Understanding Permit Use-of-Allocation Reviews Authorized in the EXPLORE Act for Forest Service and BLM Permits
Use-it-or-lose-it requirements for holders of Forest Service special-use permits have been in place since the Forest Service finalized its special-use permitting policies in 1985. In 2008, the Forest Service made significant changes to that policy in response to pressure from institutional users to provide more capacity for their services. As a result, the Forest Service adopted a new policy that authorized reviews of utilization of allocated capacity every five years. Outfitters with 1,000 visitor-use days or less on their permit were assigned actual use plus 25% up to their original allocated capacity. Outfitters with more than 1,000 visitor-use days received actual use plus 15% of their allocated capacity. This policy was invalidated when the EXPLORE Act was signed into law on January 4, 2025.
Bifurcation of the assignment of use by permit size made no sense. AO pushed to change this illogical requirement since the Guides and Outfitters (or GO) Act was first introduced in 2016. The use-of-allocation review “directives” finalized in 2008 were not regulation, so the Forest Service was not legally required to execute them. BLM never adopted this policy and did not have a formal use-of-allocation review policy, although the agency had the authority to terminate permits for non-use.
What Changed with the EXPLORE Act
The EXPLORE Act standardizes use-of-allocation reviews for the Forest Service and the BLM. Under the Act, the Forest Service is legally required to implement use-of-allocation reviews every five years. BLM “may” implement them, but it is not legally required to do so. If the BLM does implement such reviews, the agency is required to follow the same process as the Forest Service. Both agencies are required to assign 125% of the actual use (up to the original allocated capacity in the permit) in the highest year of the five years used for review.
The policy to assign actual use plus 15% for outfitters with over 1,000 visitor-use days was eliminated and replaced by actual plus 25% up to the original allocation. Furthermore, a visitor-use day is defined as a use day, launch, or any other metric used to assign permitted capacity. There are areas where permits are issued without an assignment of allocated capacity. Use-of-allocation reviews are not mandated in those circumstances.
Credits for Temporarily Surrendered Capacity
A new provision allows a ½ visitor-use day credit for declared non-use if the permit administrator approves it, which is supposed to be acknowledged in advance of the surrender. In other words, a permit holder may inform the agency of its inability to utilize a specific number of visitor-use days and temporarily surrender that use in advance of the season, receiving a ½ visitor-use day credit for each such unusable visitor-use day if the resource manager approves it. Actual use plus the ½ visitor-use day credit for approved non-use will constitute “actual use” when reviews are conducted.
Where the use of visitor-use days is prevented by circumstances beyond the control of the permit holder, such as natural disasters, the agency may provide one visitor-use day credit for each visitor-use day surrendered, provided that such circumstances are acknowledged by the permit administrator in advance. How these circumstances will be officially acknowledged by the agency will be determined in directives or other guidance, which is expected to be issued in the coming months. For example, will an outfitter who suffers from a debilitating illness for a year or whose facilities are destroyed be allowed to surrender all their days and receive full credit for that year? How will the impact of drought or fire be recognized?
Temporary Reassignment of Surrendered Capacity
The EXPLORE Act authorizes the Forest Service and the BLM to temporarily reassign surrendered visitor-use days to—
- other existing or potential service providers, even if the reassignment would result in the assignee exceeding its original permit allocation; or
- holders of permits for organizational camps, single events, single organized group activities or events under 200 visitor-use days, or to non-commercial users where their use is allocated.
Given the legislation’s mandate to increase or promote recreational use among youth and veterans, services to these groups may have priority in the assignment of surrendered capacity where those groups have expressed an interest in unused capacity.
May I Be Assigned Additional Capacity During the Permit Term?
Yes, that appears to be allowed under certain circumstances. Subsection 318(c) of the EXPLORE Act provides that “If unallocated visitor-use days are available, the Secretary concerned may, at any time, amend a special recreation permit to allocate additional visitor-use days to a qualified recreation service provider.” However, an assignment under this subsection of additional capacity above the original allocation may not be part of the use-of-allocation review process, which limits the assignment of visitor use days to actual plus 25% of actual in the highest of the five years, up to the original allocation.
When Will These Provisions Take Effect?
These and certain other provisions in the EXPLORE Act took effect upon enactment of the Act in early January 2025. The Act specifies deadlines for other provisions, including directing establishment and implementation of a program for authorizing temporary permits within six months of enactment of the Act. The agencies are currently working on guidance and other initiatives to implement the provisions in the EXPLORE Act.