November 1, 1996
Bernie Weingardt
Forest Supervisor
Wasatch-Cache National Forest
8230 Federal Building
125 South State
Salt Lake City, Utah 84138
Rob Cruz
Salt Lake Ranger District
6944 South 3000 East Street
Salt Lake City, Utah 84121
Re: Proposed Projects at Snowbird, Solitude and Brighton Categorically Excluded From NEPA Review.
Dear Bernie and Rob:
Thank you for your continuing efforts to keep us fully appraised of proposed development in the Wasatch Cache National Forest. We appreciate your willingness to work with our organi-zation and to consider our comments and concerns while developing policy and making decisions affecting this National Forest. We would again like to take advantage of your willingness to hear our concerns. We are troubled by your recent decision to exempt proposed projects at Snowbird, Brighton and Solitude from proper environmental review by declaring them categorically excluded actions under 40 C.F.R. § 1508.4. Of particular concern is your determination that the resorts' plans to expand the capacity of their chairlifts are exempt from environmental analysis. We believe that the proposals to expand significantly the uphill capacity at these resorts cannot be properly excluded from review under the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA") because the proposals may "individually or cumulatively have a significant impact on the human environment." Declaring that these projects fall under the categorical exclusion has improperly segmented them from the larger, overall projects, of which they are a part. Further-more, under Forest Service rules, these actions cannot be properly deemed categori-cally excluded from NEPA review. We base these conclusions on the following analysis: Description of the Proposed Projects.
A. Snowbird
As part of the update of its Master Development Plan ("MDP"), Snowbird proposed to convert the Gad I double chairlift into a detachable high speed quad. This proposal requires altering the base and top stations of the current lift and destroying 25 mature trees. This project is intended to dramatically increase the number of people who can be transported uphill on the ski lift. Indeed, Snowbird's proposed lift would be the first high speed quad in Little Cottonwood and therefore could lure even more skiers to the resort than might other-wise be anticipated. The planned increase in the uphill capacity of the Gad I chairlift will put significant strain on the Snowbird's infra-structure, particularly the nearby trail system. Snowbird's MDP confirms that the expansion of the Gad I chairlift will require modification and enlargement of the ski trails serving the Gad I chairlift. See, Middle Bassackwards/GAD A, Scoping Document at 3 ("This project becomes even more important if GAD-1 is converted to a quad and more skiers exit onto this slope"); Traverse Widening/GAD C, Id. at 5 (on the basis of safety concerns, project becomes more important if quad conversion occurs); Madam Annie/GAD F, Id. at 6 (requiring removal of many trees, this project is designed to provide better access to "the proposed quad lift"); Ski access to Big Emma/GAD H, Id. at 7 (designed to disperse skier traffic in a "narrow, heavily used area" which will be fed by the proposed quad); Big Emma Creek Crossing/GAD K (same). As Snowbird's MDP demonstrates, the expansion of the Gad I chairlift is intimately connected to and necessarily a part of the proposal to expand and modify the facilities in this area of the Gad Valley. These connected projects may have significant impacts on the environment.
B. Solitude
Solitude has also proposed, in an update of its MDP, to increase the uphill capacity of its Moonbeam II lift by replacing this triple chairlift with a high speed detachable quad. As with the expansion of Gad I, this proposal is intended to increase the uphill capacity of the Moonbeam II and to increase the number of people who, at any given time, can be skiing the trails which service this lift. As with its decision regarding the Gad I quad, the Forest Service's decision to categorically exempt the Moonbeam II proposal from NEPA review does not include any indication of the expected increase in SAOT (skiers at one time) associated with the chairlift expansion. As a result, the Decision Memo cannot compare the uphill capacity of the current lift with that of the proposed lift and cannot guage the potential enviro-nmental impacts of the plan based on a estimation of the increase in uphill capacity expected to result from the proposed project. As with the expansion of Gad I, increasing the capacity of the Moonbeam II lift is part of the larger plan to expand and modify the facilities in this immediate area of the resort. For example, along with its plan to expand Moonbeam II, Solitude has proposed to, 1) regrade the intersection of Sesame Street and Tude-Dudes trails; 2) eliminate a tree island at the lower inter-section of Little Dollie and Tude-Dudes trails; 3) conduct extensive maintenance on Upper Sesame Street; 4) reconstruct Fleet Street and Fluid Drives; and, 5) expand Moonbeam Center. As Solitude's MDP confirms, the expansion of the Moonbeam II chairlift is intimately connected to and necessarily a part of the proposal to expand and modify the facilities in this area of the resort.
C. Brighton
As part of its MDP, Brighton has proposed to replace its Millicent Chairlift with a high speed detachable quad. At the same time, Brighton plans to dismantle the nearby Evergreen lift. Brighton contends that "the removal of the Evergreen lift combined with a fixed uphill capacity for the Millicent Quad will actually reduce the uphill capacity of the Millicent area from 2,300 pph [people per hour] to 1,500." Decision Memo Improvements for Brighton Ski Resort at 5. However, Evergreen and Millicent chairlifts do not service the same areas -- Evergreen is a short lift, servicing only a small portion of the area served by the Millicent lift. Moreover, lift speed and capacity decisions by Brighton could easily push the numbers over the 1,500 or even the 2,300 PPH. There-fore, if the Millicent chairlift is enhanced, or replaced by a detachable quad, the number of skiers carried to the top of this chair will increase substantially from the number carried there by the current facilities. Furthermore, the expansion of the Millicent lift is proposed as part of the resort's MDP and is only a part of the overall proposal to develop the resort. As with the lift expansion proposals at the other resorts, expansion of the Millicent lift is connected to other projects designed to alleviate the strain placed on the infrastructure by the lift expansion. For example, along with the expansion of the Millicent lift, Brighton plans to, 1) modify the Millicent access run; 2) reconstruct Backdoor, Main Street and Perri's and Cristy's Bowls and, 3) construct a new patrol building at the top of the Millicent lift. These Projects Were Improperly Classified As Categorical Exclusions.
A. The Purpose of Master Development Plans, Connected Actions, Improper Segmentation and Cumulative Impacts. Categorically excluding any of the proposed projects, particularly the expansion of the ski lifts, undermines the purpose of master development plans and the goal of preventing piecemeal develop-ment in the Wasatch canyons. In addition, the proposed projects are intimately connected to other concurrently planned projects, are only parts of larger, more significant projects with common timing and geography and therefore should not be analyzed separately from these develop-ment schemes. Finally, NEPA requires that the cumulative impacts of past, present and reasonably foreseeable future actions be analyzed before an agency makes a decision potentially affecting the human environment. The Forest Service failed to meet this requirement before deeming these proposals categorically exempt from NEPA review. As you know, earlier this year, the major ski resorts in the Wasatch-Cache National Forest -- Snowbird, Solitude, Brighton and Alta -- began updating or preparing their Master Development Plans (MDP's). The purpose of these MDP's is to require ski resorts to outline the proposed plans for the immediate and future development of their ski facilities in a single document. An MDP should include all development proposed at a given ski resort for the next five years. Requiring ski resorts to design fixed five-year MDP's enables the Forest Service to properly assess the environmental impacts of the proposed development at the ski resorts and therefore comply with NEPA. The Forest Service can analyze all of the projects proposed at a ski resort in a single environmental review document. This approach avoids piecemeal development and the improper segmentation of a whole project into smaller, less significant impacts. 40 C.F.R. § 1508.27 (b)(7). ("Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts"). In addition, the proper scope of environmental review requires analysis of all connected or closely related actions. 40 C.F.R. § 1508.25 (a)(1); see also 40 C.F.R. § 1508.25 (a)(3) (similar actions, such as those with "common timing or geography" should be analyzed together). In violation of this approach, allowing categorical exclusion of various projects proposed in the resorts' MDP's undermines the purpose of the MDP's holistic approach and violates NEPA's requirement that a proposed project not be improperly severed into smaller, less significant segments. Categorical exclusion of these projects also violates NEPA's requirement that the Forest Service analyze the cumulative impacts of past, present and reasonably foreseeable actions before it makes a decision regarding proposals for development of the National Forest. The Forest Service states that it analyzed the cumulative impacts of the proposed projects, explaining that this "cumulative effects analysis took into account other projects in the past and present." For example, Decision Memo (Brighton) at 1; Decision Memo (Snowbird) at 1; Decision Memo (Solitude) at 1. This analysis is insufficient. NEPA clearly requires analysis of past, present and reasonably foreseeable actions (emphasis added). 40 C.F.R. § 1508.7. All of the projects proposed in each MDP are reasonably foreseeable and therefore should be included in cumulative impact analysis conducted in connection to any proposal at that resort. That NEPA requires the Forest Service to adopt this approach to its decision to categorically exclude a project from environ-mental review is confirmed by case law. For example, in Alpine Lakes Protection Society v. U.S. Forest Service, 838 F.Supp 478 (W.D.Wash 1993), the Forest Service was prevented from issuing a permit for an access road that qualified for a categorical exclusion. Because the Forest Service failed to "consider whether there is the potential for any cumulative impacts as a result of the connected and cumulative actions" relevant to proper environmental review, the agency's decision to exempt the project from further analysis was arbitrary and capricious. Id. The court also noted that the various projects related to access road construction project were "similar in both timing and geography." Id. at 483, fn. 5. Therefore, the Forest Service could not isolate the road construction project from these concurrent proposals and could not exclude the project from a determination of the potential for significant impacts of these related projects. Id.; 40 C.F.R. § 1508.25 (a)(3) (similar actions, such as those with "common timing or geography" should be analyzed together). For these reasons, the proposals to expand lift capacity, in particular, cannot be properly excluded from NEPA analysis of the rest of the projects proposed as part of the resorts' MDP's. Only by examining the lift expansion projects together with connected actions (especially proposals to develop the infra-structure serviced by the lifts) and by avoiding improper segmentation of the current plans to develop these resorts can the Forest Service comply with NEPA.
B. Forest Service Rules.
As instructed by NEPA, the Forest Service has promulgated rules and procedures to determine when proposals can be properly classified as categorically excluded from further NEPA review. Under these rules, the proposals to expand the chairlifts are not properly classified as categorical exclusions. The Forest Service rules state that "[a]pproval, modifi-cation, or continuation of minor special uses of National Forest System lands that require less than five contiguous acres of land" may be categorically excluded from NEPA review. 57 F.R. 43209, 31.2 (3). The Forest Service has determined that the expansion of the chairlifts falls under this category of actions. For example, Decision Memo (Brighton) at 2. However, a proposal to substantially expand the uphill capacity of chairlift does not fit this category -- the special use implicated by expansion of the chairlifts is not a minor use and involves substantially more than five contiguous acres. Providing skiing facilities is a significant use of the National Forest. This use of the forest involves hundreds of acres of land at each of the resorts and is so significant that its impacts are felt beyond the perimeters of the resorts. Furthermore, even if the proposals to expand the lifts were taken in isolation, the area potentially impacted by an increase in the capacity of lifts is considerably larger than five acres. Increased numbers of skiers carried by the expanded lifts would ski, and therefore effect, the large number of acres of terrain served by each lift. Secondly, review of the example modifications of minor special uses included in the Forest Service rules confirms that the proposed expansion of the chairlifts does not properly fit category 31.2 (3). Each of the examples involves significantly less impact on the forest than does the expansion of the uphill capacity of the chairlifts. For example, Id., 31.2 (3) ("Approving the use of land for a one-time group event" or "[a]pproving installation of a driveway, mailbox, or other facilities incidental to use of residence"). Indeed, the final example of actions, "[a]pproving the continued use of land where such use has not changed since authorized and no change in the physical environment or facilities are proposed." Logic dictates that where there is a continued use of land and a change in facilities or use is proposed, categorical exclusion is not appropriate. Thus, under the Forest Service's own rules, the decision to exempt the chairlift expansion from NEPA review is ill-founded. The proposal to increase the capacity of the chairlifts and to significantly increase the use of the area serviced by these lifts are not minor actions, necessarily affect more than five acres of the forest and are not analogous to the examples provided by rule 31.2 (3).
C. Insufficient Information.
Finally, the Decision Memos which deem the Snowbird and Solitude chairlifts categorically exempt from NEPA review contain insufficient information to justify these decisions. Both documents fail to state the anticipated increase in SAOT or PPH which will result from the proposed expansions. They also fail to explain how lift speed and capacity will be monitored. Without this basic information, the Forest Service cannot properly evaluate the potential of the projects to significantly impact the human environment. As a result, the agency's claim that "the environmental effects [of the exempted proposals at Snowbird] will be minor," Decision Memo (Snowbird) at 5, lacks a factual foundation. Little could be more important in an evaluation of the impacts of a chairlift expansion than a statement of the increase SAOT expected from the expansion. Thus, the failure to acquire this fundamental information violates NEPA's mandate that an agency make fully informed decisions. In addition, without this information the public cannot be informed and cannot participate meaningfully in the NEPA process. That the Forest Service lacked sufficient information to exempt the chairlift expansion is evidenced by the Agency's concern over the potential impacts of increased SAOT at Snowbird. For example, your own staff, when evaluating the resort's requests, repeatedly emphasized that "SAOT would increase if a higher capacity lift was installed [at Snowbird] and the CE [categorical exclusion] criteria (increased capacity) would not be met. To stay within the CE criteria, a lift with equal or lessor capacity could be installed . . . ." Inter-disciplinary Team Review of Alta Ski Lifts and Snowbird Ski and Summer Resort Proposed Categorical Exclusions at 5. As this statement demonstrates, the Forest Service could not properly designate the expansion projects categorically exempt without information regarding expected SAOT increases. There is nothing in the record that refutes this crucial point.
Conclusion
For the above reasons, we believe that the decision to categorically exclude the various development proposals, especially the plans to expand chairlifts at Snowbird, Solitude and Brighton, from further NEPA review is inappropriate. Specifically, the decision to exclude these expansion projects from environmental review 1) undermines the purposes of MDP's; 2) violates NEPA's mandate that connected actions be considered together; 3) improperly segments these projects from the overall project of which they are a part, 4) fails to consider projects related in timing and geography in a single environmental document; 5) violates NEPA's requirement that cumulative impacts be analyzed before an agency makes a decision; 6) fails to conform to the Forest Service's determination of what constitutes minor uses requiring less than five acres of land; and, 7) was made without sufficient information. Accordingly, we believe this decision would be deemed arbitrary and capricious by a court reviewing the matter. We hope that you will examine these issues carefully and will reconsider your decision to exempt these expansion projects from NEPA review so as to forestall litigation. Thank you again for this opportunity to comment on and influence Forest Service policy and decision making.
Citizens' Committee to Save Our Canyons
Tom Berggren Vice President