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Preliminary Permit for Hydro Project on the Lehigh River
An application for a preliminary permit to install hydro at the Francis Walter Project on the Lehigh River in eastern Pennsylvania could disrupt flows from the dam to enhance whitewater recreation. Lehigh River outfitters will be following the proposed preliminary permit application process. The Borough of Weatherly also submitted a comment stating their intent to file a competing application.
Do you have a hydro project upstream of your operation that you need to keep tabs on? Check out the list of existing licenses and their expiration dates by going to Hydro Licenses. Use the project number to subscribe to the Federal Energy Regulatory Commission's (FERC) list serve for information about any renewals or changes related to the hydro licenses you wish to monitor. Keep in mind that not all hydro projects are regulated by FERC.
Forest Service Planning Rule Preferred Alternative Elevates Recreation
AOA, along with the National Ski Areas Association, was among the organizations which joined forces to successfully urge the Forest Service to give a higher standing to recreation in the new planning rule, which will be published in the Federal Register on Friday, February 3rd. Some of the new planning requirements may create issues for existing uses. There are concerns about how all the new monitoring requirements will be paid for, so like anything the agency does, the rule has its tradeoffs. But overall, our efforts with other groups to advance the status of recreation paid off. Forest plans should be more balanced with a higher standing for recreation activities than originally proposed.
Shortly after the rule’s publication eight National Forests will begin revising their Forest plans. The Nez Perce-Clearwater National Forest in Idaho, the Chugach National Forest in Alaska, the Cibola National Forest in New Mexico, El Yunque National Forest in Puerto Rico and California’s Inyo, Sequoia and Sierra National Forests are scheduled to be the first Forest plans written under the new rule. The new process is supposed to be more collaborative, so we urge you to look for opportunities to participate in the development of these new plans.
Here is our first read of the preferred alternative. The preferred alternative requires planning for recreation and economic benefits, an improvement over the draft which only required plans to consider recreation.
- Planning must include multiple uses that contribute to local, regional and national economies.
- Plans have very specific requirements and objectives which must be monitored. Revisions to plans would be based on changes indicated by monitoring. Monitoring of focal species, ecological conditions, recreation objectives, watershed conditions etc. are required. Monitoring “plan objectives” is a different level of monitoring than monitoring “activities”. Fortunately, the latter is not a pre-requisite to carrying out those activities, such as the activities authorized by special use permits. Keep in mind too that, according to Forest Service rules, monitoring compliance with permit conditions is subject to “cost recovery”, but monitoring plan objectives and visitor satisfaction should not be subject to cost recovery. We realize there are problems with Forest Service cost recovery which may escalate with concerns over trillion dollar annual budget deficits.
- The new rule requires planning for sustainable recreation, an improvement over the earlier drafts. NEW IN THE RULE: Monitoring visitor satisfaction and progress toward meeting recreation objectives. (Those requirements are not a prerequisite for making a decision to carry out a project or activity).
- The Forest Service will have flexibility to revise plans and permit authorizations will have to be consistent with the revised plans. This flexibility is not new although the impetus to revise plans is far more restrained in the preferred alternative than the proposals in the draft rule.
- Plans will identify focal species that are the basis for determining ecological sustainability. Monitoring focal species to determine ecological sustainability is one of the most significant new requirements and will likely become a source of controversy and litigation. Some monitoring already occurs, so not all monitoring will be new. But the Forest plans may include monitoring of species other than threatened and endangered species.
- Riparian management zones. Special attention will be given to restoration of riparian zones, generally within 100 feet of streams. To the extent recreation activities in riparian zones will be impacted, such as camping along rivers and streams, will probably be dependent on the objectives set out in the plan and the presence of focal species that determine ecological sustainability.
- There are extensive requirements for consultation with and consideration of Tribal concerns, sites and issues.
- The rule is controversial as with anything the agency does these days. Some members of Congress are worried about the focus on ecological sustainability. On the other hand, The Center for Biological Diversity complained that the rule weakens protection for wildlife, but they were not specific on why.
How the Forest Service will pay for all the new monitoring and planning is the big question. Some outfitters think the field staff is already overwhelmed with process. The planning rule, while logical in its approach, requires more collaboration, process and monitoring. The agency will be off and running soon with the eight new Forest plans as a good test of the new rule’s feasibility.
Forest Service Revises Permit Language Liability Clause for the Better
AOA has been urging the Forest Service to revise some of the permit language which we felt was unfair and unreasonable. Recently, the Washington office notified the Regions of changes to the permit language. Section III.G, the Health and Safety Clause, in the old permit had strict liability provisions, one of which stated, “The responsibility to protect the health and safety of all persons affected by the use and occupancy authorized by this permit is solely that of the holder.” This clause seems to ignore injuries caused by the inherent risks of activities or the negligence of the customer or third parties. Another provision in III.G. required the holder to “abate” “any activity or condition arising out of or relating to the authorized use and occupancy that causes or threatens to cause a hazard to public health or the safety of the holder's employees or agents or harm to the environment”. Any threat from inherent risks from an activity might require the activity to be altered or suspended, according to a strict interpretation of this language.
Fortunately, the agency recognized, after legal analyses from AOA, that these clauses were unfair and impossible to comply with. The clauses only appeared in the Priority Use permit for outfitters, not in temporary permits or other recreation permits. The Forest Service recently revised the language, which is too long to reproduce here. It is much more reasonable although still presents some concerns. The abatement clause has been modified significantly. AOA did not get to “sign off” on the language, which agency attorneys developed independently. The language which stated that the holder was "solely responsible" for the health and safety of all persons associated with the use and occupancy has been removed. The new language should start to show up in permits issued from this point forward. For a copy of the revised language send an email to firstname.lastname@example.org
FICOR's First Meeting Authorizes Expansion of Recreation.gov
Headed by the BLM Director, Bob Abbey, the Federal Interagency Council on Outdoor Recreation (FICOR), includes the Chief of the Forest Service, the National Park Service Director, the Director of the Fish and Wildlife Service, the head of the U.S. Army Corps of Engineers and two other agencies. According to the release issued after FICOR’s first meeting, “Changes to expand and improve online information will be targeted on the existing www.Recreation.gov site, which features recreation information for seven federal agencies. The site will serve as a one-stop-shop for the public to find helpful information on the best places to hike, bike, fish or find solitude.”
Some outfitters in Idaho are already reserving and paying for launches through recreation.gov. So, this system is more than an information portal. Middle Fork outfitters must enter the name of a client (or a guide) to hold a launch and pay fees in advance of the season. Launches not reserved are released, presumably for use by others. There is some concern about how this system will work for outfitters whose permitted use allocation is by service days instead of launches. Stay tuned.
Tags: Forest Planning Rule, Permit liability clauses, Health and Safety clause, permit languate, recreation.gov, FERC, Lehigh, hydro
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