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United States
Department of
Agriculture
Forest
Service
Pacific
Southwest
Region
Regional Office, R5
1323 Club Drive
Vallejo, CA 94592
(707) 562-8737 Voice
(707) 562-9240 Text (TDD)
America’s Working Forests - Caring Every Day in Every Way Printed on Recycled Paper
File Code: 1570 Appeal No.: 13-05-00-0022-A215
Date: July 25, 2013
Erik M. Holst CERTIFIED - RETURN
P. O. Box 1605 RECEIPT REQUESTED
Placerville, CA 95667
Dear Mr. Holst:
The Forest Supervisor for the Eldorado National Forest, Kathryn D. Hardy, signed the Decision
Notice (DN) approving Alternative 1 (modified) of the Callecat Ecological Restoration Project
Environmental Assessment (EA) on April 24, 2013. The notice of the decision was published on
April 26, 2013. On June 4, 2013, you filed a Notice of Appeal (NOA) pursuant to 36 CFR 215.
I have reviewed the entire appeal record, including your written Notice of Appeal (NOA), the
DN, EA, and the supporting documentation. I have weighed the recommendation from the
Appeal Reviewing Officer and incorporated it into this decision. A copy of the Appeal
Reviewing Officer's recommendation is enclosed. This letter constitutes my decision on the
appeal and on the specific relief requested.
FOREST ACTION BEING APPEALED
The decision Alternative 1 (modified) authorizes the following activities:
Mechanically thin approximately 2,737 acres of natural stands (particularly within 100'
radius rust resistant sugar pines), and mature plantations by cutting and removing trees
between 10 inches and 30 inches dbh using whole tree yarding (2,551 acres) and skyline
logging systems (186 acres). Cut trees (4 inches to 10 inches dbh) would be brought to
landings or other designated disposal sites, made available for either biomass power
generation or public fire wood cutting. Material remaining at landings (if not removed by
previous methods) would be burned.
Pre-commercially thin, prune and/or treat slash concentrations in plantations over an
estimated 227 acres.
Reduce understory vegetation using, manual, mechanical and/or a chemical glyphosate
herbicide mixture on about 751 acres.
Appeal #13-05-00-0022-A215, Eldorado, Callecat Eco. Res., Holst 2
Cut and remove conifers infected with annosus root rot, treating tree stumps with borax
fungicide (Sporax or equivalent formulation) over approximately 60 acres, followed by
site preparation using manual, mechanical and/or glyphosate herbicide, a surfactant, or a
silicone/modified vegetable oil blend, and a colorant or dye, reforestation (planting
ponderosa pine Jeffrey pine, sugar pine, and incense cedar), release and inter-planting if
needed.
Conduct post-harvest treatments, including grapple or tractor piling of existing and
activity fuels, followed by prescribed burning up to about 5862 acres (an estimated 3125
acres are outside of commercial thinning units)
Limit vehicle access and use, stabilize eroding soils and reseed/plant native vegetation
within two dispersed campsites near Cat Creek, a dispersed campsite south of Forest
Service Road 8N42 and Unit 135. Apply borax fungicide to tree stumps post operations
at PiPi campground (Unit 112).
Apply approximately 48 miles of road reconstruction, 27 miles of maintenance and 1.5
miles of new construction temporary road needed for the project. The units that have an
anticipated need for new temporary road construction are, 153, 159 and 134, 143, and
139. Gullies would be stabilized and culvert excavated and unplugged in the area of
9N17 and Dark Canyon (Unit 130).
Block access to non-system road 9N22A and decommission.
Control 3 known populations of noxious weed via hand pulling and/or application of
glyphosate herbicides.
APPEAL REVIEWING OFFICER'S FINDINGS and RECOMMENDATION
Documentation identified during review of the appeal demonstrated compliance with applicable
laws, regulations, and policies in light of the 3 appeal issues identified in your appeal letter.
The ARO, Kevin B. Elliott, found that the project is an appropriate and reasonable response to
direction in the Eldorado National Forest Land and Resource Management Plan and is in
compliance with the plan.
The purpose and need for the project were clear. The Eldorado Forest Supervisor’s decision
logic and rationale were clear and well documented in the Record of Decision. The Forest
Supervisor was responsive to public participation, and thoroughly responded to concerns that
were identified during the scoping and comment periods.
The ARO recommended affirming the Forest Supervisor’s decision on all issues, and denying the
requested relief.
DECISION
I agree with the ARO’s analysis as presented in his recommendation letter. Some of the issues
raised in your appeal letter are similar to comments made during the comment period. All appeal
issues raised have been considered. I affirm the Forest Supervisor’s decision to implement
Alternative 1 (modified). I deny all requested relief.
Appeal #13-05-00-0022-A215, Eldorado, Callecat Eco. Res., Holst 3
The project may be implemented on, but not before, the 15th
business day following the date of
this letter in accordance with 36 CFR 215.9(b). My decision constitutes the final administrative
determination of the Department of Agriculture as per 36 CFR 215.18(c).
Sincerely,
/s/ Barnie T. Gyant
BARNIE T. GYANT
Deputy Regional Forester
Appeal Deciding Officer
Enclosure
Forest
Service Sequoia National Forest and
Giant Sequoia National Monument
1839 South Newcomb Street
Porterville, CA 93257
(559) 784-1500 / (559) 781-6650 (TDD)
(559) 781-4744 (fax)
www.fs.fed.us/r5/sequoia/
America’s Working Forests—Caring Every Day in Every Way Printed on Recycled Paper
File Code: 1570 Date: July 19, 2013 Route To:
Subject: Callecat Ecological Restoration Project
Appeal No. 13-05-00-0022-A215, Holst
Eldorado National Forest
To: Appeal Deciding Officer
I am the designated Appeal Reviewing Officer for this appeal. This is my recommendation on
disposition of the appeal filed by Erik Holst appealing the Eldorado National Forest Supervisor,
Kathryn D. Hardy, Decision Notice (DN) for the Callecat Ecological Restoration Project
Environmental Assessment (EA). The decision was signed on April 24, 2013 and the legal
notice of the decision was published on April 26, 2013.
DECISION BEING APPEALED The Amador Ranger District of the Eldorado National Forest proposes strategically placed area
fuels treatments across about 6,200 acres of National Forest System (NFS) lands for the
purpose of interrupting fire spread to reduce the size and severity of wildfire, promote diverse
healthy forests resilient and capable of producing sustainable goods and services such as wood,
fiber, water, carbon sequestration, scenic landscapes and wildlife habitats, while treating
noxious weeds and improving watershed resources associated with the Middle Fork Cosumnes
River and Cat Creek such as re-establishing vegetation in degraded dispersed camping areas,
maintaining and improving roads, stabilizing eroding channels, and removing encroaching
conifers into wet meadows within the Callecat Ecological Restoration Project area.
The main project objectives are to reduce unnaturally high fuel loadings and improve forest
health. The project area is located between the areas of Big Mountain Ridge and Cat Creek
Ridge. (T9N, R15E, Sections 15, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, and 33; T9N,
R14E, Sections 25, 26, 35, and 36; T8N, R15E, Sections 6,15 and 16; T8N, R14E, Sections 1,
2, 3, 4, 9, 11, and 12 MDB&M)
The project area falls into multiple land use allocations designated in the Eldorado National
Forest Plan, as amended by the January 2004, Sierra Nevada Forest Plan Amendment (SNFPA)
final supplemental EIS Record of Decision (ROD) including wildland urban intermix (WUI),
old forest emphasis areas, general forest, riparian conservation areas (RCA), northern goshawk
protected activity centers (PAC), California spotted owl (CSO) protected activity centers and
associated home range core areas (HRCAs). Most of project area lies within old forest
emphasis area and California spotted owl home range core areas. The desired conditions for
old forest emphasis area include stands that resemble pre-settlement conditions with high levels
of forest canopy, vertical and horizontal structural diversity. Home range core areas (HRCAs)
are desired to be large suitable habitat areas for California spotted owls dominated by trees at
least 24 inches diameter at breast height (dbh) and containing trees >45 inches dbh.
Desired conditions described in the SNFPA Record of Decision (ROD) were compared with
the existing conditions in the project area. The SNFPA ROD gives direction to “strategically
place area fuels treatments across the landscape to interrupt fire spread and achieve conditions
that: (1) reduce the size and severity of wildfire and (2) result in stand densities necessary for
healthy forests during drought conditions” across all land allocations (pg. 49). Forest-wide
standard and guidelines direct fuels treatments in conifer stands to achieve an average of 4-foot
flame lengths under the 90th
percentile fire weather conditions. Fire modeling has shown that
under current conditions over 60% of the project area would produce flame lengths of over 4
feet indicating a need for change. These needs (purpose and need), described below, provided
the basis for the proposed action.
There is a need to reduce surface fuels and alter the vegetation structure in strategically
placed areas to affect a reduction in fire severity and intensity.
There is a need to reduce stand densities and conduct forest health treatments to increase
drought tolerance and reduce the risk of mortality from insect attack or disease.
There is a need to maintain and accelerate the development of key habitat and old forest
characteristics.
There is a need to conduct vegetation treatments that are economically efficient.
There is a need to enhance hardwood resources, and associated wildlife habitat, by
reducing conifer shading and improve the growth environment for oak.
There is a need to control existing infestations prior to project implementation to prevent
the spread of noxious weeds during project implementation.
There is a need to provide effective soil cover adequate to prevent excessive erosion and
sedimentation.
There is need to maintain and improve roads to minimize erosion and provide for safe
public access.
There is need to provide support to the local economy including infrastructure that gives
value to forest products.
The Eldorado Forest Supervisor selected Alternative 1 (with modifications), as analyzed in the
Environmental Analysis for implementation. Modifications included:
Exclude mechanical ground based equipment from the Riparian Conservation Areas
(RCAs) of the main stems of Cat Creek and the Middle Fork Cosumnes River.
Apply additional design criteria (treat <10 percent per year) linked to commercial
thinning and tractor piling in the Cat Creek Watershed.
Elimination of using Nonylphenol polyethoxylate based (NPE) surfactants to treated
unwanted flammable understory vegetation.
Alternative 1 (modified) includes the following activities:
Mechanically thin approximately 2,737 acres of natural stands (particularly within 100'
radius rust resistant sugar pines), and mature plantations by cutting and removing trees between
10 inches and 30 inches dbh using whole tree yarding (2,551 acres) and skyline logging
systems (186 acres). Cut trees (4 inches to 10 inches dbh) would be brought to landings or
other designated disposal sites, made available for either biomass power generation or public
fire wood cutting. Material remaining at landings (if not removed by previous methods) would
be burned.
Pre-commercially thin, prune and/or treat slash concentrations in plantations over an
estimated 227 acres.
Reduce understory vegetation using, manual, mechanical and/or a chemical glyphosate
herbicide mixture on about 751 acres.
Cut and remove conifers infected with annosus root rot, treating tree stumps with borax
fungicide (Sporax or equivalent formulation) over approximately 60 acres, followed by site
preparation using manual, mechanical and/or glyphosate herbicide, a surfactant, or a
silicone/modified vegetable oil blend, and a colorant or dye, reforestation (planting ponderosa
pine Jeffrey pine, sugar pine, and incense cedar), release and inter-planting if needed.
Conduct post-harvest treatments, including grapple or tractor piling of existing and
activity fuels, followed by prescribed burning up to about 5,862 acres (an estimated 3,125 acres
are outside of commercial thinning units)
Limit vehicle access and use, stabilize eroding soils and reseed/plant native vegetation
within two dispersed campsites near Cat Creek, a dispersed campsite south of Forest Service
Road 8N42 and Unit 135. Apply borax fungicide to tree stumps post operations at PiPi
campground (Unit 112).
Apply approximately 48 miles of road reconstruction, 27 miles of maintenance and 1.5
miles of new construction temporary road needed for the project. The units that have an
anticipated need for new temporary road construction are 153, 159 and 134, 143, and 139.
Gullies would be stabilized and culvert excavated and unplugged in the area of 9N17 and Dark
Canyon (Unit 130).
Block access to non-system road 9N22A and decommission.
Control 3 known populations of noxious weed via hand pulling and/or application of
glyphosate herbicides.
APPEAL SUMMARY
The Callecat Ecological Restoration Project was listed in the Schedule of Proposed Actions
starting in October 2010. The scoping letter was mailed to approximately 63 local tribal
organizations, other agencies, individuals, and groups potentially interested in or affected by
the Proposed Action on December 12, 2011. A legal notice was published in the Mountain
Democrat providing an opportunity to comment on the Callecat Ecological Restoration Project
on December 16, 2011. On January 5, 2012, a letter was mailed to interested publics to notify
stakeholders of a public meeting and opportunity for a field visit hosted by the Forest Service
on January 26, 2012.
The Environmental Assessment (EA) along with a letter requesting comments on the EA were
mailed on January 17, 2013, to 25 adjacent property owners, federal, state and local agencies
and interested individuals. Concurrently, the EA was posted on the Eldorado website
http://www.fs.fed.us/nepa/fs-usda-pop.php/?project+30066 for review. On January 21, 2013, a
legal notice was published in the Mountain Democrat newspaper to solicit comment on the
complete EA.
During the scoping period, letters and a phone call providing comments were submitted by
John B. Hoffman, Mike Fallon, Chad Hanson for the John Muir Project, Michael Boitano
Agricultural Commissioner of Amador County, John D’Agostini, sheriff/public administrator
of Eldorado County, Craig Thomas for Sierra Forest Legacy, Dave Harcus for Sierra Pacific
Industries, and Levi Ford for El Dorado County Air Quality. During the comment period on
the EA, nine comment letters were received by the close of the 30-day comment period on the
EA from Dick Artley, Erik Holst, Stanely Backlund, Karen Schambach for the Center for
Sierra Nevada Conservation, Matthew Waverly, Division Forester for Sierra Pacific Industries,
Ron Zigelhofer, President for Trout Unlimited, Chuck Iley, Amador County Administrative
Officer for Amador County, Steve Brink for California Forestry Association and Craig Thomas
for Sierra Forest Legacy; eligible to appeal this decision.
The legal notice of decision was published on April 26, 2013; the deadline for filing appeals
was June 10, 2013. The current 36 CFR Part 215, Appeal No. 13-05-00-0022-A215, filed by
Holst on June 4, 2013, was timely.
The Forest Supervisor had a meeting with the appellant Erik Holst on July 12, 2013. During
their discussion, the Forest Supervisor and Mr. Holst were unable to resolve or come to
agreement on the Appellant’s issues.
REQUEST FOR RELIEF
As relief the appellant, Mr. Holst, Appeal 13-05-00-0022-A215 requests: that the Eldorado
National Forest reanalyze the Callecat Ecological Restoration Project consistent with the
mandates of an Environmental Impact Statement as opposed to the present Environmental
Assessment.
Specifically, I believe the Callecat Ecological Restoration Project has the following significant
effects and issues that must be disclosed in an Environmental Impact Statement as required by
the National Environmental Policy Act (NEPA).
A. The Callecat Project will increase the risk of cumulative watershed effects (CWE) in the
Cat Creek watershed from "moderate" to "high" and approach "very high" even after the
implementation of a number of design criteria that specifically reduce the risk of CWE. This is
acknowledged in the Hydrology Report.
B. The Cat Creek watershed is more vulnerable to CWE than the adjacent watersheds. This
is acknowledged and described in detail in the Hydrology Report.
C. The Cat Creek watershed is still recovering from past timber harvest and road-building
and the Callecat Project would conduct timber harvest and/or prescribed fire in
approximately 77 percent of that watershed. This is described in detail in the Hydrology
Report.
D. The Callecat Project does little to reduce the adverse effects of roads on aquatic habitat in
the Cat Creek watershed. Such effects have been previously acknowledged by the Forest
Service in the documents noted/referenced in the Topic Specific Attachment (below).
E. The Callecat Project would conduct timber harvest activities adjacent to 50 to 94
percent of the length of several tributaries of Cat Creek with equipment exclusion zones as
narrow as 25 feet. This carries a sizable risk of accelerated sediment delivery to those streams
and then into Cat Creek, which would likely translate into degraded aquatic habitat.
F. The Aquatic Species Biological Assessment and Biological Evaluation for the Callecat
Ecological Restoration Project is inadequate and does not meet NEPA's requirements.
ISSUES AND RESPONSES
Issue 1a
“The Callecat Ecological Restoration Project has the following significant effects and
issues that must be disclosed in an Environmental Impact Statement as required by the
National Environmental Policy Act (NEPA).”
“The Callecat Project will increase the risk of cumulative watershed effects (CWE) in the
Cat Creek watershed from "moderate" to "high" and approach "very high" even after
the implementation of a number of design criteria that specifically reduce the risk of
CWE. This is acknowledged in the Hydrology Report.” (Appeal, pp. 2, 3)
Response
40 C.F.R. 1508.27 (b)(3) defines significance for NEPA purposes: “Significantly as used in
NEPA requires consideration of both context and intensity:…The following should be
considered in evaluating intensity:…unique characteristics of the geographic area such as
proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and
scenic rivers, or ecologically critical areas.”
An Environmental Impact Statement (EIS) is not required by law, regulation or policy solely
because a project causes the risk of CWE in one watershed to rise from low to high for a
number of years. (EA, pg. 104)
The EA states “ Design features have been included in the CERP in order to prevent the Cat
Creek watershed from entering into the very high risk category of CWE: 1.) commercial timber
harvest would be implemented over a minimum of four years, and no more than 500 acres
(approximately 27 percent of the total acres) would be implemented in any single year, and 2.)
no more than 300 acres of tractor piling would occur in commercial timber harvest units in a
single year. The Decision Notice for the CERP takes into account the effects to all resources –
natural and human - in order to arrive at a Finding of No Significant Effect.” (EA, pg. 104)
Extensive site specific design features to minimize the potential for adverse impacts to water
quality and changes in peak flows are listed in Appendix C (pg. 96) of the EA and in the
Hydrology Specialist Report, Table 4.
The CWE analysis in the Hydrology report has all the elements that the Soil and Water
Conservation Handbook calls for when assessing Cumulative Watershed Effects. For example;
description of methods used (ERA model), the limitations of the ERA model, a watershed
history discussion focused on past land disturbances, a discussion of the results of the ERA
model, why the project will not cause adverse cumulative watershed effects and why the results
are not significant. (Soil and Water Conservation Handbook, Region 5, Section 2509.22,
chapter 20, sections 22-23.9)
Results of the CWE assessment indicate a short term increase in ERA is predicted but the total
ERAs still fall below the Threshold of Concern. None of the watersheds in the project area are
expected to exceed the Threshold of Concern, which is the tipping point when the proposed
action may cause adverse cumulative watershed effects. (Hydrology Report pp. 33-35) The
Soil and Water Handbook states that a 30 year recovery period is generally used in large area
planning. The Hydrology Report only takes the CWE analysis out 10 years (assumes project
implementation begins in 2014). (The Soil and Water Handbook, Region 5, Section 2509.22,
chapter 20, 25.34 Site Recovery)
I find that, the ERA model was used appropriately to assess the potential for adverse
cumulative watershed effects at the project level and all the assumptions in the model were
reasonable and follow the direction of the Soil and Water Handbook, Region 5, Section
2509.22, chapter 20.
I find that the CWE analysis was complete and that the project will not result in adverse
cumulative watershed effects. Because this project will not force any of the watersheds to
exceed the Threshold of Concern, this appeal point is not a significant issue and would not
drive the analysis toward an EIS.
Issue 1b
The Callecat Restoration Project has the following significant effects and issues that must
be disclosed in an Environmental Impact Statement as required by the NEPA.
The Cat Creek watershed is more vulnerable to CWE than the adjacent watersheds. This
is acknowledged and described in detail in the Hydrology Report.” (Appeal, pp. 2, 4)
Response
40 C.F.R. 1508.27 (b)(3) defines significance for NEPA purposes: “Significantly as used in
NEPA requires consideration of both context and intensity:…The following should be
considered in evaluating intensity:…unique characteristics of the geographic area such as
proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and
scenic rivers, or ecologically critical areas.”
See also response to Issue 13a.
“…I have decided to implement Alternative 1, the proposed action, with a modification to
exclude mechanical ground based equipment for the Riparian Conservation Areas (RCA) of the
main stems of Cat Creek and the Middle Fork Consumnes River.” (DN, pg. 1)
“For the Cat Creek watershed, design criteria would spread the implementation of the CERP
over a number of years so as to prevent that watershed from exceeding the Threshold of
Concern for CWE. As a result of the above, the risk of CWE is not significant.” (Hydrology
Report, pg. 2)
The EA states “An Environmental Impact Statement (EIS) is not required by law, regulation or
policy solely because a project causes the risk of CWE in one watershed to rise from low to
high for a number of years. Design features have been included in the CERP in order to
prevent the Cat Creek watershed from entering into the very high risk category of CWE: 1.)
commercial timber harvest would be implemented over a minimum of four years, and no more
than 500 acres (approximately 27 percent of the total acres) would be implemented in any
single year, and 2.) No more than 300 acres of tractor piling would occur in commercial timber
harvest units in a single year.” (Appendix D, pg. 104)
The Hydrology Report states, “A number of protection measures would minimize the amount
of sediment delivered to the streams as a result of the CERP. The single most important
protection measure in this regard is the zone of no ground disturbing activities (or “buffer
zones”) adjacent to streams and other aquatic features. All aquatic features in the project area
have such buffer zones, ranging from 25 feet for many ephemeral streams to 100 feet next to
the perennial stream of Cat Creek.” (Hydrology Report, pg. 16)
The Hydrologist cited current literature concerning the adequacy of the prescribed buffer
widths for this project. (Parkyn, 2004)
The Hydrology Report (pg. 17) states that ground disturbing activities would “occur in less
than 3 percent of the RCA of Cat Creek.” The Decision Notice states that that project was
modified as a result of comments received concerning the potential adverse impacts to the Cat
Creek Watershed. (DN, pg. 2) Modifications included changing the timing of activities from 2
to 4 years and limit the amount of commercial timber harvest to less than 10% of the Cat Creek
Watershed. (DN, pg. 2)
The Hydrology Report states, “In the short-term (less than five years), adverse effects to
aquatic resources (water quality and quantity, stream condition, and aquatic habitat) in the
project area and downstream of the project area are expected to be minor or negligible. This is
largely the result of the protection measures listed on page 23, Table 4. In the long-term
(greater than five years), there may be an improvement in the condition and aquatic habitat of a
number of streams in the project area. This is largely the result of the maintenance/repair of
roads and restoration of other areas that are contributing sediment to streams, such as those
items described in Table 3. As a result of the above, Alternative 1 (Proposed Action) would
meet all of the Riparian Conservation Objectives (RCOs) and associated Standards and
Guidelines (S&Gs) in the Sierra Nevada Forest Plan Amendment, Record of Decision
(SNFPAROD) of January 2004.”
The Hydrology Report utilizes appropriate BMPs (R5 FSH 2509.22, Soil and Water
Conservation Handbook, Chapter 10) to protect adverse impacts to the Cat Creek Watershed.
(Hydrology Report, pp. 17-18) This greatly reduces the likelihood that a large rainfall event –
should such a rainfall event occur – would result in adverse effects to aquatic features on a
watershed scale. The results from the model used to assess the risk of CWE indicate that the
CERP would not cause the watershed to exceed the Threshold of Concern and would not cause
the watershed to be in the very high risk category of CWE.” (Hydrology Report, pg. 31)
The ERA model was used appropriately to assess the potential for adverse cumulative
watershed effects in the Cat Creek Watershed and all the assumptions in the model were
reasonable and follow the direction of the Soil and Water Handbook, Region 5, Section
2509.22, chapter 20.
I find that the Hydrology Report listed sound design features and appropriate BMPs (R5 FSH
2509.22, Soil and Water Conservation Handbook, Chapter 10) for water quality protection.
Because this project will not cause the Cat Creek Watershed to exceed the Threshold of
Concern, this appeal point is not a significant issue and would not drive the analysis toward an
EIS.
Issue 1c
“The Cat Creek watershed is still recovering from past timber harvest and road-building
and the Callecat Project would conduct timber harvest and/or prescribed fire in
approximately 77 percent of that watershed. This is described in detail in the Hydrology
Report.” (Appeal, pp. 2, 3-4)
“I would contend that conducting land management activities such as those proposed in
the Callecat Proposed Action in a 5th field watershed that has a higher road density than
96 of the 187 5th field watersheds in the Sierra Nevada - in a watershed that the Agency
itself states is unlikely to fully meet the desired conditions - meets the standard of
significance defined by NEPA. Furthermore, I would assert that conducting thinning
activities and fuels treatments in approximately 77 percent of a 7th field watershed where
several streams have treatment units bordering 50-94 percent of their length also meets
the NEPA definition of significance. Thus, I contend that without significant expansion of
the riparian buffers, the Callecat Ecological Restoration Project needs to be reanalyzed
under the parameters of an Environmental Impact Statement.” (Appeal, pg. 6)
Response
40 C.F.R. 1508.27 (b)(3) defines significance for NEPA purposes: “Significantly as used in
NEPA requires consideration of both context and intensity:…The following should be
considered in evaluating intensity:…unique characteristics of the geographic area such as
proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and
scenic rivers, or ecologically critical areas.”
The Hydrology Report (pg. 16) discusses the effectiveness of buffer widths and provides one
citation to validate prescribed buffer widths. The DN discusses the context and intensity of the
project in terms of the level ‘significance’ for all affected resources. (DN, pp. 5-7)
“The risk of cumulative watershed effects (CWE) is currently either low or moderate in the
four watersheds that contain the CERP. Alternatives 1, 3, and 4 of the CERP would increase
the risk of CWE in each watershed for at least a few years - the risk would be high in three of
the watersheds and moderate in one watershed. For the Cat Creek watershed, design criteria
would spread the implementation of the CERP over a number of years so as to prevent that
watershed from exceeding the Threshold of Concern for CWE. As a result of the above, the
risk of CWE is not significant.” (Hydrology Report, pg.2)
The Executive Summary in the Hydrology Report (pg. 2) states “In the short-term (less than
five years), the CERP would result in minor or negligible effects to aquatic resources (water
quality and quantity, stream condition, and aquatic habitat) in the project area and downstream
of the project area. This is largely the result of the unit specific design criteria in Table 4 of the
Hydrology Report. In the long-term (greater than five years), there may be an improvement in
water quality and aquatic habitat of Cat Creek and some of its tributaries. This is largely the
result of the repairs to roads and restoration of camping areas near those streams. As a result of
the above, the CERP would meet all of the Riparian Conservation Objectives (RCOs) and
associated Standards and Guidelines (S&Gs) in the Sierra Nevada Forest Plan Amendment,
Record of Decision (SNFPAROD) of January 2004.”
My review of the literature cited in the Hydrology Report (pp. 37-38) indicates that it was
thorough, current and represents a suitable discussion of the best science available, specifically
concerning appropriate riparian buffer widths. I find that the riparian buffer widths meet the
S&Gs of the Sierra Nevada Framework (Appendix A, pp. 338-349) (DN, pp. 6-7) and complies
with the Clean Water Act (1972).
From the supporting documents, I conclude that the design features listed in the Hydrology
Report (Table 4, pg.23) and in the EA (Appendix C, pg. 96) are site specific such that the
project will not cause direct, indirect or cumulative watershed effects that would rise to the
level of significance under NEPA.
Issue 1d
“The Callecat Restoration Project has the following significant effects and issues that
must be disclosed in an Environmental Impact Statement as required by the NEPA.”
“The Callecat Project does little to reduce the adverse effects of roads on aquatic habitat
in the Cat Creek watershed. Such effects have been previously acknowledged by the
Forest Service in the documents noted/referenced in the Topic Specific Attachment
(below).” (Appeal, pp. 2, 3-4)
Response
36 CFR 220.7 describes what must be analyzed in an EA and conclusions made in the DN.
§ 220.7(b)(3) states that, “...(b) An EA must include the following:... (3) Environmental
Impacts of the Proposed Action and Alternative(s).
This is incorporated into the Forest Service Handbook, FSH 1909.15, chapter 41.23 -
Environmental Impacts of the Proposed Action and Alternative(s) states that:
An EA must include the following:
(3) Environmental Impacts of the Proposed Action and Alternative(s). The EA:
(i) Shall briefly provide sufficient evidence and analysis, including the environmental impacts
of the proposed action and alternative(s), to determine whether to prepare either an EIS or a
finding of no significant impact (FONSI). (40 CFR 1508.9);
(ii) Shall disclose the environmental effects of any adaptive management strategy. (36 CFR
220.7(b))
“Preparation of an EA is intended to provide evidence as to whether an EIS must be prepared.
A FONSI (40 C.F.R. 1508.13) presents the reasons why an action will not have significant
effects, as defined in (40 C.F.R. 1508.27), on the human environment and for which an EIS will
not be prepared” (40 C.F.R. 1508.9)
40 C.F.R. 1508.27 (b)(3) defines significance for NEPA purposes: “Significantly as used in
NEPA requires consideration of both context and intensity:…The following should be
considered in evaluating intensity:…unique characteristics of the geographic area such as
proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and
scenic rivers, or ecologically critical areas.”
Forest Service Manual 2600 sets forth FS policy for implementing the above laws with regard
to determining effects of a proposed project on botanical, aquatic and wildlife resources. The
Biological Evaluation is the document written for the “systematic interdisciplinary approach”
to the analyzing of the effects of a proposed project on Forest Service “sensitive” species. A
Biological Assessment is developed to assess effects on follow the standards established in
Forest Service Manual direction. (FSM 2672.4)
Cumulative Watershed Effects (CWEs) are a FS regionally determined protocol for
determining water quality on a specific watershed level (hydrological unit code 6, or HUC 6).
(Soils and Water Conservation Land Handbook, R5, Section 2509.22, Chapter 20)
The Callecat Decision Notice (DN) describes the Finding of No Significance. The DN states
“Alternative 1, as modified, adequately addresses environmental and social concerns when
considered in the context of all the multiple management goals related to managing the
Eldorado National Forest.” (DN. pg. 2)
Short-term adverse effects will be mitigated through implementation of Best Management
Practices and Design Criteria of the project. Mitigation measures have been incorporated into
Alternative 1 as design criteria. (DN, pg. 5)
Mitigations and project designs reduce the adverse effects of roads such that effects are not
significant are described in the Callecat Aquatics BE/BA. “Existing waterholes and other sites
such as ponds, lakes, or streams, used for water drafting would be inspected for existing
amphibians and flow levels prior to use. A Forest Service approved screen covered drafting
box, or other device to create a low entry velocity (Riparian Conservation Objective (RCO) #4,
SNFPA ROD pg. A-56), would be used while drafting to minimize removal of aquatic species,
including juvenile fish, amphibian egg masses and tadpoles, from aquatic habitats.” (Aquatics
BE/BA, pg. 12; Roads Report, pg. 3)
“To mitigate soil disturbance, landings on these units would be contour ripped to minimize
erosion problems, restore infiltration, and discourage unauthorized motor vehicle use. Primary
skid trails on these units would be ripped and then water barred. (BMP 1-17, Forest-Wide
Forest Plan Standards and Guidelines #87.” (Aquatics BE, pg. 16)
“An existing skid road in northern portion of unit 119 currently concentrating water and
sediment into the ephemeral on the north portion of the unit. After completing work between
the skid trail and the creek, recontour skid road and place slash bundles to stabilize the soil
surface and discourage unauthorized use.” (Aquatics BE/BA, pg. 16)
Other mitigation measures that protect aquatic habitat are included in the Integrated Design
Measures. (Aquatics BE/BA, pp. 16-18)
Table 2 (Aquatics BE/BA, pp. 21-25) describes each Unit design feature and how it mitigates
adverse effects to water quality within each watershed, including effects of temporary road,
skid trail, and landing construction, and design features that mitigate effects of activities that
are alongside or on permanent roads.
“In the short-term (less than five years), the [Callecat Project] would result in minor or
negligible effects to aquatic resources (water quality and quantity, stream condition, and
aquatic habitat) in the project area and downstream of the project area. This is largely the result
of the protection measures in Table 4 of this report. In the long-term (greater than five years),
there may be an improvement in water quality and aquatic habitat of Cat Creek and some of its
tributaries. This is largely the result of the repairs to roads and restoration of camping areas
near those streams.” (Hydrology Report, pg. 1)
“Nearly all of the roads located near streams in the project area would receive treatments that
are likely to reduce the amount of road-related sediment that is delivered to these streams.
Reconstruction and repair would occur on approximately 48 miles of system roads.
Reconstruction and repair activities would involve the replacement of inadequate drainage
crossings, elimination of ruts, ditch repair, installation of waterbars and dips with inadequate
water runoff control, gate installation to control seasonal use or replacement of existing non-
functional gates or barricades, and removal of brush and small trees encroaching on roads.
Four system roads would be closed to public use. The available research indicates that the
amount of sediment generated from a road decreases with less vehicle use of the road...”
(Hydrology Report, pg. 18)
I find that the Callecat Project reduces the adverse effects of roads on aquatic habitat in the Cat
Creek area through the use of mitigation measures (Design Features). These mitigations
minimize the effects of roads in the project area such that there are no significant effects and an
EIS is not required.
Issue 1e
“The Callecat Project would conduct timber harvest activities adjacent to 50 to 94
percent of the length of several tributaries of Cat Creek with equipment exclusion zones
as narrow as 25 feet. This carries a sizable risk of accelerated sediment delivery to those
streams and then into Cat Creek, which would likely translate into degraded aquatic
habitat.” (Appeal, pp. 2, 4)
Response
Riparian Conservation Objective #2 - Maintain or restore: (1) the geomorphic and biological
characteristics of special aquatic features, including lakes, meadows, bogs, fens, wetlands,
vernal pools, springs; (2) streams, including in stream flows; and (3) hydrologic connectivity
both within and between watersheds to provide for the habitat needs of aquatic-dependent
species.
The Riparian Conservation Objectives Consistency Report (pp. 7-9), details mitigations and
project design criteria to insure compliance with this and all Riparian Conservation Objectives.
The Callecat Project is not expected to alter the geomorphic or biological characteristics of
special aquatic features, streams, or hydrologic connectivity within/between watersheds. This
is largely the result of the site-specific design features of the project, as described in Table 4 of
the Hydrology Report.
“Research studies in forested environments following timber harvest activities have shown that
buffer widths next to streams can provide a high degree of protection from short-term impacts
in a variety of forest types and geomorphology. For example, one study demonstrated that the
amount of sediment delivered to the stream was reduced by 75 to 80 percent as a result of a 30
meter buffer (Parkyn 2004). It should be noted, however, that the effectiveness of buffer zones
in removing sediment before reaching a stream depends on a number of site-specific factors
such as slope, soil type, degree of ground disturbance outside of the buffer zone, size of ground
disturbance outside of the buffer zone, and type of vegetation in the buffer zone. The design
features in Table 4 for aquatic features and RCAs reflect these factors as a result of site specific
field visits by resource specialists (Hydrologist, Soil Scientist, and Fisheries Biologist).”
(Hydrology Report, pg.16)
“Ground disturbing activities would occur in less than 3 percent of the RCA of Cat Creek. This
is largely because only 36 percent of the length of the stream is bordered by thinning units
(within the RCA) and ground-based equipment would not be allowed within 100 feet of the
stream.
Ground disturbing activities would occur in less than 10 percent of the RCA of streams S8c,
S9, and S9a, despite the fact that thinning units border more than 80 percent of the length of
these streams. This is largely because of the equipment exclusion zones next to these streams
and the limited extent of ground-disturbing activities that would occur in the RCA outside of
the equipment exclusion zones.” (Hydrology Report, pg. 17)
Only hand applied treatments are permitted within 25 feet from the edge of perennial streams,
10 feet from the edge of intermittent channels and 50 feet from the edge of springs. (EA, pp.
20-22). Ground based equipment is not permitted within 100 feet of Riparian Conservation
Areas (RCA). (Hydrology Report, pg.17)
The DN further restricts ground based equipment in RCA. “Based upon my review of the
Callecat Ecological Restoration Project Environmental Assessment (EA), the supporting
documentation and a review of public comments, I have decided to implement Alternative 1,
the proposed action, with a modification to exclude mechanical ground based equipment from
the Riparian Conservation Areas (RCA) of the main stems of Cat Creek and the Middle Fork
Cosumnes River.” (DN, pg. 1)
I find that the project design criteria, along with the exclusion of ground based equipment from
Riparian Conservation Areas in Cat Creek and the Middle Fork Cosumnes River (as described
on page 1 of the Decision Notice) is sufficient to insure that the implementation of this project
is not likely to degrade aquatic habitat.
Issue 1f(1)
The Aquatic Species Biological Assessment and Biological Evaluation for the Callecat
Ecological Restoration Project is inadequate and does not meet NEPA’s requirements.
(Appeal, pp. 2, 6-7)
1) “The Aquatic Species Biological Assessment and Biological Evaluation fails to
analyze the possible adverse effects from the high risk of CWEs on potential foothill
yellow-legged frog and Sierra Nevada yellow-legged frog.”
Response
The Code of Federal Regulations contain the regulations for environmental analysis. 40 CFR
1508.27 (9)) requires that an analysis be made to determine, “The degree to which the action
may adversely affect an endangered or threatened species or its habitat that has been
determined to be critical under the Endangered Species Act of 1973.” Under the National
Forest Management Act (36 CFR Part 219) projects that affect the viability of species (plant
and animal) must also be analyzed.
Forest Service Manual 2600 sets forth FS policy for implementing the above regulations with
regard to determining effects of a proposed project on botanical, aquatic and wildlife resources.
The Biological Evaluation is the document written for the “systematic interdisciplinary
approach” to the analyzing of the effects of a proposed project on Forest Service “sensitive”
species. A Biological Assessment is developed to assess effects on follow the standards
established in Forest Service Manual direction (FSM 2672.4).
Cumulative Watershed Effects (CWEs) are a FS regionally determined protocol for
determining water quality on a specific watershed level (hydrological unit code 6, or HUC 6).
(Soils and Water Conservation Land Handbook, R5, Section 2509.22, Chapter 20)
The term CWE is a watershed measure and is not necessarily a term used for aquatic species
analysis. A cumulative watershed impact is a cumulative impact that influences or is
influenced by the flow of water through a watershed. Changes in the water-related transport of
sediment, woody debris, chemicals, heat, flora, or fauna can result in off-site cumulative
watershed
impacts. (Soils and Water Conservation Land Handbook, R5, Section 2509.22, Chapter 20)
CWE data is used in the analysis of the foothill yellow-legged frog (FYLF) and the Sierra
Nevada yellow-legged frog. This data is used in Tables 6 and 7 in the effects section for the
FYLF and SNYF
The degree of effect to aquatic species is defined as, “The degree to which aquatic organisms
and habitats can be affected by land management activities depends largely on the intensity of
these activities in, and immediately adjacent to, riparian areas.” (Aquatics BE/BA, pg. 39)
Within riparian areas, ‘The desired condition is to provide sustainable aquatic, riparian, and
meadow (ARM) compositions, structures, and functions including processes within desired
ranges of variability, well-distributed habitat for desired plant, invertebrate, and vertebrate
species as well as connectivity among watersheds. (USDA Forest Service. 2004. Proceedings
of the Sierra Nevada Science Symposium: Science for Management and Conservation. USDA
Forest Service, Pacific Southwest Research Station, Albany, California, as cited in the Aquatics
BE/BA, pg.27)
Page 26 of the Callecat Aquatics BE discusses the general changes in the analysis area where
habitat occurs. Overall CWEs are discussed in terms of the proposed project area in the
Hydrology Report.
The summation of effects to aquatic species can be found on pages 38-39, and pages 46-47 of
the EA. The complete analysis of aquatic species is within the Aquatics BE. Riparian
conservation measures are discussed on pages 16-18 of the Aquatics BE and on pages 20-22 of
the EA.
The Aquatics BE/BA states, “The ability of project activities to affect these species is depend
on where such activities are occurring within these watersheds, the amount of habitat affected,
direct, indirect, and cumulative effects of this project compared with past, present and
reasonably foreseeable future actions. The analysis area considered for the aforementioned
species is limited to...four Watersheds (7th Field) that span the Callecat ERP area...” (Aquatics
BE/BA, pg. 26)
Table 6 (page 39 of the Aquatics BE) addresses all factors that comprise the effects upon the
foothill yellow-legged frog (FYLF), including the physical effects of water flow, erosion, and
subsequent sedimentation on the species. The cumulative effects of all of the activities in Table
6 are addressed on pages 41-48 of the Aquatics BE/BA, based upon the definition of the
analysis area as described above.
Table 7 (pg.50 of the Aquatics BE) addresses all factors that comprise the effects upon the
Sierra Nevada yellow-legged frog (SNYF), including the physical effects of water flow,
erosion, and subsequent sedimentation on the species. The cumulative effects of all of the
activities in Table 7 are addressed in pages 52-59 of the Aquatics BE/BA, based upon the
analysis area as described above.
I find that cumulative effects upon the FYLF and SNYF are not required to be based upon
CWEs (a watershed analysis code for cumulative effects on watershed quality). Cumulative
effects of water quality and other factors are discussed in the cumulative effects sections for
each species in the Aquatics BE.
Issue 1f(2)
The Aquatic Species Biological Assessment and Biological Evaluation for the Callecat
Ecological Restoration Project is inadequate and does not meet NEPA’s requirements.
(Appeal, pp. 2, 6-7)
2) “It should be noted that although the Eldorado National Forest acknowledged in 1997
that sediment delivery from forest roads in the Cat Creek watershed was adversely
affecting salmon runs in the lower reaches of the Cosumnes River, the Biological
Assessment and Biological Evaluation states it will have no effect on salmon runs but does
not provide an explanation as to why. Potential adverse effects to Listed Species, Forest
Service Sensitive Species, and Management Indicator species either in or downstream of
the project area need be fully disclosed. This disclosure should include an in-depth
discussion of the aforementioned issues related to roads, road densities, road crossings,
Cumulative Watershed Effects.”
Response
CFR 220.7(b)(3) Environmental Impacts of the Proposed Action and Alternative(s).
The EA:
(i) Shall briefly provide sufficient evidence and analysis, including the environmental impacts
of the proposed action and alternative(s), to determine whether to prepare either an EIS or a
FONSI (40 CFR 1508.9 );
(iii) Shall describe the impacts of the proposed action and any alternatives in terms of context
and intensity as described in the definition of “significantly” at 40 CFR 1508.27 ;
(iv) May discuss the direct, indirect, and cumulative impact(s) of the proposed action and any
alternatives together in a comparative description or describe the impacts of each alternative
separately.
40 C.F.R. 1508.27 (b)(3) defines significance for NEPA purposes: “Significantly as used in
NEPA requires consideration of both context and intensity:…The following should be
considered in evaluating intensity:…unique characteristics of the geographic area such as
proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and
scenic rivers, or ecologically critical areas.”
The Appellant did not raise this issue during the comment period; therefore the Forest did not
have an opportunity to comment of this topic specifically.
“There are no anadromous species of fish known to occur on the Eldorado National Forest
mostly due to the presence of rim dams, water diversions and natural barriers; therefore no
consultation with the National Marine Fisheries Service was initiated.” (Aquatics BE/BA pg.
4)
Table 1 in the BE/BA lists all TES aquatic species that may be present in the ENF, their
preferred habitat and elevation range, and their potential to reside in the project area and the
potential for the project to affect the species of concern (Aquatics BE/BA pg. 4)
The effects of the proposed actions on terrestrial MIS, as well as a cumulative effects
discussion are disclosed in the Terrestrial MIS Report. (Terrestrial MIS Report, pp. 20-45)
The Sierra Nevada Forest Plan Amendment lists all MIS (Chapter 3, Table 3.23a, pp. 167-168)
and there was no listing of any aquatic MIS.
I find that the BA/BE adequately disclosed the direct/indirect and cumulative effects to all
listed species, forest sensitive species and terrestrial management indicator species in the
analysis area.
Issue 1f(3)
The Aquatic Species Biological Assessment and Biological Evaluation for the Callecat
Ecological Restoration Project is inadequate and does not meet NEPA’s requirements.
(Appeal, pp. 2, 6-7)
3)“In terms of species presence/absence, the Aquatic Species Biological Assessment and
Biological Evaluation for the Callecat Ecological Restoration Project assumes the
presence of brown trout (non-native), rainbow trout, and non-native crayfish in stream
systems likely reduces habitat suitability for foothill yellow-legged frogs and Sierra
Nevada yellow-legged frogs. And while the document acknowledges suitable habitat is
present in the project area, it does not acknowledge that failure to detect a species does
not necessarily mean the species is not present; it simply assumes the failure to detect a
species during Visual Encounter Surveys (VES) is due to the presence of predators. The
Biological Assessment and Biological Evaluation needs to better describe survey
methodology, location, and timing.”
Response
The Code of Federal Regulations contain the regulations for environmental analysis. 40 CFR
1508.27 (9)) requires that an analysis be made to determine, “The degree to which the action
may adversely affect an endangered or threatened species or its habitat that has been
determined to be critical under the Endangered Species Act of 1973.” Under the National
Forest Management Act (36 CFR Part 219) projects that affect the viability of species (plant
and animal) must be also be analyzed.
Forest Service Manual 2600 sets forth FS policy for implementing the above regulations with
regard to determining effects of a proposed project on botanical, aquatic and wildlife resources.
The Biological Evaluation is the document written for the “systematic interdisciplinary
approach” to the analyzing of the effects of a proposed project on Forest Service “sensitive”
species. A Biological Assessment is developed to assess effects on follow the standards
established in Forest Service Manual direction. (FSM 2672.4)
Stream surveys were conducted on every perennial stream in fall, 2009 by Forest Service
Aquatic Biologists using an approved Forest methodology. They were again surveyed in 2011
using VES. All survey forms are available at the Amador District Office and are located within
the project file for the Callecat Project. Non-native predators were documented in suitable
habitat for aquatic species (Aquatics BE/BA, pp. 38, 49)
For the red-legged frog, analysis determined habitat was unsuitable and there was no critical
habitat within the project area. (Aquatics BE/BA, pg. 36)
The presence of non-native predators has been documented as a major contributor to the
extirpation of native frogs in the Sierra Nevada, as they eat the eggs and larva of amphibians.
(Aquatics BE/BA Appendix A: foothill yellow-legged frog species account, pg. 39; mountain
yellow-legged frog species account, pg.42)
The proposed project area was analyzed for the most conservative outcome (e.g. presence
assumed) in the Aquatics BE/BA for the Callecat Project. Even if the survey outcomes were
negative, habitat effects and effects to aquatic species were documented as if presence was
documented in all suitable habitat. Potential effects were documented for each species based
upon project activities. Determinations were made based upon these analyses.
I find that the visual encounter survey methodology is described adequately in the project
record. The species were not detected by the surveys; this information is provided nonetheless.
No assumptions of “absence” as a result of this survey were made or assumed in the document.
Further, the survey methodology did not affect the project analysis, as presence of the species
was assumed where there was suitable habitat in all stream reaches in the project area.
“Absence at streams was based upon documented risks and the known presence of introduced
predators, and suitability of the habitat.” This was then factored into the analysis and fully
disclosed.
I find that the BA/BE adequately disclosed the direct/indirect and cumulative effects to all
listed species, forest sensitive species and terrestrial management indicator species in the
analysis area
Issue 2
“The three changes in Proposed Action have not given the public an opportunity to
adequately assess and comment on the various Proposed Actions for Callecat Project and
thus require an Environmental Impact Statement.” (Notice of Appeal (NOA) pp. 5-6).
Response
40 CFR 1501.4 “Whether to prepare an environmental impact” statement directs an agency to
base the decision on whether to prepare an EIS on the environmental assessment (1501.4(c)).
Three changes were made to the Proposed Action (Alternative 1) after the public scoping
period and before the Environmental Analysis was released to the public for the Comment
Period. The public had the opportunity to comment on the three changes during the Comment
Period. The Decision Notice made additional changes and clarifications in response to
comments received during the Comment Period. In addition to five clarifications made
regarding actions already established in the Comment Period EA, the Proposed Action
(Alternative 1) was changed in the following ways in response to comments received during the
Comment Period: 1) A modification to Design Criteria was made to exclude mechanical
ground based equipment from the Riparian Conservation Areas (RCA) of the main stems of Cat
Creek and the Middle Fork Cosumnes River; 2) The proposed action was changed to further
limit the timing of commercial thinning and tractor piling in the Cat Creek Watershed. Instead
of being implemented over two years, the activities will now take place over at least four years.
The new design criteria will ensure that less than 10 percent of the watershed would be subject
to ground disturbance from commercial timber harvest in any one year; 3) Nonylphenol
polyethoxylate based (NPE) surfactants are no longer proposed for use.
The three changes made after the Scoping Period but Before the Comment Period were
summarized in the Comment Period EA (hence referred to as Callecat_EA_1_16_13) in section
“Changes to the Proposed Action” (Callecat_EA_1_16_13 pg. 8). The section described that:
1) The Proposed Action had a total reduction of 284 acres of mechanical thinning due to new
wildlife information; 2) Design criteria for Riparian Conservation Areas was modified to allow
for treatments with prescribed fire and glyphosate to occur closer to stream channels while still
meeting forest plan direction; and 3) There will be no public access granted for firewood
cutting on roads 9NY09 and 9NY08A.
The Scoping Period Proposed Action had originally established Stream Channel Design
Criteria for prescribed burning and glyphosate as follows (Scoping Period Proposed Action pg.
17):
Ignition of fire would not occur within 75 feet of the edge of the channel of perennial
streams or special aquatic features.
Ignition would be limited to non-riparian vegetation. Ignition of fire would not occur
within 25 feet of the edge of the channel of intermittent and ephemeral streams.
Glyphosate would not be sprayed within 50 feet of the channel of perennial streams or
within 50 feet from riparian vegetation, whichever is greater.
Glyphosate would not be sprayed within 25 feet of the channel of intermittent and
ephemeral streams or within 25 feet of riparian vegetation, whichever is greater.
Glyphosate would not be sprayed within 25 feet of the edge of special aquatic features
(springs, wetlands, meadows, etc.) or within 25 feet of riparian vegetation, whichever is
greater.
The Comment Period EA (Callecat_EA_1_16_13) Proposed Action modified the established
Stream Channel Design Criteria for prescribed burning and glyphosate as follows
(Callecat_EA_1_16_13 pp. 20-21). Changes compared to the Scoping Period Proposed Action
are highlighted.
Ignition of fire would not occur within 25 feet of the edge of the channel of perennial
streams and special aquatic features or 25 feet from the edge of riparian vegetation, whichever
is greater. Ignition would be limited to non-riparian vegetation.
Ignition of fire would not occur within 10 feet of the edge of the channel of intermittent
streams and ephemeral streams or within 10 feet of riparian vegetation, whichever is greater.
Glyphosate would not be sprayed within 25 feet of surface water (standing or flowing)
or within 25 feet of riparian vegetation, whichever is greater.
Glyphosate would not be sprayed within 5 feet of any dry stream channel (no surface
water) or within 5 feet of riparian vegetation, whichever is greater.
Glyphosate would not be sprayed within 25 feet of the edge of special aquatic features
(springs, wetlands, meadows, etc.) or within 25 feet of riparian vegetation, whichever is
greater.
The changes of the Proposed Action as noted above were present throughout the Project
Record. The Silvicultural Report included Best Management Practices providing rationale for
the change of the buffer width. (Silvicultural Report, Practice 5-12 in BMPs related to
Pesticide Use for Callecat Project) All interdisciplinary team specialist reports considered the
effects of the application of prescribed fire and glyphosate at these modified buffer widths. No
significant effects from the application of glyphosate or prescribed fire were determined by any
resource specialist. The Finding of No Significant Impact section of the comment period EA
(Callecat_EA_1_16_13 pp. 35-49) and final EA (EA pp. 37-49) show no significant impacts
from the Proposed Action.
Three comments, including two from the appellant, regarding the modified treatments of
prescribed fire and glyphosate were received by the Responsible Official during the Comment
Period of the Callecat Ecological Restoration Project EA. (EA Appendix D pg. 111)
Changes to the Callecat Ecological Restoration Project Proposed Action occurred after the
Scoping Period but prior to the availability of the EA for the Comment Period. Analysis by the
interdisciplinary team specialists included in the Comment Period EA (Callecat_EA_1_16_13)
determined that the application of glyphosate or prescribed burning with these changes do not
result in “significant effects.”
Analysis by the interdisciplinary team specialists determined that the application of glyphosate
or prescribed burning as described in the proposed Action with associated Design Criterion and
BMPs will not result in “significant effects,” confirming that the use of an Environmental
Assessment is an appropriate decision making document for the Responsible Official per 40
CFR 1501.4.
I find the Responsible Official did not violate legal requirements regarding changes of the
Proposed Action and use of an Environmental Assessment.
Issue 3
“I contend that the public comments regarding an expansion of riparian buffers during
the various comment periods were largely ignored by the Agency. And in fact, when
public comments submitted requested an expansion of riparian buffers, the Eldorado
National Forest significantly reduced them (see above differences in the above Proposed
Actions concerning fire ignition and herbicide along streams). Based on the above, I
believe that the Callecat Ecological Restoration Project has significant issues as defined
by the National Environmental Policy Act (NEPA). More specifically, under NEPA,
significance is determined by whether a proposal is considered to be a “major federal
action significantly affecting the quality of the human environment, or whether the
relative severity of the environmental impacts would be significant based on their context
and intensity.” (Notice of Appeal, pg. 6)
Response
This issue will be responded to in two sections: a) NEPA Response to Comments and b) EIS
Required.
a) NEPA Response to Comments
40 CFR Part 1502.9(b) requires final environmental impact statements to respond to comments
and to discuss at appropriate points in the final statement any responsible opposing view.
Regulations at 40 CFR 1502.9(b) apply to the preparation of Environmental Impact Statements.
The Callecat Ecological Restoration Project was analyzed using an Environmental Assessment
as described in 40 CFR 1508.9
36 CFR Part 215.6 (1) States that the Responsible Official shall consider all substantive written
and oral comments submitted in compliance with the Comment Period provisions summarized
in paragraph (a).
FSH 1909.15 – Forest Service National Environmental Policy Act Handbook Chapter 10 –
Environment Analysis 12.6 Requires the Responsible Official to review comments and
suggestions offered by interested and affected agencies, Tribes, organizations, and individuals
in response to scoping and the listing of the action in the schedule of proposed actions (sec. 06).
FSH 1909.15 – National Environmental Policy Act Handbook Chapter 10 – Environmental
Analysis. 10-Conduct Scoping. There shall be an early and open process for determining the
scope of issues to be addressed and for identifying the significant issues related to a proposed
action. This process shall be termed scoping . . . (a) As part of the scoping process the lead
agency shall: (1) Invite the participation of affected Federal, State, and local agencies, any
affected Indian tribe, the proponent of the action, and other interested persons (including those
who might not be in accord with the action on environmental grounds), unless there is a limited
exception under §1507.3(c). An agency may give notice in accordance with §1506.6.
(2) Determine the scope (§1508.25) and the significant issues to be analyzed in depth in the
environmental impact statement.
(3) Identify and eliminate from detailed study the issues which are not significant or which
have been covered by prior environmental review (§1506.3), narrowing the discussion of these
issues in the statement to a brief presentation of why they will not have a significant effect on
the human environment or providing a reference to their coverage elsewhere.
Comments were first received from the Appellant during the scoping period to the Proposed
Action. They were considered in EA Appendix B. (EA Appendix B, pp. 64-66, 76, 87-88, 90-
91, 92) One of the Appellant’s comments was used to create Issue 6: Treatments such as
herbicide application and mechanical thinning in Riparian Conservation Areas could have
negative effects to aquatic habitat. (EA, pg. 8) This issue is used to compare alternatives in the
Comparison of Alternatives by Significant Issues and Indicator Measures Table (EA, pg. 15)
and in the Effects Relative to Significant Issues, (EA, pp. 36-37)
One of the Appellant’s scoping issues was used to create Action Alternative 4: “This alternative
would be identical to the proposed action except that ground based mechanical equipment
would be excluded from the RCA’s of the main stem Middle Fork Cosumnes River and Cat
Creek and herbicides would be excluded from all RCA’s throughout the project area. Hand
treatments would still be permitted in these areas. This alternative would address important
issue #6.” (EA, pg. 33) Alternative 4 was analyzed throughout the Project Record in all
interdisciplinary team Specialist Reports and in the EA Finding of No Significance Elements.
Comments received from the Appellant during the Comment Period were considered in EA
Appendix D. Comments from the Appellant including 4-23 (EA, pp. 107-109) were considered
by the Responsible Official when making the Decision to exclude mechanical ground based
equipment from the Riparian Conservation Areas (RCA) of the main stems of Cat Creek and
the Middle Fork Cosumnes River in the Decision Notice. (DN, pg. 2) Comments regarding the
changed buffer width were responded to in Comments 4-5 and 4-6. (EA Appendix D, pg. 111)
Comments regarding the use of glyphosates were responded to in Comments 4-2, 4-1, 4-3, 4-
11. Comment 4-1 was used to clarify Design Criteria regarding herbicides with the
specification, “Clarification has been added to the EA design criteria for Pesticide Application
on page 13 that states: Herbicide will be applied with backpack sprayers using a directed spray
on target vegetation. In reforestation units target vegetation is all competing vegetation and in
the established plantations the target vegetation is woody brush.” (EA Appendix D, pg. 118)
Comments received from the Appellant during the Scoping Period and Comment Period were
considered by the Responsible Official. Comments raising Issues were analyzed in the EA.
Scoping Comments suggesting Alternatives to be analyzed in Detail by the Responsible
Official were used to create Alternative 4. I find that the Responsible Official did not violate
40 CFR Part 1502.9(b), FSH 1909.15 or 36 CFR Part 215.6 (1).
b) EIS Required
“Preparation of an EA is intended to provide evidence as to whether an EIS must be prepared.
A FONSI (40 C.F.R. 1508.13) presents the reasons why an action will not have significant
effects, as defined in (40 C.F.R. 1508.27), on the human environment and for which an EIS will
not be prepared.” (40 C.F.R. 1508.9)
40 CFR 1508.9 “Environmental Assessment”: (a) Means a concise public document for which
a federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and
analysis for determining whether to prepare an environmental impact statement or a finding of
no significant impact. (2) Aid an agency’s compliance with the Act when no environmental
impact statement is necessary.
40 CFR 1508.27 “Significantly” as used in NEPA requires considerations of both context and
intensity: (a) Context. This means that the significance of an action must be analyzed in
several contexts such as society as a whole (human, national), the affected region, the affected
interests, and the locality. Significance varies with the setting of the proposed action. For
instance, in the case of a site-specific action, significance would usually depend upon the
effects in the locale rather than in the world as a whole. Both short and long-term effects are
relevant. (b) Intensity. This refers to the severity of impact.
Modifications to the buffer width were made to the Proposed Action (Alternative 1) after the
public scoping period and before the Environmental Analysis was released to the public for the
Comment Period. The public had the opportunity to comment on the three changes during the
Comment Period.
The Scoping Period Proposed Action originally established Stream Channel Design Criteria for
prescribed burning and glyphosate. (Scoping Period Proposed Action, pg. 17) The Comment
Period Draft EA Proposed Action modified the established Stream Channel Design Criteria for
prescribed burning and glyphosate. (Draft EA, pp. 20-21) The changes of the Proposed Action
as noted above were present throughout the Project Record. The Silvicultural Report included
Best Management Practices providing rationale for the change of the buffer width.
(Silvicultural Report, Practice 5-12 in BMPs related to Pesticide Use for Callecat Project) All
interdisciplinary team specialist reports considered the effects of the application of prescribed
fire and glyphosate at these modified buffer widths.
As discussed in part regarding NEPA response to comments above, the significant issue and
Action Alternative suggested by the Appellant during the Scoping Period were used to compare
the effect of herbicide application and mechanical thinning in Riparian Conservation Areas to
aquatic habitat across alternatives, and to consider an alternative that did not use the herbicide
in RCAs.
No significant effects from the application of glyphosate or prescribed fire were determined by
any resource specialist. Using the modified buffer width, Design Criteria, product labels and
the BMPs related to Pesticide Use, the Aquatic Species Biological Assessment and Biological
Evaluation for the Callecat Ecological Restoration Project conducted a SERA Pesticide Risk
Analysis analyzing the Hazard Quotients for sensitive aquatic organisms. (Aquatic Species
Evaluation, pp. 29-33) The Biological Assessment / Evaluation for Botanical Species for the
Proposed Callecat Ecological Restoration Project (Botany Report, pp. 27-30) conducted a
similar analysis. Using the hazard quotients, each of these reports considered the intensity of
the herbicide on their respective species. The Biological Evaluation and Assessment For
Terrestrial Threatened, Endangered, and Sensitive Wildlife Species reviewed SERA (2006, and
2011) risk assessments and project worksheets. (Terrestrial Species Evaluation, pp. 19, 35, 42)
The Hydrology Report Callecat Ecological Restoration Project evaluated the use of glyphosates
and all associated ingredients (surfactants, marker dyes, etc. and determined that the application
of the pesticide with a 25 foot buffer from surface water. (pp. 19-20) The Soil Specialist
Report Callecat Ecological Restoration Project considered the effect of pesticide application to
soil microbes and soil cover. (Soil Report, pg. 20) The Riparian Conservation Objectives
(RCO) Report considered how the use of pesticide applications would meet Standards and
Guidelines associated with RCO #1 (Ensure that identified beneficial uses for the water body
are adequately protected). (RCO Consistency Report, pg. 5)
No significant effects from the application of glyphosate or prescribed fire were determined by
any resource specialist. The Finding of No Significant Impact section of the Draft EA pp. 35-
49) and final EA (EA, pp. 37-49) show no significant impacts from the Proposed Action.
The modified buffer width was analyzed by all IDT specialists for both extent (acreage) and
intensity (when deemed appropriate in hazard risk assessments) in their Resource Reports, and
there were no determinations of significant effects. The concerns expressed by the Appellant
regarding significant effects of the herbicide use in Riparian Conservation Areas was analyzed
in the Environmental Assessment in the significant issues section, and with an Action
Alternative regarding that concern was assessed by each resource specialist.
I find that the Responsible Official used the NEPA process appropriately to determine whether
there are significant impacts that require an Environmental Impact Statement, and did not
violate 40 CFR 1501.4, 40 CFR 1508.9 or 40 CFR 1508.27.
FINDINGS
The Eldorado National Forest Supervisor, Kathryn D. Hardy’s decision and supporting
rationale are clearly presented in the Decision Notice (DN) for the Callecat Ecological
Restoration Project Environmental Assessment (EA).
The Forest Supervisor’s reasons for selecting Alternative 1 (modifed), are logical and
responsive and consistent with direction contained in the Eldorado National Forest Land and
Resource Management Plan, as amended by the Sierra Nevada Forest Plan Amendment Record
of Decision (February, 2004). The purpose of the proposal as stated above is clear and the
benefits are displayed.
The decision is consistent with direction contained in the Eldorado National Forest Land and
Resource Management Plan as amended by the Sierra Nevada Forest Plan Amendment Record
of Decision (February, 2004).
Public participation was adequate and well documented. The project was added to the
quarterly Schedule of Proposed Actions. The Forest mailed scoping letters, hosted a public
meeting, and distributed a draft EA for comment and a complete EA to interested groups and
individuals. The Eldorado National Forest has maintained current information on planning and
activities on its web page. Responses to the comments received are detailed and included in
Appendices B and D to the EA. The decision of the Forest Supervisor indicates she considered
and responded to public input.
RECOMMENDATION
My review was conducted pursuant to and in accordance with 36 CFR 215.19 to ensure the
analysis and decision is in compliance with applicable laws, regulations, policy, and orders. I
reviewed the appeal record, including the comments received during the comment period and
how the Forest Supervisor used this information, the appellant's objections and recommended
changes.
Based on my review of the record, I recommend the Forest Supervisor's decision be affirmed
on all issues. I recommend that the Appellants' requested relief be denied on all issues.
/s/ Kevin B. Elliott
KEVIN B. ELLIOTT
Appeal Reviewing Officer
Forest Supervisor
Sequoia National Forest