FROM:
Chattooga Conservancy
8 Sequoia Hills Lane
Clayton, Georgia 30525
706-782-6097
info@chattoogariver.org
TO:
USDA Forest Service
Attn: Appeal Reviewing Officer
1720 Peachtree Road, NW
Suite 811 N
Atlanta, Georgia 30309-9102
October 17, 2009
To the Regional Forester,
I am writing on behalf of the Chattooga Conservancy to appeal the decision by the 3 Forest Supervisors of the Sumter, Nantahala and Chattahoochee National Forests to amend their respective Forest Management Plans by choosing Alternative 4 of an Environmental Assessment conducted by these Forest Officers for the Management of Recreation Uses on the Upper Chattooga River.
This is a Notice of Appeal pursuant to the Optimal Appeal Procedures, and meets the requirements of Section 9 of the Optimal Appeal Procedures, to wit: this notice of appeal is filed pursuant to 36 CFR 219.14(b)(2), pertaining to the 3 separate Decision Notices and Finding(s) of No Significant Impact(s) that include amendments to the Sumter, Chattahoochee and Nantahala National Forest Plans, regarding Alternative 4 of the document entitled "Management of Recreation Uses on the Upper Chattooga River," dated August 25, 2009, and signed by Monica J. Schwalbach, Acting Forest Supervisor of the Francis Marion and Sumter National Forests.
The Chattooga Conservancy takes extreme exception to the Decision Notice and Finding of No Significant Impact for these Forests Amendments that were announced to the public this past August, 2009. We assert that this decision to create a new access trail and a parking lot between Whiteside Cove Road and Norton Mill Creek will result in irreparable harm to the natural environment in sensitive areas in the Chattooga Wild and Scenic River Corridor, specifically in the Chattooga Cliffs reach in the extreme headwaters of the Chattooga above Bull Pen Bridge. We also firmly believe that this decision will result in irreparable harm to the social experience for those recreational users in this section of the Chattooga Wild and Scenic River Corridor who seek solitude and peace in one of the last inaccessible places along the river, which would (if decision goes forward) be penetrated to allow a new whitewater boating access point.
Conversely, we believe that the decision to exclude all boating below Burrells Ford to the Highway 28 Bridge is unfair, and inconsistent with the decision to allow restricted boating in the reaches of the National Wild and Scenic River Corridor and Ellicott Rock Wilderness from Norton Mill Creek to the Burrells Ford Bridge. We assert that boating should be allowed from Bull Pen Bridge all the way to the Highway 28 Bridge, with the same water level restriction as proposed by the decision that limits boating to above 450 cubic feet per second on the Burrells Ford gauge, which would protect a "high quality fishing experience" in this whole section of river if additional restrictions were implemented to limit the number of groups per day to 4 consisting of no more than 6 boaters per group.
We also assert in this notice of appeal that the whole 4 and 1/2 year process, beginning with the Chief's decision to require local forests to revisit the decision to ban boating in the headwaters in 2005, has been fraught with bias, unconscionable inconsistencies, an unjustifiable waste of tax payers money, including (during this process) and culminating (in the environmental assessment and decision notice) in multiple violations of federal law specifically including the Wild and Scenic Rivers Act, the Wilderness Act, the National Environmental Policy Act, the Administrative Procedures Act, and a host of misinterpretations of various federal regulations including the Forest Service Handbook and the Forest Service Manual, that are promulgated for the implementation of these laws.
Chattooga Cliffs: New Access Will Cause Irreparable Damage
The deceptive, ill advised and illegal attempt by the Forest Service to create a new access area for whitewater boating in the most remote, less visited, less impacted, most biologically sensitive area in the whole Chattooga Wild and Scenic River Corridor is unconscionable, arbitrary and capricious, and thus is in violation of the Administrative Procedures Act. The Forest Service freely admits that the proposed access into this section via the proposed County Line Road was chosen only after withdrawing the original option to access this section from Grimshaws Bridge, the next put-in point above, because of private property rights which prohibit this as a feasible alternative. The Environmental Assessment admits that the creation of this new 1.7 mile access trail will cause the highest anticipated number of backcountry encounters from a host of new user groups, as well as increased erosion and sedimentation, viability concerns for certain rare plant species that have limited populations, and the potential for the most damage from user-created and portage trails due to the steep nature of the terrain of any reach considered in the Environmental Assessment. In fact, the choice of the County Line Road was chosen as a desperate attempt to find the nearest downstream alternative to the original proposed put-in at Grimshaws Bridge, to allow the most miles of boating after realizing that untested navigability laws and private property rights of the landowners above, who own both sides of the Wild and Scenic River Corridor at Grimshaws Bridge, would without question engage all parties in court over the issue. The attempt to cobble together an alternative to allow "some" degree of boating based on an appeal by the litigious group known as American Whitewater, while steadfastly refusing to yield access to the section of river between Burrells Ford and the Highway 28 Bridge-the section of river downstream where the Forest Service, 2 state wildlife agencies and Trout Unlimited partner in an extensive stock fisheries program and whom consider this section their exclusive playground-left the Forest Service little choice but to propose sacrificing the remote headwaters section in between Norton Mill Creek and Burrells Ford. Sadly and ironically, this remaining section of the Chattooga River, from Norton Mill Creek through the Chattooga Cliffs reach and through the Ellicott Rock Wilderness Area, was the only thing left to get these two warring, special interests (American Whitewater and Trout Unlimited) off their back.
Comments to the Forest Service by Jim Costa, the Director of the Highlands Biological Station, and Bob Gale, ecologist with the Western North Carolina Alliance, and the research conducted in the Chattooga Cliffs area by Chick Gaddy, a biologist who studied the Chattooga Cliffs extensively in the 1980's, all document the extreme sensitivity of the unique biological diversity found in the Chattooga Cliffs reach. This irrefutable evidence presented and availed by these distinguished scientists stands in sharp contrast to the Forest Service's Environmental Assessment, which states and reveals that in most cases concerning rare plants, no comprehensive surveys have been conducted.
In other words, the Forest Service is fully aware that the Chattooga Cliffs reach is biologically rich, provides the most feasible place to truly provide a wilderness experience and solitude, is extremely vulnerable and threatened such that top scientists are concerned, yet the Forest Service is now knowingly proposing an a new access that will pierce the heart of the Chattooga Cliffs reach, and risk irreparable harm.
The proposed new access into the Chattooga Cliffs reach along the County Line Road is really an old logging road that leads from the Whiteside Cove Road down the county line between Macon and Jackson Counties (NC) to the Chattooga River between Grimshaws Bridge further up the Whiteside Cove Road, and Bull Pen Bridge on the Bull Pen Road about 6 miles below. This is not a designated trail. In fact, the Forest Service classifies it as a user-created trail. The method by which the Forest Service has chosen to create this new access along the County Line Road (technically, an unclassified road) to accommodate whitewater boating through the Chattooga Cliffs reach below the confluence of the Chattooga River and Norton Mill Creek, reveals the surreptitious nature of their plan to slip this new proposed access into the mix as an afterthought. The Environmental Assessment states that any proposed access for whitewater boating in the headwaters of the Chattooga River will be "designated trails" only. The Environmental Assessment states further that there will be "no net gain in parking capacity." Yet, their chosen alternative for allowing whitewater boating in the headwaters includes a recommended action to allow access to the Chattooga River at Norton Mill Creek above the Chattooga Cliffs reach via the County Line Trail, that is in blatant violation of their own stated ground rules to only recommend designated trails. Then, elsewhere in the Environmental Assessment, the Forest Service proposes that the agency's district office may propose a "reasonably foreseeable activity" in 2009 for the construction of a parking lot which was considered in the "cumulative effects" section of the Environmental Assessment. The Forest Service may have mentioned cumulative effects, but they certainly didn't consider and analyze any "foreseeable" cumulative effects. And to further "hide the pea," the Forest Service states in the Environmental Assessment that they will comply with the National Environmental Policy Act (NEPA) requirements to involve the public in the decision-making process for this likely future action at the district level, when the time comes. This whole deceptive mess is strictly illegal under NEPA, which forbids federal agencies from dividing projects into lesser segments that may not require an Environmental Assessment. Yet, the clear legal violation notwithstanding, this underhanded action is further indicted by the Nantahala National Forest's recently released schedule of proposed actions, which included a proposal to build a parking lot at the head of the County Line Road to provide access for whitewater boating, that was "categorically excluded" from an Environmental Assessment. The district ranger no doubt will argue, if he goes ahead with this proposal, that the cumulative effects were "tiered" to the Environmental Assessment for Management of Recreation Uses on the Upper Chattooga River. A careful look at this supposed cumulative effects analysis in this Environmental Assessment at hand would cause any reasonable person to conclude that, in fact, there is no analysis at all. The Forest Service saying they did it doesn't make it so.
Another problem with designating the County Line Road as a put-in for whitewater boating is that the Forest Service proposes that the boaters should follow the County Line Trail down to the Chattooga River Trail, then take a left and go 1/4 mile upstream to the confluence of the Chattooga River and Norton Mill Creek. This is a ridiculous example of people who pay consultants to push paper, rather than scouting the actual terrain involved. In this case, if a boater puts in at the confluence at Norton Mill Creek, he/she will paddle about 1/4 mile and run into a two-story log jam that stretches all the way across the Chattooga River. This is an automatic and dangerous portage. Boaters will not use this put-in many times before they decide to create another trail to access the river below this log jam. Thus, another user-created trail along a very steep slope will be created that will destroy vegetation and cause erosion and sedimentation. This and other user-created trails will undoubtedly cause irreparable harm to the Chattooga Cliffs reach and the large numbers of sensitive plant life that exist in its riparian zone. The Environmental Assessment documents this problem well on page 124 pertaining to effects on scenery; it states: "Though some portage trails would be identified and constructed to standard, other user-created trails will almost certainly occur within the riparian zone, on highly erodible soils and across steep slopes."
Furthermore, the decision to allow boating in the Chattooga Cliffs reach will cause irreparable harm to the wilderness experience for those that are more likely to seek solitude in this more remote reach of the river, if the decision stands to allow boating in this section with no restrictions on boater group numbers and group size. The Environmental Assessment found that with no restrictions on boater group size and number of boaters per group that, "Since there are no restrictions on maximum number of user groups per day, river encounter goals may be exceeded fairly quickly in the Chattooga Cliffs, Ellicott Rock and Rock Gorge reaches due to the introduction of boating." The Forest Service will no doubt explain their way out of this dilemma by falling back on the "adaptive management" argument, better known as "we will ignore the problem now and fix it later." Anyone who ever has either worked for or studied the Forest Service (as I have) knows the time honored axiom: "Once they get it, we will never get it back." If the Forest Service knows that solitude will be harmed by allowing boating without the aforementioned restrictions, in one of the last remaining places that this potential experience exists, this is certainly a violation of both the Wild and Scenic Rivers Act and the Wilderness Act, which both require the Forest Service to protect the values of wildness and the experience of solitude in both the Chattooga National Wild and Scenic River Corridor and the Ellicott Rock Wilderness.
Another disturbing problem with the Environmental Assessment involves the issue of how the Forest Service will decide what to do with user-created trails such as the County Line Road. The document states that certain criteria will be developed to decide which user-created trails to keep, and which to obliterate. Yet, nowhere in the Environmental Assessment states the criteria to consider when recommending the County Line Road for accessing the Chattooga River for whitewater boating, that is in essence a defacto "designation" of this user-created trail, while the Environmental Assessment states that it will only recommend designated trails. This problem is highlighted again in the Environmental Assessment on page 105, which acknowledges that none of the 3 forest plans emphasize a trail system that is designed to enhance solitude, and that "user-created trails exist and may expand which could be incompatible with sections of river classified as wild."
There is another, common-sense reason that the County Line Road access proposal should be dropped. The Chattooga Cliffs reach is steep, with near-vertical rock walls in narrow canyons in places. These places are prone to jam with logs and woody debris. The Chattooga Cliffs reach has the highest percentage of hemlock trees in the headwaters. Most of these old giants are dead or dying, and will probably choke this section with strainers in the next 10-15 years due to the constricted nature of the narrow, vertical rock walls and house-sized boulders in the Chattooga Cliffs section of river.
Given all these very important reasons for not risking irreparable harm by designating an access point and the proliferation of more user-created trails to the upper Chattooga along the County Line Road, that would surely destroy the solitude of one of the last remaining wild places on the Chattooga River and cause harm to some of the most rare and sensitive plants on the river, the Forest Service should withdraw this ill conceived, deceptive and illegal proposal, and allow boaters to put in 3 miles downstream at Bull Pen Bridge, where access already exists.
The Ban on Boating Between Burrells Ford and Highway 28 Bridge is Unfair and Biased
The Forest Service proposes to maintain the ban on whitewater boating between Burrells Ford and the Highway 28 Bridge in order to maintain a "high quality fishing experience," even with the same high water cut-off in place that was designed to limit encounters with river users in the wilderness section above where boating would be allowed. Yet, their own Environmental Assessment regarding this issue reveals that the only fishing that occurs in this reach when the water level reaches the trigger level for boating (at 450+ cubic feet per second [cfs]) is a minimal number of "bait" fishermen. This extremely small number of fishermen who fish with bait from the shore at this 450 cfs+ water level can be easily avoided without disturbance, and are the least likely user group to be there seeking solitude. Both of these observations are documented in the Environmental Assessment. It is clear that the Forest Service is seeking to continue the boater ban on this section without any reason other than they are closely allied with the fishing user group (namely Trout Unlimited) that partners with the Forest Service in managing this section of river for their almost exclusive use for stock trout fishing. This decision discriminates against whitewater boaters, since the Forest Service has concluded in the Environmental Assessment that a 450 cfs water level cut off will protect the wilderness experience, and reduce encounters with fishermen, in the section of river above. If this works in the wilderness, it will work in the section below Burrells Ford. If the Forest Service's argument is that the difference here is that this section requires a total ban to protect the experience for a minimal number of bait fishermen who could be easily avoided and who are not seeking a wilderness experience, then it is clearly an unbalanced decision based on a double standard. This is underscored by the fact that a completely different set of criteria were applied for the upstream reaches, in places like the Ellicott Rock Wilderness Area, where more clear examples of potential conflict were brushed off with future proposals for "mitigation" and "adaptive management." An agency that uses a hammer in one case and a velvet glove in another case is guilty of arbitrary and capricious management decisions, which are expressly prohibited under the Administrative Procedures Act.
Nonetheless, the discrimination charge does not end with recognition that it is unfair to totally ban whitewater boating below Burrells Ford to the Highway 28 Bridge with no good reason. American Whitewater argues that to accept some limitations to protect the wilderness experience without limiting other users above 450 cfs to protect the wilderness experience of paddlers is equally unfair. This is not the case. All other backcountry users permitted in these areas do not penetrate the remote backcountry in large enough numbers to significantly affect the wilderness experience because they must travel by foot, which limits the distance traveled. Therefore, their numbers are limited by the by mode of travel and access. Whitewater boaters' mode of travel allows them to penetrate deep into the backcountry in a short period of time. This means that on a boatable day, fairly large numbers of boaters could occupy the backcountry if they were not restricted by group and numbers within a group. American Whitewater argues that whitewater boating is a compatible craft in wild areas-but rightfully only if encounters are regulated. One could also argue that seasonal and water level restrictions would only allow a limited number of boaters within a season, and therefore would not amount to very many total encounters. However, on a given boatable day, a backcountry hiker or fisherman would suffer from a diminished wilderness experience because of the number of encounters that would likely occur due to the boaters' facilitated mode of travel and their unrestricted numbers. In this case, the so-called "right of the minority" as articulated by Bob Marshall (for example, in the book The Wilderness Original), which argues that a group of backcountry users are entitled to have a place set aside where they are able to enjoy a wilderness experience, especially when these opportunities become increasingly diminished, would apply. This certainly applies to the management of the Chattooga River, where backcountry experiences have become increasingly scarce because of increased access and increases in pressure from numerous user groups. To assure this "right of the minority," boating must be regulated in the upper Chattooga to preserve a wilderness experience that has become almost nonexistent in the Chattooga River corridor, except in the very headwaters of the river. This opportunity needs to be preserved, without also denying whitewater boaters the right to paddle appropriate designated sections. As articulated above, it is reasonable to designate this headwaters section as the stretch of the Chattooga from Burrells Ford to the Highway 28 Bridge, and limit restrictions are the only way this could be accomplished.
In closing, it is inexcusable that the Forest Service conducted their Environmental Assessment of the issues related to allowing whitewater boating on the upper Chattooga River on the back of so-called "expert" input from a chosen panel of whitewater boaters and fishermen, who were made up almost exclusively of the two special interest groups who have yet failed to yield to any reasonable solution to this question, based on fairness and adherence to the standards of guidelines of the federal laws aforementioned that were passed by the U. S. Congress to protect the outstandingly remarkable values of the Chattooga River. I would sincerely hope that the Forest Service, which has now spent close to $3 million on this sham, will realize that it has one more chance to accept our proposal for allowing restricted whitewater boating from Bull Pen Bridge to the Highway 28 Bridge, by limiting boater group size to 4 groups per day and a maximum of 6 boaters per group, at water levels above 450 cfs, for the entire year. We also assert that no boating should be allowed above Bull Pen Bridge because of the inevitable negative environmental impacts and the degradation of the wilderness experience that would result by creating a new access area onto the most remote and biologically sensitive section of the Chattooga River. I make these comments on behalf of the Chattooga Conservancy, and have full standing in this multi-year process. We are a non profit, 501c(3) organization with a mission to protect the outstandingly remarkable values of the Chattooga River watershed. We hopefully await your unbiased attention to our appeal.
Sincerely,
Buzz Williams, Executive Director
Chattooga Conservancy