II. WHERE ARE WE NOW?
As of September 1, 2011, the situation is as follows:
1.
The Programmatic Agreement has not been signed. The most recent version includes 2 items that it shouldn’t: the Area of Potential Effect (APE) should not include Wentworth Springs Road, which is a county maintained road that leads to the Rubicon Trail, and the PA should not include two private organizations (Rubicon Trail Foundation and Jeepers Jamboree, Inc.), who have not even been contacted about their inclusion. The currently proposed version of the PA appears to prevent construction of the Gerle Creek and Ellis Creek bridges until a final determination is made concerning the eligibility of the Rubicon Trail for the National Register of Historic Places, which may take years, and will surely cause the loss of the funding obtained for these bridges. It is not clear at this point what the effect of the PA will be, whether positive or negative, for any particular portion of the Rubicon Trail work. Unless and until this is clarified, the County is not inclined to sign the PA.
2.
It has been established that the ENF can issue approval to proceed documents without the PA having been signed. It has issued four such letters already.
3.
It has been established, and the ENF has agreed, that all BMPs described in the BMP toolbox, and delineated in the SSWQPP, constitute road maintenance as defined in the applicable federal laws and regulations, and are not road construction or reconstruction.
The work proposed for Wentworth Springs Road from Airport Flat to Wentworth Springs Campground is also road maintenance and is not road construction or reconstruction.
4.
The ENF has determined that there are no “extraordinary circumstances” that would prevent a Categorical Exemption from being used for the BMPs described in the SSWQPP on (a) Wentworth Springs Road from Airport Flat to Wentworth Springs Campground, or on (b) the Rubicon Trail from Walker Hill to Little Sluice, or in regard to (c) the maintenance of the existing BMPs installed in the summers of 2009 and 2010 on the Rubicon Trail from Wentworth Springs Campground to Walker Hill.
5.
The County’s planned road maintenance work on (a) Wentworth Springs Road from Airport Flat to Wentworth Springs Campground, and on (b) the Rubicon Trail from Walker Hill to Little Sluice, and (c) the maintenance of the existing BMPs installed in the summers of 2009 and 2010 on the Rubicon Trail from Wentworth Springs Campground to Walker Hill, are categorically exempt under NEPA, and do not involve any extraordinary circumstances, and therefore may proceed independent of the EIS for the FRTA easement.
6.
The County is currently approved to proceed with (a) its planned maintenance work in 2011 on Wentworth Springs Road from Airport Flat to the Wentworth Springs Campground, and with (b) its planned work installing BMPs in accord with the SSWQPP on the Rubicon Trail from Walker Hill to Little Sluice, and with (c) its planned maintenance of the BMPs installed last year on the Rubicon Trail from Wentworth Springs Campground to Walker Hill. The restriction to work only within the “traveled way” contained in the letters of August 22, 2011, is eliminated, and the County’s work is authorized within the “roadway” as defined in the diagram attached to those letters, which in a road section is from original ground on one side to original ground on the other, and includes the full road surface plus any berms, ditches, cut slopes or fill slopes. The ENF has also approved special item number 1 (sidecast work) and the one stockpile in special item 2 on Wentworth Springs Road.
7.
The County engineer provided a complete Operations and Maintenance Plans to the ENF engineer on August 31, 2011. ENF engineers will complete their analysis and finalize the O&M plans by September 1, 2011.
8.
The Notice of Intent (NOI) which the ENF indicated would be issued on August 26th, and which the Water Board ordered to be issued on that day, was completed on August 29, 2012, and has been sent for publication in the Federal Register. It is not known what effect this delay will have on all of the subsequent dates in the ENF schedule for its EIS.
9.
The ENF should adhere to the schedule for its NEPA analysis for the FRTA easement that it gave the Water Board on August 17, 2011. The County will request that any potential delay in adhering to that schedule will be immediately reported in writing to the County and to the Water Board.
10.
In regard to special item number 2, stockpiles, the one stockpile on the Airport Flat segment of Wentworth Springs Road near Rocky Basin Creek was the subject of a field visit by County and ENF engineers on August 25th and was approved in the Forest Supervisor letter of August 31, 2011. The five proposed stockpiles along the Rubicon
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Trail between Winter Camp and Rubicon Springs will be the subject of field visits by engineers during the week of August 29th, plus field review and analysis by ENF resource specialists. The ENF will endeavor to complete the task of reviewing and flagging acceptable stockpile sites in sufficient time during the fall of 2011 so that a helicopter lift of rock onto those stockpile sites can be accomplished this season. The ENF previously said it would give approval to proceed with the 5 stockpiles by September 2, 2011.
11.
Special item number 3, rock check crossings and rock outlet protection, particularly in the area of Winter Camp, will be the subject of field visits during September 12 - 16, 2011. All field work and analysis should be completed in a timely manner so that this work can be accomplished during the 2012 construction season. Approval to proceed must be received by the County by February, 2012.
12.
Special item number 4, replacement of the FOTR bridge, will be included in the EIS for the easement, which according to the ENF schedule is expected to be completed in April – August 2012. The individual grant for this bridge is scheduled to expire on August 31, 2012, so the current ENF schedule for the easement EIS potentially threatens the loss of funding for this project.
13.
ENF engineers will perform a field survey on September 22 and 23, 2011, of the Rubicon Trail from Little Sluice to Rubicon Springs for the BMP work delineated in the SSWQPP. ENF staff should then perform all other analyses necessary, and should give approval to proceed to the County in a timely manner so that the work can be accomplished during the 2012 construction season. Approval to proceed must be received by the County by February, 2012.
14.
The County’s maintenance work inside the Fawn Lake Inventoried Roadless Area (IRA), if any, will be evaluated by the ENF in the EIS. The County’s maintenance work outside the IRA would be field reviewed by the ENF resource specialists in October 2011. All analyses will be completed during the winter of 2011. Approval to proceed should be issued in a timely manner so that the work can be accomplished during the 2012 construction season. Approval to proceed must be received by the County by February, 2012.
15.
The CEQA analysis for the proposed bridge at Ellis Creek was completed in February 2011. The NEPA analysis was not completed because of a concern raised by SHPO. The ENF says NEPA on the bridge will be analyzed in the EIS for the FRTA easement. According to the schedule the ENF gave the Water Board on August 17th, the Record of Decision (ROD) for the FRTA easement EIS will be issued on April 18, 2012. At the Water Board meeting of August 17, 2011, Regional Engineer Earl Applecamp noted that it would typically take up to a year after the ROD is issued for the ENF to actually record a conveyance of the easement, and suggested that some interim documentation could be executed immediately upon issuance of the ROD that would allow construction of the bridge to begin before the formal conveyance is eventually recorded. Perhaps a right-of-way certificate and a special use permit would suffice. The ENF should advise what documentation will be issued at the time of the ROD that would allow construction of the bridge to commence during the 2012 season so that the funding can be preserved. Another issue is that the currently proposed PA appears to prevent construction of the bridge until a final determination is made concerning the eligibility of the Rubicon Trail
for the National Register of Historic Places, which may take years. This delay also has the potential to cause the loss of the funding previously obtained for this bridge.
16.
The proposed Gerle Creek bridge is on a county-maintained road on private property. The NEPA/CEQA analysis was certified as complete in February, 2011. The ENF should confirm that no approval or permit of any kind is required from the ENF in order for the County to construct this bridge, which is currently planned for summer 2012. The Army Corps of Engineers is currently saying it will not issue a §404 permit on the ground that it must re-review the historic aspects of the bridge in relation to the Rubicon Trail. The currently proposed PA appears to prevent construction of this bridge until a final determination is made concerning the eligibility of the Rubicon Trail for the National Register of Historic Places, which may take years, and this delay appears likely to cause the loss of the funding obtained for this bridge.
17.
The ENF advised the County of its plan to acquire 166 acres of land along Wentworth Springs Road in the vicinity of Rocky Basin Creek. A concrete bridge built in 1937 crosses Rocky Basin Creek on this property. The County will request all documents concerning this proposal that currently exist, and will ask the ENF to keep the County apprised of all events related to this proposed acquisition and provide all documents generated in the future concerning this proposed acquisition. The ENF should confirm the preexisting road right of way held by the county, and confirm that this right of way will be preserved after the ENF takes title. 11-
