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April 20, 2015
Marcus Beard
District Manager
57 Taff Drive
Crawfordville, FL 32327
RE: Comments on Draft Environmental Impact Statement,
Beasley Pond Analysis Area, Apalachicola National Forest
(Liberty County, Florida).
Dear Mr. Beard,
On behalf of Wild South, Center for Biological Diversity, and
Margaret Copeland we submit theses comments on the Draft
Environmental Impact Statement (“DEIS”) for the Beasley Pond Analysis
Area in the Apalachicola National Forest in Liberty County, Florida.
The Forest Services identifies Alternative B as the Proposed
Action/Preferred Alternative. This alternative includes among other
things:
• “Thinning” of approximately 2068 acres of slash and longleaf
plantations or mature stands;
• Implementing uneven-aged management cuts on 833 acres of
longleaf pine stands;
• Conducting “wet savanna restoration” treatments on 811 acres.
(DEIS at 19).
For the reasons explained below, the DEIS does not comply with the
requirements of the National Environmental Policy Act (“NEPA”). The
Forest Service’s selection of Alternative B as its preferred
alternative/proposed action is arbitrary and capricious because the Forest
Service fails to establish a rational connection between the facts found and
the decision made. There is significant uncertainty and conflicting data
regarding the historical conditions of the portion of the project area
targeted for savanna restoration. Further, the impacts to the survival and
recovery of Red-cockaded woodpeckers (“RCW”) could be significant and
long term (particularly given that the Forest Service is impermissibly
managing the species at the Managed Stability Standard) and the Forest
Service has not given the necessary “hard look” at these impacts as NEPA
requires. Accordingly, the Forest Service has not shown that both the
restoration is necessary and that the preferred alternative will (at best)
keep the RCW population “stable.”
I.
THE DEIS VIOLATES NEPA
The DEIS runs afoul of NEPA because it fails to provide sufficient support for the Forest
Service’s decision to select Alternative B as its preferred alternative, and fails to
adequately consider and analyze the project’s effects (particularly the long-term,
generational effects) to Red-cockaded woodpeckers.
A.
The Forest Service’s Selection of Alternative B as the Preferred
Alternative is Arbitrary and Capricious Because the Agency Has
Failed to Examine the Relevant Data and Articulate a Satisfactory
Explanation for its Action.
1.
There is Not Sufficient Scientific Support for the Forest
Service’s Proposed 811-Acre Wet Savanna Restoration
Treatment.
A central tenant of federal administrative law under the Administrative Procedure Act is
that agencies must examine the relevant data and articulate a satisfactory explanation
for their actions, including a rational connection between the facts found and the choice
made. 1 The DEIS contains incomplete and conflicting information regarding the
historical condition of the Beasley Pond site and the Forest Service fails to articulate a
satisfactory explanation for its decision to thin the 811-acre site down to a BA of 10-30 at
the expense of as many as 35 RCW colonies that use the area for breeding and foraging
habitat. See Biological Assessment at 12.
The DEIS states that the Beasley Pond Analysis Area includes large areas of savanna and
that many savannas throughout the region have been lost to plantation silviculture, and,
in unplanted areas, alteration of fire regimes have led to the loss of wet prairies through
encroachment of shrubs. DEIS at 4. The DEIS discusses a project the National Forests
in Florida initiated with the Florida Natural Areas Inventory (FNAI) in 2010 to identify
and delineate historical natural communities of the Apalachicola National Forest.
According to the Forest Service, this investigation showed that “many historical wet
savannas have been converted to forests and that a distinct natural community (upland
pine) has not been previously recognized in the project area.” DEIS at 6. The Forest
Service then summarily concludes that the 811- acre “restoration” project area was
historically a wet savanna.
There is no specific data and analysis, however, demonstrating that the 811 acres
included in the preferred alternative are historically savanna areas that have been
converted to forests in recent decades, nor is there data and analysis supporting the
agency’s decision to “restore” it to a mostly treeless, open state with a BA of 10-30
1 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
2 square feet per acre. The DEIS states that FNAI biologists generated a GIS-based
historical community map of the entire forest based on multiple years of georeferenced
aerial photography, soil surveys, LiDAR digital elevation models, vegetation plots,
element occurrences of rare species and natural communities and ground-truthed GPS
points. But it is entirely unclear to what extent some or all of these tools were
specifically employed in the Beasley Pond Area, when they were employed, and how
they were employed. What was the methodology? What did the soil surveys reveal? Was
there ground-truthing in the 811-acre site identified in the proposed action? In fact, the
Forest Service’s reliance on one of these tools--aerial photography--contradicts its very
own conclusions about the historical conditions of the 811-acre site. On page 13 of the
DEIS the Forest Service explains that historical aerial photographs of the area from the
early 1950s show an open vegetation structure with expansive treeless areas
interspersed among forests of widely spaced pines with denser vegetation along drains.
But the agency concedes that “this photograph was taken after decades of logging,
turpentine extraction, grazing and intentional burning.” The Forest Service then
concludes: “As such it likely depicts conditions with fewer and smaller trees than were
present before European settlement of the area.” These photos and the explanation
given by the Forest Service for the absence of trees in the area point to a historical
condition that is inconsistent with the Forest Service’s conclusion that the site is
historically an open, mostly treeless savanna.
That the Apalachicola Forest Plan does not include restoration objectives for wet
savannas because of “uncertainty regarding their previous geographic extent and
questions about appropriate restoration activities” (DEIS at 5-6) is further telling.2 The
Forest Service notes on page 16 that the “desired conditions” for such areas are not
clearly defined in the Forest Plan and there are no habitat-specific restoration objectives
for these areas. Thus, even if there was adequate support for concluding that these 811
acres were historically wet savannas the Forest Service is more or less left guessing at
this point as to what the specific restoration activities and objectives should be and what
the desired condition should look like. What are the agency’s plans when it comes to the
hydrology of the region? Nowhere does the DEIS explain how it will maintain the
hydrology necessary to support a wet savanna in these areas.
Moreover, the Forest Service’s fire plans need to be reexamined. Regardless of what
logging activities are ultimately pursued in this area (and Compartment 28 most
notably) burns need to be conducted later (in summer) to simulate the timing and
frequency of natural fires. This would help ensure that fires come after RCW chicks have
fledged from their nest and the frosted flatwoods salamander has completed its breeding
season. Given the great deal of uncertainty and support for the agency’s conclusions, the
lack of any real guidance and direction regarding the activities that should be employed
and the desired future conditions, and the substantial risk posed to the federally
endangered Red-cockaded woodpecker (as explained below), the Forest Service has
2 It also appears the project identified in preferred alternative would be inconsistent
with the Forest Plan. Under the National Forest Management Act, site-specific Forest
Service projects must be consistent with that forest’s Land and Resource Management
Plan (“LRMP”). 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e).
3 failed to articulate a satisfactory explanation for going forward with its preferred
alternative.3
2.
The DEIS Fails to Adequately Analyze the Proposed Project’s
Direct, Indirect, and Cumulative Impacts to RCWs.
“NEPA imposes procedural requirements designed to force agencies to take a ‘hard look'
at [the] environmental consequences” of their actions. Earth Island Inst. v. United
States Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003). “This includes considering all
foreseeable direct and indirect impacts.” Id. See also 40 C.F.R. § 1508.25 (c).
This DEIS fails to consider a wide range of foreseeable direct and indirect impacts on
the Red-cockaded woodpecker.
a.
Direct Impacts
The DEIS fails to fully account for direct impacts of the Proposed Action (Alternative B)
on the RCW and its habitat. The DEIS states that the target BA for the first or
intermediate thinning of approximately 2,068 acres of slash and longleaf pine stands
and uneven-aged management cuts on 891 acres of mature longleaf pine would be 50
square feet per acre. Neither the DEIS nor the Biological Assessment explains whether
this BA is adequate for the recovery of the species as required under the ESA. A higher
BA may be more appropriate, particularly if a BA as low as 10-30 is being called for in
those areas slated for “wet savanna restoration treatments.” Moreover, the DEIS does
not identify the age and size of those trees to be thinned. These stands are 24 to 141
years old. Will the resulting project have a BA of 50 with mostly mature trees remaining
or will the project simply thin larger trees to the point that the remaining smaller trees
yield the same overall basal area? Obviously, the harvesting of 60, 70, 80 year old trees
(and older) to get to a basal area of 50 compared to the thinning of smaller, less mature
trees carries with it potentially far greater impacts in terms of foraging and possibly
future nesting opportunities. Yet, none of this is examined in the DEIS. With some 35
active RCW clusters with foraging partitions in the project area the potential direct
3 At the very least, more study is required of the historic conditions of these sites and the
appropriate restoration activities before project level decisions are made to alter existing
ecological conditions. “[T]he very purpose of NEPA’s requirement that an EIS be
prepared for all actions that may significantly affect the environment is to obviate the
need for []speculation by insuring that available data is gathered and analyzed prior to
the implementation of the proposed action.” Foundation for N. Am. Wild Sheep v. U.S.
Dep’t of Agric., 681 F.2d 1172, 1179 (9th Cir. 1982). See also, Cabinet Res. Group v. U.S.
Fish and Wildlife Serv., 465 F.Supp.2d 1067, 1100 (D. Mt. 2006) (finding that agency’s
failure “to attempt any assessment of the importance of the missing information calls
into question the validity of the [agency’s] conclusions about the impacts of the
proposed action” and setting aside the EIS).
4 impacts could be significant. The Forest Service has not fully examined these impacts as
required under NEPA.
b.
Indirect Impacts
An EIS must analyze “indirect effects,” which are caused by the action and are later in
time or farther removed in distance, but are still reasonably foreseeable. 40 C.F.R. §
1508.8(b).
The DEIS fails to adequately address the indirect impacts of this project. These indirect
impacts include the impacts to an unspecified and unquantified number of breeding
pairs that may be harmed or harassed as a result of logging and burning practices within
200 feet of cavity trees. The Forest Service states, “if seasonal hauling guidelines from
the RCW Recovery Plan are relaxed as proposed (to allow heavy equipment access to
wetter areas), timber harvest and associated activities may disrupt several RCW clusters
during the breeding season. Therefore, implementing the proposed action is likely to
adversely affect red-cockaded woodpeckers because individuals may be disturbed
during nesting season.” DEIS at 66. The Forest Service may waive harvest hauling
restrictions on as many as 12 clusters, according to the Biological Assessment, to
conduct timber harvest and road construction operations near RCW clusters. Biological
Assessment at 9, 14, Appendix B. Considering the project area should support at least 26
RCW clusters to meet the proportional contribution to the population goal, the loss of
many if not all of these 12 clusters due to reproductive losses could result in the project
area failing to meet the proportional contribution to the population goal and placing
additional burdens on surrounding areas to compensate for these losses (if that is even
possible). The DEIS fails to examine what these waivers and resulting impacts may
mean for these clusters and the population as a whole, much less attempts to quantify
just how many RCWs could be impacted in these 12 clusters.
There is also no attempt to extrapolate what the resulting losses could mean over the
long-term. How many breeding pairs and helpers are in the area? What are their ages?
How frequently have these birds reproduced? The Forest Service’s determination that
the waiver of harvest hauling restrictions in “some clusters” is likely to only have shortterm (i.e., one or two years) negative effects on RCWs due to disturbance during the
breeding season (DEIS at 67) lacks explanation and is without support given that the
loss of even one or two years of breeding seasons could have long-term generational
impacts that well exceed the 1-2 years of actual logging activities. While some birds may
not reproduce for a year or two, others because of their age may not reproduce at all
going forward.4 Others may simply abandon the area permanently and may face future
reproductive challenges (particularly if they are forced to relocate due to a loss of
adequate nearby foraging habitat). If birds relocate how may this impact nearby clusters
(i.e. competition)?
4 See U.S. Fish & Wildlife Service, Red Cockaded Woodpecker Recovery Plan, 16 (2003)
(discussing how reproductive success tends to decline as birds age). 5 It is rather astonishing that none of this is discussed in the EA or the Biological
Assessment. The DEIS lacks any sort of meaningful analysis as required by NEPA and
when coupled with the agency’s failure to provide adequate justification and scientific
support for its plans to “restore” areas to historical savanna conditions, the document
fails as a whole to provide any support for the Service’s conclusion that the project will
maintain a “stable RCW population” as stated in the Service’s Purpose and Need
Statement. (DEIS at 2).5
c.
Cumulative Effects
NEPA requires federal agencies to take a “hard look” at the cumulative effects of the
proposed action. See Florida Wildlife Federation v. United States Army Corps of Eng’rs,
401 F.Supp.2d 1298 (S.D. Fla. 2005)(holding that the agency failed to take a “hard look”
at the cumulative effects of the proposed action in its EA). To accomplish this, the Forest
Service must not only catalogue past, present, and future projects but also assess the
cumulative environmental impacts of those projects with the proposed project and
analyze the additive cumulative impact of all these actions. See City of Carmel-By-TheSea v. United States Dep’t of Transportation, 123 F.3d 1142, 1160 (9th Cir. 1997)
(rejecting cumulative impacts analysis that referred generally to other past projects and
did not discuss the additive impacts of foreseeable future projects). Further, NEPA
requires that a cumulative impacts analysis provide “some quantified or detailed
information” because without such information, neither the courts nor the public can be
assured that the agency took the necessary hard look at the project. Neighbors of Cuddy
Mountain v. United States Forest Service, 137 F.3d 1372, 1379 (9th Cir. 1998) (stating
that “very general” cumulative impacts information violates NEPA).
In this instance, the Forest Service has failed to catalogue the cumulative impacts of
previous (as well as future) logging projects on RCWs, including any future “savanna
restoration” projects the Forest Service may have planned. For example, there is no
discussion of the previous impacts to nearby and adjacent compartments 29, 67, 69, 72,
and 73. Some of these compartments have reported BAs of 50, 60, or 70, while others
have no BA provided. The DEIS does not discuss the impacts of these previous projects,
whether the respective BAs are currently supportive of RCWs and to what extent, and
whether the proposed activities included in the preferred alternative (when added to
these prior projects) will have a cumulative, negative impact to the RCW. This would be
particularly useful in determining whether the target BA of 50 in the “thinning” and
“uneven management” cuts is supportive of the species recovery. Instead, the Forest
Service appears to ignore these cumulative effects and narrows its analysis to the overall
expected increase in the number of acres meeting or exceeding the MSS in the project
area. Without a hard look at these cumulative impacts, it is premature for the Forest
Service to conclude that the project would be overall beneficial to the species. This is
particularly important given that the number of active cavity trees remaining in the
5 It is entirely unclear what “stable” means. To the extent the Forest Service’s objective
is to maintain the status quo, this is inconsistent with the Endangered Species Act as we
discuss in section 3 below.
6 adjoining clusters may be as low as 1-2, which seems low and indicative of an unhealthy
cluster.
Additional cumulative impacts include the impacts to RCWs occurring in remaining
portions of the Apalachicola as well impacts to RCWs on nearby private lands. The most
glaring omission in the Forest Service’s, however, continues to be consideration of the
planned 11,200-acre project in the RCW Core Analysis Area6 as we identified in our
scoping comments. It is simply incomprehensible why this project is not mentioned,
much less discussed, in the cumulative impacts section of the DEIS.
The proposed project could serve as a dangerous precedent for RCW management
(particularly in the name of “wet savanna restoration”) and lead to reduced RCW
population goals throughout the Southeast. For all these reasons, the Forest Service’s
treatment of the cumulative effects of this project is entirely insufficient and fails to
meet the requirements of NEPA.
3.
The Forest Service is Impermissibly Managing RCWs Under the
Managed Stability Standard.
As we explained in our scoping comments, the Forest Service is required under Section 7
of the Endangered Species Act to conserve the RCW.7 Conservation is synonymous with
recovery.8 Recovery does not simply mean maintaining stable habitat, as the Forest
Service’s purpose and needs statement alleges. Recovery means taking the necessary
measures to move the species to the point that it no longer needs the protections
afforded under the ESA.9 For the RCW this means, among other things, to manage its
foraging habitat under the “Recovery Standard” set forth in the 2003 Recovery Plan.10
That a federal agency must manage for recovery and assess a project’s impacts in terms
of recovery is not just our position, but also the position of federal courts11 as well as the
6 See http://www.fs.usda.gov/projects/florida/landmanagement/projects
7 Section 7(a)(1) of the ESA requires all federal agencies to “utilize their authorities in
furtherance of the purposes of this chapter” and to “carry[] out programs for the
conservation of” listed species. 16 U.S.C. § 1536(a)(1).
8 The ESA defines “conservation” of listed species as “the use of all methods and
procedures which are necessary to bring any [listed] species to the point at which the
measures provided [under the ESA] are no longer necessary.” 16 U.S.C. § 1532(3). The
“Endangered Species Act’s definition of conservation speaks to the recovery of a
threatened or endangered species.” Sierra Club v. U.S. Fish & Wildlife Service, 245 F.3d
434, 441-42 (5th Cir. 2001).
9 “The objective of the Endangered Species Act is to enable listed species not merely to
survive, but to recover from their endangered or threatened status.” Sierra Club v. U.S.
Fish & Wildlife Service, 245 F.3d at 438.
10 U.S. Fish & Wildlife Service, Red Cockaded Woodpecker Recovery Plan, 187 (2003).
11 See National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917
(9th Cir. 2008).
7 U.S. Fish & Wildlife Service.12 This is not being done here. Instead, the Forest Service is
employing the Managed Stability Standard (“MSS”) to guide its first or intermediate
thinning of approximately 2,068 acres of slash and longleaf pine stands and unevenmanagement cuts on 891 acres of mature longleaf pine. See DEIS at 66; Biological
Assessment at 6, 16. This standard is intended for use on private lands and aimed at
managing merely for the survival of the species, not its recovery.13 Further, the MSS will
not even be met for at least 8 stands in the areas slated for “savanna treatments.” See
Biological Assessment at 16. This is contrary to Section 7 of the ESA and the RCW
Recovery Plan and would be a significant step back in the conservation of this primary
core population. Accordingly, the Forest Service must reassess the proposed project and
ensure that any future logging will be consistent with the Recovery Standard and in
furtherance of the recovery of the species. The Forest Service must formally consult with
the U.S. Fish & Wildlife Service concerning the impacts of this proposed project on
threatened and endangered species and their critical habitat, to insure that the project
will not jeopardize any listed species or adversely modify or destroy their critical habitat.
16 U.S.C. § 1536(a)(2).
Conclusion
“NEPA emphasizes the importance of coherent and comprehensive up-front
environmental analysis to ensure informed decision making to the end that the agency
will not act on incomplete information, only to regret its decision after it is too late to
correct.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989). An
EIS is required of an agency in order that it explores, more thoroughly than an EA, the
environmental consequences of a proposed action whenever “substantial questions are
raised as to whether a project may cause significant [environmental] degradation.” Blue
Mts. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1216 (9th Cir. 1998)(quoting
Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998)).
As evidenced by these comments, the DEIS fails on many accounts. There is inadequate
support for the proposition that 811 acres must be clear-cut to a BA of 10-30 to “restore”
historical savanna conditions. The DEIS fails to adequately examine the direct, indirect,
and cumulative impacts of all of its thinning, uneven aged management, and savanna
treatment activities, and the Forest Service is impermissibly managing RCWs under the
ESA to simply maintain the species’ survival (perhaps) rather than advance its recovery.
The Service should abandon its preferred alternative and manage the Beasley Pond area
in a manner that does not take potentially a dozen or more clusters of RCWs.
Thank you for the opportunity to comment on this proposal. Please make these
comments part of the official record for this project. Also, please send me all future
notices for this project.
12 See RCW Recovery Plan at 187.
13 See id. Whether the MSS actually does ensure population maintenance is debatable.
8 Sincerely,
Jason Totoiu
9