United States Forest Huron-Manistee National Forests …a123.g.akamai.net/7/123/11558/abc123/forestservic... · 2015. 6. 27. · United States Department of Agriculture Forest Service

United States

Department of

Agriculture

Forest

Service

Huron-Manistee National Forests

Mio Ranger District

107 McKinley Road

Mio, MI 48647

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File Code: 1570 Date: May 31, 2011 Route To:

Subject: Appeal of the Decision Notice and Finding of No Significant Impact for the

Coalbed Run Project Environmental Assessment, Bradford Ranger District,

Allegheny National Forest, Appeal # 11-09-19-0014 A215

To: Appeal Deciding Officer, Forest Supervisor, Allegheny NF

This letter constitutes my recommendation for the subject appeal filed on behalf of the Allegheny

Defense Project (ADP) for the Coalbed Run Project on the Allegheny National Forest (ANF).

District Ranger Anthony V. Scardina signed this Decision Notice and Finding of No Significant

Impact (DN/FONSI) on February 24, 2011. The legal notice was published in the Bradford Era

(Bradford, Pennsylvania) on March 5, 2011.

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

for National Forest System (NFS) 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 Appellant’s issues and the decision documentation submitted by the ANF. My

recommendation is based upon review of the Project Record (PR) including but not limited to, the

scoping letter, public comments, DN/FONSI (DN), and the Environmental Assessment (EA).

The Responsible Official met with the Appellant but was not able to resolve any of the appeal

issues informally.

Background

The Coalbed Run Project involves actions related to transportation, vegetation management and

wildlife habitat improvements. These actions are proposed to address multiple-use resource

management goals and objectives including long-term maintenance of the oak forest community and

oak-type wildlife habitat, improve and maintain vegetation pattern diversity across the landscape that

represents well distributed habitats, provide a sustainable flow of commercial timber products,

improve vegetative diversity and structure within existing wildlife openings, and to maintain and

enhance road systems for public access while meeting the needs of water quality and aquatic

passages. This project does not involve the issuance of Notices to Proceed for outstanding or

reserved oil and gas development (OGD) on the ANF.

The project was first proposed in October of 2009 on the Schedule of Proposed Actions for the ANF.

On October 15, 2009, a detailed scoping proposal was made available to the public that explained

the need for the action, as well as the location and types of activities. The proposal was posted on the

Forest website and mailed to 125 individual and organizations, including adjacent landowners,

subsurface mineral owners, public legislators, the Seneca Nation of Indians, and the Pennsylvania

Fish and Boat Commission. (DN, p. 7). A news release was sent to the local media. Eight

comments were received (PR Vol. 1). No significant issues were developed from scoping. A

Appeal Deciding Officer, Forest Supervisor Allegheny NF 2

Coalbed Project, Appeal # 11-09-19-0014 A215

proposed alternative to re-route the North Country National Scenic Trail and associated structures

was considered in a separate NEPA process and decision, currently available on the ANF website.

On August 25, 2010, the 30-day comment period for the EA began. Appendix D of the EA presents

the two public and governmental agency comments received and the Forest Service responses. (PR

Vol. 1).

The project analysis was informed by a considerable body of scientific information and data

including that compiled during revision of the Forest Plan. The project analysis was appropriately

tiered (40 C.F.R. 1508.28) to the programmatic Final Environmental Impact Statement (FEIS)

developed for the revised Plan concerning vegetation management. Likewise, the most recent

science and analysis developed for the supplemental Forest Plan FEIS prepared in response to the

Chief’s instructions in the administrative appeal decision for the revised 2007 Forest Plan was also

taken into consideration in project development, as well as the public involvement for the

supplemental programmatic FEIS.

While this project does not involve the issuance of Notices to Proceed for outstanding or reserved oil

and gas development (OGD) on the ANF, the potential environmental effects were considered in the

cumulative effects analyses on resources. Appendix C of the EA details the information considered

and how the Reasonably Foreseeable Development Scenario (RFD) was determined for this project.

In addition, the Coalbed Run Interdisciplinary Team (IDT) likewise completed a detailed site-

specific analysis. The science and data supporting the project effects analysis is summarized in the

Coalbed Run EA which incorporates by reference numerous specialist reports containing detailed

disclosure and supporting documentation.

Appeal Issues

The Appellant raised thirteen issues in the appeal of the Coalbed Run Project. Issues were grouped

by commonality and addressed below.

Issue 1: The EA is invalid because the Forest Plan is invalid

The Appellant claims the EA is invalid because it tiered to an invalid Forest Plan and

unfinished NEPA documents. (NOA, p. 34) Specific assertions related to this claim include:

Issue 1.1

―The Coalbed Run EA is invalid because it relies on, tiers to, and incorporates by reference

the ANF Forest Plan FEIS (USDA-FS-2007b) Chapter 3, which provides an invalid analysis

of resources due to the fact that the Forest Service refused to consider oil and gas drilling as

a significant issue throughout the Forest Plan revision process.‖ (NOA p. 34)



Issue 1.2

―Further, the Coalbed Run EA tiers to two unpublished documents, the Programmatic

Effects of Private Oil and Gas Activity on the Allegheny National Forest (USDA-FS 2010,

unpublished) [the Supplemental Environmental Impact Statement (SEIS)] and Site-Specific

Oil and Gas Development on the Allegheny National Forest (USDA-FS 2010, unpublished)

[the Transitional Environmental Impact Statement (TEIS)]…. The Forest Service can only

tier to NEPA-compliant documents. The Forest Service can only incorporate by reference

documents that were not prepared for the purpose of complying with NEPA. The Forest

Service cannot satisfy its NEPA obligations by tiering to or incorporating by reference

unfinished NEPA analysis. The invalid analysis outlined above is reflected in the FEIS, in the

SEIS, and the TEIS, and because of tiering and incorporating by reference, the failure is also

in the Coalbed Run EA.‖ (NOA p. 34)

Response: The Appellant claims the Coalbed Run EA is invalid because of an inadequate

analysis of resources due to the fact that the Forest Service refused to consider oil and gas

drilling as a significant issue throughout the Forest Plan revision process. I find the IDT

accurately responded to this issue: “The decision to be made for the Coalbed Run Project is

whether to manage vegetation and other natural resources in the project area to move from

current conditions towards the desired conditions identified in the 2007 ANF Forest Plan. The

decision for this project will not involve the approval of private oil and gas drilling or revision of

the Forest Plan” (EA, App. D, Comment 2-B, p. 4-5).

The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 et seq., requires that

administration of National Forest System (NFS) lands be guided by an approved Land and

Resource Management Plan (i.e., Forest Plan). NFMA allows considerable discretion to the

agency with regard to the amendment and implementation of Land and Resource Management

Plans; see Section 1604(f) (4). Managing vegetation and other natural resources is consistent

with the revised Forest Plan for the ANF that was approved on February 2, 2007, by Randy

Moore, Regional Forester. The 2007 Forest Plan was based upon considerable scientific and

public involvement through the preparation of a programmatic FEIS. The Regional Forester’s

decision was subject to administrative appeal pursuant to the transition provision of the NFMA

planning regulation, 36 C.F.R. 219.35(a) (2000), and was affirmed by the Chief of the Forest

Service in 2008. The comments did not identify any environmental effects related to the project

that the Agency failed to consider in its site specific analysis.

The Appellant asserts that there are inadequacies in the 2007 Plan, and therefore it should be

invalidated. I find the IDT correctly responded to this issue when it stated that “The Chief of the

Forest Service upheld the Plan except for certain items related to oil and gas that are currently

under review. The ongoing programmatic review of these areas does not require the Forest to

halt management of vegetation and other multiple-use resources.” (EA, App D Comment 2-B, p.

5).

The Appellant claims the Coalbed Run EA tiers to two unpublished documents, the

Programmatic Effects of Private Oil and Gas Activity on the Allegheny National Forest (USDA-

FS 2010, unpublished) [the Supplemental Environmental Impact Statement (SEIS)] and Site-



Specific Oil and Gas Development on the Allegheny National Forest (USDA-FS 2010,

unpublished) [the Transitional Environmental Impact Statement (TEIS)]. The Coalbed Run EA

correctly tiers to the programmatic FEIS for the 2007 Forest Plan (EA, pg. 9, last paragraph; pg

22, last paragraph). The EA does not tier to the two unpublished documents, but references them

as “current supporting ANF OGD information” (EA, pg. 23, first paragraph). The IDT was

correct when it stated these two documents incorporated the best available science and

information. The EA also contains citations to many other Forest Service documents, scientific

articles, technical reports, and personal communication with experts, which simply constitutes

citing the source of the best available science and information relevant to the analysis. Such

reference is not tiering (EA, Appendix D Response to Comments on the Environmental

Assessment, Comment 2-B, pg. 5).

Based upon my review of the PR and applicable legal requirements, I find the Coalbed Run

Project IDT’s consideration of the programmatic NEPA analyses during project development

was appropriate. The Appellant expressed their preference for halting all vegetation

management pending the outcome of the OGD review. However, I find, based on review of the

PR, that suspension of vegetation management in this project area is not in the best interests of

the natural resources in the project area involved nor is it required by law. To the contrary, the

Multiple-Use Sustained-Yield Act of 1960 directs the Secretary of Agriculture to “develop and

administer the renewable surface resources of the national forests for multiple use and sustained

yield of the several products and services obtained there from.”

Issue 2: The Forest Service must prepare an Environmental Impact Statement.

The Appellant claims the Coalbed Run Project needs to be analyzed in an EIS because of

potential effects to other resources and due to the scale and intensity of the proposed action.

(NOA, p. 35) Specific assertions related to this claim include:

Issue 2.1

―The combination of the magnitude and the number of intensity factors requires the Forest

Service to prepare an EIS. First, as stated, while this project is not as large as Mortality II

[NOTE ref. to Curry v. U.S. Forest Service], it is still much larger than both of the projects

the Forest Service used in its defense to justify its decision not to prepare an EIS in that

case…..Additionally, regarding intensity, the Coalbed Run project area contains two High

Quality-Cold Water Fishery streams (Bobbs Creek and Fork Run). The project area is

bounded to the north by the Hickory Creek Wilderness and partially to the east by the

Minister Valley Wilderness Study Area. The North Country Trail transects the project area,

which drains unimpounded into the Allegheny River, part of the so-called ―13%‖ area. The

13% area is important because this part of the Allegheny River is home to the critically

endangered northern riffleshell and clubshell mussels. All of these factors indicate, as the

Curry court ruled in Mortality II, that the Forest Service must prepare an EIS for Coalbed

Run Project.‖ (NOA, p. 35-36)



Response: The Appellant raises several issues that will be included below as subpoints. The

Appellant’s overarching claim is that the Coalbed Run Project meets several of the criteria for

significance and therefore needs to be analyzed in an EIS.

The NEPA regulations require federal agencies to assess project significance based upon the

application of particular factors in the context of the proposed action. The requirement for the

preparation of an EIS is the result of an analysis of direct, indirect and cumulative effects that

concluded that significant effects are likely to occur.

Federal courts have recognized the “twin aims” of NEPA are to obligate federal agencies to

examine the significant aspects of the environmental impacts of a proposed action and to ensure

the agency informs the public and reaches an informed decision after considering the

environmental effects of its decision. The NEPA does not require federal agencies to assess

every effect of an action, but only the effects on the environment which are causally related to

the action. In other words, agencies must look at the relationship between the environmental

effect and the change in the physical environment caused by the federal action. There must be a

reasonably close causal connection between the effect and the action. The courts have recognized

that there must be a “manageable line between those causal changes that may make an actor

responsible for an effect and those that do not.” New Jersey DEP v. U.S. NRC, 561 F.3d 132,

139 (3rd

Cir. 2009). While the agency is responsible to consider objections raised by the public,

the Appellant must address the effects analysis and reasoning set forth in the PR and provide

evidence that demonstrates the rationale of the FONSI is unreasonable. Citizens Advisory Comm.

v. U.S. Dept. of Justice, 197 F. Supp. 2d 226, 262 (W.D. Pa. 2001).

Having determined which effects are proper to be assessed, the NEPA requires the agency to

take a hard look at the environmental effects of its proposal. The NEPA regulations at 40 C.F.R.

1508.27 state agencies must assess the context and intensity of their actions to determine

significance. The Third Circuit has long recognized that the review of context and intensity

involves consideration of both short and long term environmental consequences. Lower Alloways

Creek Township v. Public Service Elec. & Gas Co., 687 F.2d 732, 740, 741-742 (3rd

Cir. 1982).

When an agency concludes in a FONSI that its action will not have a significant effect on the

environment, the agency must briefly present the rationale for its finding. The agency must take

a hard look at effects and document its findings, but it is the Appellant’s responsibility to

“demonstrate specifically how and why . . . the finding of ‗no significant impact‘ was somehow

erroneous or unreasonable.” Id. at 743. Neither “broad-sweeping” or “bald” assertions regarding

the significance of effects, nor mere dissatisfaction with the outcome of an analysis, is sufficient

to show that a FONSI is arbitrary or capricious. Id. at 747. The Appellant must “address or

confront the detailed and comprehensive analysis and studies complied by the agency” in order

to show the project will have significant effects. Id.; see also Friends of the Astor v. City of

Reading, 1998 U.S. Dist. Lexis 14935 at * 21 (E.D. Pa. 1998) (plaintiff failed to show likelihood

of success on the merits by relying on broad, general allegations concerning the NEPA

significance of effects)

The Coalbed Run EA summarizes the potential site-specific effects identified and analyzed

during project development. As noted above, the project EA is appropriately tiered (40 C.F.R.

1508.18) to the programmatic discussion of vegetation management in the EIS prepared for the



revised Forest Plan. The EA discloses the site-specific effects to air, water, soils, vegetation,

wildlife, recreation, and other resources. The decision documentation incorporates the analysis

set forth in the EA and is informed by the specific discussions, by resource, included in the EA

and referenced documents in the PR. The DN/FONSI considers the context and intensity factors

of 40 C.F.R. 1508.27 and documents the findings of the Responsible Official that the Coalbed

Run Project contains no significant effects that trigger the need to prepare an EIS (DN, p. 8-13).

The Appellant raises the issue of a need for an EIS several times throughout the process and in

the appeal. The PR shows a thorough response to these comments and is addressed in the

following locations: (PR, Vol. 1 Public Scoping Comments Summary and Issue Analysis

(Comment 7D, p. 3; Comment 7H, p. 3; Comment 7J, p. 4; Comment 7N, p. 4-5, Comment 7F,

p. 5, Comment 7I, p. 15; Comment 7K, p. 15), EA, Appendix D, (Comment 2D, p. 6-8;

Comment 2J, p. 11-12, Comment 2KK 24-25), EA (Hydrology, p. 36-39; Recreation, p. 39-41),

PR, Vol. 4 Recreation Specialist Report (Recreation Opportunity Setting, p. 3-8), EA Appendix

B1 Biological Assessment (Mussels, p. 26-32, 39-44), DN/FONSI (Context, p. 8; Intensity - 13%

Area, p. 9)

I concur with the Responsible Official’s analysis in the DN/FONSI that the Coalbed Run Project

will not have significant environmental effects and therefore preparation of an EIS was not

necessary.

Issue 2.2

―The following compartments and stands directly impact the Hickory Creek Wilderness Area

and the Minister Valley Wilderness Study Area (see NOA p. 38). The scale of the Coalbed Run

project will alter the experience of those seeking a nature-based experience when they use

these areas of the forest. The Coalbed Run project will also significantly alter the ecosystem

dynamics in these areas and decrease their ability to maintain the quality and integrity

needed for MA 5.1 and 5.2 areas‖. (NOA p. 37-38) The cumulative impact of OGD and the

proposed actions in the Coalbed Run project on the Hickory Creek Wilderness Area, and the

Minister Creek Wilderness Study Area must be evaluated in an EIS. (NOA, p. 42)

Response: There are several sub-points identified by the Appellant’s Issue 2.2. These items

include the proximity of vegetation management to Hickory Creek Wilderness Area and the

Minister Valley Wilderness Study Area, ecosystems dynamics in MA 5.1 and 5.2, and

cumulative effects of proposed action and OGD on the Hickory Creek Wilderness Area and the

Minister Valley Wilderness Study Area.

The EA and Response to Comments clearly present activities allowed under the Wilderness Act

and the short–term effects of vegetation management in proximity to the Wilderness Area. The

Appellant’s claim that an EIS is needed to determine cumulative effects of OGD and Coalbed

Run Project proposed actions is addressed clearly in the response to comments (EA, App. D,

Comment 2-J). The information provided clearly explains the proposed actions and the

relationship to adjacent Wilderness. The impact of OGD is discussed in Appendix C Project

Level Scenarios for Future Private Oil and Gas Development.



Comment 2-J:

Forest Service Response: Federal law (Wilderness Act of 1964) and Pennsylvania

statutes (Pennsylvania Wilderness Act of 1984) allow management of forest land

adjacent to wilderness without buffers. The proposed vegetation treatments and road

activities adjacent to wilderness meet Forest Plan management direction (USDA-FS,

2007a, pp. 116-120), Section 9 of the Wilderness Act directly addresses buffer zones

around designated wilderness areas. It states, in full: “The Congress does not intend that

the designation of a wilderness area under this Act lead to the creation of protective

perimeters or buffer zones around such wilderness area. The fact that non-wilderness

activities or uses can be seen or heard from areas within a wilderness shall not preclude

such activities or uses up to the boundary of the wilderness area.”The direct, indirect, and

cumulative effects of proposed activities on wilderness and wilderness study areas were

analyzed. Page 40 of the Coalbed Run EA discloses that “The indicator of remoteness

may temporarily shift to inconsistent in the Roaded Natural ROS setting as a result of the

noise from proposed harvest activities and pit development, especially near the NCT and

for public visitors using the southern portion of the Hickory Creek Wilderness Area near

FR 199.

This would not be a long-term effect and would only last as long as the equipment is

active in the area.” This conclusion would be the same for the proposed vegetation

treatment (Stand 27) adjacent to the Minister Creek Wilderness Study Area.

The commenter does not specifically state how the Coalbed Run Project will significantly

alter ecosystem dynamics in wilderness and wilderness study areas. There are no

proposed activities within wilderness or wilderness study areas that would alter

ecosystem dynamics in these areas. (EA, App. D, 2-J)

Refer to the response above to Issue 2.1 for information related to cumulative effects of the

proposed action and OGD on the Hickory Creek Wilderness Area and the Minister Valley

Wilderness Study Area.

I concur with the Responsible Official, the IDT, the EA and analysis, and find that the PR shows

the issue was thoroughly addressed. For the comment requesting the evaluation of the study area

in an FEIS, I reference the response for Issue 2.1 where I agree with the Responsible Official’s

DN/FONSI that the Coalbed Run Project does not contain significant environmental effects and

therefore preparation of an EIS was not required.

Issue 2.3

“The Forest Service has not analyzed the impact of its current vegetative management

practices (e.g., prescribed burn, use of glyphosate, fertilization, clearcutting, etc.) on forest

mycelium. Mycelium plays an essential role in the Allegheny National Forest and in the

Coalbed Run Project Area… The USFS has, in fact, not provided sufficient evidence and

analysis, and must prepare an EIS in the Coalbed Run EA (as required by 40 CFR 1508.9).”

(NOA, p. 38, 54-55)



Response: The Appellant describes the importance of fungal mycelia to forest ecosystems and

presents three research papers (NOA, p. 38). This research, the Appellant contends, shows the

risk that Forest Service use of glyphosate and fertilizer poses to mycelium viability. From the

Appellant concludes “the USFS has, in fact, not provided sufficient evidence and analysis, and

must prepare an EIS in the Coalbed Run EA.”

In an ecological context, fungi are important for decomposition, effects on soil moisture, nutrient

transport to and from plants, and as pathogenic agents. The implications of fungal diversity and

changes in community structure are the topic of ongoing research (Hoff and others 2004).

In the Response to Comments (EA App. D, D-12), the EA expressly addresses the effects of

glyphosate and fertilizer on mycelia. Ample evidence in the PR indicates that adverse impacts to

mycelia are not an unknown risk.

In the Soils Report December, 2008 (PR, Vol. 4, p. 3), the ANF analyzes the effects of herbicide

use on soils, and concludes that at the application rates, typical and maximum, planned for the

ANF, neither sulfometuron methyl nor glyphosate should reduce the activity of soil

microorganisms nor adversely affect them in such a way as to reduce site or soil productivity.

In the EA (Ch. 3, p. 42), the ANF addresses short-term effects, including application of herbicide

and fertilization. These activities are short in duration (3 years or less) and do not create

detrimentally disturbed sites. Furthermore, the Coalbed Project would be implemented consistent

with Forest Plan Standards and Guidelines (S&Gs), as well as all other applicable laws,

regulations, and policies regarding management of soil resources.

In the ANF programmatic FEIS Appendix G, Impact on Soil Productivity (p. G1-44), the ANF

determined that herbicides used by ANF are formulated to target plant growth (not soil

microbes), and the best available studies do not indicate that either herbicide affects nutrient

cycling in forest soils (e.g. nitrogen mineralization). Bromilow et al. (1996) noted no effects on

soil fertility in repeated applications over 14 years, from 1980 to 1993, of glyphosate at 1.4 kg/ha

based on assays for microbial biomass and crop productivity. From this and additional

information in Appendix G2 pp. G2-33 and G2-42, it is evident the proposed use of glyphosate

and sulfometuron methyl will not adversely affect soil nutrient cycling.

Furthermore, the ANF FEIS (p. G2-42) includes analyses of herbicide treatment. SERA (2004a,

section 4.1.2.5) reports that sulfometuron methyl, at concentrations as low as 0.2 μM [73 μg/L]

in a liquid glucose medium, caused significant growth inhibition in Salmonella typhimurium

after exposure periods of less than 3 hours (Epelbaum et al. 1996). In plate cultures using solid

growth media, Burnet and Hodgson (1991) found that sulfometuron methyl also inhibited the

growth of several soil microorganisms. However, at concentrations up to 1000 μg/g soil, no

effects were observed on the microbial populations and at soil concentrations ranging from 0.098

to 0.98 ppm, no significant effects were observed on nitrate production, or cellulose, protein or

starch metabolism (Anderson and Berg 1980). From this it is evident the proposed use of

sulfometuron methyl will not adversely affect soil nutrient cycling or soil productivity. (see

additional discussion of this topic in Appendix G-1 p. G1-106).



There is no evidence or substantive reason to believe proposed activities in the Coalbed Run

Project would have significant adverse effects on fungal mycelia or the ecological functions they

perform in forest ecosystems. Soil fungi are diverse, ubiquitous, and quickly recolonize soil and

litter following short-term disturbances. As such, any effects of vegetation management on

fungal mycelia would be rapidly ameliorated through reforestation activities.

The PR documents the analysis, findings, and conclusions that support the Responsible Official’s

decision. The direct, indirect, and cumulative effects upon forest mycelium resources were

analyzed and disclosed. The EA was made available to the public, and the comments received

were carefully considered. No information submitted to the agency regarding potential

environmental effects was ignored. In the light of the comments received, the Responsible

Official carefully examined the effects analysis to ensure that the analysis, findings, and

conclusions complied with NEPA.

Issue 2.4

―The Coalbed Run EA did not adequately study the proposed action in the context of

cumulative effects and climate change‖ (NOA, p. 42)

Response: Climate change is addressed in the Vegetation Specialist Report for the Coalbed Run

Project (PR, Vol. 4 Chapter 1.1, p. 10).

The analysis and discussion in the Forest Plan and FEIS regarding climate change was affirmed

in the Chief’s February 15, 2008, Appeal Decision for the ANF Forest Plan which concluded that

the uncertainty related to climate change is acknowledged by the Regional Forester and is

discussed in the FEIS (pp. 3-83 to 3-84). He states, “Because there is currently no reliable way

of predicting future climate change or its effects, the Plan provides for maintaining a diversity of

plant and animal communities that will enhance the resiliency of the forest to respond to these

changing conditions. . . .The Plan provides flexibility to use a variety of treatments and an

adaptive management approach in order to appropriately respond if and when problems occur”

(ROD, p. 24). The revised Plan provides ample management direction, in the form of Forest-

wide goals (e.g., 2070 Biological Diversity, p. 13; 2400 Vegetation, p. 14; 2500 Watershed and

Air, p. 14; 2600 Wildlife, Fish, and Sensitive Plant Habitat, pp. 14 to15); objectives (e.g., 2400

Vegetation, p. 19; 2600 Wildlife, Fish, and Sensitive Plant Habitat, p. 20), design criteria (e.g.,

2400 Vegetation, guidelines, pp. 64 to 65; Rotation Age standards, p. 67; 2600 Wildlife, Fish,

and Sensitive plant Habitat, Habitat Diversity guidelines, pp. 80 to 81), and management area

(MA) direction (e.g., MA 2.2, pp. 109 to112). This direction provides a framework for

maintaining a diversity of plant and animal communities and strives to enhance the resiliency of

the ANF to respond to changing conditions. I find the FEIS complies with the NEPA (36 C.F.R.

219.12 and 36 C.F.R. § 219.27(a) (12)) and the NFMA (40 C.F.R 1502.14 and 1502.16).” (PR,

Vol. 6, Climate Change Support Material for Project Level Analysis, p. 1)

The Appellant acknowledged in the appeal the need to “manage for healthy, resilient forests with

a high degree of biodiversity to deal with climate change.” Based on the Forest Plan and Record

of Decision (ROD) language cited above, it is clear the ANF agrees with this statement. In

addition, the Coalbed Run DN/FONSI talks about managing for resiliency to address climate



change, stating that “The Forest Plan provides for maintaining a diversity of plant and animal

communities that will enhance the resiliency of the forest to respond to these changing

conditions. This project is tiered to the Forest Plan Final Environmental Impact Statement

(FEIS) and a summary of the climate change information utilized in preparation of that

document is contained in a paper titled ―Climate Change Support Material for Project Level

Analysis” (DN/FONSI, p. 10). I find the Responsible Official considered the connection

between the proposed action and climate change.

I find the Appellant’s claim is not substantiated. The Responsible Official adequately studied the

proposed action in the context of cumulative effects and climate change and reasonably

concluded that no significant adverse effects would occur to climate as a result of the Coalbed

Run Project.

Issue 2.5

―[T]he Forest Service must conduct an EIS to determine the effects of prescribed burning on

air quality, and public safety in the context of current and past oil and gas extraction and

unconventional hydrocarbon extraction within the Forest boundaries on in-holdings, and

within at least two miles of the boundaries of the Forest given the horizontal drilling practices

and gas migration potential.‖ Shallow wells and leaking gas lines can also be fire risks.

(NOA, p. 44-45)

Issue 2.6

―Detailed geologic, and public safety studies must be conducted in an EIS. Cumulative

impacts to air quality from OGM development across the forest have never been assessed and

must be addressed in an EIS‖. (NOA, p. 45)

Response: The potential effects of emissions (timber harvest and prescribed burning) in

combination with the effects of emissions from OGD on air quality are explicitly discussed and

analyzed within the project area, and put into the context of a four-county area (Final Errata to

the Coalbed Run Project Environmental Assessment Supplemental Tables 1 and 2 page 6). This

analysis considered the potential for the project to alter levels of ozone, volatile organic

compounds (VOC), carbon monoxide (CO), nitrogen oxides (NOx), and particulate matter (PM).

It concludes that proposed activities would result in VOC, CO, NOx, and PM emissions and

production of smoke from fires but these all would be scattered over time and space as individual

activities are implemented and would be quickly diffused. The cumulative effects analysis

acknowledges that OGD results in much greater emissions of all pollutants. Given that data from

Environmental Protection Agency (EPA) monitoring stations show the area is well within

national air quality standards, “[t]he cumulative effects of past, present, and reasonably

foreseeable future federal and non-federal actions are not expected to bring any of the criteria air

pollutants to levels that exceed the NAAQS (note: National Ambient Air Quality Standards)”

(EA, p. 31)

The EA included an analysis of the potential effects to human health and safety (EA, pp. 34-35,

EA Errata p. 5). Human risks are also discussed in the Forest Plan FEIS and the Forest Plan,



Appendix G. Prescribed burning can pose a hazard to forest users and those driving through the

project area. Wind direction may cause smoke to temporarily impair visibility for humans.

Multiple safety, control and mitigation measures will be incorporated into each prescribed fire

that is completed. The Forest will also be applying knowledge resulting from the oak

regeneration study conducted on the ANF in conjunction with the Northern Forest Research

Station (USDA-FS, 2003). The ANF will develop safeguards to ensure the protection of human

life, surrounding private lands or structures, other fire sensitive forest communities, and the local

resources present on that site. Forest Service Manual (FSM) 5140 guides the development of

burn plan preparations. Further information regarding prescribed fire may be found in the Forest

Plan (pp. 70, A-32) and the ANF FEIS (p. 3-125).

The Appellant asserts the cumulative effects analyses for air quality and safety should extend

two miles beyond the ANF boundary due to potential expansion of OGD. There is nothing in the

NEPA or its regulations that prescribe particular boundaries for cumulative effects analysis

areas; this is a matter left to the discretion of local decision-makers based upon their analysis of

site-specific resource conditions. The PR clearly describes and documents the rationale for the

cumulative effects analysis boundaries (EA, p. 23-27). My review of that information indicates

that the IDT made a reasonable choice based upon the best available data and science in

determining the appropriate bounds for the cumulative effects analysis area.

The Appellant has provided no evidence to support their contention that the cumulative effects

on air quality and public safety would be significant, requiring the preparation of an EIS, nor has

the Appellant provided any supporting evidence as to why this analysis or analysis boundaries

are inadequate.

In response to the Appellant’s statement that an EIS must be conducted, I reference Issue 2.1,

where I concluded with the Responsible Official’s DN/FONSI that the Coalbed Run Project

does not contain significant environmental effects and therefore preparation of an EIS is not

required.

Issue 2.7

―The Forest Service must consider available early successional habitat on private and other

agency lands within the proclamation boundary and surrounding the Allegheny National

Forest. The Forest Service must disclose in an Environmental Impact Statement (EIS) how

much early Successional habitat is available on these other lands before claiming there is a

need to cut trees on the national forest. The Forest Service did not analyze the early

successional habitat on non-National Forest System lands in the Coalbed Run EA and must

do so in an EIS.‖ (NOA, p. 45-46)

Response: The Appellant claims the availability of early successional habitat on private and

other Federal lands within the ANF proclamation boundary and surrounding region must be

disclosed in an EIS. This comment is identical to one made during the EA comment period and

the ANF addressed it in the EA Response to Public Comments (PR Vol. 5, EA, App. D, p. 15-

16).



The Appellant also claims the amounts should be disclosed in an EIS. The NEPA requires

preparation of an EIS when effects of a federal action are significant in context or intensity. The

DN/FONSI documents the Responsible Official’s determination, based on review of the EA and

PR, that the project will not have significant adverse effects (PR Vol. 5, DN/FONSI, pp. 8-11).

Also see Response to Appeal Issue 2.1.

The EA and PR address the amount of early successional habitat on both federal and non-federal

lands in the project and cumulative effects areas. The Wildlife Specialist Report cumulative

effects analysis, states “[m]uch of the non-federal land within and adjacent to the CB project area

is considered industrial forest land and in the last 10 years, timber harvest has occurred on

approximately 3000 acres of these lands. Also additional harvest is expected on these lands in

the future…” (PR Vol. 4 Wildlife Report p. 11). In addition, this section also states that early

structural habitat is below Forest Plan objectives, at only 3 percent and declining versus the

objective 10-12% in MA 3.0 and 6-7% in MA 6.1. This assessment of 3 percent in early

structural forest includes the 16 percent of the project area that is not in federal ownership (PR

Vol. 4 Wildlife Report, p. 13). Also see the “Landscape Level Changes in Habitat” discussion,

which shows that early structural habitat will increase from 3.2 percent of the cumulative effects

area to 7.5 percent as a result of the chosen alternative. This analysis includes activities on both

federal and non-federal lands (PR Vol. 4 Wildlife Report, p. 48).

Early successional age class conditions are also addressed in the Project Area Vegetation Analysis,

which includes a cumulative effects discussion that analyzes non-federal forest lands within the

project area. This is also the cumulative effects area for the vegetation resource. The analysis

discusses that private lands (with 94 percent being industrial forestlands) will contribute to 12 percent

early age class forest creation in the analysis time period. (PR Vol. 4, Coalbed Project Area

Vegetation Analysis, p. 9).

The Appellant also contends the Coalbed EA early successional habitat analysis should include

all lands within the ANF proclamation boundary. All of the resource sections describe their

cumulative effects analysis boundaries and their rationale for their spatial and temporal limits for

these boundaries (EA, Table 12, p. 26-27). I find that this rationale is appropriate based on the

site-specific resources, and there is no reason to look at the whole ANF within the proclamation

boundary for cumulative effects.

Forest-wide planning and environmental analysis is the appropriate place and decision making

scale for reviewing broad scale habitat needs across the ANF. The PR shows the ANF FEIS

studied the cumulative availability of early successional habitat on private and other agency

lands. The ANF FEIS analysis of Forest-wide and regional conditions provides the context for

Forest Plan direction related to vegetation management, which describes the desired amounts of

early and late structural habitat for each management area.

Lastly, the Appellant contends the Coalbed EA should include an analysis of the need to create

early successional habitat in a regional context. The EA “Affected Environment and

Environmental Consequences” (p. 20) compares Forest availability of early successional habitat

to that of the surrounding forested lands - “The decline of early structural habitat and increased

amounts to mid-structural habitat is similar to trends that are occurring throughout Pennsylvania

(USDA-FS 2007d) and across the Region.” The Scoping Document (p. 6) and the EA (p. 10)



identified the Forest Plan goal to provide diverse vegetation patterns across the landscape to

represent well distributed habitats, a range of forest age classes and vegetative stages, a variety

of healthy functioning vegetation layers, moderate to well stocked forest cover, and the variety of

vegetation species or forest types necessary to achieve multiple resource objectives and sustain

ecosystem health (FP, p.14 and 19) as one need for this project. This goal establishes the need to

create early successional habitat. The project’s Response to Comments (EA, App. D 2-P, p. 15-

16) describes how the ANF FEIS considers age class diversity of forested stands in a regional

context (ANF FEIS, p. 3-170 to 3-171).

The PR clearly demonstrates the Responsible Official took a hard look at the cumulative effects

of the creation of early successional habitat on agency and non-federal land in the Coalbed Run

Project area. None of the resources found any cumulatively significant adverse effects from

management for early successional habitat. Therefore, I conclude that this analysis is adequate

and that an EIS is not required.

Issue 2.8

―[T]he Forest Service must conduct an EIS to consider the extremely damaging and

significant impact and the cumulative effects on regional forest ecosystems of the Marcellus

Shale gas play.‖ (NOA, p. 46)

Response: The Coalbed Run Project contains no proposals for oil and gas development. Refer

to previous responses (Appeal Issue 2.1) in regards for the need to prepare an EIS.

The Project Level Scenarios for Future Private Oil and Gas Development document describes the

reasonably foreseeable future oil and gas development within the vicinity of the project area and

does not describe existing or future Marcellus gas development in that area (EA, App. C). It

states “The Responsible Official determined that Marcellus shale development is not a

reasonably foreseeable future activity for the Coalbed Run project. There is no active or

proposed Marcellus shale development within the Coalbed Run Project area. The nearest

developments are two wells drilled on private land roughly 3.5 and 4 miles to the southeast”

(EA, App. C, p. 4).

The Response to Comments (EA, App D, p. 16) also responds to this issue with the same

information. The Forest has shown that the Marcellus Shale gas is not a present or reasonably

foreseeable action within the Project Area or the cumulative effects areas because the closest

well of this type is four miles away and no additional wells are proposed or foreseeable in the

project area. The Programmatic Effects of Private Oil and Gas Activity on the ANF identifies the

potential effects of Marcellus shale development on a wide variety of resources and is

documented in the PR, Vol. 6). That report states, “given the small number of Marcellus wells

that are expected to be developed (3 wells per year) impacts are generally anticipated to be

localized to the vicinity where development occurs and not widespread in nature” (PR, Vol. 6, p.

1).

The Appellant does not provide additional description of the specific adverse effects of

Marcellus well development in the project area. Therefore, since there are no near-by wells and



since the effects of Marcellus wells are expected to be limited to the local vicinity, the

Responsible Official was reasonable in his determination there would not be reasonably

foreseeable effects from Marcellus Shale development in the project area and cumulative effects

areas.

Issue 2.9

―There is no analysis or discussion of existing, site-specific oil and gas impacts in the context

of the proposed site-specific ―vegetative treatments‖ (AKA clear cuts, herbiciding, burning,

fencing, etc.). The Coalbed Run EA clearly does not provide adequate analysis of the

cumulative impacts of oil and gas drilling, or vegetative management. The Forest Service

must conduct an EIS to address these issues. (NOA, p. 48)

Response: See previous responses about NEPA significance, in particular see Appeal Issue 2.1.

The Appellant asserts that additional, site-specific analysis of cumulative impacts from

vegetative treatments and OGD are needed. Appellant also claims the ANF inappropriately

incorporated by reference the document “Site-Specific Effects of Private Oil and Gas

Development on the Allegheny National Forest” (PR, Vol. 6 - References) because the document

has not been provided to the public and was developed for a NEPA analysis that has not been

completed.

The EA (p. 22) indicates there are currently 214 private oil and gas wells on NFS lands in the

project area and projections predict another 142 wells on NFS lands in the next 20 years. These

sites were included in the projects considered for cumulative effects (Table 11, EA p. 25). As

stated in the Project Level Scenarios for Future Private Oil and Gas Development (EA, Appendix

C, p. 5), it is not possible to predict where on the landscape future wells will be developed.

However, Scenario 3, the development scenario chosen by the Responsible Official as the best

representation of reasonably foreseeable oil and gas development, did utilize GIS and site-

specific resource information (including known geologic, geographic, cultural and water features)

to determine where well development would be most likely to occur (EA App. C, p. 5).

Therefore, estimates of development levels and types of impacts from future private OGD were

used in the Coalbed analysis. The documents Programmatic Effects of Private Oil and Gas

Activity on the ANF and Site-Specific Effects of Private Oil and Gas Development on the ANF

(PR, Vol. 6 - References) provide a detailed analysis of the direct, indirect and cumulative effects

of OGD activities throughout the ANF on a wide variety of resources. Based on the estimates of

future OGD in the past, on-going, and reasonably foreseeable projects list for the Coalbed Run

Project (EA, p. 22, 25), the types of effects described in the programmatic document were

considered, along with direct and indirect effects from all activities in the Coalbed Run Project.

In the DN/FONSI (p. 6), the Responsible Offical described the interdisciplinary analysis and

process used to analyze the cumulative impacts of OGD and determine that the cumulative

effects were not significant.

After review of the PR and other documentation, I find that the Coalbed Run Project report has

appropriately analyzed and documented the cumulative effects analysis of private OGD activities

in the context of impacts from the proposed project.



Issue 2.10

―The Forest Service has not, but must, consider the cumulative effect of water withdrawals for

oil and gas drilling and fracking (both shallow and deep wells) in the project area, and in a

redefined cumulative effects area. The Forest Service must also study as part of a cumulative

effects analysis the impact of untreated Marcellus Shale Wastewater being dumped into the

Allegheny River at Warren through the Waste Treatment Corporation.‖ (NOA, p. 50)

Response: The Appellant claims the Forest should have considered cumulative effects of water

withdrawals and wastewater from oil and gas development. As previously noted, the Coalbed

Run Project does not involve any water withdraws for private oil and gas development. In the

PR, the document Programmatic Effects of Private Oil and Gas Activity on the ANF (PR Vol. 6

– References, p. 11), indicates the State would ensure water quality standards and applicable

water quantity requirements were met.

The direct, indirect, and cumulative effects to water associated with the Coalbed Run Project are

analyzed in the hydrology section of the EA (p. 36-39). For this analysis the EA tiers to the

Forest Plan FEIS, which “provides documentation which demonstrates minimal effects to water

temperature, buffering capacity, nutrient concentrations, and sediment concentrations from

vegetation management and reforestation activities.” (EA p. 37). Table 14 and the discussion on

page 38 of the EA shows the effects to water flow (water quantity) from the vegetation

treatments proposed for this project are evaluated and determined to be not measureable (due to

the dispersion of the treatments over the watersheds). In addition, the transportation portion of

the proposed action is not anticipated to produce any effects to stream flows (i.e. water quantity)

(EA, p. 38). The Appellant did not provide any evidence or analysis indicating that the Coalbed

Run Project would have any incremental effect with water withdrawal from private oil and gas

development resulting in a significant adverse cumulative effect. Therefore, the Responsible

Official reasonably determined that the project has no incremental effect on water quantity.

Since there is no incremental effect, by CEQ definition of cumulative impact (40 C.F.R. 1508.7)

this project does not cumulatively affect water quantity in the project area and thus water

quantity in the area need not be studied further.

For the Appellant’s second point, see the response to Appeal Issue 2.8 above regarding

cumulative effects from the Marcellus Shale development. Affects to the Allegheny River at

Warren are outside of the cumulative effects boundary (see vicinity map inset of the EA, Map 1).

I find the Responsible Official was reasonable in his determination that there would not be

reasonably foreseeable effects from Marcellus Shale development in the project area and

cumulative effects areas.

Issue 2.11

―The USFS must conduct an EIS on the proposed Coalbed Run project given the proximity of

this project to the headwater tributaries within the 13% area. The Coalbed Run project will

impact freshwater species including the endangered northern riffleshell and clubshell

mussels. The toxicity of glyphosate (and the surfactants commonly used with this herbicide) to

aquatic species is widely accepted. The use of these compounds in the sub-basins that form



the habitat of these endangered species is, at least irresponsible and likely a violation of the

Endangered Species Act…‖ (NOA, p. 51-52)

Response: The Appellant asserts the Coalbed Run Project will impact freshwater species

through the use of glyphosate.

All proposed activities will comply with the standards and guidelines in the 2007 Forest Plan,

including those for herbicide application (DN/FONSI, p. 5). The Forest Service has extensively

studied and documented the effects of herbicide application and determined the standards and

guidelines to reduce or avoid adverse effects (Forest Plan, App. G).

The EA references the Forest Plan standards, guidelines and design criteria for maintaining water

quality (Forest Plan, pp 74-76) and application of herbicides (Forest Plan, pp. 54-59), including

guidance on how riparian buffers will be determined based on information such as type of water

body, type of herbicide, herbicide application rate, and application method.

Herbicide application to take place with the Coalbed Run Project is addressed specifically in the

EA (App. B1, Biological assessment, p. 28). To wit, while approximately 100 acres (8 percent

of total) of proposed herbicide application will occur within 300 feet of a stream, Forest plan

buffers will be implemented on all sites proposed for herbicide application.

The Forest Plan FEIS (p. 3-34) states: “Based on the analysis conducted for the herbicide risk

assessment, new water resource buffers were developed for glyphosate and sulfometuron methyl

which will provide for necessary protection of human health or aquatic species (in Section 2100-

Environmental Management Pesticide Use in the ANF LRMP, p. 57, 58).”

The Forest Plan FEIS provides a detailed analysis of potential environmental impacts associated

with the herbicides proposed for use in the EA, including glyphosate. Appendix G of the Forest

Plan FEIS provides hazard analysis, exposure assessment, and risk characterization based on a

review of available scientific literature for the proposed herbicides. As described in Appendix G,

potential risks for a variety of organisms, including aquatic organisms, is calculated based on a

combination of the critical toxicity value and exposure values calculated based on different

application rates. This results in a unique calculated value for estimate risk, or hazard quotient,

for each of these organisms or groups of organisms. These calculations show that only one

calculated hazard quotient would potentially exceed an acceptable limit for glyphosate. This is

for the case of long-term consumption of vegetation by a large bird in an area treated at 3 or 4

lb/acre (FEIS, App. G, p. G2-7). This risk would be minimized by limiting the use of glyphosate

at these application rates to a limited number of small areas using methods that apply the

herbicide directly to the target plants to reduce potential release to water bodies.

The letter of concurrence from the US Fish and Wildlife Service dated January 31, 2007, stated

that “The Forest Service has determined that implementation of Forest Plan Alternative Cm [the

selected alternative] is not likely to adversely affect the clubshell or northern riffleshell…. We

concur with the Forest Service‘s effects determination.” Specifically, the USFWS stated that

“due to the restrictions on herbicide use within the 13 percent area, and the stream buffers



associated with herbicide application, herbicide will not be transported to the Allegheny

River…”

In summary, I find that the proposed actions for the Coalbed Run Project are designed to avoid

adverse impacts to the aquatic species associated with the headwater tributaries within the 13

percent area, including the endangered northern riffleshell and clubshell mussels. The record

documents the analysis, findings, and conclusions that support the Responsible Official’s

decision.

Issue 2.12

―Based on the reasonable foreseeable impacts of OGD on clubshell and northern riffleshell

mussel habitat the USFS should not be proposing activities such as the timber ―treatments‖

proposed in the Coalbed Run project that would exacerbate the known impacts of OGD.‖

(NOA, p. 52)

Response: Please refer to the Forest Service response to Issue 2.11 above regarding the USFWS

concurrence with the Forest Plan determination regarding effects on endangered mussels.

Additionally, the Biological Evaluation for the Coalbed Run Project reached a determination of

“No Impact” for the clubshell and northern riffleshell mussels (App. B1 pp. 26-32). Ergo, there

is no cumulative effect to analyze concerning OGD.

Issue 2.13

―The USFS must conduct an EIS on the proposed Coalbed Run project given the impact of

this project on the North Country Scenic Hiking Trail. … In the proposed project thetrail will

be impacted by intensive timber ―treatments‖ that include herbiciding, fencing, and burning,

not to mention the absence of trees.‖ (NOA, p. 52)

Response: Please reference the response to Issue 2.1 for thorough information related to the

Appellant’s claim concerning NEPA significance.

All activities along the North Country Trail (NCT) proposed in the Coalbed Run Project are

permissible under the National Trails System Act (16 USC 1241 et seq.) and the ANF Forest

Plan. The activities are also in accordance with the Forest Service’s Memorandum of

Understanding with the North Country Trail Association, the local chapter of which was

informed of the proposed action.

Timber harvesting and associated activities along the NCT would follow Forest Plan standards

and guidelines to reduce visual impacts and preserve the trail’s recreation potential (Forest Plan,

p.60-61, 63-64). The stands identified in the comment are located in Management Area (MA)

3.0, which has been identified for even-aged management and a Roaded Natural Recreation

Opportunity Spectrum (Forest Plan, App. C-1). Although some areas in MA 3.0 may be less

intensively managed for a variety of reasons, the objectives for this MA do not include recreation

in a “wilderness-like” setting.



Finally, several of the stands have proposed treatments to improve late structural conditions that

would not involve dramatic changes to the scenery along the trail and would therefore have a

minimal impact on the recreational experience.

After reviewing the PR and the ANF Forest Plan I find IDT has taken a hard look of potential

effects on the NCT and has identified effective mitigation factors to protect the recreation

experience desired by the public.

Issue 2.14

―The proposed action in the Coalbed Run project will damage these [High-Quality, Cold

Water Fisheries; and Naturally Reproducing Trout Streams] streams and creeks with

increased runoff and siltation, stream warming from canopy openings, and pollution from

herbicide applications. The USFS must conduct an EIS to determine the impact of the project

on these important aquatic habitats and on the species that inhabit them.‖ (NOA, p. 53)

Response: The Appellant asserts the Coalbed Run Project will adversely impact listed cold

water streams.

Proposed activities in the Coalbed Run Project are consistent with standards and guidelines in the

2007 ANF Forest Plan, which protect aquatic habitats and species (also see DN/FONSI pp. 11-

12). In addition, the hydrology analysis documents the direct, indirect, and cumulative effects

analysis to aquatic habitat and species, and no significant impacts are identified (EA App. D,

p.25).

The Coalbed Run Project Biological Assessment (EA App. B1, p. 29) includes a hard look at the

effects of the proposed actions and tiers to the Forest Plan FEIS (USDA-FS 2007a) that provides

documentation demonstrating minimal effects to water temperature, buffering capacity, nutrient

concentrations, and sediment concentrations from the types of vegetation management and

reforestation activities proposed in this project. This is based on standards and guidelines found

in the Plan (App. A) that will be applied to all Forest Service activities. Additionally the

Herbicide Risk Assessment, Appendix G of the 2007 FEIS (USDA-FS 2007d), has reviewed

effects to groundwater and surface water regarding aquatic life and human health water quality

criterion. This assessment has found that the Forest Plan (USDA-FS 2007a) standards and

guidelines will ensure that treatments will protect water quality and if effects occur they should

be minimal and short-term (USDA-FS 2007b).

Furthermore, the Forest Plan FEIS includes analyses and findings of water resources affected

environment and environmental consequences (FEIS, Ch. 3, Sect. 3.2.3), including specific

consideration of vegetation management (p. 3-32), riparian management (p. 3-40) and

cumulative effects (p. 3-51).

The letter of concurrence from the USFWS dated January 31, 2007 (p. 2), stated that “Revisions

to the Forest Plan and BA were made to ensure that measures were in place to conserve and

protect federally listed species, and support the Forest Service’s “no effect” and “not likely to

adversely affect” determinations.” Implementation guidelines specific to streams are set forward



in pp. 15 – 18 and incorporated into the ANF Forest Plan (2007) as standards and guidelines (p.

74 -75).

In summary, I find the proposed actions for the Coalbed Run Project are designed to avoid or

mitigate adverse impacts to cold water streams and the species associated with that habitat. The

PR documents the analysis, findings, and conclusions that support the Responsible Official’s

decision.

Issue 2.15

(A) The USFS must conduct an EIS on the proposed Coalbed Run project given the proximity

of this project to the headwater tributaries within the 13% area. The Coalbed Run project will

impact freshwater species including the endangered northern riffleshell and clubshell mussel

(B) Northern goshawks are considered "management indicators". They are considered

"sensitive to change", and their well being often can provide clues to problems with habitat

change. Regarding the northern goshawk the Forest Service states ―…gaps in nest….‖

(C) The Coalbed Run EA also indicates that there is potentially occupied or suitable habitat

for the threatened or endangered species of the Indiana bat (Myotis sodalis), Small whorled

pogonia (Isotria medeoloides), and Northeastern bulrush (Scirpus ancistrochaetus) in the

Coalbed Run Project area.

(NOA, p. 55-56)

Response [2.15A]: All proposed activities will comply with the standards and guidelines in the

2007 Forest Plan, including those for herbicide application (see DN/FONSI, p. 5). The Forest

Service has extensively studied and documented the effects of herbicide application and

determined the standards and guidelines to reduce or avoid adverse effects (see Forest Plan App.

G) (Response to Comments, p. 22).

The letter of concurrence from the USFWS dated January 31, 2007, stated that “The Forest

Service has determined that implementation of Forest Plan Alternative Cm [the selected

alternative] is not likely to adversely affect the clubshell or northern riffleshell…. We concur

with the Forest Service‘s effects determination.” Additionally, the Biological Evaluation (BE) for

the Coalbed Run Project reached a determination of “No Impact” for the clubshell and northern

riffleshell mussels (EA App. B1 pp. 26-32)

The Coalbed Run Project Biological Assessment (BA) includes a full analysis of direct and

indirect effects of project activities on mussels and stream habitat (EA App. B1, p. 27)

Furthermore, where streams and water resources occur within stands, standards and guidelines

will be applied to identify riparian corridors and associated buffers (EA, App. B1, p. 28).

Riparian corridors will be defined as stated in the 2007 Forest Plan and concurred with by the

USFWS dated January 31, 2007.

Response [2.15B]: The status, distribution and abundance, threats, habitat use and Forest

monitoring related to the northern goshawk are discussed on pages 133 to 148 of the Forest Plan



BE (USDA-FS 2007e). The Coalbed Run Project BE (EA App. B2, p. 22-25) contains a full

analysis of all relevant data and incorporates analyses from the Forest Plan BE (USDA-FS

2007e, pp. 148-154). As a result a May Impact individuals, but is not likely to cause a trend

toward federal listing or reduce viability determination is made for the Northern goshawk

under the proposed actions (EA App. B2, p. 25).

Direct, indirect, and cumulative effects of proposed activities on the northern goshawk are

disclosed in the Wildlife Report (EA App. B3, pp. 55-58). Because the northern goshawk is

recognized as a species with viability concerns, the Revised Forest Plan includes Forest-wide

standards that protect active nests and ensure that suitable foraging/post fledgling habitat is

maintained within active territories (USDA-FS 2007a pp. 84-85).

Response [2.15C]: Potential effects of proposed management on Threatened and Endangered

Species (TES) are discussed in detail in the BA and BE and based on analysis presented, there

are no anticipated effects under any alternative that would contribute towards a trend in Federal

listing for any Regionally Sensitive species or adversely affect any TES. As a result, this project

complies with the ANF Forest Plan (USDA-FS 2007a), the Federal Endangered Species Act

(ESA) (36 U.S.C. 1531-1544), the National Forest Management Act (NFMA) (16 U.S.C. 1600-

1614) and USDA Forest Service Policy (FSM 2670) [Wildlife Specialist Report p. 62]. The

Responsible Official concurs with these statements (DN/FONSI, p. 11).

Issue 2.16

―Any project of this scale must include an EIS to determine the cumulative impacts of OGD,

previous timber ―treatments‖ (e.g., clearcutting, herbiciding, and fencing) non-passive

recreation, and the proposed timbering actions in the watersheds that will be impacted by

Coalbed Run Project. There must be a plan for the restoration of the impacted area.‖ (NOA,

p. 59)

Response: The EA does address the cumulative impacts of past and planned activities related to

timber treatments (pp. 23-25) and recreation cumulative effects are also addressed both

temporally and spatially in the EA (p. 27)

I concur with the Responsible Official’s analysis in the DN/FONSI that the Coalbed Run Project

will not have significant environmental effects and therefore preparation of an EIS is not

required. Please reference the response to Issue 2.1 for thorough information related to the

appellant claim for the need of an EIS to determine cumulative impacts.

Issue 2.17

―[T]here has been extensive drilling damage in the southern part of the project area in the

Fork Run and Tionesta Creek watersheds. Any project of this scale must include an EIS to

determine the cumulative impacts of OGD and the proposed timbering actions in these

watersheds.‖ (NOA, p. 60)



Response: The Appellant’s assertion includes no site-specific information pertaining to how the

proposed activities will damage streams and creeks. Proposed activities in the Coalbed Run

Project are consistent with standards and guidelines in the 2007 ANF Forest Plan, which protect

aquatic habitats and species. In addition, the hydrology analysis documents the direct, indirect,

and cumulative effects analysis to aquatic habitat and species, and no significant impacts are

identified (EA pp. 36-39).

The IDT project analyses considers the cumulative impacts in Fork Run Tionesta Creek as well

as the remainder of the project area in the EA and provides the Appellant explanation to this

issue in the Response to Comments (Comment 2-D, Comment 2KK).

I concur with the Responsible Official’s analysis and findings in the DN/FONSI that the Coalbed

Run Project will not have significant environmental effects and therefore preparation of an EIS is

not required. Please reference the response to Issue 2.1 for thorough information related to the

Appellant’s claim for the need of an EIS to determine cumulative impacts.

Issue 3: The Coalbed Run EA Violates NEPA.

Specific assertions related to this claim include:

Issue 3.1

―Ignoring issues raised in scoping comments.‖ (NOA, p. 57)

Response: The Appellant claims there was no acknowledgement of the issues raised by ADP

and that alternatives were not developed to address their concerns. Council on Environmental

Quality (CEQ) defines scoping as “an early and open process for determining the scope of issues

to be addressed and for identifying the significant issues related to a proposed action” (40 C.F.R.

1501.7). The Responsible Official provided early notice of the proposed action through a legal

notice and press release and provided the public and opportunity to provide comments on the

proposed action (PR, Vol. 1)

The Responsible Official reviewed and considered all public comments and documented such

review in the “Public Scoping Comments Summary and Issue” document. Chapter 2 of the EA

(EA, p. 13) explains how issues and alternatives were developed from the IDT’s review of the

public comments and states that “no significant issues were identified through scoping and the

Responsible Official determined that detailed analysis of an additional alternative to the

Proposed Action was not necessary.” Finally, in the Decision Notice, the Responsible Official

states he is personally familiar with and utilized the public comments in his decision and that

“No information submitted during the two public comment periods were overlooked or ignored

during this analysis” (DN, p. 4).

Based on review of the Scoping Comment Summary and Issue document, I find the Responsible

Office did indeed consider all of the scoping comments and that he followed all NEPA

requirements and agency procedures related to the consideration of public comments.



Issue 3.2

―Ignores ADP‘s concerns about the cumulative effects of oil and gas drilling and the

destructive USFS practices of even-aged logging, burning, herbiciding, and commercial

logging.‖ (NOA, p. 51)

Response: See previous response regarding review of the Appellant’s scoping comments. In

addition, see the Response to Comments (EA, App. D) where each comment was specifically

responded to by the project team and the Responsible Official. Comments provided by ADP

were fully considered by the Responsible Official while he was making his decision on this

project.

Issue 3.3

―The USFS is attempting to avoid analyzing the impact of the proposed action on the Hickory

Creek Wilderness Area, and the Minister Creek Wilderness Study Area, which were not

included in the cumulative effects area analysis (see Section 2.3 above)‖. (NOA, p 51)

―Incorrectly identifying the cumulative effects boundary by not including adjacent areas or

watersheds that might be affected by the proposed action‖ (NOA, p. 57)

Response: The Appellant contends that the ANF did not appropriately evaluate the cumulative

effects on the Hickory Creek Wilderness Area, and the Minister Creek Wilderness Study Area

and that they incorrectly identified the cumulative effects boundary.

The direct, indirect and cumulative effects of the proposed activities on recreational use of

Wilderness and Wilderness Study Areas were analyzed (EA page 41 and Response to Comments

2-J, page 11). The Recreation section does include the Hickory Creek Wilderness in the

cumulative effects analysis area for that resource (EA, Table 12, p. 26). The Wildlife Report and

Vegetation Analysis provide rationale for not including the wilderness areas, as that may dilute

the effects of the project and other activities (Wildlife Report, p. 11, Vegetation Analysis, p. 7).

In addition, the PR states that “there are no proposed activities within wilderness or wilderness

study areas that would alter ecosystem dynamics in these areas” (Response to Comments 2-J, p.

11). See response to Appeal Issue 2.2 for more information.

Cumulative effects boundaries for all resources are defined on pages 26-27 of the EA. The

Appellant does not provide specific evidence as to why the cumulative effects boundaries are

incorrect and does not give specific evidence that the proposed action would affect the

Wilderness areas beyond what is analyzed and disclosed in the EA. I find the cumulative effects

boundaries are clearly defined and a reasonable rationale is provided for the choice of those

boundaries.

Issue 3.4

―Not developing a broad range of alternative‖. (NOA, p.57) Appellant asserts that the “no

action alternative” does not address their concerns because there would still be intensive oil



and gas development and vegetation management in the area and so effectively only has one

alternative. (NOA p. 57-59)

Response: The NEPA requires federal agencies to study, develop, and describe appropriate

alternatives to recommended courses of action in any proposal that involves unresolved conflicts

of alternative uses of available resources (42 U.S.C. 4332). The CEQ regulations implementing

NEPA discuss alternative development. Agencies are to rigorously explore and objectively

evaluate all reasonable alternatives, and briefly discuss the reasons for eliminating alternatives

from detailed study (40 CFR 1502.14(a)). While regulations require that a range of alternatives

be analyzed, the “No Action Alternative” is the only alternative required as an option to the

proposed action (40 CFR 1502.14(d)). There is no set number of alternatives needed in order to

reflect a reasonable range. Agencies have discretion to determine appropriate alternatives based

upon the purpose of the proposal.

Forest Service NEPA regulations (36 CFR 220.5(e)) state: “An alternative should meet the

purpose and need and address one or more significant issues related to the proposed action. Since

an alternative may be developed to address more than one significant issue, no specific number

of alternatives is required or prescribed.”

The Coalbed Run EA (Chapter 2) describes two alternatives that were analyzed in detail:

Original proposed action (Alternative 2);

No action alternative (Alternative 1) as required by 40 CFR 1502.14(d), which serves as a

baseline for evaluating other alternatives during the effects analysis for proposed actions.

In addition to these alternatives developed in detail, one additional alternative was considered but

eliminated from further study because the Responsible Official recognized that the proposed

reroute of the NCT required further consideration. The proposal received during scoping to

perform this reroute was resolved when a Decision Memo titled “North Country National Scenic

Trail Reroute and Proposed Structures” was signed on June 2, 2010, to implement the required

activities. Because this issue was resolved, this alternative was eliminated from detailed analysis

and the proposed action was modified to reflect the resolution of the issue.

The Purpose and Need is described in the EA (p. 9-10) and clearly identifies five needs. The

action alternatives describe a range that accomplishes the stated purpose and need for the

Coalbed Run. The Public Record documents how public scoping input, including that of the

Appellant, was considered and which comments led to development of alternatives. The

Appellant did not identify in their appeal a reasonable alternative that was brought to the Forest’s

attention prior to the decision and that would meet the project’s purpose and need that was not

considered.

After reviewing the Coalbed Run Record, it is clear the IDT and Responsible Official considered

public input, including possible alternatives, along with current conditions and the project’s

purpose and need to identify a range of alternatives and determine which alternatives should be

analyzed in detail. The IDT specifically listened and responded to the alternatives suggested by

the Appellant during scoping and the comment period. In the end, the Responsible Official



selected Alternative 2 with minor modifications. I found the ID Team and Responsible Official

responded to comments throughout the process analyzed an adequate range of alternatives.

Issue 3.5

―Not identifying oil and gas development as a significant issue‖ (NOA, p. 59)

Response: The decision to be made for the Coalbed Run Project is whether to manage

vegetation and other natural resources in the project area to move from current conditions

towards the desired conditions identified in the 2007 ANF Forest Plan. The decision for this

project will not involve the approval of private oil and gas drilling or revision of the Forest Plan.

The IDT and Responsible Official provided response to this issue in the scoping summary, page

13 of the EA, and in the Response to Comments 2-A, and Comment 2-RR, which states the

following response:

CEQ implementing regulations at 40 C.F.R. 1500 direct federal agencies to focus on truly

significant issues and eliminate from detailed study the issues which are not significant or

which have been covered by prior environmental review (1501.7(a)(3); 1500.5(d)).

Impacts shall be discussed in proportion to their significance (1502.2 (b)). The federal

courts in Pennsylvania have said that the “NEPA only requires that appropriate

alternatives be considered. 42 U.S.C. § 4332(2)(E). NEPA does not mandate that any

particular alternative be selected during an EA.” Society Hill Towers Owners‘ Ass‘n. v.

Rendell, 210 F.3d 168, 183 (3rd Cir. 2000). NEPA only requires that federal agencies

consider “reasonable” alternatives. Alternatives that are impractical, infeasible, or do not

meet the purpose and need set forth for the proposal need not be analyzed in detail. In

other words, “where the agency has examined a breadth of alternatives but has excluded

from consideration alternatives that would not meet the goals of the project, the agency

has satisfied the NEPA. Practically speaking, “[t]here is a necessary limit to the

thoroughness with which an agency can analyze every option.” Concerned Citizens

Alliance, Inc. v. Slater, 176 F.3d 686, 705-706 (3rd Cir. 1999). Page 11 and 13 of the EA

discuss and disclose public involvement for this project, as well as the review and

analysis of public comments during the scoping period for identifying significant

issues. The Interdisciplinary Team and Responsible Official reviewed and responded to

all public comments provided for the Coalbed Run Project, and were responsive to the

issues raised by the public during project development regarding the range of

alternatives. More specifically, the Responsible Official responded to specific concerns

regarding the need to reroute a portion of the North Country Trail, which many local

citizens and organizations were proponents of, including the Allegheny Defense Project.

The Responsible Official responded by using a categorical exclusion to expeditiously and

efficiently implement the reroute, which satisfied this concern. Public input was clearly

heard and public involvement clearly resulted in achieving results on-the-ground.

The PR clearly shows the IDT and responsible official considered input from the public and

responded throughout the process. This interaction leads to an appropriate determination of

significant issues for the Coalbed Run Project.



Issue 3.6

―The Forest Service must consider at least one alternative that seeks to offset the impacts of

oil and gas development, protects and restores watersheds that have been severely altered by

oil and gas development, and maintains species viability. The development of this alternative

would require the Forest Service to analyze what actions it must halt and what remediation it

must initiate to maintain or increase species viability and water quality.‖ (NOA, p. 58)

Response: The Appellant seeks an alternative that offsets impacts of oil and gas development,

protects and restores watersheds that have been altered by oil and gas development, and

maintains species viability. This request was reviewed throughout the process and was found to

be a non-significant issue and beyond the scope (PR, Vol. 1, Scoping Comment Summary 7L, p.

4) of the Coalbed Run Project. Therefore, by following the Issue and Alternative development

process (EA, pg. 13-14) no alternative was developed to analyze what actions it must halt and

what remediation it must initiate to maintain or increase species viability and water quality.

The PR clearly shows the IDT and Responsible Official considered input from the public and

responded throughout the process. The IDT and Responsible Official gave the comments

associated with the issue adequate review and I agree that there response to comments and

scoping analysis was appropriate in finding an alternative did not need to be developed based on

this issue.

Please reference the response to Appeal Issue 3.4 and 3.5 for further detailed information related

to Issue 3.6. Issue 3.4 and 3.5 provide information related to the Appellant’s claim for

developing a reasonable range of alternatives, and not identifying oil and gas as a significant

issue.

Issue 3.7

The USFS is attempting to avoid acknowledging the cumulative significant impacts of multiple

federal actions in the project area, including the proposed action and the FYO7 Regeneration

Project. (NOA, p. 55)

Response: The cumulative effects analysis considers the past, present and reasonably

foreseeable federal/Forest Service projects within the project boundary between 1998 and 2028,

in addition to non-federal actions within the project area and cumulative effects areas (EA,

Tables 9 and 11, pp. 24-25). This information includes the silvicultural treatments on NFS lands

from 1998-2008 and even-aged timber harvest on NFS and private lands that have occurred or are

reasonably foreseeable. This is in accordance with the Jun 24, 2005 CEQ memo “Guidance on

the Consideration of Past Actions in Cumulative Effects Analysis”. Therefore, I find the

Responsible Official had the information available to evaluate the significance of any cumulative

effects from those past federal actions.



Issue 3.8

The USFS must conduct an EIS that analyzes the cumulative impacts of roads and stone pits

on the health of the forest ecosystem, water quality, and species viability. (NOA, p. 60)

Response: The Appellant contents the Forest Service must conduct an EIS to evaluate the

effects of roads and stone pits. The DN/FONSI documents the Responsible Official’s

determination that the effects of the project are not significant.

In regards to roads and stone pits, the DN/FONSI is supported by analysis of the effects of those

actions in the EA and the PR. The proposed action includes only 0.47 miles of road

construction, 5.59 miles of road reconstruction, and 30.92 miles of road decommissioning (DN,

p. 2). These activities are proposed to fulfill the Purpose and Need to “Maintain and enhance

road systems that allow management of the National Forest Lands and provide public access,

while meeting needs such as water quality and passages for fish and other aquatic organisms”

(EA, p. 10). The proposed action also includes 22 acres of pit creation or expansion and 10 acres

of pit reclamation (DN, p. 2). The direct and indirect effects of proposed roads and stone pits are

analyzed for each resource in the EA as part of the proposed action (Alternative 2). In particular

roads and pits are evaluated in the vegetation analysis (Vegetation Analysis, p. 8), hydrology

section (EA, p. 37-38), non-native invasive plant section (NNIP) (EA, p. 44), soils analysis (EA,

p. 42), and Wildlife Report (pgs. 41-43). The EA shows that proposed action results improves

road conditions and removes roads and will result in improved water quality (EA, p. 37). In

addition, the EA notes that the use of limestone DSA would minimize the movement of sediment

into streams for erosion of pits and road surfaces and provide further benefits to water quality

(EA, p. 38). The only new road construction occurs in an area that is already disturbed and does

not provide habitat for species sensitive to disturbance (Wildlife Report, p. 42). In addition, the

Project Record shows that road decommissioning activities proposed will result in a long term

benefit to wildlife (Wildlife Report page 42). Finally, the pit construction would not occur in

any key, unique, or sensitive wildlife habitats (Wildlife Report, p. 42).

The cumulative effect analysis includes development of future roads that are reasonably

foreseeable. The record shows that it is anticipated that each proposed or predicted future well

would have 0.3 acres of road surface developed (Project Level Scenarios for Future Private Oil

and Gas Development, EA, Appendix C, p. 4). There are no other Forest Service road

construction or reconstruction projects planned for the cumulative effects area for the next 10

years (EA, p. 39). The cumulative effects of the private actions are analyzed in the cumulative

effects for vegetation (Vegetation Analysis, pgs. 8-10 ), soils (EA, p. 42), wildlife (Wildlife

Report, pgs. 46-48), and hydrology (EA, p. 39). The record does not provide any evidence that

there are additional reasonably forseeable stone pits and therefore, the analysis of the proposed

stone pits in the proposed action is sufficient analysis.

The Appellant does not provide additional specific evidence that roads and stone pits would, as a

result of the proposed action, have significant effects within the project area or cumulative

effects area. I find that the ANF adequately analyzed the potential effects of adding roads and

expanding and building stone pits and that the Responsible Official reasonably determined that

there would not be significant impacts requiring an EIS.



Issue 3.9

The Forest Service must conduct an analysis …that forecasts …the impact that Biomass

Power Generation will have on regional forest lands. (NOTE – this only includes topics not

already included in other points) (NOA, p.61- 62)

Response: Biomass Power Generation impacts were not raised during scoping or as a comment

on the EA and so is not addressed specifically in the PR because it was not defined as an issue or

concern.

The effects analysis of the Coalbed Run Project is site-specific and does not require evaluating

impacts of an activity that is outside of the scope of the project at a regional level. The Coalbed

Run Project does not propose biomass power or other types of energy generation (Issue 3.9

above) and there is no evidence in the PR or provided by the appellant to show that such

activities are reasonably foreseeable on public or private land within the project area or

cumulative effects boundaries.

Issue 3.10

In addition to the previous even-aged management (i.e., clearcutting) activities of the past 10

years in the project area—4,769 acres have been clearcut, (not counting FYO7 Regeneration

Project adjacent to the project area), the proposed action and predictions of actions on

private lands show 4,594 acres of additional clearcut by 2020. These actions, which amount

to over 9,363 acres of clearcutting in the cumulative effects area of the Coalbed Run Project,

take place in the context of the devastating impact of oil and gas drilling including Marcellus

shale gas extraction. These activities will have a significant impact on the environment and

require the preparation of an EIS to fully disclose these impacts to the public. (NOA, p. 62)

Response: The Appellant claims the Responsible Official is required to prepare an EIS. It

should be noted that the project proposes 9 acres of treatments defined as “clear cut” for aspen

regeneration. Appellants are concerned about the number of acres of even-aged management

(which they refer to as clear-cut) that have occurred and are planned to occur in the Project Area.

The numbers the Appellant refers to are acres of “even-aged timber harvest” as presented in

Table 11, p. 24 of the EA.

The cumulative effects sections of the EA and PR specialist reports address the effects of past

and on-going projects in the project area. The amount of NFS lands and private lands that have

had various types of vegetation treatments are shown in the EA cumulative effects discussion in

Table 9 and 11 (EA, p. 24-25). This information was appropriately evaluated in the resource

cumulative effects discussions.

The PR documents there are no existing or reasonably foreseeable affects of Marcellus Shale gas

drilling within the project area or cumulative affects analysis area (see response to Appeal Issue

2.8). The DN/FONSI discloses there are no significant impact from the project and that an EIS is

not required.



Issue 3.11

―The Coalbed Run Appendix C Cumulative effects analysis tiers to DSEIS data which relies

on outdated OGD data (road miles and # of wells) to make assumptions about future

development.‖ (NOA, pp. 38-42) Subpoints include:

i) The Forest Service relied on road figures from 2003 and oil and gas well figures from

2005 and used that incomplete and misleading data throughout the DSEIS. These

figures do not account for thousands of new oil and gas wells that have been drilled

since 2005 and at least 800 new miles of new road construction for OGD since 2003.

The failure to disclose this easily producible data means that the public has

incomplete information and cannot possibly provide accurate and informed

comments…..The Forest Service must disclose to the public the most recent data it

has for the number of current oil and gas wells and mileage of roads so that the

public has a full appreciation of the current surface impacts on the Allegheny

National Forest. (NOA, p. 38)

ii) The Forest Service must also disclose and comprehensively analyze the reasonably

foreseeable direct, indirect and cumulative effects of Marcellus Shale and other deep

well gas drilling, which is already occurring within the Allegheny National Forest

proclamation boundary. (NOA, p. 38-39)

iii) The Forest Service provides absolutely no rational basis for arbitrarily choosing to

rely on the average future projection scenario that was used in the FEIS when, in

reality, that scenario was exceeded every single year since it was developed. In fact,

the level of OGD even exceeded the FEIS‘s ―high quarter scenario of 800 wells per

year‖ in two of the last four years. (NOA p. 39)

iv) There is other inaccurate and misleading data in the DSEIS. For instance, Table C-4

falsely states that there are currently only 8,000 wells. Allegheny National Forest

Supervisor Leanne Marten recently testified, however, that: ‘We have approximately

12 to 15,000 existing oil and gas wells on the Allegheny‘. Supervisor Marten‘s

testimony reveals that Table C-4 is completely unreliable information for estimating

the number of wells through 2020. For instance, Table C-4 states that there will be

15,680 wells on the Allegheny in 2020. Obviously, if there are already 15,000 oil and

gas wells today, using the FEIS‘s average future projection scenario of 512 wells per

year, which would result in at least 20,120 oil and gas wells. Furthermore, since the

512 wells per year model has been exceeded every single year since it was developed,

there‘s likely to be many more oil and gas wells on the Allegheny. (NOA, p. 39)

v) The Forest Service must provide the public with a full accounting of abandoned oil

and gas wells on the Allegheny. (NOA, p. 40)

vi) The 2003 Forest-wide Roads Analysis is too out of date to provide information on the

effects of water quality and species viability from roads. (NOA, p. 40-41)

Response: The Appellant claims that “The Coalbed Run Appendix C Cumulative effects

analysis tiers to DSEIS data which relies on outdated OGD data (road miles and # of wells) to

make assumptions about future development.” Appendix C is not a cumulative effects analysis

and does not tier to any other document, but references these documents for “supporting



information and descriptions of the methodologies used to generate scenarios” (EA, Appendix C,

p. 3).

Appendix C describes three scenarios for future private oil and gas development (OGD) in the

Coalbed Run Project area. As the document states, “the scenarios encompass a range of

potential development patterns that the Responsible Official evaluated when determining the

level of OGD that could be considered reasonably foreseeable private activities in the cumulative

effects analysis for the Coalbed Run project.” The document clearly states the assumptions used

for developing the scenarios, including the estimate number of wells on the ANF in 2009, and

the estimated number of wells in the Coalbed Run Project area in 2010. The Responsible

Official chose to use Scenario 3 to best estimated reasonably foreseeable private oil and gas

development in the Coalbed Run Project area and adequately sets forth his rationale for doing so.

The Appellant’s claim that the Responsible Official chose the average scenario (Scenario 1) is

not true; the Responsible Official chose Scenario 3 (EA, App. C, p. 5). The scenarios are

estimates; I find that the Responsible Official was well informed of the OGD that could be

considered reasonably foreseeable private activities for cumulative effects analysis for the

Coalbed Run Project.

Responding to point i) above, the number of existing (active or dormant) privately owned OGD

wells within the project area on NFS lands is 214, and was disclosed in the EA (p. 22 and 25).

The mileage of roads was disclosed in the Coalbed Run Travel Analysis Project Report (July

2010) (PR, Vol. 4, p. 6).

Responding to point ii), see response to Issue 2.8.

Responding to point iii), the Forest Service did provide rationale for choosing the future oil and

gas projection scenario in EA, Appendix C. The Responsible Official’s rationale is as follows:

Based on the information presented in this analysis and assessment of the Coalbed Run

project area, the Responsible Official determined that Scenario 3 best estimated

reasonably foreseeable private oil and gas development. This Scenario includes only

shallow well development. The Responsible Official determined that Marcellus shale

development is not a reasonably foreseeable future activity for the Coalbed Run project.

There is no active or proposed Marcellus shale development within the Coalbed Run

Project area. The nearest developments are two wells drilled on private land roughly 3.5

and 4 miles to the southeast (data from "Operators With Active Wells Inventory" report

on Pennsylvania DEP site

http://www.dep.state.pa.us/dep/deputate/minres/oilgas/reports.htm accessed December

2010).

Scenario 1 did not consider any site-specific information and Scenario 2 was based on

the average rate of OGD in the project area over only 4 years. Neither of these scenarios

considered the potential locations of wells or limitations to development in the project

area. By contrast, Scenario 3 used site-specific data regarding oil fields, existing OGD,

and natural features that would likely affect development of individual well sites.

Therefore, despite the uncertainty associated with predicting any future activities, the

http://www.dep.state.pa.us/dep/deputate/minres/oilgas/reports.htm%20accessed%20December%202010

http://www.dep.state.pa.us/dep/deputate/minres/oilgas/reports.htm%20accessed%20December%202010



Responsible Official determined that the methods used for developing Scenario 3 were

sufficiently rigorous for describing reasonably foreseeable future oil and gas

development for the Coalbed Run project.

Responding to point iv) above, the number of wells on the ANF is not relevant because the

cumulative effects area is smaller than the whole forest. As stated above, the number of wells

within this project area is 214, and can be found on in the EA (pp. 22 and 25).

Responding to point v) above, providing the public with a full accounting of abandoned oil and

gas wells on the Allegheny is outside the scope of the project. Outside of the analysis area,

numbers and types of wells or any other development and action are not pertinent to this project.

Responding to point vi) above, the Coalbed Run Travel Analysis Project Report (July 2010) was

prepared for this project and is part of the project record. The effect of roads on water quality is

addressed in the Hydrology section of the EA (pp. 38-39). The effect of roads on species

viability is addressed in the project’s BA (EA, App. B1), BE (EA, App. B2), and Wildlife Report

(EA, App. B3).

I find the Responsible Official adequately covered these topics, and I uphold his decision on

these points.

Issue 4: The Forest Service knows that Pennsylvania BMPs are not sufficient to protect

water resources.

The Forest Service recently submitted video evidence in the District Court in Erie

demonstrating that water resources are not being protected on the Allegheny National Forest.

This contradicts statements in the EA. (NOA, p. 36)

Response: The Appellant’s assertion that Pennsylvania BMPs are not sufficient to protect water

quality is not supported by the PR. The hydrology analysis in the EA (p. 37) cites the Forest

Plan FEIS (3-32 to 3-42) and Appendix G, which documents research and monitoring results that

demonstrate minimal effects to water temperature, buffering capacity, nutrient concentrations,

and sediment concentrations from vegetation management and reforestation activities. The

Response to Comments (2-F) cites monitoring results from Forest Plan Appendix G (p. G2-56

and G2-69) that demonstrate the efficacy of measures designed to protect water quality and non-

target vegetation from herbicide impacts. No detectable concentrations of glyphosate were

found during water quality monitoring in 1987, 1988, and 2002, and little to no damage to

vegetation outside the intended treatment areas was observed.

The Hydrology analysis in the EA (p. 36 to 39) concluded that “no impacts on water quality or

quantity anticipated” (p. 38) and “[d]esign criteria and application of BMPs during project

implementation ensure … the project would have no adverse effects to water resources” (p. 39).

The video referenced by the Appellant (NOA p. 36) concerning the Forest’s experience with one

oil and gas company at a particular location has no relevance to the overall effectiveness of State

BMPs, nor impacts associated with the activities proposed in the Coalbed Run Project. The



video provided a specific example to the District Court of the effects caused by one operator at a

particular location and illustrated what may happen if an operator does not properly install and/or

employ all required BMPs in conjunction with oil and gas development. This operator was

subsequently banned from oil and gas operations in Pennsylvania. I find that the video is not

persuasive evidence regarding BMP efficacy in the context of vegetation management and the

types of actions included in the Coalbed Run project.

Issue 5: Road Analysis is Missing.

Did the Forest Service complete a RAP for this project or the one proposed for the area before

this one (Bobbs Fork Queen Project)? ―The proposed action in scoping discussed RAP

recommendations on page 3, but the Forest Service has not provided a RAP if one exists. If

there is a RAP for this project, the Forest Service must rescope the project to allow the public

to review the RAP in a timely manner to provide comments relevant to the alleged purpose

and need for the project.‖ (NOA p. 37)

Response: The IDT responded to this comment in the EA, Appendix D (pp. 10-11) under Comment

2I: “The Bobbs Fork Queen Project was cancelled, and rescoped as the Coalbed Run Project. The

IDT conducted a thorough analysis of the transportation system in the Coalbed Run Project area.

The report is in the PR and was available to the public during the 30-day comment period. Page 21

of the Coalbed Run EA states that ―Details are provided in a Transportation Analysis Process (TAP)

report in the project record.‖ Thus, a TAP (which has been previously referred to as a Roads

Analysis Process (RAP) report – this terminology has been changed by the Forest Service) was

completed for the Coalbed Run Project and available to the public as noted in the EA. There is no

legally-based scoping requirement for TAPs/RAPs. Proposed actions related to road management

were identified on pages 3-4 of the Coalbed Run Proposed Action for Scoping, as well as Map 4 and

Appendix A – Table 3. The public had the opportunity to review and provide input on proposed road

management activities during Scoping for the Coalbed Run Project and during the 30 day comment

period on the EA.”

While the initial maps for the project did indicate a boundary labeled “RAP” Road Analysis Process

later versions did indentify the boundary as “TAP” Transportation Analysis Process. While the

initial maps were mislabeled the Forest did make the correction and provide and explanation of the

name change in the response to comments. The ID Team and Responsible Official provided a

thorough Transportation Analysis and explanation public comment period, and made it clear in the

response to comments that the name “RAPS” hade change to “TAPS”

I found the Transportation Analysis provided by the ID Team was thorough (PR, Vol. 4, Specialist

Report Coalbed Run Travel Analysis Project Report July, 2010), as was the explanation provided in

the response to comments (Comment 2I). I find the ID Team and Responsible Official performed

adequate analysis and response to public comments addressing this issue.

Issue 6: Surface water withdrawals

―(T)he USFS must, as riparian owners, stop the illegal withdrawals of surface water by the

oil and gas industry on the ANF.‖ (NOA, p. 50-51)



Response: The Forest accurately responded to this same comment (2-DD) from the Appellant

during the 30-day comment period. The decision to be made for the Coalbed Run Project is

whether to manage vegetation and other natural resources in the project area to move from

current conditions towards the desired conditions identified in the 2007 ANF Forest Plan. The

decision for this project does not involve the approval of private oil and gas drilling, or any

withdrawals of surface water. Therefore, I find this comment to be outside the scope of this

project because does not involve or implicate any water withdrawal in conjunction with private

oil and gas development.

Issue 7: Surface water use

―The Forest Service currently violates and threatens to violate Pennsylvania Common Law in

allowing oil and gas drillers to use surface waters in the ANF for private oil and gas

development projects.‖ (NOA, p. 56)




project does not involve the approval of the use of surface waters in the ANF for private oil and

gas development projects. I find that this issue is outside of the scope of this project.

Issue 8: Drop compartments from the project due to resource concerns

―…the following specific Compartments and their respective Stands must be dropped from the

Coalbed Run Project due to their proximity to the Hickory Creek Wilderness Area, the

Minister Creek Wilderness Study Area, the North Country Scenic Hiking Trail, the HQ Cold

Water Fisheries of Bobbs Creek, and Fork Run (including, Berlin Fork, Middle Fork, and

East Fork), and to the Naturally Reproducing Trout Streams listed above and by

Compartment below: (NOA, p. 54)

Response: The Wilderness Act of 1964 and Pennsylvania Wilderness Act of 1984 allow

management of forest land adjacent to wilderness without buffers. The proposed vegetation

treatments and road activities adjacent to wilderness meet Forest Plan management direction

(USDA-FS, 2007a, pp. 116-120). Section 9 of the Wilderness Act directly addresses buffer zones

around designated wilderness areas. It states, in full: “t]he Congress does not intend that the

designation of a wilderness area under this Act lead to the creation of protective perimeters or

buffer zones around such wilderness area. The fact that non-wilderness activities or uses can be

seen or heard from areas within a wilderness shall not preclude such activities or uses up to the

boundary of the wilderness area.”

The direct, indirect, and cumulative effects of proposed activities on wilderness and wilderness

study areas were analyzed. Page 40 of the EA discloses that “[t]he indicator of remoteness may

temporarily shift to inconsistent in the Roaded Natural ROS setting as a result of the noise from

proposed harvest activities and pit development, especially near the NCT and for public visitors

using the southern portion of the Hickory Creek Wilderness Area near FR 199. This would not

be a long-term effect and would only last as long as the equipment is active in the area.‖ This



conclusion would be the same for the proposed vegetation treatment (Stand 27) adjacent to the

Minister Creek Wilderness Study Area.

The Appellant does not specifically state how the Coalbed Run Project will significantly alter

ecosystem dynamics in wilderness and wilderness study areas. There are no proposed activities

within wilderness or wilderness study areas that would alter ecosystem dynamics in these areas

All activities along the North Country Trail (NCT) proposed in the Coalbed Run Project are

permissible under the National Trails System Act (16 USC 1241 et seq.) and the ANF Forest

Plan. The activities are also in accordance with the Forest Service’s Memorandum of

Understanding with the North Country Trail Association, the local chapter of which was

informed of the proposed action.

Timber harvesting and associated activities along the NCT would follow Forest Plan standards

and guidelines to reduce visual impacts and preserve the trail’s recreation potential (Forest Plan

p.60-61, 63-64). The stands identified in the comment are located in MA 3.0, which has been

identified for even-aged management and a Roaded Natural Recreation Opportunity Spectrum

(Forest Plan App. C-1). Although some areas in MA 3.0 may be less intensively managed for a

variety of reasons, the objectives for this MA do not include recreation in a wilderness-like

setting.

Finally, several of the stands have proposed treatments to improve late structural conditions that

would not involve dramatic changes to the scenery along the trail and would therefore have a

minimal impact on the recreational experience.

Proposed activities in the Coalbed Run Project are consistent with standards and guidelines in the

2007 ANF Forest Plan, which protect aquatic habitats and species (see DN/FONSI pp. 11-12). In

addition, the hydrology analysis documents the direct, indirect, and cumulative effects analysis

to aquatic habitat and species, and no significant impacts are identified (EA App. D, p. 25).

The Coalbed Run Project Biological Assessment (EA App. B1, p. 29) includes a hard look at the

effects of the proposed actions and concludes that the Forest Plan FEIS (USDA-FS 2007a)

provides documentation that demonstrates minimal effects to water temperature, buffering

capacity, nutrient concentrations, and sediment concentrations from the types of vegetation

management and reforestation activities proposed in this project. This is based on standards and

guidelines found in the Plan (App. A) that will be applied to all Forest Service activities.

Additionally the Herbicide Risk Assessment, Appendix G of the 2007 FEIS (USDA-FS 2007d),

has reviewed effects to groundwater and surface water regarding aquatic life and human health

water quality criterion. This assessment has found that the Forest Plan (USDA-FS 2007a) S&Gs

will ensure that treatments will protect water quality and if effects occur they should be minimal

and short-term (USDA-FS 2007b).

Furthermore, the Forest Plan FEIS includes analyses and findings of water resources affected

environment and environmental consequences (FEIS Chapter 3, Section 3.2.3) which includes

specific consideration of vegetation management (p. 3-32), riparian management (p. 3-40) and

cumulative effects (p. 3-51).



The letter of concurrence from the US Fish and Wildlife Service dated Jan. 31, 2007 (p. 2),

stated that ―[r]evisions to the Forest Plan and BA were made to ensure that measures were in

place to conserve and protect federally listed species, and support the Forest Service‘s ―no

effect‖ and ―not likely to adversely affect‖ determinations.” Implementation guidelines specific

to streams are set forth in pp. 15 – 18 of the US Fish and Wildlife Service 2007 letter and

incorporated into the ANF LRMP (2007) as standards and guidelines (p. 74-75).

I find the Responsible Official adequately considered the compartments and the potential effects

of the treatments on the resources of concern. I uphold his decision on this issue.

Issue 9: The Forest Service must protect wildlife habitat

―The Forest Service is proposing over 600 acres for clear-cutting or aggressive thinning

―treatments,‖ which include fencing, herbiciding, and burning on at least 240 acres in MA

6.1… The Forest Service must take steps to actually protect wildlife habitat, not further

impact it with even-aged management that only exacerbates the already extensive, forest-wide

impacts of oil and gas development.‖ (NOA, p. 52-53)

Response: The viability outcomes in the Forest Plan FEIS (App. E) are an index of the

capability of the environment to support population abundance and distribution and not an actual

prediction of population occurrence, size, density, or other demographic characteristics. The

Forest Plan identified viability declines for some species over the long term (to 2060) using a

coarse filter approach (mainly based on the mix of Management Area future habitat conditions).

The project level wildlife cumulative effects analysis uses a shorter time frame (to 2030) and

focuses more on whether the Management Area conditions desired in the Forest Plan for this

project area are progressing. Remote habitats across the Forest will be monitored and evaluated

over a 5-year cycle during the comprehensive monitoring review next scheduled in 2012 (see

Forest Plan, p. 51). The Coalbed Run BA analyzes effects to ANF TES and their habitat. The

Coalbed Run BE analyzes effects to ANF Regional Forester’s Sensitive Species (RFSS). The

Coalbed Run Wildlife Report analyzes habitat conditions for the project area, including habitat

structure, habitat composition, habitat patterns, and an analysis for Management Indicator

Species (MIS), games species, and additional ANF species with viability concerns.

I find the Responsible Official adequately considered the compartments and the potential effects

of the treatments on the resources of concern. He states ―[p]roviding for diversity of plant and

animal communities and protecting forest health is at the heart of this project‖ (DN/FONSI, p.

4), and goes on to describe the tradeoffs and rationale used at coming to the decision. I uphold

his decision on this issue.

Issue 10: Need for Prescribed Fire

―The Forest Service did not adequately study its presumed need to use prescribed fire as a

management tool(.) There is no fire threat in the Allegheny and the Forest Service knows it.‖

(NOA, p. 43)



Appellant claims the Responsible Official did not evaluate the need to use prescribed fire as a

management tool. The Purpose and Need for the use of prescribed fire is described in the

“Coalbed Project Proposed Action, Purpose and Need, Decision to be Made” document (PR,

Vol. 1, pp. 2, 3, and 6). Prescribe fire is being used to improve understory conditions and

maintain savannahs in fire-adapted communities to provide wildlife habitat. It’s also being

proposed to stimulate oak regeneration with oak savannah communities which are fire-adapted.

The purpose and need description in this document says that, “There is a need to provide for the

long-term maintenance of the oak forest community and oak-type wildlife habitat within the

project area through active management including release, thinning, regeneration, and

reintroducing fire into fire-adapted oak ecosystems (USDA-FS 2007a p. 14).

Reintroducing fire to this project area is needed to maintain the oak forest type (Abrams, 2005,

Abrams, Downs 1990). Research on the ANF identified a historical link between oak distribution

and Native American burning (Ruffner, et al., 1997).” This documentation clearly shows that the

Responsible Official reviewed the need for and appropriateness of prescribed fire to achieve the

project purpose and need.

In addition, the Vegetation Specialist Report contains an in depth discussion of the purpose of

the prescribed fire for this project:

―The action alternative contains proposals to reintroduce fire into a small portion of the

Coalbed Run project area in order to shift the understory community composition in

selected stands back towards pre-European settlement conditions. This proposal

addresses the goal of the Forest Plan to reintroduce fire into fire-adapted oak ecosystems

and maintain a diversity of understory mast-producing species (USDA-FS 2007, pp. 14

and 15). Stands were selected for treatment based of the presence of residual fire adapted

species (e.g. blueberry, huckleberry), a fire adapted overstory, and site conditions that

depict the greatest likelihood of success from reintroduction of fire. Such communities

represent those sites where oak is most likely to regenerate and compete with invading,

more mesic species such as red maple and birch…It is also expected that fire may

increase the presence of herbaceous species that have been on the decline (Hutchinson

2006). Spot herbicide treatments will also be used to hold back fern encroachment until

the fire adapted community is well established. Timber harvest is not proposed in these

treatments.‖ (PR Vol. 4, Vegetation Specialist Report).”

And

“Controlled Burning: The presence of fire on the ANF is a community defining event in

oak forest types (Brose, 2003). Historical investigations and dendro-ecology studies have

indicated that Indian populations had been manipulating forest communities with fire for

the past 10 to 12,000 years (Brose et al., 2001; Abrams, 1992). Oak species were able to

capitalize on these conditions because of their ability to sprout, hypogeal germination,

and well-formed root systems (Brose et al., 1999).

Due to the location of the Coalbed Run project area, fire is a useful tool for management

of several communities present under several objectives. The first objective relates to

regeneration of oak forests through development of competitive oak seedling



regeneration. The Coalbed Run Project area includes reintroducing fire in oaks stands to

restore fire regimes towards those that existed prior to Euro-American settlement. Timely

ground fires have been shown to increase oak seedlings and sprout densities. This gives

oak species the competitive advantage needed to ensure the stand regenerates to oak

(Brose et al., 1999; Brose et al., 1999a). Prescribed fires would be used during the early

to mid spring time frame when shade tolerant species such as birch, striped maple, and

red maple are most susceptible to top killing. The fires would generally be characterized

as moderate to high intensity ground fires that consume the upper portions of the leaf

litter. This treatment would occur several years after the shelterwood seed cut when the

oak seedlings have had enough time to develop their root systems. Multiple burns over a

10 to 15 year period may be necessary to build the competitive advantage needed for the

oak seedlings to reach the main canopy. These fires will contribute towards Forest Plan

goals and objectives (USDA-FS 2007, pp. 14, 19).

Fire is also proposed for use to satisfy wildlife objectives within the Coalbed Run Project

area. The stands proposed for burning under these objectives include management of

cool season grasses in wildlife openings. In addition to the maintenance of cool season

herbaceous species, prescribed fire would also maintain the presence of the wildlife

opening by reducing the numbers of woody invaders from surrounding forest

communities. This proposal includes use of prescribed fire for wildlife objectives on

approximately 19 acres in the action alternative.

The third objective corresponds well with the first two. It relates to restoring fire to

communities that developed under historical fire regimes and would still benefit from

fire‟ s influence. These treatments as proposed in the action alternative are listed in the

Understory Treatments and Savannah Maintenance sections listed above. Coalbed Run

Project 50.

Controlled fire is a tool that requires ample understanding and respect. Multiple safety

and control measures will be incorporated into each prescribed fire that is completed.

The Forest will also be applying knowledge resulting from the oak regeneration study

conducted on the ANF in conjunction with the Northeastern Forest Research Station

(USDA-FS, 2003b). The ANF will develop safeguards to ensure the protection of human

life, surrounding private lands or structures, other fire sensitive forest communities, and

the local resources present on that site. Further information regarding prescribed fire

may be found in the revised Forest Plan (USDA-FS 2007, pp. 70, A-32; USDA-FS 2007a,

p. 3-125).” (PR Vol.4, Vegetation Specialist Report pp. 49-50)

As stated in the Response to Comments (EA, App. D, p. 12), “The Forest Plan documents the

future intention to incorporate prescribed fire, in addition to mechanical methods, as one of

many available tools to reduce hazardous fuels, maintain and enhance warm season grasses,

improve wildlife habitats, and benefit landscapes where advanced oak regeneration is present

and to reintroduce fire into fire-adapted oak ecosystems to conserve regional biodiversity and

sustain ecosystem structure and function (USDA-FS 2007a, pp. A-13 to A-15, A-32 and A-35).”



Appellant provides no site-specific evidence to contradict the field data and scientific findings

supporting the Coalbed projects use of prescribed burning to achieve the projects purpose and

need. I find the Appellant’s claim regarding the lack of support for the purpose and need

concerning the use of prescribed fire is unsubstantiated.

Issue 11: Need for additional guidelines for stream protection

The Appellant asserts that the Forest Service should have developed an alternative that

included ―additional guidelines to protect forest streams from erosion and sedimentation‖

because Pennsylvania BMPs are not sufficient to protect water quality given oil and gas

development. (NOA, p. 37)




project does not involve private oil and gas drilling.

Chapter 2 of the EA describes the issue analysis process and compares the Alternatives

considered for the Coalbed Run Project. No significant issues were identified through scoping

and the Responsible Official determined that detailed analysis of an additional alternative to the

Proposed Action was not necessary.

CEQ implementing regulations at 40 C.F.R. 1500 direct federal agencies to focus on truly

significant issues and eliminate from detailed study the issues which are not significant or which

have been covered by prior environmental review (1501.7(a)(3); 1500.5(d)). Impacts shall be

discussed in proportion to their significance (1502.2 (b)).

The federal courts have said that the “NEPA only requires that appropriate alternatives be

considered. 42 U.S.C. § 4332(2)(E). NEPA does not mandate that any particular alternative be

selected during an EA.” Society Hill Towers Owners’ Ass’n. v. Rendell, 210 F.3d 168, 183 (3rd

Cir. 2000). NEPA only requires that federal agencies consider “reasonable” alternatives.

Alternatives that are impractical, infeasible, or do not meet the purpose and need set forth for the

proposal need not be analyzed in detail. In other words, “where the agency has examined a

breadth of alternatives but has excluded from consideration alternatives that would not meet the

goals of the project, the agency has satisfied the NEPA. Practically speaking, “[t]here is a

necessary limit to the thoroughness with which an agency can analyze every option.” Concerned

Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 705-706 (3rd Cir. 1999).

The proposed activities in the Coalbed Run Project were designed to comply with applicable

federal and state laws and regulations and to be consistent with the programmatic direction set

forth in the ANF Forest Plan. I find that water quality effects were adequate addressed in the

design and development of project activities and mitigation, and in the effects analysis (EA, Ch.

3, Sect. F). I agree with the analysis in the EA that the Coalbed Run Project will have no

significant adverse effects on water resources. See also the response to Issue 4.



Alternative 2 includes road decommissioning (30.92 miles) and storm proofing of roads that

would provide benefits over the long-term by reducing compacted surfaces and restoring natural

flow of water resources (EA, Table 1). Alternative 2 also includes the application of lime and

limestone DSA, provide base cations (e.g. calcium and magnesium) to the local watershed,

which have the potential to help buffer nearby streams against episodic and chronic acidification

(EA, pp. 37-38). I find that Alternative 2 adequately protects forest streams from erosion and

sedimentation, and includes activities that will likely improve water quality in the long term. I

find that the Responsible Official acted correctly when he determined that detailed analysis of an

additional alternative to the Proposed Action was not necessary.

Issue 12: Area should be managed differently due to OGD elsewhere

―The footprint of the Coalbed Run Project is one of the few areas on the forest that is, at the

moment, not anticipated to have this level of destruction (full mine out spacing) from OGD.

This area must be reassessed and managed differently to account for all the other uses of the

forest that will be lost to OGD.‖ (NOA, p.60)

Response: The Appellant is questioning the appropriateness of the activities of the Coalbed Run

Project and requesting the project area be reassessed.

The Forest is guided by many laws and policies including NFMA and the Multiple Use

Sustained Yield Act (MUSYA). These laws in combination with many other laws, policies and

information gathered from the public direct the Forest Land Management Planning process. The

Alleghany National Forest Plan has specific MA requirements for future site-specific of activities

and treatments on the Forest. This is currently based on the 2007 Forest Plan, which took all

these things into consideration.

All the proposed activities are consistent with the MA requirements and desired future conditions

documented in the 2007 Allegheny National Forest Land Management Plan. The Forest IDT and

Responsible Official clearly state the purpose and need of the project is in accord with the goals

of the Forest Plan (see DN/FONSI, pp. 11-12).

The effects of project intensity are well described in the EA (Purpose and Need, p. 10; Project

area and Description of the Affected Environment, p. 20-22) and is supported by the DN/FONSI

pp. 8 -9, that take into consideration Unique Characteristics, and both beneficial and adverse

effects.

In essence, the Appellant is asking for the Forest Plan desired conditions for this area to be

reassessed in light of developments elsewhere in the region. It is my opinion the Appellant has

not demonstrated a need to reassess the project area, and this project is not the proper project or

analysis to reconsider the Forest Plan for the reasons the Appellant proposes.



Issue 13: Consider recent court rulings for Clean Water Act permits

―It should also be noted that a recent decision by the 9th

Circuit made a decision in NEDC v.

Brown, which concludes that NPDES permits are required under the Clean Water Act for

stormwater runoff discharges from logging roads.‖ (NOA p. 37)

Response: In NEDC v. Brown, 617 F.3d 1176 (9th Cir. 2010), the Ninth Circuit considered

application of the 1987 amendments to the Clean Water Act, 33 U.S.C. §§ 1251-1387 (including

the Section 402 (33 U.S.C. 1342) permitting requirements related to storm water runoff) and

EPA’s implementing regulations (40 CFR 122), which apply a two phase regulatory approach for

stormwater discharges.1 In district court the defendants (the Oregon State Forester, the Oregon

Board of Forestry, and private companies engaged in logging operations) argued that (1) the

logging roads did not require permits because they were covered by the EPA’s silvicultural point

source regulations at 40 CFR 122.27(b), commonly known as the “Silvicultural Rule,”2 and (2)

the alleged stormwater discharges from logging roads did not qualify as Phase I discharges, but

were regulated by the EPA under the Phase II regulations. This argument was consistent with an

earlier Ninth Circuit decision (Environmental Defense Ctr. v. EPA, 344 F.3d 832, 860-863, 879

(9th Cir. 2003)) indicating Section 402(p)(6) EPA regulation of storm water discharges from

forest roads (if any) would likely occur under Phase II regulations. The District Court of Oregon

agreed with defendants and dismissed the complaint, NEDC, 476 F.Supp. 2d 1188 (D. Or. 2007).

In August 2010, the Ninth Circuit reversed the district court and concluded that logging roads are

point source discharges for which an NPDES permit is required under the Phase I regulations

when “designed and constructed with systems of ditches, culverts, and/or channels that collect

and convey storm water runoff.” NEDC, 617 F.3d at 1179. The Circuit Court focused on the

manner in which the pollutants reached the rivers and streams. In the Circuit’s view, the logging

roads at issue in NEDC were connected to a drain system that discharged storm water into

adjacent rivers, making them a point source of pollution. The Circuit rejected the argument that

the Phase I regulations exempted silvicultural discharges.

I have carefully considered the Appellant’s allegations, the Ninth Circuit’s decisions and

reasoning in both EDC v. EPA and NEDC v. Brown, the scientific information compiled in the

PR, and the site-specific circumstances of the Coalbed Run project. It is important to note that

1 Section 402(p) requires NPDES permits for the most significant sources of stormwater discharge, including

stormwater discharges “associated with industrial activity,” pursuant to “Phase I” regulations (33 U.S.C.

1342(p)(2)(B)). Pursuant to Section 402(p)(6), other types of storm water discharge are under the EPA’s “Phase II”

regulations (40 CFR 122.26(a)(9)(i)) and other sections. Stormwater discharges not covered by Phase I and II

regulations are exempt from Clean Water Act permitting requirements. 2 The EPA’s silvicultural rule (40 CFR 122.27) identifies harvesting, road construction, and maintenance from

which there is natural runoff as “non-point source silvicultural activities”. See 45 Federal Register 33290, 33446-

33447 (May 19, 1980). In 1976, the EPA determined that discharges remained nonpoint sources even where they

passed through ditches, pipes, or drains meant to channel, direct, or convey the runoff. See 41 Federal Register

6281, 6282 (Feb. 12, 1976). I take note also of the Silvicultural Rule, as set forth in the preamble to the Phase I rule,

55 Federal Register at 48009 and 48011 and 60 Federal Register 50804, 50835 (Sept. 29, 1995) and the EPA’s

discussion and views concerning the meaning of the term “natural runoff” in the government’s December 6, 2006

friend of the court brief filed in the district court in NEDC v. Brown, 06-1270 (D. Or.) at pp 13-16



neither the Forest Service nor any other federal agency is a party to the NEDC litigation

(although a friends of the court brief was filed in the Ninth Circuit by the United States in

February 2011). The relief afforded in NEDC was limited to the parties in that case and

applicable only to the stormwater discharges before the Circuit in that case. The ruling in that

case is not binding on a non-party to the litigation.

I note also that the August 2010, NEDC decision does not constitute mandatory legal precedent

outside of the Ninth Circuit. For example, the Appellant’s assertions here do not consider the

Eighth Circuit’s opinion in Newton County Wildlife Ass’n. v. Rogers, 141 F.3d 803, 810 (8th

Cir. 1993) (“EPA regulations do not include the logging and road building activities cited by the

Wildlife Association in the narrow list of silvicultural activities that are point sources requiring

NPDES permits.”). I considered these varying legal viewpoints in my review. The permit

exemptions for storm water runoff associated with the existing EPA “silvicultural rule” remain

available for federal and state regulatory authorities in the State of Pennsylvania. Even if (for the

sake of argument) NEDC were binding in the Third Circuit, there is no way for the Forest to

comply with the Ninth Circuit’s ruling since there is not administrative structure in place to

receive a permit.

It is important to understand that there may be further litigation of the August 2010 Ninth Circuit

decision. Petitions for rehearing en banc before the Circuit were resolved on May 17, 2010.

However, a petition for certiorari to the Supreme Court may be filed. Therefore the final

outcome of NEDC v. Brown is uncertain at this time.

Most importantly, as indicated in the Forest’s response to the Appellant’s comment on this topic,

the facts in NEDC are distinguishable from those associated with the Coalbed Run project (EA

Appendix D, Comment 2-G, p. 9-10). In NEDC, stormwater runoff from Oregon logging roads

was channeled and collected by a system of improvements and then released into adjacent

streams or rivers (navigable waters) at discrete discharge points. This runoff was found to

contain significant amounts of sedimentation. In contrast, the Coalbed Run project on the

Allegheny National Forest does not involve the construction of any road improvements to collect

and channel storm water for discharge into waterways. There is no evidence of a direct

connection between discharge and navigable waters. Moreover, the project’s road

decommissioning and maintenance activities are expected to reduce sedimentation and runoff

and result in beneficial effects in comparison with the no action alternative (EA, p. 36-39). The

Forest is committed to implementing BMPs and monitoring water quality (EA, p. 37) in the

Coalbed Run Project area.

In contrast with NEDC, the PR plainly demonstrates that the Coalbed Run Project seeks to

reduce the hydrologic connectivity of roads to streams resulting in a reduction in the volume of

road-derived runoff and sediment entering the streams (EA, p. 37). My review of the record

indicates the on-the-ground circumstances associated with the Coalbed Run project are clearly

distinguishable from the factual context in which the Ninth Circuit considered NEDC v. Brown.

Based on the preceding information, I find that the Ninth Circuit’s decision in the NEDC v.

Brown does not mandate a Clean Water Act NPDES permit for the Coalbed Run Project. I also

find no support in law or the PR for the Appellant’s statement that the August 2010, NEDC



decision contains “conclusions which must be evaluated in an EIS.” The issues in the NEDC

case were narrowly focused on specific NPDES permitting requirements under Section 402(p) of

the Clean Water Act and the EPA’s implementing regulations. The Ninth Circuit did not have

any opportunity or reason to comment upon any specific requirements associated with NEPA,

nor did the Circuit’s decision equate an NPDES permit to NEPA “significance.” The Appellant

does not provide any project specific information concerning run-off from the roads in the

project area, or link the effects from the project to the factors set forth at 40 CFR § 1508.27(b). I

find that the NEDC decision does not support the Appellant’s argument that an EIS should have

been prepared for this project. The Appellant’s statements regarding water quality issues are

addressed in other portions of this appeal review.

Recommendation

After reviewing the analysis and supporting documentation for the Coalbed Run Project and

considering each of the Appellant’s issues, I recommend Responsible Official District Ranger

Anthony Scardina’s DN/FONSI of February 24, 2011, be affirmed. I found no violation in law,

regulation or policy related to the Appellant’s concerns.

/s/ Steven A. Goldman

STEVEN A. GOLDMAN

Appeal Reviewing Officer

District Ranger

cc: Patricia R Rowell

United States Forest Huron-Manistee National Forests …a123.g.akamai.net/7/123/11558/abc123/forestservic... · 2015. 6. 27. · United States Department of Agriculture Forest Service

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