Council Communication          [Attachments]

Council Decision Regarding Administrative Appeal Process Concerning the US Forest Service Record of Decision (ROD) and Final Environmental Impact Statement (FEIS) for the Mt. Ashland Ski Area Expansion
Meeting Date:	October 19, 2004	00	Primary Staff Contact:	Paula Brown, 552-2411, brownp@ashland.or.us
Department:	Public Works		Secondary Staff Contact:	Mike Franell, 552-2090, franellm@ashland.or.us
Contributing Departments:	Legal, Finance, Fire
Approval:	Gino Grimaldi

Statement:

This item is presented to the City Council for a decision on whether or not to file an administrative appeal to the US Forest Service (FS) decision on the Mt. Ashland Ski Area Expansion. It will also provide a framework for the next steps the City could take should council decide not to appeal the FS decision. This item builds on the information discussed at the study session on October 6, 2004 (attached).

Background:

The Mount Ashland Ski Area (MASA) is a winter recreation area on Mt. Ashland in Federal FS lands, within the purview of the Rogue River-Siskiyou National Forest (RR-SNF). The ski area was constructed in 1963. The City holds a Special Use Permit for the ski area and leases the operation of the ski area to Mt Ashland Association (MAA). The City has had a long-standing relationship with the FS, dating back to the original 1929 agreement. The City's primary interest is that Mt. Ashland serves as the municipal watershed for the City's primary source of quality drinking water. Protection of the watershed is paramount for both the City and the Forest Service. The City has commented on several different processes regarding the ski area since the 1991 master plan decision to allow expansion within the ski area's special use permit sector. On September 13, 2004, the FS published the Record of Decision (ROD) for the most recent request for the Mt. Ashland Ski Area Expansion. The Final Environmental Impact Statement (FEIS) was issued concurrent with the ROD and documents the details of each of the alternatives considered for the expansion. In accordance with federal regulations, the FEIS is consistent with the National Environmental Protection Act (NEPA) and Congress' Council on Environmental Quality (CEQ) regulations. The City is not the decision maker for the Mt. Ashland Ski Expansion. As the federal lands manager, the Forest Service has the responsibility and obligation to analyze the proposed expansion to determine the appropriateness of authorizing the action. The City may accept the FS decision and continue to work with the RR-SNF and Mt Ashland Association (MAA) throughout the implementation stages, or the City may file an administrative appeal of the FS decision. The FS decision is subject to administrative appeal in accordance with the Code of Federal Regulations (36CFR Part 251 Subpart C). The City has 45 days, or until November 8, 2004, to file such appeal. If the City decides to appeal, the City's appeal must identify specific change(s) in the decision or specifics of the objection and the rational for those changes; identify any portion(s) of the decision with which the City disagrees and an explanation for the disagreement; and the appeal should state how the FS decision fails to consider substantive comments that were previously provided and, if applicable, how the City believes that the decision violates law, regulation or policy.

Related City Policies:

City of Ashland / Forest Service MOU (1929 to current) City of Ashland / Forest Service Special Use Permit City of Ashland / MAA Agreement City of Ashland Adoption of Valdez Principles City of Ashland 2004-2005 Budget (and future budget implications) City of Ashland Water Treatment Plant Operations Plan and Water Supply Analysis

Council Options:

The City may accept the FS decision and continue to work with the RR-SNF and MAA throughout the implementation stages, or the City may file an administrative appeal of the FS decision. If the Council chooses to move forward with the FS decision, it would be appropriate to develop a supplemental agreement or specific memorandum of understanding between the City and MAA to ensure enforcement of FS expectations. This is discussed in more detail in staff recommendations.

Staff Recommendation:

It is staff's opinion, based on the analysis presented in the FEIS and ROD, that the ski area expansion shows limited or no measurable impact to the watershed or to water quality if the construction activities are completed as anticipated in the documents. Construction includes appropriate mitigation measures, continual monitoring and corrective actions taken during and after construction. The FS' proposed watershed restoration projects are sound and will provide significant long-term environmental benefits to conditions at the ski area. It is staff's recommendation to move forward with the FS decision and ensure that the City provides the best counsel to both the FS and MAA through the implementation process to continue to protect water quality and water quantity. To continue to develop trust and a strong collaborative partnership between the FS, City and MAA, staff recommends developing a supplemental agreement or specific memorandum of understanding between the City and MAA to ensure enforcement of FS expectations for the following actions: 1. Although the FS declined to require a QA/QC Team as a separate or additional decision making body, both the FS and MAA are accepting of the concept and are very receptive to a combined evaluation and recommendation process. The FS implies that the City, as the SUP permit holder, will have the ultimate responsibility for environmental consequences, and as such should empower MAA to provide those assurances. Staff recommends that the QA/QC Team be hired primarily to protect water quality/quantity impacts to the City's primary drinking water source within the watershed. The details concerning the QA/QC Team would include: a. the relationship between MAA and the City with regard to the QA/QC Team b. selection of the QA/QC Team c. the requirement to pay for the QA/QC Team d. specific expectations and responsibilities of the QA/QC Team e. the relationship and authority over the construction contractors f. the ability to suggest and implement more stringent requirements than those specifically identified and required by the FS to better protect water quality and quantity g. assurance that the required mitigation measures and monitoring requirements are in place and working (including specific corrective actions if necessary) 2. Staff further recommends that we continue to be a part of the MAA ski area expansion design review, construction monitoring and evaluation of mitigation measures to specifically ensure protection of the water quality and water quantity elements of the watershed. 3. The ongoing valuation of the ski area assets beyond cash and investments for liquidity will remain an issue for the life of the MAA agreement. Staff recommends that an agreement be developed establishing a total reclamation value in current (2004) dollars. MAA agrees to a review by the City before any borrowing is done that pledges MAA assets as collateral. Further, it is recommended that MAA's auditor annually report to the City the following: a. Percentage of expansion that is completed and the estimated amount of total reclamation costs. b. That no new or additional reclamation exposure has been created through new construction, changes in the expansion or operations. c. That a valuation of net assets has been done and sufficient "liquid" assets are held by MAA to pay for the current estimate of reclamation costs. d. That no financing or other obligation has been done by MAA that encumbers the net assets considered liquid to pay for reclamation costs. Staff's proposed next steps are to develop the decision points that were described for the QA/QC Team in collaboration with the FS and MAA. This would be brought back to Council in the late winter / early spring for discussion on staff's process. At that point, staff would hope to have a draft supplemental agreement or MOU that could be implemented in the late spring of 2005. Staff respects the process that MAA must go though to complete the design of the proposed expansion and meet their goal of financial stability and yet ensure that the construction will get done in a way that meets the FS requirements and is environmentally responsible. It is staff's goal to support that process with the development of the QA/QC team and any supplemental agreements between the City and MAA.

Potential Motions:

Staff suggests the following motions for Council consideration: 1. That Council not appeal the FS decision and continue to support staff efforts and recommendations through the implementation process. 2. That Council opposes the Forest Service decision and has a consultant prepare a formal administrative appeal.

Attachments: 1. Mt Ashland Association memo to City Council dated October 13, 2004 (added at MAA request) 2. Council Communication of October 6, 2004: Study Session - Mt Ashland Record of Decision (ROD) and Final Environmental Impact Statement (FEIS)Discussion with attachments: •  Additional Background Information (continuation of staff report) ROD Decision Map - Modified Alternative 2 City of Ashland letter to John Schuyler, USFS, of October 16, 2003 City of Ashland letter to John Schuyler, USFS, of October 22, 2003 Additional Comments from Kate Jackson 2003 Resolution No. 2003-33 Amendments to DEIS Comments