The lack of supporting documentation to explain eligibility determinations in the FEIS and the basis for changes made to eligibility determinations in the DEIS, violates the National Wild and Scenic Rivers Act (WSRA), NEPA (National Environmental Policy Act), and the APA (Administrative Procedure Act).
Objection Issue Examples:
“The KNF violated USFS policy, the National Environmental Policy Act, and the Administrative Procedures Act, by finding some streams ineligible for Wild and Scenic designation in the FEIS, that they found eligible in the DEIS, based on flawed rationale.”
“The KNF violated USFS and interagency policy, as well as the Administrative Procedures Act, by finding some streams ineligible that have undisputedly greater ORV’s than other streams found eligible.”
“The KNF failed to meet the legal and procedural standard for excluding an alternative from further consideration under NEPA. The objector further contends "By excluding our alternative which proposed to add several Wild and Scenic eligible rivers from detailed consideration, the KNF is in direct violation of NEPA based on the above standards.”
“The KNF violated the National Environmental Policy Act and the Administrative Procedures Act by failing to articulate a rational connection between the facts found and the choices made. The objector further contends "While the KNF explained their methodology, they did not transparently apply it to the rivers we proposed for eligibility. The only streams that garner significant discussion and substantive information in the FEIS are those selected by the KNF as eligible. There is no similar discussion and information on the rivers that we proposed for eligibility and that were not endorsed by the KNF.”
“The KNF violated the WSRA and the Administrative Procedures Act by finding certain streams ineligible for WSR designation based on its determination that the streams had no ORV’s, despite the KNF’s prior and concurrent findings that these streams’ river-related values are “Outstanding” and otherwise exemplary. (Star Creek, Ross Creek)”
“We hold that the following streams be considered as eligible for Wild and Scenic designation by the KNF: [Callahan Creek, Granite Creek, Grave Creek, Quartz Creek, Rock Creek, Ross Creek, Star Creek, Wigwam River]”
“The KNF violated USFS and Interagency policy by admitting a stream has four ORVs yet finding the stream was ineligible for WSR designation because it is intermittent. (Ross Creek)”
Summary of Review Findings:
What is required?
To be eligible for inclusion [in the National Wild and Scenic Rivers System], a river must be free-flowing and, with its adjacent land area, possess one or more “outstandingly remarkable” values [(ORVs)]. Forest Service Handbook (FSH) 1909.12, 82.1; see also WSRA §2(b). No other criteria, including statutory or administrative area designations, are applied to determine WSR eligibility.
FSH 1909.12, 82.13 states that “[t]here are no specific requirements concerning minimum flows for an eligible segment. Flows are considered sufficient for eligibility if they sustain or complement the [ORVs] for which the river would be designated.”
What the planning record shows
FEIS Appendix E describes the “Process to Identify and Classify Potentially Eligible Wild and Scenic Rivers.” pp. 224-231. While documentation exists in the record to support completion of steps 1-4 (see KNF Wild and Scenic Rivers – Initial Assessment for Potential Eligibility 2006), supporting documentation is noticeably lacking for Step 5, which involved the following inventory review work: “Using the Forest as the comparative scale, review the identified potential ‘outstandingly remarkable values’ and determine whether they meet the criteria of being rare, unique, or exemplary.” FEIS Appendix E, p. 228. As a result, no documentation is in the plan record currently to explain specific discrepancies between the initial assessment of streams for potential ORVs and the final WSR eligibility inventory.
Callahan Creek and Wigwam Creek were determined to be free flowing and possess at least one ORV. FEIS, pp. 29-30. As a result, Callahan Creek and Wigwam Creek are eligible for WSR designation. Callahan Creek (MA3 special area) and Wigwam Creek (bull trout critical habitat designation) were wrongly excluded from eligibility designation based on the conclusion that other administrative designations would protect their ORVs.
Star Creek was determined to be free-flowing but the FEIS did not identify an ORV during its eligibility assessment. FEIS, p. 30. Accordingly, the determination that Star Creek is not eligible for WSR designation is supported by its assessment.
While Granite Creek and Rock Creek were initially assessed as free flowing and possessing one or more potential ORVs (2006 KNF WSR Initial Assessment for Potential Eligibility 7, p. 17), it was concluded that neither contained values that were “rare, unique, or exemplary.” FEIS, pp. 29-30. There is insufficient information in the planning record to support these conclusions, including describing the analysis used determine that potential ORVs initially identified for Granite Creek and Rock Creek were not be significant at the comparative scale. See FSH 1909.12, 82.14 (“The determination that a river area contains outstanding values is a professional judgment on the part of an interdisciplinary team, based on objective, scientific analysis. Input from organizations and individuals familiar with specific river resources should be sought and documented as part of the process.”).
Grave Creek and Quartz Creek Systems were found to be eligible in Alternatives C and D, but found these two systems ineligible for WSR designation under Alternative B Modified (the selected alternative in the Draft ROD). FEIS, p. 477. The rationale under Alternative B Modified was supported by stating the following: “Review of these creek systems between draft and final found the outstandingly remarkable values for most segments were bull trout and sensitive plants. The presence of these features are not necessarily ‘rare, unique, or exemplary’ across the KNF, with bull trout and sensitive plants found on many creeks and rivers throughout the Forest.” Id. While this justification is adequate, WSR eligibility should not vary across alternatives. Determinations on whether a river or segment is free flowing and possesses one or more ORVs should be consistent across all alternatives.
The “KNF WSR Initial Assessment for Potential Eligibility” (p. 37) identifies Ross Creek as free-flowing with a Botany ORV, but the FEIS (p. 30) states that “this creek runs dry in the late summer and would not be appropriate as an eligible wild and scenic river.”
The objector accurately identified a deficiency in the plan record related to the WSR eligibility inventory. Thus, the record does not adequately support KNF’s list of eligible wild and scenic rivers or KNF’s determinations that certain streams were ineligible.
Callahan Creek and Wigwam Creek were found to be free flowing and possess at least one ORV, but were wrongly excluded from eligibility designation based on the conclusion that other administrative designations would protect their ORVs.
The initial eligibility assessment for Granite and Rock Creeks found them to contain one or more ORVs, yet the FEIS concluded that neither contain values that are “rare, unique, or exemplary,” without further explanation or support for the change.
Grave Creek and Quartz Creek stream systems were found to be eligible in Alternatives C and D, but ineligible in the selected alternative (B Modified). Determinations on whether a river or segment is free flowing and possesses one or more ORVs should be consistent across all alternatives.
Forest Service policy at FSH 1909.12, 82.13 states that “[t]here are no specific requirements concerning minimum flows for an eligible segment. Flows are considered sufficient for eligibility if they sustain or complement the [ORVs] for which the river would be designated.” Consequently, Ross Creek was determined to be ineligible based on grounds that are inconsistent with the WSRA, Agency policy, and interagency guidelines.
Considerations for Dialogue at the Meeting:
Provide additional documentation on the review completed at Step 5 of the WSR eligibility process. Highlight any discrepancies between the initial assessment of streams for potential ORVs and the final WSR eligibility inventory. Provide an explanation for the rationale used to make final ORV determinations for all streams, both eligible and ineligible. Also, modify eligible WSR narratives in Appendix E to make an explicit tie to the ORVs identified for those stream segments.
Add Callahan Creek, Wigwam River, and Ross Creek to the list of eligible WSRs; provide additional support for eligibility determinations for Granite Creek and Rock Creek; and come to a consistent conclusion on the eligibility of the Grave Creek and Quartz Creek Systems across all FEIS alternatives.
Clarify that other administrative designations did not factor into the WSR eligibility assessment, as such a consideration is only appropriate at the WSR suitability stage. If KNF inappropriately found any river segments to be ineligible based on other existing administrative designations, the eligibility inventory should be revised accordingly.