AO Comments to Proposed Forest Service Regulations July 2019

By: David Brown

America Outdoors has teamed up with the Middle Fork Outfitters Association and Idaho Outfitters and Guides Association on Comments to Proposed Forest Service Regulations.


The Forest Service is proposing to streamline their Environmental Analysis and Decision Making (EADM) for certain types of agency authorizations, including the issuance of outfitter permits.  Compliance with the National Environmental Policy Act (NEPA) is required for every major federal action even when an action has been previously studied and there have been no substantive changes at the resource level or in the impacts of the authorized activity, such as outfitting and guiding.  The Forest Service cost recovery regulations require outfitters to pay for this analysis when the time spent issuing or renewing a permit exceed 50 hours to include the NEPA analysis.  (We are trying to reform this requirement in SOAR).  The Environmental Assessment required to issue 60 outfitter and guide permits in the Bob Marshall Wilderness several years ago cost outfitters there over $100,000. If there had been an objection to the permits, the price tag would have been even higher. 

The Forest Service is proposing to expand the use of categorical exclusions (CE) to include permit renewals and authorization of uses on system trails and roads under certain circumstances.  A CE does not waive NEPA but avoids a higher level of analysis and relies on previous documentation.  Under a CE the Forest Service is not required to take public comment or implement the pre-decisional objection process.  That process allows “objectors” to a proposed action to negotiate a settlement with the Forest Service.  If you don’t object, you do not have official standing in the negotiation.  But how do you object to the issuance of your permit?  I know it’s crazy and your eyes are glazing over. 


But wait, there’s more!

As you might expect, there is a catch to even these modest streamlining proposals.  When certain resource conditions are prevalent, such as the presence of wetlands, riparian areas, threatened or endangered species, Native American religious, cultural and archeological resources, inventoried roadless areas, historical areas and all Congressionally designated areas such as wilderness and Wild and Scenic river designations, the proposed action, such as the issuance of outfitter and guide permits, may create an “extraordinary circumstance” in which a normally categorically excluded action may have a significant environmental impact. These extraordinary circumstances require a heightened NEPA review of the proposed actions that would otherwise be “categorically excluded.”  The use of a CE may be prohibited unless there is a finding of “no significant impact” (by the proposed activity).

The EADM proposal does not make it clear when and if a CE can still be used under those extraordinary circumstances and what documentation is required to authorize a CE when those resource conditions are present.  That may be covered by the Code of Federal Regulations, unless it is clear in the proposed rule and subsequent handbook, agency staff will be reluctant to use a CE.  So, we will be asking the Forest Service to clarify and support the use of CEs under those circumstances. 


Thank you to our partners, MFOA and IOGA

We are delighted that the Middle Fork Outfitters Association and Idaho Outfitters and Guides Association have joined AO in helping defray the expenses for a law firm to draft our comments on this important issue.  Outfitters on the Middle Fork of the Salmon (among others) are subject to a heightened level of environmental analysis due to endangered salmon, the Wild and Scenic River designation, and Native American cultural sites along the river.  While the proposed Forest Service rule is not specific to the Middle Fork, the issues those outfitters face offer a good prism through which to analyze the proposed rules.

Comments are due by August 12, 2019.


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