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Forest
Service
Allegheny National Forest
Marienville Ranger District
131 Smokey Lane
Marienville, PA 16239
(814) 927-6628
FAX (814) 927-2285
America’s Working Forests ~ Caring Every Day in Every Way Printed on Recycled Paper
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
Lakewood Southeast 3
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
Lakewood Southeast 4
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
Lakewood Southeast 5
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:
Lakewood Southeast 6
“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
Lakewood Southeast 7
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).
Lakewood Southeast 8
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
Lakewood Southeast 9
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
Lakewood Southeast 10
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
Lakewood Southeast 11
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
Lakewood Southeast 12
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
Lakewood Southeast 13
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)
Lakewood Southeast 14
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
Lakewood Southeast 15
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.
Lakewood Southeast 16
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