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Forest Roads Working Group Comments on Roadless Issue
FOREST ROADS WORKING GROUP
Wildlife Forever Wildlife Management Institute
The Wildlife Society Trout Unlimited
Izaak Walton League of America International Paper
Outdoor Industry Association Pinchot Institute for Conservation
November 12, 2004
Dale N. Bosworth
Chief, United States Forest Service
U.S. Department of Agriculture
1400 independence Avenue, S.W.
Washington, D.C. 20250
Dear Chief Bosworth:
The Forest Roads Working Group (FRWG) submits these comments on the USDA Forest Service notice of proposed rulemaking (NPR) concerning protection of inventoried roadless areas (IRAs) that was published on July 16, 2004. 69 Fed. Reg. 42636. The FRWG is an ad hoc coalition comprised of organizations that collectively represent conservationists, sportspersons, members of the forest products industry and outdoor recreation businesses that support the protection of roadless areas of the National Forest System.
Despite the long-running controversy surrounding this issue, the FRWG believes it is possible to protect IRAs in a manner that is acceptable to a diverse array of interested stakeholders. To that end, the FRWG asked the Meridian Institute to convene and facilitate a Multi-Stakeholder Dialogue -- a process you and your staff observed -- on December 3-4, 2002. Through the purposeful and focused exchange of information and perspectives that took place at the dialogue, the FRWG developed a deeper understanding of the underlying interests and concerns of principal stakeholder groups, and identified key issues related to roadless areas and their values and characteristics.
With the benefit of this constructive dialogue, in March, 2003, the FRWG submitted recommendations to the Forest Service regarding the management and conservation of IRAs of the National Forest System. These recommendations were based on nearly two years of deliberations by the FRWG, and were informed by the range of views expressed by a diverse group of interested stakeholders. The key recommendations are:
The existing Roadless Area Conservation Rule (RACR) provides an acceptable basis for national management of IRAs and should continue to be implemented.
After a several-year period of gaining experience through implementation of the RACR, exceptions to the RACR’s prohibitions could be considered, as necessary, for legitimate forest health maintenance activities, such as fish and wildlife habitat management and hazardous fuel reductions.
Recreational vehicle use should be better managed to reduce impacts to IRAs.
The Forest Service should establish a formal advisory group and deliberative process in order to consider guidance for implementation of, and if necessary improvements to, the RACR.
The FRWG continues to believe these recommendations provide a sensible and logical way to protect roadless areas and the exceptional fish, wildlife, and water values they represent, and to provide certainty and stability in the management of roadless areas.
The NPR fails to accomplish these important objectives. Asking Governors to make suggestions for roadless area management that the Forest Service might accept, reject or modify merely shifts responsibility for leadership without any predictability or certainty that IRAs will receive a level of protection that comports with the Service’s stated goals. The NPR provides no clearly defined, protective sideboards to ensure actual protection of roadless areas pursuant to any State-specific rulemaking, and it lacks any mechanism to assert federal leadership, either during the 18-month period for development of the Governors’ petitions, or thereafter in those States for which no petition is forthcoming.
With these general observations in mind, we offer the following comments on the NPR. First, we comment on two aspects of roadless area management – (i) restrictions on the use of motorized recreational vehicles in IRAs, and (ii) the need for an ongoing, structured process for stakeholder involvement -- that should be pursued by the Service regardless of whether it proceeds to finalize its proposal to consider petitions for rulemaking from the Governors. Next, we provide our recommendations for strengthening the proposed rule in the event the Service decides to finalize its proposal. Finally, we offer our thoughts on an alternative approach to managing roadless areas on a National basis without any State-specific rulemaking.
I. Use of Recreational Vehicles
As noted above, the FRWG’s recommendations of March, 2003, urged the Forest Service to develop a policy to ensure that legitimate recreational use of motorized vehicles is limited to designated roads, trails and areas. With respect to roadless areas, we specifically recommended that: (1) where off-road motorized access presently is prohibited, such prohibitions should remain in place and be enforced; and (2) where access presently is permitted, it should be allowed to continue unless changed in the next forest plan amendment or revision, at which time an explicit decision should be made relative to off-road motorized access, which should be guided by the following policies:
Off-road vehicle use may occur in roadless areas only during specified seasons and on designated trails; and
Seasonal and trail designations should be made only after a finding that such use will not jeopardize the social and ecological values of roadless areas.
We continue to believe this approach is needed. Protection of roadless area values and characteristics requires the proper administration and management of recreational use in roadless areas. Taking recreational vehicles off trail can damage soils and degrade water quality by creating ruts and erosion pathways into streams and other water bodies. It can lead to the proliferation of trails that have not been specifically authorized by forest managers. Human use and new technologies allow for the transportation of noxious and invasive plant species into remote landscapes. Improper use or cumulative impacts can lead to wildlife harassment and disturbance, habitat fragmentation and alteration. Additionally, as a potentially significant source of air and noise pollution, off road vehicles can compromise these roadless area values and characteristics. Regardless of whether the approach set forth in the NPR is finalized, we urge the Service to implement these measures broadly for roadless areas.
In this context, we salute the Forest Service for addressing this growing issue through a separate rulemaking process. The increased use of a wide variety of OHVs is creating conflict among forest users and is negatively impacting fish and wildlife habitats in many situations. It is important that the policy on OHV use on Forest System Lands be consistent, designed to protect and sustain important resources, and yet structured to provide for maintaining quality of the recreation experience in the national forests and grasslands. It also is necessary that rules adopted be enforceable and supported with sufficient implementation resources. The FRWG strongly supports the proposed policy of “closed unless posted open” as opposed to the “open unless posted closed” regulation common today. In addition, establishment and identification of a transportation system and atlas for motor vehicles across the National Forest System will strengthen the ability of the Forest Service to manage OHV use, protect valuable resources, and reduce conflicts among forest users.
II. Stakeholder and Public Involvement
We appreciate the Forest Service’s proposal to move forward with the FRWG’s recommendation to establish a National Advisory Committee. Within the context of the petition process set forth in the NPR, an Advisory Committee would strengthen significantly the ability of interested stakeholders to work collaboratively with the Service, with the States, and with each other. An Advisory Committee would increase the prospects of developing credible, balanced and effective regulations to protect roadless areas. Indeed, we believe that any petitions advanced by the States should be judged, in part, on the quality of the State’s public participation process leading to development of the petition.
To be successful, the Committee must be capable of ensuring that decisions are based upon accepted factual premises and informed by consideration of opposing stakeholder viewpoints. The Committee must include representatives from all stakeholder interests. A specific charter should establish its mandate, and it must have sufficient authority and resources to access and analyze relevant information.
In this regard, we support the formulation set forth in the NPR: The advisory committee would provide input regarding whether additional information is needed from a petitioner (proposed Sec. 294.13(a)(1) ), the Secretary’s response to a petition (proposed Sec. 294.13(a)(2)), the nature and extent of appropriate NEPA documentation associated with development of a State-specific rule, and the Secretary’s decision on promulgating a State-specific rule (proposed Sec. 294.15). The advisory committee would include members with expertise in fish and wildlife biology, fish and wildlife management, forest management, outdoor recreation, and other important disciplines, as well as representatives of State and local governments.
A National Advisory Committee also would perform a valuable role in advising the Forest Service on roadless area management even if the petition process is not adopted, and even with respect to decisions affecting States in which the Governor elects not to petition for a State-specific roadless rule. We recommend that the Committee’s charter be broader than suggested in the NPR, to include: (a) review of all proposed management activities within IRAs in all Land and Resource Management Plan amendments and revisions; and (b) review of any proposals for actions received by the Forest Service from other federal agencies or States (outside the petition process) that could affect the boundaries, values or characteristics of IRAs.
III. Strengthening the Proposed Petition Process
The NPR fails to establish the necessary framework to ensure protection of roadless area values and characteristics. While the NPR sets forth, in a completely neutral fashion, the necessary mechanisms for receiving, evaluating and acting on Governors’ petitions for rulemaking, it provides no overreaching policy objectives and lacks any suggestion of how the Service intends to ensure that activities allowed in IRAs pursuant to State-specific regulation will protect roadless areas. In these important respects, the NPR misses the thrust of the FRWG’s March 2003 recommendation.
As we have emphasized consistently in our recommendations over the past several years, the FRWG believes the Service should continue to manage IRAs “by exception.” Activities posing the greatest threats to roadless areas -- especially road construction, timber harvest and unauthorized use of motorized vehicles -- must be allowed only in limited circumstances, pursuant to explicit, well-justified decisions, and subject to conditions that minimize harm to important values and characteristics. Our March 2003 recommendations, for example, stressed the importance of ensuring that activities such as temporary road construction are allowed only where necessary to enhance ecological values, and only when accompanied by appropriate restrictions, including time limits, spatial limits, equipment limits, guarantees of removal and restoration, and appropriate monitoring and reporting.
The procedural rule should be revised to establish the necessary policy framework to ensure that State-specific regulations will meet the objectives of roadless area protection:
The purpose of the rule, set forth in Section 294.10, must do more than “address the management of [IRAs].” It should include a clear objective “to protect and manage IRAs and their important social and ecological values and characteristics.” This will put Governors on notice that petitions they submit will have to be designed, first and foremost, to accomplish this primary purpose. The rule also should set forth criteria indicating how the Service will decide whether to accept a petition, including its effects on roadless area values and its effects on fish, wildlife, soil and vegetation.
Section 294.12 should then be revised to emphasize that the purpose of a petition is to seek federal regulations establishing management requirements “that will meet the purposes of this rule” for IRAs within that State.
In addition, Section 294.14 should be revised to make clear that, in specifying “management requirements” and “exceptions,” a State’s petition must describe how its approach will meet the purpose stated above, and must indicate the types of conditions and restrictions that would attach to any authorization for conducting activities that could adversely affect IRAs, such as road building, resource extraction and use of motorized vehicles.
Finally, Section 294.15 of the rule should be modified to include a clear statement that the Secretary (or designee) will promulgate a final regulation, if any, that ensures protection of roadless areas and their values and characteristics.
These improvements to the procedural rule would go a long way toward clarifying the Forest Service’s intentions and establishing appropriate policy expectations for the petition process.
IV. An Alternative Approach
Even with the improvements we suggest above, the unpredictable nature of State-by-State rulemaking leads us to conclude that the NPR does not offer the best approach to ensuring protection of roadless areas. If the RACR is reinstated as a result of ongoing litigation in the federal courts, we recommend, as we have before, that the Forest Service gather experience implementing the rule for several years before considering changes to improve the regulatory approach it provides. If the RACR is not reinstated, then we believe an alternative to rulemaking should be considered that would provide greater stability and predictability in the management of IRAs.
The alternative would be to withdraw this rulemaking in its entirety, and to implement roadless area protection through forest plan amendments, as we describe below. While we believe that a rulemaking is the most effective mechanism for ensuring stability, there are other options available to ensure the protection of roadless areas, and the significant, fish, wildlife, recreational, and water resources they harbor.
The alternative we are suggesting would allow the Chief of the Forest Service to re-assert his leadership over the roadless issue; allow protection to proceed with local input; and be sanctioned through a stable and predictable forest planning process. It is important to note that these recommendations are “of a piece.” If they are divorced from each other, they lose their efficacy in accomplishing the Administration’s and the public’s goals of IRA protection and stability in decision-making.
This alternative may be summarized as follows:
A. First, the Forest Service should withdraw the roadless rulemaking.
B. Second, the Chief should issue clear direction that no new roads will be constructed and no new timber sales will be conducted in roadless areas until forest plans have been amended to address the management and protection of roadless areas. This direction would be consistent with the National Environmental Policy Act’s direction not to undertake management actions that would foreclose alternatives under consideration by the Forest Service.
C. Third, the Chief should issue a policy directive that all National Forest and Grassland Units that possess IRAs will amend their forest plans in order to manage and protect roadless areas. The Chief would issue the following direction to guide amendment of individual forest plans:
1. Road construction would only occur within IRAs if:
a. A road is needed to protect public health and safety due to a threat of flood, fire, or other catastrophic event that, without intervention, would cause the loss of life or property;
b. A road is needed to conduct a response action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or to conduct a natural resource restoration action under CERCLA, Section 311 of the Clean Water Act, or the Oil Pollution Act;
c. A road is needed pursuant to reserved or outstanding rights, or as provided for by statute or treaty;
d. Road realignment is needed to prevent irreparable resource damage that arises from the design, location, use, or deterioration of a classified road and that cannot be mitigated by road maintenance;
e. Road reconstruction is needed to implement a road safety improvement project on a classified road determined to be hazardous on the basis of accident experience or accident potential on that road;
f. The Secretary determines that a Federal Aid Highway project, authorized pursuant to Title 23 of the United States Code, is in the public interest or is consistent with the purposes for which the land was reserved or acquired and no other reasonable and prudent alternative exists; or
g. A road is needed in conjunction with the continuation, extension, or renewal of a mineral lease on lands that are under lease by the Secretary of the Interior as of the date of the Chief's guidance to the field, or for a new lease issued immediately upon expiration of an existing lease. Such road construction or reconstruction must be conducted in a manner that minimizes effects on surface resources, prevents unnecessary or unreasonable surface disturbance, and complies with all applicable lease requirements, land and resource management plan direction, regulations, and laws. Roads constructed or reconstructed pursuant to this direction must be at the lowest level of engineering that permits safe travel and obliterated when no longer needed for the purposes of the lease or upon termination or expiration of the lease, whichever is sooner.
2. Relative to timber harvest, the Chief’s direction should limit timber harvest in IRAs to cutting, sale, or removal of generally small diameter timber needed to maintain or improve:
a. Threatened, endangered, proposed, or sensitive species habitat pursuant to concurrence with the relevant state fish and wildlife agency and the US Fish and Wildlife Service or NOAA Fisheries; or
b. The characteristics of ecosystem composition and structure, such as to reduce the risk of uncharacteristic wildfire effects, within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period.
3. The Chief’s direction should not apply in areas where roadless characteristics have been substantially altered in a portion of an IRA due to the construction of a classified road and subsequent timber harvest. Both the road construction and subsequent timber harvest must have occurred after the area was designated as an IRA and prior to the direction of the Chief. Timber may be cut, sold, and/or removed in the substantially altered portions of these IRAs.
The FRWG believes that implementation of these recommendations would restore the leadership of the Forest Service on the roadless issue, provide for roadless protection, and allow stability and predictability in the roadless area decision-making process. Consistent with our earlier recommendations, we suggest the formation of a Federal Advisory Committee Act (FACA) group to advise the Chief on future amendments to forest plans under our proposal.
We appreciate this opportunity to comment on the NPR, and to provide our views on roadless area management issues generally. The FRWG would be pleased to meet with you to discuss these recommendations at your convenience.
Sincerely,
James D. Range
Cc: Filed By Facsimile To
(801) 517-1014
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