Full opinion text
ORDER ERICKSON, United States Magistrate Judge. This action seeks judicial review of Forest Service projects on the Clearwater National Forest under the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), a court-approved settlement agreement outlined in the Stipulation of Dismissal of The Wilderness Society v. Robertson, No. 93-0043-S-HLR (D.Idaho 1993) (referred to by the parties as the “TWS Settlement”), and the Clean Water Act (CWA). Further, the Plaintiffs request costs and attorney fees under the Equal Access to Justice Act regarding these claims. The parties have consented to the jurisdiction of the magistrate judge for these proceedings pursuant to 28 U.S.C. § 636(c). Pending before the Court are a number of motions. The motions have been fully briefed, deemed submitted, and heard at oral argument. The Court being informed now enters the following order: 1. Plaintiffs’ motion is GRANTED and Defendants’ cross-motion is DENIED for partial summary judgment on Old Growth Violations regarding the 10% standard. Plaintiffs’ motion is DENIED and Defendants’ cross-motion is GRANTED for partial summary judgment regarding Old Growth violations regarding the 5% standard. 2. Plaintiffs’ Motion for Partial Summary Judgment regarding Monitoring Violations is DENIED. 3. Plaintiffs’ and Defendants’ motion for partial summary judgment regarding the Fish Bate Projects are GRANTED IN PART and DENIED IN PART as more fully set forth herein. 4. Plaintiffs’ Motions to Strike Reply Declarations or for Leave to File Surreply on Fish Bate Motions is DENIED. 5. Intervener Associated Logging Contractors’ Motion for Partial Summary Judgment on the TWS Settlement is GRANTED IN FAVOR OF PLAINTIFFS AND DEFENDANTS. 6. Defendants’ Motion for Summary Judgment on all remaining claims is DENIED. 1. BACKGROUND The Clearwater National Forest encompasses approximately 1.8 million acres of mountainous federal land in north-central Idaho. The focus of this action is primarily on two forest-management project decisions named after the watersheds in which they occur; the Fish Bate Salvage (Fish Bate) project and the White Pine Creek (White Pine) project. The Fish Bate project area lies to the south and west of a bend in the North Fork of the Clearwater River above Dworshak Reservoir, and in-eludes the watersheds of Fish and Bates Creeks among others. (Administrative Record (AR) Fish Bate, Vol. 11, Doc. 25.) This project is in a landscape managed entirely by the Forest Service. The White Pine project is in a landscape composed of federal, state and private lands. The project area is located within Latah and Bene-wah Counties in Idaho. Proposed activities would occur primarily within the White Pine Creek and Blakés Fork Creek tributaries of Meadow Creek, which flows into the upper Palouse River. Limited activity would also take place in upper Hangman Creek, which drains into the Spokane River. (AR White Pine, Yol. 4, Doc. 5.) Specific facts concerning the projects will be discussed as relevant to each motion. II. STANDARD OF REVIEW A. ADMINISTRATIVE PROCEDURE ACT Plaintiffs seek relief under the Administrative Procedure Act (APA), which permits judicial review of final actions of agencies of the United States. The APA imposes a narrow and highly deferential standard of review. Pertinent to this action, the Court’s review is limited to a determination of whether the agency acted in a manner that was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1994). The party challenging the agency action has the burden of showing there is not “a rational connection between the facts found and the choice made” or that there was a clear error in judgment based on the relevant factors. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). An agency’s decision is arbitrary and capricious if the agency, inter alia, has “entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency .... ” Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856. “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Volpe, 401 U.S. at 416, 91 S.Ct. 814. In making a determination under the arbitrary and capricious standard of the APA, a court is to “review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706 (1994). Thus, the scope of such a review is necessarily limited to the administrative record before the decision-maker and placed before the reviewing court. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); See also Friends of the Earth v. Hintz, 800 F.2d 822, 828-9 (9th Cir.1986). In applying this standard, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Moreover, the focus of judicial review under the APA must be upon the record before the agency at the time it made its decision, and not upon subsequent events or rationales after the fact. Volpe, 401 U.S. at 419-21, 91 S.Ct. 814; Asarco, Inc. v. United States Envtl. Protection Agency, 616 F.2d 1153, 1159-60 (9th Cir.1980); Alvarado Community Hosp. v. Shalala, 155 F.3d 1115, 1124 (9th Cir.1998). The Ninth Circuit allows consideration of extra-record materials in four circumstances: (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, or (3) when supplementing the record is necessary to explain technical terms or complex subject matter, and (4) when the plaintiffs make a showing of agency bad faith. Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998)(internal quotes omitted). Such supplementation of the record should be a limited exception and the supplemental information viewed for its narrow purpose. Asarco, 616 F.2d. at 1159-60 (9th Cir.1980) (“When a reviewing court considers evidence that was not before the agency, it inevitably leads the reviewing court to substitute its judgment for that of the agency.”). And finally, “[w]hen specialists express conflicting views, an agency [has] the discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.1992)(citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). B. SUMMARY JUDGMENT Disposition on the merits by way of summary judgment is appropriate where no genuine issues of material fact exist, and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To defeat a motion for summary judgment, the nonmoving party must set forth specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Supreme Court has made clear that summary judgment is the principal tool for eliminating factually and legally insufficient claims. It is “an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex, 477 U.S. at 327, 106 S.Ct. 2548. Summary judgment is a particularly appropriate means of resolving claims against forest management decisions by the U.S. Forest Service. Resources Ltd. v. Robertson, 789 F.Supp. 1529, 1534 (D.Mont.1991), affirmed in part and reversed in part, 35 F.3d 1300 (9th Cir.1993). Further, summary judgment is appropriate in cases raising the issue of whether an agency’s NEPA documentation sufficiently explains the environmental consequences of the agency’s proposed action. Resources Ltd., 789 F.Supp. at 1534. There are no material facts essential to the Court’s resolution of this action because the basis for the Court’s review is the agency’s administrative record, and the Court need not, indeed, may not, “find” underlying facts. Rather, the issues presented here are issues of law and, as such, are appropriate for resolution by summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883-884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). III. CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT REGARDING OLD GROWTH VIOLATIONS A. THE NATIONAL FOREST MANAGEMENT ACT The National Forest Management Act (NFMA) is the principal statute governing administration of the National Forests. It imposes numerous substantive management requirements, as well a two-step planning process to develop forest-specific management provisions. See 16 U.S.C. §§ 1600 et seq.; Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 728, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998); Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1153 (9th Cir.1998); Inland Empire Public Lands Council v. USFS, 88 F.3d 754, 757 (9th Cir.1996) (all discussing NFMA and its forest planning requirements). For each of the units of the National Forest System, the NFMA requires the Secretary of Agriculture to “develop, maintain, and, as appropriate, revise land and resource management plans.... ” 16 U.S.C. § 1604(a) (1994). The Clearwater Land and Resource Management Plan (Forest Plan) was adopted with the signing of the Forest Plan Record of Decision (ROD) in September 1987. (AR Programmatic, Vol. 1, Doc. 1 & 2.) The Forest Plan includes forest-wide standards applicable to the federal land administered by the Clearwater National Forest. (Id. at Doc. 2, p. 20-40.) NFMA requires that all timber contracts and other resource management “plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.” 16 U.S.C. § 1604(i) (1994). Therefore, site-specific projects must “be consistent with the land resource management plan of the entire forest.” Neighbors of Cuddy Mountain v. USES, 137 F.3d 1872, 1377 (9th Cir.1998); See also Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1070 (9th Cir.1998); Sierra Club v. Martin, 168 F.3d 1, 4 (11th Cir.1999) (holding timber sales unlawful for lack of consistency with Forest Plans). Among its substantive requirements, NFMA provides that the Forest Service must “provide for diversity of plant and animal communities.” 16 U.S.C. § 1604(g)(3)(B) (1994). To ensure such diversity, the Forest Service has adopted regulations which require that: Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area. 36 C.F.R. § 219.19 (1999). B. THE CLEARWATER NATIONAL FOREST PLAN STANDARDS Chapter Two of the Clearwater Forest Plan adopted standards to guide future project development and implementation in compliance with NFMA’s requirements. The Forest Plan emphasized that these standards “should be considered as minimum requirements that must be met.” (AR Programmatic, Vol. 1, Doc. 2, p. 20.) The standards are divided by subject. “Wildlife and Fish” is one of the subjects. Two of the twelve standards for wildlife and fish are standards for old growth habitat which read as follows: (d) Provide for old-growth dependent wildlife species by: (1) Maintaining at least 10 percent of the Forest (including Selway-Bitter-root Wilderness) in old-growth habitat. (2) Selecting at least 5 percent of each approximate 10,000 acre watershed (timber compartment) or combination of smaller watersheds (subcompart-ments) within forested nonwilderness areas to manage as old-growth habitat. (AR Programmatic, Vol. 1, Doc. 2, p. 23.) The Forest Plan defines “old growth” for purposes of meeting these habitat standards as “a stand that is past full maturity and showing decay; the later stages of Forest succession.” (AR Programmatic, Vol. 1, Doc. 2, App. H-1.) The Forest Plan also contains guidelines for the identification of old growth habitat that meets this definition, under which “stands must meet most of [eight] requirements to be considered old growth.” However, stands need not meet all the requirements to be considered old growth. The guidelines also contain ten criteria for the management of old growth habitat. The Clearwater National Forest has recently followed a refinement of the Forest Plan definition of old growth habitat, known as the “North Idaho Old Growth” definition. (AR Programmatic, Vol. VII, Doc. 53.) C. THE PARTIES’POSITIONS Plaintiffs’ Old Growth motion alleges that the Forest Service is violating the NFMA “consistency” requiremént, because the Clearwater National Forest is allegedly failing to adhere to Forest Plan standards for old growth habitat. Specifically, Plaintiffs allege the old growth status reports which are used to verify the Forest is meeting the 10% standard fail to account for errors found during field verification and other classification errors. Plaintiffs assert that reliance on these reports is arbitrary and capricious under the APA because projects approved based on the results of these status reports are therefore not consistent with the 10% standard in the Forest Plan. Defendants contend that Plaintiffs may not bring “generalized” challenges to the Forest Service’s alleged failure to meet Forest Plan requirements. Defendants further contend that they are entitled to rely on the opinions of their experts and that the status reports serve as a reasonable basis upon which to determine that the Clearwater Forest is meeting the 10% standard. Finally, Defendants assert that the status reports show the Clearwater National Forest is meeting the 10% standard for old growth. D. ANALYSIS 1. FINAL AGENCY ACTION The U.S. Supreme Court and the U.S. Courts of Appeal have made clear in several recent decisions that challenges to the Forest Service’s alleged failure to meet forest-wide standards or requirements may be brought within the context of site-specific claims. “Any such ... challenge might also include a challenge to the law-fullness of the present Plan (but only if) the present Plan then matters, i.e., if the Plan plays a causal role with respect to the future, then-imminent, harm .... ” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 734-37, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998); Wilderness Society v. Thomas, 188 F.3d 1130 (9th Cir.1999); Sierra Club v. Peterson, 185 F.3d 349 (5th Cir.1999). In Wilderness Society, for example, the Ninth Circuit followed Ohio Forestry in rejecting, as nonjusticiable, a generalized claim that the Prescott Forest Plan was adopted in violation of NFMA requirements concerning grazing suitability; yet the Ninth Circuit nevertheless addressed the same claims brought as part of the plaintiffs’ challenges to specific allotment grazing decisions. See 188 F.3d at 1133-35. Similarly, in Ecology Center v. USFS, 192 F.3d 922 (9th Cir.1999), the Ninth Circuit affirmed a decision of this Court which held that forest plan “failure to monitor” claims were not justiciable, when brought on a forest-wide basis without challenging any specific final agency action. By contrast, the Ninth Circuit and other courts have resolved similar “failure to monitor” claims when brought within the context of challenges to specific timber sale decisions. See Inland Empire Public Lands Council v. USFS, 88 F.3d 754 (9th Cir.1996); Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999); Sierra Club v. Peterson, 185 F.3d 349 (5th Cir.1999). In accord with the foregoing, to the extent Plaintiffs’ motion is directed generally at the Clearwater National Forest, its motion is denied. To the extent Plaintiffs’ motion is directed at particular final agency action, the Court may properly consider forest-wide standards within the context of Plaintiffs’ challenges to those actions. Here, Defendants do not dispute that the Fish Bate and White Pine sales are properly before the Court on this motion. Therefore, in alleging that the Forest Service violated the Forest Plan’s forest-wide standards for old growth habitat when the Fish Bate and White Pine projects were approved, Plaintiffs have properly identified site-specific final agency action which permits consideration of the forest-wide standards. Accordingly, as to these projects, Plaintiffs’ claims are ripe and justiciable by the Court. 2. THE 10% STANDARD AND THE FISH BATE PROJECT The Fish Bate Final Environmental Impact Statement (FEIS) relied on the August 1995 Old Growth Report issued by the Clearwater National Forest to determine that the proposed old growth logging would be consistent with the Clearwater Forest Plan’s 10% old growth habitat standard. (Fish Bate FEIS, AR Fish Bate, Vol. 11, Doc. 25, p. 97.) The FEIS stated: A comprehensive and detailed assessment of the current amount and distribution of old growth habitat on the Clearwater National Forest was conducted in winter 1992 and updated in August 1995. This analysis was performed to determine if the Forest Plan standards for old growth management were being met. The 1995 updated old growth status report shows that a sufficient amount of old growth habitat has been identified forest-wide to meet the Forest Plan standard of 10 percent. Id. Both the 1992 Old Growth Status Report and the August 1995 updated report have been submitted with the Administrative Record filed by Defendants. (ÁR Programmatic, Vol. 7, Docs. 52 & 46.) Those reports contain district-by-district assessments of the acreage of old growth habitat believed to be present on each district. The old growth acreage reported for each district is broken down into three categories in the 1995 report: “field verified” old growth, “tentatively identified” old growth, and NEPA Designated old growth. The August 1995 Old Growth Report lists 183,104 total acres of old growth habitat (including the Selway-Bitterroot Wilderness), comprising 10.8% of the Clear-water National Forest. Of this total, 7,503 acres are “field verified” (4.1%), 162,159 acres are “tentatively identified”, (88.6%) and 13,422 are “NEPA Designated Old Growth” (7.3%). (AR Programmatic, Vol. 7, Doc. 46, p. 6.) Plaintiffs challenge Forest Service reliance on the August 1995 Old Growth Report in approving the Fish Bate sale, arguing that the Forest Service should have reduced the estimated old growth figures in the report to account for the results of field inspections of “tentatively identified” old growth stands. Plaintiffs point to field verification results reported by Clearwater National Forest biologists prior to the August 1995 report, which found that “tentatively identified” old growth estimates overstated actual old growth habitat by significant amounts. As stated in one analysis: On average, about 50% of what is tentatively identified as old growth forest is determined to be old growth following field verification. It is clear that not all of the tentatively identified old growth in the analysis area would be considered old growth if it were field checked. Based on the best information available to date, it is reasonable to estimate that 50% of what has been tentatively identified as old growth may not meet the criteria in Appendix H of the Forest Plan and supplemented with the more refined definitions found in Old-Growth Forest Types of the Northern Region (Green et al.1992). Decision Notice, Crooked Fork Environmental Analysis, p. 65 (1993). Plaintiffs allege that Clearwater National Forest staff generally recognized that an “old growth falldown” factor should be applied to “tentatively identified” old growth stands. The Plaintiffs also allege that the practice of accounting for differences between field verified and tentatively identified old growth was generally known by other agencies: We are concerned as to whether or not the forest is adequately maintaining Forest Plan Standards for old growth of 10% forest wide and that old growth habitat types are becoming increasingly fragmented within, the Clearwater Refu-gium Ecosystem. We do not agree with your assumption that the 10% standard is being maintained.... Field surveys performed by your agency have shown an average of only 50% of the tentatively identified old growth actually meeting old growth criteria. Letter from Herbert A. Pollard, Regional Supervisor, Idaho Fish & Game Dept, to Arthur S. Bourassa, District Ranger, Clearwater National Forest regarding the Fish Bate project (June 12, 1995)(AR Fish Bate, Vol. 6, Doc. 15, p. 59-60.) Plaintiffs contend that Forest Service failure to consider these field verification results or to apply an “old growth fall-down” factor to the tentatively identified old growth estimates in the August 1995 Old Growth Status Report is arbitrary and capricious. Plaintiffs argue that the August 1995 report thus inflates the actual old growth acreage reported on the Clear-water. Plaintiffs assert that if the “tentatively identified” old growth estimates were reduced to account for this practice, the total old growth habitat in the August 1995 report would fall significantly below the 10% forest-wide standard. Accordingly, Plaintiffs conclude the Fish Bate FEIS is arbitrary and capricious in relying on the August 1995 report to determine that logging of further old growth habitat will not violate the Forest Plan 10% standard. Plaintiffs argue that the old growth acreage in the status reports should be reduced for other reasons as well. Plaintiffs assert that 5903 acres are in stands less than 25 acres in size and are counted towards old growth in violation of the Forest Plan management guideline which designates a 25 acre minimum size and 80 acre preferred size for old growth stands. They assert that isolated old growth stands or stands laced with roads should not be counted because the edge effects create unsuitable habitat for old growth dependant species. Plaintiffs also note that the old growth includes 3670 acres of stands that have experienced complete past harvest and 6170 acres that have experienced partial past harvest. Plaintiffs assert that past harvest activities should disqualify a stand from consideration as old growth. The Defendants contend that they are entitled to rely on the opinions of their agency experts, that the 1995 Old Growth Status Report was compiled using their best information, that tentatively identified acres can result in an increase of old growth when field verified (as happened when the Fish Bate project was field verified), and that there is more than 10% old growth on the Clearwater National Forest. Defendants also argue that the 25 acre minimum stand size is discretionary because it is a guideline rather than a standard and that the decision to include stands that have experienced past harvest as old growth is also discretionary. Defendants’ briefings on the Old Growth motions assert that a subsequent old growth status report, issued by the Clearwater National Forest in October 1998, (AR Programmatic, Vol. 7, Doc. 54), reveals that the Forest Service is not violating the 10% old growth habitat standard because it now estimates that at least 11% of the Clearwater National Forest is old growth habitat. 3. CONCLUSION REGARDING THE 10% STANDARD Tentative is defined as “of the nature of an experiment or hypothesis ... provisional” or as “uncertain.” Webster’s 3rd New Int’l Dictionary 2357 (1986). As noted above, an agency acts in an arbitrary and capricious manner when it fails to consider a relevant factor or makes a “clear error in judgment.” Idaho Sporting Congress, 137 F.3d at 1149 (quoting Marsh, 490 U.S. at 378, 109 S.Ct. 1851). An action is arbitrary or capricious when an agency has “entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency .... ” Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. 2856. Finally, the focus of judicial review under the APA must be upon the record before the agency at the time it made its decision, and not upon subsequent events or rationales after the fact. After considering the arguments above, the Court concludes the old growth status reports do not provide sufficient foundation for the “tentatively identified” acres because of the variation found when stands are field verified. Using the tentatively identified acres as a hard number to meet the 10% standard runs counter to the evidence before the agency from the previously cited reports of Forest Service staff setting forth both the upward and downward departure which occurs when tentatively identified acres are subject to field verification. In fact, the evidence that actual acreage varies from tentatively identified acreage is undisputed by the parties and both parties cite variations finding less or more field verified old growth. Defendants themselves argue that the old growth database “is not a static document” but is “dynamic.” However, this Court cannot assume these variations up and down cited by the parties balance out each other. Rather, this Court’s only role is to review whether the agency properly considered a relevant factor. The 10% standard in the Forest Plan is a minimum, not an average. Therefore, the Defendants’ old growth status reports must account for the variation in tentatively identified acres in determining whether the 10% minimum standard is met. Defendants argue that the 1998 Old Growth Status Report accounts for the variation in tentatively identified acres and shows that the Clearwater Forest is meeting is 10% standard. However, the Court must consider the evidence before the agency at the time it made its decision and subsequent events or rationales after the fact should not be considered. First, the 1998 report, completed after this suit was filed, adds a new category of estimated old growth acreage entitled “TSMRS Stands,” which are not allocated to any district. There is no clear explanation why these 26,022 acres, derived from an existing database, were not previously included in the tentatively identified acres. This Court cannot consider after the fact rationalizations in reviewing agency action. Volpe, 401 U.S. at 419-21, 91 S.Ct. 814. More importantly, while increasing the amount of potential old growth, the new category again does not address the likely variation found if field verified. Defendants also point to the fact that other possible old growth stands are mentioned in the 1998 report but are not included in the tentatively identified stands because they require further evaluation. Defendants argue that this category of 90,118 acres accounts for variation in the tentatively identified acres because the stands meet initial screening criteria. However, again, Defendants do not dispute that the 10% standard is a minimum. Asking this Court to accept the use of additional newly identified stands that Defendants do not yet themselves consider old growth to account for the variation between field verified and tentatively identified old growth is a post hoc rationalization that this Court is not allowed to consider under the APA standard of review. Also, Defendants fail to address the possible variation in this class of stands as well, in determining whether or not the 10% minimum is met. Using databases to derive the tentatively identified acres for the status reports is nothing more than creating a model, which is a type of tool Defendants routinely use in their work. Here, field verification demonstrates the unreliability of the model. Because the 10% standard is a minimum, the Forest Service must account for the variation, the margin of error, in tentatively identified stands. Given the prevailing evidence that field tests more often than not result in a discounting of tentatively identified acres, Plaintiffs have met their burden of showing a relevant factor which Defendants failed to adequately consider in deciding that the 10% standard is met forest wide. Regarding the other arguments put forth by Plaintiffs concerning the amount of old growth in the status reports, the 25 acre minimum size requirement in the Forest Plan is a guideline and is therefore discretionary rather than mandatory. Miller v. United States, 163 F.3d 591, 594 n. 1 (9th Cir.1998). The decision to include acres that have experienced past harvest is also discretionary because this issue is not addressed anywhere in the Forest Plan. Defendants assert they only include stands under 25 acres that adjoin other stands and are, therefore, not isolated and that stands that have experienced past harvest are included only if the stand still meets old growth criteria. Therefore, Defendants have not abused their discretion on these issues. However, Defendants concede that the 1998 Old Growth Report wrongly included at least 5,481 acres of non-old growth stands due to various errors. Assuming these apparently longstanding errors existed in 1995, the 10.3% of old growth found in the 1995 report would be reduced below the required 10% minimum. Accordingly, the Court finds that the Forest Service reliance on the August 1995 Old Growth Report finding of 10.3% total old growth to determine that the Fish Bate project would not violate the Clear-water Forest Plan’s 10% old growth habitat standard was arbitrary and capricious, and must be set aside. Therefore, the Fish Bate FEIS and Record of Decision are reversed and remanded. E. THE 5% STANDARD Plaintiffs’ Old Growth motion further challenges the alleged failure of the Forest Service to meet the separate Forest Plan standard requiring that 5% of each approximately 10,000 acre compartment be managed as old growth habitat. Unlike the 10% standard, this standard does not require an inventory guarantee of 5% existing old growth in every Old Growth Analysis Unit (OGAU). Rather, the standard requires only that the Clearwater National Forest select 5% to manage as old growth habitat. The purpose of this standard is to ensure that old growth will be distributed across the Clearwater National Forest. (AR Programmatic, Vol. 1, Doc. 2, App. H-2.) There are no criteria for the selection of replacement old growth, however, as stated in the Administrative Record, [Ijntuitively, stands that would be designated as replacement would be ones that are: 1) the closest to meeting old growth definitions, 2) have not been nor will be significantly altered by management activities unless sufficient rationale and justification are documented to support the designation, and 3) within the scope and bounds of NEPA analysis. (AR Programmatic Vol. 7, Doc. 46, p. 3.) Therefore, under this standard, areas chosen for management as old growth habitat to meet the 5% standard may include areas currently not old growth but which have been set aside and will not be harvested in order to be managed as old growth. Defendants call these areas “replacement old growth.” The Clearwater National Forest has established 152 OGAU which are being managed so that 5% of each area is managed as old growth habitat. (AR Programmatic, Vol. 4, Doc. 12.) The Forest has identified 63 of the 152 OGAU that, as of March 1992, contained less than 5% old growth habitat. Consequently, the 5% standard and its purpose of ensuring that old growth is distributed across the Clear-water is not being met forest wide. However, the standard does ensure that a minimum of 5% of each OGAU will be set aside for old growth management during project planning and not harvested. The only question then is whether the White Pine and Fish Bate projects were approved in violation of this standard. The Court concludes they were not. 1. WHITE PINE Plaintiffs’ challenge to Forest Service compliance with the 5% standard in the White Pine project focuses on the merits of the stands selected for management as replacement old growth. In this project, the Forest Service designated two OGAU. According to the WTiite Pine FEIS, OGAU No. 2-2 has only 0.7% old growth habitat, and OGAU No. 2^4 has 4.5% old growth habitat. (AR White Pine, Vol. 4, p. HI-37.) The EIS thus concedes that “neither old growth compartment has sufficient old growth to meet the minimum five percent requirement.” Id. To address this deficiency in old growth habitat, the White Pine project Record of Decision designates approximately 1,080 acres of mature/late successional forest as replacement old growth in Compartment 2-2 resulting in 14.4% of the compartment being managed for old growth habitat. Likewise, the project designates approximately 1,115 acres in Compartment 2^4 as replacement old growth resulting in approximately 8.8% of the compartment being managed for old growth. (Id., ROD p. 27-28.) This designation exceeds the Forest Plan standard for replacement old growth. Plaintiffs challenge Forest Service reliance on replacement old growth in the White Pine project as being contrary to the Forest Plan. The Forest Plan guidelines state that: 7. For those 10,000 acre units without any old growth because of past fires or timber harvesting, select replacement stands. (AR Programmatic, Vol. 1 Doc. 2, App. H-2.) (emphasis added). Plaintiffs assert that the Forest Service does not have discretion under this guideline to select replacement old growth unless no old growth exists in a given OGAU. However, this criteria is a guideline, rather than a standard in the Forest Plan. Guidelines, unlike standards, are discretionary rather than mandatory. Miller v. United States, 163 F.3d 591, 594 n. 1 (9th Cir.1998). Therefore, the Forest Service has discretion to interpret this guideline in an appropriate manner which includes designating replacement old growth in those OGAU that have some, but less than 5%, old growth. Accordingly, the designation of replacement old growth here is not arbitrary and capricious. Plaintiffs further assert that the areas designated as replacement old growth are inferior to other possible areas which will be harvested in the Wtiite Pine project. ■ Plaintiffs argue that the replacement stands contain younger stands than the areas to be harvested and that the replacement stands will adjoin harvested areas. Plaintiffs also believe the areas to be harvested provide superior goshawk nesting territory to the areas selected. Based on these arguments, Plaintiffs believe that the replacement stands will not meet the needs of old growth dependent wildlife. However, “[w]hen specialists express conflicting views, an agency [has] the discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.1992) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). Therefore, because the Forest Service has designated replacement stands that contain mature/late successional forest which it believes are equal or superior to other possible stands, the Court finds that the White Pine project is not in violation of the 5% Forest Plan standard and that the Forest Service actions in this regard were not arbitrary under the APA. Because none of the remaining motions affect the White Pine sale, the project may proceed. 2. FISH BATE For the Fish Bate project, the Forest Service evaluated four OGAU, two within the project area and two outside the project area. (AR Fish Bate, Vol. 11, Doc. 26, p. 98.) Of these, the Deadhorse OGAU (OGAU No. 10) lacks sufficient old growth to meet the 5% standard. (Id. at 98.) This OGAU is outside the project area but borders on it. The Forest Service acknowledged the relevance of the Deadhorse OGAU to the proposed Fish Bate project by including it within the analysis of the Fish Bate project’s likely impact on old growth dependent species. (Id. at 86-92, 98.) Plaintiffs assert that because the Deadhorse OGAU fails to meet the 5% standard, the Fish Bate project is in violation of the Forest Plan. However, because this OGAU is not actually within the project, the project does not violate the 5% standard. Defendants included this OGAU for purposes of analysis of effects on species, such as the fisher, whose home ranges are larger than the project area. To hold the Fish Bate project in violation of the Forest Plan 5% standard because of this inclusion would eliminate the Defendants’ ability to analyze effects for species whose home ranges are large, such as wolf, lynx, and wolverine. This, again, is well within the discretion of the Defendants. Accordingly, Plaintiffs motion on this issue is denied. IV. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING MONITORING A. MANAGEMENT INDICATOR SPECIES IN NFMA AND THE FOREST PLAN To achieve its population viability requirement, NFMA provides for designation of “Management Indicator Species” in the forest plans, “because their population changes are believed to indicate the effects of management activities.” 36 C.F.R. § 219.19(a)(1) (1999). Section IV of the Clearwater Forest Plan adopted “Monitoring and Evaluation” requirements in order to “provide the information on the progress and results of implementing the Forest Plan to the decisionmaker and public.” (AR Programmatic Vol. 1, Doc. 2, p. IV-8.) The Forest Plan states that the “monitoring requirements for this Forest Plan are outlined in Table TV-1.” Table IV-1 is entitled “Forest Plan Monitoring Requirements — Action Plan.” It establishes that “Populations Trends of Indicator Species” are to be monitored, including for the designated old-growth Management Indicator Species of pileated woodpecker, goshawk, and pine marten; and that these monitoring results are to be reported every five years. (Id., p. IV-18 to IV-14.) B. THE PARTIES’POSITIONS The Plaintiffs allege that the Defendants failed to conduct the above required monitoring and, therefore, the Fish Bate and White Pine projects were approved in violation of and inconsistent with the above criteria from the Forest Plan. Defendants contend that Plaintiffs failed to exhaust administrative remedies regarding either project on this issue, that maintenance of the old growth standards discussed above can serve as a proxy for monitoring, that effects on management indicator species were studied for these projects, and that they also conduct various monitoring activities, including a contract with a university study. C.ANALYSIS In addition to the standards of review discussed at the outset, the scope of this Court’s review is further limited by the scope of issues that Plaintiffs raised in their administrative appeals of the challenged decisions. Section 10(c) of the APA requires exhaustion of all intra-agency appeals mandated either by statute or agency rule. 5 U.S.C. § 704 (1994). See Darby v. Cisneros, 509 U.S. 137, 146-47, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). The USDA Reorganization Act of 1994, § 212(e), provides that “a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction against-(1) the Secretary; (2) the Department; or (3) an agency, office, officer, or employee of the Department.” 7 U.S.C. § 6912(e) (1994). Finally, the regulations implementing 16 U.S.C. § 1612 (1994) provide that “it is the position of the Department of Agriculture that any filing for Federal judicial review of a decision subject to review under this part is premature and inappropriate unless the plaintiff has first sought to invoke and exhaust the procedures available under this part.” 36 C.F.R. § 215.20 (1999). Thus, the Forest Service appeal regulations at 36 C.F.R. § 215 provide for appeal of decision notices and require exhaustion of administrative appeals. 36 C.F.R. § 215.7 (1999). Under these regulations, an appellant must file a written appeal which provides sufficient written evidence and rationale to show why the decision should be remanded or reversed. 36 C.F.R. § 215.14(a) (1999). The appeal must identify the specific changes in the decision that the appellant seeks or portion of the decision to which the appellant objects. 36 C.F.R. § 215.14(b)(4) (1999). It must also state how the decision fails to consider comments previously provided and how the appellant believes the decision violates law, regulation or policy. 36 C.F.R. § 215.14(b)(5) (1999). The Third Circuit has recently interpreted these regulations to require that a complaint’s administrative appeal and federal claim: [M]ust be so similar that the district court can ascertain that the agency was on notice of, and had an opportunity to consider and decide, the same claims now raised in federal court. Kleissler v. USFS, 183 F.3d 196, 202 (1999). See also Oregon Natural Resources Council v. United States Forest Service, 834 F.2d 842, 847 (9th Cir.1987). In this case, the September 1997 administrative appeal by Plaintiffs Friends of the Clearwater et al. of the White Pine project decision raised four issues as follows: 1) NEPA 40 C.F.R. § 1502.14 (Alternatives); 2) Water Quality and Stipulated Agreement; 3) Forest Health/Purpose and Need; and 4) Old Growth. (AR White Pine, Vol. 12, Doc. 418.) Plaintiffs did incorporate past comments on the White Pine project which included the following comment: [T]he Forest Service must demonstrate that it can maintain old-growth associated MIS distributed in viable populations across, at a minimum, the Forest Service lands under its management authority. (AR White Pine, Vol. 5, Doc. 22, p. 2.) However, unlike their specific reference to the old growth standards in the Forest Plan, Plaintiffs did not cite as an issue the failure to monitor old growth dependent management indicator species (MIS) in violation of 36 C.F.R. § 219.19(a)(6) or in violation of Clearwater Forest Plan requirements. Similarly, in then.* administrative appeal of the Fish Bate Record of Decision, Plaintiffs did not raise the issue of population data as a requirement of 36 C.F.R. § 219.19(a)(6). (AR Fish Bate, Vol. 10, Doc. 24 p. 1-41.) Instead, the Plaintiffs’ appeal repeated the Ecology Center’s March, 1996 comments. These comments complained that the Forest Service ignored references to scientific studies concerning “the amount and quality of nesting and foraging habitat needed [to] maintain populations” of goshawks, that the EIS “says nothing about habitat quality,” and that the EIS had “nothing ... upon which to base a sound understanding of the likelihood of maintenance of goshawk populations within the analysis area .... ” (Id. at 18-20; AR Fish Bate, Doc. 17, p. 112.) Also, like the White Pine appeal, Plaintiffs cited the old growth Forest Plan standards, but did not cite the monitoring section of the Forest Plan. This failure to raise particular claims during the administrative process bars judicial review of those claims. Plaintiffs assert that their references to “population” concerns satisfies the regulation requiring exhaustion of administrative remedies. That because the old growth standards exist for the purpose of providing for the viability of species, Plaintiffs’ extensive concerns regarding old growth habitat implicitly include concerns regarding population viability. This in turn implies a concern regarding the population monitoring requirements in the Forest Plan. Further, the Forest Plan indicates monitoring is the method by which the effectiveness of the old growth habitat standards is to be measured. However, under the appeal regulations, the appellant must identify the specific changes in the decision that the appellant seeks and must also state how the appellant believes the decision violates law, regulation or policy. 36 C.F.R. § 216.14(b)(4) & (5) (1999). For the old growth issues, the Plaintiffs consistently cited the specific sections of the Forest Plan they believed were violated (the 10% and 5% standards). They did not cite the specific monitoring provisions in the regulations or in the Plan that are now at issue. Further, Plaintiffs never specifically requested a change in either project decision to monitor populations. Rather, Plaintiffs asserted that the Defendants have the duty to ensure species viability under their general NFMA duties. Because Plaintiffs’ monitoring motion is not “so similar” to its administrative appeal as to put the Defendants “on notice of,” and give them “an opportunity to consider and decide” the monitoring issue, Plaintiffs’ monitoring motion is dismissed without prejudice. V. CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT REGARDING FISH BATE: NEPA CLAIMS Plaintiffs’ motion for partial summary judgment on the Fish Bate project argues that the Fish Bate decision violates the National Environmental Policy Act (NEPA), the TWS Settlement agreement and the Clean Water Act (CWA). Plaintiffs NEPA claims will be considered first, followed by the TWS Settlement claims and then the CWA claims. Plaintiffs bring four NEPA claims, the first of which is a procedural argument. The remaining NEPA claims contest the adequacy of the Fish Bate FEIS. A. NEPA: SUPPLEMENTAL EIS 1. BACKGROUND The Fish Bate project has an unusual history in that after the project DEIS was issued in April 1995 as a normal NEPA project, the Defendants changed it to come under the Recissions Act passed by Congress in July 1995. Pub.L. No. 104-19, §§ 2001-2002, 109 Stat. 194, 240-47 (1995). This change from a normal NEPA project to a project under Pub.L. 104-19 allowed for increased discretion regarding sale preparation and allowed the project to proceed in an expedited manner without an administrative appeal. During this time the Defendants added Alternative 7 which expanded the timber volume of the sale. In January 1996, the FEIS was issued and in March 1996, the Record of Decision (ROD) chose Alternative 7. In July 1996, the Secretary of Agriculture issued a directive that Pub.L. 104-19 could not apply retroactively to certain types of pending projects which included the Fish Bate project. Therefore, the Fish Bate project ROD was withdrawn and reissued in January 1997. The new ROD again selected Alternative 7. Throughout this process, Plaintiffs submitted comments regarding the project to the Defendants. At the end of their appeal of the FEIS, Plaintiffs stated: [Tjhe Appellants have identified numerous deficiencies of the FEIS, and violations of law, regulation and Forest Service Policy. We request a full remand of the Fish Bate Salvage Record of Decision .... If the Clearwater contemplates further action in this area, ... we request that they write a new EIS that corrects the identified deficiencies and violations of law, regulation and Forest Service policy. (AR Fish Bate, Vol. 10, Doc. 24, p. 24.) Other comments by Plaintiffs include: “[Bjetween the draft and FEIS, the salvage rider was passed and a new alternative was inserted into Fish Bate. The new proposal jumped the harvest level up to an unbelievable 27.6 mmbf....We have several serious concerns about this sale.... [T]he public trust is being eroded.” (AR Fish Bate, Vol. 6, Doc. 16, p. 43.) 2. APPLICABLE LAW Procedurally, Plaintiffs contend that the Forest Service violated 40 C.F.R. § 1502.9(c)(1)(i) which states that an agency must issue a supplement to a draft or final EIS if the “agency makes substantial changes in the proposed action that are relevant to environmental concerns.” This regulation is intended to further the NEPA goal of informed agency action and, as such, insures both that substantial changes will receive adequate assessment of environmental impacts and that the public will receive adequate notice to comment on these substantial changes. See 40 C.F.R. §§ 1501.1, 1502.1, 1503.1 (1999); Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987). 3.THE PARTIES’POSITIONS Plaintiffs assert here that a supplemental EIS was required for the Fish Bate FEIS, after it reverted back to normal NEPA procedures, in order to provide adequate notice and comment procedures to the public on the expanded alternative. Plaintiffs base their argument on the fact that the project expanded from 5.8 million board feet (MMBF) to 27.6 MMBF while the project was exempt from normal procedures. Defendants contend that the increase in timber volume is misleading because over half of the increase is due to salvage timber rather than sawlogs. Defendants also argue that Plaintiffs and the public received an adequate notice and comment period on Alternative 7 because they told Plaintiffs the project would be expanded in May 1995 and because they extended the comment period on the FEIS in January 1996 after Alternative 7 was added. Defendants also argue that they determined a new EIS was not necessary because they believed that the FEIS adequately addressed all of the substantive comments from the Plaintiffs and other parties. Finally, Defendants assert that like the monitoring issue, Plaintiffs failed to exhaust administrative remedies. 4. EXHAUSTION OF ADMINISTRATIVE REMEDIES The standard here is the same as that discussed above for the monitoring issue. This Court must determine if this claim for a supplemental EIS was properly administratively appealed, such that it is “so similar” to the administrative appeal that Defendants were “on notice of,” and had “an opportunity to consider and decide” whether to issue a supplemental EIS. Here, like the monitoring issue, Plaintiffs did not specifically cite to the regulation requiring a supplemental EIS. However, unlike the monitoring issue, Plaintiffs clearly identified the change they sought when they specifically asked for a new EIS to be prepared. Plaintiffs also directly cited problems with Alternative 7 at least 16 times in their administrative appeal. Therefore, because the Defendants were on notice of Plaintiffs’ request for a new EIS and had an opportunity to decide whether to issue one, Plaintiffs properly exhausted the administrative appeals process on this issue. 5. SUPPLEMENTAL EIS The remaining question then is whether Defendants’ decision not to issue a supplemental EIS in order to provide for further public notice was arbitrary and capricious under the APA. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373-85, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The extended comment period on the FEIS that Defendants believe gave adequate notice to Plaintiffs was during the period of time that Plaintiffs believed the project fell under Pub.L. 104-19 (January 1996 to March 1996). Therefore, in making their comments the Plaintiffs believed the project would not be subject to administrative appeal and could only receive limited judicial review. After the project was removed from Pub.L. 104-19 status and the first ROD was withdrawn in July 1996, there is no clear explanation in the record as to the actual status of the project until the new ROD was issued in January 1997. Further, no public comment was taken between July 1996 and January 1997. Finally, the March 1996 ROD and the Jan. 1997 ROD are almost identical. It is plausible and reasonable for Plaintiffs to believe that the project would be reassessed after it was removed from 104-19 status since it had expanded in size and that they would have another opportunity to comment. It also plausible that Defendants believed that the process they had followed under Pub.L. 104-19 was adequate under normal procedures. The history of the process behind this project is certainly not the picture of clarity. However, under the APA standard of review, Defendants’ decision must be arbitrary or capricious. Because the Plaintiffs clearly were aware of the expanded size of the project and had an opportunity to comment on it before the first ROD, Defendants were not arbitrary or capricious in their decision not to issue a supplemental EIS as far as the notice and comment purposes of 40 C.F.R. § 1502.9(c). B. NEPA: APPLICABLE LAW FOR SUBSTANTIVE CLAIMS The Ninth Circuit has established a practical standard for reviewing environmental documents prepared pursuant to NEPA. This standard, described as a “rule of reason,” requires agencies to demonstrate “a reasonably thorough discussion of the significant aspects of the probable environmental consequences,” Swanson v. USFS, 87 F.3d 339, 343 (9th Cir.1996) (quoting Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987)). Under this standard, judicial review consists of insuring that the agency took a “hard look” at environmental consequences. Neighbors of Cuddy Mountain v. USFS, 137 F.3d 1372, 1376 (9th Cir.1998). However, “[t]his court need not ‘fly-speck’ the [NEPA] document and ‘hold it insufficient on the basis of inconsequential, technical deficiencies,’ ” Swanson, 87 F.3d at 343. This standard “guides both the choice of alternatives as well as the extent to which the Environmental Impact Statement must discuss each alternative.” City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir.1997). Finally, this standard is essentially a practical way of approaching the arbitrary and capricious standard discussed above. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 n. 23, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). C. NEPA: BACKGROUND FOR SUBSTANTIVE CLAIMS Under the TWS Settlement agreement, the Clearwater National Forest agreed to “proceed only with those projects that would result in no measurable increase in sediment production in drainages currently not meeting Forest Plan Standards.” (AR Programmatic Vol. 6, Doc. 24, p. 3.) The Defendants do not dispute that this constraint applies to Clearwater National Forest project decisions, including the Fish Bate project. (AR Fish Bate Vol. 11, Doc. 25, p. 21-22.) The physical attributes and project design of the Fish Bate project, considered within the context of the above constraint, give rise to the claims at issue here. The relevant features of the Fish Bate project are as follows: First, the area contains a large volume of dead and dying western white pine infected with an exotic pathogen known as white pine blister rust. (AR Fish Bate Vol. 11, Doc. 26, p. 85-86.) Second, this pathogen and others combined with sixty years of fire suppression have altered species composition and forest structural characteristics. (Id. at 82-88, 85, 107.) Third, the Fish Bate area is characterized by steep slopes that naturally exhibit a high potential for mass-wasting landslides and erosion. (Id. at 53.) More than 70 percent of the area has a high or very high potential for mass wasting landslides. (Id. at 54.) Due to the steep slopes of the area, more than 85% of the area may deliver sediment to streams with high or very high efficiency. (Id. at 55.) Timber harvest, road construction, high soil saturation and fire all have the potential to accelerate this mass-movement and sediment delivery. (Id. at 54, 57.) Fourth, the project area contains several streams which have been impacted by past harvest and road construction. Currently many streams do not meet Forest Plan standards. (Id. at 63-66, 78.) Fifth, approximately 44% of the analysis area has already received some type of harvest. (Id. at 84.) About 24% of the area was clearcut and the remaining portion was harvested with other techniques. (Id.) The area has a road density of about four miles per square mile due to these past activities. (Id. at 63-66.) And finally, in November 1995 and February 1996 the area suffered heavy rains and flooding. Due to the weather during that winter, over 900 mass wasting events occurred in the Clearwater National Forest. (AR Flood Vol. 2, Doc. 157, p. 12.) In the project area, many of the stream channels were scoured, roads received damage and a debris torrent occurred in Martin Creek. (AR Fish Bate Vol. 11, Doc. 25, p. 2.) This background provides the basis for Plaintiffs’ NEPA claims. Plaintiffs argue that the FEIS exaggerates the potential for increased sediment due to catastrophic fire risk, that the FEIS fails to assess whether the project will result in increased sediment to area streams due to landslides, and that the FEIS fails to adequately assess cumulative impacts. Defendants assert that the project was designed with this background in mind and that it will result in no net increase in sediment. Defendants rely on the “no increase in sediment” position in finding that the no action alternative poses a greater risk to streams due to catastrophic fire, that the project meets the TWS Settlement constraint, that the project complies with the Clean Water Act, that a supplemental EIS due to the recent flooding is not necessary, and that the project will have no cumulative water quality impacts with other management activities. Plaintiffs’ claims regarding fire risk are addressed first, followed by the landslide issue and the cumulative effects issue. D. FEIS ASSESSMENT OF FIRE RISK One of the main purposes of the Fish Bate project outlined in the EIS is to reduce the possibility of a stand replacing fire. (AR Fish Bate Vol. 11, Doc. 26, p. Summary-2.) Defendants note that the area is naturally subject to stand replacing fires every 150-500 years, depending on the forest type. (Id. at 107.) Due to the average age of the trees (171 years), the history of fire suppression and the white pine mortality from blister rust, Defendants believe that the possibility of a stand replacing fire is accelerated to the point that it is imminent. Defendants assert that the fuel load in the analysis area is so great that action is needed in order to prevent a stand replacing fire, what they term a “catastrophic event.” The FEIS describes this fire risk as an “80% chance of a large, stand replacing event in the next 50 years.” (Id. at p. 108.) Defendants further assert that if such an event occurs, sediment deposited into area streams would increase due to loss of vegetative cover and the creation of hydrophobic soil conditions. (Id. at 203.) Consequently, Defendants argue that the danger of doing nothing poses a greater threat to water quality from possible landslides than the potential for increased sediment from harvest or other management activities. This theory is given as the likely result in the “no action” alternative in the FEIS. (Id.) Plaintiffs’ first substantive NEPA argument claims that this “80% chance of [fire] in the next 50 years” statement is unsubstantiated by the administrative record. Plaintiffs believe the statement is therefore arbitrary and capricious and cannot be used to justify the management prescriptions in the Fish Bate decision. Defendants argue the statement is adequately supported by professional judgment and the Administrative Record. This dispute is unusual in that the environmental assessment of the no action alternative is at issue, rather than the environmental assessment of the action alternatives. It is also unusual in that the no action alternative supposes a greater environmental impact than the management alternatives. Regardless of this juxtaposition, the issue is still subject to “rule of reason” analysis as outlined above. After a careful rev