1570 December 26, 2013 the Lakewood Southeast Project,...

Forest

Service

Allegheny National Forest

Marienville Ranger District

131 Smokey Lane

Marienville, PA 16239

(814) 927-6628

FAX (814) 927-2285

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File Code: 1570 Date: December 26, 2013 Route To:

Subject: Appeal of the Record of Decision and Final Environmental Impact Statement for

the Lakewood Southeast Project, Chequamegon- Nicolet National Forest, Appeal #

14-09-13-0003 A215

To: Forest Supervisor Paul Strong

This letter constitutes my recommendation for the Notice of Appeal (NOA) filed by the Habitat

Education Center, Don Waller, Bobbi Peckarsky, David Zaber, The Environmental Law and

Policy Center and the John Muir Chapter of the Sierra Club on the Lakewood Southeast Project,

Lakewood-Laona Ranger District, Chequamegon-Nicolet National Forest (CNNF). District

Ranger Jeff Seefeldt signed the Record of Decision (ROD) on August 29, 2013. The legal notice

was published in the Northwoods River News (Rhinelander, Wisconsin) August 31, 2013.

My review was conducted pursuant to 36 C.F.R. 215 – “Notice, Comment, and Appeal

procedures for National Forest System Projects and Activities.” To ensure the analysis and

decision are in compliance with applicable laws, regulations, policies, and orders, I have

reviewed and considered each of the Appellants’ issues and the decision documentation

submitted by the CNNF. My recommendation is based upon review of the Project Record (PR)

including, but not limited to, the scoping letter, public comments, Final Environmental Impact

Statement (FEIS) and the Record of Decision (ROD).

Appeal Issues

The Appellants identify four primary issues and various sub-issues in the NOA. These issues

and sub-issues are addressed separately below. The Responsible Official was not able to resolve

any issues during the informal disposition meeting with the Appellants.

Issue 1 – “THE FEIS AND ROD VIOLATE NEPA BY FAILING TO CONDUCT A

COMPLETE DIRECT IMPACTS ANALYSIS FOR BIOMASS REMOVAL, AND BY

FAILING TO CONDUCT A CUMULATIVE IMPACTS ANALYSIS AT ALL.” (NOA, p. 2-3)

Response: The Appellants assert the Forest has failed to “conduct a cumulative impacts analysis

at all.” However, Chapter 3 of the FEIS includes the cumulative effects analysis for a broad

range of resources, including forest vegetation, transportation, wildlife, fire ecology,

management indicator species (MIS), non-native invasive species, soils, and water resources

(See FEIS, pp. 51-155). The Forest determined that 44 past, present, or “reasonably foreseeable”

actions on the CNNF had the potential to contribute to cumulative effects, given the temporal

and spatial boundaries of the project (See FEIS, Table 3.12.1, p. 152). The rationale for

Lakewood Southeast 2

considering these cumulative actions is presented by resource, and both the spatial and temporal

boundaries of the cumulative effects analysis are defined for each resource. As stated in Section

3.12 of the FEIS: “[i]n considering, cumulative impacts of the project actions (FEIS chapter 3

discussions); reasonably foreseeable actions were considered in two ways. The first was about

whether the proposed and alternative actions were consistent with the forest plan. The second

was by using detailed, site specific assessments of reasonably foreseeable actions where

meaningful information was available to conduct such assessments.” (FEIS, p. 151).

I find that the CNNF thoroughly considered the cumulative effects of the Lakewood Southeast

Project, using the appropriate scope and scale for each resource. The results of the analysis

allowed the Responsible Official to make a well-informed and supported decision, documented

in the ROD.

“Although the Forest Service claims that there would be no ‘detrimental cumulative

effects to the soil[]’ expected from the Lakewood Southeast Project (App. E at 34),

the Forest Service does not take into account the other impacts that would result from

large scale biomass removal in the project, particularly when taken in conjunction

with biomass removal in Park Falls Hardwoods and elsewhere.” (NOA, p. 2).

Response: The Appellants assert the National Environmental Policy Act (NEPA) analysis does

not adequately consider the impacts associated with biomass removal, including the cumulative

impacts associated with biomass removal in the Park Falls Hardwoods Project. Alternative 3, the

chosen alternative for the Lakewood Southeast Project, authorizes the harvest of 10,751 acres of

timber. Of those acres, 1,634 acres would be available for biomass harvest (See FEIS, p. 39).

The CNNF is approximately 1.5 million acres. Therefore, implementation of biomass removal

proposed in this project would affect 0.1% of the CNNF. Even combined with the 16,984 acres

of biomass removal associated with the Park Falls Hardwoods Project, total biomass harvest

would still potentially affect 1.2% of the Forest. These figures do not support the Appellant’s

claim of “large-scale biomass removal.”

The Park Falls Hardwood project is identified in the FEIS, Table 3.12.1, as one of 44 past,

present, and reasonably foreseeable projects considered in the cumulative effects analysis (See

FEIS, p. 152). In addition to effects on soil resources, direct, indirect, and cumulative effects of

biomass harvest on other resources are discussed in the FEIS, Chapter 3 – “Affected

Environment and Environmental Consequences.” Examples include: wildlife (See FEIS, pp. 72,

78, 81, 84, 88) (effects associated with species such as the Wood Turtle, Red-Shouldered Hawk,

Black-backed Woodpecker, Connecticut Warbler, and Bats); fire (See FEIS, pp. 95, 96); MIS

(See FEIS, p. 105); and water resources (See FEIS, p. 141). No adverse cumulative effects of

biomass harvest were identified for any of these resources.

I disagree with the Appellants’ assertion that the proposed biomass harvest is “large-scale.” In

addition, I find that the Forest did consider the direct, indirect, and cumulative effects of biomass

harvest in the Biological Evaluation, as well as in the analysis of fire ecology, MIS, soils, and

water resources. The Park Falls Hardwoods Project was considered in the analysis when

appropriate. No significant cumulative effects were identified for any resource area. There is no


evidence that the CNNF overlooked or ignored evidence concerning cumulative effects of

biomass harvest.

“The Forest Service should have examined the cumulative impacts of the Lakewood

Southeast Project on seedling regeneration and climate change in conjunction with

Park Falls Hardwoods and all other recent and foreseeable future projects that call

for biomass removal from the CNNF.” (NOA, p. 3).

“For instance, numerous scientific studies have concluded that the removal of woody

debris from forests negatively affects tree regeneration. When woody debris like the

biomass in the Lakewood Southeast Project is removed from the forest, seedlings

become more susceptible to deer browse, and are less likely to regenerate

effectively[]. The effects of biomass removal on deer browse are particularly

relevant . . . given the already overabundant deer population in northern Wisconsin

and its negative effect on regeneration in older forest stands.” (NOA, pp. 2-3).

Response: The concern regarding the effects of biomass removal on seedling regeneration was

not raised prior to this appeal, so there is no specific response to this issue in the PR. However,

the Appellants’ concern about seedling regeneration appears to focus on seedling susceptibility

to deer browse in areas affected by biomass removal. This concern is based on the premise that

the deer population in the project area is “overabundant.” The Forest disagrees with this

assertion, and the PR demonstrates that the deer population is within management targets (See

PR, 5E, Document #8, pp. 27-28). See Issue 2 below for further discussion about this issue.

“In addition, two recent studies have found the biomass removal releases more

carbon dioxide into the atmosphere than simply leaving the biomass in the forest . . .

[t]he more biomass that is removed from the CNNF, the greater the likelihood that

the project will contribute more significantly to climate change.” (NOA, p. 3)

“Hudiburg et al. looked at a large range of forest types and found . . . that biomass

removal increased carbon dioxide emissions.” (NOA, p. 3)

Response: The Hudiburg et al. article was not brought forward prior to this appeal, so there is

no specific response to this issue in the PR. However, review of the article subsequent to the

ROD shows that Hudiburg’s analysis focuses on forests on the west coast of the United States.

The carbon dynamics of western coastal forests are very different than those found in mid-

western forests. In fact, the article states that “forest policy should consider current forest carbon

balance, local [emphasis added] forest conditions and ecosystem sustainability (2011, p.1).”

Hudiburg et al. also based their analysis on the assumption of “large-scale implementation”

(2011, p. 3). The biomass harvests proposed within the Lakewood Southeast Project apply to

1,634 acres, affecting 0.1% of the Forest. As the article also states: “[c]arbon-management is not

the sole criteria that should be considered when planning forest management” (2011, p. 4).

While Hudiburg et al. emphasizes the use of biomass harvest for bioenergy production, the

ultimate goal of which is to change the carbon equation, the management objectives for biomass


harvest in the Lakewood Southeast Project are “to reduce hazardous fuels and reduce fuel

loading for under-burning” (FEIS, p. 120) and to restore pine barrens habitat:

Purpose and Need #6A: “There is a need and an opportunity to restore Pine

Barrens Ecosystems in the Lakewood Southeast Project Area . . . The IDT has

identified a specific area within that area that has exceptional Pine

Barrens/savanna restoration potential.” (FEIS, p. 26).

Purpose and Need #8: “There is a need to reduce hazardous fuels adjacent to

private homes and property in the project area. Reducing the amount of ladder

fuels and flammable fuels within these stands could reduce the size and

occurrence of catastrophic crown fires. This reduction in fuels would increase

firefighters’ ability to safely and effectively control wildfires.” (FEIS, p. 28).

Biomass harvests within the Lakewood Southeast Project support these management objectives

and follow guidelines in the Forest Plan.

In terms of climate change, the project record references a 2006 study by Gower and Ahl,

specific to Wisconsin forests:

“Gower and Ahl calculated the industrial carbon cycle, including all the emissions

associated with timber harvest, transportation, and processing. They concluded

that even with current harvest levels, the CNNF is acting as an overall carbon

sink. This means that more carbon (or carbon dioxide) is stored than is emitted on

the CNNF.” (FEIS, p. 148).

I find that the FEIS gives adequate consideration to the matter of climate change. The paper by

Hudiburg et al. was not brought forward prior to this appeal and the basis for this study is not

necessarily relevant to the Lakewood Southeast Project. The assumptions in the paper relate to

“large-scale implementation” in West Coast Forests. Hudiburg et al. considers, at the upper end,

thinning 50 percent of basal area over all regions and trees in the states of California, Oregon,

and Washington to maximize biomass available for energy production. The Lakewood

Southeast Project includes biomass removal on 1,634 acres in conjunction with timber harvest

activities. The carbon dynamics of a mid-west forest such as the CNNF are very different from

the forests at issue in that study.

“Moreover, Gower’s study of Wisconsin forests found that biomass removal depletes

soil carbon up to 200% . . .”

Response: The 2010 report by Gower cited by the Appellants was published in the peer-

reviewed journal Global Change Biology: Bioenergy in 2011. The Forest responded to the

Appellants’ reference to the Gower study in its response to scoping comments:

“The commenter “slightly” misrepresents Peckham and Gower’s 2011 published findings

by citing one extreme harvest scenario. Peckham and Gower’s computer simulation did

find that if a sugar maple ecosystem were clear-cut at age 50 over a 500 year period with


only 15 percent residue retained, there could be a 200 percent decrease in soil carbon

retained compared to the 500 year no harvest management simulation baseline (p.142).

The CNNF does not manage sugar maple ecosystems this way and on page 138 the

authors state “although not all of these harvest scenarios are realistic forest management

practices, we included all of them for completeness.” (PR, 4A, Document #24, p. 2).

This “extreme harvest scenario” is not relevant to the types of biomass harvest proposed in the

Lakewood Southeast Project. As described above, the biomass harvest proposed in this project

would affect 0.1% of the CNNF.

The Responsible Official is directed in 36 CFR 219.3 to consider the best available scientific

information to inform the planning process, determining which information is “most accurate,

reliable, and relevant to the issue being considered.” The FEIS includes a 4-page report on the

project’s potential effects on climate change, both in terms of carbon emissions and soil carbon

(See FEIS, pp.146-150). The report cites 15 references used to inform the analysis and

concludes the project will have no adverse cumulative effects on climate change.

I find that the FEIS for this project gives due consideration to the cumulative impacts of biomass

harvest on both seedling regeneration and climate change. The FEIS and Project Record

demonstrate a thorough consideration of the “best available science.”

Issue 2 – “THE FOREST SERVICE’S FAILURE TO TAKE A HARD LOOK AT THE

EFFECTS OF THE PROJECT ON DEER POPULATION AND DEER-SENSITIVE SPECIES

VIOLATES NEPA, NFMA, AND THE APA.” (NOA, p. 3-7).

“The Forest Service failed to take a hard look at the effects of the Lakewood

Southeast Project on deer overabundance and also failed to take a hard look at the

effects of current deer populations on tree regeneration after the project is completed.

Instead, the Forest Service sidestepped the overwhelming scientific evidence that

required it to analyze the impacts that both deer might have on the project and that

the project might have on deer populations.” (NOA, pp. 4-5).

Response: The CNNF did discuss the effects of deer population densities on tree regeneration

and habitat for deer and other early successional species associated with aspen and openings.

This discussion is documented in Section 3.6.4 of the FEIS (See FEIS, pp. 109-111), the

Management Indicator Species (MIS)/ Management Indicator Habitats (MIH) specialist report

(See PR, 5E, Document #8, pp. 27-30), and in the “Response to Comments” document in

Appendix E of the FEIS (See PR, 6B, Document #32, pp. 19, 22-24, 29, and 31-34).

The Appellants’ complaint is premised on the assertion that the deer herd within the Lakewood

Southeast Project area is overstocked. This issue was addressed in the Response to Comments,

in which the CNNF responded:


“The CNNF disagrees with the assertion that deer populations in the project area are

overabundant. The issue of Canada Yew is addressed Section 3.6.2. In that analysis, we

provided WDNR data that reports the deer populations in the project area are below

management goals.” (PR, 6B, Document #32, p. 22).

In the State of Wisconsin, the Wisconsin Department of Natural Resources (WDNR) manages

game species and sets hunting policy. The issue of setting statewide deer population goals is

under the jurisdiction of the WDNR. The FEIS for the Lakewood Southeast Project discusses

the current status of deer population numbers in the project area:

“The project area resides in Deer Management Unit (DMU) #49A that recorded a post-

hunt population of 19 deer per square mile in 2010 (Rolley 2012). In 2009, the white-

tailed deer population goal for DMU #49A was lowered from 25 to 20 deer per square

mile, due to concerns for forest regeneration and composition (WDNR 2009). The deer

density for this unit at the end of the 2010 hunting season was five percent under that

population goal (Rolley, 2012). The projects population goal and current densities are

below the 20 deer per square mile, which would promote diverse and abundant tree,

shrub, and herbaceous vegetation (McGuinness, B., D. deCalesta 1996).” (FEIS, p. 109).

While the CNNF has acknowledged the potential impacts of white-tailed deer herbivory in areas

that suffer from high population densities, the Forest reasonably concludes that deer population

is not overabundant in the Lakewood Southeast Project area, as it is below the WDNR

management goals for DMU #49A. The Appellants have provided no information or references

in their appeal that would refute this judgment, and their entire argument is based on their

unsupported assertion that the deer population is too high.

I find that the FEIS did not fail to take a hard look at the impacts of white-tailed deer population

density as the Appellants claim. The FEIS and associated PR clearly analyzed these effects to

the extent that was necessary.

“The Forest Service’s decision to rely on a statistically unreliable and

geographically dissimilar study [Rutherford and Schmitz] . . . violates NFMA’s

requirement that the Forest Service use the ‘best available science’ and the APA’s

proscription against arbitrary and capricious agency decisions.” (NOA, pp. 5-6)

“The Forest Service’s reliance on Royo et al. for the proposition that deer densities

can enhance plant diversity is some cases . . . is similarly inapposite.” (NOA, p. 6)

Response: The Appellants discuss at great length two specific studies referenced in the FEIS:

Rutherford and Schmitz 2010, and Royo et al. 2010. Their specific concerns with the Rutherford

and Schmitz publication relate to the statistical veracity of the study, despite the fact that the

research had been subjected to the standard peer review process in order to reach publication.

Notwithstanding these concerns, the study clearly provided valuable insight into a complex issue,

when combined with publications from other researchers. The Royo et al. study paper provides

relevant discussion that is applicable to deer herds that are not overpopulated. In light of the


CNNF’s reasonable conclusion that the deer population is not overabundant, the evidence

supports the CNNF’s use of the Royo et al. paper.

Additionally, the Appellants’ frequent use of the words “rely” and “reliance” in their appeal

regarding these two studies is an exaggeration of how the CNNF used the references as part of its

overall analysis of deer impacts within the project area. The Appellants imply that the CNNF

used these two studies as the cornerstone of their effects analysis. This is a mischaracterization.

These two studies comprised only a portion of the scientific information that was consulted

during the analysis for this project (See PR, 4A, Document #24; see also 7I, Document #3, #8,

#10, #15, #17, #28, #30, #37, #50, #53, #54, #63 and #65). This information is a selection of

peer reviewed and other literature, internal Forest Service reports, and WDNR reports that

discuss and analyze multiple topics related to deer herbivory, browsing pressure, population

dynamics, winter mortality and browsing effects on vegetation.

I find that the CNNF conducted an adequate impact analysis of white-tailed deer population

density on the Lakewood Southeast Project site based on best available science. I also find that

the CNNF appropriately considered the information presented by Rutherford and Schmitz 2010,

and Royo et al. 2010.

In its response to Appellants’ comments, the Forest Service also contends that clear-

cutting cannot be correlated with an increase in deer populations because of other

factors that could result in an increased deer population. While these factors would

augment deer numbers, they in no way support the assertion that clear-cutting and its

resultant increase in deer forage areas do not also contribute to the deer population

problem, further exacerbating deer impacts to plants.” (NOA, p. 6).

Response: The CNNF concurs that aspen management is one of several possible factors that can

affect the deer population on the Forest. The CNNF completed a comprehensive analysis of

these effects and documented them in the MIS/MIH Specialist Report (See PR, 5E, Document

#8, pp. 27-30), within the FEIS (See FEIS, pp. 109-111), and in the Response to Comments (See

PR, 6B, Document #32, pp. 22-24, 31-34).

Many factors contribute to deer abundance on the CNNF, as discussed in the FEIS:

“In regards to increasing deer abundance via timber harvesting to create early successional

habitat, as proposed in this project, deer abundance is highly influenced by a host of

variables discussed early in this section. Hunter harvest success, recruitment rates, winter

severity, placement of abundant amounts of bait and feed, disease, and predation, all play

significant roles in deer abundance. Quinn et al (2006) looked at the question of aspen

regeneration and influences on deer abundance. He concluded that deer were likely

responding to either climatic, human related or some combination of these factors rather

than responding solely to the harvest of timber on the CNNF.” (FEIS, p. 110).


The FEIS also states:

“Further, recent research also indicates that in some circumstances increasing the amount

of early successional forest habitat may actually have substantial impacts on reducing

deer herbivory in areas where other desired forest species may be limited by herbivory

(Miller et al 2009).” (FEIS, p. 110).

The Forest concluded that deer abundance in Wisconsin is not directly attributed to management

activities on the CNNF, and the temporary increase of high quality deer browse that is created

through this particular project may also serve to shift deer browsing activity to tree species that

are more resilient. As to the Appellants’ reference to the “deer population problem”, please refer

to the above response for further discussion regarding the deer population in the Lakewood

Southeast Project area.

I find that the FEIS took a hard look at the impacts of white-tailed deer population density and

that the FEIS appropriately considered the impacts that the project’s timber harvesting activities

have on the deer population. I also find that the Responsible Official clearly considered the

direct and indirect effects of early successional habitat, local deer population, and their

correlations in making his decision.

Issue 3 – “THE FOREST SERVICE’S FAILURE TO INCREASE GOSHAWK NEST

BUFFERS AND PROVIDE FOR GREATER LANDSCAPE PROTECTIONS VIOLATES

NFMA AND NEPA.” (NOA, pp. 7-8).

“The Forest Service’s failure to take a hard look at the effects of a smaller

buffer on goshawks violates NEPA. Its failure to use the best available

science, both in not releasing or relying upon its own data from the Long Rail

study and in not using the Donner et al. study, violates NFMA.” (NOA, p. 8).

“Moreover, the Forest Service ignores the most recent and relevant science

on goshawk viability in its response, namely a 2013 study by Donner,

Anderson, Eklund, and St. Pierre . . . [i]t concludes that goshawks choose nest

sites based on several factors, all of whose effects extend well outside the 30-

acre nest buffer contemplated by the Forest Service . . . the Forest Service

should take particular care not to disrupt the structural components within

1000 m of the nest sites in the project area. The Forest Service cannot rely

upon claims that habitat will be restored within a certain number of years . . .

because such an argument fails to take into account the Donner et al. study’s

conclusion that goshawk rarely re-occupy previously active sites once they

are forced to move . . .” (NOA, pp. 7-8).

Response: The Appellants argue that the Forest Service failed to “take a hard look” at effects

and use “best available science” by not “releasing or relying upon its own data from the Long

Rail study and in not using the Donner et al. study” (NOA, p. 8). The paper by Donner et al. was


published on-line January 4, 2013 and in the Journal of Wildlife Management in April 2013.

The Forest does refer to the paper and incorporates elements mentioned in this body of work

within the FEIS (See FEIS, p. 102). Specifically, the FEIS states that “this emphasis on conifer

restoration through the project area is likely to increase the suitability of the post-fledging area as

suggested by Donner et al.” (FEIS, p. 102). It is worth noting that the stated objective of the

Donner et al. study was to “determine the probability of an active nest site over time in relation

to forest composition and road density at 3 scales (200-m, 500-m, and 1,000-m radii).” The

study was not designed to determine nest buffer dimensions.

With regard to the Appellants’ assertion that “[t]he Forest Service cannot rely upon claims that

habitat will be restored within a certain number of years . . . because such an argument fails to

take into account the Donner et al. study’s conclusion that goshawk rarely re-occupy previously

active sites once they are forced to move,” the Forest was familiar with the study by Donner et

al. Upon examination of this 2013 publication by Donner et al., I am unable to find any

conclusion that goshawks rarely re-occupy previously active sites once they are forced to move,

which is the basis of this assertion. As noted above, the Forest does reference the Donner et al.

study and does consider the concepts noted in this body of work in the analysis for the Lakewood

Southeast Project.

I find that the FEIS makes a substantial good faith effort to study, analyze and express the

environmental issues and decision making process for the Lakewood Southeast Project with

regard to the goshawk, using the best available science. As discussed above, the paper by

Donner et al. was not principally concerned with the determination of nest buffer dimensions.

Nevertheless, as previously stated, some of the recommendations from this paper are included

within the project recommendations. I find no violation of the NEPA or the National Forest

Management Act.

“The Forest Service was supposed to study the effectiveness of the 124-acre

nest buffer vis-à-vis the 30-acre buffer as a result of the Long Rail settlement.

Given that the Forest Service has not released the results of the study, and

given the goshawk’s viability concerns and its status as a Management

Indicator Species, the Forest Service should be acting cautiously until it

demonstrates that a 30-acre buffer is as effective.” (NOA, p. 7)

Response: In response to the Appellant’s assertion that “[t]he Forest Service was supposed to

study the effectiveness of the 124-acre nest buffer vis-à-vis the 30-acre buffer as a result of the

Long Rail settlement,” review of the PR documents indicates that there is no reference to or

inclusion of any data associated with the Long-Rail study and no discussion of its potential

application to the Lakewood Southeast Project. In response to comments, the Forest noted that

“[t]he signed Long Rail Project Appeal Deposition Agreement (Appeal No. 07-09-13-0012

A215) between the Forest Service and ELPC states that implementation of 124-acre nest buffers

only pertains to the Long Rail Project area and not to any other project management areas on the

CNNF” (PR, 6B, Document #32, p. 39).

As to the Appellants’ concerns related to goshawk viability and MIS status, the CNNF does

reference conservation measures specific to the goshawk at the nest site and beyond. As an


example, the FEIS references application of forest guidelines which are consistent with 2008

WDNR forestry guidelines (See FEIS, p. 102). The Lakewood Southeast Project also

incorporates vegetation prescriptions intended to enhance long-term conifer composition,

maintain canopy cover of 80 percent and retain large-diameter class trees. FEIS Table 3.6.2.1

provides some context for the impacts of the Lakewood Southeast Project within the greater area

of the District, and the Nicolet National Forest (the latter being the more appropriate scale to

assess species viability and MIS conservation) (See FEIS, p. 103). The FEIS states that

“[c]umulative effects to goshawks are analyzed at the scale of the district and the NNF landbase”

(FEIS, p. 107).

As clearly stated in the project record, “[t]he signed Long Rail Project Appeal Deposition

Agreement (Appeal No. 07-09-13-0012 A215) between the Forest Service and ELPC states that

implementation of 124-acre nest buffers only pertains to the Long Rail Project area and not to

any other project management areas on the CNNF” (PR, 6B, Document #32, p. 39). The PR

clearly addresses the continued viability of the goshawk. Again, I find that the FEIS does take a

hard look at effects of the Lakewood Southeast Project with regard to the goshawk using the best

available science.

“Even if the Forest Service were to later argue that it had relied upon the

data from the Long Rail study, its failure to release that data to the public in

the FEIS violates the APA’s mandate that the Forest Service fully explain its

decision-making rationale such that the public could understand what the

agency had relied upon and why.” (NOA, p. 8).

Response: The Project Record does not contain any data associated with any Long Rail study,

nor any discussion regarding its potential application to the Lakewood Southeast Project. The

Long Rail settlement agreement does not note a specific time for implementation or completion

of any study, including data analysis and reporting. Thus, the study does not appear to create a

unique obligation to release any data to the public through the Lakewood Southeast Project

process. For the reasons discussed above, I find that the CNNF adequately explained its

decision-making rationale in this case and I find no violation of the Administrative Procedures

Act.

Issue 4 – “THE FOREST SERVICE’S TROUT STREAM LOGGING STRATEGY VIOLATES

THE APA AND NFMA” (NOA, pp. 8-10).

“The Forest Service’s strategy of logging along trout stream buffer zones in order to

control beaver activity violates the APA because it arbitrarily relies on the assumption

that beaver activity is categorically harmful to trout streams in spite of scientific

literature to the contrary, including the Forest Service’s own research.” (NOA, p. 9).

“[T]he Forest Service ignores the findings of the Fuller and Peckarsky study on the

grounds that it was conducted in mountainous conditions, the study surveyed and cited


numerous studies from many different locations and geographies that had similar

findings . . .” (NOA, p. 9).

“[T]he Forest Service’s own report, on which it relies as justification for the trout stream

logging strategy (FEIS at 135), also concludes that beaver are not categorically harmful

to trout streams . . . [i]gnoring the clear conclusion in its report and others that beaver

impacts vary stream to stream and instead operating under the assumption that beaver

are inherently harmful to trout streams is arbitrary, and violates NFMA’s requirement

that Forest Service officials consider the best available science in implementing forest

plans.” (NOA, p. 9).

“The Forest Service cannot justify the strategy by claiming, contrary to the record, that it

undertook site-specific analysis . . . even if the Forest Service were to claim post hoc that

every stream in the project area has been analyzed and it determined that each has been

harmed or potentially will be harmed by beaver activity, the failure to include any such

analysis in the FEIS is arbitrary and capricious.” (NOA, p. 9).

Response: The CNNF does not conduct logging in riparian areas solely to control beaver along

Class I, II and III trout streams. The Forest Plan direction for the desired future condition of the

stream buffers is to have more long-lived, shade-tolerant conifer and hardwood species rather

than aspen along selected trout streams. The Forest Plan also has specific standards and

guidelines for the management of aspen and beaver along Class I, II, and III trout streams (See

Forest Plan, pp. 2-17). Under Forest Plan Goal 1.3 “Aquatic Ecosystems,” the following

objectives apply:

Objective 1.3g – Protect and restore coldwater stream communities by maintaining Class

I, II, and segments of Class III trout streams and their tributaries in a free flowing

condition.

Objective 1.5b – Cooperate with Wisconsin Department of Natural Resources to establish

a population of beaver across the forest that provides naturally occurring disturbances

through flooding and direct impacts on vegetation, important to ecosystem sustainability.

Juxtapose this population and distribution on the landscape in a manner that avoids

detrimental effects on roads, trails, and other critical resources such as coldwater fisheries

and rare species (Forest Plan pp. 1-4), provides detail for management to discourage

beaver colonization in trout streams and encourage and maintain beaver and aspen in

ecosystems that would not support coldwater species.

The Purpose and Need section of the Lakewood Southeast FEIS states the following:

“There are currently 764 acres of aspen within the selected trout stream buffer zones in

the project area. Little Waupee Creek and Waupee Creek are selected trout streams

(Forest Plan guideline p. 2-17 and Appendix DD-2), where aspen regeneration is not

desired within 450 feet distance of these streams and their tributaries. This project area

also contains several Class I (not selected) and Class II trout streams that require a 300-

foot buffer with no aspen generation. The long-term desired future condition for these


stream buffers is to have more long-lived, shade-tolerant species. There is a need to

convert aspen to other long-lived species within these stream buffers. Aspen

regeneration immediately adjacent to the stream (within 300 - 450 feet) could have an

indirect effect on the streams by providing ample supplies of the preferred food source

for beaver; therefore, encouraging beaver colonization. This colonization can adversely

affect trout habitat by blocking migration, reducing shade through flooding, increasing

water temperature, causing sedimentation of spawning areas, and altering habitat which

causes increased competition from other fish species.” (FEIS, p. 23).

The Aquatics Resource Report for riparian management zones states that “[t]his water resource

effects analysis utilized all available aquatic ecological classification and inventory, water

resource information, current research, and professional judgment of resource specialists” and

that “[t]he effects of the alternatives proposed for this project were assessed on a site-specific

basis and project design features recommended to ensure the quality of the water resources

within and adjacent to the analysis area are maintained” (Aquatics Resource Report, p. 12).

The PR does not support the Appellants’ assertion that the Lakewood Southeast Project decision

is based on the assumption that beaver activity is categorically harmful to trout streams.

However, Forest Plan Goal 1.3 “Aquatic Ecosystems,” Objective 1.3g and Objective 1.5b,

discourages beaver in Class I, II and III trout streams, while allowing for beaver and beaver

management in other water bodies. The adverse effects from beaver are documented in the

Forest Plan, Forest Plan FEIS, the Lakewood Southeast Project FEIS and ROD, and the Aquatics

Resource Report. The alternatives considered in the FEIS propose treatments to manage beaver

as described in the Forest Plan. Logging and planting activities in “Riparian Management

Zones” occur to promote long-lived and shade-tolerant vegetative communities along trout

streams. Beaver are managed to maintain natural disturbance regimes across the CNNF (Forest

Plan pp. 1-4), except along designated trout streams. The PR clearly demonstrates that the

CNNF used site-specific data, field observations at the project area, best available science, and

expert opinion for the analysis (See Aquatics Resource Report, p.12).

While beaver impacts on trout streams may vary, the 2011 Fuller and Peckarsky mayfly study,

which showed both cooling and warming of water temperatures downstream of beaver dams, did

not address management of trout populations or habitat. Other beaver dam studies found similar

variability in water temperatures and flow conditions (see PR, 7P, Document #24, p. 13).

Comments and responses related to best available science, the “no aspen trout buffer,” beaver

versus logging, and effects of beaver have all been addressed in “Response to Comments”

document for the Lakewood Southeast FEIS (See FEIS, Appendix E, pp. 41-44). It is recognized

that best available science might vary over time and across scientific disciplines, but through its

consideration, the scientific integrity of project development and analysis is ensured.

Documentation of best available science in planning and project-level development includes:

identifying methods used, referencing the scientific sources relied upon, discussing responsible

opposing views, and disclosing incomplete or unavailable information (See 40 C.F.R. §§

1502.9(b), 1502.22, 1502.24).

I find that the CNNF did not arbitrarily rely upon an assumption that beaver activity is

categorically harmful. Rather, the CNNF followed Forest Plan direction regarding the long-term


desired future condition of trout stream buffers, which is based on a thorough review of scientific

literature. I find that the Forest adequately considered numerous studies, including the Fuller and

Peckarsky study, in its consideration of best available science. The analysis and the Responsible

Official’s decision are in compliance with the Administrative Procedures Act (APA) and the

National Forest Management Act (NFMA).

“The Forest Service’s strategy also arbitrarily relies upon the assumption that its own

actions would be less damaging to trout streams than beaver activity, when its proposed

actions would create the very problems that the Forest Service claims beaver might cause

without any of the possible benefits of beaver activity . . .” (NOA, pp. 9-10).

“The Forest Service expresses concern over sedimentation and loss of streamside shade

from beaver activity . . . [y]et the Forest Service is willing to create sedimentation by

logging in and around buffer zones when doing so would also reduce canopy cover. The

Forest Service does not respond to Appellants’ questions about the sufficiency of this

strategy . . . ” (NOA, p. 10).

Response: The primary objective for water quality management is to protect, and where

necessary, improve the quality of the water resource consistent with the purposes of the national

water quality goals. The policy includes promoting and applying approved Best Management

Practices to all management activities as the method for control of non-point sources of water

pollution and for compliance with state and national water quality goals; establishing goals and

objectives for managing the quality of the water resource in land and resource management

plans; and producing water of a quality suitable for the beneficial uses identified in the land and

resources management planning process. Desired conditions for water resources from the

CNNF’s Forest Plan include:

Goal 1 - Ensure Healthy and Sustainable Ecosystems (p. 1-2)

Goal 1.3 - Aquatic Ecosystems (p. 1-2)

Objective 1.3e - Improve or restore aquatic/riparian habitat in streams and lakes (p. 1-3)

Objective 1.3g - Protect and restore coldwater stream communities by maintaining Class

I, Class II, and segments of Class III trout streams and their tributaries in a free-flowing

condition (p. 1-3)

Goal 1.5 - Conserve habitat capable of supporting viable populations of existing native

and desired non-native species, and retain the integrity and function of key habitat areas

(p. 1-4)

Objective 1.5 b - Cooperate with the [Wisconsin Department of Natural Resources] to

establish a population and distribution of beaver across the forest that provides naturally

occurring disturbances, through flooding and direct impacts on vegetation, important to

ecosystem sustainability. Juxtapose this population and distribution on the landscape in a

manner that avoids detrimental effects on roads, trails, and other critical resources such as

cold-water fisheries and rare species (p. 1-4)

Standards and guidelines for aspen and beaver management (p. 2-17)

Standards and guidelines for Watershed Protection and Management (p. 2-12); Riparian

Areas (p. 2-2); Wetlands (p. 2-3); Woodland Ponds (p. 2-15); Fisheries Habitat

Management (pp. 2-16, 2-17)


While the FEIS discloses that logging activities generally have potential to cause sedimentation,

the alternatives described in the FEIS minimize any potential harmful effects because of specific

design measure requirements (See FEIS, pp. 41-48). The CNNF has implemented Wisconsin

Forestry Best Management Practices (BMPs) for Water Quality since 1995 and recent field

monitoring indicates that 99 percent of the time there are no adverse impacts to water quality

from soil erosion/sedimentation when BMPs are applied correctly (See FEIS, p. 163; Aquatics

Resource Report, p. 17; see also PR, 7N, Document #28, #57). Current conditions indicate key

soil properties affecting ecosystem health and sustainability such as porosity, organic matter

content, and nutrient availability are representative of the natural range of soil conditions

inherent to the landscape of the CNNF (See FEIS, p. 128; Aquatics Resource Report, p. 5).

Healthy populations of soil microorganisms such as bacteria and fungi exist in the favorable

environment of the forest floor litter layer and soil surface organic matter, which would remain

in place (See FEIS, p. 129). The most recent monitoring in 2006 was conducted on federal and

industrial timber sales. Twenty-eight timber sales were monitored throughout the CNNF. The

Aquatics Resource Report states:

“Application of Riparian Management Zones (RMZ) BMPs increased significantly from

1995-2006. In 1995, RMZ BMPs were applied correctly where needed 79% of the time

and this increased to 94% in 2006. For a more in-depth analysis of the BMP monitoring

results, please see Appendix F- Implementation and Effectiveness of Wisconsin’s

Forestry Best Management Practices for Water Quality on the Chequamegon-Nicolet

National Forest, 1995-2006. Moreover, according to the 2010 Wisconsin Statewide

Forest Assessment the WDNR BMP program is considered a success as studies have

shown that silviculture (logging) is not a significant source of water quality impairment

in Wisconsin (WDNR 2010).” (Aquatics Resource Report, p. 15).

A detailed list of vegetation treatments near water bodies is summarized by each alternative in

Appendix E of the Aquatics Resource Report (See Aquatics Resource Report, pp. 1-12). A

summary of the proposed treatments are listed in Table 5 of the Aquatics Resource Report (See

Aquatics Resource Report, p 14). That report also states the following:

“The proposed treatment types near water bodies are primarily thinning harvests in pine

and aspen stands to promote the succession of red pine and white pine present or under

planted in the stands. Impacts to water quality are negligible from these types of harvests

when project designs features are properly implemented and maintained. Stands

identified in the project design features where harvest operations would be restricted to

frozen ground conditions would not have an impact on water quality. Selection harvests

expose a minimum amount of soil and vegetative cover does not change (Spangenberg

and McLennan 1983). In general, the stands that propose clearcut harvest methods

contain small sections that cross into RMZs, on average less than 3 RMZ acres/harvest

units. Sedimentation would not be expected to occur because equipment operations

would not take place a minimum of 15 feet of the ordinary high water mark except on

roads or at stream crossings within lakes, designated trout streams and streams 3 feet

wide and wider. Project design features, which include BMPs and Forest Plan Standards


and Guidelines, when properly implemented would ensure that project activities would

not cause long term impacts to water quality.” (Aquatics Resource Report, pp. 14-15).

The Responsible Official states in the ROD under Management Requirements:

“All applicable forest plan standards and guidelines, which include implementation of

Wisconsin’s Forestry Best Management Practices for Water Quality Field Manual

(BMPs), will be implemented during harvest, road construction, road reconstruction, and

road decommissioning activities. In addition, site-specific design features listed in the

FEIS section 2.3 (pp. 41-48), will be implemented as part of the selected alternative to

further reduce or eliminate undesirable effects to soil, RFSS, and heritage resources. All

applicable forest plan standards and guidelines are described in appendix D of the ROD.”

(ROD, p. 6).

The PR demonstrates that the CNNF incorporated project design measures and BMPs into the

project to minimize or prevent impacts to resources, including the riparian areas and water

quality. I find that the Responsible Official adequately considered this information and find no

violations of law, regulation, or policy.

“[T]he Forest Service creates the distinct possibility that the strategy’s net effect will be

harmful because the negative impacts from streamside logging may not be offset by the

benefits of reducing beaver activity the Forest Service anticipates, as it is far from clear

that reduced beaver activity will benefit the streams in the project area. Indeed, as the

record shows, reduced beaver activity could very well be detrimental to the streams.”

(NOA, p. 10)

Response: Provisions of 36 C.F.R. §219.15 require that “all projects and activities must be

consistent with Forest Plans.” As discussed above, the Lakewood Southeast Project FEIS

specifically tiers to the Forest Plan FEIS as it relates to trout management, aspen, and beaver

along Class I, II, and III streams (Forest Plan, pp. 1-4 and Appendix DD, p. DD1). Furthermore,

the Forest Plan describes standards and guidelines for managing aspen and beaver, providing

direction for both the positive value of beaver and specific areas where the management is not

compatible with cold water fisheries values. The standards and guidelines for coldwater streams

provide specific direction to deter beaver (Forest Plan, p. 2-17 and Appendix DD).

Adverse impacts from beaver on coldwater trout streams are known, documented, and described

in the Forest Plan, the Forest Plan FEIS, the Lakewood Southeast Project FEIS, and the Aquatics

Resource Report (See also PR, 7P, Document #24, p. 13). The Lakewood Southeast Project

FEIS is clearly tiered to the Forest Plan and the Action Alternatives propose management

treatments that were specifically designed to reduce these impacts by changing habitat to deter

beaver as described in the Forest Plan (See Forest Plan, p. 2-17). Therefore, I find that the

analysis and the Responsible Official’s Record of Decision are in compliance with the APA and

the NFMA.


Recommendation

After reviewing the materials in the PR for the Lakewood Southeast Project, and after reviewing

and considering the concerns raised by the Appellants, I recommend that the decision for this

project be affirmed. I also find that the decision meets the criteria under 36 CFR 219.3 and is

consistent with the applicable provisions of the Forest Plan. Although the Appellants disagree

with the decision, I find no violation of law, regulation, or policy with respect to the issues in this

appeal.

/s/ Robert T. Fallon

ROBERT T. FALLON

Appeal Reviewing Officer

District Ranger

cc: Patricia R Rowell

Brenda Quale

Paul Strong

Jennifer A Dean

United States

Department of

Agriculture

Forest

Service

Chequamegon-Nicolet National

Forest

Supervisor’s Office

500 Hanson Lake Road

Rhinelander, WI 54501

715-362-1300 (Phone)

715-369-8859 (Fax)

TTY: 711 (National Relay System)

Internet: www.fs.fed.us/r9/cnnf

Caring for the Land and Serving People Printed on Recycled Paper

File Code: 1570 Date: December 27, 2013

Ms. Jennifer E. Tarr

Environmental Law & Policy Center

35 East Wacker Drive, Suite 1600

Chicago, IL 60601

RE: Appeal of the Record of Decision and Final Environmental Impact Statement for the

Lakewood Southeast Project Lakewood-Laona Ranger District, Chequamegon-Nicolet

National Forest, Appeal # 14-09-13-0003 A215

Dear Ms. Tarr:

On October 15, 2013, you filed a notice of appeal representing The Habitat Education Center,

Don Waller, Bobbi Peckarsky, David Zaber, the Environmental Law & Policy Center and the

John Muir Chapter of the Sierra Club, pursuant to 36 C.F.R. Part 215 for the Lakewood

Southeast Project, Chequamegon-Nicolet National Forest. The Record of Decision was signed

by District Ranger Jeff Seefeldt on August 29, 2013. The legal notice for the decision was

published in the Northwoods River News (Rhinelander, Wisconsin) August 31, 2013.

I have reviewed the Project Record and considered the recommendation of District Ranger Rob

Fallon, the Appeal Reviewing Officer, regarding the disposition of your appeal. The Appeal

Reviewing Officer’s review focused on the decision documentation developed by the Responsible

Official for this project and the issues in your appeal. This letter constitutes my decision on your

appeal and on the specific relief that you requested.

FOREST ACTION BEING APPEALED

This action will harvest 10,752 acres of timber to manage species age diversity, species

composition, and improve growing conditions. Other vegetation management actions such as

planting, understory burning, wildlife habitat improvements and biomass removal will also take

place. Road management will also take place. The selected alternative is described in detail on

pages 5-6 of the Record of Decision. This decision includes all management requirements and

monitoring provisions as described in the FEIS (section 2.3 and Appendix D).

APPEAL REVIEWING OFFICER’S RECOMMENDATION

The Appeal Reviewing Officer found no evidence the Responsible Official’s decision violated law,

regulation, or policy. He found the decision responded to the comments raised during the decision-

making process and public comment period. In addition, he found the issues in the appeal were

Ms. Jennifer E. Tarr 2

addressed in the decision documentation. Based on this review, the Appeal Reviewing Officer

recommended the decision set forth in the Record of Decision for this project be affirmed.

Please refer to the enclosed recommendation letter, dated December 26, 2013, for further details.

DECISION

After careful review of the Project Record and your appeal, as well as the recommendation of the

Appeal Reviewing Officer, I have decided to affirm the decision for the Lakewood Southeast

Project. I found no violation of law, regulation, or policy with respect to the issues in your

appeal. The Appeal Reviewing Officer’s recommendation is enclosed and incorporated by

reference.

Pursuant to 36 C.F.R. § 215.18(c), this decision constitutes the final administrative determination

of the United States Department of Agriculture. This decision may be implemented on, but not

before, the 15th

business day following the date of this letter (See 36 C.F.R. § 215.9(b)).

Sincerely,

/s/ Paul I. V. Strong

PAUL I. V. STRONG

Appeal Deciding Officer

Forest Supervisor

Enclosure

cc: Jeff Seefeldt

Rob T Fallon

Brenda Quale

Shawn A Olson

Jennifer A Dean

Patricia R Rowell

1570 December 26, 2013 the Lakewood Southeast Project,...

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