Deer Valley Administrative Site Conveyance Custer County ...a123.g.akamai.net/7/123/11558/abc123/forestservic...2 withdrawal in place. Forest Service policy (Forest Service Manual

United States Department of Agriculture Forest Service September 2013

DRAFT DECISION NOTICE

AND FINDING OF NO SIGNIFICANT IMPACT

For the Deer Valley Administrative Site Conveyance

Custer County, South Dakota USDA Forest Service, Black Hills National Forest

Hell Canyon Ranger District For additional information please contact: Cindy Hockelberg Black Hills National Forest 1019 N. 5th Street, Custer South Dakota Telephone: (605-673-9238) or via email: [email protected]

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mailto:[email protected]

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Deer Valley Administrative Site Decision Notice and FONSI

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INTRODUCTION This Decision Notice (DN) documents my decision regarding the proposed conveyance of the Deer Valley Administrative site. An Environmental Assessment (EA) for this proposal has been prepared in compliance with the National Environmental Policy Act (NEPA). The EA is available for review at the Forest Supervisor’s Office in Custer, South Dakota and at the Regional Forester’s Office in Golden Colorado. A Biological Assessment/Biological Evaluation (BA/BE) was also prepared in compliance with process requirements under the Endangered Species Act and related Forest Service policy. Also prepared were reports on heritage resources, wetland and floodplain resources, and hazardous materials. I referred to and have relied heavily on these reports in my decision documented here. I have also considered input received from the public during scoping and following release of the pre-decisional EA. Input was solicited from government agencies, adjacent landowners and interested parties at the two phases of the environmental analysis. I relied on this input to ensure identification and evaluation of all issues. I further considered this input in reaching my decision.

BACKGROUND

In 2005 the United States Congress passed Public Law 109-54, the Forest Service Facilities Realignment and Enhancement Act (FSFREA). The purpose of granting the Forest Service this authority was to allow for the sale of excess Forest Service administrative facilities or improvements with the proceeds to be retained for the acquisition, improvement, maintenance, reconstruction or construction of Forest Service facilities. It also provided for the sale of undeveloped parts of administrative sites.

The purpose of and need for conveying out of the Deer Valley Administrative Site is 1) to dispose of an administrative property that is no longer needed; and 2) to better meet administrative and public service needs through improved administrative facilities. Proceeds from the conveyance will be used to decrease deferred maintenance needs on existing facilities and to construct or purchase replacement facilities. These particular funds are proposed to be used for purchase of the Forest Service Office in Sundance, Wyoming and to work towards the construction of a new office for Hell Canyon Ranger District. The new and better-maintained facilities will support operational activities and provide for improved customer service to the public.

In order to convey out of an administrative site it must not be encumbered by the administrative site withdrawal that was placed on all facilities when they were designated as administrative sites. The Bureau of Land Management is responsible for designating and revoking any type of withdrawals, including those for administrative sites.

DECISION

It is my decision to recommend to the Bureau of Land Management that the administrative site withdrawal on Deer Valley be revoked. The property is no longer needed as an administrative site and the withdrawal is thus obsolete. The Forest cannot convey out of the site with the

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withdrawal in place. Forest Service policy (Forest Service Manual 2764.03) is that the authorized officer should periodically review existing withdrawals and revoke those that are no longer needed.

It is also my decision, after thoroughly reviewing the environmental analysis and the external input that was received during the scoping phase and the pre-Decisional Environmental Assessment comment period, to implement Alternative 2. Alternative 2 was the Proposed Action. Under this alternative the United States will convey four lots of the former Deer Valley Administrative Site into private ownership. The four parcels will be sold as separate sales under the authority of Public Law 109-54, the Forest Service Facilities Realignment and Enhancement Act. The four lots will be sold through a competitive bid process during the summer of 2014.

The entire Federal ownership approved for sale in this decision is described below and shown on attached exhibit A.

T.3 S., R.4 E., Black Hills Meridian Section 23, lot 20 – 22.48 acres Section 23, SW¼, SW¼ - 40 acres Section 26, lot 1 – 16.42 acres Section 26, Lot 12 – 33.64 acres

All of the lots fall within the boundary of the City of Custer, Custer County, South Dakota. Proceeds from the Deer Valley conveyance may be used to acquire a government owned office in Sundance, Wyoming, and/or applied towards construction of a new office for the Hell Canyon Ranger District in Custer.

DECISION RATIONALE Withdrawal Revocation – National Forest System (NFS) lands encumbered by withdrawal are not available for adjustment such as an exchange or conveyance. This mineral withdrawal is no longer needed to protect the administrative site and must be removed so that the parcel can be sold. National Forest System lands are generally open to mineral entry except for those areas needing special protection such as a developed recreation site, an archeological site, scenic highway corridor, or botanical area. The Deer Valley site is no longer in need of protection since it is not needed for administration of the Black Hills National Forest therefore the lands will be managed similar to other NFS.

Conveyance of the Four Lots - Under the authority of FSFREA, the Black Hills National Forest has initiated a conveyance and redevelopment program that analyzed the administrative facility needs across the Forest. The implementation of this decision will support this forest-wide program aimed at decreasing deferred maintenance costs, increasing operational efficiencies, and providing more energy efficient administrative facilities. Conveyance of the parcel responds to the stated purpose and need conveying an administrative site that is no longer

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needed for management of the Black Hills National Forest. This in turn allows the Forest to construct or purchase facilities to better serve the public.

My decision to dispose of this property is heavily weighted upon the following factors: a) this parcel is isolated from the rest of the Black Hills National Forest; b) it is adjoined by city neighborhoods, local subdivisions, and rural residences; and c) the Forest Service no longer needs this parcel for administration of the Forest; d) National Forest System lands adjustments are considered in the larger context and while adjustments can affect individuals this must be weighed against the greater public good. There is no specific direction in the Forest Plan regarding disposal of Forest Service administrative sites, however this action does respond to goals and adheres to standards and guidelines identified in the Forest Plan for general land conveyances:

Guideline 8103 Classify for conveyance based on the following: a. In small parcels intermingled with mineral or homestead patents. b. Those lands suitable for development by the private sector, if development

(residential, agricultural, industrial, recreational, etc.) is in the public interest. Those factors which must I must consider in determining the public interest include the opportunity to better manage the Federal lands and resources, to secure important objectives and consolidate land for more logical and efficient management and development. In this case the conveyance will secure funding for administrative facilities and convey an isolated parcel of National Forest System lands.

Sale of excess administrative sites is critical to developing funding for improvement, construction and/or purchase of Forest Service administrative facilities in order to better serve the public. There are few other mechanisms available for addressing the older Forest Service administrative sites and this was recognized when the authority to convey excess administrative sites was granted to the Forest Service.

The Forest will be conveying out of a raw land administrative site that is surrounded by private lands, except for a small area that is connected with the remainder of the Custer Supervisor’s Office providing horse pasture and a storage area for materials. As an isolated parcel of NFS, this administrative site is not being managed in the same manner as, or even used by the public as National Forest. Isolated parcels such as this are difficult to manage for the greater public’s interest and use, making them suitable for disposal if other purposes may be served by so doing. I believe this is the case here.

I acknowledge that even though the site has been altered with timber sales, horse pasture use and household dumping, residents living in immediate proximity value it for open spaces qualities, as an urban park that provides a mostly undeveloped setting amongst considerable residential development. Input I received suggests it provides a backdrop for home sites, creating a quiet private area that is valued by the adjacent landowners. I also recognize that

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the landowners believe that living near or adjacent to National Forest System lands adds tangible value to their homes. The parcel may also provide limited dispersed recreation uses such as walking and wildlife viewing. Conveyance into private ownership and resulting development will change the setting for those individuals who value the open space attributes it provides. A change of ownership may have an impact, tangible or intrinsic, on those who have purchased property adjacent to this site.

In coming to my decision, I have also considered that there was also opposition to the sale of the Deer Valley administrative site, including those who have said that the Forest Service should not sell National Forest lands generally to generate funds for building or office needs.

These are all legitimate opinions and I agree that the Forest Service should be prudent in the sale of National Forest lands. I also am sensitive to the fact that local residents highly value public open spaces adjacent to their neighborhoods. I also must consider that this parcel has provided limited habitat for wildlife, limited timber products potential, and recreation potential mostly limited to adjoining owners.

I believe that the scope of those who may consider themselves to be impacted is narrow. My responsibility to the public is to ensure that the National Forest System land base is managed to provide the greatest benefits to the public as a whole.

Selection of Alternative 2 does not specifically address how the property will be developed after the sale as the Forest Service will have no authority for approving what occurs on the private land. Any buyer would need to coordinate access through Lincoln Street regardless of the level of development. Any subdivision development of the property will be subject to the City of Custer processes, zoning and ordinances, since the property is within City limits. The city of Custer will be responsible for assigning zoning and regulating development on the four lots.

Legal access to the parcels is available via Lincoln Street in the City of Custer, and from the section line between sections 22 and 23, T 3 S., R.4 E., BHM codified laws, Title 31, Chapter 31-18. I have ensured that the site has legal access alternatives, but am not suggesting that one might be more appropriate than the other or that a buyer(s) might not choose to pursue other alternatives. Ultimately, access will be the responsibility of the buyer in accordance with the appropriate State, County or City jurisdiction. I understand that area landowners are concerned over use of either existing access.

Conditions of Conveyance

The four lots will be subject to an easement so that internal access is secured between the four lots.

For consistency with Executive Order 11990 – Wetlands Management, the Lot 20 will be conveyed subject to a deed restriction precluding development in the one acre wetlands area. Specific language with regards to the deed restriction can be found in the project file. This area is depicted in Exhibit B.

The Upper French timber (Unit 8) sale must be completed and the unit in Deer Valley accepted and finalized prior to any sale. It is likely this unit will be cut after the first of the year (2014).

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The proposed action is consistent with the criteria for land adjustments and other direction presented in the Black Hills National Forest Land and Resource Management Plan, as amended, 2006 (Forest Plan). As the proposed conveyance is a stand-alone action with no future phases, it would not create a precedent for future actions with significant effects.

ALTERNATIVES

The EA analyzed in detail two action alternative and the No Action alternative. The alternatives analyzed in detail in the EA are summarized below.

Alternative 1: No Action Under this alternative, the Forest Service would retain management of the four lots. The Black Hills National Forest would not gain revenue from the sale of the old administrative site and there would be a lack of funding available to construct or purchase new facilities. The Forest Service would not be able to purchase the office at Sundance, Wyoming and the Hell Canyon personnel would continue to be located in four separate buildings/work areas. Landownership patterns would not be adjusted facilitating improved management and compliance with the Forest Plan. The Forest Service would not make a recommendation to revoke the administrative site withdrawal.

Alternative 2: Proposed Action This is the alternative that was selected and discussed under my decision.

Alternative 3: Modified Proposal This would be sale of three of the lots in the administrative site and exclusion of Lot 20 such that a buffer against the closest residential development was retained. This alternative was generated as a result of scoping. This alternative would alleviate some of the concern associated with the adjacent landowners. There would be less impact to their privacy, views, solitude and other benefits that were expressed as coming with living adjacent to National Forest System Lands. It would serve as open space for use by adjacent residents. The reason I have opted to select Alternative 2 versus Alternative 3 is that I believe it is the responsibility of local government to provide for local open space, if they deem it appropriate. It is not the mission of the US Forest Service to provide municipal green space or parks. Local residents also have the opportunity to purchase the parcel at a public competitive sale. This alternative would not respond to the purpose and need for this project, conveyance of an administrative site facility to develop funding for improvement, construction and/or purchase of Forest Service administrative facilities. It is counter to the Forest Plan direction of conveyance out of isolated National Forest System lands and suitable for development of the private sector.

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SCOPING AND PUBLIC INVOLVEMENT

The proposed action was provided to the public and other agencies for comment during scoping in February, 2007. Letters were sent to 154 individuals, groups and agencies. As part of this public involvement process, the Forest Service scoped with the 30 identified Native American contacts; the South Dakota State Historic Preservation Officer; South Dakota Game, Fish and Parks; South Dakota Department of Transportation; Custer County; City of Custer, etc. The complete list for consultation and scoping is in appendix A. The Forest Service sponsored a public open house in Custer, SD at the forest supervisor’s office on February 13, 2007 to allow for specific discussion on the proposal; 25 people attended. A news release was published in The Rapid City Journal on February 17, 24 and March 3, 10, 2007 describing the proposal and announcing the 30-day comment period. The proposed sale has been listed and updated continually since March 2007 in the Black Hills National Forest Schedule of Proposed Actions.

A Notice of Sale of Excess Forest Service Administrative Facilities was published in the Rapid City Journal on April 22, 2006.

The Forest Service received a total of 25 comments were via letters, facsimiles, personal-delivery, or email during the formal scoping process. Comments received and the agency ‘response to comments’ are summarized in the Deer Valley Administrative Site Project File located at the Supervisors Office in Custer South Dakota. Two key issues were identified: 1) Loss of open/scenic space for the public and local businesses; and, 2) The need to contribute towards funding to adequately administer new and existing facilities on the Forest. Thirteen comments were received in response to the pre-decisional Environmental Assessment which was published on June 4, 2013 for a 30 day comment period. Of the thirteen letters received in response to the pre-decisional EA, four did not express any opinion but asked to be kept informed. Several commenters were concerned with the potential impact to their property values because of the development; loss of quiet and solitude and the access route impacts. One commenter was concerned with the wetlands area and another with potential impacts to wildlife. Copies of all comment letters are on file at the Supervisors Office, Custer, South Dakota. Public comments did generate the need to add additional information to Final Environmental Assessment, in particular the Hydrology Section and the Access Infrastructure Section. Specific comment responses to each letter are located in Appendix A of the Final Environmental Assessment (EA). FINDING OF NO SIGNIFICANT IMPACT Based on my review of the EA, including appendices and supporting documents, it is my conclusion that the Proposed Action is not a major Federal action that would significantly affect the quality of the human environment as defined in 40 CFR 1508.27. Therefore, an environmental impact statement will not be prepared.

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Consideration for the context of the project. The significance of effects of my decision has been analyzed in several contexts. My decision is consistent with the requirements of the Forest Plan, as amended, and contributes to meeting the goals of the Plan. None of the effects disclosed in the Deer Valley Administrative Site Conveyance EA are different from those anticipated in the Forest Plan Final Environmental Impact Statement (FEIS). The analysis considers cumulative effects. The EA estimates and discloses site-specific effects within the project area. The contribution of this conveyance to the effects described in the Black Hills National Forest FEISs, the possible cumulative effects, and the site-specific effects on the project area have all been considered in this determination.

Consideration of both beneficial and adverse impacts. The EA considers and discloses both beneficial and adverse effects.

Consideration of the effects on public health and safety. The conveyance will not affect public health or safety.

Consideration of unique characteristics of the geographic area. There are no known unique characteristics of the area that will be adversely affected by the conveyance. No prime farmlands, park lands, wild or scenic rivers, or ecologically critical areas occur on Federal lands involved in the conveyance. No adverse impacts are anticipated within floodplains. No adverse effects to wetlands or cultural resources are expected. No trend toward Federal listing or loss of species viability is expected for sensitive species as a result of the exchange. There is no old growth timber on the Federal parcels to be conveyed.

Consideration of the degree to which the effects are likely to be highly controversial. This land conveyance is consistent with many other administrative site sales. There are no scientific disputes over the likely effects of the project. Therefore, I conclude that the environmental effects of the decision are not highly controversial.

Consideration of the degree to which effects are uncertain or unknown. The conveyance is not likely to result in effects on the human environment that are highly uncertain or involve unique risk. It is similar to many past actions that have occurred on the Black Hills National Forest. Other conveyances of Federal land have taken place on the Black Hills National Forest. The probable effects are well understood and have been disclosed.

Consideration of the degree to which this action will set a precedent for future actions with significant effects. Neither conveyance of the land nor this decision will set a precedent. Similar conveyances have occurred in the past, nationally and locally. They are completed by the Forest Service and by other public land management agencies with the objective of consolidating public land ownership. Each conveyance is evaluated on a case-by-case basis and on its own individual merits. I conclude that this decision does not establish a precedent for future actions.

Consideration of the action in relation to other actions with individually insignificant but cumulatively significant impacts. The EA evaluates the land conveyance in context of past, present, and potential future actions that could lead to cumulative impacts, and no significant impacts were identified.

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Consideration of the degree to which the action may adversely affect districts, sites, highways, structures, or objects listed or eligible for listing in the National Register of Historic Places, or cause loss or destruction of significant scientific, cultural, or historic resources. No adverse effects on cultural resources are expected. The South Dakota State Historic Preservation Officer has concurred with this finding.

Consideration of the degree to which the action may affect threatened or endangered species, or critical habitat. As determined in the Biological Assessment, the conveyance is not expected to affect threatened or endangered species.

Consideration of whether the action violates or threatens to violate federal, state, local laws or requirements imposed for protection of the environment. The land conveyance will not violate or threaten to violate any Federal, state, or local laws, regulations, or requirements for protection of the environment.

FINDINGS REQUIRED BY OTHER LAWS, REGULATIONS AND

National Forest Management Act

The National Forest Management Act requires me to ensure that permits, contracts, cooperative agreements, and other activities carried out on the Black Hills National Forest are consistent with the Forest Plan, as amended. My decision is consistent with the following Forest Plan management direction:

Goal 5 of the Forest Plan Directs the Forest Service to strive for improved landownership and access that benefit both public and private landowners. National Forest lands that are isolated, near expanding communities, encumbered with substantial improvements under special use, and lands that have lost their National Forest character will be typical of lands considered for conveyance. (1-23).

Guideline 8104. The following characteristics further define the conveyance priorities: a. Parcels isolated from other National Forest System lands; … f. Lands in developed areas that have lost or are losing their National Forest character; … (II-69).

Guideline 8403. Prioritize buildings and related capital improvements to Forest Service Administrative Sites over a 10-year period. (II-73).

Executive Orders 11988 and 11990

No impacts to the wetlands would occur under with the implementation of design criteria. For consistency with Executive Order 11990 – Wetlands Management, a portion of the 22.48 acre lot will require a one acre deed restriction. Development in the restricted area will be prohibited. The proposed sale would be consistent with Executive Orders 11988 and 11990. Executive Order 13186—Migratory Birds The Forest Service has evaluated the conveyance for its effects upon migratory birds as detailed in EO 13186 and is in compliance.

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Endangered Species Act The Biological Evaluation/Biological Assessment determined that the conveyance would have no effect on Federally-listed species and would be unlikely to affect viability of Region 2 sensitive species. National Historic Preservation Act The heritage resource report was sent to the South Dakota State Historic Preservation Office of Review and Compliance for comment and eligibility determinations for the heritage resources located within the proposed conveyance area. Likewise, the reports were also sent to Tribal Historic Preservation Officers and tribal groups requesting the reports for their review, comments, and additional recommendations for the protection of American Indian traditional use sites. No sites or traditional cultural properties were identified or made known to the Forest Service. The South Dakota State Historic Preservation Officer letter dated March 13, 2008, has concurred with the determination of ‘No Historic Properties Affected.’ No components of the action alternatives have changed since the date of this concurrence. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) The Forest has completed a Land Transaction Screening for the property. No hazardous substances spills, storage or disposals are known for this site. No evidence was found of storage or release of hazardous substances or petroleum products. The Community Environmental Response Facilitation Act of October 19, 1992 (P.L. 102-426), which amended the Comprehensive Environmental Response, Compensation and Liability Act of 1980, requires that prior to conveyance of properties previously used as Federal facilities, the United States must request concurrence from the State with its finding that the property is uncontaminated. The State of South Dakota concurred with the Forest Service’s findings that there is no evidence of release, storage, or disposal of hazardous substances or petroleum product. Environmental Justice The area does not have any low-income or minority populations as defined by Executive Order 12898 and none of the alternative resulted in any identifiable effects or issues specific to any minority or low-income population in the City of Custer or the surrounding area.

Administrative Review (Objection) Opportunities

This decision is subject to objection pursuant to 36 CFR 218 Subparts A and B. A written objection must be submitted within 45 days following the publication date of the legal notice of the opportunity to object in the Denver Post Newspaper, (Denver, Colorado). It is the responsibility of the objector to ensure their objection is received in a timely manner. The publication date of the legal notice in the newspaper of record is the exclusive means for calculating the time to file an objection. Objectors should not rely on date or timeframe information provided by any other source. Only those organizations or individuals who submitted a comment during the 30-day Notice and Comment period are eligible to object to this decision pursuant to 36 CFR 218.7(a). In addition, only issues raised in previously submitted timely, specific written comments regarding the proposed action are allowed to be raised in objection unless it is based on new information arising after the notice-and-comment period.

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Paper objections must be submitted to: USDA Forest Service, Reviewing Officer, EMC, RPC-6th Floor, Attn: Judicial and Administrative Reviews, 1601 N. Kent Street, Arlington, VA 22209, or by fax to 703-235-0138. The office business hours for those submitting hand-delivered objections are 8:00 a.m. through 5:00 p.m., Monday through Friday, excluding federal holidays. Electronic objections must be submitted in a format such as an email message, rich text format (.rtf), Word (.doc) or pdf format to [email protected]. 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 objections filed electronically, the name of the project being objected to should appear in the subject line. When an objection is electronically mailed, the objector should normally receive an automated electronic acknowledgement confirming agency receipt. If the objector does not receive an automated acknowledgement of the receipt of the appeal, it is the objector’s responsibility to ensure timely receipt by other means (§ 218.9(b)).

At a minimum, an objection must meet the content requirements of 36 CFR §218.8(c) and (d) and include the following information:

1. Objector’s name and address (36 CFR §218.2), with a telephone number, if available;

2. Signature or other verification of authorship upon request (a scanned signature for electronic mail may be filed with the objection);

3. When multiple names are listed on an objection, identification of the lead objector (36 CFR §218.2). Verification of the identity of the lead objector upon request;

4. The name of the project or activity for which the draft-decision was issued, the name and title of the Responsible Official, and the name(s) of the National Forest(s) and/or Ranger District(s) on which the proposed project will be implemented;

5. Sufficient narrative description of those aspects of the proposed project addressed by the objection, specific issues related to the proposed project, and suggested remedies that would resolve the objection; and,

6. A statement that demonstrates connection between prior specific written comments on the proposed project and the content of the objection.

Notices of Objections that do not meet the requirements of 36 CFR §218.8(c) will be dismissed. Please note that all objections submitted, including names and contact information, will become part of the public record and may be released under the Freedom of Information Act.

IMPLEMENTATION DATE

Pursuant to 36 CFR 218.12, no decision on this project will be signed until the reviewing officer has responded to any and all objections, nor until all concerns and instructions issued in any objection response have been addressed. If no objection is filed, a decision could be issued no sooner than about November 26, 2013. If objections are filed, a decision could be issued no


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sooner than about December 2, 2013. Implementation of this project may occur immediately after decision is signed.

CONTACT

For additional information concerning this decision, contact Cindy Hockelberg, Black Hills National Forest, 1019 N. 5th Street, Custer, SD 57730, by phone (605-673-9238), or e-mail [email protected].

________________________________ _________________________ James S Bedwell Date Director Recreation, Lands and Minerals Region 2, Rocky Mountain Region USDA Forest Service


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Exhibit A – Deer Valley Administrative Site

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Exhibit B – Deer Valley Wetlands Restriction Area

Documents

Deer Valley Administrative Site Conveyance Custer County ...a123.g.akamai.net/7/123/11558/abc123/forestservic...2 withdrawal in place. Forest Service policy (Forest Service Manual