United States
Department of
Agriculture
Forest
Service
Daniel Boone NF
1700 Bypass Road
Winchester KY 40391
File Code:
Date:
1570-1
06-08-02-0030
May 22, 2006
CERTIFIED MAIL R.R.R.
Mr. Robert E. Stephens
1200 Lick Creek Road
Whitley City, Kentucky 42653-9602
RE:
Appeal 06-08-02-0030 of District Ranger Fred Noack’s February 6, 2006,
Decision Memo for the Jellico Prescribed Burn Project on the Stearns
Ranger District of the Daniel Boone National Forest
Dear Mr. Stephens:
According to the authority granted me by 36 CFR 215, this letter contains my decision
on your appeal of the Jellico Prescribed Burn Project on the Stearns Ranger District of
the Daniel Boone National Forest.
BACKGROUND
On February 6, 2006, District Ranger Noack signed the Decision Memo for this project;
the legal notice of the decision was published on February 21, 2006. It has been verified
that you provided timely comments during the 30-day comment period required for the
proposed action thereby meeting 36 CFR 215.13, regulatory requirements for eligibility
to file an appeal on this project. Therefore, the timely appeal was accepted on April 24,
2006.
The Forest advised us that you declined their offer for an informal disposition meeting
by phone on April 20, 2006, to discuss the issues in your appeal. Since no resolution
was reached, we continued with our review.
RECOMMENDATION OF APPEAL REVIEWING OFFICER (ARO)
I received the ARO's recommendation that the District Ranger’s decision be affirmed.
The ARO’s recommendation is based on your issues and a review of the project record.
A copy of that ARO recommendation is enclosed.
RELIEF REQUESTED
Your appeal requests reversal of the decision.
Caring for the Land and Serving People
Printed on Recycled Paper
Appeal 06-08-02-0030 Stephens
Pg 2
CONCLUSION
My review of your appeal was conducted pursuant to, and in accordance with, 36 CFR
215.18 to ensure the analysis and decision are in compliance with applicable laws,
regulations, policy and orders. I have reviewed the appeal record and the ARO's
recommendation, which includes a discussion of the issues raised in your appeal.
Based on my review, I conclude that the decision for the Jellico Prescribed Burn Project
was adequately documented by the District Ranger in the Decision Memo and project
record. I find that these activities do fit within the categories listed for the project and
that the Decision Memo and project record support the finding that there are no
extraordinary circumstances. Therefore, I am affirming the District Ranger’s February 6,
2006 decision.
This constitutes the final administrative determination of the Department of Agriculture.
Sincerely,
/s/ Jerome E. Perez
JEROME E. PEREZ
Appeal Deciding Officer
Forest Supervisor
Enclosure
Appeal 06-08-02-0030 Stephens
United States
Department of
Agriculture
File
Code:
Route To:
Subject:
To:
Forest
Service
1570-1
Pg 3
Osceola
Ranger
District
P. O. Box 70
Olustee, FL 32072
904/752-2577
Date:
May 15, 2006
ARO Recommendation Robert Stephens Appeal 06-08-02-0030 Jellico
Prescribed Burn Decision Memo, Stearns Ranger District, Daniel Boone
NF
Appeal Deciding Officer
This letter contains my recommendation for the subject appeal filed by Robert Stephens
of the Jellico Prescribed Burn Decision Memo on the Stearns Ranger District of the
Daniel Boone National Forest.
My review was conducted pursuant to 36 CFR 215. To ensure the analysis and
decision are in compliance with applicable laws, regulations, policies and orders, I have
reviewed and considered each of the points raised by the appellant and the decision
documentation submitted by the Daniel Boone National Forest. My recommendation is
based upon review of the Appeal and Project File, including but not limited to the
scoping letter, public comments and the Decision Memo (DM).
ISSUES
The issues raised in the appeal that are within the scope of this review and meet the
requirements of 36 CFR 215.14 are:
Issue 1
Whether the project violations the Clean Water Act. [Reference p. 1, 5]
Issue 2
Whether the use of a Categorical Exclusion is appropriate because of
extraordinary circumstances. [Reference p. 2-3]
Issue 3
Whether public comments were adequately considered. [Reference p. 3-4]
Issue 4
Whether the project is consistent with the Forest Plan. [Reference p. 4-5]
Issue 5
Whether the Decision Memo violates Executive Order 12898, regarding
consideration of minority and low income populations. [Reference p. 5]
Appeal 06-08-02-0030 Stephens
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Discussion of Issues
Issue 1
Whether the project violations the Clean Water Act.
The appellant contends "we are not protecting the watershed but further damaging it . . .
any disturbance will produce sedimentation that runs off into already pollutted streams"
(Appeal, p. 1). The appellant also contends that the Clean Water Act "is disregarded"
(Appeal, p. 5).
The Decision Memo (DM) states "[n]o floodplains, wetlands, or municipal watersheds
will be adversely affected by implementation of this project . . . [and the prescribed
burning] will result in minimum amounts of soil exposure throughout the treatment
areas" (p. 4, 6). The DM further states "[t]he Forest Service complies with [the Clean
Water] Act by using Best Management Practices. This decision incorporates Best
Management Practices to ensure protections of soil and water resources" (p. 6). The
burning prescription states "[t]he middle and lower slopes of the proposed burn areas
particularly the northern slopes will have no intentional ignition and little or no residual
burning . . . It is unlikely that the backing fire will travel beyond mid slope before
increased evening humidity or rain extinguishes it" (DM, Appendix A, p. 8).
The "Jellico Prescribed Burning 2006 List of Public Comments" includes a response to
erosion concerns, and states "[b]urning will be implemented when conditions exist that
will minimized exposed soils that could cause erosion" (Reference #19 and #20 on this
list).
In addition, the DM states (page 6) that “this decision incorporates Best Management
practices to ensure protections of soil and water resources.”
Finding
I find water quality and sedimentation are adequately addressed and disclosed, and that
the project complies with the Clean Water Act.
Issue 2
Whether the use of a Categorical Exclusion is appropriate because of
extraordinary circumstances.
The appellant contends on page 2 of the appeal that “[t]here will be a significant effect
on humans,” with regards to an action with no associated circumstances which have a
significant effect on the human environment and “[a]ll species: plant, animal, Homo
Sapiens and minute organisms in the soil and other environments have a detrimental
effect“ with regards to federally listed threatened or endangered species or designated
critical habitat, species proposed for Federal or proposed critical habitat, or Forest
Service sensitive species.
Appeal 06-08-02-0030 Stephens
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The appellant further contends on page 3 of the appeal the following: (1) “Jellico Creek,
Marsh Creek and Ryan’s Creek will all be immediately affected along with the human
residents, animals and plant life all the way into other states to the northeast” with
regards to flood plains and wetlands, (2) “You say there are no congressional areas
within the project area, but nearby is the BSFNRRA,” with regards to designated areas
…national or wilderness areas or national recreation areas, (3) “. . . however, there are
22 miles of roads in the area that will sustain damage” with regard to no inventoried
roadless areas, (4) “If you can take a tombstone back to Barren Fork I believe a search
for this old site would be made, so that your fires and dozers will not further change the
area” with regards to research natural areas, and (5) “There were several comments
from the Cherokee and Shawnee Tribes, . . . the narrative blatantly disregards valid
concerns of all parties that commented” with regards to American Indian cultural sites.
This project decision memo states on page 3 the “Rationale for Categorical Exclusion
Under the National Environmental Policy Act (NEPA)” and on page 4 not only identifies
the extraordinary circumstances but also documents the determination of the effect
respectively. The mere presence of one or more of these resource conditions does not
preclude use of a categorical exclusion. It is the degree of the potential effect of a
proposed action on these resource conditions that determines whether extraordinary
circumstances exist. (Forest Service Handbook 1909.15. Chapter 30, Section 30.3
Paragraph 2; Decision Memo pages 2-3)
Finding
I find there is adequate disclosure of extraordinary circumstances and appropriate
application of the categorical exclusion.
Issue 3
Whether public comments were adequately considered.
The appellant contends that “[t]he fact that the project was discussed by member of the
McCreary County Firewise Council does not affect the substantive evidence that
prescribed burning should take place, or agree with the d[e]cisions that followed.”
Another contention from the appellant is that “all these people was for the large
prescribed burning and the Firewise Council voted to back these burns is simply not
true.” (Appeal page 4)
The decision memo (DM page 5) discusses public involvement. A scoping letter was
sent that was dated June 17, 2005. Responding individuals and groups are listed in the
public involvement section of the decision memo. “Many of the comments or concerns
submitted were either outside the scope of this project or addressed through completion
of the Biological Assessment and Evaluation.” (DM page 5). A legal ad was placed in
the McCreary County Record identifying the notice and comment opportunity for the
Jellico Prescribed Burning. On November 14, 2005, comments are documented in a
meeting with Robert Stephens.
Appeal 06-08-02-0030 Stephens
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Finding
I find there is adequate disclosure and opportunity provided to incorporate public
comments before the responsible official.
Issue 4
Whether the project is consistent with the Forest Plan.
The appellant contends that “[m]ost of the catastrophic disturbance has and will come
from timber harvesting and you are continuing those practices.” An additional
contention is that “[b]io-diversity will be retarded until such a time animal and plant
habitat will be returned for homes for the residents in the forest.” Finally, the appellant
contends that the Clean Water Act “is disregarded.”
The decision memo (DM pages 5-6) discusses Forest Plan Consistency (National
Forest Management Act). Specifically, the DM states “[t]his project is consistent with
the forest-wide standards and guidelines:
Goal 2: Improve the ability of the Forest’s ecosystems to withstand and recover
from disturbance (Forest Health), especially catastrophic disturbance, either
naturally occurring or introduced. Reduce the compounding impacts of
catastrophic events (Forest Plan, p. 2-11)
Goal 4: Maintain or improve soil productivity and air quality. (Forest Plan, p. 212)
In addition, the DM states “[t]his project is consistent with the list of ‘Proposed and
Probable Management Practices.’” Included with this and documented in detail in the
DM is the reintroduction of fire across the landscape for ecosystems, changing of the
Fire Regime Condition Classes, reduction/elimination of fire-intolerant species, and
conducting the fire management program in a manner that minimizes the impacts of
smoke on air quality standards and visibility goals. Compliance with the Clean Water
Act is disclosed on page 6 of the DM.
Finding
I find there is adequate disclosure regarding consistency with the Forest Plan.
Issue 5
Whether the Decision Memo violates Executive Order 12898, regarding
consideration of minority and low income populations.
The appellant contends that “McCrearian are low-income and barely exist. We are a
minority population, that has been exploited for over 100 years, and the action you
would take will further reduce our economic base beyond repair” (Appeal, p. 5).
Appeal 06-08-02-0030 Stephens
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The DM (page 7) states “[t]his decision complies with this Act. Public involvement
occurred for this project, the results of which I have considered in making this decision.
Public involvement did not identify any adversely impacted local minority or low-income
populations. This decision is not expected to adversely impact minority or low-income
populations.”
Finding
I find there is adequate disclosure and consideration of Executive Order 12898
regarding consideration of minority and low income populations.
RECOMMENDATION
After reviewing the project record and considering each issue raised by the appellant, I
recommend that District Ranger Fred K. Noack’s February 6, 2006, decision memo, for
the Jellico Prescribed Burn Project on the Stearns Ranger District of the Daniel Boone
National Forest, be affirmed.
/S/George V. Foley
GEORGE V. FOLEY
Appeal Reviewing Officer
District Ranger