RECORD OF DECISION HERMOSA /MITCHELL LAKES LAND EXCHANGE

Transcription

1 RECORD OF DECISION FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE HERMOSA /MITCHELL LAKES LAND EXCHANGE USDA FOREST SERVICE ROCKY MOUNTAIN REGION (R2) SAN JUAN NATIONAL FOREST COLUMBINE RANGER DISTRICT LA PLATA AND SAN JUAN COUNTIES, COLORADO MAY 2010 Lead Agency: Responsible Official: Information Contact: USDA Forest Service Mark W. Stiles, Forest Supervisor San Juan National Forest Cindy Hockelberg Lands Specialist Columbine Ranger District P.O. Box S. Pearl St. Bayfield, CO (970)

2 INTRODUCTION This (ROD) documents my decision to approve Alternative 2 with modifications, exchanging approximately 228 acres of federal land for two private parcels totaling approximately 170 acres. No easement for access to the 228 acres of federal land will be provided. The exchange Proponent (Glacier Club) will be obligated to make a cash equalization payment to the United States to balance market values, as established under the current appraisal, of the Federal and non-federal lands. The project is located on the Columbine Ranger District, San Juan National Forest (SJNF) in La Plata and San Juan Counties, Colorado (See Figure 1). My decision is based on, and supported by the Hermosa /Mitchell Lakes Land Exchange Final Environmental Impact Statement (FEIS) and associated project record. The analysis process has followed requirements set forth in the National Environmental Policy Act (NEPA) and the Council on Environmental Quality s (CEQ) implementing regulations at 40 CFR Part The purpose of and need for action is for (1) the creation of a more consolidated federal and private ownership that reduces cost of federal management and increases management efficiency; (2) the acquisition of significant non-federal inholdings within the San Juan National Forest in visible and frequented locations, so they are not available for development; (3) the acquisition of additional federal jurisdiction within congressionally designated Weminuche wilderness, and (4) the acquisition of important resource attributes such as wetlands, floodplains, and riparian areas that will enhance or protect resource values on existing National Forest lands, including habitat for threatened and endangered species, as well as other species of high conservation concern. A Draft Environmental Impact Statement (DEIS) analyzing and disclosing the environmental effects of the proposal was distributed for public review and comment during August-October LOCATION OF PROJECT PARCELS Federal Parcel Chris Park Parcel (approx. 228 acres): See Figure 2. Section 1, Lots 1, 5, and 7, T. 37 N., R. 9 W., N.M.P.M., and Section 36, portions of the S½, T. 38 N., R. 9 W., N.M.P.M., La Plata County, Colorado. The parcel is located south of the Chris Park Campground and extends southward to the existing Tamarron private land boundary. Its eastern side is bounded by the west slopes of the Elbert Creek drainage and its western 2

3 side by the cliff band and forests adjacent to Highway 550. This parcel does not include the Haviland Lake or Chris Park recreational facilities, or the climbing wall. It does include the portion of a golf hole that currently encroaches on National Forest System (NFS) lands. Non-Federal Parcels Hermosa Park Parcel (approx. 160 acres): See Figure 3. T. 39 N., R. 10 W., N.M.P.M., Section 24, SW¼NE¼, SE¼NW¼, NE¼SW¼, NW¼SE¼, La Plata County, Colorado. This parcel is located north of the confluence Hermosa Creek and East Hermosa Creek and immediately west of the Hermosa Park trailhead. Iron Clad Parcel (approx. 10 acres): See Figure 4. T. 40 N., R. 7 W., N.M.P.M., Section 11, a parcel in the NW¼, San Juan County, Colorado. This parcel is located approximately 4.7 miles southeast of Silverton, on a southern bench of Whitehead Peak in the Weminuche Wilderness. DECISION AND REASONS FOR THE DECISION DECISION Based upon my review of all alternatives, I have decided to select Alternative 2 with modifications, which authorizes the exchange of approximately 228 acres of the Federal parcel for 170 acres of private land situated in two private parcels described above. The differences between this selected action and Alternative 2 (the Proposed Action/Preferred Alternative in the FEIS) include the following: The acreage of federal land to be exchanged has been reduced from approximately 265 acres to approximately 228 acres. The location of these lands is depicted in Figure 2 at the end of this document. The Mitchell Lakes parcel will not be placed in federal ownership and the currently unused road easement to the parcel will not be relinquished to the Forest Service. No easement for a year-round or emergency access road to the Federal parcel will be granted to the proponent. The addition and/or modification of design criteria to address noise and scenic impacts to Chris Park. The Proponent will be required to make a payment of $444, to the United States to balance the market values of the federal and non-federal properties (cash equalization payment, FEIS 1-2). The market values for this exchange are; property of the non- Federal party $1,380,000.00, property of the United States, $1,824,

4 My decision includes all the Design Criteria which were developed to ease some of the potential impacts identified through the FEIS process, including public comment on the Proposed Action and alternatives (FEIS pp. 2-5): o Evaluation of Trails Network and Designation of System Trails The network of user-created trails occurring on National Forest System (NFS) lands between U.S. Highway 550 and Chris Park Road and north to the Haviland Lake Road (NFSR 671) have been analyzed regarding their suitability for designation as Forest Service System trails. Those trail segments deemed suitable are now officially incorporated into the SJNF Trails System and are eligible for funding for maintenance and rehabilitation, where appropriate. Trails considered unsuitable, such as duplicative trails, poorly functioning trails causing resource damage, and areas where trail density exceeded Forest Plan capacity, will be rehabilitated over time, as funding permits and opportunities arise. The network of system trails being adopted is shown on Figure 2. A total of approximately 5.9 miles of trails are newly included as system trails, plus approximately 2.1 miles of trail to be constructed. An important design criterion is the new Lower Elbert Creek trail which will be built to mitigate impacts to the recreation uses on the Federal parcel. o Management Emphasis on the Non-Federal Parcels Being Acquired Upon acquisition of the non-federal parcels, the Forest Service will implement management of these lands on the basis of the management prescriptions on the adjacent NFS lands. In the case of Hermosa Park, the surrounding NFS lands are managed under Prescription 2B, which emphasizes Rural and Roaded Natural recreation opportunities. The Hermosa Park parcel will have the fence reconstructed and realigned to help with wetlands restoration. There will no longer be any gates associated with the Hermosa Park trail. Angler access will be provided (e.g., stiles and gates). Motorized and non-motorized recreation activities, such as driving for pleasure, viewing scenery, picnicking, fishing, hiking, mountain biking, snowmobiling, and cross-country skiing will are possible. 4

5 The Iron Clad parcel will be managed as part of the surrounding Weminuche Wilderness. Approximately ¼-mile of the Whitehead Trail passes through the parcel. The State of Colorado in cooperation with the Forest Service will be closing during the summer of 2010 the open shaft that is adjacent to Forest Service trail. o Existing Road Easement across the Federal Parcel As part of the conditions for the exchange, the Forest Service is requiring the Proponent to honor, through a legal instrument, the existing access from the Chris Park Road to the private property (Brown property) located on the eastern boundary of the Federal parcel. The right-of-way grant is in perpetuity as long as access to the private land is needed by the landowners. o Compliance with Applicable Laws, Regulations and Policies As part of the conditions for the exchange, the Forest Service is requiring agreement from the Proponent to comply with all other federal, state and county laws, regulations, and policies that may be directly or indirectly associated with the exchange. The Forest Service is requiring that when Glacier Club submits the specific development plans and plats to La Plata County that they comply with their documents including their Development Agreements, Architectural Standards, Golf Course and Water Management Practices at Tamarron Resort, and noise mitigation for construction of the golf course and homes. o Mitigation Plan for the Historic Wagon Road Loss The Selected Alternative results in a significant impact to the Animas City-Silverton Wagon Road. Consultation on mitigation for the loss of federal ownership, management, and protection of the wagon road is in progress. Criteria for mitigating the loss of the wagon road include the following measures: Conducting Level II archival documentation of the site Nominating the property for listing on the Colorado State Registers of Historic Properties Surveying the entire site that remains on public lands 5

6 Including a standard in the San Juan Public Lands Management Plan that emphasizes retention of the remaining portions of the wagon road on public lands Compiling oral histories Placing additional interpretive signage Stabilizing wagon road rock work on segments that would remain in federal ownership Seeking opportunities for additional recreational access to the road segments on public lands The proposed design criteria for producing a documentary film about the wagon road is not included in this decision because it was deemed an expensive undertaking with minimal value in return. The mitigation funding that will be paid by the proponent will be better spent on the other design criteria. However, should the State Historic Preservation Office (SHPO) consider the documentary a key design criterion, the proponent shall be required to provide additional funding to cover the costs of a documentary film at closing. The State Historic Preservation Office and the Advisory Council on Historic Preservation were consulted. The SHPO concurred with the determinations of eligibility for portions of the wagon road that are to be conveyed out of federal ownership. The determination of importance is that segments 5LP1258.3, 5LP and 5LP are eligible for the National Register of Historic Places. The Advisory Council on Historic Preservation concluded that this project does not require their involvement in consultation to resolve adverse effects, but they did request a copy of the executed Memorandum of Agreement between the SHPO and the USFS, upon completion of the MOA. o Fencing The Forest Service is requiring the Proponent to deposit escrow funds at closing so that the fencing surrounding the Hermosa parcel may be brought up to a new condition. This fencing will prevent livestock associated with the adjacent grazing allotment to enter the newly acquired Hermosa parcel, allowing it to recover from past resource damage primarily associated with overgrazing. 6

7 o Mitigation for Visual Impacts and Noise at Chris Park The following Design Criteria are adopted to mitigate noise and visual impacts at the Chris Park campground and surrounding area. The golf hole identified as number 11 in the conceptual development plan, along the northern boundary shall maintain an average non-disturbance buffer of 100 feet between the new property line and any surface disturbance. Two residential areas in the northeast quadrant of the Federal parcel will no longer be used for residential construction. Two northern-most home sites will be set-back such that no permanent structures will be located on high topographic features vegetation screening is enhanced. With the exception of the preceding three items, all of the other components of the conceptual development plan analyzed in the DEIS remain unchanged (i.e. projected number of residential units, water use, etc.). o Mitigation for Noise During Construction Phases In order to reduce temporary noise impacts associated with construction of golf holes and common infrastructure (roads and utilities) during key usage times at the Chris Park Group Campground, the following mitigation measures apply to activities on the Federal parcel north of an east-west line located at approximately UTM N zone 13: 1. Heavy equipment use is restricted as provided below. Heavy equipment includes, but is not limited to, blasting equipment, track hoes, bulldozers, loaders, and dump trucks. a. From 2:00 pm on the Friday before Memorial Day through 8:00 am on the Tuesday after Labor Day (primary campground season), heavy construction activities are limited to 8:00 am on Mondays through 2:00 pm on Fridays (i.e., No heavy construction activities will be allowed on weekends). b. Additionally, during the month of July (peak campground usage month), heavy construction activities are only allowed during weekdays when Glacier Club confirms with the Forest Service s campground concessionaire that the Chris Park Group Campground is not in use. The campground reservation system already requires a 4-day advance booking for the Forest 7

8 Service campgrounds. This will avoid any conflicts with potential lastminute bookings of Chris Park. c. From 8:00 am on the Tuesday following Labor Day to 2:00 pm on the Friday before Memorial Day (campground off-season), heavy construction can occur at any time. 2. Light equipment may be used within the identified portion of the Federal parcel at any time during the year. Such equipment includes, but is not limited to, small tractors, skid steers, back hoes, and ditching machines. Per CEQ regulations at 40 CFR (c), all practical means to avoid or minimize environmental harm have been adopted in the design of the Selected Alternative. I have included all of the features necessary to avoid, minimize, or rectify impacts on resources affected by implementation of the Selected Alternative, which includes required Design Criteria. The approaches selected to reduce impacts of this decision are readily implementable and, primarily because they address the potential impacts directly, I hold a high degree of certainty that the measures will effectively respond to the identified impacts. My conclusions are based on a review of the record that shows a thorough review using the best available science. The environmental analyses disclosed in the FEIS identify the effects analysis methodologies, reference scientific sources which informed the analysis, and disclose limitations of the analysis. RATIONALE FOR MY DECISION AND PUBLIC INTEREST DETERMINATION In reaching my decision, I relied upon an Interdisciplinary Team composed of Forest Service resource specialists to analyze the effects of the four alternatives documented in the FEIS. I reviewed the public comments on the DEIS, considered the environmental and human effects of the proposed actions, reviewed the Biological Evaluation and Biological Assessment, input from the State Historic Preservation Office, reviewed the proposed Design Criteria, and considered how the Selected Alternative would respond to the stated Purpose and Need. The FEIS uses the best available science to disclose the qualitative and quantitative effects on the human and biological environment that are anticipated to result with the implementation of the approved alternative. In reviewing the qualitative and quantitative effects on the human and 8

9 biological environment presented in the FEIS, I find they have been adequately addressed and disclosed throughout the analysis. Resource Considerations In reaching this decision, it became apparent that the exchange of Chris Park for the Hermosa Park and Ironclad parcels involved several difficult tradeoff decisions. By exchanging the 228- acre Federal parcel for the two private parcels, the public would be losing some high-value resources and gaining others. The most prominent resource tradeoffs include the loss of: readily-accessible year-around recreation opportunities close to a population center, portions of a significant historical value in the Animas City Silverton Wagon Road, certain important wildlife habitats and vegetation communities, and open space and related resource values in an area already heavily-impacted by development. In addition, the transfer of the 228-acre parcel to the private sector will likely diminish, to a relatively minor extent, the public enjoyment of the Forest Service s Chris Park developed recreation site. In trade, the public would gain: access to coldwater fishing and other recreational opportunities, certain historic resources, certain important fish and wildlife habitats, species conservation opportunities, and vegetation communities, enduring protection of open space within Hermosa Park and Iron Clad parcels and protection of forest values for surrounding federal lands, a more consolidated federal estate, removal of a private inholding within a congressionally-designated Wilderness area, and the resolution of a long-standing trespass situation where the Proponent s golf course encroaches on National Forest. Land exchanges are, by definition, tradeoff decisions that are based on how resource and manageability concerns tip the scales within the limitations of market values. For the Forest 9

10 Service, exchanges are used to consolidate National Forest System and private, state, or local government land patterns; to permit needed urban or industrial expansion; or to make other adjustments in landownership clearly in the public interest (FSM ). While there are sometimes other options available to the Forest Service for acquiring private lands and consolidating ownership patterns, including the purchase of lands using appropriated funds, these options are not viable for acquisition of the Hermosa Park parcel in particular, which in my view is the most important of the three parcels offered in terms of Forest concerns (FEIS 2-14). The tradeoff decisions involved in this particular exchange are greatly complicated by the need, in my view, to consider the balance of foreseeable future uses and values of the parcels in question. This need is implicit in all four of the identified purposes of, and need for, action (FEIS 1-6). On the one hand, we have a relatively clear picture of what the Federal parcel will look like 20 or 30 years in the future whether it remains in federal ownership or is transferred to the Proponent. If it remains in federal ownership, it is likely not to change significantly, although changes in surrounding land uses may affect the parcel somewhat. Due to the Proponent s stated development plans and immediately adjacent development activities, we have a relatively clear picture of what those same lands would look like if transferred to Glacier Club. But on the other side of the equation we have the less certain picture of how the three private parcels offered for exchange might change over time if left in private ownership. The current uses and values of the private parcels offered for exchange are easy to visualize, but the values these parcels currently offer are very much subject to great change even in the near term. The trade-off decision involves not only looking at today s snapshot, but also contemplating how the Federal and private parcels in question, their values, and their uses may change over time, and what these changes might mean in the context of surrounding lands and resource values. It is my determination that these considerations support completing the selected action. The 228-acre Federal parcel to be exchanged under this decision clearly has significant value to the public as displayed throughout Chapter 3 of the FEIS and reflected in the public comment. These lands, however, are situated on the edge of the San Juan National Forest, in a rapidly changing portion of Southwest Colorado. Left in federal ownership, this parcel would present continued opportunities for outdoor recreation, but the form of these uses may change with human demands and as the surrounding landscape is modified by development and other factors. Most other resource values present on the parcel would be expected to persist as well, but 10

11 continued development of adjacent private lands is highly likely and would adversely impact certain resource values even if conditions within the boundary of the 228-acre parcel remain unchanged. It is entirely possible that the 228-acre parcel, if left in public ownership, could become even more important for certain recreational use while becoming less valuable for other national forest purposes (e.g., wildlife habitat for some species, scenery, etc.). Acquisition of the Hermosa Park and Mitchell Lakes parcels has long been an interest of the San Juan National Forest. Likewise, the Forest Service has continually sought to reduce inholdings within designated national wilderness areas, including the Weminuche Wilderness. If left in private ownership in the absence of any protective conservation easements or similar limitations on development, all three of the private parcels considered in the exchange could be significantly altered resulting in a loss of resource and scenic value while presenting very significant threats to the surrounding national forest lands and related resources. (FEIS 1-6) Trading away the 228-acre Federal parcel leads to a quite certain loss of forest-related values as presented clearly in the FEIS, but failing to acquire very developable inholdings presents the potential for significant loss of resource values found on the target parcels, and perhaps more importantly, on the surrounding National Forest lands. A major part of the tradeoff decision, then, becomes the question of whether enabling the erosion of values on the margins of the forest is more acceptable than the less-certain but more impactful effects of development well within the forest boundary. Although admittedly an oversimplification, one action results in a shifting of existing impacts a short distance further into the forest, the other presents nuclei of impacts well within the forest boundary with some of the effects likely to radiate well into existing national forest. The Hermosa Park property, if it were left in private ownership, poses the most obvious risk in terms of the management of surrounding national forest lands. The beautiful setting of this parcel, with views of the Needle Mountains as well as the La Plata Mountains, two trout streams passing through, proximity to a major ski resort, and the location of the property on a wellestablished Forest Service road make future development very likely if the property were to remain in private ownership. Development, even if only a few residences or a small lodge, could be very disruptive to the resources of the surrounding area and may pose significant administrative challenges such as those encountered in responding to applications for 11

12 commercial or residential use of the Forest Service road accessing the area. The impacts occurring from a significant change in the use or development of the Hermosa Park parcel would affect an area larger than the parcel itself and could extend along the 7.6 miles of Hermosa Park road providing access to the area. Nearly any level of commercial or residential development of the Hermosa Park property would result in a significant alteration of the landscape. This is due, in large part, to the existing undeveloped character of the surrounding area. The private parcel lays well within the San Juan National Forest, adjacent to the Hermosa Inventoried Roadless Area, the largest Forest Service roadless area not designated as National Wilderness in Colorado. The parcel also straddles the East and West Forks of Hermosa Creek, the stream draining the largely intact landscape that includes the roadless area and thousands of acres of other lands under Forest Service administration. Hermosa Creek and all its tributaries except the East Fork have been designated as Outstanding Waters by the Colorado Water Quality Control Commission of the Colorado Department of Public Health and Environment. The Outstanding Waters designation is for certain high quality waters that constitute an outstanding natural resource. No degradation of outstanding waters by regulated activities is allowed. Any level of development of the Hermosa Park parcel would constitute a great and readily noticeable change from existing conditions to the immediate area, but could also have much farther reaching implications in terms of impacts to unimpaired and uninterrupted system function. Hermosa Park is located immediately north of the confluence of East Hermosa and Hermosa Creeks. These two watersheds are critically important to our Colorado River cutthroat trout (CRCT) recovery efforts and are located in an existing area designated as a CRCT conservation population. This designation is part of a plan to prevent the CRCT from being listed as a threatened or endangered species under the Endangered Species Act. Protection of the Hermosa Park parcel would complement nearby CRCT conservation actions, enhance opportunities for further conservation actions, and help to ensure the protection of this critical conservation population. The Iron Clad mining claim is located within the Weminuche Wilderness area. The Forest Service has been working diligently to acquire inholdings in the Weminuche Wilderness, preventing the construction of improvements that would conflict with the existing primitive 12

13 management prescription. In the case of the patented Iron Clad mining claim, the surrounding vegetation is open meadows and wetlands providing essentially no visual screening. Thus, any structure erected, or any surface disturbance by a private landowner, would result in substantial impact to the visual character of surrounding national forest lands. The use of mechanized or motorized equipment on the parcel would also prove to be extremely disruptive to adjacent wilderness values. Additional resource values could be negatively affected by development in addition to the scenic quality and adjacent wilderness values. Other private patented mining claims are in the immediate vicinity of the Iron Clad, so the potential for similar impacts will remain after this exchange. Management Efficiencies A stated purpose and need for this exchange is the creation of a more consolidated federal and private ownership that reduces cost of federal management and increases management efficiency. Consolidation of ownership helps to avoid the impacts generated by development of inholdings within the forest boundary. Consolidation also helps to avoid the costs, effort, and impacts to National Forest System lands of actions proposed by private parties, such as the development of access routes or rights-of-way or special use permits for utilities or irrigation water. In some cases, the discretion of the Federal government in responding to such applications is limited or nonexistent. In nearly all cases there can be considerable public expense involved in the processing of applications. The acquisition of inholdings through this exchange removes the potential for such proposed actions. Consolidation of Federal ownership also benefits the management of resources and resource uses such as recreation, wildlife habitat improvement, and range management. Opportunities for improving resource conditions can be greatly enhanced by consolidating ownership, providing a wider range of options for management, allowing for consistent application of land management activities and ensuring that improvements can be located in the most effective locations. For instance, trails can be sited without the need to avoid private lands or to obtain separate easements, possibly helping to avoiding other resource concerns; or fishery restoration efforts can take place without potential conflicts with private land activities. The creation of a new Federal land pattern adjacent to lands transferred to the Proponent will not significantly alter management efficiencies in that area. National Forest lands in the immediate 13

14 vicinity of the Federal lands to be exchanged are already in close proximity to private development, and additional development surrounding the remaining lands will likely continue. The resulting impacts to the remaining National Forest lands are expected to be similar to those experienced to date. Non-Inclusion of Mitchell Lakes Parcel The Mitchell Lakes parcel will not be acquired via this exchange. Mitchell Lakes remains a concern for the San Juan National Forest, and future actions may be considered for acquiring this property, but for several reasons it has been dropped from the current exchange. Based on market values, acquiring all three properties (Hermosa Park, Iron Clad, and Mitchell Lakes) would have required the transfer of the entire 265-acre parcel sought by the Proponent in addition to a permanent easement to access the property year-round. In addition, the Forest Service would have been required to make a very large cash equalization payment to the Proponent to balance the values within the required 25% cash equalization criteria. Through the EIS process and after considering the public comment on this exchange proposal, I determined that (1) some boundary adjustment and reduction of federal acreage to be transferred was needed to respond to public and agency concerns, (2) the access road was extremely problematic to members of the public and the commercial outfitter operating in the area, and posed a number of concerns to various governmental entities, and (3) sufficient Forest Service funds were no longer available this federal fiscal year to make the cash equalization payment. In order to address these three considerations, I have considered whether it was appropriate to proceed by removing either the Hermosa Park property or the Mitchell Lakes parcel from the exchange (the Iron Clad parcel s value was a minor consideration in the balancing of values in all scenarios). The analyses and conclusions reached in the FEIS remain valid, even with the exclusion of the Mitchell Lakes parcel. This contingency is covered in the range of alternatives analyzed; the No Action Alternative includes analysis under which the parcel would remain in private ownership. There was no one key factor related to the Mitchell Lakes parcel upon which the analyses were hinged. So while the quantitative figures presented in the FEIS are no longer completely accurate, the qualitative concepts regarding trade-offs are still legitimate. An examination of each resource analyzed in the FEIS supports this conclusion: 14

15 Vegetation the majority of the type of vegetation that is being acquired in Hermosa Park is similar (grassland/riparian/spruce-fir) to what is at Mitchell Lakes, thus the exchange will still result in trading primarily ponderosa/warm-dry mixed conifer for similar vegetation, although not as many acres. Wildlife The loss of 228 acres of the Federal parcel is not considered a significant impact to wildlife habitat due to the extensive amount of other forest land along the Animas corridor. The type of habitat lost on the Federal parcel is not unique or in short supply. Some species-specific impacts will fall between the action alternatives and the No Action alternative such as the loss of less cliff-face habitat or the addition of less wetland habitat due to omitting the Mitchell Lakes property. Wetlands/Riparian/Waters- exchange of Hermosa Park and Iron Clad parcels for the Federal parcel still results in a net gain of approximately 28 acres of wetlands to the government, even if not of exactly the same type. The Mitchell wetlands are a more ephemeral type than those in Hermosa Park, and do not support any kind of fisheries. Mitchell Lakes would have contributed a relatively small acreage when compared to the Hermosa Park parcel. All of the floodplains to have been acquired are within the Hermosa Park parcel; none were on the Mitchell Lakes parcel. Scenic-The threat of impacts stemming from the development of the Mitchell Lakes parcel and road easement will remain under this decision. These potential impacts include the direct effect on resources and scenic values of the parcel as well as the effects to surrounding National Forest lands and resources. Due to the character of the Mitchell Lakes parcel, and its location within the San Juan National Forest (i.e., relatively short distance into the forest), the indirect impacts that could result from development of the parcel would not be as significant as those that could result from development of the other two private parcels to be acquired through this exchange. Visual impacts to the Chris Park recreation site will be reduced in comparison with the action alternatives through additional setbacks in construction envelopes 15

16 as identified in the Design Criteria added with the selected action. Recreation- the public comments repeatedly stated that the Mitchell Lakes parcel was not of very high recreational value because of its difficult access. The type of recreation that would have been gained through this parcel would not replace the same type lost on the Federal parcel. Trail mileages to be lost and replaced do not change from the Proposed Action, and system trails would still be added. Transportation- the existing Mitchell Lakes easement would not be relinquished and could still be developed in the future. The Mitchell Lakes parcel was largely dismissed in public comments as being of little or no value because it is less likely to be developed than the Hermosa Park parcel, due in part to the perceived expense of constructing suitable access. Mitchell Lakes probably would be more difficult or costly to develop than the Hermosa Park parcel, but a substantial risk of development remains due to close proximity to the Durango community and other features of the tract. Development of a suitable access road using either the existing route or the existing but undeveloped easement would undoubtedly entail significant expense and effort, but persons living in this area are well aware of numerous examples of subdivisions and homes built in locations we would have thought undevelopable just a few years ago. If a new access road were to be developed using the existing but yet unused easement, it would itself result in obvious scenic and other impacts to our environment. Socio-Economic- the Mitchell Lakes parcel was not being relied on to replace any potential loss of income to the outfitter that uses the Federal parcel; therefore the impacts would not change. New system trails to replace those lost would still be added. Cultural-there are no cultural resources on the Mitchell Lakes parcel that would offset those lost on the Federal parcel; therefore the impacts to cultural are unchanged. A more detailed assessment of how the effects of the selected action compares with the effects identified for each of the alternatives in the FEIS may be found in the project file. 16

17 Configuration of the Decision This decision is based on a combination of Alternatives 1, 2, and 4, and falls within the range of the analysis presented in the FEIS. Alternative 4 is similar to my decision in representing a reduced acreage of federal lands to be exchanged, and omitting the easement accessing the Federal parcel from Highway 550. Alternative 4, however, would have required an even greater cash equalization payment by the Forest Service if all three private parcels were to be acquired. Modifying Alternative 4 by removing the Mitchell Lakes parcel was a consideration, but during the preparation of the FEIS it became apparent that choice would not meet the requirements of the Proponent. Upon the Proponent s further review of the topography, access routes, and mitigation constraints it became evident that nine holes of golf would not fit onto the smaller parcel as configured in Alternative 4. The Proponent s updated review of economic and financial considerations identified to them that it was imperative to obtain lands to construct the golf course, while they were more flexible about the number and configuration of the residential units. A reduced-acreage modification of the Proposed Action could be viable, but the Proponent s analysis taking place concurrent with the FEIS demonstrated that the northern boundary of Alternative 4 would prohibit the construction of the golf course. Analyses of Alternatives 2 and 4, and public comment demonstrated to me the need to avoid a new road easement along Highway 550. Simply removing the easement from the Proposed Action would have addressed several of the Forest Service s concerns, but would have left unsettled several questions about the development of the northwestern portion of the Federal parcel. In essence, removing the road easement but still exchanging the lands to have been served by that easement would have transferred several of the issues of future development and access of this portion of the parcel to La Plata County government and/or future Forest Service managers. The Proponent has openly identified their intent to use this portion of the parcel for residential development. Development of this portion of the parcel would require some form of road access or multiple roads. Without an easement off of Highway 550, the road access would require cutting through very steep terrain to the south, posing a number of wildlife concerns, construction and permitting issues, and much greater issues associated with noise and the movement and disposal of waste material. Based on my understanding of the Proponent s moreflexible needs in terms of residential lots, I chose to retain the northern boundary as proposed 17

18 under Alternative 2 and to remove both the road easement and the lands to have been accessed by that easement from this decision. The net result is that: the Proponent s need for nine holes of golf can be met, the problems of the road easement along Highway 550 are avoided, acreage to be exchanged is reduced to the minimum possible while still enabling the acquisition of Hermosa Park and Iron Clad parcels, the Forest Service no longer is required to make a cash equalization payment, the Proponent is required to make a cash equalization payment, negative effects to the existing outfitter service and trail use are greatly reduced, visual and other impacts associated with the access road and residential development along much of the western edge of the original Federal parcel are avoided or greatly reduced, difficult decisions regarding the access to the northwestern portion of the Federal parcel originally proposed for exchange will not be passed forward to the county or future forest managers, and the Mitchell Lakes parcel will not be secured in federal ownership. All other actions and impacts will be the same as those described in the FEIS for Alternative 2. The analysis of the various alternatives in the FEIS enabled this decision. For instance, Alternatives 2, 3 and 4 made it possible to separate the potential impacts of authorizing an easement for an access road by analyzing, respectively, a permanent year-round access, an emergency-only access, and no access route to the northwestern portion of the Federal parcel. Design Criteria were considered in each action alternative and were highlighted in specific resource discussions. The manner in which our interdisciplinary team presented their analyses disclosed the key concerns and values for each parcel, and their analyses readily provide for interpolation within the alternatives. Likewise, the appraisal report supporting the alternatives considered in detail provides for incremental analysis of each of the parcels. Furthermore, the public comments often focused on the value of acquiring or trading individual parcels and highlighted specific areas of concern with each of the parcels, making it possible for me to 18

19 understand the very specific issues and benefits involved, which in turn has made it possible for me to consider adjustments within the range of the alternatives considered in detail. In addition to my comparison to the action alternatives (Alternatives 2, 3 and 4), I find that the selected action is also preferable to Alternative 1, No Action. The selected action responds to all of the stated purposes of and need for action as well as the stated intent to correct the trespass situation related to the encroachment of the golf course on federal lands (FEIS 1-6). The selected action does not accomplish as much consolidation of federal estate as would Alternative 2, the Proposed Action, nor would it address the acquisition of important values to the extent of the Proposed Action. The selected action would, however, address what the FEIS and public comment have clearly identified as the most urgent acquisition the Hermosa Park parcel--and it will do so while avoiding several of the major concerns raised with the Proposed Action as noted above. The selected action removes the need for the Forest Service to provide cash equalization, but it does require the Proponent to make a substantial payment to the United States to equalize the values on both sides of the exchange. Ideally, the Forest Service would acquire sufficient land acreage to balance the exchange, but in this case it is not possible or reasonable to obtain just a portion of the Mitchell Lakes property. If the Proponent were able to provide just a portion of the Mitchell Lakes property instead of balancing with cash, the potential for development of the remaining private lands, and the existence of the easements accessing the properties would remain, resulting in little overall benefit to the public. As stated above, the Mitchell Lakes parcel remains a concern to the Forest Service as documented throughout the FEIS, and other approaches to acquire this property may someday be considered. Rationale Summary Based on the rationale outlined above, it is my decision that the public interest will be wellserved by proceeding with the exchange of 228 acres of federal land as depicted on Figure 2 for the Hermosa Park and Iron Clad parcels. In reaching this conclusion I have considered the factors identified in 36 CFR 254.3(b)(1), including but not limited to the protection of fish and wildlife habitats, cultural resources, watersheds, and wilderness and aesthetic values; the enhancement of recreation opportunities and public access; the consolidation of lands and/or interests in lands, and the promotion of multiple-use values. Based on my rationale provided above, I find that the resource values and objectives served by the exchange exceed the resource 19

20 values and objectives served by the Federal lands to be exchanged. I also find that the intended use of the Federal lands to be exchanged will not substantially conflict with the Forest Service management and management objectives of adjacent federal lands. (36 CFR Part 254) In executing this exchange, all Design Criteria identified above will be implemented, and the Proponent will be obligated to make the appropriate cash equalization payment to the United States. CHANGES BETWEEN THE DRAFT AND FINAL EIS Minor editorial and formatting changes were made at various locations throughout the document in order to provide clarification, or to add explanatory or additional information that would help the reader to understand the material being presented. The Alternatives Considered but Eliminated from Detailed Analysis section of the FEIS was expanded to provide a better understanding of the process used by the Forest Service to arrive at the preferred alternative. Design Criteria were added for noise mitigation (construction timing restrictions), and visual mitigation permanent structures in building envelopes on two home sites and one golf hole were moved south (FEIS p. 2-6). ALTERNATIVES CONSIDERED In addition to the Proposed Action (Alternative 2), three other alternatives were analyzed in the FEIS: Alternative 1, the required No Action Alternative; and Alternative 3, Modified Northern Boundary with Emergency Access Road; and Alternative 4, Modified Northern Boundary with No Access Road. Alternative 1 No Action As required by regulations implementing NEPA, and Forest Service handbook direction, a No Action Alternative was included in this analysis for review alongside the Action Alternatives. Alternative 2 Proposed Action The Proposed Action was been selected as the Forest Service s preferred alternative. The Forest Service would exchange a 265-acre parcel of National Forest System (NFS) lands (Federal parcel) located in La Plata County, Colorado for up to three private inholdings (non-federal 20

21 parcels) totaling approximately 330 acres located in La Plata and San Juan Counties. Also under the Proposed Action, the Forest Service would grant an easement for a 24-foot wide, 2970-foot long paved access road from U.S. Highway 550 across National Forest lands to the northwest corner of the parcel. This road would provide year-round access for up to 48 residential units in the western portion of the property. A parking area would be constructed along the roadway on NFS lands to provide off-highway parking for public access to the existing trail system in this area. A new 1.7-mile trail would be constructed along the eastern side of Elbert Creek from just below the Haviland Lake dam to Chris Park. In addition to the Lower Elbert Creek Trail, an approximately 0.4-mile trail segment originating on the west side of Chris Park Road, north of the campground, would be constructed. The cost of construction for both of these trails would be paid for by the Proponent. Under this alternative, the Forest Service would designate approximately 6.5 miles of existing user-created trails north and west of the Federal parcel as Forest Service System trails. Alternative 3 Modified Northern Boundary with Emergency Access Road Under this alternative, a portion of the northern Federal parcel boundary, as configured under Alternative 2, would be moved to the south to coincide with an existing ridgeline, decreasing the parcel size to approximately 243 acres. A gated emergency-only access easement (20-foot wide) would be granted by the Forest Service for the construction of a road from U.S. Highway 550 to the northwest corner of the Federal parcel. No public parking area would be available under this alternative, but the roadway would still be available for non-motorized travel (i.e., hiking, skiing). An existing user-created trail along the southern edge of Chris Park would be realigned and reconstructed. The Forest Service would designate approximately 6.6 miles of existing usercreated trail as Forest Service System trails. Alternative 4 Modified Northern Boundary with No Access Road Alternative 4 is identical to Alternative 3 except that no road easement would be granted by the Forest Service to access the western portion of the Federal parcel from U.S. Highway 550. This 21

22 alternative would also include the reconstruction of the trail along the southern edge of Chris Park as described under Alternative 3. The Forest Service would designate 6.6 miles of existing trail as Forest Service System trail. The Lower Elbert Creek Trail would not be constructed under this alternative. Alternatives Considered, but Not in Detail Several alternatives were considered, but eliminated from detailed study for various reasons. These included several variations of the boundaries of the Federal parcel, outright purchase of the private parcels, and exclusion of the wagon road from the Federal parcel. More detailed descriptions and maps of these alternatives and the reasons for their dismissal are described in the FEIS p.2-14 through ENVIRONMENTALLY PREFERABLE ALTERNATIVE In accordance with CEQ regulations, I am required to identify the alternative or alternatives that could be considered environmentally preferable (40 CFR [b]). Forest policy (FSH , Section 05) defines environmentally preferable as: The alternative that will best promote the national environmental policy as expressed in NEPA s Section 101. Ordinarily, the environmentally preferred alternative is that which causes the least harm to the biological and physical environment; it also is the alternative which best protects and preserves historic, cultural, and natural resources. Based on the review of the alternatives, I have identified Alternatives 1 and 4 as the environmentally preferable alternatives. Alternative 1 would preserve the historic and cultural resources best by retaining the wagon road segment in federal ownership, while Alternative 4 would best preserve watersheds, wetlands, visuals, wildlife, and other natural resources by preventing development of inholdings. PUBLIC INVOLVEMENT Formal scoping on the proposed land exchange began on June 11, 2007, and ended on September 10, 2007, lasting for approximately 90 days. Two public open houses were held June 21 and 25, Public field trips to the parcels were held June 28 and 29, As a result of issues analysis resulting from scoping, it was determined that the appropriate level of documentation would be an EIS; a Notice of Intent to Prepare an Environmental Impact Statement (NOI) was published in the Federal Register on May 8, In addition, as part of the public involvement process, the proposal was listed in the San Juan Public Lands Quarterly Schedule of Proposed 22

23 Actions beginning in July 2007, which was available on-line and through quarterly mailings to anyone who wished to see it. The proposal was also provided to the public and other agencies during scoping, through a press release and scoping letter. As part of the public involvement process, the Forest Service sent tribal consultation letter to area Tribes, Chapter Houses, and Pueblos. Scoping responses were received from approximately 400 individuals or groups, and about 1500 signatures on two petitions. Using scoping comments from the public, organizations, other agencies, and internal specialists, the interdisciplinary team developed a list of issues to address. Four Key Issues were identified: (1) Impacts to recreation, (2) Impacts to scenic resources, (3) Impacts from the Road Easement, and (4) Impacts to the wagon road (FEIS p.1-12 and 1-13). Additionally, several tracking issues were identified for analysis: wildlife, wetlands, old growth, socioeconomics, reasonable foreseeable development scenario for inholdings, process issues, and administrative issues. These issues were analyzed and compared in the four alternatives. The Draft EIS was circulated for a 45-day public comment period beginning with the publication of a Notice of Availability on the Federal Register on August 17, The comment period was later extended through October 30, 2009, for a total of 75 days. A letter announcing the opening of the comment period was sent to people who responded during scoping, as well as to a required list of other governmental agencies. A press release, numerous news articles, and a legal notice in the Durango Herald also announced the comment period. The Forest Service also held a public meeting on September 2, 2009, in which oral comments were taken. A public field trip was taken to the Federal parcel and the Hermosa parcel on September 9, Another field trip was taken to the Mitchell Lakes parcel with limited public attendance. A Forest Service representative attended the La Plata County Commissioner s meeting and the Archaeological Society of La Plata County meeting where the land exchange was an agenda item for discussion. Another field trip was conducted at the request of the County Commissioners, and others in the public attended, including a Congressmen s staff person. The Forest Service was invited to a meeting with the La Plata County Historical Preservation Commission, which was canceled at the last minute, and subsequent offers to reschedule by the Forest Service were not responded to. Comments were received from almost 300 sources and are responded to in Appendix G of the FEIS, Response to Comments. None of the comments resulted in substantial changes to impacts 23

24 analyses, although some editing and clarification in the text did occur. The comments did lead to selection of a modified alternative. FINDINGS REQUIRED BY OTHER LAWS AND REGULATIONS I am required to manage the Forest in accordance with applicable laws and regulations. This authority, which includes approval of land exchanges, is delegated to me through agency policy described in a delegation of authority letter from the Regional Forester dated 5/25/2005. The project was designed in conformance with Forest Plan direction, standards, and guidelines for land adjustments (FEIS p.1-3). This decision to implement Modified Alternative is consistent with the intent of the Forest Plan's long term goals and objectives, and helps move the project area towards desired conditions described in the plan. The Forest Plan provides the framework for the action proposed here, and we are undertaking the action as one step in implementing the Forest Plan, as required by the National Forest Management Act of 1976 (NFMA, P.L ). A Wildlife Review was conducted and the analysis determined that the selected alternative will be no detectable changes to the Forest-wide habitat or population trends of any San Juan National Forest Management Indicator Species (MIS). The Forest Plan provides for viability, in part by providing 4B Management Areas well distributed across the Forest to ensure maintenance of MIS habitat. The review also found that there be minor loss of habitat from loss of the Federal parcel for U.S Fish and Wildlife Service Birds of Conservation Concern for the Colorado Plateau/Southern Rockies Geographic Area, Colorado State Threatened and Endangered birds, and birds listed in the Colorado Partners in Flight Bird Conservation Plan for the Southern Rocky Mountains. A Biological Assessment and informal consultation with the U.S Fish and Wildlife Service complies with requirements of the Endangered Species Act. This consultation determined that the selected alternative will not affect federally threatened or endangered species or their critical habitat except for two downstream fish species that may be affected, but no likely adversely affected by water use. Previously-conducted formal consultations with USFWS resulted in no jeopardy opinions for the water use. A cultural resource inventory, report, and consultation with the SHPO determined that the selected alternative would have adverse effects to historic properties, to be mitigated as described 24

25 in the Memorandum of Agreement between USDA Forest Service, San Juan National Forest and the Colorado State Historic Preservation Officer Regarding the Hermosa/Mitchell Lakes Land Exchange, La Plata County, Colorado. This process meets the requirements of Section 106 of the National Historic Preservation Act. The selected alternative complies with requirements of the National Forest Management Act, the National Environmental Policy Act (FEIS p.1-1), the Endangered Species Act (FEIS p. 3-29), the National Historic Preservation Act (FEIS p ), and the Clean Water Act (FEIS p ,). The project is in compliance with Executive Order on Environmental Justice: According to US Census Bureau 2000 data, the populations of La Plata and San Juan Counties, and Durango are not predominantly minority or low-income populations (FEIS p ). APPEAL PROVISIONS AND IMPLEMENTATION DATE This decision is subject to administrative review (appeal) pursuant to 36 Code of Federal Regulations (CFR) Part 215. Appeals, including attachments, must be filed within 45 days from the publication date of legal notice of this decision in the Durango Herald, the newspaper of record. Attachments received after the 45 day appeal period will not be considered. The publication date in the Durango Herald, is the exclusive means for calculating the time to file an appeal. Those wishing to appeal this decision should not rely upon dates or timeframe information provided by any other source. Notices of Appeal that do not meet the content requirements of 36 CFR will be dismissed. It is an appellant s responsibility to provide sufficient activity-specific evidence and rationale focusing on the decision to show why the Deciding Officer s decision should be reversed. Appeals received in response to this ROD, including the names and addresses of the appellants, will be considered part of the public record for this proposed action and will be available for public inspection. 25

26 APPEALS FILED UNDER 36 CFR PART 215 To be eligible to appeal this decision on this project under 36 CFR 215, an individual or group must have provided a comment or otherwise expressed interest in this project during the comment period (36 CFR (pre-2003 regulations)). Appeals filed under 36 CFR, Part 215, must be submitted (by regular mail, hand-delivery, or express delivery) to: USDA Forest Service Region 2, Appeals Deciding Officer, 740 Simms Street, Golden, CO 80401, or (by fax) to The office business hours for those submitting hand-delivered appeals are 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding holidays. Electronic appeals must be submitted in a format such as an message,.rtf,.pdf, or.doc to: appeals-rocky-mountain-regional-office@fs.fed.us. In cases where no identifiable name is attached to an electronic message, a verification of identity will be required. A scanned signature is one way to provide verification. For electronically mailed appeals, the sender should receive an automatic electronic acknowledgement as confirmation that the agency received the appeal; if the sender does not receive an automatic acknowledgment, it is the sender s responsibility to ensure timely receipt by other means. Appellants are requested to simultaneously send a copy of the Notice of Appeal to the Responsible Official, Mark Stiles, Forest Supervisor - Center Manager, 15 Burnett Court, Durango, CO 81301, or to: appeals-rocky-mountain-san-juan@fs.fed.us. IMPLEMENTATION DATE Pursuant to 36 CFR Part 215, if no appeal is filed within the 45 day time period, implementation of this decision may occur on, but not before, the 5 th business day from the close of the appeal filing period. If an appeal is received, implementation may occur on, but not before, the 15 th business day following the date of the last appeal disposition. Signing of an Exchange Agreement will occur immediately subsequent to the signing of this ROD; however, final implementation of the decision would not occur until disposition of any appeals, as described above, and until satisfaction of any stipulations in the Exchange Agreement. At that time, exchange of the patent (to the proponent) and the Warranty Deeds (to the Forest Service), along with receipt of the escrow funding from the proponent for mitigation 26

27 measures, would occur. This would be conducted similar to a home or business real estate closing at the title insurance company, and later recorded with the counties. CONTACT PERSON For additional information concerning this, the Final Environmental Impact Statement, or the Forest Service appeal process, contact: Matt Janowiak, District Ranger (970) or Cindy Hockelberg, Lands Specialist (970) at Columbine Ranger District PO Box S. Pearl Street Bay field, CO Responsible Official: MarktyV. Stiles Forest Supervisor, San Juan National Forest Date 27