File Code:	1570(2002-02-03-0034)
		Date:	September 12, 2002
JEREMY NICHOLS BIODIVERSITY ASSOCIATES PO BOX 1512 LARAMIE WY 82073	BRIAN BRADEMEYER PO BOX 1624 RAPID CITY SD 57709

Dear Appellants:

Pursuant to 36 CFR Part 215, I have reviewed the appeal record with regard to your appeal of the decision of Forest Supervisor John C. Twiss concerning the Canyon/Nest Timber Sale. I have also considered the written recommendation of the Appeal Reviewing Officer respecting the disposition of your appeal. The Reviewing Officer’s review focused on the decision documentation developed by the Forest Supervisor and the issues raised in your appeal.

Decision

The Reviewing Officer, based on review of the record, found the EA failed to adequately analyze and assess the potentially significant effects to Soils and Waters. The analysis should be redone, including a better description of the affected environment, more discussion on BMP effectiveness and justification to support the conclusions reached.

After my review of the appeal record, I concur with the Appeal Reviewing Officer’s recommendation and I adopt and incorporate it into my decision. It is enclosed and by this letter is remanded to Forest Supervisor Twiss. If Forest Supervisor Twiss wishes to go forward with his decision, he must issue a new decision and have another appeal period.

My decision constitutes the final administrative determination of the Department of Agriculture.

Sincerely,

/s/RICHARD C. STEM

RICHARD C. STEM

Deputy Regional Forester, Resources

Appeal Deciding Officer

Enclosure

Cc: E.Fischer/BLKH

File Code:	1570(2002-02-03-0034)	Date:	September 12, 2002
Route To:
Subject:	Recommendation Memorandum for Canyon/Nest Timber Sale
To:	Appeal Deciding Officer

Appellants: Biodiversity Associates, Jeremy Nichols and Brian Brademeyer

I have reviewed the appeal record with respect to the referenced appeal of the decision of Forest Supervisor John C. Twiss concerning the Canyon/Nest Timber Sale. My review focused on the decision documentation developed by the Forest Supervisor in reaching his decision, issues raised in the appeal, and comments submitted by interested parties. Pursuant to 36 CFR §215.13(f)(2), this will constitute my written recommendation concerning the disposition of the appeal, and I am forwarding the appeal record to you.

BACKGROUND

The Black Hills National Forest has been in a drought condition for the last three years. Several large, uncharacteristic stand replacing wildfires have occurred in the last two years because of extreme weather conditions, overstocked stand conditions, and contiguous vegetative canopy across large areas. Treatment of over-dense stands could help reduce the potential of additional uncharacteristic stand replacing events under normal weather conditions. Restoration of aspen clones would also help reduce the risk of stand replacing events and provide beneficial wildlife habitat, which could be lost if not treated in the near future. Treatment of these stands will help attain meeting the Forest ASQ. These actions are needed to reduce the risk to loss of capital investments (existing plantations, spring developments, and various other investments), and Forest resources (soil productivity, recreation opportunities, visual quality, and wildlife habitat).

RELIEF REQUESTED

“Because the Regional Forester’s decision to implement Alternative 2, as modified, for the Phase I Amendment to the 1997 BHNF Revised Forest Plan is arbitrary and capricious; because the Reviewing Office for the Chief of the USFS decision to uphold the Regional Forester’s decision is arbitrary and capricious; and because the Phase I Amendment EA and BA/Be fail to take a hard look at and disclose potentially significant direct, indirect, and cumulative effects, the Phase I Amendment is fatally flawed and cannot provide legally and biologically adequate interim direction that maintains species viability while the USFS completes the Phase II Amendment. The Canyon/Nest Timber Sale, as tiered to the Phase I Amendment, cannot maintain species viability and diversity on the BHNF contrary to NFMA, its implementing regulations, FSM direction, and the Phase I purpose and need. The decision to implement the Canyon/Nest Timber Sale, under direction by the Phase I Amendment, must therefore be vacated and a new decision delayed until the USFS corrects the inadequacies identified within the Phase I Amendment.”

Appeal p. 27-28

“Because the USFS has failed to amend its 1997 BHNF Revised Forest Plan and supplement the 1997 BHNF Revised Forest Plan EIS in light of significant forest-wide programmatic effects of the Jasper Fire, the April 2000 Snowstorm, and subsequent fires in 2001, the BHNF is currently operating under an inadequate programmatic document. The USFS is therefore currently in violation of NEPA, CEQ NEPA implementing regulations, NFMA and NFMA implementing regulations. By implementing the Canyon/Nest Timber Sale, the USFS is tiering to inadequate programmatic management direction and environmental analysis in violation of the aforementioned laws and regulations. Furthermore, by implementing the Canyon/Nest Timber Sale, the USFS is not maintaining species viability and is harvesting timber from the BHNF at an unsustainable rate. Given these severe programmatic deficiencies, the decision to implement the Canyon/Nest Timber Sale must be vacated until the 1997 Revised Forest Plan and EIS is amended and supplemented to account for these significant changes on the BHNF in accordance with NEPA and NFMA. A legally adequate Canyon/Nest EA that fully informs the public and the agency cannot be prepared prior to taking these actions to correct programmatic deficiencies.” Appeal p. 30

“The agency has failed to adequately respond to public comment in violation of NEPA. The decision to implement the Canyon/Nest Timber Sale cannot possibly proceed with the interests for the public taken into consideration. The decision must therefore be withdrawn and the BHNF instructed to respond to appellants’ comments before proceeding with the timber sale. Appellants’ comments must be taken into full consideration and the environmental analysis for the Canyon/Nest Timber Sale modified appropriately before a new decision can be issued and the sale is allowed to proceed.” Appeal p. 35

“Because the USFS failed to adequately disclose the affected environment, failed to adequately analyze and assess potentially significant effects, and failed to provide or reference information and analysis to support numerous conclusions made within the Canyon/Nest EA, the agency has violated NEPA and CEQ NEPA implementing regulations and has entirely failed to accurately inform the public of the environmental impacts of the Canyon/Nest Timber Sale. It is impossible to determine the significance of many proposed actions and it is impossible to ascertain the effects of the Canyon/Nest Timber Sale to important components of the BHNF ecosystem. Additionally, by failing to adequately analyze and assess the significant effects of the Canyon/Nest Timber Sale, the agency has failed to ensure compliance with NFMA, NFMA implementing regulations, and South Dakota State Surface Water Quality Laws. The Supervisor’s decision to authorize Alternative B for implementation in the Canyon/Nest area must therefore be vacated. If a new decision is issued, the decisionmaker must be instructed to correct any and all inadequacies within the canyon/Nest EA, circulate a revised or supplemental EA for public review and comment, determine if an EIS is necessary, before issuing a new decision.” Appeal p. 62

“Because the Canyon/Nest Timber Sale fails to adequately and legally manage for MIS populations and their habitat in accordance with NFMA and its implementing regulations and fails to ensure species distribution and viability is maintained in accordance with NFMA, its implementing regulations, and Phase I Amendment management direction, the decision to implement the Canyon/Nest must be vacated.” Appeal p. 66

“Because the USFS violated South Dakota Surface Water Quality law, the decision to implement the Canyon/Nest Timber Sale must be withdrawn. If a new decision is to be issued, the USFS must be instructed to apply for and obtain a State of South Dakota General Permit for Storm Water Discharge Associated with Construction Activities before proceeding with the Canyon/Nest sale.” Appeal p. 67

ISSUES AND DISCUSSION

IV. The Peak EA [sic. assume the appellant meant to refer to the Canyon/Nest EA] fails to

adequately assess and disclose the affected environment and take a hard look at and

disclose potentially significant effects. p. 35

A. The Canyon/Nest EA fails to adequately analyze and assess the potentially

significant effects to Soils and Waters. p. 36

Discussion

The appellants allege that the soils and water analysis in the EA is inadequate. Specifically they charge that the analysis fails to disclose the amount and significance of rilling and gullying, increases in peak flows, and sediment delivery to streams in the project area from project activities. In addition, the appellants assert that the analysis fails to disclose that Castle Creek has experienced sediment problems in the past and how implementation of BMPs will protect Castle Creek from further sediment problems. The appellants also state that the analysis is inadequate because the Forest relies on implementation and effectiveness of Best Management Practices (BMPs) to protect water quality and that the Forest has not provided information to support the conclusion that BMPs are effective in protecting water quality.

The soil and water analysis is located in Appeal Record (AR),Volume B, pages 75 – 90. This analysis is a duplication of the specialist report located in the project file. The specialist report (Draft Soils and Hydrology Report) in the project file has two appendices that do not appear in the EA: Appendix A listing BMPs and a discussion of BMP effectiveness and Appendix B, a discussion of Cumulative Watershed Effects Methodology. The BMPs listed in Appendix A are from Forest Service Region 5. While these BMPs are good practices, they are not the same as the South Dakota BMPs or Region 2’s Watershed Conservation Practices (WCPs) or Forest Plan Standards and Guidelines. Appendix B is a discussion of how to compute the Equivalent Roaded Acres (ERA) and Impact Index, but does not provide any information, such as thresholds, to interpret the numbers.

The project file also contains a document titled “Canyon/Nest Analysis Area Watershed Notes” which appears to be documentation of a field visit to the project site in 1998. It is unclear from the analysis in the EA how or even if this information was used in the analysis. Another document in the project file is titled “Cumulative Watershed Effects Analysis” for the Canyon/Nest Project Area and dated 1998. This document contains good information on the affected environment and analysis of potential cumulative effects as well as effects of a proposed Canyon/Nest project. However, it appears that this document is incomplete, i.e. there are spaces left for inserting unit numbers and/or acres, and there are notations to get further clarification on some issues. In addition, number, not letter, refers to the alternatives so it is unclear how this analysis relates to the activity proposed in the 2002 Canyon/Nest EA.

The Soils and Water analysis in the EA itself (AR,Vol. B pp. 75 – 90), is very sparse. As noted by the appellants, the EA discloses that there will be rilling and gullying, increases in peak flows and sediment delivery to streams and concludes that there will be no adverse effects to aquatic habitat or beneficial uses. The analysis does not provide the information to support the conclusions reached. The current condition of the streams and watersheds are not described. Information is given on Impact Index, but there is no explanation of what the numbers mean. There is no context given to interpret what the disclosed increases in rilling and gullying, peak flows and sediment delivery mean. For example, one could conclude, based on statements in the EA, that there could be rilling and gullying on 2,000 acres in the project area, but there is no information given on why this would not be a problem, only that there would be no effects to aquatic habitat. BMPs and WCPs are referenced, but information to show that they are effective and will protect water quality is not included in the EA. Some information that could be used to support the conclusions reached is contained in the supporting documentation in the project file. However, as noted above, these documents are incomplete and the tie between that information and the current project as proposed is weak and unclear.

The appellants’ are incorrect in their assertion that the Forest’s reliance on BMPs is inappropriate. The Forest Service obligation for nonpoint source pollution control is to implement BMPs (Clean Water Act Section 319, South Dakota Surface Water Quality Regulations 74:51:01:38). The Forest Service nonpoint source management strategy is one of “adaptive management”: apply Watershed Conservation Practices (WCPs), i.e. BMPs, to management activities; monitor implementation and effectiveness of those WCPs/BMPs to ensure compliance with State water quality standards; and make adjustments in the activity or WCP/BMP based on monitoring results (Forest Service Handbook (FSH) 2509.25-99-3). In the Canyon/Nest project, the Forest is following this direction. BMPs, WCPs, and other mitigations to be applied are listed (AR, Vol. B pp. 42-45, 187 -190) and monitoring of those BMPs is to be completed (AR,Vol. B pp. 7 and 49). The Forest has done some monitoring of BMP effectiveness and found them to be 75 to 100 % effective on other timber sales on the Forest (Cumulative Watershed Effects Analysis report in the project file).

Based on a review of the EA and project file, it is found that the soil and water analysis is inadequate to support the conclusions reached. The analysis should be redone, including a better description of the affected environment, more discussion on BMP effectiveness and justification to support the conclusions reached.

viability range-wide.”

RECOMMENDATION

I recommend the Forest Supervisor’s decision be remanded with respect to the issue raised by these appellants concerning the EA failing to adequately analyze and assess the potentially significant effects to Soils and Waters. Based on the review of the EA and project file, it was found that the soil and water analysis is inadequate to support the conclusions reached. The analysis should be redone, including a better description of the affected environment, more discussion on BMP effectiveness and justification to support the conclusions reached.

/s/GLENDA WILSON

GLENDA WILSON

Appeal Reviewing Officer