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America Outdoors E-Bulletin
March 1, 2006


 
Forest Service Cost Recovery Rule Exempts Most Permit Renewals but Permit Changes May Be Subject to Recovery Idaho Legislature Set to Push for Repeal of the Federal Land Recreation Enhancement Act
Deal Reached to Fund Whitewater Releases on Upper Ocoee

Forest Service Cost Recovery Rule Exempts Most Permit Renewals but Permit Changes May Be Subject to Recovery
 

The Forest Service issued its final cost recovery rule on February 21st, which exempts from cost recovery permit administration when processing takes 50 hours or less. Monitoring for permit compliance is also excluded from cost recovery. That's the good news.

There are a few red flags in the rule that America Outdoors will investigate further and which may require significant modification.

The final rule states:

  • "cost recovery provisions apply to agency actions to amend a special use authorization, not just to proposals submitted by an applicant or holder to amend a special use authorization." In other words if the agency decides to make changes to the permit, then the permittee will pay for whatever processing and analyses are required, if it exceeds 50 hours."
  • When unsolicited proposals for use are submitted and competitive interests exists in the activity, the Forest Service will consider all proposals as applicants for the permit and require them to pay on a prorated basis for the environmental analyses prior to issuance of a prospectus (which may not be issued if the environmental analyses recommends against the activity) and then charge them for the full costs of evaluating proposals, recording data, conducting financial reviews, etc. The costs will be shared by all applicants on a prorated basis, regardless of who is awarded the permit.
  • If the agency solicits applications for new opportunities, then the agency will pay for the costs of environmental analyses but all applicants will share in the processing and evaluation costs listed above. These provisions will likely eliminate interests in most new outfitting and guiding activities in national forests except for those authorized by temporary permits, which are not subject to cost recovery.
  • " The Forest Service will put applications subject to cost recovery above those that are exempt from it. While exempting permits that take less than 50 hours, the agency may, by its own admission, drag its feet on issuing permits without cost recovery. The rule states: "The Forest Service will endeavor to process applications that are subject to a waiver of or exempt from cost recovery fees in the same manner as applications subject to cost recovery. However, the Forest Service cannot commit to the customer service standards for these applications since the resources necessary to process them will be subject to the availability of appropriated funding."

Cost recovery will require permittees to pay if they ask for more use or request changes in their operation beyond that which can be accommodated by changes to the operating plan. Costs will also be charged when the agency decides to make changes that require NEPA and other analyses. This leaves the door open to require outfitters to pay for court ordered NEPA evaluations and other analyses when groups hostile to certain activities file lawsuits to shutdown commercial activities.

   
Idaho Legislature Set to Push for Repeal of the Federal Land Recreation Enhancement Act

With over 60% of Idaho under federal land management and many western residents upset with a fee bill pushed by an eastern Congressman (Ralph Regula, R-OH), the Idaho legislature is poised to pass a joint memorial calling for repeal of the Federal Lands Recreation Enhancement Act (REA). The bill, which authorized several new recreation fees (previously known as fee demo), is also the law now used to authorize outfitter and guide permits. The memorial has no binding legal effect on federal agencies but it is indicative of a substantial antipathy toward the fee program implemented by the Forest Service and BLM. The preamble to the Idaho joint memorial reads:

FEDERAL LANDS RECREATION ENHANCEMENT ACT - Stating findings of the Legislature and demanding that the Federal Lands Recreation Enhancement Act be repealed and that no recreational fees authorized under the Federal Lands Recreation Enhancement Act be imposed to use federal public lands in the state.

The REA was a work in progress when Representative Regula forced its passage as an amendment to the Omnibus Appropriations bill in late 2004. The Senate never had a chance to consider the bill. The bill does return outfitter fees to the agencies and prohibits road use fees for special use permits, but also has some shortcomings for outfitters. The agencies have been slow to implement a provision in the bill that established Recreation Resource Advisory Committees which were supposed to help guide agency fee initiatives. Federal agencies are expected to see their recreation budgets cut in fiscal year 2007. Repeal of the REA is unlikely.

 
Deal Reached to Fund Whitewater Releases on Upper Ocoee

A deal to provide 34 days of water releases on the upper Ocoee was signed last week between Tennessee Valley Authority (TVA) and the Southeast Development District. Outfitters will pay $3.50 per person to reimburse the Development District for $1.6 million for 13 years of water releases. The Development District, as it is commonly known, is owned and operated by the local governments in the region and has a Board of Directors composed of local elected officials and representatives from across the region.

$500,000 from a federal grant will be used to promote tourism in the region, which outfitters hope will be used to boost river recreation. Another $500,000 state grant will be used as an upfront payment to the Development District to pay TVA for water.

The deal will relieve outfitters of having to annually negotiate a contract with TVA for water releases on the Upper Ocoee, which hampered their ability to promote that stretch of river. When water is released into the riverbed on the upper Ocoee it bypasses hydroelectric generating turbines. TVA has long held that river users should pay the agency for the cost of replacing lost power. Lake users get a better deal. A powerful coalition of recreation interests in the region were successful in getting TVA to maintain summer lake levels for recreation at a cost of $14 million annually to the power system without a reimbursement requirement.

Currently, outfitters are paying $1.00 per person for 116 days of water releases on the middle section of the river. That contract, which was signed in 1984, expires in 13 years at the same time as the new contract for water on the upper Ocoee.

 
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