The Lowdown on the New Forest Service Permitting Directives
By David Brown, Executive Director, America Outdoors
In the final analysis, the impact of the new Final Directives for Forest Service Outfitting and Guiding Special Uses Permits will depend on the ability of local permit administrators to understand and implement the new directives. Many outfitters will not see any changes if their management plans specify their permitted use or they achieve a high level of permit utilization – approximately 87% of allocated capacity for outfitters assigned more than 1,000 service days. Some outfitters will benefit if their permit administrators have the will and resources to implement the directives and implement use pools as a supplement to assigned allocations. They may even increase their capacity if use pools are established and they can access them in a timely manner.
The good news is that despite urging from Wilderness Watch and their minions, the agency rejected pure “common pool” as a method for doling out all use and preserved the concept of allocated use for permitted outfitters.
However, some outfitters, guest ranches and tour operators are at risk if they have a substantial portion of their use under temporary permit or if priority use is assigned in shoulder seasons when demand is ephemeral. One outfitter estimated he will lose nearly 20% of his capacity, despite running a very successful business. He is operating at around 70% capacity under a priority use permit. He has daily capacity assignments throughout the season including shoulder seasons with a variable length season dependent upon snowpack. He needs firm capacity in the early season when there is some demand and questions whether he can depend on permit administrators to manage a priority use pool punctually when a group of 20 calls to book.
The new directives put new burdens on field staff and, given their shrinking budgets and lack of funding, many permit administrators may not have the capacity to perform complicated “needs assessments”, capacity analyses, or operate use pools. Some permit administrators, who have been contacted by permit holders, don’t know about the directives.
Overall, the agency did respond to comments and accepted many of America Outdoors’ suggestions. Otherwise, the outcome would have been much worse. However, we believe the directives use requirements are too high for priority use permittees and the process costs for transition to priority use may be prohibitive for some temporary use permittees. The ultimate question is whether the field staff will implement the directives, and that is a big question mark.
What Was the Primary Reason for the Change?
Pressure from institutional users and non profits, which technically were not eligible for priority use permits under the old directives, prompted the changes. Ironically, relatively few comments to the directives came from this segment. A total of 36 comments came from camps, youth organizations, non profit outfitters and university programs. Outfitters, state and national outfitter organizations submitted 191 comments. Comments driven by Wilderness Watch and anti outfitter groups resulted in most of the 249 comments from “unguided recreation” interests.
For Outfitters with Priority Use Permits
The primary change in the management of priority use permits is the assignment of use following 5-year use reviews or upon renewal. The agency set new requirements for utilization of allocated capacity. The previous handbook had conflicting use assignment instructions. Use allocation requirements will have the most impact on outfitters with significant shoulder seasons where demand is ephemeral and on outfitters operating at resources with variable seasons, which are determined by precipitation or snowpack.
For permittees with over 1,000 service days, when their permits are renewed or when use is reviewed every five years, use will be assigned at actual use plus 15% of actual use in the highest of the last five years. For outfitters with 1,000 service days or less, actual use plus 25% will be assigned. If extenuating circumstances prevail, then a sixth year may be considered. Technically, a company with 1,050 service days utilizing 75% of their capacity will be assigned fewer service days than one with 75% utilization of their 1,000 service day capacity. The outfitter with 1,050 service days will be assigned 906 service days, a loss of 144 service days. An outfitter with 1,000 service days operating at 75% capacity will be assigned 937 service days due to the larger cushion above actual use provided to smaller outfitters. Outfitters with more than 1,000 service days on priority use have to operate at 87% capacity to avoid loss of use allocation. An outfitter assigned 10,000 service days utilizing 7,500 service days in the highest of five years will lose 1,375 service days or 13% of assigned capacity.
Exception to the Application of These Criteria for Assignment of Use
Management plans that specify amounts of use will prevail over these directives. However, new Congressional designations of areas as Wilderness or Wild and Scenic Rivers will result in a "needs assessment" to determine if outfitter services are “necessary” and will require new management plans and capacity analyses.
Priority Use Pools
One important change in the directive is the authorization of a Priority Use Pool, which may be stocked with use withdrawn from priority use permittees. The establishment of this pool is at the discretion of the authorizing officer for the resource. If this pool is operated efficiently and punctually, outfitters who see reductions in their priority use may recover it from a priority use pool. However, the directives even allow this use to be assigned for the term of the permit if an outfitter shows the ability to use it and if others do not need it. We question whether understaffed or stressed ranger districts can deal with this pool and a temporary use pool. Existing use pools will not be invalidated by the directives.
Temporary Use Permits
Existing temporary use permits will be eliminated after the 2009 season. The new temporary permit will allocate use in increments of 50 service days up to a maximum of 200 service days or the equivalent in quotas. Only one temporary permit may be issued every 180 days to qualified applicants. Temporary use permittees will have to describe their qualifications but no performance evaluations will be required for temporary uses. Use will be drawn from temporary use pools.
Fees for temporary use are generally lower than those for priority use. The agency published a flat fee table for temporary use. The fees equal as little as 1.5% of gross according to the table distributed. Fees for priority use permittees will be revised next year.
Flat Fees for Temporary Use:
Number Service Days Flat Fee Maximum Gross Revenue for Each
Bracket of Service Days
1 to 50 $150 $10,000
51 to 100 $300 $20,000
101 to 150 $450 $30,000
151 to 200 $600 $40,000
Temporary Use Pools
Temporary use pools may be established to accommodate non recurring uses by qualified applicants. A “needs assessment” must be completed indicating the need for a temporary use pool if one has not been completed. Temporary use pools may be established after a capacity analysis or from redistribution of priority use. Temporary use permits will be distributed on a first-come, first-served basis or through a lottery during an “open season”. Holders of priority use permits at the resource may not apply for temporary use during the open season. After the open season, any qualified outfitter may apply for temporary use. Qualified outfitter and guide applicants, who meet state licensing requirements or other agency qualifications, if any, may apply for up to 200 days of use every 180 days from a temporary use pool.
Conversion to Priority Use Permits for Outfitters Currently Operating on Temporary Use Permits
The Forest Service is eliminating temporary use permits except for non recurring permits in 50 service day allotments up to 200 service days every 180 days.
To have a chance to retain their use, outfitters with a substantial amount of use under temporary permits in 2008 will have to submit an application for Transitional Priority Use prior to September 17, 2009 requesting conversion to priority use. Outfitters are eligible for reclassification when
- their use is active and recurring
- their performance has been satisfactory
- they request reclassification within one year of the publication of the directives (September 16, 2009);
- Applicants agree to meet the application requirements for reclassification of the use as priority use with 5 years of the date of the request. These qualifications have not been published.
Factors Determining the Conversion of Temporary Use to Priority Use
- Conversion from temporary use to priority use is not assured. The Forest Service may have to do “needs assessments” and capacity analyses to convert existing temporary use to priority use. “Needs assessments” are used to determine “public or agency need for authorized outfitting and guiding”. Wilderness Watch has sued the Forest Service in an effort to remove outfitters from wilderness by attacking the adequacy of “needs assessments”, which can take two or three years to complete even for minor uses.
- Graciously, the agency is not requiring permittees to pay for these analyses, but unless the Forest has completed these studies, field staff may not have the time to conduct them. Lack of interest or funding to complete these assessments and NEPA is why many outfitters and guest ranches were put on temporary use in the first place.
- Permittees will be on the hook for NEPA analyses and may have to agree to fund them to obtain Transitional Priority Use. Groups of outfitters may share the costs which will be spread over the 5 years of transitional priority use.
One very important advancement is the inclusion of “permitted routes” to authorize use of so-called non system trails. However, there are some clauses in the directives that may allow use of these routes to be challenged. A needs assessment may be required prior to authorization of their use.
Performance Standards and Ratings
Specific performance standards will be included in each outfitting and guiding permit or operating plan. Only priority use permittees will receive annual evaluations however. A scoring system will be developed to correlate the standards to performance ratings which are
Permit holders may appeal unacceptable or probationary ratings but cannot appeal the results of inspections upon which the ratings may be based. Notice and an opportunity to correct deficiencies must be given before a final rating of probationary or unacceptable is put in the outfitter's record.
Forest Service Recreation Director Jim Bedwell will be speaking about these changes at the America Outdoors Marketing and Management Conference in Knoxville on December 3, 2008.
A conference call for AO members will be conducted on Tuesday, September 30th at 1:00 PM Eastern time to go over the changes and provide you with an opportunity to ask questions. Dial in information is as follows:
Conference Dial-in Number: (308) 344-6400
Participant Access Code: 568017#
For more information on these directives, contact David Brown at firstname.lastname@example.org or call 865-558-3595.