wildfire.
Issue 9
Objectors assert that the modified proposed action is not compliant with Sheep Mountain
Federal Game Refuge management. Objectors request a change in management prescription
for approximately 3,000 acres.
Response
The modified final EIS does not allow for commercial activities within the Sheep Mountain
Federal Game Refuge. Noncommercial activities may be considered only if they improve
wildlife habitat, as directed by the LRMP (MFEIS, p. 7). Specific LRMP components for
Management Areas 3.54, 3.58, and 5.41 are included in Appendix A (pp. 104-105) of the
modified final EIS to assure compliance during planning and layout of individual projects.
Approximately 17,615 acres of the Sheep Mountain Federal Game Refuge are in designated
inventoried roadless areas. Of these, vegetation treatments are proposed on up to 7,085 acres
under exception 294.13(b)(1)(ii). See response to Roadless Issue 2 regarding appropriate use of
exceptions in inventoried roadless areas.
Conclusion
I have determined that the proposed action is consistent with management of the Sheep Mountain
Federal Game Refuge in the LRMP. Changing management prescriptions is beyond the scope of
the LaVA project.
Also see conclusion for Range of Alternatives Issue 1.
Issue 10
Objector suggests that the modified proposed action fails to prioritize the protection of Wildland-
Urban Interface areas.
Response
The development of treatment priorities is described in the modified final EIS, Appendix A: The
LaVA Adaptive Implementation and Monitoring Framework. This adaptive implementation and
monitoring framework is summarized in the modified final EIS (pp. 90-96). The summary
“outlines a five-phase process for identifying, refining, implementing, and monitoring individual
vegetative treatments on the Snowy and Sierra Madre Mountain Ranges, as authorized by the
project decision.”
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Reviewing Officer’s Response to Eligible Objections
The Forest Service and cooperating agencies would designate large focus areas (watersheds or
communities at risk) to prioritize the concentration of limited resources based on Forest Service
5-year plans and the LaVA reissued draft ROD. Within these Focus areas, individual treatments
would be identified based on feedback from the public and cooperating agencies (MFEIS,
Appendix A, p. 11). Prevailing winds, predicted wildfire flow paths, values at risk would all be
topics open to consideration during the development of priorities per focus areas and individual
treatments.
Conclusion
I find that Appendix A – The Adaptive Implementation and Monitoring Framework provides a
robust process to priority treatments including Wildland-Urban Interface areas and other
treatment prioritization concerns such as prevailing winds.
Issue 11
Objector asserts that the Forest Service failed to consider other actions to meet the purpose
and need. The objector gives examples of managing wildfires for benefit, planting
drought/climate resilient species, and creating and or maintaining permanent fuel breaks. The
objector further mentions some wildfire response strategies that should be addressed.
Response
The purpose and need for this project is described in detail in the modified final EIS on pages 31-
32. The purpose and need must be met within the bounds of LRMP direction in regard to goals
and objectives, standards and guidelines, and management area direction. The modified final EIS
gives direction and assurance that proposed action is in concurrence with the LRMP on pages 32-
37 and in the Legal and Regulatory Compliance section (MFEIS, p. 384).
To address fuel accumulation and wildfire response the proposed action was developed in
collaboration with local counties. Community Wildfire Protection Plans were utilized to identify
Wildland-Urban Interface areas in developing the proposed action (MFEIS, p. 420).
The Wildfire and Fuels Report references LRMP standards to address wildfire response (Wildfire
and Fuels Report, p. 2). This standard is based on Region guidance provided in “Review and
Update of the 1995 Federal Wildland Fire Management Policy (January 2001).”
Artificial regeneration in compliance with the National Forest Management Act is addressed on
page 386 of the modified final EIS.
Conclusion
I conclude that the Forest considered an appropriate level of actions in the proposed action to
meet the purpose and need of the project. Firefighting strategies, while an important part of
resource management and protection, are outside the scope of this project. The Forest has
demonstrated that the proposed management is in accordance with National and Regional
direction as well as in compliance with policy and regulation. Artificial Regeneration in
compliance with the National Forest Management Act is address page 386 of the modified final
EIS. The project record does not directly state regeneration methods and techniques but
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Reviewing Officer’s Response to Eligible Objections
concurrence with national and regional directives is understood through other regulatory
compliance.
Healthy Forests Restoration Act (HFRA)
Issue 1
Objectors assert that the scope and scale of the modified proposed action is too extensive to
exclusively fit under HFRA. Specifically, the objectors contend that:
• The Forest Service should have provided 45 days to object, rather than 30, given that
the project, in its entirety, is not merely a HFRA project.
• The HFRA statute only allows the agency to analyze a single action alternative for
projects within the Wildland-Urban Interface. The great majority of the LaVA project is
outside the Wildland Urban Interface and cannot be authorized under HFRA.
Response
The reissued draft ROD discusses the designation of priority landscape areas for the treatment of
insects and disease per the 2003 HFRA (P.L. 108-148) as amended by the 2014 Farm Bill 1904
(PUBLIC LAW 113–79—FEB. 7, 2014), see pages 10-11. Section 602 (d) defines potential
treatment areas as areas of declining forest health that are experiencing substantially increased
tree mortality due to insect or disease infestation or dieback due to infestation or defoliation by
insects.
Areas that initially qualified as potential hazardous fuels treatment areas under Title I of the 2003
HFRA and were eligible for expedited NEPA review included Wildland-Urban Interface areas of
at-risk communities, municipal watersheds at risk from wildland fire, areas where ecosystem
components or resource values were threatened by wind throw, blowdown, ice storm damage, or
insect or disease epidemics, and areas where wildland fire posed a threat to threatened and
endangered species or their habitat.
The 2014 Farm Bill (Section 8204, 602 (d)) expanded the definition of these treatment areas to
include landscape scale areas experiencing an insect or disease epidemic. Section 8204 of the
Bill directs the Secretary, if requested by the Governor, to designate at least one landscape-scale
area in at least one national forest as part of an insect and disease treatment program in each
State that is experiencing an insect or disease epidemic. On March 19, 2014, a letter from the
Chief of the Forest Service was sent to Governors of States with national forests informing them
of the opportunity to request insect and disease area designations in their State to address insect
and disease infestations.
In order to be eligible for designation, an area must meet certain requirements. Any areas
designated must meet at least one of the following criteria:
• the area is experiencing declining forest health based on annual forest health surveys, or
• the area is at risk of experiencing substantially increased tree mortality over the next 15 years
due to insect and disease infestation based on the National Insect and Disease Risk Map, or
• the area is in an area where hazard trees pose imminent risk to public infrastructure, health or
safety.
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In response to Wyoming Governor, Matthew Mead, On May 20, 2014, the Chief of the Forest
Service designated landscape scale areas on national forest system land within the State. The
scale of these areas was defined as one or more sixth-level hydrologic units (system of
Hydrologic Unit Codes of the United States Geological Survey). The LaVA project area is within
an expanded insect and disease treatment area. This designation was approved on March 22,
2017 by the Forest Service Chief, Thomas Tidwell and included 84 sixth level hydrologic units
for a total of 751,283 acres.
The purpose and need for the LaVA project is to respond to changed forest vegetation conditions
caused by bark beetle epidemics on the Medicine Bow National Forest (MFEIS, p 31). This
emphasis on vegetation management is consistent with HFRA authority which, in addition to a
focus on treatments designed to respond to declining forest health, authorizes the designation of
treatment areas where hazard trees pose an imminent risk to infrastructure, health, or safety
(Section 602(c)(3)). Removal of dead, dying, and at-risk trees through logging is necessary in
order to close gaps between existing and desired conditions regarding hazardous fuel levels, the
density and timing of forest regeneration, access and safety on road infrastructure and in
impacted forest stands, and to accelerate the recovery of late seral wildlife habitat. Recovery of
forest products is a connected action to achieve these goals.
See response to NEPA, Issue #2 for additional discussion on site specificity.
Conclusion
Based on my review, I find that the LaVA project’s scope and scale is appropriate and authorized
under the 2003 HFRA as amended by the 2014 Farm Bill, and 36 CFR 218 Subpart C is the
proper process for the pre-decisional administrative review.
Issue 2
The Objectors assert that HFRA is not applicable under the National Trails System Act
(CDNST)
• The Secretary is not authorized to conduct a hazardous fuel reduction project that would
occur on federal land on which the removal of vegetation is prohibited or restricted by act
of Congress or Presidential proclamation, which includes the National Trails System Act,
Section 7(c).
• HFRA projects should not take place within the CDNST corridor since implementation of
the proposed activities would substantially interfere with the nature and purposes of the
CDNST and are not allowed by the National Trails System Act.
• The National Trails System Act, Section 7(c) restricts the removal of vegetation to only
those actions that would not substantially interfere with the nature and purposes of a
National Scenic or Historic Trail. The action would need to be consistent with the
CDNST Comprehensive Plan and related policies.
Response
The assertion that, “the Secretary is not authorized to conduct a hazardous fuel reduction project
that would occur on federal land on which the removal of vegetation is prohibited or restricted by
act of Congress or Presidential proclamation” is incorrect. That wording comes from Section 603
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Reviewing Officer’s Response to Eligible Objections
of HFRA as amended by the 2014 Farm Bill and only applies to the use of categorical
exclusions. The LaVA project has been conducted under an environmental impact statement, not
a categorical exclusion, and it falls under Section 602 of HFRA. Section 602(c)(3) of HFRA
states that designation of eligible treatment areas includes areas in which the risk of hazard trees
poses an imminent risk to public infrastructure, health, or safety. Furthermore, the National Trails
System Act, including Section 7(c), does not provide any language that stipulates vegetation
management. Section 7(c) states, “Other uses along the trail, which will not substantially
interfere with the nature and purpose of the trail, may be permitted by the Secretary charged with
the administration of the trail.” The Responsible Official clarifies in the reissued draft ROD (p.
43) that any vegetation management that occurs near the CDNST is compliant with the National
Trails System Act:
The decision to implement the authorized road and vegetation treatment activities does
not substantially interfere with the nature and purposes of the Continental Divide
National Scenic Trail and, therefore, is compliant with the National Trails System Act, as
amended.
The modified final EIS (pp 341-343) discloses that there will be some visual impacts to the
CDNST. The impacts associated will vegetation management will be shorter in duration that the
impacts associated with downfall of trees killed by the mountain pine beetle.
As outlined in Appendix A of the modified final EIS, the Forest will apply the following project
design features and standard operating procedures to maintain the nature and purpose of the
CDNST:
• (DF-REC-7) To the maximum extent possible, alternate route(s) or detours will be used
during treatment implementation to allow continued use of the Continental Divide National
Scenic Trail and to mitigate scenery management impacts during vegetation management
operations. (MFEIS, Appendix A. p. 56.)
• (DF-REC-8) No skidding is allowed on or across the Continental Divide National Scenic
Trail without prior coordination with the local recreation staff. Any skidding that is allowed
on or across the trail will be located to limit damage to the trail and will be rehabbed back to
pretreatment condition. (MFEIS, Appendix A. p. 57.)
• (DF REC-4, DF REC-5, DF REC-8) For treatments that may impact the Continental Divide
National Scenic Trail, ensure no skidding occurs on the trail and provide alternate routes
and/or detours as needed. (MFEIS, Appendix A, p. 72)
Conclusion
I find that the LaVA project is compliant with the use of HFRA authority regarding the inclusion
of the CDNST in the project area and in proposed treatment areas.
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Issue 3
Objectors assert that the Forest Service fails to demonstrate how the modified proposed action
will maximize the retention of old-growth and large trees as required under Section 602(e) of the
Healthy Forests Restoration Act.
Response
As clarified in the reissued draft ROD (p. 39), the LaVA project is not subject to Sections 102(e)
and (f) of HFRA, but rather it is subject to Sections 602(d) and (e).
HFRA Section 602(d) states “(2) AUTHORITY.—Any project under paragraph (1) for which a
public notice to initiate scoping is issued on or before September 30, 2018, may be carried out in
accordance with subsections (b), (c), and (d) of section 102, and sections 104, 105, and 106.” ,
including the old growth considerations found in 602(e) TREE RETENTION, which states “The
Secretary shall carry out projects under subsection (d) in a manner that maximizes the retention
of old-growth and large trees, as appropriate for the forest type, to the extent that the trees
promote stands that are resilient to insects and disease.” Section 602(e) emphasizes that HFRA’s
focus is on removal of younger and smaller trees, but HFRA provides significant discretion for
the Forest Service to determine the circumstances under which retention of old-growth and large
trees need not be maximized based on forest type and promotion of stands that are resilient to
insects and disease.
The LaVA project plans to maximize retention of old growth and large trees through: (1)
maintaining current areas of old growth and large trees; (2) providing areas for replacement of
old growth and large trees lost to disturbances; (3) providing old-growth and large tree habitat
elements in managed forests; and (4) using manipulations to reduce the time needed to develop
large trees and old-growth characteristics (Silviculture Specialist Report, pp. 44-45). The
proposed prescriptions for the LaVA project meet elements 1-4 through:
1. Maintaining current areas of old growth and large trees:
o The LRMP prohibits vegetation management practices in mapped and inventoried old
growth areas located in Management Area 5.15 - Ecological Restoration (MFEIS,
Appendix A, p. 123). Therefore, 57,449 acres have been removed from proposed
treatment. (reissued draft ROD, p. 23).
o Prescriptions in identified old growth stands that are located outside of Management
Area 5.15 will be designed to promote old growth characteristics consistent with old
growth design feature #1 (MFEIS, Appendix A, p. 63) and LRMP biological diversity
Standard #2 (MFEIS, Appendix A, p. 88).
o Large live trees will be retained as appropriate for the forest cover type given the
silvicultural systems used and/or the LRMP direction regarding retention of snag
recruits, which leave or create structural elements of old growth (reissued draft ROD,
p. 39).
o Treatments in inventoried and mapped spruce-fir or lodgepole pine old growth stands
in Management Area 3.5 - Forested Flora or Fauna Habitats will be limited. Required
levels will be maintained (MFEIS, Appendix A, p. 118).
2. Providing areas for replacement of large trees and old growth lost to disturbances:
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o Silvicultural prescriptions will be applied that leave or create structural elements of
old growth; i.e. irregular shelterwood, green and dead tree retention, and thinning in a
patchy manner to release younger trees can be applied (Silviculture Specialist Report
p. 45)
o When treatments are proposed in designated old growth but are no longer functioning
as old growth selection of new areas that have characteristics of old growth will be
delineated (Silviculture Specialist Report p. 45).
o Compliance with LRMP – Biological Diversity Standard #3: Limit management of
stands identified to meet the percentages identified in table 1-6 to actions necessary
to maintain or restore old growth composition and structure (MFEIS, Appendix A, p.
88).
3. Providing old-growth and large tree habitat elements in managed forests:
o Compliance with LRMP – Biological Diversity Standard #1: Manage old forest to
retain or achieve at least the minimum percentages of old growth by cover type by
mountain range shown in the table 1-6 (MFEIS, Appendix A, p. 88).
o Compliance with LRMP – Biological Diversity Guideline #1: Identify and map old
growth blocks that mimic natural patch size and distribution. Include non-linear,
unfragmented blocks (over 300 acres) where available. Old growth in small,
scattered stands, larger patches, and streamside stretches shall be maintained to
produce a pattern that is well distributed across the landscape by making sure that
some old growth is maintained in every Geographic Area. Consider connectivity
when identifying scattered stands (MFEIS, Appendix A, p. 88).
o Compliance with LRMP – Management Area 3.5 Guideline #1: Allow, through
natural processes and succession, or encourage, through vegetation treatments, the
development of lodgepole pine and spruce-fir forests to provide diversity of forest
habitats.
o Compliance with Table 108 (MFEIS, p. 189), which specifies a range of recruits per
acre by diameter and cover type.
o Compliance with the LRMP’s old growth strategy that was built from the publication
“Old-Growth Description for the Major Forest Cover Types in the Rocky Mountain
Region” (Mehl 1982) (MFEIS, p. 189).
4. Using manipulations to reduce the time needed to develop large trees and old-growth
characteristics:
o Within lodgepole pine cover type, implement silvicultural (irregular shelterwood and
group selection) systems that will retain large live trees. (MFEIS, p. 189).
o Within the aspen cover type, implement silvicultural systems (i.e. coppice with
standards and group selection) that would retain large live trees (MFEIS, p 189).
o Within mixed conifer and ponderosa pine cover types, implement silvicultural
systems (irregular shelterwood, single-tree selection, and group selection) that will
retain large live trees (MFEIS, p 189).
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o Within spruce/fir cover type, implement silvicultural systems (except shelterwood)
that will retain large overstory trees either as individuals or in groups (MFEIS, p.
189).
Conclusion
The project record demonstrates that the LaVA project is focused on removal of younger and
smaller trees and that the Forest exercised the discretion provided in HFRA Section 602(e) to
remove old-growth and large trees only in appropriate circumstances. I find that the modified
proposed action is consistent with the HFRA Section 602(e) requirement to maximize the
retention of old growth and large trees in the project area. Additionally, the Responsible Official
is compliance with the direction for vegetation management of old growth and large live tree
recruitment per the 2003 LRMP.
National Forest Management Act (NFMA)
Issue 1
Objectors assert that under the National Forest Management Act, land and resource
management plans (forest plans) are required to be revised every 15 years. Since the Medicine
Bow LRMP was authorized in 2003, which is now two years past the requirement, the decision
should be postponed until the plan is revised. Additionally, objectors contend that because the
project is to be implemented over the next 15 years, the LaVA decision will not be in compliance
with a future revised LRMP.
Response
The National Forest Management Act (NFMA) states that plans shall be revised “at least every
fifteen years” (16 U.S.C. 1604(f)(5)(A)). However, Congress continues to provide relief that the
Secretary of Agriculture shall not be in violation of this NFMA requirement, “solely because
more than 15 years have passed without revision of the plan for a unit of the National Forest
System” (Public Law 116-94, Section 407). Nationwide, many plans are past the 15-year
revision target. Congress did not intend for management activities to simply stop if the agency
fell behind this revision goal.
Objectors suggest that the LRMP should be revised before pursuing this project. However,
nothing compels the responsible official to revise the LRMP, and there is no requirement to do
so. Revising it is beyond the scope of this project. The project is consistent with the existing
LRMP as described in the modified final EIS and reissued draft ROD. If a subsequent decision is
made to revise the LRMP during the implementation of this project, the revised plan will
evaluate existing projects to determine if they need to be modified to comply with aspects of the
new plan, or if they will continue to be implemented under the existing plan. This requirement is
defined in 16 U.S.C.A. 1604(i): When land management plans are revised resource plans and
permits, contracts, and other instruments, when necessary, shall be revised as soon as
practicable.
HFRA was signed into law for a variety of provisions aimed at expediting the preparation and
implementation of hazardous fuels reduction projects on federal lands and assisting states to
restore watershed conditions and protect rural communities. The purpose and need of this project
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directly implements these goals and is consistent with HFRA and the LRMP. This project does
not inappropriately rely on HFRA authorities by substituting requirements from NFMA and the
LRMP.
Conclusion
Objectors assert this project is in violation with NFMA and HFRA. My review of the project
record indicates no violation of law, regulation, or policy. Revision of the LRMP is outside the
scope of this project, but if revision is pursued during implementation, all existing projects, when
necessary, will be revised as soon as practicable to be made consistent with the revised plan. My
review of the decision and the project record find this decision consistent with NFMA and
HFRA.
Issue 2
Objectors assert that the decision and the modified final EIS violates NFMA because it is
inconsistent with plan components in the LRMP. This includes scenery management plan
components, including standards to manage vegetation in high-use recreation settings; and
meeting scenic integrity objectives of moderate, within the foreground for all national scenic and
recreation trails. Objectors also expressed concern about consistency with the LRMP on future
treatments and that the project may deviate from LRMP some guidelines.
Response
The LaVA project is consistent with the Medicine Bow National Forest Revised Land and
Resource Management Plan, 2003 (LRMP), as required by National Forest Management Act
(NFMA, 16 USC 1604(i)). The LaVA project will be implemented according to the LRMP. The
Responsible Official for this project had determined that it follows all LRMP standards and most
LRMP guidelines (reissued draft ROD, p. 38). As noted by the Responsible Official, project
implementation may deviate from some LRMP guidelines, particularly related to wildlife
security areas. These will be “addressed, documented, and disclosed during the design of
individual treatments, in accordance with Appendix A, the Adaptive Implementation and
Monitoring Framework” (reissued draft ROD, p. 38). This deviation is an appropriate use of
guidelines, which are described in the LRMP:
“Guidelines are advisable courses of action that should be followed to achieve forest goals.
Deviations from guidelines must be analyzed during project level analysis and documented in a
project decision document but do not require a forest plan.” (LRMP p. 25)
The LRMP includes standards for scenery management, including applied Scenic Management
System, to all lands, and managing for moderate scenery integrity for the foreground of all
National Scenic Trails. It also includes two guidelines that deal with the rehabilitation of project
areas and restoring scenic integrity ratings over time (LRMP, pp. 1-56). The impacts to scenery
from the project are summarized in the modified final EIS, which recognizes short term negative
impacts to scenery, but appropriately weighs a near-term dip in scenic quality against mid, and
longer-term improvements.
The Responsible Official considered near term negative scenery impacts as a way to achieve mid
and longer term enhancements in multiple ways: 1) dead and dying conifers would eventually be
replaced with stands of live green trees; 2) treatments would mitigate the aspen and conifer
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encroachment which negatively impacts scenery; and 3) treatments along trails and other certain
areas would be designed to open the forest by thinning which will improve the viewshed
(MFEIS, p. 15). This rationale leads to the logical conclusion that the modified proposed action
would not preclude the mid and long-term attainment of improved scenery quality, which is
consistent with scenery plan components in the LRMP. In fact, these treatments will enhance
scenery to better align with plan objectives. The modified final EIS explains in more detail how
this project is consistent with this direction and manages a minimum level of moderate scenery
(MFEIS, p. 384).
Objectors were also concerned about the general nature of broader-scale mechanical treatments
in primitive, semi-primitive non-motorized, or semi-primitive motorized recreation opportunity
spectrum classes. Again, the Responsible Official is consistent with the LRMP, which contains a
standard to manage vegetation in high-use recreation areas to provide for public safety, improve
forest health and maintain or improve the desired recreation settings (LRMP, p. 1-49).
Some objectors had additional general questions and concerns about the ability of a project to
deviate from LRMP guidelines. As discussed above, a project can deviate from LRMP
guidelines. The reissued draft ROD notes that the Responsible Official has determined that the
project is consistent with LRMP standards. Regarding guidelines, the LRMP states that
deviations from guidelines are permissible: “Guidelines are advisable courses of action that
should be followed to achieve forest goals. Deviations from guidelines must be analyzed during
project level analysis and documented in a project decision document but do not require a forest
plan amendment” (LRMP, 1-25). The LaVA modified final EIS discloses that the project may not
be consistent with certain guidelines (MFEIS, p. 34), but this could be better described in the
reissued draft ROD.
Conclusion
I find that the proposed action is consistent with the Medicine Bow National Forest Revised
Land and Resource Management Plan, 2003. I instruct the Responsible Official to clarify how
and when deviations from Forest Plan guidelines will be disclosed and justified during project
implementation.
Issue 3
Objectors assert that the decision violates NFMA because the LRMP must be amended to
comply with changed condition and CDNST direction. Objectors also assert that the modified
proposed actions are inconsistent with LRMP Management Areas 1.31, 1.33, 3.31, and 3.33
prescriptions and associated Remoteness criteria for established Semi-Primitive Non-Motorized
and Semi-Primitive ROS settings.
Response
NFMA does not require a plan to be amended and the supporting EIS supplemented with every
changed condition. Policy changes regarding the management of the CDNST do not compel the
agency to amend the plan or supplement the analysis. Changed conditions that may warrant a
plan amendment are at the discretion of the Forest Supervisor. This project appropriately
considers the analysis that supported the LRMP, as well as detailed information contained in the
modified final EIS. The Responsible Official has determined that the modified final EIS is
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consistent with LRMP standards and has noted, per plan direction, that it may not be consistent
with certain plan guidelines (MFEIS, p. 384).
The LRMP specifically allows vegetation management in Management Areas 1.31, 1.33, 3.31,
and 3.33 when necessary to meet specific objectives (Medicine Bow LRMP, pp. 2-13, 2-16, 2-35,
2-38).
Conclusion
Since the objector does not provide specific inconsistencies between the LaVA modified
proposed action and the LRMP, I agree with the Responsible Official’s finding that the project is
consistent with the LRMP standards.
My review of this objection point found no violations of law, regulation, or policy. Nothing in
NFMA requires a plan amendment or supplemental information to the EIS under the
circumstance presented. Furthermore, I find that the LRMP, which was developed with full
public participation, allows for activities described in the modified proposed action, in the
management areas identified by the objector.
Public Engagement
Issue 1
Objectors assert that there have been inadequate time and opportunities provided for
meaningful public engagement. Objectors stated that it is inappropriate to expect public
engagement during COVID-19.
Response
On May 8, 2020, the Forest Supervisor received and reviewed a request for an extension to the
objection period for the LaVA modified final EIS and reissued draft ROD. In response to the
request, the Forest Supervisor provided the following response: “Due to the pressing need to
address the significant wildland fire hazards to communities, the public and agency employees
and critical water supply infrastructure within this project area as well as the overhead hazard
tree threat to the safety of the public and employees I felt that delaying the initiation of the
objection filing period would not be prudent. I also considered the extensive public engagement
to date as well as the factors identified related to public engagement in the guidance document.”
The Forest Service received informal guidance dated April 3, 2020, and titled Medicine Bow
Landscape Vegetation Analysis Project (LaVA)USDA Forest Service COVID-19 NEPA
Comment Objection Periods Guidance Letter. The letter provided guidance for public
engagement activities associated with environmental analyses under NEPA and NFMA in
support of project and land management planning efforts. This guidance was reviewed and
considered by the Forest Supervisor prior to the initiation of the objection filing period for this
project.
The informal guidance clarifies that responsible officials should carefully consider the timing of
beginning new public comment periods if meaningful public engagement will be challenging or
unachievable under the current circumstances. For the LaVA project, 64 objection response
letters were received during the objection period in 2020 (during COVID-19), whereas 30
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responses were received in 2019 (non-COVID). The guidance also states that those actions
deemed most critical for safety, economic recovery, or critical infrastructure should be prioritized
to move forward.
Additionally, the regulations at 36 CFR 218 do not allow for extension of objection filing
periods. The regulations at 36 CFR 218 require that written objections must be filed with the
reviewing officer within 30 days following the publication date of the final EIS in the newspaper
of record or the publication date of the notice in the Federal Register.
Conclusion
Based on a review of the project record, I find that the Responsible Official did not violate the
regulations for public engagement for the proposed project.
Issue 2
Objectors assert that the Forest Service failed to adequately notify and engage the public. In
particular, objectors contend that the Forest Service failed to announce scoping, failed to
adequately inform environmental organizations, and failed to adequately inform and engage
adjacent private landowners. Objectors also point to an incident where the Forest Service failed
to contact them after agreeing upon a request to observe cooperator meetings.
Response
The notice of intent initiating the scoping process (40 CFR 1502.7) for the draft EIS was
published in the Federal Register on July 21, 2017. The notice asked for public comments on the
modified proposed action from July 21, 2017 to August 21, 2017. As part of the scoping process,
the Forest Service also mailed 1,200 scoping postcards to organizations and individuals
including adjacent landowners; federally recognized Tribes; and Federal, State, and local
government representatives (MFEIS, p. 52). 40 CFR 1506.6 requires the agency to mail notice to
those who have requested it on an individual action. If an environmental organization did not
request to be notified of actions on the Medicine Bow National Forest, the Forest Service has no
requirement to notify the organization.
To inform the general public of the proposal, the scoping package was posted to the Medicine
Bow-Routt National Forests and Thunder Basin National Grassland website on July 24, 2017. A
news release was also prepared and distributed to local and regional media outlets on August 1,
2017. Additionally, the news release was posted on the website and Twitter feed. Finally, Forest
Service personnel hosted six open house meetings between August 2017 and January 2018.
Formal scoping meetings were held in Laramie on August 8, 2017, and in Saratoga on August
10, 2017. Check-in meetings were held in Saratoga on January 23, 2018, and January 24, 2018,
and in Laramie on January 30, 2018, and on January 31, 2018. Forest Service and cooperating
agency personnel were available to answer questions related to the proposal at both the formal
scoping and check-in meetings. Fifty-eight comment letters and emails were received during the
formal scoping period. This information was used to modify the proposed action, to develop
project design features, and to develop the modified final EIS, Appendix A- the Adaptive
Implementation and Monitoring Framework.
In most cases, the issues were used to modify, clarify, or augment the proposed action, as
allowed for at 36 CFR 220.5(e)(1 and 2). However, in some cases, the interdisciplinary team also
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developed indicators or ways of measuring environmental effects. The indicators will be
monitored over the life of the LaVA project and will be useful in judging the most effective
treatments to implement, describing changes in resources, as well as demonstrating
responsiveness to public concerns (MFEIS, p. 53).
Pages 20-21 of the modified final EIS, Appendix B further clarifies:
“While the scoping news release was provided to the Laramie Boomerang, Forest Service
personnel have no control if or when a media outlet might publish the information, outside of
purchasing an advertisement, which we did not and do not typically do for projects like the LaVA
Project. We did, however, recognize the Laramie Boomerang had not published the news release
prior to the open house meetings and made every effort to rectify the situation, including
emailing the scoping document directly to conservation and wildlife organizations.
National Environmental Policy Act (NEPA) regulations (40 CFR 1500) are not explicit in
directing how agencies are to inform the public of projects that could affect them; agencies are
to develop their own implementing regulations. Direction guiding public involvement and
scoping may be found in Forest Service Handbook 1909.15, chapter 10, which states:
“Scoping shall be carried out in accordance with the requirements of 40 CFR 1501.7.
Because the nature and complexity of a proposed action determine the scope and
intensity of analysis, no single scoping technique is required or prescribed. (36 CFR
220.4(e)(2)).”
Given the scope and scale of the LaVA Project, Forest Service personnel used a variety of
platforms to publicize the project, including: news releases, publishing a notice of intent in the
Federal Register, mailing more than 1,200 postcards, posting project information to the Forest
Service webpage, making presentations to local clubs and organizations, and hosting numerous
open house meetings. We also engaged with numerous cooperating agencies about the LaVA
Project since March 2017. Meetings were held on a monthly basis to encourage development of a
holistic, landscape-scale project that would benefit multiple agencies.”
In the modified final EIS, Appendix A, an adaptive implementation and monitoring framework
was developed in conjunction with cooperating agencies to outline the cyclic process for
engaging the public when identifying, refining, implementing, and monitoring individual
vegetation treatments on the Snowy and Sierra Madre Mountain Ranges over the next 15 years
(FEIS, p. 55). Annual engagement opportunities identified in the modified final EIS, Appendix A
provide feedback opportunities during the identification of focus areas; identification of
individual treatments; and during reporting and monitoring to ensure that private landowners can
be involved.
To inform the general public of the proposal, the scoping package was posted to the Medicine
Bow-Routt National Forests and Thunder Basin National Grassland website on July 24, 2017. A
news release was also prepared and distributed to local and regional media outlets on August 1,
2017. Additionally, the news release was posted on the website and Twitter feed. Finally, Forest
Service personnel hosted six open house meetings between August 2017 and January 2018.
Formal scoping meetings were held in Laramie on August 8, 2017, and in Saratoga on August
10, 2017. Check-in meetings were held in Saratoga on January 23, 2018 and January 24, 2018,
and in Laramie on January 30, 2018, and January 31, 2018. Forest Service and cooperating
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agency personnel were available to answer questions related to the proposal at both the formal
scoping and check-in meetings.
Conclusion
I find that the Forest Service carried out public scoping in accordance with the requirements of
40 CFR 1506.6. Through formal scoping meetings, open house meetings, and check-in meetings,
there have been robust opportunities for public engagement per the requirements of HFRA and
40 CFR 1501.7. I find that the Forest Service made an adequate attempt to notify potential
interested parties and landowners through 1,200 postcards, news releases, radio announcements,
social media posts, webpage posts, and numerous public meetings. Additionally, private
landowners can engage and provide feedback on an annual basis, as outlined in the modified
final EIS, Appendix A.
Issue 3
Objectors assert that the Forest Service failed to give the contributions of cooperating agencies
sufficient weight when developing the project.
Response
The NEPA regulations at 40 CFR 1501.6 and HFRA emphasize the importance of working with
cooperating agencies early and often during planning processes to take advantage of the special
expertise that these agencies can provide when addressing environmental issues and concerns.
Based on these requirements, Forest Service staff has cooperated with numerous local, State, and
Federal agencies since March 2017 to develop the LaVA modified proposed action. Cooperating
agencies were instrumental in formulating the LaVA draft, final, and modified final EISs, the
reissued draft ROD, and Appendix A – the Adaptive Implementation and Monitoring
Framework; their continued involvement is necessary for successful project implementation
(MFEIS, Appendix A, p. 7).
In 2016, the Forest Service and the State of Wyoming developed a Memorandum of
Understanding to reinforce the parties’ mutual commitment to collaboration and cooperation and
document the relationship between the parties when preparing environmental documents under
the National Environmental Policy Act. A Cooperative Working Agreement (CWA) between the
Medicine Bow National Forest and cooperating agencies dated May 7, 2019, was also
established for the purposes of developing a proposed action and preparing an EIS for the LaVA
project. The CWA outlines the responsibilities and procedures agreed upon by the cooperating
agencies and the Forest Service. Cooperating agency responsibilities include providing
information, comments, and technical expertise to the Forest Service regarding those elements of
the EIS, and the data and analysis supporting its development, for which they have jurisdiction or
special expertise or for which the Forest Service requests their assistance.
Cooperating agencies include the Wyoming State Forestry Division, Wyoming Game and Fish
Department, Wyoming Department of Environmental Quality, Wyoming State Historic
Preservation Office, Cheyenne Board of Public Utilities, Wyoming Department of Agriculture,
Albany County Commissioners, Albany County Fire Warden, Carbon County Commissioners,
Little Snake River Conservation District, Laramie Rivers Conservation District, Medicine Bow
Conservation District, Saratoga-Encampment-Rawlins Conservation District, Bureau of Land
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Management, State of Wyoming Governor’s Office, and the U.S. Fish and Wildlife Service
(MFEIS, p. 2).
LaVA cooperating agencies and Medicine Bow National Forest personnel have been closely
engaged during the development of the LaVA project, and will continue to cooperate in the future
in accordance with the modified final EIS, Appendix A. Appendix A outlines a process for
cooperating agencies to remain actively engaged, and to exercise their special expertise during
the implementation and monitoring of the LaVA project (pp. 20-21).
Conclusion
I find that the Forest Service has complied with the NEPA regulations at 40 CFR1501.6 and
HFRA through early coordination and future engagement opportunities with cooperating
agencies. The Forest Service recognizes the importance of continued coordination and
collaboration throughout the life of the LaVA project.
Issue 4
Objectors assert that the Forest Service, by deferring information gathering and assessments
and then providing only non-NEPA public engagement opportunities in the future, violates the
public involvement requirements of NEPA.
Response
As outlined in Appendix B of the modified final EIS on pages 9-13, the Forest responded to the
objector’s comments regarding site specificity. The modified final EIS for the LaVA project
constitutes a full, project-level NEPA analysis because the site-specific direct, indirect, and
cumulative effects have been analyzed and disclosed for the public and the decision-maker.
Furthermore, the modified final EIS explains how the roughly 850,000-acre LaVA analysis area
was broken into 14 accounting units to lend site specificity to the analysis (p. 53). The
accounting units were used to augment existing condition descriptions and to enhance the ability
to disclose environmental effects. As a result, the public was able to assess the impacts of the
proposal and provide the Forest with meaningful comments.
To inform the general public of the proposal, Forest Service personnel hosted formal scoping
meetings, open house meetings, and check-in meetings. In response to the draft decision released
in 2019, the Forest received 27 objections to the LaVA project. These objections, along with the
project record, were reviewed by the reviewing officer to determine if the objections should be
upheld or if they should be dismissed. On June 18, 2019, the LaVA project Responsible Official
cancelled the objection process and withdrew the draft ROD. This action was taken due to the
number of objections received, the compressed objection review period associated with HFRA
(30 days with no extensions), and the desire to be responsive to public concerns. The
Responsible Official received numerous recommendations from the reviewing officer designed
to strengthen the analysis. This modified final EIS presents the additional analysis recommended
by the reviewing officer (MFEIS, p. 14).
One issue that was identified through public comment was the importance of continued
coordination and collaboration between the Forest Service, LaVA project cooperating agencies,
and the public throughout the life of the LaVA project implementation. As a result, the adaptive
implementation and monitoring framework was developed in conjunction with cooperating
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agencies to outline the cyclic process for engaging the public when identifying, refining,
implementing, and monitoring individual vegetation treatments on the Snowy and Sierra Madre
Mountain Ranges over the next 15 years (MFEIS, p. 55).
Additionally, the Forest Service:
• Added a new section to Appendix A of the modified final EIS, entitled “Annual Engagement
Opportunities”. This section outlines feedback opportunities required during the
identification of focus areas; identification of individual treatments; and during reporting and
monitoring.
• Updated Output 2: LaVA Treatment Implementation Checklist to include a summary of
public feedback and how it was incorporated into treatment design.
• Added a new row to Attachment 6, Monitoring Plan, to monitor the effectiveness of public
engagement opportunities.
• Added Attachment 8, Comparative Analysis, to document the adequacy of proposed public
engagement opportunities.
• Developed an interactive story map to give the public an opportunity to review and provide
feedback during project implementation (MFEIS, p. 28).
Also, see response to NEPA Issue 2.
Conclusion
I find that public was able to meaningfully engage on site-specific effects that were analyzed and
disclosed in the modified final EIS and supporting documents. Additionally, I find that the LaVA
project presents opportunities for public and cooperating agency engagement through the
modified final EIS, Appendix A – the Adaptive Implementation and Monitoring Framework. The
Forest Service is committed to an open and transparent process by encouraging public
participation when identifying, designing, implementing, and monitoring treatment proposals.
Issue 5
Objectors assert that the Forest Service failed to clearly identify changes in the modified final
EIS and reissued draft ROD, which precluded meaningful public review and objection.
Response
The Forest Service has provided a detailed account of changes from the April 2019 final EIS to
the 2020 modified final EIS in Table 1 of the modified final EIS (p. 3-6). Pages 6-9 of the
reissued draft ROD outlines public concerns and regional recommendations in response to the
2019 objection process. Public concerns and regional recommendations in addition to the Forests
analysis modifications are detailed in pages 14-30 of the modified final EIS. Several
modifications were made to the modified final EIS, Appendix A as a result of the 2019 objection
process (p. 5).
Conclusion
I find that the Responsibility Official disclosed the changes made from the final EIS and draft
ROD to the modified final EIS and reissued draft ROD.
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Issue 6
Objectors assert that the Forest Service made changes to specialist reports and added new
documentation after the objection period began, thereby providing inadequate time for objectors
to review and object.
Response
The notice for opportunity to object was published in the newspaper of record on April 10, 2020.
The notice directed the public to the LaVA project website
(https://www.fs.usda.gov/project/?project=51255) for accessing the modified final EIS and
reissued draft ROD. The notice explained that paper copies were also available by request by
calling the Laramie Ranger District or the Brush Creek/Hayden Ranger District. The notice
provided contact information for the LaVA project Manager. The project website displays the
“date published” associated with posted documents. The modified final EIS (including Appendix
A and B) and the reissued draft ROD were published on April 9, 2020, under the Analysis tab.
The Medicine Bow National Forest also made available “specialist reports” available on the
project website. The Chapter 3 summary of the modified final EIS explains that “This chapter
presents a detailed overview of the affected environment in each of the 14 accounting units. It
then presents a summary of the affected environment as well as the direct, indirect, and
cumulative effects by resource area that could result from implementing the no-action alternative
and the modified proposed action. Detailed descriptions of resource effects are provided in the
resource specialist reports, located on the LaVA project NEPA website” (p. 111). Twenty-three
documents are posted and made available to the public under the “specialist reports” dropdown.
Fifteen of the 23 have a date published of April 9, 2020. The other documents and associated
date published are:
• Barrett Creek Stream Health Assessment – April 17, 2020
• U.S. Fish and Wildlife concurrence letter (dated December 20, 2019) – April 20, 2020
• Inventoried Roadless Areas Report – April 20, 2020
• Biological Evaluation, Management Indicator Species, and Species of Local Concern Report
– April 20, 2020
• Scenery Specialist Report – April 22, 2020
• Invasive Plants Report – May 1, 2020
• Transportation Report – May 7, 2020
• Heritage Specialist Reports – May 8, 2020.
Correspondence in the project record provides some explanation for the later date published for
the Invasive Plants Report, Biological Evaluation, Management Indicator Species, and Species of
Local Concern Report, and Transportation Report. A version of each of these reports had been
published on April 9, 2020. After April 9, 2020, specialists made some changes to those reports
and published the reports back to the project site on the dates in the bulleted list above. The
correspondence implies that changes from the April 9, 2020, versions are minimal. Forest staff
have provided additional explanation for the other reports. The heritage and scenery specialist
reports were unchanged from the 2019 FEIS and were moved forward from the “2019 Final EIS”
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dropdown. The Inventoried Roadless Areas Report contains the same information included in the
modified final EIS and was created and added to this dropdown to ensure full coverage of
specialist reports. The U.S. Fish and Wildlife Service concurrence letter is dated December 20,
2020, and was available to the public upon request. It was an administrative oversight not to post
that document prior to the date published. The Barrett Creek Stream Health Assessment has no
bearing on the analysis in the EIS and was included as an example of the assessments that the
Forest will conduct as part of implementation.
Conclusion
I find that the Responsible Official made relevant documents available to the public to review
during the objection period. Although some of the documents under the “specialist reports” tab
on the project website show published dates after the notice for opportunity to object, I find that
none of those documents contain substantively different information than was available upon the
notice of opportunity to object. I instruct the Responsible Official to document and disclose the
reason for documents being published on the project website after the notice of opportunity to
object and, if newer version were published, what changes were made to those reports.
Adaptive Management and Monitoring
Issue 1
Objectors assert that no NEPA process would be applied to the implementation of this project
for the next 15 years and that the adaptive management framework fails to ensure changes in
management will be within the scope if the original analysis. The objectors contend the agency’s
dependence on this framework as a substitute for site-specific analysis of effects violates NEPA.
The Objectors further allege that the public would not be engaged in decisions about the
management of most of the forest for the next 15 years.
Response
The agency has prepared an EIS consistent with the CEQ’s implementing regulations for NEPA
(40 CFR Part 1500). The EIS is consistent with the twin aims of NEPA which are informed
decision making and meaningful public participation. The EIS discloses the purpose and need for
action (MFEIS pp. 31-51). It discloses the actions that will be taken in an adaptive
implementation and monitoring framework. It discloses the process for identifying, refining,
implementing, and monitoring individual vegetation treatments on the Snowy and Sierra Madre
Mountain Ranges during the 15-year treatment authorization period (MFEIS, pp. 61-97). The
EIS discloses the agency’s resolution of the issue that the analysis lacks site specificity (MFEIS,
p. 53). The EIS discloses the sufficiency review that the agency would conduct to determine
whether an action or changed condition is within the scope of the analysis (MFEIS, p. 97).
The EIS discloses that the Responsible Official worked with a large number of cooperating
agencies and tribal governments in the planning and analysis of this project (MFEIS, pp. 51-52).
It also discloses how the Responsible Official involved and responded to the public’s concerns in
developing and modifying the proposed action and conducting the analysis in the two iterations
of the EIS (MFEIS, pp. 2-8, 52-57). Appendix B of the modified final EIS discloses the public
comments received on the draft of the EIS and the agency’s responses. The modified final EIS
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describes the agency’s preferred alternative (40 CFR §1502.14(e)) (MFEIS, pp. 59-97). It
discloses the affected environment and the environmental consequences of the project in terms of
its likely direct, indirect, and cumulative effects on the biological, physical, and social
environment (MFEIS, pp. 111-384).
Appendix A of the modified final EIS discloses the actions that will be taken in an adaptive
implementation and monitoring framework. It discloses the process for identifying, refining,
implementing, and monitoring individual vegetation treatments on the Snowy and Sierra Madre
Mountain Ranges during the 15-year treatment authorization period. Appendix A of the modified
final EIS also discloses the following processes that will be implemented over the 15-year
treatment authorization period for the project to ensure the treatment is allowed under the LaVA
ROD; the effects of the treatment are within the scope of the effects documented in the final EIS;
and that all resource-specific guidelines and protection measures are incorporated into treatment
design:
1. Functions of monitoring and adaptive management (p. 6);
2. Definition of adaptive management and overview of the process (p. 8);
3. Description of use of monitoring information (p. 8);
4. Monitoring included as part of implementation package (p. 16);
5. Reporting described in detail (p. 17);
6. Annual public engagement opportunities (pp. 18-19);
7. Summary of the reporting phase (p. 19);
8. The kinds of changes that will trigger a supplemental information report (FSH 1909.15,
Section 18) (p. 19);
9. How and where changes will be communicated as well as where treatment info will be
shared, and feedback will be solicited (p. 20);
10. Description of a treatment linearly from beginning to end thru the modified final EIS,
Appendix A process (pp. 20-21);
11. Each outputs’ purpose (pp. 23, 27-29);
12. The opportunity to describe what was found during field review, opportunity to not
continue with project based on changed conditions, and how feedback was incorporated
(p.);
13. The outline of each monitoring report (pp. 48-49);
14. Monitoring based decision triggers (pp. 50-55);
15. Options for treatment based on conditions of vegetation at time of implementation (pp.
65-67);
16. The conduct of surveys/review by resource area (pp. 68-75);
17. Monitoring activities and frequencies (pp. 80-81).
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Conclusion
Based on my review of the modified final EIS, I find that the Responsible Official discloses the
environmental impacts of the project and the processes that will be implemented over the 15-year
treatment authorization period for the project to ensure each treatment is consistent with the
LaVA ROD; the Adaptive Management and Monitoring Framework (Appendix A) includes
sufficient measures, triggers, and feedback mechanisms necessary to ensure changes will be
implemented, consistent with NEPA; the effects of the treatment are within the scope of the
effects documented in the modified final EIS; there will be adequate public engagement
opportunities; and that all resource-specific guidelines and protection measures are incorporated
into treatment design. The Responsible Official provided sufficient opportunity for comment on
the modified final EIS and discloses the agency’s process to review effects of the individual
vegetation treatments. Although Appendix A explains that substantive changes to ground
conditions and analysis assumptions could trigger a supplemental information report, I am
instructing the Responsible Official to commit to convening an interdisciplinary team at least
every 5 five years to evaluate the need for a supplemental information report.
Issue 2
Objectors assert that the Forest Service will not have the staffing and budget to cover future
project commitments for implementation, analysis, administration, and monitoring.
Response
The modified final EIS, Appendix A discloses a robust five-phase cyclic process for engaging
cooperating agencies and public when identifying, refining, implementing, and monitoring
individual vegetation treatments. It discloses the commitments that will be made for full
implementation of the project over the 15-year treatment authorization period. It provides an
explanation of the “Focus Areas” phase in developing projects and securing funding (modified
final EIS, Appendix A, p. 13). The CEQ’s implementation regulations for NEPA require the ROD
to adopt and summarize a monitoring and enforcement program where applicable for any
mitigation (40 CFR 1505.2). Appendix A includes an explanation of the reporting phase of
monitoring and shows the agency’s commitment to monitor the implantation and effectiveness of
the project (modified final EIS, Appendix A, p. 17).
The reissued draft ROD discloses all authorized treatments will be contingent upon Forest
Service and cooperating agencies’ priorities, available staffing and annual funding. Appendix A,
adopted as part of the decision, shows intent to monitor (reissued draft ROD, p. 12). The reissued
draft ROD discloses the modifications to Appendix A to ensure public and cooperating agency
involvement, allowing cooperating agencies to bring resources and funding to help with
monitoring (reissued draft ROD, p. 13).
The Social and Economic Report in the record discloses that ground conditions as well as
budgetary limitations will ultimately dictate the amounts of products removed and that budgetary
limitation will drive how much gets done (Social and Economic Report, p. 19).
The modified final EIS discloses that treatments will be dependent on staffing and funding
guided by the adaptive implementation and monitoring framework (MFEIS, p. 8). It also
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discloses that treatments and activities conducted annually would be contingent upon funding
and staffing (MFEIS, p. 20).
Conclusion
Based on my review of the modified final EIS and project record, I find that the Responsible
Official discloses the staffing and budgetary commitments needed to implement the project over
its 15-year treatment authorization period.
Inadequate Mitigation
Issue 1
Objectors assert the Forest Service failed to consider a reasonable range of mitigation
measures that could address a wider variety of desirable end-state conditions than stated in the
EIS. Furthermore, objectors contend that the project design features lack specificity in how they
would be applied, and sufficient evidence of their effectiveness is not provided.
Response
The modified final EIS discloses the description of the modified proposed action which includes
project design features (MFEIS, pp. 61-96) and how the project design features were developed
to avoid or minimize impacts (MFEIS, p. 70). The effects of the alternatives, which include the
project design features, are disclosed in the modified final EIS (MFEIS, pp. 56-64). The project
record contains deliberations of the interdisciplinary team in developing the project design
features (2017Dec13_draftLaVA_DC_IDT_WorkingDoc;
2017Dec20_LaVA_CA_MeetingHighlights; 2018Jan10_LaVA_MeetingHighlights;
2018Feb26_draftLaVA_DC_IDT_WorkingDoc).
Appendix A of the modified final EIS explains the steps that will be taken prior to a treatment
being implemented to survey treatment areas in order to determine whether additional design
features would be necessary (MFEIS pp. 68-79). Appendix A includes a checklist that the agency
will use in implementation that will provide the opportunity to determine whether the project
design features are adequate and the determination regarding additional design features, if
needed (MFEIS, Appendix A, pp. 27-29). A monitoring plan will assess the effectiveness of the
design features (MFEIS, Appendix A, p. 80).
Appendix A contains triggers that will demonstrate the need for more rigorous project design
features, a change in management approach, or slowing the pace of implementation (MFEIS,
Appendix A, pp. 50-55).
The project record discloses road construction and maintenance requirements which have proven
records of effectiveness (Forest Service Handbook, Sections 7709.57; 7709.58; 7709.59; Forest
Service Timber Sale contract provisions, pp. 119-123, 128-129).
The primary approach of the LaVA project is using vegetation treatments to restore sites to the
desired conditions outlined in the Land and Resource Management Plan. However, treatments
would be designed at a local scale and will consider other factors, which can be interpreted to
include the end-state conditions desired by the objector (MFEIS, pp. 31-32).
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The modified final EIS discloses locations where treatments would be specifically designed to
enhance wildlife habitat (MFEIS, pp. 62-63). It discloses design criteria for invasive species
management, native seed/plant material use, and road decommissioning (MFEIS, Appendix A,
pp. 56, 59, 60). It discloses and defines road decommissioning techniques and temporary road
rehabilitation, including blocking roads by creating physical barriers (MFEIS, pp. 69, 402).
Conclusion
Based on my review, I have determined that the modified final EIS clearly defines the projects’
objectives and desired conditions, which has allowed for an adequate range and consideration of
effective design features. Additionally, I find that the Responsible Official has appropriately
analyzed and disclosed the effects of the project based on the application and effectiveness of the
design features.
Range of Alternatives
Issue 1
Objectors assert that the projects fail to consider an acceptable reasonable range of
alternatives. They contend that the issues should have been addressed in a wider range of
alternatives than the single, all-or-nothing action alternative analyzed in the modified final EIS.
Specifically, objectors contend that the Forest Service should have considered:
• An alternative that would exclude treatments within inventoried roadless areas
• An alternative that identifies a minimum road system and unneeded roads that could be
decommissioned under the modified proposed action.
• An alternative that would protect the qualities and values of the Continental Divide
National Scenic Trail.
Response
Section 104(c) of HFRA (Pub. L. 108-148, as amended) specifies the minimum number of
alternatives that the Responsible Official must consider in an EIS prepared under HFRA: the
proposed agency action; the alternative of no action; and an additional action alternative, if the
additional alternative (i) is proposed during scoping or the collaborative process…; and (ii)
meets the purpose and need of the project, in accordance with regulations promulgated by the
CEQ (HFRA, Sec. 104(c)). The EIS discloses the agency’s consistency with these requirements
and explains why no additional action alternatives other than the proposed action, as modified,
were analyzed in detail (MFEIS, p. 59).
If new issues are determined during the analysis process, the CEQ’s implementing regulations
for NEPA and the Forest Service’s NEPA regulations allow the agency to address them by
modifying alternatives (40 CFR §1503.4). In such cases, the responsible official may consider
the incremental changes as alternatives considered (36 CFR §220.5(e)(1)). The modified final
EIS and reissued draft ROD discloses the agency’s incremental changes to the proposed action to
respond to issues brought up in scoping, comments on the draft EIS, and objections during the
2019 pre-decisional administrative review process (reissued draft ROD, p. 9 footnote, pp. 13, 39-
40; MFEIS, 61-62, 97-98).
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The modified final EIS (pp. 97-99) and its associated Appendix B – Response to Comments
document (pp. 22 -26) disclose the agency’s consideration of several alternatives not analyzed in
detail and provides the reasons for not conducting detailed analyzes of these alternatives.
Rational for not conducting detail analyzes on recommendations received this objection period is
provided below.
An alternative that would exclude treatments within inventoried roadless areas:
The modified final EIS discloses the agency’s consideration of an alternative similar to the
modified proposed action with the exception that it would exclude inventoried roadless areas
from treatment. However, the Forest Service explains this alternative was eliminated from the
detailed study because it does not meet the purpose and need of the project, particularly as
related to needs of LaVA cooperating agencies. Specifically, excluding inventoried roadless areas
from the proposed action would forgo opportunities to enhance forest and rangeland resiliency to
future insect and disease infestations, provide for the protection of infrastructure and restoration
of wildlife habitat, and mitigate hazardous fuel loading on roughly 27 percent (230,240 acres) of
the LaVA analysis area. Removing such a large land base from the proposed action would not
allow a landscape-scale analysis of, and response to, changed forest vegetation conditions
presented by insect and disease epidemics, which is the primary purpose of the project (MFEIS
p. 98). The purpose and need for the LaVA project is stated on page 14 of the modified final EIS.
The rationale to dismiss an alternative to exclude inventoried roadless areas from treatment
because it doesn’t meet the purpose and need is lacking. An alternative, similar to the modified
proposed alternative, excluding inventoried roadless areas would still likely meet the purpose
and need. This alternative was proposed during scoping and the modified final EIS considered
effects of treatment in each roadless area in detail and imposed mitigation to protect roadless
values based on Significant Issue 7.
An alternative that identifies a minimum road system and unneeded roads that could be
decommissioned under the modified proposed action.
As objectors referenced in other objections points, the Forest Service responded to this
recommendation on page 8 (issue 801.0103) of the modified final EIS, Appendix B. See the
responses to Travel Management Rule, Issue #1 and NEPA, Issue #4 for the justification.
An alternative that would protect the qualities and values of the Continental Divide
National Scenic Trail.
Mitigation measures were adopted to address the CDNST. The range of alternatives is consistent
with HFRA and is adequate for addressing concerns about the CDNST (Recreation Report, pp.
15, 25-27; MFEIS, p. 341; MFEIS, Appendix A, pp. 56-57).
Conclusion
Based on my review of the project record, I find that the Responsible Official’s rationale for
eliminating the alternative which proposed to exclude treatments within inventoried roadless
areas because it did not meet the purpose and intent was not adequately supported. Therefore, I
instruct the Responsible Official to consider the alternative of excluding treatments within
inventoried roadless areas.
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Issue 2
Objectors assert that the Forest Service failed to adequately analyze the no-action alternative,
because it doesn’t provide a "baseline" study "for comparing the environmental consequences
to the other alternatives. Objectors contend that the no-action alternative is the “natural
processes” alternative, and a sufficient analysis would look at forest conditions 15, 25, 50, 75,
100, 125 and 150 years in the future.
Response
The no-action alternative is addressed in the modified final EIS in several places including page
6 (Alternatives Analyzed in Detail), Page 16 (Objection Findings and Responses), and in depth
on pages 60-61. Furthermore, baseline conditions are disclosed in the description of each
accounting unit and in the descriptions of the affected environment of each resource analysis
section of chapter 3 (MFEIS, pp. 3-6, 112-171, 175-384). Within the reissued draft ROD, the no-
action alternative is addressed on pages 35 and 36. This section discusses that there would be no
effort, beyond 15-year historical rates, to modify existing vegetation or related fuel conditions
associated with the bark beetle epidemic in the LaVA analysis area.
The requirement and guidance to analyze a no-action alternative is detailed in 40 CFR 1502.14
(d), Forest Service Handbook (FSH) 1909.15.14.2, and HFRA section 104(c). FSH 1909.15.14.2
states that “The no-action alternative provides a baseline for estimating the effects of other
alternatives; therefore, include the effects of taking no-action in each environmental analysis.”
The utility of a no-action alternative is also addressed in FSH 1909.15.15.2b in regard to the
temporal bounds of an analysis. This section recommends that the no-action alternative can be an
effective benchmark for estimating the effects of other alternatives if it incorporates cumulative
effects of past activities and accurately depicts the condition of the environment.
CEQ NEPA implementing regulations define three types of effects: direct, indirect, and
cumulative. Direct effects are caused by the action and occur at the same time and place. Indirect
effects are caused by the action and are later in time or farther removed in distance but are still
reasonably foreseeable (40 CFR 1508.8). Cumulative effects are impacts on the environment
resulting from the incremental impact of the action when added to other past, present, and
reasonably foreseeable future actions (40 CFR 1508.7). NEPA implementing regulations clearly
require analysis of effects that are reasonably foreseeable, rather than those that are speculative
150 years into the future.
The modified final EIS considers and discloses those reasonably foreseeable effects and actions
in chapter 3. Consistent with Forest Service policy, the Responsible Official defined the no-
action alternative for the LaVA project as consisting of continuation of routine management
programs and activities at historic rates (MFEIS, p. 28).
Conclusion
I conclude that the analysis of the no-action alternative in the modified final EIS and reissued
draft ROD is sufficient and meets the intent of NEPA regulations and are consistent with Forest
Service handbook guidance. The reissue draft ROD adequately uses temporal bounds of
management activities on the Forest as a benchmark for future condition predictions in the
absence of increased management.
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Economics
Issue 1
Objectors assert that the modified proposed action is not fiscally responsible, and it will be a
subsidy for the timber industry to perform commercial harvest, or a subsidy for homeowners by
protecting second homes.
Response
Chapter 1 of the modified final EIS outlines the purpose and need for the LaVA project. “The
purpose and need for the project is based on the identified gaps between existing and desired
conditions within the LaVA project area” (p. 31). The modified final EIS details these gaps
throughout Chapter 1; especially, in the section titled “Background for Purpose and Need.” The
modified final EIS states that “Vegetation management activities, including prescribed fire,
mechanical, and hand treatment methods, could be applied on up to 360,000 acres to mitigate
hazardous fuel loading, provide for recovery of forest products; enhance forest and rangeland
resiliency to future insect and disease infestations; protect infrastructure and municipal water
supplies; restore wildlife habitat; enhance access for forest visitors and permittees; and provide
for human safety” (p. 62). “A combination of commercial timber sales, service contracts,
stewardship contracts, cooperative authorities, partner capacity, and Forest Service crews would
be used to implement the project” (MFEIS, p. 62).
The Silviculture Specialist Report discusses in detail regulatory compliance, desired future
condition, diversity and resilience of the forested ecosystem, and the consequences of the no-
action and action alternatives.
The Social and Economic Specialist Report dated October 2019 details the financial efficiency
analysis for the modified proposed action including a detailed breakdown of project costs and
revenues associated with timber sales, pre-commercial thinning, weed and release treatments,
prescribed fire, and fuels treatments. (p. 19-20). The modified final EIS concludes that “From a
financial efficiency perspective, the agency would spend more to implement the project than it
would receive in revenue from stumpage receipts. However, the project would produce a number
of indirect benefits, including the potential to lower fire suppression costs and enhance
ecosystem services” (p. 382).
The modified final EIS, Appendix B – Response to Comments document further clarifies that
“targeting treatments to protect highly valued assets (for example, homes and municipal
watersheds) increases the likelihood future fire suppression savings may offset treatment costs.”
The reissued draft ROD states that “All authorized treatments will be contingent upon Forest
Service and cooperating agency priorities, available staffing, and annual funding appropriations”
(p. 12).
Conclusion
I find that the Responsible Official adequately explained the purpose and need for the project, the
desired future conditions, and the need for change from current condition of the forested
landscape. I find that the modified final EIS and reissued draft ROD adequately explained
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financial efficiency of the project as well as implementation being contingent on available
resources.
Issue 2
Objectors assert that the modified final EIS does not adequately disclose the costs associated
with the project. Specifically, the objectors point to undisclosed costs associated with agency-
related expenditures to implement the modified proposed action other than the costs associated
with temporary roads. Furthermore, they assert that the value of recreational uses have not
been adequately considered, and the benefit of the project on ecosystem services were not
supported by reference or analysis.
Response
The Social and Economic Report dated October 2019 details the financial efficiency analysis for
the modified proposed action including a detailed breakdown of project costs associated with
timber sale prep, timber sale administration, road maintenance, pre-commercial thinning, weed
and release treatments, prescribed fire, fuel treatments, and habitat improvement (including
prescribed fire and mechanical treatment) are quantified and disclosed (p. 19). The modified final
EIS concludes that “From a financial efficiency perspective, the agency would spend more to
implement the project than it would receive in revenue from stumpage receipts. However, the
project would produce a number of indirect benefits, including the potential to lower fire
suppression costs and enhance ecosystem services” (p. 382).
The purpose and need in the modified final EIS describes the ecosystem services that the project
is designed to protect/improve: “mitigating hazardous fuel loads, providing for recovery of forest
products, enhancing forest and rangeland resilience to future insect and disease infestations,
protecting infrastructure and municipal water supplies, restoring wildlife habitat, enhancing
access for forest visitors and permittees, providing for human safety, and providing management
adaptability and flexibility in the face of uncertainty and rapidly changing forest and rangeland
conditions” (MFEIS pp. 9-12, 31). Ecosystem services are addressed throughout the resource
sections in the modified final EIS. The effects summary table (MFEIS, Table 2, pp. 9-12)
describes how the modified proposed action would affect, among others: resilience to future
epidemics, hazardous fuel loading, wildlife habitat, watershed conditions, soil health, and
recreational opportunities. Many cost and benefit implications of the alternatives (including those
related to ecosystem services), while not quantified or monetized, are explicitly addressed in the
modified final EIS:
• Silviculture: “Under the no-action alternative, vegetative treatments could be completed
under separate site-specific project decisions (see chapter 2), creating conditions suitable for
lodgepole pine regeneration. These treatments would most likely take longer to accomplish
due to the timeframe it takes to go through multiple analysis processes. This lack of
timeliness would result in fewer treatments occurring, more cost to the government for
treatments...” (MFEIS, p. 182)
• Wildfire and protection of property: “The Proposed Action would moderate potential fire
behavior… These conditions would allow increased strategic and tactical firefighting
opportunities, which would increase the probability of success during initial attack, improve
firefighter and public safety, reduce wildfire risk to communities, Wildland Urban Interface,
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and natural resources, and reduce suppression costs.” (Wildfire and Fuels Report p. 31) “The
modified proposed action would reduce threats to property and human safety by prioritizing
restoration treatments in the Wildland-Urban Interface. This would reduce wildfire risk in the
Wildland-Urban Interface compared to the no-action alternative.” (MFEIS, p. 382) “The
costs of a single large fire routinely cost millions of dollars in direct suppression expenditures
alone. [Thompson et al. 2017] find that large-scale fuel treatments are necessary to
meaningfully affect wildfire risk and hazard. [O]ver time fuel treatments can pay for
themselves through reduced suppression spending, but that uncertainty related to location,
intensity, and other characteristics of fire events complicate the analysis of return on
investment.” (Social and Economic Report p. 20)
• Water: “Water supplies to Cheyenne, Laramie, and other communities would be less likely to
experience negative effects to water quality or quantity than under the no-action alternative.”
(MFEIS, p. 382).
• Other benefits associated with modified proposed action: “Displacement of recreationists,
livestock operations, and other Medicine Bow National Forest users would be less likely
because there would be less smoke emissions, less damage to infrastructure, and reduced risk
of falling trees.” (MFEIS, p. 382)
• Other costs associated with modified proposed action: “[P]roposed project activities also
have the potential to damage ecosystem services. Roads and skid trails could increase
sedimentation. Vegetation management activities in inventoried roadless areas may interfere
with visitors’ sense of solitude in these areas. These consequences are described in more
detail in other specialist reports, including recreation and soils.” (MFEIS p. 382)
The Environmental Consequences section of Recreation in the modified final EIS discuss
potential recreation-related impacts under the no-action and modified proposed action
alternatives (pp. 337-343). The effects of the no-action and modified proposed action alternatives
are summarized in Table 2 of the modified final EIS (pp. 9-12). The LaVA project would likely
negatively affect the recreation experience for some forest visitors in localized treatment areas.
Displacement from a certain location would be the main negative effect to the public along with
disturbance, but the effects would be short-term, and no significant negative impacts to
recreation resources are anticipated (Recreation Report p. 4). Because no significant impacts to
recreation resources are anticipated, visitation and related economic activity are not expected to
change under the modified proposed action. Consequently, there is no quantified economic
analysis on recreational activities.
Conclusion
I find that the modified final EIS adequately discloses the potential benefits (including ecosystem
service benefits) and costs, of the LaVA project, and has adequately analyzed and considered
recreational values and impacts.
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Climate Change
Issue 1
Objectors assert that the project fails to facilitate climate change resilience. Project planning
documents cite resilience as justification for the project, but do not provide adequate clarification
of the concept and how it is being applied.
Response
The purpose and need for the project identifies several gaps between existing conditions and
desired conditions as outlined by the Medicine Bow LRMP. These include: “Existing forested
structural stages, age classes, and cover types do not meet LRMP desired conditions. There is a
need to conduct vegetation treatments to accelerate regeneration of desired tree species (for
example, lodgepole pine) to improve resilience to future epidemics and disease infestations”
(MFEIS, p. 1). The LRMP defines resilience as: “The ability of an ecosystem to maintain
diversity, integrity, and ecological processes following disturbances” (Medicine Bow LRMP,
Appendix G, p. G-33). This definition is similar to the definition provided by the objector.
The climate change vulnerability assessment incorporated by reference in the modified final EIS
discusses climate resilience. It states: “The diversity within which an ecosystem exists may affect
its resilience and adaptive capacity. Ecosystems with diverse biotic, physical, and topographic
characteristics (high biodiversity; variety in aspects, slopes, geologies and soil types, elevations)
may be more able to survive climate change than ecosystems that are less varied, because the
former, by existing across widely differing conditions, may be at lower risk of elimination by any
future climatic conditions” (Rice et al. 2018, p. 213). This discussion of resilience highlights
similar points to the objector about how biotic diversity contributes to resilience. The modified
final EIS’s comparison of alternatives in terms of the resource of Air Quality and Climate
Change states: “Thinning overstocked stands would increase forest resilience and decrease the
potential for large-scale wildfire” (MFEIS, p. 105).
Objectors raised similar concerns about a lack of clarification of the concept of resilience in the
draft EIS, and the Forest responded to these comments at several points in the Response to
Comments. Collectively, these responses describe the project’s strategy for increasing resilience
as “increasing structural diversity of forested stands at different scales across a large spatial
extent” (MFEIS, Appendix B, p. 94). The modified final EIS includes similar discussions of this
strategy for increasing resilience (MFEIS, p. 43).
Conclusion
I find that the Responsible Official adequately considered and addressed the objectors’
suggestions about using the concept of resilience. Furthermore, I find that the project record
adequately provides clarification of how the concept is being applied in the project design and
implementation.
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Issue 2
Objectors assert that the modified final EIS fails to adequately analyze climate change impacts.
Specific concerns include a failure to analyze how changing weather patterns may exacerbate
the impacts of the existing road system, temporary roads, and log-truck hauling in the context of
climate change. An additional concern is that the project fails to discuss the relevance of the
Rice et al. (2018) climate change study and consider the uncertainty of and long-term impacts of
climate change. The current LRMP was developed in 2003 at a time when implications of
climate change were not well understood. Therefore, objectors contend that the LaVA project
should be based on anticipated climate changes during the 21st Century, the period when post-
beetle forests will mature.
Response
The NEPA regulations state: “Agencies shall incorporate material into an environmental impact
statement by reference when the effect will be to cut down on bulk without impeding agency and
public review of the action” (40 CFR 1502.21). The modified final EIS states: “To better
understand ecosystem vulnerability from climate change in Wyoming and surrounding states, the
U.S. Forest Service produced a climate change vulnerability report (Rice et al. 2018). This
document is incorporated by reference in its entirety into the modified final EIS and is included
in the project record; therefore, the findings will not be repeated here” (MFEIS, p. 330).
On the topic of roads, the objector provided a similar comment on the draft EIS, requesting in-
depth analysis of the impact of climate change on forest roads. The response to this comment
included in Appendix B to the modified final EIS indicates that the modified final EIS
incorporates by reference the climate change vulnerability assessment report mentioned above
(MFEIS, Appendix B, p. 65). This vulnerability assessment indirectly addresses the interactions
between roads and climate change, stating: “Roads are sources of sediment and contaminants;
they can alter drainage patterns in watersheds, increase surface runoff from soil compaction,
remove riparian vegetation, and facilitate the spread of invasive plant species” (Rice et al. 2018,
p. 119). The analysis in this vulnerability assessment assesses non-climatic stressors, including
roads, as a component of vulnerability to climate change. The vulnerability assessment identifies
management options for addressing climate change effects in aquatic ecosystems in glaciated
valleys in the Rocky Mountain Region. These include several relevant to the objectors’ concerns,
including “disconnecting roads from the drainage network” (Rice et al. 2018, p. 68) and
“minimizing soil compaction by limiting roads, trails, and campgrounds” (Rice et al. 2018, p.
69). Appendix A of the modified final EIS identifies a series of decision criteria, checklists, and
triggers to mitigate negative impacts of road construction. These include a LRMP standard to
“Limit roads and other disturbed sites to the minimum feasible number, width, and total length
consistent with the purpose of specific operation, local topography, and climate” (PHYS-SOIL-
S.2 in Appendix A of the modified final EIS, p. 86).
The vulnerability assessment includes a chapter that presents climate change projections through
2100 for the Rocky Mountain Region, including Wyoming. These projections are presented as
ranges based on different models in order to account for uncertainty. This chapter and the
remainder of the report discusses how these projected changes in temperature and moisture
availability will affect different ecosystems.
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Conclusion
Based on review of the project record, I find that the Responsible Official adequately considered
the issues stated by the objector. By incorporating by reference the climate change vulnerability
assessment, the modified final EIS addresses potential impacts of climate change, including
consideration of long-term impacts and uncertainty.
Issue 3
Objectors assert that the modified final EIS fails to consider impacts of the modified proposed
action on forest regeneration under climate change. Specifically, the modified final EIS fails to
adequately consider:
• The peer-reviewed scientific study that finds declining forest resilience to wildfire under
climate change (Stevens-Rumann et al. 2018). The Forest Service added a reference to
this article in the modified final EIS list of references, but fails to discuss, address, or
incorporate its content into the proposed project.
• Climate change causes drought conditions that negatively impact forest regeneration
following wildfire. The analysis fails to differentiate between the prescribed burning
planned as part of this project and the wildfires studied in the cited paper.
• Forests affected by clearcutting and subsequent prescribed burning will not adequately
regenerate.
• Objectors anticipate a change from forest to cheatgrass.
• Regeneration failures would dramatically affect wildlife populations that depend on the
forest, including ungulates, birds, and fish.
Response
While the study does not include field sites in the project area, it includes several sites in
lodgepole pine and moist mixed conifer forests in northwest Wyoming. The study’s general
conclusions are relevant to the project. Notably, the authors find that forest resilience, measured
in terms of regeneration following fires, is decreasing in many areas of the intermountain West
due to factors that include increased drought as a result of climate change and distance to seed
source.
Email messages in the project record indicates that the Forest considered the cited paper in
preparing the modified final EIS. This paper was added to the References list (p. 446). The Table
highlighting changes between the final EIS and modified final EIS on pages 3-6 indicates that
this reference was included. In addition, the project record indicates that staff will consider the
paper’s conclusions when writing site-specific silvicultural prescriptions, including by
considering opening sizes and seeding distances.
The modified final EIS discusses limited regeneration and its implications in general without
specifically referencing the paper in question. Although the modified final EIS does not
specifically cite the paper in the text, several statements in the Air Quality and Climate Change
section demonstrate considerations of regeneration failure due to climate change. For example,
the modified final EIS states: “However, regeneration success could be complicated by changing
conditions associated with climate change” (MFEIS, p. 329). For example, the Silviculture
Specialist Report cites another paper (Rhoades et al. 2018) that found decreases in post-fire
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recruitment in areas affected by beetle-kill that experienced overlapping disturbances of salvage
logging and fire as compared to areas not affected by overlapping disturbances (Silviculture
Specialist Report, p. 45). Similar points are made in the Biological Assessment and Biological
Evaluation of Plant Species and in the Effects Analysis for Botany (MFEIS, pp. 275-276). The
comparison of effects between the no-action alternative and modified proposed action considers
regeneration (MFEIS, p. 100). The Legal and Regulatory Compliance section cites requirements
in the National Forest Management Act that adequate restocking is assured and indicates that
artificial regeneration could be planned if natural regeneration does not occur at adequate levels
(MFEIS, p. 386). The modified final EIS discusses the potential spread of cheat grass in the
project area (MFEIS, p. 291). Appendix A indicates that one monitoring item is regeneration in
harvest units MFEIS, Appendix A, p. 48).
Conclusion
The project record indicates that the Responsible Official utilized best available science, such as
Stevens-Rumann et al. (2018), when analyzing and determining potential impacts of the
modified proposed action and climate change on forest regeneration. As an objector noted, I
concur that it is vague where the analysis specifically references the Stevens-Rumann et al.
(2018) study. I am instructing that in-text citations to Stevens-Rumann et al. (2018) be inserted
into the Silviculture Specialist Report and where relevant in the ROD (e.g., ROD pp. 29-30 and
40).
Best Available Science
Issue 1
Objectors assert that the modified final EIS and its associated documents were prepared
without applying best available science or relevant current scientific information.
Response
CEQ NEPA regulations require agencies to ensure the professional integrity, including scientific
integrity, of the discussions and analyses in environmental impact statements, identify any
methodologies used, and make explicit reference by footnote to the scientific and other sources
relied upon for conclusions in environmental impact statements. An agency may place discussion
of methodology in an appendix (40 CFR § 1502.24). In addition, under the hard look doctrine
agencies must ground the analysis in science using credible sources and addressing opposing
views.
The modified final EIS identifies the methodologies and the sources used to draw its conclusions
about the environmental effects of the project (MFEIS, pp. 423-454). The record discloses the
agency’s consideration of opposing scientific views (MFEIS, Appendix B, pp. 5, 63, 68, 86, 89,
99, 100, 112, 124, and 130-132).
Conclusion
I find that the modified final EIS discloses the Responsible Official’s use of relevant scientific
information and methods.
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Issue 2
Objectors assert that the Forest Service’s analysis relies on assumptions that run contrary to
best available science. Specifically, Objectors challenge the Forest Service’s assumption and
conclusion that tree stands with high tree mortality and a sparse understory provide little habitat
quality to terrestrial wildlife. For instance, the Mosher et al. 2019 research found the snag forest
habitat to be particularly important for numerous bird species and that most wildlife species
increase in abundance where more snags exist.
Response
The Biological Evaluation, Management Indicator Species and Species of Local Concern Report
Landscape Vegetation Analysis (pp. 5-9) mentions tree stands with high, moderate and low tree
mortality have various levels of habitat quality to a variety of terrestrial wildlife which varies
over time and better clarifies the “Forest Service’s assumption and conclusion…” mentioned
above in the objection. Best available science information was found throughout this particular
section of the document.
The reference (Mosher et al. 2019) was added to the project record. The study was conducted in
Montana in ponderosa pine forests. Results illustrate the myriad of habitat preferences of the
small landbird community and suggest that a mosaic of disturbed conifer, intact live conifer, and
adjacent aspen forests will be critical for the persistence of populations of native avifauna in the
Intermountain West. The project record contains numerous other references discussing the
importance of snags to terrestrial wildlife species (Biological Evaluation pp. 5-9, LRMP,
Appendix D pp. 78-85).
Conclusion
I find that the Responsible Official properly documented the extensive benefits snags provide to
wildlife species throughout the Biological Evaluation utilizing other relevant current scientific
information references.
Issue 3
Objectors assert that Forest Service failed to review opposing or best available science in
regard to forest resiliency post MPB outbreak. One objector stated that the Forest Service did
not address a 2018 study that found that, during MPB outbreaks, beetle choice may result in
strong selection for trees with greater resistance to attack, and therefore retaining survivors after
outbreaks (as opposed to logging them) to act as primary seed sources could promote
adaptation for the forest (Six et al. 2018). Another objector states that the assertion throughout
the modified final EIS that intensive logging will reduce tree mortality from fire or bark beetles is
not supported by scientific sources, while Bradley et al. (2016) and Six et al. (2014) offer strong
evidence that just the opposite is true.
Response
As the Response to Comments in the modified final EIS, Appendix B indicates, the objector
suggested that the Forest consider the Six et al. (2018) paper in a comment on the draft EIS. The
objector provided a similar summary of the paper in that comment to what is in the objection and
provided a copy of the paper. The paper describes a study of a lodgepole and whitebark pine
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forest in Montana that experienced high levels of beetle-caused mortality. The authors examined
the genetics of trees that survived the beetle outbreak, suggesting that pine survivorship to beetle
outbreaks may be genetic and thus heritable. As a result, they suggest that managers should
retain trees that survive beetle outbreaks to facilitate long-term adaptation to beetles.
The Forest Service’s response to the comment suggesting consideration of Six et al. (2018)
states: “Natural regeneration of trees using seed from trees remaining after harvest or seed from
cones retained in slash during harvest operations is the preferred regeneration method for this
tree species. Natural regeneration from those seeds will result in the continuation of survivor
genetics. Silvicultural prescriptions for vegetation treatments are written to address reforestation
concerns, including seed availability and seed source” (MFEIS Appendix B, p. 5). The Forest
determined that no changes to the project record or EIS were necessary in order to address this
paper. The Silviculture Specialist Report provides references to this consideration.
The Bradley et al. (2016) and Six et al. (2014) papers were not provided during previous public
comment periods and are not in the project record. The objector does provide copies of both
papers. These papers are not new publications, and thus are not new information under 36 CFR
218.8(c). Bradley et al. (2016) examine the relationship between land protection status and fire
severity in western Ponderosa Pine and dry mixed conifer forests, finding that forests with higher
levels of protection had lower severity values. This paper, given its focus on Ponderosa pine and
dry mixed conifer forests, is not relevant to the project area, which is largely lodgepole pine and
spruce-fir. Six et al. (2014) review the literature on whether timber harvesting is an effective tool
for addressing beetle outbreaks, finding many gaps in the evidence. They suggest caution against
treating timber harvesting as a “panacea” for beetle outbreaks.
The project record includes analysis of the relationship between timber harvest, fire, and pine
beetle outbreaks. Specifically, the Biological Assessment and Biological Evaluation for Plant
Species includes discussion of this topic (p. 12-13).
Conclusion
I find that the Responsible Official provided adequate consideration of best available science on
the topics discussed by the objector and adequately considered appropriate information in the
project record.
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Issue 4
Objectors assert that the analysis in the modified final EIS, reissued draft ROD, and other
supporting documents fails to consider the best available science on climate change, drought,
wildfire, and fuels treatments. The following are topics related to this issue for which objectors
contend that the modified final EIS did not adequately consider available science:
• Topic 1: Impacts of warming and drying trends on tree mortality, fire risk, and
megadroughts. Emerging science shows that warming and drying trends are having a
major impact on forests, resulting in tree die-off even without wildfire or insect
infestation. High temperature and low humidity are two essential factors behind the rise
in fire activity, affecting fire behavior from its ignition to its spread, and thus are two
factors the Forest Service should assess in detail in its analysis of the LaVA project.
Megadrought will undermine the stated intent of the LaVA project under all alternatives.
The following attachments were provided with regards to this topic:
• Topic 2: Inadequacy of fire suppression and fuels management in light of climate
change. Policies promoting adaptive resilience to wildfire are needed. Simply treating
more area may not achieve long-term fire and land management goals if wildland fire
cannot be safely managed. Rather, strategically placing fuel treatments to create
conditions where wildland fire can occur without negative consequences and leveraging
low-risk opportunities to manage wildland fire are critical. The following attachments
were provided with regards to this topic;
• Topic 3: The effect of historical and contemporary logging on fire severity and frequency.
• Topic 4: Mountain pine beetle, fire behavior, and weather. A recent study looking at
geospatial data and firefighter observations found no effect of red or gray stage MPB
outbreak on either daily area burned or observed fire behavior. Instead, the study found
greater daily area burned and observations of high-extreme fire behavior occurred
during warmer, drier, and windier weather conditions, and suggested efforts to reduce
the risk of extreme fire activity should focus on societal adaptation to future warming and
extreme weather. Citation:
Response
The topics of climate change, drought, wildfire, and fuels treatments are considered in the project
record. However, the documents that the objector provides are not included in the project record.
As described below, many of these papers were published in 2020 and thus were not available at
earlier stages of the analysis or were not provided at earlier stages of the analysis. Some of these
studies are not relevant to the project area itself. Below is additional analysis on each of these
topics:
Topic 1: The objector provided copies of the below papers as attachments. These papers are all
recently published and are not in the project record.
• Brodribb et al. 2020 (Attachment 1). The authors provide an overview of the impacts of
drought driven by climate change on trees, concluding that most models anticipate major
damage to forests as a result of climate change.
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• Gray 2020 (Attachment 2). The article, written by NASA’s Earth Science News Teams,
summarizes science on climate change impacts on wildfire trends in the western United
States.
• Sullivan 2020 (Attachment 3). The article reports that, in 2020, several oceans reached their
warmest temperatures ever recorded. It focuses on implications for hurricanes, but also
mentions wildfire risks.
• Krajick 2020 and Williams 2020 (Attachment 4). The news article reports on a recently
published peer-reviewed scientific study that finds that the western United States and
northern Mexico has begun to experience a “megadrought” due in large part to climate
change. The abstract of the study (Williams 2020) is provided as part of the attachment.
• Domke et al. 2020 (Attachment 6). This document published by the USDA summarizes
forest carbon fluxes across states.
The objector did not provide copies of the following citations mentioned in footnotes to the
objection letter: Camille Parmesan 2006; Breshears et al. 2005; Allen et al. 2010; Anderegg et al.
2012; Williams et al. 2012; Overpeck 2013; Funk et al. 2014; Millar and Stephenson 2015; Luo
and Chen 2015; Gauthier et al. 2015; McDowell and Allen 2015; Ault et al. 2016; Zhang et al.
2017; Vose et al. 2016.
Topic 2: The objector provided copies of both papers (Schoennagel et al. 2017; Barnett et al.
2016) and the slides as attachments to their letter. The documents are not in the project record
and the objector did not provide the documents during previous comment periods. Given their
publication dates, these papers are not new information under 36 CFR 218.8(c).
• Schoennagel et al. 2017. This article advocates for an approach to wildfire policy and
management based on the concept of adaptive resilience, which involves adaptation and
reorganization in anticipation of changing wildfire regimes and future vulnerabilities caused
by climate change. According to the paper, elements of adaptive resilience include: “(i)
recognizing that fuels reduction cannot alter regional wildfire trends; (ii) targeting fuels
reduction to increase adaptation by some ecosystems and residential communities to more
frequent fire; (iii) actively managing more wild and prescribed fires with a range of
severities; and (iv) incentivizing and planning residential development to withstand
inevitable wildfire” (p. 1).
• Barnett et al. 2016. In this peer-reviewed paper, the authors summarize the frequency, extent,
and geographic variation of fuel treatment and fire interactions, using a time period between
2000-2012. They find that 6.8% of treatment units considered in the study were encountered
by a fire.
• “Wildfires RARELY encounter forest fuel treatments in West” (Attachment 10). This set of
slides, which cites the above two papers as sources, argues that “Treatments cannot reduce
regional area burned due to the scale of flammable ecosystems in the arid West.”
Topic 3: The objector provided a copy of the Lindenmayer et al. 2020 peer-reviewed study as an
attachment. The study focuses on Australia and is thus not relevant to the LaVA project area.
Topic 4: The objector provided a copy of the Hart and Preston 2020 peer-reviewed study as an
attachment. The study was published in April 2020 and thus was not available for consideration
until this latest objection period. The study examines wildfires occurring between 2003-2012 in
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forests affected by mountain pine beetle in the Western United States. The authors found “no
effect of red or gray stage [mountain pine beetle] outbreak on either [daily area burned] or
observed fire behavior” (p. 1). Their analysis suggests that weather and pre-outbreak fuels
variables were drivers of fire growth and behavior.
Summary analysis
The specific documents suggested by the objector were not included in the project record, either
because these documents were published recently or were not provided at an earlier point for
consideration by the project planning team. The modified final EIS considers the topics of
drought, wildfire, climate change, and fuels treatments, and cites scientific sources on these
topics (e.g., Vose et al. 2018 on p. 451 of the MFEIS). Consideration of these topics is further
documented in the Wildfire and Fuels Specialist Report, the Biological Assessment and
Biological Evaluation for Plant Species, and the climate change vulnerability assessment that is
incorporated by reference into the modified final EIS (Rice et al. 2018) In particular, the
Biological Assessment and Biological Evaluation for Plant Species summarizes literature on
climate, bark beetles, and wildfire, addressing points raised by the objector regarding the relative
influences of climate change and bark beetles on wildfire trends and the effectiveness of fuels
treatments in light of climate change (Biological Assessment and Biological Evaluation for Plant
Species, p. 12-13).
Conclusion
Although many of the provided papers were published in 2020 and thus were not available at
earlier stages of the analysis, or were not provided to Forest at earlier stages of the analysis, I
have determined that the modified final EIS considers the topics of drought, wildfire, climate
change, and fuels treatments, and cites relevant scientific sources on these topics. The project
record indicates that the Responsible Official adequately meets the 40 CFR 1502.24 “hard look”
requirement on the topics addressed by the objector.
Issue 5
Objectors assert that the Forest Service failed to properly consider valid, peer reviewed science
that doesn't support their preferred action, and at times misinterpreted the science they chose to
include. For example, one objector questioned the Forest Service’s understanding of the Stone
(1995) paper, stating, “Stone (1995) found that abundance and diversity of most birds and small
to medium sized mammals were higher in stands with moderate to severe tree mortality from
drought- and bark beetle-killed trees, completely contrary to the assertions in the modified final
EIS that the Stone dissertation showed abundance of red squirrel and snowshoe hare declining
as a function of heavy tree mortality (p. 50). The Stone data clearly shows that snowshoe hare
numbers increase as a function of tree mortality and red squirrel numbers increase at tree
mortality rates up to 50% and don’t significantly decrease until nearly 90% mortality.”
Response
The 2020 Biological Assessment referenced Dr. Stone’s PhD thesis, though many years ago, is
still relevant as it discloses details very similar to the project ecosystems and species interactions
specifically. It is of high-quality peer reviewed literature. Thus, applicable to the best available
scientific information recommendations. Stone 1995 is one of several references found in the
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biologist reports within the project record (Biological Evaluation, pp. 5-9). Review of the
objection on page 50 of Stone 1995 found no relevant information to claim an “abundance and
diversity of most birds and small to medium sized mammals were higher in stands with moderate
to severe tree mortality from drought- and bark beetle-killed trees.” Page 50 was a list of
references. The Stone data could be contradictory to what is stated in the Biological reports but
there are many other references which are not. The overall analysis of effects on Canada lynx
prey base is not based on just one reference but more of an accumulation of research.
CEQ NEPA regulations require agencies to ensure the professional integrity, including scientific
integrity, of the discussions and analyses in environmental impact statements, identify any
methodologies used, and make explicit reference by footnote to the scientific and other sources
relied upon for conclusions in environmental impact statements. An agency may place discussion
of methodology in an appendix (40 C FR § 1502.24). In addition, under the hard look doctrine
agencies must ground the analysis in science using credible sources and addressing opposing
views.
The modified final EIS identifies the methodologies and the sources used to draw its conclusions
about the environmental effects of the project (MFEIS, pp. 423-454). The record discloses the
agency’s consideration of opposing scientific views (MFEIS, Appendix B, pp. 5, 63, 68, 86, 89,
99, 100, 112, 124, and 130-132).
Conclusion
I have determined that modified final EIS and the associated wildlife effects analyses properly
documents and utilizes pertinent science. The project record indicates that the Responsible
Official adequately meets the “hard look” requirement of 40 CFR 1502.24.
Issue 6
Objectors assert that the 2020 Wildlife Biological Evaluation violates NEPA by failing to disclose
removed science from the 2019 Wildlife Biological Evaluation, which refutes some of the Forest
Service’s assumptions and conclusions it relies on in support of the LaVA project.
Response
Both the 2019 and 2020 Biological Evaluations are part of the project record. All of the previous
references from 2019 are still valid even though they are not listed in the 2020 report. The
references were originally included as background information but determined to be not critical
to the analysis of the effects of the alternatives. They were included after receiving comments
from the Wyoming Game and Fish Department addressing their concerns of fire impacts to
Canada lynx (WYGF Letter, pp. 2, 4). The project reveals that the Forest Service Regional Office
recommend the topic be removed because the topic is stochastic relative to wildlife resources and
has no influence on impacts to wildlife species’ analyses conducted (Mary Rasmussen-Flores
email February 25, 2020, to Steve Loose and others).
Nonetheless, the references (and often the same exact text) have remained in the Plants
Biological Evaluation, or has been relocated to the modified final EIS, Chapter 3 - Affected
Environment and Environmental Consequences, Plant species of concern. See below for a
comparison of the references between documents.
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Hart et al. 2015 and Kulakowski and Jarvis 2011
2019 Wildlife Biological Evaluation
• Page 26: Recent studies in the western United States have found that the mountain pine
beetle (MPB) epidemic across the west has not increased the risk of fire danger (Hart et al.
2015, Fire Science Digest 2012), nor has there been an increase in occurrences of high-fire
severity in southern Wyoming (Kulakowski and Jarvis 2011).
• Page 27: Kulakowski and Jarvis (2011) also concluded that dry conditions, rather than fuels
associated with outbreaks, influence the occurrence of severe fires.
2020 modified final EIS, Affected Environment and Environmental Consequences, Plant Species
of Concern
• Page 276: Recent studies in the western United States found the mountain pine beetle
epidemic has not increased the risk of fire danger (Hart et al. 2015) nor has it caused an
increase in occurrences of high-fire severity in southern Wyoming (Kulakowski and Jarvis
2011).
2019 Plants Biological Evaluation (Current Version)
• Page 12: There is a large body of scientific evidence that shows that climate has been more
important than beetle outbreaks in influencing fire patterns in lodgepole pine forests in this
region over the past century (Lynch et al. 2006, Romme et al. 2007, Kulakowski and Jarvis
2011, Black et al. 2013, Hart et al. 2015), that effects of salvage logging are variable, and
this treatment does little to alter wildfire patterns or soil burn severity (Kulakowski and
Veblen 2007, Fraver et al. 2011, Rhoades et al. 2018).
• Page 12: Far-reaching studies have explored the history of episodic disease-driven tree
mortality in the western United States and found that the MPB epidemic across the west has
not increased the risk of fire danger (Hart et al. 2015), nor has there been an increase in
occurrences of high-fire severity in southern Wyoming over the last century (Kulakowski and
Jarvis 2011).
• Page 13: Kulakowski and Jarvis (2011) also concluded that dry conditions, rather than fuels
associated with outbreaks, influence the occurrence of severe fires, while other researchers
found warmer temperatures and/or drought to be the strongest predictors of fire behavior in
MPB stands (Lynch et al. 2006, Black et al. 2013, Hart et al. 2015).
• Page 39: Recent studies in the western United States have found that the mountain pine
beetle (MPB) epidemic across the west has not increased the risk of fire danger (Hart et al.
2015), nor has MPB caused an increase in occurrences of high-fire severity in southern
Wyoming (Kulakowski and Jarvis 2011).
Romme et al. 2007
2019 Wildlife Biological Evaluation
• Page 26-27: Romme et al. (2007) provides considerable information on the lodgepole pine
and spruce-fir forest types common on this National Forest. They conclude that these forests
have always burned infrequently (decade to century-long intervals for lodgepole and
century-long for spruce-fir) but at high intensity. The research suggests insect outbreaks
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have a little to no effect on fire severity in these forest types. Additionally, tree-killing insects
do not increase the amount of fuels in forested stands but shift fuels from live to dead and
both live and dead fuels carry fire under very dry weather conditions. Romme et al. points
out that recent, severe fires burned under very dry weather conditions, which is considered
the norm for the occurrence of these fire events.
2020 modified final EIS, Affected Environment and Environmental Consequences, Plant Species
of Concern
• Page 276: Forested habitats and forested vegetation communities in this analysis are adapted
to fire (Romme et al. 2007) and it is expected prescribed fire would have a beneficial impact
on these ecosystems by restoring fire to the landscape in a controlled manner that benefits
fire-adapted native plants.
• Page 367: Forested habitats and forested vegetation communities in this analysis are adapted
to fire (Romme et al. 2007), and wildfire could have beneficial or adverse effects on diversity,
depending on factors such as soil burn severity and post-fire invasive species invasion.
2019 Plants Biological Evaluations (Current Version)
• Page 13: Romme et al. (2007) concludes that lodgepole pine and spruce-fir forest types
common on this National Forest have always burned infrequently (decade to century-long
intervals for lodgepole and century-long for spruce-fir) but at high intensity. He suggests
insect outbreaks have a little to no effect on fire severity in these forest types and that tree-
killing insects do not increase the amount of fuels in forested stands but shift fuels from live
to dead, and both live and dead fuels carry fire under very dry weather conditions.
• Page 12: There is a large body of scientific evidence that shows that climate has been more
important than beetle outbreaks in influencing fire patterns in lodgepole pine forests in this
region over the past century (Lynch et al. 2006, Romme et al. 2007, Kulakowski and Jarvis
2011, Black et al. 2013, Hart et al. 2015).
• Page 40: Forested habitats and forested vegetation communities in this analysis are adapted
to fire (Romme et al. 2007) and it is expected that prescribed fire could have a beneficial
impact on these ecosystems by restoring fire to the landscape in a controlled manner and
burning fire-adapted plant species.
Jenkins, et al. 218
2019 Wildlife Biological Evaluation
• Pages 26, 28 - 29, 43, 48, 52, 58, 62, 67, 73, 80, 86, 92, 101, 104, 111, 114, 121, 125,
133,138,145, 148, 154, 158, 163, 169, 175, 178, 183, 189, 195, 201, 213, 218, 228: Jenkins et
al. (2008) concludes “…the interaction of western bark beetles, fuels and fire in forest
systems is inherently complex and much remains unknown…Additionally, differences in the
physical environment, stand conditions, the amount and distribution of available fuels, and
weather make “one size fits all” management approaches ineffective.”
2020 modified final EIS, Affected Environment and Environmental Consequences, Plant Species
of Concern
• Not referenced
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2019 Plants Biological Evaluations (Current Version)
• Page 12: Several studies attributed higher rates of fire spread and increased fire intensities
in MPB epidemic stands to decreased vegetative sheltering and its effect on mid-flame wind
speed rather than fuels associated with tree mortality (Jenkins et al. 2008, Simard et al.
2011).
Gillette et al. 2014
2019 Wildlife Biological Evaluation
• Page 26: Gillette et al. (2014) stated “The influence of mountain pine beetle caused tree
mortality on wildfire behavior, however, depends primarily on the time elapsed since the
outbreak, with wildfire risk initially heightened but diminishing over time. Generally,
extreme fire potential exists in stands that have suffered high levels of mountain pine beetle
caused tree mortality until the likelihood of torching (the transition of fire from the surface to
the canopy) and crowning (spread from crown to crown) are minimized, and this process can
take a decade.” With more than a decade passing since the initial MPB outbreak on the
Medicine Bow National Forest, this area is in the gray, needless phase that Gillette et al.
described as having less influence on wildfire.
2020 modified final EIS, Affected Environment and Environmental Consequences, Plant Species
of Concern
• Page 431: Not cited within the document but included in the references section.
2019 Plants Biological Evaluations (Current Version)
• Page 12: Several studies found wildfire risk initially heightened during the red needle phase,
but diminishing over time (Gillette et al. 2014), while others found no difference in wildfire
risk between red needle trees and live trees (Simard et al. 2011, Harvey et al. 2014).
Conclusion
I find that the references and associated discussions about wildfire severity and available fuels
across the Forest remain in the project record. I am instructing the Responsible Official to clearly
explain the deletion of the references from the 2020 version of the Wildlife Biological Evaluation
Report, and to disclose whether the information is relevant to the analysis or conclusions.
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Wildlife
Issue 1
Objectors assert that the modified proposed action will likely have a significant impact on wildlife
habitat, including wildlife security areas. They contend that due to the design of the project, it is
difficult to determine specific impacts and the needed mitigation measures. Specifically,
objectors brought up concerns with the effects on cover, noise, seasonal migration, and
degradation of range forage and water resources.
Response
The Biological Evaluation, Management Indicator Species and Species of Local Concern Report
addressed fifteen terrestrial wildlife species which are Forest Service - Region 2 Sensitive
species, five Management Indicator Species, and three species of Local Concern (pp. 14-19,
MFEIS, pp. 217-223). Design features important to a particular species were incorporated into
the modified proposed action to mitigate impacts.
Determinations of Effects on the species were consistent. For all of the Management Indicator
Species, the Determinations were: “some habitat will remain across the Forest under both
Alternatives. Proposed activities are consistent with the revised Forest Plan Standards (LRMP
2003).” Determinations for the Sensitive Species, with both alternatives, may adversely impact
individuals, but not likely to result in a loss of viability on the Planning Area, nor cause a trend
to federal listing. Proposed activities are consistent with the revised Forest Plan Standards
(LRMP 2003)” (MFEIS, Table 159, p. 248).
The Wildlife Biological Assessment Report addressed the threatened species, Canada lynx. It
was determined both the no-action and the modified proposed action, May Affect, Likely to
Adversely Affect (following exemptions and exceptions in the Southern Rockies Lynx
Amendment) (pp. 8, 60, 65). Habitat connectivity within Lynx Analysis Units, among Lynx
Analysis Units, and across linkage corridors will be maintained. The modified proposed action is
consistent with the Southern Rockies Lynx Amendment (USDA 2008), utilizing exemptions and
exceptions for vegetation management (p. 60). Continued vegetation management at the 15-year
average level would comply with the revised LRMP, the Southern Rockies Lynx Amendment
(USDA 2008), and the Biological Opinion (USFWS 2008) for the Southern Rockies Lynx
Amendment as analyzed in individual project Biological Assessments (p. 66). There will be no
effect on the federally listed species Preble’s meadow jumping mouse. A LaVA design criterion
prohibits all vegetation management within the 766-acre Preble’s meadow jumping mouse area
of influence along the Laramie River within the Fox Wood accounting unit. No actions were
proposed in suitable habitat for the Threatened Preble’s meadow jumping mouse habitat,
therefore no effect (MFEIS, p. 216, Biological Assessment p. 8). See the response for
Endangered Species Act, Issue 1, for additional discussion of effects on Preble’s meadow
jumping mouse.
Security areas will be decreased with the LaVA modified proposed action. LaVA project is not
consistent with LRMP guidelines (pp. 1-40, 2-43) to maintain or increase security areas.
However, the proposed action has been modified to change 90 acres of security areas in Roadless
Areas from “timber emphasis” to “other management emphasis” in response to public comments.
This change requires that the primary benefit of any proposed action in these 90 acres would be
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to improve wildlife habitat (Biological Evaluation, p. 146). In response to public comments,
several minor changes to the modified proposed action were made regarding management of
some security areas. First, only noncommercial activities to improve wildlife habitat would now
be allowed in the Sheep Mountain Inventoried Roadless Area. Secondly, 90 acres of security
areas in the Encampment River Addition and Platte River Addition roadless areas that currently
fall within the forest and rangeland resiliency and forest products treatment opportunity area
would be managed for wildlife habitat improvement rather than timber production. Finally, a
decision trigger was added to the modified proposed action that prohibits removal of more than
30 percent of the security areas in treatment opportunity areas in any given accounting unit
(MFEIS p. 224).
The modified proposed action was also clarified between draft and modified final EIS to better
describe and depict where management actions and treatments would be emphasized during
LaVA project implementation. This effort resulted in roughly 110,650 of the total treatment
opportunity area acres being assigned a wildlife emphasis. These acres correspond to LRMP
Management Areas 3.5 Forest Flora or Fauna Habitat Limited Snowmobiling; 3.54 Special
Wildlife Areas (Sheep Mountain); 3.58 Crucial Deer and Elk Winter Range; and 5.41 Deer and
Elk Winter Range. The primary objective of treatments in these areas would be to provide quality
forage, cover, breeding habitat, and solitude for a variety of wildlife species and to improve
wildlife habitat in general. These areas would also provide excellent opportunities to work in
conjunction with LaVA cooperating agencies to achieve multiple resource and agency benefits
(MFEIS, p. 227).
Rangeland health will be impacted in the short-term during logging operations but will gradually
improve as the forest canopy is removed and sunlight is able to reach the grasses, forbs and
shrubs in the understory. Timber harvest would produce transitory forage (forage that would be
available for a limited number of years) that could last 15 years or more, depending upon site
characteristics. (MFEIS, pp 284-286).
Conclusion
I find that the Responsible Official documented the extensive analysis and disclosed the
projected impacts to wildlife, wildlife habitats, and wildlife security areas for both alternatives.
The modified purposed action is in compliance with the LRMP direction, Forest Service Manual
2600 - Wildlife, Fish, and Sensitive Plant Habitat Management, and the Endangered Species Act,
Migratory Bird Treaty Act, and the National Forest Management Act.
Issue 2
Objectors assert that the Forest Service failed to adequately analyze impacts to American
marten.
Response
As a Management Indicator Species (MIS), the American marten was addressed within the
Biological Evaluation, Management Indicator Species and Species of Local Concern Report on
pages 46-55. The American marten is an MIS for the Medicine Bow National Forest and a Forest
Service – Region 2 sensitive species because of its uncommon occurrence, relation to
fragmentation, reliance on coarse woody debris, and its often-negative response to vegetation
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management. The report included lengthy discussions on the possible effects of the no-action
alternative and modified proposed action on the American marten. A thorough scientific review
was described, and local survey data was included. All of the components required for
completing a Biological Evaluation were fulfilled (Forest Service Manual 2600 Wildlife, Fish,
and Sensitive Plant Habitat Management including chapter 2670 Threatened, Endangered, and
Sensitive Plants and Animals [FSM 2672.42]). The analysis determined “may adversely impact
individuals, but not likely to result in a loss of viability on the Planning Area, nor cause a trend
to federal listing” determination is made for American marten for both alternatives. Some habitat
will remain across the Forest for martens based on the following:
• Continuation of average levels of vegetation management or LaVA implementation impacts
some habitat, reduces some habitat quality, and regenerates some areas not currently suitable
habitat.
• Stands of designated old growth will be retained across the mountain ranges according to
Forest Plan Standards (LRMP 2003), maintaining some habitat.
• Some LaVA treatment will occur in designated roadless areas, reducing marten habitat often
unaffected by management actions.
• Snags, recruitment trees, and coarse woody debris may not be retained in Wildland-Urban
Interface treatment areas, reducing marten habitat quality.
• The proposed activities are consistent with the revised Forest Plan Standards (LRMP 2003).
Conclusion
I have determined that the Responsible Official properly documented the extensive analysis of
American marten. The effects of the no action and proposed treatments on the American Marten
were fully described and disclosed in the Biological Evaluation, Management Indicator Species
and Species of Local Concern Report. Furthermore, I find no violation of LRMP direction,
Forest Service Manual 2600 - Wildlife, Fish, and Sensitive Plant Habitat Management, the
Endangered Species Act, or the National Forest Management Act.
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Issue 3
Objectors assert that the 2020 Wildlife Biological Assessment violates NEPA and the
Endangered Species Act. Specifically, they contend that:
• The Forest Service fails to identify the changes made between this 2020 Wildlife
Biological Assessment and the previous, February 2019, Wildlife Biological Assessment,
which makes it difficult for the public to provide meaningful comments.
• The Biological Assessment improperly concludes the project will have no effect on
Preble’s meadow jumping mouse, endangered Wyoming toad, threatened piping plover,
endangered least tern, endangered whooping crane, endangered pallid sturgeon,
endangered bonytail chub, endangered Colorado pike minnow, endangered humpback
chub, endangered razorback sucker, and threatened yellow-billed cuckoo.
• The Forest Service fails to provide site specific information about the location, timing,
and extent of vegetation treatments and roads, the public nor the decision maker is able
to discern how those actions relate to wildlife or its habitat and are precluded from
meaningful analysis on these impacts.
• Best available science demonstrates that the Endangered Species Act -listed species in
the project area will be harmed by the logging and truck hauling on forest roads over the
next 15 years.
Response
Chapter 1 of the modified final EIS identifies and describes the changes and updates made in
terms of analysis modifications, to the modified final EIS and biological assessment (MFEIS pp.
21- 24). The modified final EIS, Table 1 on pages 3 – 5 also documents the summary of changes
between the original and modified project.
National Environmental Policy Act 220.3 (definition of adaptive management) and 220.5 (e)(2)
describes adaptive management. The modified final EIS describes six treatment opportunity
areas and 14 accounting units representing a reasonable analysis area incorporating site
specificity to inform the analysis in the biological assessment and consistent with adaptive
management as described in 220.5(e)(2). The modified final EIS clarified the modified proposed
action to describe and depict where management actions and treatments would be emphasized
during project implementation, breaking down the LaVA analysis area into six treatment
opportunity areas and 14 accounting units which provided site specificity to inform the analysis
in the biological assessment (MFEIS, pp 53, 70 – 84, 112 - 171). HFRA allows for designation of
priority treatment areas that reduce risk or extent of, or increase resiliency to, insect or disease
infestation. The six treatment opportunity areas and 14 accounting units designated for the LaVA
project is consistent with HFRA. The LaVA Monitoring Plan and Decision-Making Triggers
described in the modified final EIS, Appendix A (Adaptive Implementation and Monitoring
Framework, Decision Triggers 2 – 9 on pp. 51 - 54) ensures the effects of the project comply
with law, regulation, policy, the Medicine Bow National Forest Revised Land and Resource
Management Plan, and that the effects of project implementation remain within those analyzed
and disclosed in the modified final EIS and the 2020 Wildlife Biological Assessment.
The Endangered Species Act (Section 7 regulations [50 CFR 402]) does not require analysis for
species that are not known or suspected to occur in the project area and for which no suitable
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habitat is present, and if the species are not affected by any major construction activity as defined
in §404.02. Table 1 beginning on page 8 of the 2020 Biological Assessment documents the
rationales for excluding these species from analysis. The 2020 Biological Assessment meets
Forest Service Manual 2672.42 Standards for Biological Evaluations.
The 2020 Biological Assessment determined the LaVA project will have no effect on the Preble’s
meadow jumping mouse because no actions are proposed in suitable habitat since project design
criteria prohibits treatment in Preble’s meadow jumping mouse habitat effectively avoiding
effects to the species and its habitat. See the response for Endangered Species Act, Issue 1 for
additional discussion of effects on Preble’s meadow jumping mouse.
The 2020 Biological Assessment determined the LaVA project will have no effect on the
Wyoming toad, piping plover, least tern, whooping crane, and yellow-billed cuckoo because
suitable habitat is not present near proposed actions (defined as the treatment opportunity areas
and accounting units); no effect on the pallid sturgeon, bonytail chub, Colorado pike minnow,
humpback chub, and razorback sucker because suitable habitat is not present near the proposed
actions, species are not present in the project area (defined as the treatment opportunity areas and
accounting units) and no water depletions will occur to the Colorado River or its tributaries.
Figure 13 in the 2020 Biological Assessment (p. 36) identifies Lynx Analysis Units, linkage
corridors and treatment opportunity areas, including identifying Timber Emphasis treatment
areas in relation to the Lynx Analysis Units and linkage areas. The Biological Assessment
describes how the project is consistent with the Southern Rockies Lynx Amendment guidelines,
objectives and standards, which accounts for the various treatment influences on lynx habitat
including clearcut treatments (pp. 34 – 52). The 2020 Biological Assessment identifies two lynx
linkage corridors for which portions of them occur in the LaVA project area (2020 Biological
Assessment, pp. 25 – 27). The North Gate Linkage Corridor occurs in the south of the LaVA
project area within the Big Blackhall Accounting Unit. The Snowy Range Linkage Corridor
occurs in the French Douglas, Pelton Platte, and Fox Wood Accounting Units.
The Biological assessment acknowledges that it is reasonable to expect some type of vegetation
management will occur in approximately 1,100 acres of lodgepole pine in a timber production
management area (Management Area 5.15) in the North Gate Linkage Corridor. This is where
clearcut treatments could be anticipated to occur in this Linkage. The analysis in the Biological
Assessment further describes where vegetation management is unlikely to occur, including
inventoried and mapped spruce-fir and lodgepole pine old growth stands consistent with LRMP
direction per Management Areas 3.5 and 5.15 (p. 30). The Biological Assessment states that
“…this linkage corridor includes a 2,321-acre area that is in a No Treatment zone for the LaVA
project. No vegetation management will occur in this area.” (p. 30). Figure 11 on page 32 of the
Biological Assessment identifies treatment limitation areas. The Biological Assessment provides
sufficient information addressing where clearcut treatments could potentially occur in the North
Gate linkage corridor.
The Biological Assessment describes the amount of lodgepole pine and spruce-fir in the Snowy
Range linkage corridor and identifies how much of those forest types are in the timber
management areas 5.13 and 5.15. Additionally, the Biological Assessment identifies acres
affected from past vegetation treatments and fire within those management areas. The Biological
Assessment acknowledges that it is reasonable to expect some vegetation management will occur
in some of the remaining lodgepole stands and in some spruce-fir stands in the Snowy Range
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linkage corridor during the life of the LaVA project. There is also the potential for treatments in
aspen, where aspen occurs in the linkage corridor. The analysis further describes where
vegetation management will not occur or is unlikely to occur, equating to 15,490 acres, including
10,518 acres in the Platte River Wilderness and 4,872 acres of designated old growth. Figure 12
on page 33 of the Biological Assessment identifies treatment limitation areas. The Biological
Assessment provides sufficient information addressing where clearcut treatments could
potentially occur in the Snowy Range linkage corridor.
The June 10, 2019, U.S. Fish and Wildlife Service biological opinion and the December 20,
2019, U.S. Fish and Wildlife Service Concurrence Letter documents Forest Service compliance
with the Endangered Species Act. The 2020 Biological Assessment discloses project impacts of
timber harvest and road use on lynx and lynx habitat, acknowledging adverse effects including a
decrease in suitable habitat quality and quantity (pp. 53 – 58). U.S. Fish and Wildlife Service
issued an Incidental Take statement in their June 10, 2019, biological opinion based on the
adverse effects analyzed and disclosed by the Forest Service. The Biological Assessment
addresses road use and relevant direction from the Southern Rockies Lynx Amendment on pages
20, 36 – 37, 49 – 50, 53, 57 – 58, and 59. The LaVA modified proposed action and design criteria
provides measures to reduce road impacts (pages 6 and 61 – 63 of the 2020 Biological
Assessment). Decision triggers are established to prevent exceeding amount of vegetation
management (tree harvest and removal) identified for each Lynx Analysis Unit to ensure meeting
Southern Rockies Lynx Amendment direction (discussed on pp. 38 – 40 and 43 – 44 of the 2020
Biological Assessment).
Conclusion
Based on review of the project record, I find that the Responsible Official has adequately
provided information on changes made between the February 2019 Wildlife Biological
Assessment and the 2020 Wildlife Biological Assessment, provided adequate site specificity, and
that the effects of the proposed LaVA project on federally listed species protected under the
Endangered Species Act were adequately analyzed and disclosed in the project record.
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Issue 4
Objectors assert the 2020 Wildlife Biological Evaluation violates NEPA. Specifically, they
contend that (D):
• Due to the lack of site-specific information, the 2020 Biological Evaluation fails to provide
sufficient analysis to support the modified final EIS in meeting NEPA’s requirement to
take a “hard look” at impacts from the modified purposed action and no-action
alternatives on Management Indicator Species, Sensitive Species, and Species of
Concern.
• The Forest Service concludes, where tree mortality is high, that there will be little impact
to the brown creeper and three-toed woodpecker from temporary roads associated with
clearcutting under the modified proposed action. This conclusion is based on the
agency’s assumptions that stands with high tree mortality do not provide suitable habitat
for species like brown creeper or the three-toed woodpecker.
• The Forest Service concludes that clearcutting and associated temporary roads to
access those clearcuts “could benefit bighorn sheep.” This, despite acknowledging
concerns about bighorn sheep habitat connectivity and declining bighorn populations.
Response
National Environmental Policy Act 220.3 (definition of adaptive management) and 220.5 (e)(2)
describes adaptive management. The modified final EIS describes six treatment opportunity
areas and 14 accounting units representing a reasonable analysis area incorporating site
specificity to inform the analysis in the biological evaluation and consistent with adaptive
management as described in 220.5(e)(2). The modified final EIS clarified the modified proposed
action to describe and depict where management actions and treatments would be emphasized
during project implementation, breaking down the LaVA analysis area into six treatment
opportunity areas and 14 accounting units which provided site specificity to inform the analysis
in the biological evaluation (MFEIS, pp. 53, 70 – 84, 112 – 171). HFRA allows for designation
of priority treatment areas that reduce risk or extent of, or increase resiliency to, insect or disease
infestation. The six treatment opportunity areas and 14 accounting units designated for the LaVA
project is consistent with HFRA. The LaVA Monitoring Plan and Decision-Making Triggers
described in the modified final EIS, Appendix A (Decision Triggers 2 – 9 on pp. 51 - 54) ensures
the effects of the project comply with law, regulation, policy, the Medicine Bow National Forest
Revised Land and Resource Management Plan, and that the effects of project implementation
remain within those analyzed and disclosed in the modified final EIS and the 2020 Wildlife
Biological Evaluation.
The modified final EIS (Chapter 2) describes primary and secondary treatment objectives within
the different treatment opportunity areas including fuels treatment and safety emphasis, forest
and rangeland resiliency and forest products emphasis, wildlife emphasis, recreation emphasis,
scenic and aspen emphasis, and special area emphasis. The treatment opportunity area narratives
describe the management tools that could be used within the associated area and how treatments
would comply with underlying LRMP management area direction. This section also includes
additional maps depicting the treatment opportunity areas, areas where different management
tools could be used, and areas where treatments would not be proposed as a result of law,
regulation, policy, and LRMP direction. The 2020 Biological Evaluation describes the existing
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condition and analyzed the effects of the no-action alternative and the modified proposed action
for sensitive species, management indicator species, and species of local concern (2020
Biological Evaluation, Management Indicator Species, and Species of Local Concern Report, pp.
19 – 140).
Based on the analysis of the LaVA project vegetation management treatments in treatment
opportunity areas and accounting units (Tables 18, 20, 22 – 26, 28 – 39, 41 – 54, 56 – 65), and
the description of treatment objectives and emphasis per the different treatment opportunity areas
identified on the landscape, the biological evaluation adequately assessed and disclosed the
impacts to Forest Service Sensitive species, Management Indicator Species and Species of Local
Concern.
As noted by the objector, the Biological Evaluation concludes that stand initiation management
and associated temporary roads will have little impact on brown creeper and three-toed
woodpecker where tree mortality is high. Based on peer-reviewed publications cited in the
Biological Evaluation on pages 22 and 35 – 37, stands where tree mortality is high become
unsuitable for brown creeper as density of live or dead canopy is reduced and as bark falls from
trees, causing a loss of protective cover for nest sites and declines in prey. While trees infested
with bark beetles, and dead trees in various stages of heartwood decay provide key habitat
requirements for three-toed woodpecker, the Biological Evaluation states that most trees are no
longer infested with bark beetles. The Biological Evaluation makes a reasonable assumption
based on peer-reviewed science that where temporary roads occur in stands of high tree mortality
no longer infested with bark beetles, there will be little impact to brown creeper and three-toed
woodpecker.
The Biological Evaluation reasonably concludes that since bighorn sheep prefer open, grassy
areas with long sight distances, where stand initiation treatments occur adjacent to bighorn sheep
habitat they may increase and improve habitat because removing trees opens up treatment areas
to grassy and herbaceous growth (2020 Biological Evaluation, Management Indicator Species,
and Species of Local Concern Report, pp. 87 and 89). Temporary roads, if located in or adjacent
to bighorn sheep habitat and migration corridors, could temporarily influence bighorn sheep
distribution, movements and habitat use. The Biological Evaluation acknowledges that roads
have impacts to wildlife and habitat and that the road network may be reducing a small
percentage of suitable habitat across the Forest. The Biological Evaluation concludes that the
LaVA project would impact some habitat and temporarily reduce habitat with disturbance,
including from temporary roads, but also has the potential to create travel corridors within
currently forested areas especially where treatments are adjacent to bighorn sheep habitat.
Conclusion
Based on review of the project record, I find that the Biological Evaluation adequately analyzed
and disclosed effects to Sensitive Species, Management Indicator Species and Species of Local
Concern consistent with Forest Service Sensitive Species policy (FSM 2670) and the Medicine
Bow National Forest Revised Land and Resource Management Plan.
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Issue 5
Objectors assert that the 2020 Wildlife Biological Assessment fails to demonstrate compliance
with the Southern Rockies Lynx Amendment and the Medicine Bow Forest Plain in violation of
the National Forest Management Act. Specifically, the objectors contend:
• The modified proposed actions could occur throughout 13 Lynx Analysis Units in
unsuitable, suitable, and nonhabitat. The Forest Service will be relying on exemptions
and exceptions to Southern Rockies Lynx Amendment standards. But what type of
vegetation management will occur in suitable lynx habitat, in the Lynx Analysis Units
generally, and in linkage corridors? Which Southern Rockies Lynx Amendment
components will apply to these actions?
• The Forest Service states that there will be 3,978 acres of the 1% precommercial
thinning exceptions. It is unclear what assumptions the Forest Service is relying on to
calculate compliance with the 1% precommercial thinning exception under the Southern
Rockies Lynx Amendment.
• The extensive use of exemptions and exceptions is concerning, especially when the
Southern Rockies Lynx Amendment analysis did not anticipate such use in a single
project authorization. Therefore, the Forest Service should seek a LRMP amendment.
• These number of acres affected in each Lynx Analysis Unit is not calculated based on a
worst-case scenario, but rather on the Forest Service’s own opaque assumptions about
yet-to-be determined locations of vegetation management. Tiering to the consultation
conducted under the Southern Rockies Lynx Amendment does not resolve the Forest
Service’s need to conduct site-specific analysis to consider and disclose the impacts of
its proposed actions both for purposes of NEPA and the Endangered Species Act.
Response
The objector states that without site specific locations or analysis, the revised Wildlife Biological
Assessment (2020 Wildlife Biological Assessment) fails to demonstrate compliance with the
Southern Rockies Lynx Amendment or the 2003 Medicine Bow National Forest Revised LRMP
in violation of the National Forest Management Act of 1976 (subsection (e)(4) on page 5 of the
NFMA). The Southern Rockies Lynx Amendment ROD went into effect in October of 2008 and
revised all LRMPs in Region 2 including the Medicine Bow LRMP. The National Forest
Management Act requires national forests and grasslands to meet direction set forth in their
respective LRMPs and requires an amendment to the LRMP if a Forest Service action cannot
meet LRMP standards or cannot meet the intent of LRMP guidelines.
The 2020 Biological Assessment analysis demonstrates consistency with objectives, standards
and guidelines of the Southern Rockies Lynx Amendment (pp. 4, 28, 29, 34 -40, 43 – 52, 79 –
82), and addressed the amount of vegetation management in each Lynx Analysis Unit (pp. 37-40,
Tables 4 and 5 on pp. 41-42, Tables 6 and 7 on pp. 55-56, 79-82). Vegetation management during
the life of the LaVA project is limited by the amount of vegetation management analyzed in the
Biological Assessment and consulted on with the U.S. Fish and Wildlife Service per the June 10,
2019 Biological Opinion and the December 20, 2019, Concurrence Letter. Vegetation
management, skid trails, landings, and temporary roads all count toward habitat changes
(Biological Assessment, p. 53).
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Decision triggers are established to prevent exceeding the amount of vegetation management
identified for each Lynx Analysis Unit in compliance with the Southern Rockies Lynx
Amendment (Biological Assessment pp. 38-40, 43, 44). Treatments impacting vegetation
management standards is limited by decision-making triggers 4 through 9 (MFEIS, Appendix A,
pp 52 – 54). These measures prevent more than 3 adjacent Lynx Analysis Units exceeding 30%
unsuitable. These measures limit Wildland-Urban Interface exemptions to VEG S1 and S2 to
Kettle Ponds, Brush Creeks, Upper Sierra Madre, and Battle Creek Lynx Analysis Units. These
measures limit precommercial thinning to 1% of habitat in each Lynx Analysis Unit, limit total
Wildland-Urban Interface area treatments, and limit total incidental damage in alignment with
the Southern Rockies Lynx Amendment vegetation management standards (2020 Wildlife
Biological Assessment pp 16 – 18, 33). Objectors states that it is unclear what assumptions the
Forest Service is relying on to calculate compliance with the 1% precommercial thinning
exception under the Southern Rockies Lynx Amendment. The 2020 Biological Assessment
describes proposed vegetation management for each Lynx Analysis Unit in Tables 4 and 5 on
pages 41 – 42, in Appendix C of the Biological Assessment, and describes the strategy for
vegetation management in Lynx Analysis Units on pages 37 – 40.
The objectors asked “what type of vegetation management will occur in suitable lynx habitat, in
the Lynx Analysis Units generally, and in linkage corridors? Which Southern Rockies Lynx
Amendment components will apply to these actions?” The modified final EIS and the analysis in
the Biological Assessment describes the treatment opportunity areas and what each one
emphasizes, in relation to suitable lynx habitat, Lynx Analysis Units, and in linkage corridors.
The biological assessment identified the Southern Rockies Lynx Amendment standards,
guidelines and objectives that apply to treatments in lynx habitat. The modified final EIS
summarizes information from the 2020 Biological Assessment on how the LaVA project meets
the Southern Rockies Lynx Amendment objectives, standards, and guidelines.
The Biological Assessment acknowledges a decrease in quantity and quality of suitable habitat
(pp. 37 – 50, 53 – 56). Vegetation treatment effects on Southern Rockies Lynx Amendment
vegetation management standards will be tracked by individual projects by year by Lynx
Analysis Unit (MFEIS Appendix A, pp. 40-42). Movement and connectivity are analyzed for
Lynx Analysis Units and linkage corridors, and the Biological Assessment describes how
connectivity will be maintained in the Lynx Analysis Units (pp. 4, 18 – 20, 24, 28 – 36, 34, 43,
50-52, 58, 60). The LaVA Treatment Implementation Checklist requires adherence to design
criteria and LRMP standards and guidelines including the Southern Rockies Lynx Amendment
(MFEIS Appendix A, pp. 27 - 29). In terms of compliance with the National Forest Management
Act, the modified final EIS and Biological Assessment demonstrate meeting the Medicine Bow
LRMP and the Southern Rockies Lynx Amendment requirements, as supported by the
Endangered Species Act Section 7 consultation process documented in the June 10, 2019,
Biological Opinion and December 20, 2019, Concurrence Letter, and do not indicate a need for a
LRMP amendment. See response to Endangered Species Act, Issue 3 for addition discussion
about Endangered Species Act Section 7 documentation and consultation process.
Conclusion
Based on review of the project record, I find that the Responsible Official demonstrates
compliance with the National Forest Management Act through consistency with the Medicine
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Bow LRMP, Southern Rockies Lynx Amendment, and the Endangered Species Act of 1973, as
amended (16 U.S.C §1531 et seq.).
Issue 6
Objectors assert that it is difficult to cross-reference the 2019 Wildlife Biological Evaluation to
the new 2020 Wildlife Biological Report, which precludes meaningful public review and is in
violation of NEPA.
Response
The two Biological Evaluations are structured different, but both contain a Table of Contents
(hyperlinked on electronic versions) to assist the reviewer in navigating the documents (pp. ii-
iv). Furthermore, the modified final EIS contains a table depicting changes from the 2019
version (pp. 3-5. Table 1. Changes from the April 2019 final EIS to 2020 modified final EIS).
Conclusion
I find that the 2019 and 2020 Biological Evaluations are in compliance with NEPA and formatted
sufficiently to allow for meaningful review. Additionally, the recommend formatting standards
outlined in 40 CFR 1502.10 and 36 CFR 220.5 (d), only apply to the modified final EIS itself,
not its supporting documents.
Issue 7
Objectors assert that the 2020 Wildlife Biological Evaluation is flawed because it asserts that the
modified proposed action has the potential to have beneficial impacts on wildlife habitat,
namely, bighorn sheep, Rocky Mountain elk, and mule deer.
Response
The National Environmental Policy Act (40 CFR 1500) requires Federal agencies to disclose the
environmental impacts of their actions, using information of high quality and scientific accuracy.
Forest Service Manual 2600 Wildlife, Fish, and Sensitive Plant Habitat Management was
reviewed and referenced in the 2020 Wildlife Biological Evaluation. Forest Service policy
requires that a review of programs and activities, through a biological evaluation, be conducted
to determine their potential effect on threatened and endangered species, species proposed for
listing, and sensitive species (Forest Service Manual 2670.3). Preparation of a Biological
Evaluation as part of the NEPA process ensures that species receive full consideration in the
decision-making process. The 2020 Biological Evaluation analyzed and determined the likely
effects of the modified proposed action on Forest Service sensitive species consistent with Forest
Service Manual 2670.31-2670.32.
The 2020 Wildlife Biological Evaluation states on page 1: “There are several habitat
improvement opportunities for terrestrial wildlife with the LaVA project. While habitat
improvements would continue to occur under the No Action Alternative, LaVA could accelerate
the rate of habitat improvements because this single analysis addresses habitat improvement
opportunities across the Snowy Range and Sierra Madre Range for the next 15 years. All
opportunities would be evaluated with field surveys, but existing information suggests several
options. Habitat improvements will include wildlife enhancement opportunities identified by the
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Platte Valley Habitat Partnership. This partnership includes local, State, and Federal agencies that
combine resources to design and implement habitat enhancements across land ownership
boundaries.” The Biological Evaluation acknowledges that habitat improvement projects would
continue under the no-action alternative and expresses that LaVA could accelerate the rate of
habitat improvement by providing opportunities across a large landscape, the Snowy Range and
Sierra Madre Range. This would be in addition to habitat improvement projects that would
continue regardless of the LaVA project and thus increasing the rate of habitat improvement. The
no-action alternative considered 15-year average rates of harvest that would continue (MFEIS
pp. 61, 77, 226, 256). The Biological Evaluation describes how habitat would be improved for
bighorn sheep, Rocky Mountain elk, and mule deer (pp. 1 – 2, 84 – 91, and 141 – 142). The
Wyoming Game and Fish Department expressed support of the LaVA project in their April 2017
comment letter, commenting that the LaVA project would provide opportunities to improve deer
and elk habitat, and benefit the Wyoming Game and Fish Department’s Mule Deer Initiative.
Appendix A of the modified final EIS demonstrates commitment to implementing wildlife
habitat improvement projects and identifies decision triggers and restraints in wildlife habitats
(MFEIS, Appendix A, pp. 6, 51, 93, 105, 119, 124). The modified final EIS, modified proposed
action includes treatments in LRMP wildlife emphasis management areas consistent with the
associated LRMP direction (MFEIS, p. 77), and includes habitat improvements in the Wildlife
Emphasis treatment opportunity area (MFEIS, pp. 76 – 77). Analysis by accounting units
provides site specificity to adequately disclose effects, including positive and negative as
described in the 2020 Wildlife Biological Evaluation. The Biological Evaluation references the
Medicine Bow LRMP standards and guidelines influencing management of wildlife habitat.
Those most directly involved in habitat management include standards and guidelines for water
and aquatics and Biological Diversity. The Biological Evaluation demonstrates meeting LRMP
direction.
The modified proposed action includes Design Features and Decision Triggers to reduce impacts
and promote habitat conservation (MFEIS Appendix A, pp. 50 –64). Design Features include
limitations on management actions in wetlands and riparian areas, measures to promote unique
habitat features outside of Wildland Urban Interface for overstory and understory diversity, and
management guidance for shrubland treatment. There are Decision Triggers to limit the reduction
of security areas and to ensure habitat improvements are a percentage of all vegetation
treatments. The LaVA Monitoring Plan in Appendix A of the modified final EIS identifies
monitoring to assess effectiveness of project-specific design features and treatments for
improved wildlife habitat and/or shrubland habitat (MFEIS, Appendix A, pp. 80 – 81).
Conclusion
Based on review of the project record, I find that the Responsible Official meets the requirements
under the National Environmental Policy Act of providing high quality information and accurate
scientific analysis supporting the rationale for LaVA project effects on wildlife. The analysis
adequately informs the Responsible official on understanding the environmental consequences.
The LaVA project provides sufficient detail supporting the rationale that actions associated with
the LaVA project promote wildlife conservation.
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Issue 8
Objectors assert that the Forest Service failed to adequately analyze direct, indirect, and
cumulative effects of temporary roads on brown creeper, snowshoe hare, three-toad
woodpecker, bighorn sheep, and other species.
Response
Brown creeper, snowshoe hare, three-toed woodpecker and bighorn sheep were analyzed within
the Biological Evaluation, Management Indicator Species and Species of Local Concern Report
Landscape Vegetation Analysis (LaVA) (pp. 19-39, 84-91). In all instances, it was stated in the
report that temporary roads will be obliterated and returned to the land base within 3 years,
obliteration methods are described in design criteria in the modified final EIS, and regeneration
to suitable habitat will occur in similar time frames to regeneration within stand initiation
treatment areas. Noise associated with treatment implementation can cause temporary
disturbance to wildlife in the short-term, but the disturbance is not expected to cause decreased
reproductive success or survival across the populations. The Determination of Effects state some
habitat will remain across the Forest for brown creepers, three-toed woodpeckers, snowshoe hare
and bighorn sheep under both alternatives. The proposed activities are consistent with the revised
LRMP standards.
Appendix A of the Biological Evaluation, Management Indicator Species and Species of Local
Concern Report Landscape Vegetation Analysis (LaVA) contains a review of literature
concerning road impacts to wildlife and has 52 citations which describe road impacts on a
variety of wildlife species (pp. 158-168). Research on bird species is limited but included.
Fragmentation of wildlife habitat for many species due to temporary roads is a recognized
impact.
Temporary road locations will be reviewed and approved before they are created. “Route
verification would be held prior to road contract preparation, to show Forest and District
Specialists the location and design of planned relocation, realignment and new construction to
ensure the road would not have additional adverse effects on resources” (Transportation Report,
p. 5). Once the transportation needs have been identified, the layout and design of temporary
roads is done in accordance with best management practices which reduces adverse effects on
the environment. In addition to the route verification, the LaVA project includes a checklist
where specialists analyze treatments and associated actions (such as temporary roads) in detail.
This checklist will provide resource specialist the opportunity to provide feedback on temporary
roads (MFEIS, Appendix A, p. 27-29). Appendix A also includes the relevant LRMP Wildlife
Guidelines 2 (BIO-WILD-G.2.) and 5 (BIO-WILD-G.5.) (MFEIS, Appendix A, p. 94).
• Guideline 2: During project analysis and design, evaluate current and desired open road
density at the geographic area scale and design projects, including road management to
provide adequate security areas for wildlife and limit disturbances during parturition, nesting,
and fledging periods.
• Guideline 5: Apply seasonal restrictions as needed on motorized use of travelways to reduce
disturbance in sensitive big game areas, such as birthing areas and winter range.
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Conclusion
I find that the Responsible Official adequately considered the impacts of temporary roads on
fragmentation, wildlife species, brown creeper, snowshoe hare, three-toed woodpecker and
bighorn sheep. There is an adequate analysis of road effects.
Endangered Species Act
Issue 1
Objectors assert that the Forest Service failed to consider impacts to Preble’s meadow jumping
mouse, and the justification for eliminating the mouse from further analysis in the 2020 Wildlife
Biological Assessment is flawed. Specifically, objectors contend:
• The Forest Service ignores direct, indirect, and cumulative impacts from log hauling
trucks and other equipment using existing system and new temporary roads to access
specific treatment units, especially if those roads cut through Preble’s meadow jumping
mouse suitable habitat.
• The Biological Assessment does not indicate Preble’s meadow jumping mouse suitable
habitat or area of influence in relation to treatment opportunity areas.
• The Forest Service should have adopted a measure prohibiting new road construction in
Preble’s meadow jumping mouse suitable habitat to avoid impacts. The fact that the
Forest Service did not do so indicates that such impacts may occur and must be
disclosed and consulted upon. But without site-specific information or analysis of the
actual treatment units, it is impossible for the public to locate where and how this would
be a problem.
• There are no monitoring questions or triggers in the modified final EIS, Appendix A –
Implementation and Monitoring Framework to check for compliance with this project
design criteria during project implementation.
Response
Pages 9 – 15 of the 2020 Biological Assessment describes the greatest possible extent of Preble’s
meadow jumping mouse distribution in the LaVA project area, and references the Area of
Influence from the U.S. Fish and Wildlife Service Wyoming Ecological Services as the broadest
reasonable approach to identifying any potential Preble’s meadow jumping mouse distribution
within the LaVA project area. The Biological Assessment states that approximately 766 acres of
the Area of Influence occurs in the Fox Wood accounting unit in a treatment opportunity area,
providing site specificity. The Biological Assessment cites the 2018 Recovery Plan for Preble’s
meadow jumping mouse and the U.S. Fish and Wildlife Service 5-year review (USFWS 2014)
describing habitat and the species distribution, referencing Figure 4 in the status review
indicating that Preble’s meadow jumping mouse overall range does not extend west of Laramie,
Wyoming, and therefore would not extend to the LaVA project area. Based on USFWS 2018,
USFWS 2014, Federal Register 2013, and Bowe and Beauvais 2012 cited in the Biological
Assessment (page 14), the biological assessment concludes that the Preble’s meadow jumping
mouse distribution does not occur in the LaVA project area, but does conclude that the Area of
Influence map (https://www.fws.gov/wyominges/Species/Prebles.php) suggests Preble’s meadow
jumping mouse might potentially be impacted by projects in the Upper Laramie Drainage which
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overlaps the LaVA project area. The design criteria states “No treatment will occur in the
Preble’s meadow jumping mouse Area of Influence that occurs in the LaVA project area” (shown
as Figure 6 on p. 15 of the 2020 Biological Assessment). As described in the Biological
Assessment, this effectively avoids any effects to the species and its habitat.
The objector brings up a concern about roads to access treatment areas and temp roads, stating
that the Biological Assessment does not identify if those roads cut through Preble’s habitat.
However, the Biological Assessment does state that no actions are proposed in suitable habitat.
This implies that absolutely no actions, including roads, will cause any effect to habitat or the
species. The objector states that none of the maps in the Biological Assessment show Preble’s
meadow jumping mouse suitable habitat or Area of Influence in relation to treatment opportunity
areas, forest roads to access treatment areas within those treatment opportunity areas, or
locations of possible temporary roads. However, the 2020 Biological Assessment and the design
criteria describe the location of where the Area of Influence overlaps the LaVA project area,
stating “This area occurs within Township 13 North, Range 77 West, section 33 and Township 12
North, Range 77 West, section 04.” (Page 14 of the 2020 Biological Assessment). The LaVA
Appendix A, Implementation and Monitoring Framework includes items to review for each
individual LaVA project to ensure they do not occur in the Area of Influence (MFEIS, Appendix
A, pp. 24 - 29). This checklist measure is the mechanism to review project actions prior to
implementation and ensure they do not occur in the Area of Influence, effectively avoiding any
effects to the species and its habitat.
According to the Biological Assessment of the analysis area, potential Preble’s meadow jumping
mouse habitat occurs in a steep canyon near the Laramie River in shrubland/riparian habitat. No
logging activities or temporary roads would occur in this habitat because of the location, terrain,
and habitat type. (MFEIS, Appendix B, p. 126)
The LaVA project is consistent with LRMP, which includes a standard that states: In suitable
habitat within the range of the Preble's meadow jumping mouse, avoid placing new recreation
sites, trails or roads within the riparian zone. Existing roads in designated critical habitat will be
reviewed for possible closure or relocation (LRMP, p. 1-43, Threatened, Endangered, and
Sensitive Species Standard 10).
Conclusion
Based on review of the project record, I find that the Responsible Official adequately analyzed
and provided sufficient rationale for the no effect determination on the Preble’s meadow jumping
mouse, meeting Endangered Species Act requirements.
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Issue 2
Objectors assert that the Forest Service has failed to provide available and consistent
documentation associated with Biological Opinion/U.S. Fish and Wildlife Service consultation.
Specifically, objectors contend:
• The Forest Service states that formal consultation was completed with the Fish and
Wildlife Service on June 10, 2019. Except for a concurrence letter from the U.S. Fish
and Wildlife Service on December 20, 2019, that only discusses three areas of
modifications that the Forest Service requested, documentation was not made available
for review during public notice, comment, or objection periods, which has precluded
meaningful public comment on the project.
• The Forest Service revised the Biological Assessment in February 2020, after the date
of the U.S. Fish and Wildlife Service consultation and after the U.S. Fish and Wildlife
Service completed its biological opinion in June 2019. Therefore, the U.S. Fish and
Wildlife Service’s Biological Opinion or concurrence letter can’t be based on a biological
assessment that was completed months after consultation.
Response
The June 10, 2019, consultation letter and its concurrence statement (June 10, 2019, Biological
Opinion) is a second-tier consultation for Southern Rockies Lynx Amendment projects. As noted
by the objector, this second-tier consultation was completed June 10, 2019, documenting
concurrence with the determination of effect of the LaVA final EIS and determined that the LaVA
project is consistent with the incidental take statement from the first-tier biological opinion
(Biological Opinion for the Southern Rockies Lynx Amendment). As noted, the U.S. Fish and
Wildlife Service concurrence on the determination of effect of the LaVA modified final EIS was
received on December 20, 2019. The June 10, 2019, and December 20, 2019, concurrence
documents are available in the project record, and conclude consultation pursuant to the
Endangered Species Act. There is not a legal requirement to post document to the project
website, however members of the public can request to review the project record any time,
including during the public notice, comment, or objection periods.
The modified final EIS documents and summarizes information from the LaVA Biological
Assessment that consultation with the U.S. Fish and Wildlife Service was completed (MFEIS,
pp. 23, 387 – 388, 392). The final EIS and modified final EIS reference the consultation
documents, including the June 10, 2019, Biological Opinion, which are available upon request.
The objector noted that the Forest Service revised biological assessment is dated February 2020,
after the date of the U.S. Fish and Wildlife Service consultation and after the U.S. Fish and
Wildlife Service completed its biological opinion in June 2019 and after the U.S. Fish and
Wildlife Service concurrence letter related to specific changes in December 2019. The
differences between the Biological Assessment associated with the December 2019 consultation
(Biological Assessment dated October 2019) and the February 2020 Biological Assessment are
as follows:
The February 2020 Biological Assessment was reformatted to make the tables more legible and
make text, figures, and maps 508 compliant.
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The following three sentences were removed and do not appear in the February 2020 Biological
Assessment cumulative effects section:
There is currently vigorous scientific debate about the influence of bark beetle killed trees
to wildfires (Wells 2012). Moreover, the geographic extent and severity of wildfires is
determined by many climatic factors, vegetation conditions, topography, and local
weather conditions (Kulakowski and Jarvis 2011, Hart et al. 2015, Fire Science Digest
2012). As stated by Jenkins et al. (2008), “…the interaction of western bark beetles, fuels
and fire in forest systems is inherently complex and much remains
unknown…Additionally, differences in the physical environment, stand conditions, the
amount and distribution of available fuels, and weather make “one size fits all”
management approaches ineffective.”
This was added to the October 2019 Biological Assessment to address a scoping statement from
the Wyoming Game and Fish Department that under the no-action alternative, wildfires posed
substantial risk to lynx. Later review by the Forest requested removal of these sentences because
this topic is stochastic relative to wildlife resources. These three sentences have no influence on
LaVA project impacts to lynx or on any issues for which LaVA consultation was completed
(impacts to species, individuals, Southern Rockies Lynx Amendment standards and guidelines,
exemptions/exceptions, determination, jeopardy, or recovery). Deletion of these three sentences
did not change effects of the action.
The Consultation letter from U.S. Fish and Wildlife Service states: “This Project should be re-
analyzed if new information reveals effects of the action that may affect listed or proposed
species or designated or critical habitat in a manner or to an extent not considered in this
consultation; if the action is subsequently modified in a manner that causes an effect to a listed
species or designated or proposed critical habitat that was not considered in this consultation;
and/or, if a new species is listed or critical habitat is designated that may be affected by this
project.” Removal of the three sentences discussed above did not result in effects of the action
not considered in this consultation nor did it modify the proposed action that was consulted on.
Conclusion
Based on review of the project record, I find that the Responsible Official provided adequate
opportunity for public review and comment, provided sound rationale for changes between the
Biological Assessments, and demonstrated compliance with the Endangered Species Act of 1973,
as amended, (16 U.S.C §1531 et seq.).
Issue 3
Objectors assert that the LaVA project is noncompliant with the Endangered Species Act,
because wildlife populations, habitats, and protection measures will continue to change over the
life of the project (15 years)
Response
The Endangered Species Act of 1973, as amended (16 U.S.C §1531 et seq.) establishes
requirements for reinitiation of consultation (50 CFR 402.16):
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(a) Reinitiation of consultation is required and shall be requested by the Federal agency or by the
Service, where discretionary Federal involvement or control over the action has been retained or
is authorized by law and:
(1) If the amount or extent of taking specified in the incidental take statement is
exceeded;
(2) If new information reveals effects of the action that may affect listed species or
critical habitat in a manner or to an extent not previously considered;
(3) If the identified action is subsequently modified in a manner that causes an effect to
the listed species or critical habitat that was not considered in the biological opinion or
written concurrence; or
(4) If a new species is listed or critical habitat designated that may be affected by the
identified action.
Per §402.16 Reinitiation of Consultation procedures, if the distribution of suitable habitat and
species changes such that there are effects not previously analyzed and consulted on per the
December 20, 2019, U.S. Fish and Wildlife Service letter (LaVA MFEIS, U.S. Fish and Wildlife
Service Concurrence Letter – 06E I 3000-2020-F-0074), these Reinitiation of Consultation
procedures require the Forest Service to assess changes and associated effects not previously
considered and reinitiate consultation on the LaVA project. The U.S. Fish and Wildlife Service
December 20, 2019, Concurrence Letter states: “This Project should be re-analyzed if new
information reveals effects of the action that may affect listed or proposed species or designated
or proposed critical habitat in a manner or to an extent not considered in this consultation; if the
action is subsequently modified in a manner that causes an effect to a listed species or designated
or proposed critical habitat that was not considered in this consultation; and/or, if a new species
is listed or critical habitat is designated that may be affected by this project.” (U.S. Fish and
Wildlife Service December 20, 2019, Concurrence Letter, Conclusion section on pp. 12 – 13).
Based on these reinitiation of consultation requirements set forth in the Endangered Species Act
and referenced in the U.S. Fish and Wildlife Service Concurrence Letter, should any of the
Endangered Species Act-listed species in Table 1 of the Biological Assessment change location
or if the distribution of suitable habitat changes and is impacted by the LaVA project in a way not
previously considered, the Forest Service is required to reinitiate consultation in compliance with
the Endangered Species Act. This is the case with all authorized projects that the Forest Service
implements, regardless of a project’s scope, scale, or design. To suggest that the LaVA project
doesn’t and will not comply with the reinitiation of consultation requirement is unsubstantiated.
Conclusion
Based on review of the project record, the Responsible Official properly disclosed the impacts to
Endangered Species Act-listed species and will reinitiate consultation with the U.S. Fish and
Wildlife Service in accordance with 50 CFR 402.16 if future conditions necessitate. I find the
project and its analysis compliant with the Endangered Species Act of 1973, as amended (16
U.S.C §1531 et seq.).
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Temporary Roads
Issue 1
Objectors assert that there is a lack of site-specific information regarding temporary roads
locations. Specifically, objectors contend that:
• The report is speculative and general as to where and how roads will be constructed.
• The Forest Service continues to overly rely on its Adaptive Implementation and
Monitoring Framework to address any potential negative environmental consequences
from temporary road construction and use.
• The Forest Service fails to demonstrate that the agency will be able to ensure the
removal of temporary roads. The modified final EIS lacks any supporting evidence
regarding the history of previous temporary road removal and how well timber sale
purchasers met the reclamation requirements.
• The Forest Service seems to assert that temporary roads only have an impact when
open, which discounts the harm from construction and the fact that even when closed
• The Forest Service failed to provide the requisite “hard look” analysis NEPA requires to
disclose the direct, indirect, and cumulative impacts.
• That simply listing BMPs and providing project design features does not alleviate the
agency’s duty to demonstrate their success.
• The Forest Service fails to consider, disclose or discuss long term funding expectations
to support the road system.
Response
A temporary road is defined in 36 Code of Federal Regulations 212.1 as a road necessary for
emergency operations or authorized by contract, permit, lease, or other written authorization that
is not a forest road and that is not included in a forest transportation atlas. Temporary roads are
non-system roads that are authorized for use only during the timber sale operations and are not
part of the permanent transportation system. Once the use is complete, the road is rehabilitated
and closed within 3 years after the vegetation management treatment has been completed
(modified final EIS, Appendix A, p. 62). Therefore, temporary roads do not increase the road
density of the permanent forest transportation system.
The primary function of temporary roads is to provide access to timber sale landings where logs
are stored for later pick up. Per timber sale contract 2400-6, provision B.5.1, the location and
clearing widths of all temporary roads must be agreed upon, in writing, by the Forest Service and
timber sale contractors after a timber sale is sold and before temporary road construction is
started. This provision necessitates post-decision field reviews between the entities to ensure
proper design and location of the temporary road prism to minimize environmental impacts. It
also results in estimates of temporary road mileages and locations being provided in
environmental documents, rather than specific delineations, as is the case with the LaVA project.
The project record demonstrates that temporary road construction has been a public concern
since project inception. The record also demonstrates that, in response to this concern, the Forest
committed to using system roads, rather than constructing temporary roads, whenever possible to
facilitate vegetation management (MFEIS, p. 172). The record further demonstrates that the
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Forest will use a Wetness Index Rating tool when determining temporary road locations (LaVA
Steering Group Notes, January 29, 2018). The Wetness Index Rating tool uses inputs to illustrate
inherent wetness on the landscape, thereby providing spatial depiction of areas where temporary
road building and landing construction may be problematic due to compaction and erosion issues
(Internal Briefing Paper, December 6, 2017). Use of the tool, in concert with the use of best
management practices, will allow for avoidance of environmentally sensitive areas during
design, layout, and construction of temporary roads.
Although temporary road locations have not been explicitly delineated in the modified final EIS,
as noted by objectors, and cannot be, as explained above, the modified final EIS contains site-
specific information about temporary road locations and their environmental effects in numerous
locations. Some examples include:
• Chapter 2 contains a treatment opportunity area map displaying areas where temporary road
construction would not be allowed. These “no temporary road construction” areas, which
comprise roughly 135,000 acres, or 22 percent of the total treatment opportunity area
acreage, are based on LRMP direction prohibiting all road construction activities in specific
management area locations and the decision to exclude temporary road construction in
inventoried roadless areas.
• The accounting unit maps in Chapter 3 depict the existing road system, as well as the “no
temporary road” construction areas, while the corresponding narratives include estimates of
existing road densities. By knowing both the existing road density by accounting unit and
where temporary road construction is prohibited by the LRMP, assumptions can be made
about where temporary roads may or may not be needed during LaVA project
implementation (p. 114).
• Chapter 3, Hydrology describes existing and projected quantities of road-stream crossings
(Gloss 2018), existing and projected quantities of temporary road construction in wetlands
(Gloss 2018), and existing and projected quantities of road construction in the water
influence zone (Gloss 2018). These factors represent quantitative indicators to estimate the
potential direct and indirect effects of proposed project implementation (p. 316).
• Chapter 3, Transportation states, “Adverse effects from maintenance and reconstruction
activities would include short-term vegetation loss, vegetation removal, soil disturbance and
compaction, an increase of mixed traffic, and traffic delays during project implementation.
There would also be short-term increases of noise and dust. Recreational road and trail
access could be temporarily affected by transportation needs associated with timber hauling,
equipment access, and harvesting activities” (pp. 331-332).
Appendix A: Adaptive Implementation and Monitoring Framework, which has been adopted by
the project decision, also includes numerous mechanisms designed to track and assess temporary
road construction over the life of LaVA project implementation. Some of these mechanisms
include: a pre-treatment checklist to provide early identification of whether temporary road
construction may be needed for individual project implementation (p. 24); an implementation
checklist requiring field review of treatment areas, including temporary road construction areas,
if applicable, and district ranger approval (p. 27); a tracking workbook that tracks planned,
implemented, and rehabilitated temporary roads (p. 31); a decision-making trigger table
requiring pre- and post-tracking and monitoring of temporary road construction (p. 54); project
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design features including mechanisms to minimize the effects of temporary road construction (p.
62); and pre-treatment standard operating procedures (p. 75). Appendix A also provides
opportunities for cooperating agency involvement and public engagement during identification,
design, refinement, implementation, and monitoring of individual treatments. As discussed in
Appendix B: Response to Comments (p. 14), this adaptive implementation and monitoring
approach, as well as the ability to make assumptions and to identify direct and indirect effects
resulting from temporary road construction, complies with the National Environmental Policy
Act, section 1505.1, “Agency Decision-Making Procedures.”
With regard to closure and rehabilitation of temporary roads, timber sale contract include
contract provisions that authorize the use of temporary roads. Contract provision B(BT)5.1 is
used to agree (agreement between the timber sale purchaser and Forest Service personnel) on the
location of temporary roads prior to construction, with the final disposition of temporary roads
also included within the timber sale contract. Contract provision B(BT)6.63-Temporary Roads
describes the final treatment of temporary roads, which will close the route to future travel and
reduce erosion. The agreements are documented and include information on location, how the
road will be stabilized, and closed (Transportation Report, p. 16-17). Timber Sale Contract
Administration personnel make certain contract provisions are met prior to acceptance of work
and the closeout of the timber sale contracts. Furthermore, if the timber sale purchase fails to
meet the requirements of the contract (i.e. proper decommissioning of roads), that Forest Service
has the ability to terminate the contract for breach (B(BT)9.31), collect damages (B(BT)9,4), and
keep the purchaser’s surety bonds (B(BT)5.9) to ensure obligations of the environmental analysis
are met.
In addition to timber sale contract provisions, the project record also contains multiple
documents that speak to closure and rehabilitation of temporary roads. Some examples include:
• Appendix A of the modified final EIS clarifies under the Temporary Road Construction,
Landings, and Skid Trails Design Features on page 62 that, “Complete rehabilitation of
temporary roads will occur within 3 years after the vegetation management treatments have
been completed (DR-RdT-1). Page 319 of the modified final EIS also discusses the timing
and effects of temporary roads. The text on page 319 states, “[m]any individual temporary
roads at the site-scale are likely to have short-term sediment effects during construction and
use and during rehabilitation activities within one or two operating seasons, with effective
ground cover being established within a couple years” (p. 319).
• Document “2019Mar04_LaVA_HydroSupplementalInfo_508c” provides information on the
reclamation of roads.
• The “Supplemental Information on Temporary Road Water Resources Effects” (pp. 1-6)
speaks specifically to temporary road effects to watershed features, timing of hydrologic
effects, rehabilitation techniques, and results of past monitoring of road decommissioning on
the Forest.
• Forest Service Manual (7712.11- Exhibit 01) identifies multiple options for road
decommissioning, including blocking the entrance, revegetation and water barring, removing
fills and culverts, establishing drainage and removing unstable road shoulders, and full
obliteration re-contouring and restoring natural slopes.
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• BMP monitoring results for implementation and effectiveness on the Medicine Bow National
Forest is presented in the Hydrology Report on pages 20-21. Additionally, BMP monitoring
conducted by Wyoming State Forestry “found projects on National Forest System lands
within Wyoming have a BMP application rate of 96 percent and were 97 percent effective in
providing adequate protection (WSFD, 2014b)
• Appendix A: Adaptive Implementation and Monitoring Framework contains mechanisms to
track the closure and treatment of temporary roads and to ensure temporary roads are closed
within the three-year time frame. Specifically, item 8b in the LaVA Monitoring Plan
(MFEIS, Appendix A, p. 80) states “Ensure temporary roads are decommissioned, temporary
drainage structures are removed, sites are effectively rehabilitated, and motorized use has
been curtailed.” In addition, the trigger table (MFEIS, Appendix A, p. 54) contains yellow-
light and red-light triggers related to temporary road rehabilitation, with a yellow-light
trigger of “More than 5% of temporary roads constructed are not effectively rehabilitated
within 3 years of treatment completion” and a yellow-light adaptive action option that states
“Review temporary road rehabilitation efforts and determine barriers to effective
rehabilitation. Address barriers to effective rehabilitation, by means such as improving
techniques, increased project administration, increased funding, etc.” The red-light trigger is
“More than 10% of temporary roads are not effectively rehabilitated within 3 years of
treatment completion.” with the associated red-light adaptive action option that states “Do
not allow new temporary road construction until more than 95% (yellow light trigger) of
constructed temporary roads have been effectively decommissioned within 3 years.” Again,
this monitoring and these adaptive actions put extra focus on the reclamation requirements
and will ensure they are met. Using the outputs in Appendix A provides an implementation
and monitoring feedback loop that will monitor road closure effectiveness and provide
feedback on future closures. Furthermore, this adaptive process allows for flexibility to adapt
implementation strategies as climate conditions change.
As for long-term funding of temporary roads, improvement of roads used for timber sales do not
typically affect other road maintenance funds, and once road improvements are completed, long-
term maintenance and deferred maintenance costs are expected to decrease. Effects to other
resources from the use of the existing road system is under each affected resource section (soils,
hydrology, wildlife, etc.) (MFEIS, Appendix B, p. 16). The funding analysis that is provided in
the Transportation Report (p. 7) is within the scope and scale of the LaVA project (1 to 15 years)
and longer-term maintenance funding is beyond the scope of the LaVA project.
Finally, the length of time that a temporary road is open is dependent on the treatment unit size
and volume of material within the unit. Complete rehabilitation of temporary roads will occur
within 3 years after the vegetation management treatments have been completed (MFEIS,
Appendix A, p. 62).
Conclusion
I find that the Responsible Official has adequately addressed site-specific project planning and
monitoring, including appropriate time frames based on past monitoring; and included
appropriate project design criteria and pre- and post-treatment standard operating procedures to
minimize the effects of project implementation on soil resources, including the decommissioning
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of temporary roads as part of the adaptive management and monitoring plan required by the
reissued draft ROD.
The project record indicates that the effects of temporary roads have been addressed and that
temporary roads will be closed within three years of completing project activities. It also
addresses how temporary roads will be accounted for and monitored through the adaptive
implementation process.
Issue 2
Objectors assert that the method to calculate road densities per accounting unit is incorrect and
misleading, which precluded meaningful public input. When calculating the road densities, the
Forest should have removed the area/acres where LRMP direction or congressional designation
prohibits the construction of temporary roads.
Response
Chapter 3 of the LRMP outlines direction for geographic areas. Geographic areas generally
include an individual watershed or aggregation of watersheds and are 125,000 acres in size or
smaller. Analyses at the geographic area scale provide a framework for monitoring the
effectiveness of Forestwide and management area standards and guidelines and for achieving
Forestwide goals and objectives and desired conditions (LRMP, p. 3-1). Being that LaVA is a
landscape scale project, for analysis purposes, the project uses accounting units as a substitute for
geographic areas. Accounting units are similar to geographic areas in that they are smaller than
125,000 acres in size and they are comprised of an aggregation of watersheds. The primary
difference is that accounting units overlay 7th-level watershed boundaries with Lynx Analysis
Units, thereby contributing to a more robust, project-specific watershed and lynx analysis
(MFEIS, p. 33). Because of this, the accounting units comprise 23 management areas delineated
in the LRMP (MFEIS, p. 37), including inventories roadless areas, wilderness areas, and areas
recommended for wilderness.
In addition to the accounting unit information being used to contribute to the effects analyses for
the LaVA project, the information will be used during project implementation to assess whether
individual projects are moving vegetation toward LRMP desired conditions. Monitoring for
attainment of LRMP desired conditions will be done at the accounting unit (geographic area)
scale, as outlined in Appendix A of the modified final EIS. Therefore, when analyzing the effects
of the proposed temporary roads on the effected environment, it is prudent to be consistent and
calculate the road densities off the total acres in each accounting unit. To remove areas/acres
where LRMP direction or congressional designation prohibits the construction of temporary
roads (i.e. wilderness, inventoried roadless, recommended for wilderness) from the road density
calculation would lead to an inconsistent and biased analysis.
Common practice used to calculate road density is to divide the number of miles of road within a
geographical area by the square miles of area within the same geographic area. For example, the
Rock Morgan accounting unit encompasses 61,356 acres (95.9 square miles) and contains 128
miles of road. To calculate road density, 128 is divided by 95.9 and equals 1.3 miles per square
mile. If the Forest had chosen different geographical areas this would have increased or
decreased the geographical square miles and resulted in different road densities. There is not law,
regulation, or policy that specifies how to calculate and analyze road densities. However, there is
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a LRMP guideline that states, “During project analysis and design, evaluate current and desired
open road density at the geographic area scale and design projects, including road management
to provide adequate security areas for wildlife and limit disturbances during parturition, nesting,
and fledging periods (BIO-WILD-G.2) (MFEIS, Appendix A, p. 94).
Conclusion
The Forest was transparent in the decision to divide the project area into accounting units and the
calculation of road density. I find that the Responsible Official took a reasonable approach and
adhered to common practices and LRMP guideline BIO-WILD-G.2 in calculating the road
density within each accounting unit.
Issue 3
Objectors assert that the Forest Service should consider leaving temporary roads open for
increased public and firefighter access.
Response
Travel Management Rule, 36 CFR 212.1 defines a temporary road as a road necessary for
emergency operations or authorized by contract, permit, lease, or other written authorization that
is not a forest road and that is not included in a forest transportation atlas. Temporary roads are
typically authorized for use in timber sale contracts and are not part of the permanent
transportation system. Once the use is complete, the road is to be rehabilitated and closed.
Additionally, temporary roads are not intended for use by the public and are determined to be not
necessary for long-term management. Under the modified proposed action, temporary roads
would be reclaimed within three years of individual project completion to preclude future
motorized use and to restore ecological function in the affected area (MFEIS Appendix B, p. 29).
Converting temporary roads into National Forest System roads would take an extensive travel
management analysis, done in accordance with the 2005 Travel Management Rule. The
Responsible Official has determined that the travel analysis associated with the travel
management rule is beyond the scope of the LaVA project (MFEIS, Appendix B, p. 29).
Permanent road construction was considered for this project; however, in an effort to be
responsive to public comments, it was determined that it is not needed to achieve the purpose
and need for the project. Page 97 of the modified final EIS states “After the scoping comment
period closed (August 21, 2018), Forest Service personnel again re-evaluated the transportation
component of the proposed action and determined that the 10 miles of proposed permanent road
construction was not needed to achieve the purpose of and need for the project. Therefore,
permanent road construction was removed from the proposal”. This decision was further stated
on page 12 of the reissued draft ROD, where it concluded that the selected alternative
(alternative 2, the modified proposed action) would eliminate the 10 miles of proposed
permanent road construction.
Conclusion
Through the original proposed action, I have determined that the Responsible Official adequately
considered adding permanent roads to the Forest transportation atlas. However, through public
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input, it was concluded that additional permanent roads are not necessary to fully achieve the
purpose and need of the LaVA project.
Issue 4
Objectors assert that the soils analysis inadequately discloses the reclamation and monitoring
requirements for temporary roads.
Response
Pre-treatment and post-treatment standard operating procedures for soil resources and temporary
roads are outlined in the modified final EIS Appendix A – Adaptive Implementation and
Monitoring Framework on pages 72-73 and pages 78-79, respectively. Required monitoring and
reporting is also included in the adaptive management framework (MFEIS, Appendix A, pp. 80-
81).
Soils will be monitored for detrimental soil disturbance using the Forest Service National Soil
Disturbance protocols in the first, third, and fifth years following treatment by soil scientists,
hydrologist, or both (MFEIS, Appendix A, p. 80). Construction of temporary roads will be
monitored to ensure these roads are decommissioned, temporary drainage structures removed,
effective rehabilitation, and prevention of unauthorized motorized use through site inspections
conducted during implementation by Sale Administrators; and in the first and third years
following rehabilitation by soil scientists, hydrologists, and botanists (MFEIS, Appendix A, p.
80, Monitoring Item 8b – Transportation System, Temporary Roads System).
Conclusion
After reviewing the project record, I have determined that the Responsible Official adequately
disclosed the reclamation and monitoring requirements for temporary roads in the modified final
EIS and the associated Appendix A.
Issue 5
Objectors assert that roads increase the spread of non-native invasive plant species, leading to
significant ecological impacts and that the Forest Service improperly relies on design features to
avoid discussing or disclosing these impacts.
Response
The impacts of the proposed activities on invasive plant species is disclosed on pages modified
final EIS p. 290 to 296. Design features are an important part of this project as noted on page
294:
“This project includes several design features to reduce the likelihood of introducing new
weed species or populations and slow their spread. Applicable design features would be
applied in all locations where treatments are implemented. The proposed project also
includes an adaptive implementation and monitoring framework that provides input from
the public, agencies, and Forest Service specialists before implementation, as well as a
monitoring component which will help guide treatment design and implementation
relative to invasive plant species as the project proceeds over the projected 15-year term.”
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The modified final EIS did disclose effects of invasive species. Page 292 states:
“Because this project has not yet defined specific treatment units and weed species and
infestation acreages vary among the accounting units, we cannot effectively predict and
compare the magnitude of likely changes in invasive species infestations among the
accounting units. We can only predict invasive plant establishment is likely to be greatest
in the areas with the highest disturbance to soils and native plant communities.”
Furthermore, to prevent the spread of invasive species, timber sale contract provision, B6.35
Equipment Cleaning, contains contract requirements to prevent the spread of invasive species
from one timber sale to another and from one treatment unit to another within a single timber
sale. The Biological Assessment and Biological Evaluation of Plant Species addressed how
equipment washing may reduce the spread of invasive species.
“Design criteria and BMPs for washing equipment prior to working on site and using
certified weed-free materials may reduce but not necessarily eliminate the introduction of
new populations’ (p. 41).
Conclusion
The project record indicates that the Responsible Official has adequately considered the potential
effects of invasive species caused by the modified proposed action. The Adaptive
Implementation and Monitoring Framework contained in the modified final EIS, Appendix A
provides for ongoing implementation and feedback on Best Management Practices, closure,
mitigation measure effectiveness.
Issue 6
Objectors assert the analysis fails to provide a justification for 600 miles of temporary road,
clarification on estimated miles of temporary roads needed annually. Furthermore, objectors
contend that regardless of the 75-mile temporary road limitation, there are still concerns of
ineffective closures, reclamation, and monitoring.
Response
The number of road miles needed to implement the proposed project is addressed in Response to
Comments (p. 121) and further analyzed in the white paper titled “2019Oct10_LaVA Temporary
Additional Analysis.docx.” An analysis of historical temporary road data conservatively
estimated one mile of temporary road would be needed per 334 acres of treatment which resulted
in an estimate of 1,077 miles of needed roads. The analysis went on to state “Though the analysis
identified a conservative temporary road estimate based on total project area and associated
boundaries, it did not recognize that during project implementation treatments may be located in
areas where LRMP direction, roadless and/or management area direction does not allow the
construction of temporary roads or the type of treatment will not require the construction of
temporary roads to complete. Because the analysis did not account for the acreage where
temporary road construction is prohibited, the ID Team decided that 600 miles of temporary road
construction is a more realistic number.”
Regarding the 75-mile temporary road limitation, the analysis went on to determine the number
of miles needed on an annual basis. “On an annual basis it is estimated that 53 miles of
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temporary roads will be built based on the acreage by treatment type in the modified proposed
action… This was based on recommendations by district fuels and wildlife specialists.
Temporary roads for fuels treatments are rarely needed as most fuel treatments fall within the
boundaries of timber harvest and use the temporary roads from the harvest. If fuel treatments fall
outside of timber harvest hand cutting, hand piling, or mastication are the most common
mechanisms of treatment. Watershed and wildlife habitat restoration also use hand cutting, hand
piling, and mastication most commonly and very rarely require the use of temporary roads.”
However, the initial estimate of 53 miles per year was further refined to account for the fact that
additional temporary road mileage may be needed as more remote treatments are accessed later
in the project’s life and to account for areas where temporary road construction is prohibited. The
final analysis concluded that 75 miles of road is estimated on an annual basis.
Conclusion
The number of temporary road miles needed to implement the LaVA project was analyzed using
historical data and estimated to be 600 total miles. In response to concerns raised, a cap of 75
miles of temporary roads being open at one time is also in place. The Transportation Report
outlined the details of how temporary roads are agreed upon and factors considered when
choosing road locations. By adhering to the implementation process outlined in the modified
final EIS, Appendix A – Adaptive Implementation and Monitoring Framework, resource
specialists will be able to analyze the location, closure and potential effects of each route.
I find that the Responsible Official adequately considered the construction, use and quantity of
temporary roads for the life of this project and on an annual basis as well as site-specific details
pertaining to road location, the length of time temporary roads are open, impacts, and
reclamation, closure, and associated monitoring of temporary roads.
Given the information provided above, I have determined that the Responsible Official
adequately clarified the estimated miles of temporary roads that may be needed by year over the
life of the project and appropriately disclosed that information in the modified final EIS.
Travel Management Rule
Issue 1
Objectors assert that the Forest Service should have included identifying a minimum road
system and unneeded roads in its purpose and need statement and analyzed an alternative that
implemented a minimum road system in the project area.
Response
The recommendation to include the identification of a minimum road system was received
during the 45-day public comment for the draft EIS (see 801.0103: Include Minimum Road
System in Purpose and Need, comment 1 and 801.0307: Existing Transportation System,
comment 1). This recommendation was subsequently addressed in the Response to Comments
document (MFEIS, Appendix B) on pages 8 and 16, and on page 43 of the reissued draft ROD.
As descried on page 99 of the modified final EIS, in response to public comment, the responsible
official modified the proposed action to eliminate all miles of new system road construction and
reduced the temporary road miles from 1,000 to 600 miles. Under the modified proposed action,
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LaVA only analyzed the effects of utilizing temporary roads in order to meet the purpose and
need. Temporary roads are different from existing system roads in that they do not need to
conform to the 2005 Travel Management Rule. Because they are temporary, they are not
considered part of the road system and the minimum road system criteria in 36 CFR section
212.5(b) does not apply. Thus, a Forest-wide travel analysis report is not required and was not
prepared. (reissued draft ROD, p. 43).
Furthermore, the purpose and need for the LaVA project is to respond to changed forest
vegetation conditions caused by the bark beetle epidemics on the Medicine Bow National Forest
(MFEIS, p. 31). The recommendation to identify an alternative that implements the minimum
road system appears to be outside the scope of the project.
Conclusion
I find that the Responsible Official has adequately addressed this issue in the reissued draft ROD,
and I concur with the determination that an analysis of the minimum road system is not required
under the 2005 Travel Management Rule.
Roadless Area Conservation Rule (RACR)
Issue 1
Objectors assert that the proposed Wildland-Urban Interface vegetation treatments in
inventoried roadless areas are not supported by information presented in the modified final EIS;
specifically, the maps provided do not show structures and therefore can’t be used to determine
where actual Wildland-Urban Interface exists. Without this information, use of exceptions for
timber harvest in the 2001 Roadless Area Conservation Rule are not substantiated.
Response
The modified final EIS contains updated maps for each of the 25 inventoried roadless areas that
show general locations of structures, in addition to the power lines, ditches, etc. that were shown
in the original maps. These maps show locations where vegetation management is proposed in
the absence of nearby structures identified on the maps.
The term Wildland-Urban Interface originated in “A Report to the Council of Western State
Foresters” in September of 2000. This report identified interface communities as “places where
structures directly abut wildland fuels” (66 FR 751, pp. 751-777). Current Forest Service
definitions of Wildland-Urban Interface differ from the original and include areas where
structures may not directly occur (MFEIS, pp. 422, 399), but key infrastructure could still be
damaged by wildfire due to proximity. Integral to this definition are the Community Wildfire
Protection Plans for Carbon County (2016) and Albany County (2013), as they identify “at risk
communities” that serve as the basis for establishing the Wildland-Urban Interface in many
areas. These documents are referenced in the modified final EIS.
Specific to this tree-cutting in the Wildland-Urban Interface, harvest in inventoried roadless areas
is allowed through exception 36 CFR 294.13(b)(1)(ii). This exception allows for limited timber
harvest “to maintain or restore the characteristics of ecosystem composition and structure, such
as to reduce the risk of uncharacteristic wildfire effects, within the range of variability that would
be expected to occur under natural disturbance regimes of the current climatic period” (RACR
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2001). Objectors contend that the exception is being used as a broad-brush tool to allow harvest
in inventoried roadless areas without careful consideration of where harvest is necessary to
protect structures and developments. Use of this exception does not require the presence of
structures or other facilities or developments.
Conclusion
I find that the updated maps offer sufficient information for the public to provide meaningful
comments on the proposed activities associated with inventoried roadless areas. The Community
Wildfire Protection Plans for Carbon and Albany Counties identify at risk communities, thereby
supporting Wildland-Urban Interface delineations and the use of exception 36 CFR
294.13(b)(1)(ii) to allow timber harvest in potential treatment areas complies with the 2001
Roadless Area Conservation Rule.
Also see conclusion for Range of Alternatives Issue 1.
Issue 2
Objectors assert that the modified proposed action does not meet the exceptions of the
Roadless Area Conservation Rule.
• The LaVA modified final EIS fails to ensure that the “cutting, sale, or removal of timber”
will be “infrequent” as the Roadless Rule requires.
• The modified final EIS also discloses that much of the area where logging in roadless
areas will be authorized could involve logging of large trees. The agency cannot ensure
that will comply with the Roadless Rule’s admonition that logging involve generally small
diameter timber.
• The Forest Service fails to demonstrate that logging in 65,000 acres of inventoried
roadless areas will “maintain or restore the characteristics of ecosystem composition and
structure.”
Response
The project uses exceptions under 36 CFR 294.13(b)(1)(i) and (ii) for timber harvest on
approximately 75,000 acres and 36 CFR 294.13(b)(2) for harvest on approximately 1300 acres
(MFEIS, p. 360). The Roadless Area Conservation Rule has specific language that applies to all
timber harvest exceptions: “The cutting, sale or removal of timber in these areas is expected to
be infrequent”. The agency has not officially defined “infrequent” in this context; however, it
implies very rare; the exception –occurring at wide intervals in space and time. The modified
final EIS addresses this issue (p. 353) by stating that exceptions are only needed for up to 80,000
acres, which is 35% of the total inventoried roadless area acres. Further refinement of these acres
in the modified final EIS (p. 353) shows that less than 25,000 acres would likely be
commercially removed, and approximately 18,000 of these acres would be in the Wildland-
Urban Interface. The 2001 Roadless Area Conservation Rule exception applies to all timber “cut,
sold, or removed.”
The modified final EIS, Appendix A (p. 70) describes the two-step process that will be followed
to assure that activities proposed in inventoried roadless areas meet 2001 Roadless Area
Conservation Rule requirements. The process involves evaluating the effects of the activity on
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the nine roadless characteristics through the Roadless Area Characteristics Worksheet –if any
activities are anticipated to negatively impact one or more characteristic, the inventoried roadless
area portion of the treatment proposal will be eliminated or achieved by other means that do not
result in adverse impacts to roadless characteristics. In step two of the process, the Deputy
Regional Forester will make a “determination” on the applicability of any exceptions to
individual treatments based on information provided in the Region 2 Roadless Area Review
Form. These steps are designed to ensure that no negative impacts to roadless characteristics
occur and are implemented through Decision Trigger 12 (p. 55).
Additional requirements in the 2001 Roadless Area Conservation Rule apply to the use of
exceptions 36 CFR 294.13(b)(1)(i) and 36 CFR 294.13(b)(1)(ii). These exceptions require that
timber cut through use of the exceptions is “generally small diameter”, and that one or more
roadless characteristics as defined in 36 CFR 294.11 will be maintained or improved as a result
of implementing the exception. There are no additional requirements for the use of exception 36
CFR 294.13(b)(2).
The modified final EIS defines small diameter on page 353 as trees less than 7-inches diameter
breast height (DBH). The document states that most of the need to cut larger diameter trees
would occur through fuels treatment in Wildland-Urban Interface and concludes that a maximum
of 25,000 acres of commercial harvest would occur in these areas. Average size classes of trees
killed by insect and disease are presented in Table 129 (MFEIS, p. 223).
The modified final EIS, Appendix A (p. 55) ensures that one or more roadless characteristic will
be maintained or improved as a result of implementing the timber harvest exceptions through the
“yellow-light” and “red-light” triggers that require elimination of the activity in inventoried
roadless area or identifying other means of achieving the objective if treatments are anticipated
to negatively impact one or more characteristic.
Conclusion
I have determined that the modified final EIS adequately addresses the frequency of use of
exceptions for timber harvest. The requirements for exceptions are addressed in the modified
final EIS and the two-step evaluation and determination process described in Appendix A. I find
the Responsible Official is in compliance with the requirements outlines in the 2001 Roadless
Area Conservation Rule.
Also see conclusion for Range of Alternatives Issue 1.
Issue 3
Objectors assert that the modified final EIS inadequately analyzes tree removal effects on
Roadless characteristics.
Response
NEPA requires that environmental effects of proposed activities be analyzed and considered in
the public involvement and decision-making process. The 2001 Roadless Area Conservation
Rule relies on analyses conducted through NEPA to allow authorized decision makers to
carefully consider effects in protecting roadless characteristics. Pages 112-171 in the 2020
modified final EIS describe baseline resource conditions in the 14 accounting units, including
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inventoried roadless areas. On pages 365-375, the modified final EIS describes the existing
condition and expected effects of potential activities for the no-action and modified proposed
action by each of the nine roadless characteristics individually. The modified final EIS describes
general effects to roadless characteristics that may occur, given the overall objectives of the
project, and clarifies that most effects are likely to be less since limitations on roadless
treatments may occur through the Regional review and approval process outlined in the modified
final EIS, Appendix A. Trigger point 12 (MFEIS, Appendix A, p. 55) requires an analysis of
effects on each of the nine roadless characteristics for proposed activities in inventoried roadless
areas prior to treatment design and layout. Any activity, including tree removal, that is
anticipated to negatively impact one or more roadless characteristic will be eliminated from the
inventoried roadless area portion of treatment proposal or other means of achieving resource
objectives that do not result in adverse impacts to roadless characteristics will be identified. This
adaptive management review and approval process is intended to ensure that negative effects are
not only analyzed, but also avoided project areas located in inventoried roadless areas.
Conclusion
The modified final EIS analyzes the effects of tree removal and other potential activities in
inventoried roadless areas within the broad context of treatments that could be implemented. The
modified final EIS, Appendix A, requires further analysis of effects to roadless characteristics for
specific proposals and ensures no negative effects to roadless characteristics will occur. I find the
analysis of tree removal effects on roadless characteristics is adequate.
Also see conclusion for Range of Alternatives Issue 1.
Issue 4
Objectors assert that the modified final EIS inadequately analyzes the impacts of proposed
Roadless treatments on Threatened and Endangered species habitat.
Response
The project proposes vegetation treatments on up to 10,164 acres using exception
294.13(b)(1)(i). This exception allows for the infrequent cutting of generally small diameter
timber to improve threatened, endangered, sensitive or proposed species habitat (2001 RACR).
The objectors contend these treatments do nothing to improve habitat for Colorado River
cutthroat trout and boreal toads, and that the analysis in the modified final EIS shows timber
removal will damage this habitat. Therefore, objectors contend that use of the exception does not
comply with the 2001 Roadless Area Conservation Rule.
Table 193 (MFEIS, pp. 354-360) shows potential treatment identified by WDFG in Colorado
River cutthroat trout and boreal toad habitat over 10,164 acres in six inventoried roadless areas
using exception 294.13(b)(1)(i). The modified final EIS describes effects to Threatened,
Endangered, and Sensitive species and those dependent on large areas of undisturbed land on
pages 368-370. The Aquatics Report analyzes the effects of proposed activities on Colorado
River cutthroat trout and boreal toads. The Biological Evaluation contained in the Aquatic Report
concludes that activities “May Impact Individuals…. but is Not Likely to Result in Loss of
Viability… nor Cause a Trend Toward Federal Listing” for both species.
Also see conclusion for Range of Alternatives Issue 1.
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Conclusion
The modified final EIS analyzes the effects of the modified proposed action on Colorado River
cutthroat trout, boreal toads, and all other TEPS species. The Biological Evaluation in the
Aquatics Report provides further information and conclusion of effects for the two species for
which exception 294,13(b)(1)(i) is used.
Issue 5
Objectors assert that the U.S. Forest Service Regional Roadless review process fails to disclose
information to the public, which prevents meaningful and informed public review.
Response
The use of exceptions under the 2001 Roadless Area Conservation Rule is contingent upon the
appropriate level of review. In March 2012, USDA Secretarial Memo 1042-157 delegated
authority for the use of exceptions to the Chief of the Forest Service. In June 2012 and October
2018 subsequent delegations moved approval levels to Regional Foresters. The Regional
Roadless review process allows the Regional Forester to ensure thorough reviews and
appropriate levels of approval for activities in inventoried roadless areas. These implementing
procedures are designed to apply consistent application of exceptions allowed under the 2001
Roadless Area Conservation Rule, rather than offering another public review process.
Public participation components to allow for input as individual treatment proposals are
developed are included in the modified final EIS, Appendix A on pages 8, 18, 75, and 136. These
opportunities apply across the LaVA assessment area, including within inventoried roadless
areas, and are intended to be in effect over the life of the project.
Conclusion
There is no legal requirement nor intent to provide for public review during the Regional
Roadless review process. Appendix A of the modified final EIS includes several opportunities for
public involvement through development of individual treatments. I find that the project
adequately allows for meaningful and informed public review through this avenue.
Also see conclusion for Range of Alternatives Issue 1.
Recreation
Issue 1
Objectors assert that the project does not limit how much {timber} can be cut even in
recreational areas. The proposal fails to analyze impacts to areas designated as recreational.
Response
Environmental impacts from the proposed treatments to recreation resources were assessed and
documented in Table 2 (p. 11) of the modified final EIS. To conserve and protect recreation
resources while enhancing recreation opportunities, project design features were developed in
modified final EIS, Appendix A – Adaptive Implementation and Monitoring Framework (page
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57). Indicators were also developed to measure potential impacts to recreation resources and
activities from LaVA project implementation (MFEIS, p. 57).
Individual vegetative treatments will be authorized in pre-defined treatment opportunity areas.
Treatment opportunity areas were established by considering places where vegetation treatments
will conform to applicable laws, regulations, policies, LRMP direction, and the project purpose
and need (reissued draft ROD, p. 18). Figure 2 on page 19 of the reissued draft ROD depicts the
locations of all the treatment opportunities areas, including the recreation emphasis areas.
Additionally, for location reference, the treatment opportunity areas correspond to management
area direction and boundaries outlined in the LRMP. For instance, Table 7 on page 22 of the
reissued draft ROD displays each management area (i.e. Management Area 8.21 Develop
Recreation) that falls within the recreation emphasis treatment opportunity area, and it outlines
the acres to be treated and the acres that cannot to be treated in each management area. This table
also clarifies that a total of 70,668 acres within the recreation emphasis areas can be treated,
while 61,564 acres cannot be treated.
Conclusion
Based on a review of the project record, I find that the Responsible Official properly analyzed
the impacts of the purpose action on recreation emphasis treatment opportunity areas. This
analysis has allowed the Responsible Official to determine that 61,564 acres will not be treated
within recreation emphasis areas. I have further determined that vegetation treatments within the
recreation emphasis areas will comply with applicable laws, regulations, policies, LRMP
direction, and the project purpose and need.
Issue 2
Objectors assert that the concept of multiple use has and will likely be challenged by a project of
this magnitude in that: a) large areas of the forest will be unavailable/restricted to the public
during various phases project, b) considerable new changes will occur both in terms of access
as well as the distribution of users across the Forest, and c) use of the forest may be forever
altered due to the project length (15 years) and size (360,000 acres)and proposed activities
(logging, temporary road building, etc.).
Response
The purpose of the project is to respond to changed forest vegetation conditions caused by the
bark beetle epidemics on the Medicine Bow National Forest. The 2003 Medicine Bow National
Forest Revised LRMP guides natural resource management activities and provides an overall
strategy for managing the Forest. The intent of the direction in the LRMP is to manage National
Forest System lands for multiple uses. (Recreation Report, p. 29). The modified proposed action
has been designed with and include recommended best management practices, and design
criteria which if effectively implemented, would be consistent with the recreation resource
LRMP standards, guidelines, and goals.
Environmental impacts from the modified proposed action were assessed and documented in
Table 2 (pp. 9-12) of the modified final EIS. Chapter 1 of the modified final EIS identifies and
describes the changes and updates made in terms of analysis modifications, to the modified final
EIS. On page 36 of the reissued draft ROD, the Responsible Official acknowledges that the
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modified proposed action will generate significant short-term effects but is the environmentally
preferred alternative when considering an intermediate-term and long-term perspective.
Furthermore, the Responsible Official discloses that the proposed vegetation treatments over the
next 15 years could change the natural appearance of some areas and disperse recreationists,
amongst other impacts (MFEIS, p. 371). The LaVA project would likely negatively affect the
recreation experience for some forest visitors in localized treatment areas. Displacement from a
certain location would be the main negative effect to the public along with disturbance, but the
effects would be short-term, and no significant negative impacts are anticipated to recreation
resources. (Recreation Report, p. 4). Developed recreation would likely not see any significant
difference with the modified proposed action alternative, as most hazard trees in developed areas
have been removed and are addressed annually. (Recreation Report, p. 29).
Conclusion
Based on a review of the project record, I find that the Responsible Official properly analyzed
impacts of the modified proposed action on recreation and other Forest uses. On page 34 of the
reissued draft ROD, the Responsible Official acknowledges that the proposal will not please all
interests, but will most reasonably balance the need for aggressive response to the impacts of the
bark beetle epidemic, while being consistent with the Forest Service’s mission and mandates
under law, regulation, and policies for managing the Medicine Bow National Forest.
Continental Divide National Scenic Trail (CDNST)
Issue 1
Objectors assert that the modified final EIS fails to adequately analyze impacts to the
Continental Divide National Scenic Trail (CDNST). In particular, objector contend that the
modified final EIS lacks site-specific information required to evaluate the effects of the modified
proposed action on the CDNST and to ensure consistency with the nature and purposes of the
trail.
Response
The National Trail System Act as codified at 16 USC 1241-1249, Forest Service Manual (FSM)
2353.4 (various chapters and paragraphs), and the 2009 CDNST Comprehensive Plan provide
direction for the management of the CDNST. The 2003 Medicine Bow LRMP provides
management direction specific to the portions of the CDNST within the forest boundaries.
Approximately 47 miles of the trail is located in the project area.
The nature and purposes of the CDNST are “to provide for high-quality scenic, primitive hiking
and horseback riding opportunities and to conserve natural, historic, and cultural resources along
the CDNST corridor” (CDNST Comprehensive Plan 2009).
The National Trails System Act at 16 U.S.C. § 1246(a)(2) indicates that management in the
vicinity of the CDNST while it traverses management areas that are subject to development or
management is acceptable, but should be designed to harmonize with the CDNST as possible:
“Development and management of each segment of the National Trails System shall be designed
to harmonize with and complement any established multiple-use plans for that specific area in
order to insure continued maximum benefits from the land.”
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In a number of documents for establishment of the trail, it is noted that the trail overlaps with
highly managed areas and that the trail was not to be a reason to curtail active management of
various resources. 16 USC 11246 (c) explains that, “Other uses along the trail, which will not
substantially interfere with the nature and purposes of the trail, may be permitted by the
Secretary charged with the administration of the trail.” The wording above recognizes multiple
uses and seeks to moderate impacts on the trail from resource management to the extent feasible
while meeting resource management objectives. In this project, removal of dead and down trees
is a key objective for safety from falling trees and potential wildfire.
Neither the modified final EIS nor reissued draft ROD document how the conclusion of no
substantial interference was determined. However, impacts to the trail corridor and trail users are
discussed. Those impacts are considered minimal and exist for short periods of time. The
following in the project record describe impacts to the CDNST and the processes for making
project decisions where concerns for the CDNST or other scenic and recreation would be
addressed:
The reissued draft ROD states that any vegetation management that occurs near the CDNST is
compliant with the National Trails System Act, see page 43:
The decision to implement the authorized road and vegetation treatment activities does
not substantially interfere with the nature and purposes of the Continental Divide
National Scenic Trail and, therefore, is compliant with the National Trails System Act, as
amended.
There will be some visual impacts to the CDNST. The impacts associated will vegetation
management will be shorter in duration that the impacts associated with downfall of trees killed
by the mountain pine beetle:
Environmental Consequences, Direct and Indirect Effects – Recreation, Modified Proposed
Action (MFEIS, p. 341)
However, some users could perceive negative visual impacts along some trails, especially
along the Continental Divide National Scenic Trail that traverses three accounting units.
Recreation project design features 7 and 8 have been developed to minimize impacts to
the Continental Divide National Scenic Trail (see Appendix A, attachment 2).
Environmental Consequences, Cumulative Effects – Recreation, No Action Alternative,
Current Management (MFEIS, p. 342)
The Continental Divide National Scenic Trail and National Forest System trails would
continue to have tangled downfall on and along trails in timbered areas with dead trees.
Annual maintenance along the trails would not keep up with the increasing number of
trees that would be on the trails over time. More trails may become unavailable for use
or may need to be closed if no treatments occur.
Environmental Consequences, Cumulative Effects– Recreation, Modified Proposed Action,
Current Management (MFEIS, pp. 342-343)
If treatments along the Continental Divide National Scenic Trail or National Forest
System trails are implemented, the cumulative buildup of fallen trees along and on
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portions of the trails would be reduced in treatment areas. The noticeable effects of the
treatments on visual characteristics would be the new disturbance to areas.
In many areas with heavy beetle kill, visual characteristics have declined a due to the
number of dead trees, constant tree fall, and jack-strawed areas of dead beetle-killed
trees. In treated areas, visual characteristics would improve over time, likely faster than
in untreated areas. Perceived negative visual characteristics may not be as noticeable
when a clear trail corridor is visible. Treatments would allow overhead hazards and
downed logs to be removed along and adjacent to the trails, allowing annual
maintenance other than trail clearing.
The forest will apply the following project design features and standard operating procedures to
maintain the nature and purpose of the CDNST:
(DF-REC-4) Minimize overlaying skid trails/haul roads on non-motorized system trails.
If trails are used as skid trails and haul roads, they will be returned to pre-existing
conditions. Trail widths will not be increased.
(DF-REC-5) When timber harvest activities preclude use of a nearby trail, a) notify the
public; b) consider identifying timeframes for safe travel on the trail; c) if harvest is
expected to preclude use for more than one season and a detour is feasible, provide a
detour; and d) place warning signs on all trail access points and along the trail where
treatment activities are occurring.
(DF-REC-7) To the maximum extent possible, alternate route(s) or detours will be used
during treatment implementation to allow continued use of the Continental Divide
National Scenic Trail and to mitigate scenery management impacts during vegetation
management operations. (MFEIS Appendix A. p. 56.)
(DF-REC-8) No skidding is allowed on or across the Continental Divide National Scenic
Trail without prior coordination with the local recreation staff. Any skidding that is
allowed on or across the trail will be located to limit damage to the trail and will be
rehabbed back to pretreatment condition. (MFEIS, Appendix A. p 57.)
(DF-SCN-1) In all treatment areas, follow general direction and associated standard and
guidelines in the Visual Resource Management section of the forest plan (pp. 2-52 to 2-
53).
The project implementation process, which relies on public involvement, requires analysis of the
project area (MFEIS, Appendix A, p 14) and field review of projects (MFEIS, Appendix A, p.
15). The LaVA pre-treatment standard operating procedures (MFEIS, Appendix A, p. 68)
identifies steps to be taken prior to treatment. The steps to be taken for Recreation are found on
page 71, for Trails on page 72, and for Visual Resources on page 75.
The process above incorporates site specific concerns into project design and implementation for
activities affecting recreation, trails and scenery. Regarding the interference to the nature and
purposes of the CDNST from these activities, the processes outlined seek to minimize the
impacts to the CDNST or other recreation and scenic resources.
The implementation process described in Appendix A of the modified final EIS provides for site
specific consideration of projects. At that time, the design can incorporate measures to address
consideration of activities in the vicinity of the trail in order to maintain a more primitive setting
or less visual impact.
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Conclusion
Based on my review of the project record, I find that the Responsible Official has properly
followed direction in the Medicine Bow LRMP, FSM2350, the CDNST Comprehensive Plan and
the National Trails System Act (as codified at 16 USC 1241-1246) in the development of the
LaVA project.
I instruct the Responsible Official to adopt the following minor revisions:
• Correct the error in DF-SCN-1. This design feature should reference “Forest Plan, Scenery
Management Section, page 1-56.”
• Include the Continental Divide National Scenic Trail Vegetation Treatment – Best Practices
guide in the Trails portion of the LaVA pre-treatment standard operating procedures.
Issue 2
Objectors assert that the reissued draft ROD fails to document how the decision will affect the
CDNST.
Response
FSH 1909.15 Chapter 26.2 Record Decision requires that agencies (1) state what the decision is,
(2) identify all alternatives considered and identify factors considered in making the decision,
and (3) state whether all practicable means to avoid or minimize environmental harm have been
adopted, and if not, why they were not adopted. A monitoring and enforcement program should
be summarized for any mitigation.
On page 36 of the reissued draft ROD, the Responsible Official acknowledges that the modified
proposed action will generate significant short-term effects but is the environmentally preferred
alternative when considering an intermediate-term and long-term perspective. He further
acknowledges that the proposed vegetation treatments over the next 15 years could change the
natural appearance of some areas and disperse recreationists, amongst other impacts (MFEIS, p.
371). The LaVA project would likely negatively affect the recreation experience for some forest
visitors in localized treatment areas. Displacement from a certain location would be the main
negative effect to the public along with disturbance, but the effects would be short-term, and no
significant negative impacts are anticipated to recreation resources. (Recreation Report, p. 4).
Developed recreation would likely not see any significant difference with the modified proposed
action alternative, as most hazard trees in developed areas have been removed and are addressed
annually. (Recreation Report, p. 29).
Conclusion
I find that the Responsible Official adequately considered and disclosed the direct, indirect, and
cumulative effects of the modified proposed action on the CDNST.
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Issue 3
Objectors assert that the modified final EIS analysis of scenery resources and the Recreation
Opportunity Spectrum (ROD) classes is inadequate.
Response
The LaVA pre-treatment standard operating procedures require use of the Scenery Management
System as specified in 2380.31.1 and compliance with policy paragraph 2380.31.2 (MFEIS,
Appendix A, p. 75). The modified final EIS effects analysis indicates that by following
procedures documented in Appendix A of the modified final EIS, the effects will be managed to
the range that was anticipated in the LRMP. These procedures provide for scenic views of
distinctive landscapes to be addressed.
Regarding the objector’s concern that the CDNST is in a Roaded Modified ROS class, the
designation of this ROS class is an artifact of the ROS process. ROS classes that are less
modified than Roaded have an acreage requirement of at least 2,500 acres (ROS Users Guide,
page 28). That results in smaller areas of less modified ROS classes being subsumed into more
modified ROS classes in the direction for a LRMP. Within a more modified ROS class, smaller
areas can be managed for more impact.
The LRMP defines ranges of ROS classes for management areas and indicates that ROS is
mapped for specific locations. FSH 2353.44b.8 states: “Where possible, locate the CDNST in
primitive and semi-primitive non-motorized ROS classes, provided that the CDNST may have to
traverse intermittently through more developed ROS classes to provide for continuous travel
between the Montana-Canada and New-Mexico-Mexico borders.”
While the desire may be to locate the CDNST in primitive and semi-primitive non-motorized
ROS classes, it is recognized that the CDNST may be located in more developed classes. The
following statement from 16 U.S.C. § 1246(a)(2) indicates that management in those areas is
acceptable, but should be designed to harmonize with the CDNST as possible: “Development
and management of each segment of the National Trails System shall be designed to harmonize
with and complement any established multiple-use plans for that specific area in order to insure
continued maximum benefits from the land.”
Appendix A of the modified final EIS provides for site specific decision-making and
determination of effects for each project. The general effects that are presented in the modified
final EIS represent the best estimate of the types of effects. Implementation steps would take into
account the different ROS classes during project design. The project design would be held to
meet the LRMP ROS class requirements. In the situation where salvage or clean-up of a stand
disturbance event has occurred, the typical analysis of how the project would affect the ROS
class is not as useful as when operating in a green tree situation. The disturbance processes does
not recognize the ROS requirements for minimizing scale or intensity of in semi-primitive
settings. The land manager can work to minimize the impacts of the treatments on the ROS while
meeting other objectives of reducing fuel loading or improving access.
The Recreation Report describes likely effects to Semi-Primitive settings. The discussion
indicates minimal effects that would not be extensive. The report explains that: “None of the
negative impacts to the ROS settings would be of such intensity or extent that they would create
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a change in class. Design criteria have been developed to mitigate negative impacts to recreation
resources depending on the specific treatment area” (Recreation Report, p. 22).
Conclusion
I find that the Responsible Official has provided for management of the CDNST in accordance
with the LRMP. The modified final EIS and Appendix A as written address the issues raised by
the objectors and other direction which would seek to accommodate the desired ROS settings
and scenic integrity for the CDNST from the Comprehensive Plan to the extent feasible with
existing management direction.
Issue 4
Objectors assert that the modified final EIS fails to discuss the affected environment of the
CDNST corridor.
Response
The existence of CDNST in various accounting units is identified in the modified final EIS at
page 171.
There is not a discussion that specifically addresses the environment of the CDNST corridor in
the modified final EIS. The Recreation Report mentions the CDNST affected environment
briefly on page 8 and in descriptive tables on pages 12 and 13. There is not a specific discussion
of the CDNST corridor in that document. Effects of activities on the CDNST corridor are
discussed in the modified final EIS (pp. 341 and 342).
The CDNST is part of the broader landscape that this project area addresses. The CDNST was
not identified as an issue for this project, which would be a reason for a brief description of the
CDNST corridor. There is no requirement to have a detailed discussion for each of the uniquely
designated areas in the affected environment. The responsible official has discretion on how to
describe the affected environment for the alternatives (40 CFR 1502.15). The CDNST was not
considered a significant issue for the alternatives. However, the Responsible Official addressed
the CDNST in the implementation guidance in Appendix A of the modified final EIS.
The objectors’ issue concerning status of rights-of-way (in (16 U.S.C. § 1246(a)(2)) to be
described is not clear. That section of US Code has several elements. The element about
designating a right-of-way is beyond this project’s scope.
Conclusion
I find that the Responsible Official addressed the project area’s affected environment and
location of the CDNST for the project. Designating a right-of-way for the trail is outside the
scope of this project.
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Issue 5
Objectors assert that project design features fail to protect CDNST desired conditions. Objectors
also contend that project design features require a forest plan amendment.
Response
Design features do not require a LRMP amendment. Design features are developed at the project
level to address on-the-ground situations. The LRMP requires a Scenic Integrity Level of at least
moderate, so the claim that the project will be implemented and result in a level of low is
speculative and not supported by project implementation guidance and decision process.
Regarding Objective and design features on page 63 of Appendix A of the modified final EIS:
Scenic Resources Objective: To provide high-quality scenery while allowing multiple-use
management to occur.
Design Feature-1 In all treatment areas, follow general direction and associated standards and
guidelines in the “Visual Resource Management” section of the LRMP (pp. 2-52 to 2-53). (DF-
SCN-1)
The intent of DF-SCN-1 is to follow the LRMP standard for using the Scenery Management
System. The reference here is incorrect and will need to be corrected to point to page 1-56 as
shown here:
Scenery Management
Standards 1. Apply the Scenery Management System (SMS) to all National Forest System
lands. Travel routes, use areas, and water bodies determined to be of primary importance
are concern level 1 and appropriate scenic integrity objectives are established according
to the SMS.
With DF-SCN-1, project implementation will consider the CDNST and the scenic integrity
objectives developed by following DF-SCN-1 (as corrected). Application of scenic integrity
objectives in areas where the treatments are largely salvage or cleaning up of down and dead is
difficult. The vision for a natural appearing landscape in the long term is overshadowed by a
landscape that is altered by a disturbance process. The existing condition may be considered a
natural evolving process. Under the National Trails System Act, in managed areas, existing
conditions or natural evolving processes may be changed to meet multiple use objectives - 16
USC 1242 (a) (2). These objectives can include activities that temporarily deviate from scenic
integrity objectives to reach the intended scenic integrity objective over time.
The recreation design features in Appendix A of the modified final EIS (pp. 56 - 57) are intended
to address impacts to the trail experience from treatment activities. The LaVA pre-treatment
standard operating procedures provide for use of additional design features as determined though
that process. This process will address site-specific concerns at time of implementation.
The result of the current design features and the LaVA Pre-treatment standard operating
procedures would be that scenic integrity is maintained to the appropriate level considering the
area it is traversing and that the nature and purposes of the trail are maintained, other than short
term impacts. Impacts could occur at different locations on the trail for varying lengths of time.
The implementation process addresses the impacts of projects (trail closures, settings, and scenic
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integrity), so that substantial interference is avoided in conformance with LRMP requirements or
due to higher standards established (with additional design features) in project implementation.
Conclusion
Based on my review of the modified final EIS, I find that the Responsible Official has properly
developed design features and provided for site-specific project design in order to consider the
CDNST and concerns about other resources. The LaVA pre-treatment standard operating
procedures to develop individual projects to meet LRMP requirements and identify where
projects can be developed to consider site specific information and concerns. To further ensure
proper consideration of the CDNST, I am instructing the Responsible Official to correct DF-
SCN-1 in the modified final EIS, Appendix A to reference the Scenery Management section of
the LRMP (pp. 1-56).
Issue 6
Objectors assert that the modified final EIS fails to disclose cumulative effects associated with
the North Savery project.
Response
The North Savery project is included in Table 199 of the modified final EIS, which identifies
reasonably foreseeable projects considered in the cumulative effects analysis (MFEIS, p. 383).
The ROD for North Savery indicates that 2.17 miles of the CDNST are located within one-half
mile of projects (ROD, North Savery, May 2019, p. 19). The EIS and ROD for North Savery
indicated there would be no substantial interference with the nature and purpose of CDNST.
The recreation analysis in the modified final EIS addresses cumulative effects to the CDNST.
The analysis finds, “If treatments along the Continental Divide National Scenic Trail or National
Forest System trails are implemented, the cumulative buildup of fallen trees along and on
portions of the trails would be reduced in treatment areas. The noticeable effects of the
treatments on visual characteristics would be the new disturbance to areas” (MFEIS, p. 342).
The objector’s contention that approval of the North Savery project was inappropriately
approved is outside the scope of this objection resolution process.
Conclusion
Based on my review of the modified final EIS, I find that the Responsible Official acknowledged
and analyzed the North Savery project and its potential effects in the cumulative effects section
in the modified final EIS for the LaVA project. The decision authority for the North Savery
project is outside the scope of the LaVA decision.
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Hydrology
Issue 1
Objectors assert that the Forest Service failed to address and disclose direct, indirect, and
cumulative watershed impacts; including sedimentation impacts from temporary road
construction and use.
Response
The Hydrology Report presents a detailed evaluation of existing conditions, potential direct and
indirect impacts, and cumulative watershed effects associated with the proposed management
actions outlined in the Chapter 2 of the modified final EIS. This includes road construction,
reconstruction, use, and post-use rehabilitation activities. The “Supplemental Information on
Temporary Road Water Resources Effects” document (pp. 1-6) speaks specifically to temporary
road effects to watershed features, timing of hydrologic effects, rehabilitation techniques, and
results of past monitoring. This information is summarized in the modified final EIS (pp. 297 –
321; Tables 180-183, and 185). Furthermore, the analysis in the Hydrology Report was
completed for overall watershed conditions, as well as the12 individual indicators related to the
Watershed Condition Framework (Hydrology Report pp. 11-26, 43; MFEIS, Appendix A, p. 31;
MFEIS pp. 297-321). Potential impacts to each indicator for each alternative, along with the
rationale behind the assessed effect(s) are displayed for:
• Water quality (including impaired waters, erosion, and sedimentation);
• Water quantity (including changes in flow type, volumes, timing, and duration associated
with changes in forest canopy cover);
• Aquatic habitat (fragmentation, large woody debris, channel shape and function);
• Aquatic biota (native species, exotic or invasive species);
• Riparian and wetland characteristics;
• Hill slopes and soils (mass wasting, soil productivity, erosion, contamination);
• Fire regime (including wildfires);
• Changes in forest or rangeland vegetative characteristics;
• Invasive species; and
• Forest health associated with insects and disease.
No potential impairments were identified for any of these indicators due to the required inclusion
of project design criteria, best management practices, Region 2 Watershed Conservation
Practices, LRMP standards and guidelines as listed in the Hydrology Report on pages 20-21 and
47-51. Additionally, required project-specific resource protection measures and adaptive
monitoring are listed throughout the modified final EIS, Appendix A – Adaptive Implementation
and Monitoring Framework. These include project decision triggers, design features, standard
operating procedures, and monitoring related to watershed conditions and individual indictors.
Attachment 1: LaVA Decision-Making Triggers 1, 10, and 11 all pertain to conserving watershed
related resources. Attachment 2: LaVA Project Design Features includes required practices for
Hydrology and Wet Areas (p. 58), Soils (pp. 60-61), and Temporary Road Construction,
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Landings and Skid Trails (p. 62). Attachment 4: LaVA pre-treatment standard operating
procedures includes additional resource protection measures for Soils, Hydrology, and Wet Areas
(pp. 72-73); and Transportation System/Temporary Roads/Stream Crossings (p. 75). Attachment
5: LaVA post-treatment standard operating procedures includes follow-up rehabilitation and
monitoring required for Soils, Hydrology and Wet Areas (p. 78), as well as Transportation
System/Temporary Roads/Stream Crossings (p.79).
Conclusions
I find that the Responsible Official adequately analyzed, addressed, and disclosed existing
conditions, direct and indirect effects, and cumulative effects to watershed conditions and
associated indicators in sufficient detail, and at a sufficient scale, for the public and the
Responsible Official to make reasoned comparisons between Alternatives. Similarly, I have also
determined that temporary road impacts on water quality and aquatic habitats were sufficiently
analyzed, addressed, and disclosed. The Responsible Official included appropriate project design
criteria, best management practices, Region 2 Watershed Conservation Practices, LRMP
standards and guidelines, as well as project-specific practices such as project design features,
decision triggers, standard operating procedures, and monitoring to ensure maintenance or
improvement of watershed conditions and individual contributing indicators.
Issue 2
Objectors assert that in order to analyze potential changes to water quality, the modified final
EIS should have included current water quality data and monitoring information. This
information is important to guide management decisions and serve as baseline data for future
monitoring and evaluation of potential influence on downstream water quality. Additionally, the
modified final EIS should provide baseline information for current levels of road-related
sedimentation.
Response
Quantitative monitoring of water quality is performed by the Wyoming Department of
Environmental Quality (DEQ) and reported as part of the State’s 305(b) and 303(d) program. The
Wyoming DEQ’s 2016/2018 Integrated 305(b) and 303(d) Report was used and discussed in the
analysis of water resources and watershed conditions (Hydrology Report pp. 15-17; MFEIS, p.
299). Only five stream segments within the analysis area had impaired or threatened water
quality; all other streams in the analysis area met State assigned beneficial uses and
corresponding water quality standards. For the five stream segments identified as not meeting
their assigned beneficial uses, the DEQ identified heavy metals contamination as the cause. Both
the Hydrology Report and the modified final EIS state that “Timber harvest, fuels treatments,
and road construction generally have little direct effects on water quality related to heavy metal
contamination.”
Qualitative monitoring is routinely conducted by the Forest Service in the form of site
inspections performed throughout project implementation, as well as more formally during Best
Management Practices (BMP) implementation and effectiveness monitoring. BMP monitoring
results for implementation and effectiveness on the Medicine Bow National Forest is presented
in the Hydrology Report on pages 20-21. Additionally, BMP monitoring conducted by Wyoming
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State Forestry “found projects on National Forest System lands within Wyoming have a BMP
application rate of 96 percent, and were 97 percent effective in providing adequate protection
(WSFD, 2014b).” Additionally, the “Supplemental Information on Temporary Road Water
Resources Effects” document (pp. 1-6) speaks specifically to temporary road effects to watershed
features and water quality, timing of hydrologic effects, rehabilitation techniques, and results of
past monitoring.
Conclusion
I find that the Responsible Official adequately analyzed, addressed, and disclosed existing
conditions, including use of all available baseline data (both internal and external sources), as
well as potential changes to overall water quality resulting from proposed project activities,
including road-related activities.
Clean Water Act (CWA)
Issue 1
Objectors assert that the Forest Service improperly relies on project design features to ensure
compliance with the CWA Specifically, objectors contend:
• The Forest Service fails to disclose if any stream segments in the project area are listed
on the 303(d) list of impaired waters for other contaminants, including turbidity. The
analysis fails to assess whether the project could exacerbate the subwatersheds already
classified as functioning at risk. And the Framework in the modified final EIS, Appendix A
does not address 303(d) impaired waters.
• The Forest Service has failed to coordinate with the U.S. Army Corps of Engineers to
determine the necessity of CWA Section 404 permits.
Response
Assessment of water quality for each of the 6th level watersheds as it relates to the Watershed
Condition Framework is presented in detail in the Hydrology Report on pages 11-12, 15-17,
Table 3 on pages 23-26, and effects analysis presented on pages 27-38.
The modified final EIS also includes a summary of this analysis on pages 300-301 and Figure
59. It states:
“This assessment showed most watersheds within the analysis area are functioning
properly with regards to water quality. The exceptions were Haggarty Creek, North Fork
Little Snake River, and Encampment River-Billie Creek. The Haggarty Creek and the
Roaring Fork Little Snake River impairment information has been disclosed above.”
[referencing the heavy metal contamination identified by the Wyoming 2016/2018
Integrated 305(b) and 303(d)].
“The Encampment River-Billie Creek sixth-level watershed is functioning at risk and
recovering from a breach in an irrigation ditch that created gullies and introduced
sediment into Billie Creek (USDA Forest Service 2002). While physical stream channel
and habitat features in Billie Creek are still recovering, Wyoming Department of
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Environmental Quality monitoring in 2003 found a healthy benthic community (Wyoming
Department of Environmental Quality 2018).”
Table 180 shown on page 311 of the modified final EIS provides a summary comparison of water
quality for each alternative. Proposed activities are not expected to change impaired waters for
either alternative. Ground disturbing activities are noted as having the potential to increase
erosion and sedimentation.
Impaired waters listed on Wyoming’s 2016/2018 Integrated 305(b) and 303(d) Report were
specifically considered and discussed in the Hydrology Report on page 15-17 and the modified
final EIS Water Quality section on page 299, which states:
“Water Quality According to Wyoming’s 2016/2018 Integrated 305(b) and 303(d) Report
(Wyoming Department of Environmental Quality 2018), five stream segments in the
analysis area have impaired or threatened water quality due to heavy metals: Roaring
Fork Little Snake River (1.8 miles), Haggarty Creek (5.6 miles), West Fork Battle Creek
(4.9 miles), Bear Creek (0.7 miles), and Rambler Creek (0.5 miles). Documentation of
heavy metal contamination in other streams is sparse and contamination is not believed
to be a significant problem. The five streams with elevated heavy metals are believed to
be outside the range of natural variability for water quality. Timber harvest, fuels
treatments, and road construction generally have little direct effects on water quality
related to heavy metal contamination.”
Project design criteria and best management practices to minimize potential impacts to water
quality, including impaired water bodies, are listed in the Hydrology Report (pp. 20-21, and
Appendix C, pp. 47-51). Project decision triggers, design features, standard operating
procedures, and monitoring related to water quality are included throughout the modified final
EIS, Appendix A – Adaptive Implementation and Monitoring Framework. Attachment 1: LaVA
Decision-Making Triggers on page 50 lists the very first Decision Trigger as dealing specifically
with water quality through the required maintenance or long-term improvement of stream health
and compliance with State of Wyoming designated uses for surface waters. Attachment 2: LaVA
Project Design Features includes required practices for Hydrology and Wet Areas (p. 58), Soils
(pp. 60-61), and Temporary Road Construction, Landings and Skid Trails (p. 62) all designed to
ultimately protect water quality. Attachment 4: LaVA pre-treatment standard operating
procedures includes additional resource protection measures for Soils, Hydrology, and Wet Areas
(pp. 72-73); and Transportation System/Temporary Roads/Stream Crossings (p. 75). Attachment
5: LaVA post-treatment standard operating procedures includes follow-up rehabilitation and
monitoring required for Soils, Hydrology and Wet Areas (p. 78), as well as Transportation
System/Temporary Roads/Stream Crossings (p.79).
The Forest Service National BMP Program is the agency’s nonpoint source pollution control
program for achieving and documenting protection of water quality consistent with the CWA,
State regulations, and other requirements. The National BMP Program is modeled after a
successful 20-year-old regional BMP program in the Forest Service Pacific Southwest Region
(Region 5). BMP implementation and effectiveness on the Medicine Bow National Forest is
presented in the Hydrology Report on pages 20-21. Additionally, BMP monitoring conducted by
Wyoming State Forestry “found projects on National Forest System lands within Wyoming have
a BMP application rate of 96 percent, and were 97 percent effective in providing adequate
protection (WSFD, 2014b).”
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Compliance with Executive Order 11990 - Wetlands Management and Executive Order 11998 –
Floodplain Management was addressed in the Hydrology Report (pp. 6-7), as well as the
modified final EIS, Appendix B – Response to Comments (p. 82). Both state the Forest Service
would coordinate with the Army Corps of Engineers, under Section 404 of the Clean Water Act,
and mitigate for impacts to wetland habitats in order to comply with Executive Order 11990. The
Forest Service would coordinate with Federal Emergency Management Agency and local
floodplain managers as needed to reduce the risk of flood loss, restore and preserve the natural
and beneficial values in floodplains, and minimize the impacts of floods on human safety, health,
and welfare in compliance with Executive Order 11998.
Avoidance and minimization measures such as project design criteria, best management
practices, Region 2 Watershed Conservation Practices, and project pre- and post-treatment
standard operating procedures would be used during project planning and implementation such
that the need for any wetland or floodplain permitting would be limited to only where absolutely
unavoidable. It was estimated only 0.8 mile of temporary road construction could potentially be
constructed through wetlands, and 12 miles potentially located within the Water Influence Zone,
over the next 15 years under the LaVA project (Hydrology Report pp. 34, 37). Any permitting
needs and coordination with the U.S. Army Corps of Engineers and/or floodplain managers will
be considered and addressed during individual project implementation in accordance with
modified final EIS, Appendix A: Adaptive Implementation and Monitoring Framework,
specifically during the project field validation and project review phases.
Conclusion
I find that the Responsible Official adequately analyzed, addressed, and disclosed existing
conditions and changes to water quality, including impaired waters listed on the Wyoming
Integrated 305(b) and 303(d) Report; potential impacts to regulatory floodplains and wetland
habitats; and appropriate project design criteria, best management practices, standard operating
procedures, monitoring, and decision triggers were included to ensure maintenance or
improvement of water quality in accordance with State assigned beneficial uses; wetland habits;
and floodplain processes. I concur with the Responsible Official and conclude that the LaVA
project complies with the Clean Water Act and Executive Order 11990 - Wetlands Management
and Executive Order 11998 – Floodplain Management.
Soils
Issue 1
Objectors assert that the Soils Resource Report improperly cites its associated references.
Response
CEQ NEPA regulations require agencies to ensure the professional integrity, including scientific
integrity, of the discussions and analyses in environmental impact statements, identify any
methodologies used, and make explicit reference to the scientific and other sources relied upon
for conclusions in environmental impact statements.
Two and half pages of reference literature is listed in the “References” section of the Soils
Resource Report (pp. 33-35) and are also posted to the project folder in electronic file format.
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Most of the in-text citations correspond to those listed in the Reference section. However, as the
Objector points out, several in-text citations do not have a corresponding reference listed or vice
versa, a reference is listed but was not cited in the main body of the report. Specifically, the in-
text citation of Overland 2017 pertaining to the soil modeling, is missing from the reference list.
Conclusion
I find that although most references are properly cited within the Soils Resource Report, a key
reference pertaining to the soil model used in the effect analysis, is omitted. I am instructing the
Responsible Official to correct the in-text literature citations and update the Reference list to
ensure that all the applicable scientific literature, law, regulation, policy, and opposing science is
accurately portrayed throughout the Soils Resource Report, and corresponding section of the
modified final EIS.
Issue 2
Objectors assert that the Forest Service does not have the adequate staffing to perform
additional site-specific soils analyses and monitor the temporary road construction as
referenced in the Soils Resource Report. Objectors contend that that site-specific analyses
outlined in Appendix A of modified final EIS could be side-stepped due to lack of personnel.
Response
The reissued draft ROD requires the use of the Adaptive Implementation and Monitoring
Framework (reissued draft ROD, pp. 9, 24-27). The Adaptive Implementation and Monitoring
Framework outlines the process for site-specific project planning by interdisciplinary teams.
Various soil, watershed, and engineering professionals are located across the Forest to participate
in this process to guide management actions and road location and design to minimize impacts to
soils and watershed conditions. Pre- and post-treatment standard operating procedures for soil
resources and temporary roads are outlined in Appendix A of the modified final EIS on pages 72-
73 and 78-79, respectively. Required monitoring and reporting is also included in the Adaptive
Management framework (MFEIS, Appendix A, pp. 80-81).
Soils will be monitored for detrimental soil disturbance using the Forest Service National Soil
Disturbance protocols in the first, third, and fifth years following treatment by soil scientists,
hydrologist, or both (MFEIS, Appendix A, p. 80). Construction of temporary roads will be
monitored to ensure these roads are decommissioned, temporary drainage structures removed,
effective rehabilitation, and prevention of unauthorized motorized use through site inspections
conducted during implementation by Sale Administrators; and in the first and third years
following rehabilitation by soil scientists, hydrologists, and botanists (MFEIS, Appendix A, p.
80, Monitoring Item 8b – Transportation System, Temporary Roads System).
Conclusion
I find that the Responsible Official has adequately included the appropriate interdisciplinary
team to conduct site-specific project planning and monitoring. They included appropriate project
design criteria and pre- and post-treatment standard operating procedures to minimize the effects
of project implementation on soil resources.
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Issue 3
Objectors assert that there are errors and need for clarification for multiple tables, abbreviations,
acronyms, and assumptions used in the soil analysis and modeling.
Response
Specific questions and comments from the Objector regarding information presented in the
various tables associated with the model input parameters are listed below:
• Table 1 – In the fourth column from the end, the abbreviation P/N is unidentified.
▪ The abbreviation P/N appears to be a shortened form of the project “Purpose and Need”
(p. 5) However the abbreviation is not defined within the Soils Resource Report.
• Tables 2 - 7 - What were the model inputs, associated units (where appropriate), and
parameter definitions?
▪ Tables 2 - 7 have corresponding descriptions that present brief definitions and parameter
values for each of these seven primary model inputs on pages 8 - 12 of the Soils Resource
Report. Additionally, more detailed discussion, definitions, and interpretations of each
parameter set is contained in Overland (2017) within the project file. Also, the seven
primary inputs are listed for the Inherent Wetness Model (IWM) on page 5 and 6 of the
Soils Resource Report.
• Table 10 – In the middle of the page, this table shows 3,373 miles of road. How does this
“square” with the 600 miles of new road for this project?
▪ The miles of roads depicted in Table 10 in the “Road Segment Analysis of Existing
Transportation Network” section depict the existing road system contained in the GIS-
based INFRA database (Soils Resource Report, pp. 12-13). These include Maintenance
Levels 1 through 5, as well as non-Forest System roads. This report section and
corresponding data displayed in Table 10 are part of the overall discussion of existing
resource conditions and therefore does not include discussion of the potential need for up
to 600 miles of temporary roads that is associated with the Action Alternatives. A general
discussion of potential resource effects associated with construction of up to 600 new
miles of temporary roads is presented on pages 22 and 29-30, and Table 15 of the Soils
Resource Report.
• Page 13 - In first paragraph under Equivalent Clearcut Area –How is “management
activities” defined? It seems activities requiring some level of management would be much
more diverse than those mentioned here. HUC is not defined. An 80-year recovery time for
all activities is general and highly variable. What is the definition of recovery?
▪ The discussion presented on page 13-14 of the Soil Resource Report referencing the
Equivalent Clearcut Area (ECA) Model and 6th level HUC watersheds is a summary
taken from more detailed discussion, analysis, and modeling found throughout the
Hydrology Report. The ECA “model takes all land management activities (timber
harvesting, road building, and ski areas) and fire history into account” (p. 13). The
Hydrology Report states that “ECA is used to assess cumulative effects of vegetation
treatments and roads” on peak streamflows (p. 19) and that “all Forest Service activities
(harvest, site preparation, fire history, transportation, recreation, etc.) are evaluated” as
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part of the ECA model based on the percentage of basal area removed by each activity
(Hydrology Report, Appendix B, pp. 44). The acronym “HUC” stands for “Hydrologic
Unit Code” (Hydrology Report, page 13). Appendix B of the Hydrology report (p. 44)
states “the time scale for recovery from a clearcut to 100 percent forested area is 80
years.” Recovery time varies based on the forest tree species present for a given region.
Conclusion
I find that the Soils Resource Report adequately presented brief summaries of the models used as
management indicators, and appropriately referred to more detailed discussions of each model
and associated parameters contained within references posted to the project file, or to supporting
information in the Hydrology Report.
Issue 4
Objectors assert that the Forest Service failed to provide an assessment of landslide risks in the
project area and how the modified proposed action would affect such risk.
Response
The Soils Resource Report and the modified final EIS include evaluations of mass wasting (i.e.
landslide risk). Mass wasting is defined as “slope movement or mass movement where soil
and/or rock move downslope typically in a mass, largely under the force of gravity, but
frequently affected by water and water content in the soil” (Soils Resource Report, p. 27). Mass
wasting was used a measure to address soil erosion and assess overall soil productivity and
stability (Soils Resource Report, Table 1, p. 5). Mass wasting was identified as a potential
environmental impact associated with temporary roads and mechanical, ground-based treatments
(Soils Resource Report, pp. 22, 24). Approximately 112,300 acres within the project area,
occurring across all 14 accounting units, were identified as having severe mass wasting potential
for both Alternative 1 and 2 (Soils Resource Report, Tables 12 and 13, p. 26; MFEIS Table 186,
p. 322). Mass wasting is also discussed in the watershed conditions comparison between
alternatives shown in Table 182 on page 313 of the modified final EIS. For both alternatives, no
effect to watershed condition is anticipated to result from mass wasting because proposed temp
road construction would avoid unstable slopes (MFEIS, p. 313).
The project file contains two maps entitled “High Mass Wasting and Severe Erosion Areas” for
both the Sierra Madre Range and the Snowy Range, that depict hill slopes identified as having
severe mass wasting potential across the project area. Associated GIS data used to create these
maps is also included in the project file for future use during site-specific project planning.
project best management practices, mitigation measures, and design criteria addressing potential
impacts to landslide risk and soil functions overall are discussed in the Soils Resource Report on
pages 18-19 and modified final EIS, Appendix A – Adaptive Implementation and Monitoring
Framework on pages 60-61 and 62-63. These incorporate practices from the Forest Service
National Core BMPs, Region 2 Watershed Conservation Practices, LRMP standards and
guidelines, and project-specific design features developed by the interdisciplinary team.
Additional resource standard operating procedures are outlined in the modified final EIS,
Appendix A – Adaptive Implementation and Monitoring Framework on pages 72-73 and 78-79.
Minimizing impacts to soil resources through the incorporation of these various measures is
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discussed in the analysis of alternatives on page 20-32 of the Soils Resource Report and pages
323-326 of the modified final EIS.
Conclusion
I find that the Responsible Official adequately analyzed, addressed, and disclosed existing
conditions and changes to mass wasting (i.e. landslide) potential; and included appropriate
project design criteria to minimize the effects of project implementation on triggering mass
wasting. An adaptive management and monitoring plan for mitigating site-specific impacts is
outlined in Appendix A of the modified final EIS and is required by the reissued draft ROD prior
to on-the-ground project implementation.
Issue 5
Objectors assert that the Soils Resource Report is incomplete in general, difficult to interpret,
and lacking in specific information.
Response
The soils analysis identified potential resource concerns associated with proposed project
activities and presents various soils resource indicators and measures used to analyze the
potential for resource effects associated with each alternative on pages 4-5 and Table 1. The
wetness indicator model was used in addition to, not as a substation for, information pertaining to
inherent soil properties associated with severe erosion hazard, severe mass wasting (i.e. landslide
potential), shallow soils, and organic matter (p. 5, Table 1). Existing resource conditions are
discussed on pages 7-16. Potential resource effects associated with the alternatives is presented
on pages 20-31 and includes consideration of both mechanized and non-mechanized vegetative
treatments, temporary roads, and prescribed burning.
Conclusion
I find that the Responsible Official adequately analyzed, addressed, and disclosed existing
conditions, direct and indirect effects, and cumulative effects to soil conditions and associated
indicators in sufficient detail, and at a sufficient scale, for the public and the Responsible Official
to make a reasoned comparison of between Alternatives their respective potential effects on soil
resources.
Issue 6
Objectors assert that the soils analysis is built more in modeling than ground truth. Much of this
is due to absence of soil information for the MBNF. Surveys have not been done for the Forest.
This is contrary to policy established in FS Manual 2500, Ch 2550.
Response
Forest Service Manual (FSM) 2550 states that qualitative or quantitative methods may be used to
assess, analyze, and monitor soil quality and effects of management activities on soils (FSM
2551.4). Examples of established protocols for both qualitative and quantitative methods are
listed in FSM 2550.6.
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The Soils Resource Report states on page 5 that a field review for the soil resources was not
available so the following data sources were used to evaluate the soil resources within the project
area:
• Medicine Bow National Forest corporate Geographic Information System (GIS) data.
• Medicine Bow National Forest corporate soil data.
• Inherent Wetness Model (IWM).
Although county-wide soil survey data is not currently available from the NRCS for Albany and
Carbon Counties in Wyoming, soil survey information is available for Forest Service lands
within those counties (correspondence from Dave Gloss, MBNF Hydrologist, May 20, 2020;
soils GIS data filed in the project file).
Conclusion
I find that FSM 2550 does not require on-the-ground soil surveys prior to project analysis and
allows for both qualitative and quantitative methods and data sources to be used to assess
existing conditions and potential effects resulting from land management activities.
Cultural and Heritage Resources
Issue 1
Objectors assert that the 2009 programmatic agreement with the state of Wyoming is not
appropriate for this project proposal, and that the Forest Service is using the 2009 programmatic
agreement to forgo identification and evaluation of cultural resources.
Response
Per the 2009 programmatic agreement between the Forest Service, Wyoming State Forestry
Division, the Wyoming State Historic Preservation Officer, and the Advisory Council on Historic
Preservation, as amended, and 36 CFR Part 800 part 4.b.2., the agency may use a phased process
to conduct identification and evaluation efforts for cultural resources when analyzing large land
areas where discrete vegetation management activities are not specifically defined. The
agreement further specifies that as Forest Service personnel develop specific vegetation
management activities, the activity will be subject to a complete cultural survey and consultation
on the eligibility and effects of the activity on identified cultural resources.
Through the scoping process of this project, consultation with the tribes and any other interested
parties was conducted to identify up front any significant traditional properties, religious
properties, historical properties, or a combination of these properties that may need protecting
once specific vegetation management activities are identified. (MFEIS Appendix B, pp. 79-80).
All surveyed and inventoried cultural resources considered eligible or unevaluated for the
National Register of Historic Places have either been excluded from the area of potential effect
or will be buffered and avoided during resource management activities. (MFEIS, p. 389).
In response to public comment, project design features were developed to protect cultural sites
that need protection; fulfill National Historic Preservation Act requirements; and avoid,
minimize, or mitigate unexpected adverse impacts to heritage resources during implementation
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of the LaVA project (MFEIS, Appendix A, p. 64). Notably, design features 1 and 3 state that
National Historic Preservation Act compliance will be completed for each treatment area prior to
treatment implementation, and site-specific implementation measures to protect or enhance
heritage resources will be determined at the time of treatment implementation.
Conclusion
I have determined that the 2009 programmatic agreement is the appropriate tool to ensure
compliance with National Historic Preservation Act and it provides the necessary protection of
cultural resources in the project area.
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