Comments on Revisions to USFS Proposed NEPA Regulations


America Outdoors Association, Idaho Outfitters and Guides Association, and Middle Fork Outfitters Association (collectively “Outfitters”), on their own behalf and on behalf of their members, submit these comments for this rulemaking.  Please consider and include these comments in the administrative record for this matter.

America Outdoors Association (AOA) is a national trade association representing the interests of over 550 professional companies that provide a wide range of outdoor recreation services and outdoor equipment to more than 3,000,000 Americans each year.  AOA members operate in 43 states and 50 foreign countries.  Member companies offer whitewater raft trips, canoeing, kayaking, horseback riding and horse packing, camping, hiking, fishing trips, bike tours, dude ranches, and a variety of other outdoor recreation services, including many activities on national forest system lands.  The Idaho Outfitters and Guides Association is a non-profit business trade association.  It represents the majority of Idaho’s full-time licensed outfitters.  Members primarily are small, independently owned businesses offering guided hunting, fishing, river running, trail riding, hiking, biking, climbing, skiing, snowmobiling, and guest ranch trips. Middle Fork Outfitters Association is a trade association representing licensed outfitters operating trips on the Middle Fork of the Salmon River.

Outfitters’ members are proud to partner with the Forest Service in providing outdoor recreation opportunities to the American public and national forest land visitors through these operations.  Outfitters and guides are essential partners that enable visitors to experience the important wilderness and recreational resources on national forest system lands.  Additionally, employment with outfitter and guide companies is an important source of income for small rural communities that surround many of the national forest lands.  Based on their collective experience, Outfitters and their members present these comments on ways to improve the efficiency of NEPA environmental analyses that may apply to the permit, authorization, and activities of these outdoor recreation outfitters and service providers.


A.Outfitters Generally Support the Proposed Rule

Outfitters generally support the Forest Service’s proposed revisions to the NEPA procedures for outfitter and guide authorizations and other recreation-related special uses.  While there may be merit to NEPA reform for other decisions and documentation, our comments will primarily focus on those areas where we have experience and expertise with some reference to NEPA documentation for other actions that we may encounter or that may interfere with authorized recreation activities.  This focus does not mean we support or oppose other elements of NEPA reform contained in this rule for which we are not commenting.  Indeed, we certainly support streamlining of NEPA processes for many of the restoration activities included in this notice.

In general, we firmly believe that reforming the Forest Service’s NEPA procedures is critical to expediting the environmental review process and continuing to allow people to enjoy national forest lands through outfitting and recreational activities and therefore appreciate the Forest Service’s attention to this important initiative.  Accordingly, Outfitters support the Forest Service’s streamlining of the NEPA process through the use of additional categorical exclusions, programmatic decision-making, and the practice of referencing condition-relevant, pre-existing NEPA decisions that can be applicable within a site-specific project.  Increased efficiency will result in the agency having more time and funds to be used where they are most needed.


B. Specific Comments

The following are Outfitters’ specific comments and recommendations regarding the revisions to the Forest Service’s proposed NEPA regulations.


1. Outfitters support the inclusion of the Determination of NEPA Adequacy and the definition of NEPA Adequacy.  (proposed 36 C.F.R. §§ 220.3, 220.4(j)). 

Outfitters support the inclusion of both the “adaptive management” definition (proposed 36 C.F.R. § 220.3) and the Determination of NEPA Adequacy requirement (proposed 36 C.F.R. § 220.4(j)).  Outfitters look forward to engaging in the development of Forest Service Handbook directives to provide further guidance on this and other topics.  We urge the Forest Service to encourage the use of existing forest plans in making these determinations, and to allow maximum geographic flexibility in making determinations of NEPA adequacy. Land use management decisions are made in forest plans and forest plan revisions and amendments, and should be acknowledged and incorporated into project level NEPA analysis.


2.The proposal should specify the documentation needed for categorical exclusions to apply. 

The proposal provides generally that “[t]he responsible official shall make policies or staff available to advise potential applicants of studies or other information foreseeably required for acceptance of their applications.”  (proposed 36 C.F.R. § 220.4(h)).  Further guidance as to the minimum documentation required for categorical exclusions to apply should either be included here or in proposed 36 C.F.R. § 220.5.  At a minimum, the Forest Service should issue additional guidance on this subject in changes to the Forest Service Handbook, as the proposal does not—in our view—provide enough information to ensure that the use of categorical exclusions streamlines the NEPA process.

Additionally, consistent with section B.3. of these comments below, the final rule should identify, preferably in the rule text or alternatively in the rulemaking preamble or follow-on Forest Service guidance, requirements for documenting the presence of a resource condition or other extraordinary circumstance—including specific documentation of the condition or circumstance and the cause-and-effect relationship between the condition or circumstance and the proposed action leading to a determination of a likelihood of adverse effects.  If the Forest Service relies on the presence of resource conditions or extraordinary circumstances to preclude the application of a categorical exclusion, then that determination should be specifically documented.


3.The proposal needs more clarity regarding the analysis of resource conditions for determining whether extraordinary circumstances are present (proposed 36 C.F.R. § 220.5(b)). 

Outfitters support the use of categorical exclusions for outfitter permits to streamline the NEPA process. The proposed rule recognizes that sometimes a categorical exclusion should not apply. Specifically, the proposal provides a list of categories of actions that “may be categorically excluded from analysis documentation in an EA or EIS when there are no extraordinary circumstances.” (proposed 36 C.F.R. § 220.5(a)) (emphasis added). 

To determine whether extraordinary circumstances exist that bar the use of a categorical exclusion, the proposal instructs that various resource conditions must be considered, but the mere presence of one or more does not prohibit the use of a categorical exclusion. (proposed 36 C.F.R. § 220.5(b)(1), (2)).  Rather extraordinary circumstances exist when there is a cause-and-effect relationship between a proposed action and listed resource conditions creating a likelihood of substantial adverse effects.  (proposed 36 C.F.R. § 220.5(b)(2)).  The proposed rule rightly requires both a cause-and-effect relationship and a likelihood of substantial adverse effects.  This analysis should also explicitly consider the projects beneficial impacts as well. 

Often a proposed activity’s short-term effects are more than compensated for by long-term benefits.  Considering both the long-term benefits and short-term effects of such an action in ascertaining whether a categorical exclusion might apply is consistent with the CEQ NEPA regulations’ definition of “effects.”  (40 C.F.R. §1508.8(b) (“effects” include “both beneficial and detrimental effects”)).  Some guidance should be given regarding the definition of “substantial adverse impacts.” 


More explanation as to when the presence of resource conditions amounts to extraordinary circumstances also should be provided to ensure that efficiencies from the use of categorical exclusions are not lost.  In particular, clarification as to the scope of the analysis and potential examples of where extraordinary circumstances are not present despite the presence of multiple resource conditions would be helpful.  The Forest Service should also consider including a decision tree regarding application of categorical exclusions in either the final rule or the Forest Service Handbook.

Many of our outfitter members require permits for activities in areas that may include multiple resource conditions, but that do not cause substantial adverse effects to those resource conditions.  For example,

Several of our Idaho members have special-use permits for float boating and associated activities on the Middle Fork of the Salmon Wild and Scenic River.  This area includes several resource conditions including the wild and scenic river designation, wilderness designations, listed species habitat, historical and cultural resources, and more.  However, the permitted activities involve only transient recreational use in these areas, do not involve the placement or construction of permanent structures, and generally can be conducted subject to conditions that would avoid any adverse habitat effects or significant environmental impacts.  These are the type of activities that categorical exclusions should cover.  Outfitters are concerned that without more clarification, the presence of multiple resource conditions, without anything else, could lead to a finding of extraordinary circumstances and an unnecessary, less efficient, more costly, and more time consuming NEPA evaluation.

Under the proposed rule, one of the common resource conditions that Outfitters encounter and that could lead to a finding of extraordinary circumstance is a permit or other action involving a wild and scenic river or other Congressionally designated area.  (See proposed 36 C.F.R. §220.5(b)(iii)).  The proposed rule would specifically add wild and scenic rivers to the rule’s list of congressionally designated areas where resource conditions should be considered in the extraordinary circumstances inquiry.  Although wild and scenic rivers were previously included as part of the broad listing in the rule of “congressionally designated areas,” the Outfitters urge careful consideration in the extraordinary circumstances inquiry of the purposes for which these areas were designated in the first place. 

In most cases, recreation is one of the purposes for which these areas—such as wild and scenic rivers—were first designated.  Thus, minor, less than significant effects from recreational activities or permitting action should not preclude the use of a categorial exclusion merely because the activities will take place in a wild and scenic river corridor or other congressionally designated area.  Outfitters suggest that where recreation is a purpose (and for a wild and scenic river segment, for instance, one of the outstandingly remarkable values for which the river was designated), then the fact of the congressional designation should not invalidate the use of a categorical exclusion.  Additional language to that effect should be incorporated into the final rule with some direction as to which of the proposed categorical exclusions related to renewal of existing authorizations should apply.  Examples are provided in (d)(12) for new or amended authorizations.  Therefore, similar examples should be provided in (d)(11).

Outfitters understand that the extraordinary circumstances analysis is part of ensuring that categorical exclusions are not misused in ways that harm the environment and important resources.  Indeed, it is this analysis that precludes the circumstances of unchecked vegetative manipulation some groups apparently claim that the new proposed categorical exclusions would allow.[1]  More clarification on the extraordinary circumstances analysis would help put such concerns to rest, in addition to ensuring that the efficiency goals of categorical exclusions are not hindered where activities that do not have substantial adverse effects, such as outfitting or guiding activities, occur in areas with multiple resource conditions. 

Outfitters, therefore, recommend that the final rule include more emphasis and explanation as to the adverse effects finding necessary for extraordinary circumstances to preclude application of an otherwise applicable categorical exclusion.  As the proposed rule notes in the preamble section, “[c]ategorical exclusions do not apply where there are extraordinary circumstances in which a normally excluded action may have a significant environmental effect (36 C.F.R. § 1508.4).” (84 Fed. Reg. at 27547).  In other words, a categorical exclusion is rebuttably but not conclusively presumed to apply in light of Forest Service experience with environmental impacts.  Similar language could be incorporated into the final rule to provide additional clarification. 


4.Potential wilderness areas should not be included as congressionally designated areas that are “resource conditions” under the extraordinary circumstances analysis (proposed 36 C.F.R. § 220.5(b)(iii)). 

Outfitters do not support the inclusion of potential wilderness areas as congressionally designated areas that are “resource conditions” under the extraordinary circumstances analysis. (proposed 36 C.F.R. § 220.5(b)). 

Potential wilderness areas are not congressionally designated.  They are areas identified and evaluated by the Forest Service for wilderness designation.  These lands may never be recommended to congress for wilderness designation.  Proposed wilderness areas, which have at least been recommended to congress for designation and meet the wilderness designation requirements, would be a more appropriate resource condition to consider here.  Including potential wilderness areas as resource conditions would simply serve to delay the categorical exclusion process, and in some cases may unnecessarily prohibit the application of a categorical exclusion to a proposed action.


5. Roadless areas designated Under 36 C.F.R. part 294 should not be included as a “resource condition” under the extraordinary circumstances analysis (proposed 36 C.F.R. §220.5(b)(iv)).


The roadless rule process at 36 C.F.R. part 294 was intended to address the management of inventoried Forest Service roadless areas in response to state-specific rulemaking that would identify the appropriate management actions and direction for these lands, which may include conserving roadless area values and characteristics.  See 36 C.F.R. § 294.14(a).  Thus, an additional layer of NEPA consideration based on the “resource condition” in these areas, potentially precluding the use of a categorical exclusion for Outfitter permitting or other Forest Service actions related to recreational use in these areas, is not necessary and would be inefficient.  The basic NEPA backdrop and foundational extraordinary circumstances provision under the general Forest Service and CEQ categorical exclusion regulations are sufficient to address these designated roadless areas. 

Such areas are present in Idaho and Colorado (see id. § 294.14, subparts C & D), and are areas where Outfitters provide recreational activities and opportunities to their guests.  Those areas already have management prescriptions and direction in place through the roadless rule and applicable forest plans.  These areas do not require yet another level of duplicative NEPA processes that might provide an off-ramp from an otherwise applicable categorical exclusion for addressing minor recreational activity effects. 

Thus, the final rule should clarify that either (i) designated roadless areas are not a resource condition to be considered in the categorical exclusion analysis for the evaluation of outfitter and guide permitted activities, or more broadly (ii) outfitter and guide permitting activities consistent with existing management direction for such roadless areas designated under 36 C.F.R. part 294 may be categorically excluded from further analysis and documentation in an EIS or EA provided that no other extraordinary circumstances are related to the proposed action. 


6. Categorical Exclusion (d)(12)


Outfitters support inclusion of this revised categorical exclusion in the final rule.  It appears to allow issuance of new special-use permits for outfitter and guide activities to be categorically excluded from further analysis and documentation under NEPA where the proposed use is the same as or similar to a previously authorized use and the Forest Service determines that such issuance does not have significant environmental effects based upon the extraordinary circumstance procedures.

A Forest Service decision to approve outfitter and guide or outdoor recreation activities and authorizations normally will have no significant impact on the quality of the human environment.  Float boat rafting on the Middle Fork of the Salmon River again provides an example of an activity that should fall under this categorical exclusion.  The activity is consistent with the applicable land and resource management plan and other prior analyses and plans for the wild and scenic river corridor.

Outfitters therefore recommends amending proposed 36 C.F.R. § 220.5(d)(12) by adding language shown in italics here:

“(12) Issuance of a new authorization or amendment of an existing authorization for activities that occur on existing roads or trails, in existing facilities, or in areas where activities are consistent with the applicable land management plan or other documented decision. Subject to the foregoing condition, examples include but are not limited to:

(vi) Issuance of a special use outfitter and guide permit for float boating, hunting, guided hiking, interpretive trips, horseback riding and similar activities.


7. Public Engagement


Much attention has been given to the proposed changes related to the elimination of the requirement for scoping for all NEPA decisions.  (see proposed 36 C.F.R. § 220.4(d)).  Our understanding is that CEQ regulations and most other federal agencies only require scoping for Environmental Impact Statements and not for Environmental Assessments or categorical exclusions. Thus, the proposed rule is aligning the Forest Service’s NEPA documentation with CEQ NEPA regulations and other agencies’ NEPA processes.  However, the proposed rule does not prohibit scoping or other forms of public engagement for environmental assessments, categorical exclusions and other NEPA related actions for which scoping was previously required but proposes to “right-size” public engagement for those actions and decisions. 

While scoping for actions requiring an Environmental Assessments is not required, the Forest Service still intends to take public comment for all EAs and the pre-decisional objection process will still apply in those circumstances, which gives objectors to certain projects an opportunity to resolve concerns and objections to specific projects.  (proposed 36 C.F.R. § 220.4(i)). 

We suggest more direction to line officers on when scoping and other forms of public engagement should be implemented for projects where it is no longer required.  Leaving those decisions on public engagement entirely to the discretion of the line officer is of concern to our members.  Major ground disturbing projects that make long-term or permanent changes to the landscape, displace a significant number of recreational users, or have significant negative economic impacts to gateway communities and rural economies should be subject to scoping even if they qualify for a categorical exclusion.

While the Schedule of Proposed Actions (“SOPA”) is also an opportunity for the public to become aware of projects that are subject to categorical exclusions which may not be subject to scoping, SOPA can be difficult to monitor on a forest-by-forest basis.  We suggest some consideration be given to a region-by-region opportunity for the public to sign up for changes to SOPA for specific forests within each region.


NEPA is one silo under which public engagement is formalized for Forest Service management and project level decisions.  The rule references other changes to public engagement that are pending outside of NEPA analyses and decisions.  We suggest that those directives or handbook additions be provided prior to finalization of this rule.


C. Conclusion

Outfitters appreciate the opportunity to provide these comments on the revisions to the proposed NEPA rulemaking.  If you need any additional information on any of these areas, please let us know.  We look forward to continuing to stay involved in this rulemaking process and providing input from the outfitter and guide and outdoor recreation communities to assist the Forest Service in its increased efficiency efforts.



[1] See, e.g., Will Harlen, Don’t Let Them Silence You, Blue Ridge Outdoors (Aug. 1, 2019), (“Without public notice, there would be no safeguards against logging old growth, harming rare habitats, muddying trout streams, or developing unroaded areas with roads and timber production.”).

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