Apr 062015

Environmental groups are harshly criticizing a move by the Forest Service to reinstate the North Fork Coal Mining Area exception of the Colorado Roadless Rule, which the service said would "allow for temporary road construction for coal exploration and/or coal-related surface activities in a 19,100-acre area defined as the North Fork Coal Mining Area."

The announcement came in the form of a notice to prepare a supplemental EIS that went on Public Inspection this morning.

The revival of the "gaping loophole," tossed out by a federal court last fall, would let Arch Coal "build roads and scrape well pads over thousands of acres of otherwise-protected, publicly-owned national forest and crucial wildlife habitat in the state. The loophole paves the way for Arch Coal to expand coal-mining operations," the groups, including Center for Biological Diversity, Sierra Club and WildEarth Guardians, said.

(The other groups on the press release are the Natural Resources Defense Council, Defenders of Wildlife, Rocky Mountain Wild, and High Country Conservation Advocates.)

Their release noted that "[t]he court’s ruling left the door open for the Forest Service to revive the loophole if the agency undertook a new analysis that adequately disclosed the climate pollution the loophole would cause. The Forest Service’s announcement gives the public until May 22 to comment on the proposal."

In California, a collection of other advocates was questioning the wisdom of the Alameda Creek Bridge Replacement Project in Niles Canyon. Caltrans, they said, has not adequately examined the cumulative environmental impacts or the specific impacts on the Alameda whipsnake.

Here's the news release. Scroll down for excerpts from the comments mentioned in the release.

Groups Blast Caltrans Construction Plans in Niles Canyon

For Immediate Release - April 6, 2015
Contact: Jeff Miller, Alameda Creek Alliance, (510) 499-9185

Niles, CA – Local groups are opposing Caltrans’ proposal for the Alameda Creek Bridge Replacement Project in Niles Canyon, exposing it as an overbuilt highway widening project that would increase driving speeds though the canyon and could actually reduce safety for motorists and bicyclists, while cutting down 300-400 native trees and damaging wildlife habitat along Alameda Creek. The Alameda Creek Alliance, East Bay Chapter of the California Native Plant Society, Citizens Committee to Complete the Refuge, Save Niles Canyon, Southern Alameda County Group of the Sierra Club, and Bay Area Transportation Working Group, as well as experts on special-status wildlife species, hydrology and fisheries, and traffic safety submitted more than 50 pages of critical comments last week on the draft Environmental Impact Report for the project.

“This Caltrans project is anything but a simple bridge replacement – it involves widening up to half a mile of Niles Canyon Road, removing hundreds of native trees and excavating along thousands of feet of the canyon, adding large retaining walls,” said Jeff Miller, director of the Alameda Creek Alliance. “Caltrans’ overbuilt approach is simply not needed to make the bridge segment safer.”

Caltrans claims the project to replace the 87-year old Alameda Creek Bridge and add modern safety railings and road shoulders on the bridge is needed for bicyclist and motorist safety. Caltrans proposes engineering the new bridge and its roadway approaches to increase motorist speeds from 35 to 45 mph, while widening the entire roadway through the half-mile project reach to 42 feet, with shoulders. The project would require realigning 1,400 feet of roadway for the western approach and from 300 to 1,190 feet for the eastern approach. Construction would damage significant areas of the canyon with hundreds to thousands of feet of cut-and-fill and large concrete retaining walls, both above the roadway and adjacent to Alameda Creek. It would also require cutting from 284 to 414 native trees and encroaching on habitat for threatened Alameda whipsnakes, steelhead trout and red-legged frogs.

“Caltrans promised a ‘clean slate’ on the Niles Canyon highway safety projects with consideration of public input but this project is more of the same – trying to turn Niles Canyon road into a freeway one segment at a time,” said Miller. “Caltrans should look at alternatives that would replace the bridge at the current speed of 35 mph, which would scale back the need for tree cutting and other severe environmental impacts.”

Caltrans claims the agency is required to increase the design speed of the bridge and its approaches to the posted speed limit of 45 mph. Yet many locations throughout the canyon are posted for 30-35 mph because of tight turns in the narrow canyon. The Federal Highway Administration and Caltrans’ own Highway Design Manual allow a lower than “standard” design speed, based on environmental, safety and other considerations.

The four “alternatives” analyzed by Caltrans in the Environmental Impact Report for the bridge replacement project all increase the design speed, contain the same increases in the turn radius for the bridge approaches, and only differ in how much cut-and-fill and retaining walls would be constructed on the east and west approaches to the bridge. All of Caltrans’ “alternatives” would have severe impacts on riparian trees, endangered species habitat, and the hydrology and habitat value of Alameda Creek. Caltrans did not evaluate whether a 2007 project that installed centerline rumble strips through Niles Canyon has reduced vehicle collisions in the project area.

Caltrans acknowledges that it has not even begun mitigation for its abandoned highway widening project in lower Niles Canyon in 2011, when the agency cut 150 native trees along Alameda Creek. Caltrans has several other planned safety projects in the Niles Canyon corridor that will cumulatively cut or impact a total of 550 to 650 trees. Caltrans has no timeline for mitigation for tree-cutting impacts from the bridge replacement project and no details about where mitigation tree planting will occur. Caltrans has acknowledged that it cannot find suitable nearby mitigation sites that are acceptable to regulatory agencies, nor can it adequately mitigate for cutting large, mature trees and the loss of the habitat values they provide for native wildlife.
The proposed bridge replacement project does contains some environmentally beneficial elements, including removal of a concrete weir in Alameda Creek which currently serves as a barrier to fish passage, removal of the existing bridge’s in-stream piers, and removal of invasive plants.

A dozen community groups have proposed safety solutions for Niles Canyon Road that do not involve needless destruction of the environmental and scenic values of Alameda Creek or Niles Canyon, and opposed Caltrans’ plans to increase the design speed of the Alameda Creek Bridge and other road segments.

Caltrans initially proposed a three-phase highway safety project that involved widening much of Niles Canyon Road between Fremont and Interstate 680, which would damage habitat for steelhead trout and other endangered species, and remove rare sycamore forest along the creek. Caltrans internally approved phase one of the project in 2006 without alerting the public. Caltrans cut nearly 100 trees in the canyon in spring of 2011. After large public protests, the Alameda Creek Alliance filed suit challenging the inadequate environmental review. A court order in June 2011 halted construction and a settlement agreement in December 2011 forced Caltrans to abandon the project. In 2012 the Federal Highway Administration conducted a road safety assessment for Niles Canyon, finding that Caltrans’ proposed highway widening was not warranted by the safety data. The FHA identified accident hot-spots within Niles Canyon that should be addressed, and noted four other locations in the canyon with higher priority need of safety improvements than the Alameda Creek Bridge.


The DEIR avoids any analysis of the cumulative impacts to the Alameda Whipsnake, instead impermissibly focusing on cumulative impacts to AWS Critical Habitat Unit 3. CEQA requires that this EIR consider the cumulative impacts to the species as well as its habitat. In addition, the DEIR briefly discusses four nearby projects with impacts to Alameda whipsnake habitat and/or designated critical habitat:

1) The Arroyo de la Laguna Bridge Project, which is currently in the early planning phase. The DEIR notes that the project will involve impacts to Alameda whipsnake habitat but these impacts and the mitigation associated with the project have not yet been determined.

2) The upcoming Caltrans Niles Canyon Safety Improvements Project, with a preliminary estimate of impacts to 13.5 acres of Alameda whipsnake habitat (both permanent and temporary impacts). According to preliminary estimates, the project will impact approximately one acre of Alameda whipsnake Critical Habitat Unit 3.

3) The I-680 HOV Lanes Project, with impacts to 18.98 acres of Alameda whipsnake habitat (11.7 acres of permanent impacts and 7.3 acres of temporary impacts).

4) The Freeway Performance Initiative on I-680 Project, with estimated impacts to 9.9 acres of Alameda whipsnake habitat (3.1 acres of permanent impacts and 6.8 acres of temporary impacts).

The DEIR fails to discuss seven other completed or anticipated projects nearby with impacts to Alameda whipsnake habitat.

The FHWA report stated that a project to replace and upgrade the bridge, and upgrade the approach curves would not only increases sight distance and design speed, but would actually increase motorist speed. The FHWA report noted the following disadvantages to such a project: “Requires a new footprint for the realigned roadway; Potential impacts to endangered species; Impacts Alameda Creek Bridge during construction and permanently; Environmental impact to Alameda Creek; Potential loss of riparian habitat.

Caltrans also provided tables as part of the DEIR that calculate the number of large, mature native trees (over 20” dbh) that would be removed under the various Project alternatives (Alameda Creek Bridge Replacement Project – Large Native Trees within Impact Areas). Alternative 1 would remove 29 large mature trees (5 Bays, 10 Sycamores, 13 Live Oaks, and 1 Red Willow); Alternative 2 would remove 19 large mature trees (2 Bays, 6 Sycamores, 10 Live Oaks, and 1 Red Willow); Alternative 3A would remove 24 large mature trees (3 Bays, 8 Sycamores, 12 Live Oaks, and 1 Red Willow); and Alternative 3B would remove 20 large mature trees (1 Bay, 7 Sycamores, and 12 Live Oaks). Large mature native trees such as these provide important wildlife habitat through shading of Alameda Creek, stabilization of stream banks, and providing cavities for nesting birds. These habitat attributes of large, mature trees cannot be replaced by planting small trees or planting trees elsewhere; it can take many decades or even a century for replacement trees to reach similar sizes and provide similar habitat attributes.

Additionally, Caltrans admitted at the 2/23/15 scoping hearing for the Project that it cannot find suitable nearby mitigation sites that are acceptable to regulatory agencies, nor can it adequately mitigate for the loss of large, mature trees, and the habitat value they provide for native wildlife by replacing those trees in-kind, i.e. with equivalent large, mature native trees along Alameda Creek.

The proposed Project contains some environmentally beneficial elements, which should continue to be included in a meaningful Project alternative.

These include the proposed removal of a concrete weir in Alameda Creek which currently serves as a barrier to fish passage, removal of the existing Alameda Creek Bridge’s in-stream piers, and removal of invasive Arundo from the Project area. Removal of the concrete weir would allow the stream to take on a more natural morphology and would remove a low flow fish passage barrier. Removal of the existing bridge and building a replacement bridge that would
reduce the in-stream footprint of the bridge piers would improve the geomorphology of Alameda Creek. Removal of the invasive Arundo would improve habitat for native fish and amphibian species.

Stream buffer zone rule could go bye-bye

 Posted by on September 12, 2013
Sep 122013

Judge in D.C. indicates desire to set aside reg for failure to consult

A 2008 rule designed to protect streams from the impact of coal mining will probably be set aside because the Office of Surface Mining did not consult with the Fish and Wildlife Service on the regulation's impact on listed species.

That certainly appeared to be the inclination of U.S. District Judge Barbara J. Rothstein, who held a status conference on legal challenges to the Stream Buffer Zone rule today (Thursday, Sept. 12) in her courtroom in Washington, D.C. (National Parks Conservation Association and Coal River Watch v. Jewell, 09-115 BJR, D.D.C.).

Nothing of import has happened in the case for about three years, Rothstein noted, which has had the effect of leaving  the 2008 rule in place, despite numerous flaws.

The judge said that as she was reading through the briefs prior to the hearing, "it crossed my mind that it was time for some rulings in the case."

Later, near the end of the approximately one-hour status conference, she said the case was "an example of what happens" when a case is stayed for a long time: "It doesn't get better, it just gets worse."

The government has asked Rothstein to vacate the 2008 rule and leave the 1983 rule in its place while OSM goes through another public comment period in an attempt to refashion an acceptable rule. In addition to the failure to consult, OSM recently conceded it had misplaced thousands of (admittedly, identical) public comments.

Invalidation would be acceptable to NPCA but not, it appears, to another group of plaintiffs led by Coal River Mountain Watch, which wants Rothstein to decide all the issues in the case, not just the ESA claims (Coal River Mtn. Watch v. Jewell, 08-2122). Those plaintiffs' attorney said the rule was harming people today.

"We would submit you have to consider all the deficiencies in the rule," he said.

The National Mining Association and its allies want the judge to keep the 2008 rule in place. Their attorney, Kirsten Nathanson of Crowell & Moring, argued that Rothstein should defer to an earlier ruling by District Judge Henry Kennedy, who had declined to vacate the rule.

But Rothstein wasn't fond of the "vacatur" terminology, preferring instead to speak of "setting aside" an "invalid" rule. Longtime Justice Department attorney Mark Brown said there was no dispute among the parties that OSM hadn't consulted under Section 7 of the ESA.

Here's the "minute order" posted in the case docket today:

MINUTE ORDER: The parties having appeared for a status conference before Judge Barbara Jacobs Rothstein on September 12, 2013 at 10:00 am, it is HEREBY ORDERED that in the interest of expediting the issues so that they coincide with the companion case, National Parks Conservation Association v. Jewell, Case No. 9-115, the scheduling order [Dkt. Nos. 41 and 42] is modified accordingly: (1) all motions for summary judgment (including cross motions) will be filed on or before October 15, 2013; (2) all responses will be filed on or before November 15, 2013; and (3) all replies will be filed on or before December 1, 2013. Signed by Judge Barbara Jacobs Rothstein on 9/12/13. (Reed, Heather) (Entered: 09/12/2013)