Special Areas; Roadless Area Conservation; Applicability to the National Forests in Colorado, 43544-43565 [E8-17109]
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Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / Proposed Rules
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 294
RIN 0596–AC74
Special Areas; Roadless Area
Conservation; Applicability to the
National Forests in Colorado
Forest Service, USDA Forest
Service.
ACTION: Notice of proposed rulemaking;
request for comment.
sroberts on PROD1PC70 with PROPOSALS
AGENCY:
SUMMARY: The Forest Service, U.S.
Department of Agriculture (USDA), is
proposing to establish a State-specific
rule to provide management direction
for conserving Colorado roadless areas.
The USDA invites written comments on
both the proposed rule and the draft
environmental impact statement (DEIS)
and will consider those comments in
developing a final rule and final
environmental impact statement (FEIS).
The final rule will be published in the
Federal Register.
DATES: Comments must be received in
writing 90 days from the date the rule
is published in the Federal Register.
ADDRESSES: Comments may be sent via
e-mail to COcomments@fsroadless.org.
Comments also may be submitted via
the internet at https://
www.regulations.gov. Written comments
concerning this notice should be
addressed to Roadless Area
Conservation—Colorado, P.O. Box
162909, Sacramento, CA 95816–2909, or
via facsimile to 916–456–6724.
All comments, including names and
addresses, when provided, are placed in
the record and are available for public
inspection and copying.
A copy of this proposed rule, draft
environmental impact statement (DEIS),
the DEIS summary, dates and locations
of public meetings, and other
information related to this rulemaking
will be available at the national roadless
Web site https://www.roadless.fs.fed.us.
Reviewers may request printed copies or
compact disks of the DEIS and the
summary by writing to Colorado
Roadless Team/Planning, USDA Forest
Service, Rocky Mountain Regional
Office, 740 Simms Street, Golden, CO
80401–4720, or by e-mail to commentsrocky-mountain-regionaloffice@fs.fed.us, or by Fax to 303–275–
5134. When ordering, requesters must
specify their address, if they wish to
receive the summary or full set of
documents, and if the material should
be provided in print or compact disk.
Printed copies will be available for
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public viewing at Forest Service district
and supervisor’s offices within the State
of Colorado.
FOR FURTHER INFORMATION CONTACT:
Colorado Roadless Rule Team Leader
Kathy Kurtz at (303) 275–5083.
Individuals using telecommunication
devices for the deaf (TDD) may call the
Federal Information Relay Service
(FIRS) at 1–800–877–8339 between 8
a.m. and 8 p.m. Eastern Standard Time,
Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background
As a leader in natural resource
conservation, the Forest Service
provides direction for the management
and use of the Nation’s forests,
rangeland, and aquatic ecosystems
under its jurisdiction. Similarly, the
State of Colorado is committed to
sustained natural resource use and
conservation of State and Federal land
within its borders. Furthermore, the
Forest Service is charged to collaborate
cooperatively with states and other
interested parties regarding the use and
management of the National Forest
System (NFS).
State of Colorado Petition
On July 14, 2005, the State of
Colorado announced it would submit a
petition requesting specific regulatory
protections for the inventoried roadless
areas within the State. The State’s
commitment to participate was
evidenced by Senate Bill 05–243, the
‘‘Roadless Areas Review Task Force’’
legislation signed into law on June 8,
2005. The bill outlined membership and
responsibilities of a 13-member
bipartisan task force to make
recommendations to the Governor
regarding inventoried roadless areas in
NFS lands in Colorado. The task force
held nine public meetings throughout
the State, reviewed over 40,000 public
comments, and conducted a
comprehensive review of Colorado’s 4.4
million acres of roadless areas (2001
Roadless Rule).
Colorado’s petition (2006 petition)
was submitted to the Secretary of
Agriculture for consideration on
November 13, 2006, by then-Governor
Owens with the provision it be
considered under section 553(e) of the
Administrative Procedure Act and
USDA regulations at 7 CFR 1.28. On
April 11, 2007, Governor Ritter
resubmitted the 2006 petition with a
substantive letter of transmittal, which
became the 2007 petition. Governor
Ritter’s transmittal letter requested that
state-specific rulemaking be undertaken
to provide an ‘‘insurance policy for
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protection of our roadless areas,’’ given
ongoing legal uncertainty. The 2007
petition took into account State and
local resource management challenges
along with the national interest in
maintaining roadless characteristics and
the need for management flexibility in
certain circumstances.
The Roadless Area Conservation
National Advisory Committee
(RACNAC) reviewed the 2007 petition
on June 13 and 14, 2007, in Washington,
DC. Harris Sherman, executive director
of the Colorado Department of Natural
Resources, representing Governor Ritter,
described the scope and intent of the
2007 petition. The RACNAC also heard
comments from other State and Forest
Service officials, task force members,
and members of the public. On August
8, 2007, the RACNAC issued a
unanimous consensus-based
recommendation to the Secretary to
direct the Forest Service, with the State
of Colorado as a cooperating agency, to
proceed with rulemaking based on the
2007 petition.
After reviewing the RACNAC’s
recommendation, the Secretary accepted
the 2007 petition on August 24, 2007,
and directed the Forest Service to
initiate rulemaking based on the
petition. The proposed rule would
respond to the 2007 petition by
establishing a system of Colorado
Roadless Areas (CRAs) with protections
for these areas that would supersede the
2001 Roadless Rule.
The USDA, State, and Forest Service
are committed to conserving and
managing roadless areas and consider
these areas an important and
exceptional component of the NFS. The
USDA, State, and Forest Service believe
the most viable path for lasting
conservation of these areas is through
properly integrating local, State, and
national perspectives on roadless area
management on NFS lands located
within the State of Colorado.
Through a memorandum of
understanding dated January 8, 2008,
the State of Colorado was granted
cooperating agency status with the
Forest Service, under 40 CFR 1508.5, for
the preparation of the environmental
impact statement (EIS) associated with
this rulemaking.
Within the 2007 petition, the State
requested the Colorado Department of
Natural Resources and/or the Colorado
Division of Wildlife be offered
cooperating agency status to assure
participation in the evaluation of future
proposed activities in CRAs associated
with Federal coal reserves under certain
lands in the North Fork coal mining area
on the Grand Mesa, Uncompahgre, and
Gunnison National Forests, and
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proposed activities associated with ski
area lands proposed for removal from
roadless designation, listed in Table 2.
In addition, the Forest Service will offer
cooperating agency status to the State
where it expresses an interest for any
Forest Service project or planning
activity on NFS lands located within
CRAs, pursuant to the Council on
Environmental Quality implementing
National Environmental Policy Act
(NEPA) regulations at 40 CFR 1500–
1508. Where the Forest Service does not
have the authority to grant cooperating
agency status, the Forest Service will
coordinate with the State.
National Forest System Land
Inventories in Colorado
The 2007 petition proposed using the
2001 Roadless Rule inventoried roadless
areas as a basis for identifying CRAs.
These inventories would be updated by
technical corrections to the inventory,
such as but not limited to,
congressionally-designated areas as
defined in Table 3, land exchanges, and
any boundary line revisions including
additions and deletions to the inventory
through revised forest plans (Arapaho
and Roosevelt, Routt, Rio Grande and
White River National Forests) and
ongoing forest plan revisions (Grand
Mesa, Uncompahgre, and Gunnison;
San Juan; Pike and San Isabel; and
Manti-La Sal National Forests). Finally,
the 2007 petition identified that certain
portions of ski areas (described in Table
2) were not to be included in CRAs.
Table 1 displays the acreage changes
between the 2001 inventoried roadless
areas (IRAs) and the proposed CRA
boundaries.
TABLE 1.—NET CHANGE IN ROADLESS ACRES DESIGNATIONS BY FOREST—INVENTORIED ROADLESS AREA ACRES TO
COLORADO ROADLESS AREA ACRES
Congressionally designated
as wilderness
or special
areas 2 not
included in
IRAs or CRAs
2001 Rule
total IRA
acres 1
Arapaho-Roosevelt ......
GMUG ..........................
Pike-San Isabel ............
Rio Grande ...................
Routt .............................
San Juan ......................
White River ..................
Manti La Sal in Colorado ..........................
Total State of Colorado ...................
Total IRA
acres without
congressionally designated
acres
IRA acres not
included within
CRAs
Unroaded
acres added to
CRAs
Total roadless
acres in CRAs
(37,000)
354,000
(5,000)
1,000
350,000
(4,000)
(67,000)
1,060,000
(329,000)
120,000
(207,000)
(19,000)
669,000
(77,000)
82,000
530,000
(16,000)
4,000
853,000
(2005 draft)
674,000
(2006 draft)
518,000
442,000
(10,000)
2,000
434,000
(8,000)
544,000
(84,000)
99,000
14,000
640,000
(5,000)
1,000
558,000
(2006 draft)
636,000
11,000
(4,000)
500
8,000
(2006 draft)
(3,000)
4,249,000
(529,000)
309,000
4,031,000
(218,000)
391,000
(1997)
1,127,000
(1979)
688,000
(1979)
530,000
(1996)
442,000
(1998)
604,000
(1979)
640,000
(2002)
(60,000)
11,000
(1979)
4,433,000
(184,000)
Net change
between IRA
and CRA
acres
5,000
(12,000)
(4,000)
Acres may not add due to rounding (ref. DEIS).
1 The 2001 Roadless Rule used inventoried roadless areas from forest plans that were in effect at the time the 2001 Rule was developed, or a
roadless inventory that had undergone public involvement. The date of each forest’s inventory used for the 2001 Rule is shown here. Acreages
are from the 2001 Roadless Rule FEIS.
2 This column includes acres for the James Peak and Spanish Peak Wildernesses and additions to the Indian Peaks Wilderness, and Bowen
Gulch and James Peak Protection Areas, Roubideau and Tabeguache Special Areas, Fossil Ridge Recreation Management Area, and the
Piedra Special Management Unit all designated by Congress but not excluded from the 2001 RACR inventory.
3 Acres not included are those identified as substantially altered, mapping errors, updated GIS technology, land exchanges, and ski area acres.
TABLE 2.—SKI AREA ACRES IN 2001 IRAS OR FOREST PLAN INVENTORIES NOT INCLUDED IN CRAS PER 2007 PETITION
National Forest
ski areas
Ski area
permitted
acres
Colorado roadless
area(s)
Additional
ski area
allocation 1
acres
Total ski acres
not included in
CRAs
Arapaho-Roosevelt National Forest
sroberts on PROD1PC70 with PROPOSALS
Loveland ..........................................................
Bard Creek, Mount Sniktau ............................
1,370
1,620
2,990
900
0
900
560
0
560
Grand Mesa, Uncompahgre, and Gunnison National Forest
Crested Butte ..................................................
Gothic .............................................................
Pike-San Isabel National Forest
Ski Cooper ......................................................
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TABLE 2.—SKI AREA ACRES IN 2001 IRAS OR FOREST PLAN INVENTORIES NOT INCLUDED IN CRAS PER 2007
PETITION—Continued
National Forest
ski areas
Additional
ski area
allocation 1
acres
Ski area
permitted
acres
Colorado roadless
area(s)
Total ski acres
not included in
CRAs
Routt National Forest
Steamboat Springs .........................................
Long Park .......................................................
180
0
180
0
290
90
San Juan National Forest—(Draft Revised Forest Plan)
Durango Mountain Resort ...............................
San Miguel .....................................................
White River National Forest
Arapahoe Basin ..............................................
Aspen Mt .........................................................
Beaver Creek ..................................................
Breckenridge ...................................................
Buttermilk ........................................................
Copper Mountain ............................................
Snowmass .......................................................
Vail ..................................................................
Porcupine Peak ..............................................
McFarlane ......................................................
Meadow Mountain A & B ...............................
Tenmile ...........................................................
Burnt Mountain ...............................................
Ptarmigan Hill .................................................
Burnt Mountain ...............................................
Game Creek ...................................................
1,050
50
510
150
50
720
80
900
0
0
0
0
0
0
0
0
1,050
50
510
150
50
720
80
900
Total .........................................................
.........................................................................
6,500
1,700
8,200
Ski area acres rounded to nearest 10 acres and total acres rounded to nearest 100 acres. Totals may not add due to rounding.
Ski areas on National Forest System lands in the State of Colorado that are not listed here do not contain roadless acres within their permit or
allocation boundary.
1 Acres allocated in forest plans to ski area management that adjoin currently operating ski areas but are not within the current permitted area.
2 Expansion of Durango Mountain Resort is included within the San Juan’s forest plan revision, draft preferred alternative. There are 90 acres
of roadless area to be excluded from the CRA inventory.
TABLE 3.—CONGRESSIONALLY DESIGNATED ACRES INCLUDED IN 2001 IRAS AND NOT INCLUDED IN CRAS
Acres within
roadless areas
National Forest
Bowen Gulch Protection Area ....................................................
Indian Peaks Wilderness additions ............................................
James Peak Protection Area ......................................................
James Peak Wilderness .............................................................
Fossil Ridge Recreation Management Area ..............................
Roubideau Area ..........................................................................
Tabeguache Area .......................................................................
Spanish Peak Wilderness ..........................................................
Piedra Special Management Unit ...............................................
Arapaho-Roosevelt .....................................................................
Arapaho-Roosevelt .....................................................................
Arapaho-Roosevelt .....................................................................
Arapaho-Roosevelt .....................................................................
Grand Mesa, Uncompahgre, and Gunnison ..............................
Grand Mesa, Uncompahgre, and Gunnison ..............................
Grand Mesa, Uncompahgre, and Gunnison ..............................
Pike-San Isabel ..........................................................................
San Juan ....................................................................................
8,600
3,000
11,300
14,300
39,800
18,600
8,900
18,700
60,400
Total .....................................................................................
sroberts on PROD1PC70 with PROPOSALS
Congressional designations
.....................................................................................................
184,000
Using these inventories, the Forest
Service has identified 4.031 million
acres of roadless areas that would be
subject to this proposed rule. This rule,
if finalized as proposed, would establish
CRA maps defining the boundaries of
these areas and would be maintained at
the national headquarters office of the
Forest Service as provided in section
294.32 of this rule. These maps and
acreages may be modified with
additions or deletions to boundary lines
only as outlined in section 294.37.
Acres not included in the CRAs that
were within the boundaries of the 2001
Roadless Rule IRAs would not be
subject to the 2001 Roadless Rule and
would be managed under their
respective forest plan direction as
provided in section 294.36(i).
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Proposed Roadless Area Conservation
Rule for Colorado
The USDA, State, and Forest Service
believe this proposed rule for Colorado
represents a unique opportunity to
collaboratively manage and protect
roadless areas within the State of
Colorado. The petitioning process and
the proposed rule enables the Forest
Service to consider the comments of
people most affected by or concerned
about the contents of state-specific
rulemaking for roadless areas across the
State in balance with national concerns
for these areas. The proposed rule
represents a balanced solution for
retaining the integrity and natural
beauty of Colorado’s roadless areas
while maintaining management
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flexibility to affect future changes where
needed.
The Forest Service, in cooperation
with the State, has completed a review
of the social, economic, and
environmental characteristics and
values associated with the IRAs in
Colorado. With public input, the Forest
Service has considered the question of
how these roadless lands should be
managed within the scope of the Forest
Service’s authority. The management
direction proposed by these regulations
would take precedence over any
inconsistent regulatory provision or
land management plan but would not
supersede valid existing rights. All
forests must meet the requirements of
the proposed rule, regardless of their
forest plan guidance. However, the
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proposed rule at sections 294.33 and
294.34 does allow restrictions from
forest plans to apply if they are more
stringent than the proposed rule. Forest
plans are revised at approximately 15year intervals and are amended as
needed. A revision or amendment could
result in more restrictive direction for
an individual CRA, but any forest plan
direction with less restrictive direction,
would have no force or effect (sec.
294.36(d)).
sroberts on PROD1PC70 with PROPOSALS
Ski Areas
The State of Colorado’s petition
requested the Forest Service not include
within CRAs, certain acres that are
within the 2001 IRAs and allocated in
forest plans to a ski-based management
area prescription. This includes acres
that are currently within the ski area
permitted boundaries (6,500 acres) as
well as acres that have been allocated in
forest plans (current or draft, 1,700
acres) to a ski-based management area
prescription that are not currently
within the permitted areas but directly
adjoin current operating ski areas. A list
of the acres not included in the CRAs by
ski area can be found in Table 2.
The combined 8,200 ski area acres
that are not proposed for CRA
designation would remain subject to
their respective forest plan direction
and applicable terms and conditions of
special use authorizations. Any
proposal for these ski area acres,
including expanding a ski area permit
boundary into an area allocated to a skibased management prescription would
be subject to all appropriate
environmental analysis, including
NEPA analysis.
Limited Road Construction and
Reconstruction
The proposed rule at section 294.33
prohibits road building in CRAs except
under certain circumstances. The
circumstances in section 294.33(b)
allow for a road, whereas circumstances
in section 294.33(c) are specific to
temporary roads. Whenever a forest road
is proposed, an EIS will be prepared
(sec. 294.33(e)). For all other
circumstances, NEPA requirements will
be used to determine the level of
environmental analysis needed.
Many exceptions in the proposed rule
mirror the exceptions for road building
provided in the 2001 Roadless Rule, but
several additional circumstances
allowing road building are proposed.
The proposed rule at section
294.33(b)(6) includes an additional
circumstance that would allow for the
construction and maintenance of roads
for existing and future utility and water
conveyance structures. The Forest
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Service and the State believe this is a
needed exception so Colorado’s water
and utility infrastructure can be
properly operated and maintained. This
provision is only intended to apply to
existing and future authorized utility
and water conveyance structures. The
proposed rule at section 294.31 provides
the definition for utility and water
conveyance structures. The definition
does not include road construction or
reconstruction for the construction or
maintenance needed for reservoirs. In
addition, the proposed rule at section
294.33(b)(7) includes an additional
circumstance that would allow for the
construction and maintenance of roads
needed for the management of livestock
grazing. The Forest Service and State
recognize the importance of maintaining
a viable ranching industry in Colorado.
Conserving sustainable, working
grasslands reduces development
pressure on these lands and is a
component of the Forest Service’s Open
Space Conservation Strategy.
Another change from the 2001
Roadless Rule is the emphasis the
proposed rule places on using
temporary roads to the extent possible
for any of the circumstances allowing
for road building (sec. 294.33(c) and (e)).
The proposed rule also emphasizes
restoration of temporary roads at section
294.33(c).
The Forest Service is charged with
managing the National Forest
transportation system, including
requirements for temporary roads to be
designed with the goal of reestablishing
vegetative cover on the roadway and
areas where the vegetative cover has
been disturbed by road construction
within ten years after the termination of
a contract, permit, or lease through
either artificial or natural means (ref. 16
U.S.C. 1608). The Forest Service and
State have considerable experience
dealing with road restoration activities
across many types of programs and
activities. For example, the State
administers a federally-funded
abandoned mine reclamation program
in which one principal goal is to
identify environmental problems arising
from abandoned mines and then to
design appropriate closure methods and
reclamation techniques (including
restoring roads) at project sites. The
State has restored over 1,500 acres of
abandoned mine lands statewide since
1980.
The proposed rule anticipates that
lands affected will be returned to a
condition consistent with the
preexisting roadless characteristics (sec.
294.33(c)). However, the proposed rule
recognizes that restoration efforts are to
proceed in an environmentally sound
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way. In rare instances, complete
obliteration and restoration (such as
fully recontouring the roadway to its
natural state) may cause more
environmental harm than recontouring
to a level that stabilizes against soil loss
or other damage. For example, when the
Forest Service decommissions
temporary roads, restoration and
obliteration are intended to make the
corridor unusable as a road, stabilize it
against soil loss or other damage, and
reestablish the affected land’s natural
resource capabilities through such
actions as: removing bridges and
culverts and reestablishing normal
maximum water flow, eliminating
ditches, out-sloping the roadbed,
removing ruts and berms, and
recontouring road cuts. However, fully
recontouring a road cut may set the
stage for higher levels of soil loss due to
unsuccessful revegetation on a steep
slope as compared to partial
recontouring incorporating a design that
facilitates revegetation.
Roads built for access to existing oil
and gas leases as of the date of the
Colorado Rule (sec. 294.33(c)(3)) and
roads built to accommodate coal mining
exploration and coal-related surface
activities in the North Fork coal mining
area (sec. 294.33(c)(4)) would be
classified as temporary or long-term
temporary roads. The proposed rule
would establish a new category of road,
long-term temporary road, which would
have application only in CRAs. The
intent is to provide a classification for
roads associated with oil and gas, or
coal leases that better recognizes the
longer term, but non-permanent nature
that is typical of such roads. Long-term
temporary roads would be expected to
be in place anywhere from 10 to 30
years. They would be included in the
forest transportation system, ensuring
they will be monitored and maintained
in compliance with the terms of the
applicable permit or special use
authorization. However, as with other
temporary roads, any long-term
temporary roads constructed pursuant
to an oil and gas lease or pursuant to a
coal exploration license or a coal lease
shall be decommissioned and the
affected landscape restored when the
road is no longer needed, or upon
termination of the lease or license. The
intent of this provision is to preserve the
roadless character of CRAs to the
maximum extent practicable.
Except for emergency purposes,
administrative use, or motorized vehicle
use that is specifically authorized, all
roads constructed in CRAs will be
closed to motorized vehicles, including
off-highway vehicles (OHVs) not
authorized for the specific activity for
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which the road was constructed (sec.
294.33(d)). Any temporary roads,
including long-term temporary roads,
built in a CRA would not serve as the
basis for altering the management status
for that CRA. (sec. 294.33(c)).
reconstruction associated with
developing new mineral material sites
in roadless areas, unless this material is
necessary to and accessible from roads
allowed to be constructed under other
provisions of the rule.
Colorado State Land Board Mineral
Interests
The proposed rule at section
294.33(b)(2) aligns with the Colorado
State Land Board’s current ability to
develop its mineral interests that
underlie NFS lands in CRAs. Access to
such mineral interests would continue
to be governed by operation of the
standard applicable laws and
regulations rather than by this rule. The
Forest Service and the State are
committed to exploring opportunities
for land exchanges whereby the State
could acquire other property interests of
equal value, outside of roadless areas.
Such exchanges would provide the
Forest Service with unified
administration of both surface and
mineral interests in CRAs.
Leasable Minerals—Oil and Gas
Like the 2001 Roadless Rule the
proposed rule does not prohibit oil and
gas leasing. However, prohibitions on
road construction and reconstruction
provided in the proposed rule (sec.
294.33), would affect Federal oil and gas
leases, subject to valid and existing
rights. The proposed rule (sec. 294.33
(c)(3)) would require future leases
within CRAs include stipulations that
prohibit road construction. Drilling and
production may be allowed on leases in
roadless areas issued after the effective
date of the rule, but new roads to access
sites for drilling and production will not
be allowed. Oil and gas resources in
roadless areas under leases issued after
the effective date of the final rule may
be developed by helicopter access or by
other means such as directional drilling
from outside the roadless areas. These
provisions bar roading, but would not
restrict the construction of oil and gas
pipelines in CRAs where the
construction of a pipeline is necessary
to transport the product of an oil and
gas lease on lands within a CRA that are
under lease by the Secretary of the
Interior as of the effective date of the
final rule.
The proposed rule at section
294.33(c)(3) would allow for temporary
or long-term temporary road
construction or reconstruction for access
on and to Federal oil and gas leases that
were issued before the effective date of
the final rule and that allow road
construction. Such access will be
allowed pursuant to valid existing rights
but restricted to lessees, operators, and
their designated contractors; Forest
Service and Bureau of Land
Management (BLM) personnel and other
federal and state agencies with
jurisdictional authority over mineral
development activity allowed under the
proposed rule; and fire, emergency, or
law enforcement personnel.
The proposed rule does not allow the
Forest Service to authorize the BLM to
grant a waiver (permanent removal),
exception (case-by-case exemption),
modification (permanent changes), or
otherwise remove stipulations
prohibiting surface occupancy or road
construction or reconstruction on
existing leases or on any future lease in
any CRAs where these stipulations
occur, It is the intent of the proposed
rule to maintain all no surface
occupancy, controlled surface use and
Public and Safety
The USDA, Forest Service, and State
are committed to preserving roadless
area characteristics while also
protecting human health and safety. In
an effort to achieve a proper balance, the
proposed rule would allow for the
construction of a temporary road if it is
needed to safeguard public health when
there is a catastrophic event, such as a
flood or fire, which would cause the
loss of life or property (sec.
294.33(c)(2)).
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Locatable Minerals
Development of locatable minerals is
subject to the General Mining Law of
1872, as amended. Like the 2001
Roadless Rule the proposed rule does
not seek to impose any limits on
activities related to the exploration for
or development of locatable minerals.
The proposed rule at section
294.33(b)(2) allows for roads provided
for by statute or treaty, which includes
roads provided under the General
Mining Law of 1872, as amended. The
proposed rule does not affect or seek
any withdrawal of the mineral estate in
CRAs. Therefore, the proposed rule will
not affect rights of reasonable access to
prospect and explore lands open to
mineral entry and location, or to
develop any minerals discovered.
Saleable Minerals
Disposal of saleable minerals (mineral
materials) is at the discretion of the
Forest Service, subject to the provisions
of 36 CFR 228 subpart C. The proposed
rule prohibits road construction or
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other stipulations that restrict road
construction and reconstruction on all
existing leases, including those
specifically tied to the 2001 Roadless
Rule.
Leasable Minerals—Coal
The proposed rule at section
294.33(c)(4) provides for temporary or
long-term temporary roads associated
with the exploration and mining of coal
resources in roadless areas in the North
Fork coal mining area on the Grand
Mesa, Uncompahgre, and Gunnison
National Forests. This area is identified
on the North Fork coal mining area map
within the DEIS for the proposed
Colorado Roadless Rule. This area
would be included in the CRAs and will
be managed in a way that permits
temporary or long-term temporary roads
and other coal related surface activities
associated with coal exploration and
coal mining to occur (sec. 294.33(c)(4)).
Such temporary or long-term temporary
roads will be closed to the public. The
use of these roads will be restricted to
coal mine and oil and gas operations,
the Forest Service and other Federal and
State agencies with jurisdictional
authority, including emergency
response, fire, and law enforcement
personnel.
Temporary and long-term temporary
coal mine roads may be constructed for
exploration drilling, resource
monitoring, safety, or installation and
operation of surface facilities needed to
operate coal mines, including methane
venting wells. In some instances roads
are necessary to comply with Mine
Safety and Health Administration
(MSHA) requirements for mine safety,
and to meet Colorado Division of
Reclamation, Mining, and Safety
requirements for resource monitoring.
For example, roads may be constructed
to facilitate the venting of coal mine
methane gas. Methane is a by-product of
coal mining in the North Fork area and
must be removed from the mines to
protect miner health and safety.
The proposed rule also provides the
opportunity for an oil and gas lessee to
use roads for the purpose of collecting
and transporting coal mine methane
rather than venting the methane into the
atmosphere. These activities will remain
within the authorized right of way for
the long-term temporary roads; no
additional roads or pipelines outside the
right-of-way will be constructed. Any
roads constructed pursuant to a coal
lease or exploration license and used for
collection and transportation of coal
mine methane under an oil and gas
lease shall be decommissioned and the
affected landscape restored when the
road is no longer needed for coal mining
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purposes or coal mine methane
collection, whichever is later.
Leasable Resources—Geothermal Energy
Colorado has high geothermal energy
potential on NFS lands both inside and
outside roadless areas. However, sitespecific information on this resource in
CRAs is limited. At this time, the
proposed Colorado Roadless Rule does
not include a specific exemption for
geothermal energy resources. The
proposed rule makes no special
provision for road construction and
reconstruction associated with
geothermal energy sources. Once
additional information becomes
available, the State or other parties
could choose to seek a change in the
rule’s restrictions.
Road Closures
The proposed rule does not provide
direction about where and when OHV
use would be permissible except roads
constructed under this provision would
be closed to OHVs pursuant to section
294.33(d). Travel planning-related
actions will continue to be addressed
through travel management and
individual forest plans.
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Tree Cutting, Sale, or Removal—Forest
Health
In order to reduce the hazard of
wildfire near communities and after
careful consideration of roadless area
characteristics, the proposed rule at
sections 294.34(b)(1)(ii) and 294.33
(c)(1) allows for forest health treatments
and temporary road construction to
meet needs described in Community
Wildfire Protection Plans (CWPPs) or, if
a CWPP is not in place, within the
Wildland Urban Interface (WUI). CWPPs
are collaborative agreements in which
local communities identify and
prioritize areas for hazardous fuel
reduction treatments. The Forest Service
and the State believe that allowing
forest health treatments for projects
identified in CWPPs or within WUIs
strike the proper balance of protecting
roadless area characteristics while
allowing forest health and community
protection needs to be addressed.
Oil and Gas Pipelines
After the petition was submitted the
State requested that the proposed rule
(sec. 294.35) restrict the construction of
oil and gas pipelines through CRAs
where a source or sources of the oil and/
or gas are exclusively outside CRAs. The
proposed rule would not prohibit the
construction of pipelines that were
authorized by the Forest Service or
another jurisdictional agency prior to
the effective date of the final rule. The
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proposed rule would not restrict the
construction of oil and gas pipelines in
CRAs where the construction of a
pipeline is necessary to transport the
product of an oil and gas lease on lands
within a CRA that are under lease by the
Secretary of the Interior as of the
effective date of the final rule.
Access
The Forest Service and State are
committed to conserving roadless area
characteristics while also providing
reasonable access to public and private
property and facilities. Several aspects
of the proposed rule address the need
for the State and/or private parties to
access property and/or facilities (sec.
294.33(b)(2) and (6); (sec. 294.33(c)(3)
and (4); sec. 294.36(g)).
Regulatory Certifications
Regulatory Planning and Review
This proposed rule was reviewed
under USDA procedures, Executive
Order 12866 issued September 30, 1993
(E.O. 12866), as amended by E.O. 13258
and E.O. 13422 on Regulatory Planning
and Review, and the major rule
provisions of the Small Business
Regulatory Enforcement and Fairness
Act (5 U.S.C. 800). These executive
orders address regulatory planning and
review and require that agencies
conduct a regulatory analysis for
economically significant regulatory
actions. Economically significant
regulatory actions are those that have an
annual effect on the economy of $100
million or more or adversely affect the
economy or economic sectors. Because
this rule is projected to have an annual
effect on the economy of approximately
$500 million, this proposed rule has
been designated as significant and is
subject to Office of Management and
Budget (OMB) review under E.O. 12866.
This proposed rule is not expected to
interfere with an action taken or
planned by another agency nor raise
new legal or policy issues. This action
will not alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients of such programs.
A regulatory impact analysis has been
prepared for this proposed rule. OMB
Circulars as well as guidance regarding
E.O. 12866 indicate that regulatory
impact analysis should include benefit
cost analysis and an assessment of
distributional effects. We are seeking
comments on assumptions, methods,
and conclusions in the Regulatory
Impact Analysis and Cost-Benefit
Analysis. The benefits, costs, and
distributional effects of three
alternatives referred to as follows: the
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proposed Colorado Roadless Rule
(proposed rule), 2001 Roadless Rule
(2001 rule) and land management plans
(LMPs) are analyzed over a 15 year time
period. As of the printing of this
proposed rule, the 2001 rule is in
operation. For the purpose of regulatory
impact analysis, the 2001 rule
represents baseline conditions or goods
and services provided by NFS lands in
the near future in the absence of the
proposed rule.
The proposed rule is programmatic in
nature and intended to guide future
development of proposed actions within
roadless areas. The proposed rule is
intended to provide greater management
flexibility under certain circumstances
to address unique and local land
management challenges, while
continuing to conserve roadless values
and characteristics. Increased
management flexibility is primarily
needed to reduce hazardous fuels and
large-scale insect and disease outbreaks,
allow access to coal reserves in the
North Fork coal mining areas and ski
area development, and to allow access
to future utility and water conveyances,
while continuing to conserve roadless
area values and characteristics.
This proposal does not authorize the
implementation of any grounddisturbing activities, but rather it
describes circumstances under which
certain activities may be allowed or
restricted within roadless areas. Before
authorizing land use activities in
roadless areas, the Forest Service must
complete a more detailed and sitespecific environmental analysis
pursuant to the NEPA and its
implementing regulations at 40 CFR
1500–1508.
Because the proposed rule does not
prescribe site-specific activities, it is
difficult to predict the benefits and costs
or other changes of the different
alternatives. In addition, the types of
benefits derived from roadless
characteristics and the uses of roadless
areas are far ranging and include a
number of non-market and non-use
benefit categories that are difficult to
measure in monetary terms. As a
consequence, benefits are not
monetized, nor are net present values or
benefit cost ratios estimated. Instead,
increases and/or losses in benefits are
discussed separately for each resource
area in a quantitative or qualitative
manner. Benefits and costs are
organized and discussed in the context
of local land management challenges or
concerns (‘local challenges’) and
‘roadless characteristics’ in an effort to
remain consistent with the overall
purpose of the proposed rule,
recognizing that benefits associated
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with local challenges may trigger or
overlap with benefits associated with
roadless characteristics in some cases
(e.g., forest health). Access and
designations for motorized versus nonmotorized recreation is a topic raised in
comments during scoping, however, the
proposed rule does not provide
direction on where and when offhighway vehicle (OHV) use would be
permissible and makes clear that travel
planning-related actions should be
addressed through travel management
planning and individual land
management plans.
Distributional effects or economic
impacts, in terms of jobs and labor
income, are quantified for the oil and
gas and the coal sectors for an economic
area consisting of five Colorado counties
(Delta, Garfield, Mesa, Montrose, and
Rio Blanco) using a regional impact
model. Fiscal impacts (i.e., mineral
lease payments) are estimated for
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counties where changes in mineral
activity are expected to be physically
located (Delta, Garfield, Gunnison,
Mesa, Montrose, and Pitkin). The
distributional effects associated with
protecting values at risk from wildfire
are characterized by estimating the
number of communities-at-risk
expecting to benefit from fuel treatments
in roadless areas. Distributional effects
or economic impacts are not evaluated
for other economic sectors (e.g., timber
harvest, recreation) due to evidence
presented in respective resource
sections suggesting that the extent or
magnitude of changes in output or
services are not sufficient to cause
significant changes in distributional
effects.
Details about the environmental
effects of the proposed rule can be
found in the Roadless Area
Conservation; National Forest System
Lands in Colorado Draft Environmental
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Impact Statement (DEIS). Effects on
opportunities for small entities under
the proposed rule are discussed in the
context of Executive Order 13272
regarding proper consideration of small
entities and the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), which amended the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). The results of the regulatory
impact analysis for the proposed rule
are summarized in the following tables.
Table 1 provides information related to
roadless area acreage, road miles and
tree-cutting. Table 2 summarizes the
potential benefits and costs of the
proposed rule, the 2001 roadless rule,
and land management plans
alternatives. Table 3 summarizes
distributional effects and economic
impacts of the proposed rule and
alternatives.
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Proper Consideration of Small Entities
This proposed rule has also been
considered in light of Executive Order
13272 regarding proper consideration of
small entities and the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), which amended the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). The Forest Service with the
assistance of the State of Colorado has
determined that this action will not
have a significant economic impact on
a substantial number of small entities as
defined by the E.O. 13272 and SBREFA,
because the proposed rule does not
subject small entities to regulatory
requirements. Therefore, an initial
regulatory flexibility analysis is not
required for this proposed rule.
For small businesses affiliated with
most industry sectors involved with
activities in roadless areas (e.g., coal, oil
and gas), potential opportunities
increase due to easing of restrictions on
road construction and tree-cutting in
certain circumstanced under the
proposed rule. As a result, there is little
or no potential for significant adverse
economic impacts to small businesses
under the proposed rule relative to noaction conditions (i.e., 2001 rule).
There are about 1,390 recreation
special use permits currently authorized
within NFS lands in Colorado of which
a large majority are small businesses,
and 1,066 (77%) are associated with
outfitter and guide permits, some of
which are likely to operate within
roadless areas. However, there is little
difference between alternatives with
respect to recreation special use
authorizations in roadless areas, because
limitations on roading and tree-cutting
under any alternative would not be
likely to affect ability to obtain or use
a recreation use authorizations.
Exceptions might be special-use permit
holders who rely on primitive or semiprimitive recreational settings to
maintain the quality of the outdoor or
remote experience. Increases in road
construction and tree-cutting may have
adverse impacts on permit holders in
specific areas under the proposed rule,
but impacts are not expected to be
significant due to the small percentage
(0.2%) of acreage affected (7,600 acres of
tree-cutting per year) and roads
constructed (21 miles per year) spread
across 4 million acres of Colorado
Roadless Areas. It is also noted that a
significant percentage of roads and treecutting activity will occur within or
near the wildland urban interface areas
where primitive or semi-primitive
settings may already be affected.
Projected harvest volumes from
roadless areas from the seven affected
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National Forest units are all greater
under the proposed rule and land
management plans relative to the noaction alternative (2001 rule). As such
there is little or no potential for adverse
impacts to small entity opportunities,
relative to no-action, in aggregate or in
the context of individual forest unit
areas. Volumes are projected to be
17,700 hundred cubic feet (ccf) less
under the proposed rule, relative to the
land management plans, and
approximately 70% of the decrease is
due to volume changes on the Pike San
Isabel National Forest (decrease of
12,720 ccf). All seven National Forest
units have been in compliance with
small business set aside shares for the
period 1/1/2000 to 9/30/2005. The
proposed rule, relative to the land
management plans alternative, may
decrease small entity opportunities for
wood products businesses associated
with the Pike San Isabel National Forest,
recognizing that small business shares
are already being met and that aggregate
volumes sold from NFS lands may not
change significantly under any
alternative due to flat budget
assumptions. Flat budgets imply that
the percentage of harvest from roadless
areas may change under the alternatives,
but aggregate volumes across all NFS
land are expected to remain relatively
unchanged, on average, implying little
potential for adverse impacts to small
entities.
For leasable minerals associated
energy resources (coal, oil and gas),
significant changes in output are
projected across alternatives. More than
95 percent of the firms associated with
these sectors can be classified as small
as defined by Small Business
Administration standards. Any changes
in oil and gas, or coal development or
production can therefore have an effect
on small business opportunities in these
sectors. A five-county region has been
defined to model the economic impacts
associated with energy resources (Delta,
Garfield, Mesa, Montrose, and Rio
Blanco counties). A total of 355 firms
associated with oil and gas, and coal
development and extraction are
estimated to be located within this
region, of which 95% are likely to be
small (337 firms). However, energy
resource sector jobs, supported annually
by projected activity within roadless
areas, are estimated to increase from 297
under no-action (2001 rule) to 1,481 jobs
under the proposed rule. Labor income
increases by a similar degree from $17.5
million to $96.2 million per year. There
is a slight increase in job numbers under
land management plans (1,592 jobs),
relative to the proposed rule, but the
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magnitude of the difference between the
two alternatives does not suggest that
adverse impacts will be significant if
choosing between the proposed rule and
land management plans. These results
indicate that there is no potential for
adverse impacts to small entities
associated with energy resource
development and extraction under the
proposed rule relative to the 2001 rule,
and that potential adverse impact under
the proposed rule relative to land
management plans are not significant.
For all other economic sectors
considered, changes in resource outputs
are not projected to be significant to the
extent that adverse impacts to small
entities could occur in aggregate or
within regions.
Among 64 counties in the state of
Colorado, 36 counties (56%) are
considered to be small governments
(population less than 50,000). These 36
counties are considered to be small rural
counties having NFS lands within IRAs/
CRAs. Six counties are energy (coal, oil
and gas) producing counties. These six
counties (Delta, Garfield, Gunnison,
Mesa, Montrose, and Pitkin) are
expected to be the counties most likely
to benefit from mineral lease payments
and revenue sharing under the proposed
rule and land management plans. All of
these counties, with the exception of
Mesa can be considered small
governments (population less than
50,000), and all are forecast to receive
significant increases in property tax
receipts from coal, and oil and gas
production, as well as state distributions
of severance taxes and federal royalties
under the proposed rule and land
management plans relative to the noaction alternative. There are slight
increases in payments under land
management plans, relative to the
proposed rule (aggregate payments
increase from $6.8 million to $7.7
million per year). Payments associated
with the Secure Rural Schools and Self
Determination Act (SRSA) and
Payments in Lieu of Taxes (PILT) are
not expected to change significantly, or
any decreases would be largely offset by
increases in federal mineral lease
payments.
The number of at-risk-communities
that may potentially benefit from fuel
treatments in the wildland urban
interface (WUI) areas are projected to
increase under the proposed rule and
land management plans relative to the
2001 rule (no-action alternative). The
likelihood of tree-cutting or fuel
treatments and corresponding reduction
in wildfire hazard is projected to
increase for a total of 90 at-riskcommunities in 16 counties with small
populations (<50,000) under the
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proposed rule, relative to no-action.
Similarly, the likelihood of reduced
wildfire hazard is projected to increase
for 150 at-risk-communities in 18 small
counties under land management plans,
compared to no-action. No counties are
projected to experience a decrease in the
likelihood of road construction or treecutting in the WUI under the proposed
rule or land management plans,
compared to the no action alternative. A
total of 10 counties may experience a
decrease in the likelihood of tree-cutting
or road construction in the WUI under
the proposed rule, relative to land
management plans. These results
indicate that adverse impacts to small
governments, in association with
protection of values at risk from
wildfire, are not likely, when comparing
the action alternatives with no-action.
Therefore, for small governments,
including counties with small
populations and at-risk-communities
from wildfire within those counties,
opportunities for revenue sharing, as
well as protection of values-at-risk are
expected to be maintained or increase
for all counties under the proposed rule
and land management plans compared
to no-action conditions under the 2001
rule.
Mitigation measures for small entity
impacts associated with the proposed
rule are not relevant in many cases,
because the proposed rule eases
restrictions on a number of activities in
many areas, implying increases in
potential opportunities for small
entities, as noted above. Mitigation
measures associated with existing
programs and laws regarding revenue
sharing with counties and small
business shares or set-asides will
continue to apply.
sroberts on PROD1PC70 with PROPOSALS
Controlling Paperwork Burdens on the
Public
This proposed rule does not call for
any additional record keeping or
reporting requirements or other
information collection requirements as
defined in 5 CFR part 1320 that are not
already required by law or not already
approved for use and, therefore,
imposes no additional paperwork
burden on the public. Accordingly, the
review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et. seq.) and its implementing
regulations at 5 CFR part 1320 do not
apply.
Regulatory Risk Assessment
This is a proposed major regulation as
defined in 7 U.S.C. Section 2204e and
a regulatory risk assessment is being
prepared. The regulatory risk
assessment will be made available
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during the comment period. A Notice of
Availability of the risk assessment will
be published in the Federal Register
and it will be available at the Forest
Service Internet roadless Web site
(https://www.roadless.fs.fed.us).
Federalism
The Department has considered this
proposed rule under the requirements of
Executive Order 13132 issued August 4,
1999 (E.O. 13132), Federalism. The
Department has made an assessment
that the proposed rule conforms with
the Federalism principles set out in E.O.
13132; would not impose any
compliance costs on the states; and
would not have substantial direct effects
on the states, on the relationship
between the national government and
the states, nor on the distribution of
power and responsibilities among the
various levels of government. Therefore,
the Department concludes that this
proposed rule does not have Federalism
implications. This proposed rule is
based on a petition submitted by the
State of Colorado under the
Administrative Procedure Act at 5
U.S.C. 553(e) and pursuant to
Department of Agriculture regulations at
7 CFR 1.28. The State’s petition was
developed through a task force with
involvement of local governments. The
State has been a cooperating agency for
the development of this proposed rule.
State and local governments are
encouraged to comment on this
proposed rule, in the course of this
rulemaking process.
Consultation With Indian Tribal
Governments
The United States has a unique
relationship with Indian Tribes as
provided in the Constitution of the
United States, treaties, and federal
statutes. These relationships extend to
the Federal government’s management
of public lands and the Forest Service
strives to assure that its consultation
with Native American Tribes is
meaningful, in good faith, and entered
into on a government-to-government
basis.
On September 23, 2004, President
George W. Bush issued Executive
Memorandum Government-toGovernment Relationship with Tribal
Governments recommitting the Federal
government to work with federally
recognized Native American Tribal
governments on a government-togovernment basis and strongly
supporting and respecting Tribal
sovereignty and self-determination.
Management of roadless areas has
been a topic of interest and importance
to Tribal governments. During
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promulgation of the 2001 Roadless Rule,
Forest Service line officers in the field
were asked to make contact with Tribes
to ensure awareness of the initiative and
of the rulemaking process. Outreach to
Tribes was conducted at the national
forest and grassland level, which is how
Forest Service government-togovernment dialog with Tribes is
typically conducted. Tribal
representatives remained engaged
concerning these issues during the
subsequent litigation and rulemaking
efforts.
The State’s petition identifies that a
vital part of its public process in
developing its petition were the
recommendations and comments
received from Native American Tribes.
The Governor’s office was keenly aware
of the spiritual and cultural significance
some of these areas hold for the Tribes.
There are two resident tribes in
Colorado, both retaining some of their
traditional land base as reservations via
a series of treaties, agreements, and
laws. The Ute Mountain Ute and
Southern Ute Tribes (consisting
originally of the Weeminuche, Capote,
Tabeguache, and Mouaches Bands)—
each a ‘‘domestic sovereign’’ nation—
have reserved some specific offreservation hunting rights in Colorado
and retain inherent aboriginal rights
throughout their traditional territory.
Many other tribes located outside
Colorado maintain tribal interests,
including aboriginal and ceded
territories, and retain inherent
aboriginal rights within the state.
The Forest Service has been
consulting with Colorado-affiliated
tribes regarding this proposed
rulemaking action and analysis process
(see chapter 1). Tribal concerns surfaced
during phone or e-mail consultations.
Those concerns related to: maintaining
existing tribal hunting and access rights
within roadless areas, limiting public
use of temporary roads, and
decommissioning temporary roads after
they are no longer needed. Those land
uses and management activities would
not be affected by the proposed
Colorado Roadless Rule; therefore, those
concerns are briefly discussed but not
analyzed in detail in this EIS.
Consultation with interested or affected
tribes will continue throughout the
analysis and decisionmaking process.
Pursuant to Executive Order 13175 of
November 6, 2000, ‘‘Consultation and
Coordination with Indian Tribal
Governments,’’ the Department has
assessed the impact of this proposed
rule on Indian Tribal governments and
has determined that the proposed rule
does not significantly or uniquely affect
Indian Tribal government communities.
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The proposed rule would establish
direction governing the management
and protection of Colorado Roadless
Areas, however, the proposed rule
respects prior existing rights, and it
addresses discretionary Forest Service
management decisions involving road
construction, timber harvest, and some
mineral activities. The Department has
also determined that this proposed rule
does not impose substantial direct
compliance costs on Indian Tribal
governments. This proposed rule does
not mandate Tribal participation in
roadless management of the planning of
activities in Colorado Roadless Areas.
Rather, the Forest Service officials are
obligated by other agency policies to
consult early with Tribal governments
and to work cooperatively with them
where planning issues affect Tribal
interests.
No Takings Implications
This proposed rule has been analyzed
in accordance with the principles and
criteria contained in Executive Order
12630 issued March 15, 1988. It has
been determined that the proposed rule
does not pose the risk of a taking of
private property.
Civil Justice Reform
This proposed rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. After adoption of this
proposed rule, (1) all State and local
laws and regulations that conflict with
this proposed rule or that would impede
full implementation of this proposed
rule will be preempted; (2) no
retroactive effect would be given to this
proposed rule; and (3) this proposed
rule would not require the use of
administrative proceedings before
parties could file suit in court
challenging its provisions.
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Unfunded Mandates
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538), the Department has
assessed the effects of this proposed rule
on State, local, and Tribal governments
and the private sector. This proposed
rule does not compel the expenditure of
$100 million or more by State, local, or
Tribal governments or anyone in the
private sector. Therefore, a statement
under section 202 of the Act is not
required.
Energy Effects
This proposed rule has been reviewed
under Executive Order 13211 of May 18,
2001, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use. It has been
determined that this proposed rule does
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not constitute a significant energy action
as defined in the executive order.
Based on guidance for implanting EO
13211 (Actions concerning regulations
that significantly affect energy supply,
distribution and use) issued by Office of
Management and Budget (Memorandum
for Heads of Executive Departments and
Agencies, and Independent Regulatory
Agencies (M–01–27), July 13, 2001), this
proposed rule would not create
significant adverse effects in a material
way the productivity, competition, or
prices in the energy sector for the
reasons discussed below.
The difference in potential natural gas
production between the proposed rule
and the 2001 Rule (i.e., conditions
under the no action alternative) is
positive, as is the difference between
land management plans and the no
action alternative. The only potential
adverse impact would be a comparison
of potential gas production under the
proposed rule and the land management
plans alternative; the estimated
difference in potential gas production in
this case is only 3.6 million mcf and is
below the criteria of 25 million mcf
under EO 13211. The difference in oil
production is approximately 350
barrels, well below the criteria of 4,000
barrels.
Potential coal production is estimated
to increase by 4 million tons under the
proposed rule as well as the third
alternative considered (management of
inventoried roadless areas under Land
management plans) compared to
conditions under the no action
alternative (continuance of 2001
Roadless Rule). No adverse outcomes
are anticipated in association with
energy supply, distribution or use
related to coal production.
The proposed rule is expected to
result in an increase in potential
opportunities for gas production,
relative to conditions under the no
action alternative (i.e., the 2001
Roadless Rule). When comparing the
proposed rule to the third alternative
considered (i.e., management of
inventoried roadless areas in accordance
with relevant Land management plans),
there is slight potential for a decrease in
opportunities for gas production.
However, this decrease (3.6 million mcf)
is estimated to be only 0.3% of total gas
production from Colorado wells in 2006
(1.21 billion mcf) and is not anticipated
to affect regional (or national)
productivity, competition, or prices.
No novel legal or policy issues
regarding adverse effects to supply,
distribution or use of energy are
anticipated beyond what has already
been addressed in the draft EIS, or the
Regulatory Impact Analysis (RIA). None
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of the proposed corridors designated for
oil, gas, and/or electricity under Section
368 of the Energy Policy Act of 2005 are
within Colorado Roadless Areas.
The proposed rule does not disturb
existing access or mineral rights and
restrictions on saleable mineral
materials are narrow. The proposed rule
also provides regulatory mechanism for
consideration of requests for
modification of restrictions if
adjustments are determined to be
necessary in the future. Therefore, this
action is not a significant energy action
and no Statement of Energy Effects is
required.
List of Subjects in 36 CFR Part 294
National Forests, Recreation areas,
Navigation (air), State petitions for
inventoried roadless area management.
Therefore, for the reasons set forth in
the preamble, the Forest Service
proposes to amend part 294 of Title 36
of the Code of Federal Regulations by
adding new subpart D to read as
follows:
PART 294—SPECIAL AREAS
*
*
*
*
*
Subpart D—Colorado Roadless Areas
Management
Sec.
294.30 Purpose.
294.31 Definitions.
294.32 Colorado Roadless Areas.
294.33 Road construction and
reconstruction in Colorado Roadless
Areas.
294.34 Prohibition on timber cutting, sale,
or removal in Colorado Roadless Areas.
294.35 Oil and gas pipelines.
294.36 Scope and applicability.
294.37 Administrative corrections.
294.38 List of designated Colorado Roadless
Areas.
Subpart D—Colorado Roadless Areas
Management
Authority: 16 U.S.C. 472, 529, 551, 1608,
1613; 23 U.S.C. 201, 205.
§ 294.30
Purpose.
The purpose of this subpart is to
provide, within the context of multipleuse management, lasting protection for
roadless areas within the National
Forests in Colorado.
§ 294.31
Definitions.
The following terms and definitions
apply to this subpart.
At-Risk Community: As defined under
section 101 of the Healthy Forest
Restoration Act (Pub. L. 108–148).
Colorado Roadless Area (CRA): Areas
identified in a set of roadless area maps
maintained at the national headquarters
office of the Forest Service, including
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records regarding any corrections or
modifications to such maps pursuant to
§ 294.37.
Community Wildfire Protection Plan
(CWPP): As defined under section 101
of the Healthy Forest Restoration Act
(Pub. L. 108–148), the term ‘‘community
wildfire protection plan’’ means a plan
for an at-risk community that:
(1) Is developed within the context of
the collaborative agreements and the
guidance established by the Wildland
Fire Leadership Council and agreed to
by the applicable local government,
local fire department, and State agency
responsible for forest management, in
consultation with interested parties and
the Federal land management agencies
managing land in the vicinity of the atrisk community;
(2) Identifies and prioritizes areas for
hazardous fuel reduction treatments and
recommends the types and methods of
treatment on Federal and non-Federal
land that will protect one or more at-risk
communities and essential
infrastructure; and
(3) Recommends measures to reduce
structural ignitability throughout the atrisk community.
Condition Class 3: As defined under
section 101 of the Healthy Forests
Restoration Act (Pub. L. 108–148) the
term ‘‘condition class 3’’ means an area
of Federal land, under which:
(1) Fire regimes on land have been
significantly altered from historical
ranges;
(2) There exists a high risk of losing
key ecosystem components from fire;
(3) Fire frequencies have departed
from historical frequencies by multiple
return intervals, resulting in dramatic
changes to:
(i) The size, frequency, intensity, or
severity of fires; or
(ii) Landscape patterns; and
(iii) Vegetation attributes have been
significantly altered from the historical
range of the attributes.
Forest transportation atlas: As
defined at 36 CFR 212.1, a display of the
system of roads, trails, and airfields of
an administrative unit.
Forest road: As defined at 36 CFR
212.1, a road wholly or partly within or
adjacent to and serving the National
Forest System that the Forest Service
determines is necessary for the
protection, administration, and
utilization of the National Forest System
and the use and development of its
resources.
Long-term temporary road: A road
necessary for oil and gas, or coal
operations in CRAs and authorized by
contract, permit, lease, or other written
authorization. A long-term temporary
road is not a forest road, but is included
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in a forest transportation atlas, and is
expected to be in place during the lease
period. When no longer needed for the
established purpose or upon
termination or expiration of the
contract, permit, lease or written
authorization, whichever is sooner, the
road shall be decommissioned and the
affected landscape restored.
National Forest System road: As
defined at 36 CFR 212.1, a forest road
other than a road which has been
authorized by a legally documented
right-of-way held by a State, county, or
other local public road authority.
Off-Highway Vehicles (OHV): As
defined at 36 CFR 212.1, any motor
vehicle designed for or capable of crosscountry travel on or immediately over
land, water, sand, snow, ice, marsh,
swampland, or other natural terrain.
Responsible official: The Forest
Service line officer with the authority
and responsibility to make decisions
regarding protection and management of
CRAs pursuant to this subpart.
Road: As defined at 36 CFR 212.1, a
motor vehicle route over 50 inches
wide, unless identified and managed as
a trail.
Road construction or reconstruction:
As defined at 36 CFR 212.1, supervising,
inspecting, actual building, and
incurrence of all costs incidental to the
construction or reconstruction of a road.
Road maintenance: As defined in
FSM 7705, the ongoing upkeep of a road
necessary to retain or restore the road to
the approved road management
objective.
Roadless area characteristics:
Resources or features that are often
present in and characterize CRAs. The
enumeration of these resources and
features does not constitute in any way
the establishment of any legal standard,
requirement, or cause for any
administrative appeal or legal action
related to any project or activity
otherwise authorized by this rule. These
characteristics include:
(1) High quality or undisturbed soil,
water, and air;
(2) Sources of public drinking water;
(3) Diversity of plant and animal
communities;
(4) Habitat for threatened,
endangered, proposed, candidate, and
sensitive species, and for those species
dependent on large, undisturbed areas
of land;
(5) Primitive, semi-primitive nonmotorized, and semi-primitive
motorized classes of dispersed
recreation;
(6) Reference landscapes;
(7) Natural-appearing landscapes with
high scenic quality;
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43561
(8) Traditional cultural properties and
sacred sites; and
(9) Other locally identified unique
characteristics.
Temporary road: A road necessary for
emergency operations or authorized by
contract, permit, lease, or other written
authorization that is not a forest road
and that is not included in a forest
transportation atlas (ref 36 CFR 212.1),
and is not necessary for long-term
management. When a temporary road is
no longer needed for the established
purpose or upon termination or
expiration of the lease, contract, or
permit, whichever is sooner, it shall be
decommissioned and the affected
landscape restored.
Utility and water conveyance
structures: Facilities associated with the
transmission and distribution of utilities
and water across National Forest System
lands. For purposes of this rule, utilities
are existing and future transmission
lines used for electrical power and
water conveyance structures are existing
and future diversion structures,
headgates, pipelines, ditches, canals,
and tunnels (but shall not include
reservoirs).
Wildland-Urban Interface: As defined
under section 101 of the Healthy Forest
Restoration Act (Pub. L.108–148), the
term ‘‘wildland-urban interface’’
means—
(1) An area within or adjacent to an
at-risk community that is identified in
recommendations to the Secretary in a
community wildfire protection plan; or
(2) In the case of any area for which
a community wildfire protection plan is
not in effect:
(i) An area extending 1⁄2-mile from the
boundary of an at-risk community;
(ii) An area within 11⁄2-miles of the
boundary of an at-risk community,
including any land that:
(A) Has a sustained steep slope that
creates the potential for wildfire
behavior endangering the at-risk
community;
(B) Has a geographic feature that aids
in creating an effective fire break, such
as a road or ridge top; or
(C) Is in condition class 3, as
documented by the Secretary in the
project-specific environmental analysis;
and
(iii) An area that is adjacent to an
evacuation route for an at-risk
community that the Secretary
determines, in cooperation with the atrisk community, requires hazardous fuel
reduction to provide safer evacuation
from the at-risk community.
§ 294.32
Colorado Roadless Areas.
(a) Designations. All National Forest
System lands within the State of
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Colorado identified in § 294.38 are
hereby designated as Colorado Roadless
Areas (CRAs).
(b) Maps. The Chief of the Forest
Service shall maintain and make
available to the public a map of each
CRA, including records regarding any
corrections or modifications to such
maps pursuant to § 294.37.
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§ 294.33 Road construction and
reconstruction in Colorado Roadless Areas.
(a) General. A road may not be
constructed or reconstructed in a CRA
except as provided in paragraphs (b)
and (c) of this section.
(b) Roads. Notwithstanding the
prohibition in paragraph (a) of this
section, a road may be constructed or
reconstructed in a CRA if the
responsible official determines that one
of the following circumstances exists:
(1) A road is needed to conduct a
response action under the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA), Section 311 of the Clean
Water Act, or the Oil Pollution Act;
(2) A road is needed pursuant to
reserved or outstanding rights,
authorizations, or as provided for by
statute or treaty;
(3) Road realignment is needed to
prevent irreparable resource damage
that arises from the design, location,
use, or deterioration of a forest road and
that cannot be mitigated by road
maintenance;
(4) Road reconstruction is needed to
implement a road safety improvement
project on a forest road determined to be
hazardous on the basis of accident
experience or accident potential on that
road;
(5) The Secretary of Agriculture
determines that a Federal Aid Highway
project, authorized pursuant to Title 23
of the United States Code, is in the
public interest or is consistent with the
purposes for which the land was
reserved or acquired and no other
reasonable and prudent alternative
exists;
(6) Consistent with applicable land
management plan, a road is needed to
allow for construction, reconstruction,
or maintenance of existing or future
authorized utility and water conveyance
structures as defined by this rule in
section § 294.31.
(7) Consistent with applicable land
management plan and allotment
management plans, a road is needed for
the management of livestock grazing.
(c) Temporary Road (including LongTerm Temporary Road).
(1) Notwithstanding the prohibition in
paragraph (a) of this section, a
temporary road may be constructed or
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reconstructed in a CRA as set forth in
subparagraphs 1 through 4.
(2) For all temporary roads authorized
under this rule, the responsible official
may only consider construction of a
temporary road after reviewing and
rejecting other access options, resource
and community protection needs, and
consistency with applicable forest
plans. If it is determined that a
temporary road is needed, construction
must be conducted in a manner that
minimizes effects on surface resources,
prevents unnecessary or unreasonable
surface disturbances, and complies with
all applicable land management plan
directions, regulations, and laws. When
a temporary road is no longer needed
(for the established purpose) or upon
termination or expiration of a contract,
authorization, or permit, whichever is
sooner, all temporary roads shall be
decommissioned and the affected
landscape restored. Restoration shall be
designed considering safety, costs, and
impacts on land and resources (16
U.S.C. 1608) to achieve complete
stabilization and restoration to a
condition generally consistent with the
pre-existing roadless characteristics.
Except as allowed under this rule in
§ 294.33(b), a temporary road shall not
change designation to a forest road, nor
will the construction of a temporary
road, including long-term temporary
road alter the management status of any
designated CRA. A temporary road
constructed for oil and gas, or coal
related activities may include as part of
its established purpose, the potential
need to be used as a long-term
temporary road.
(3) A temporary road is needed for
treatment actions and in areas identified
in a community wildfire protection plan
or, if a community wildfire protection
plan is not present, within areas of the
wildland-urban interface; or
(4) A temporary road is needed for
public health and safety in cases of
threat of flood, fire, or other potential
catastrophic event that, without
intervention, would cause the loss of
life or property; or
(5) A temporary or long-term
temporary road is needed in
conjunction with an oil and gas lease,
including the construction of
infrastructure necessary to transport the
product, on lands that are under lease
by the Secretary of the Interior as of the
effective date of this rule. The Forest
Service shall not agree to waive, except,
modify or otherwise remove any oil and
gas lease stipulation that prohibits or
restricts road building or otherwise
prohibits surface occupancy within
CRAs; or
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(6) A temporary or long-term
temporary road is needed for coal
exploration and coal-related surface
activities for certain lands within CRAs
in the North Fork coal mining area of
the Grand Mesa, Uncompahgre, and
Gunnison National Forests as defined by
the North Fork coal mining area map
within the Colorado Roadless Area
Conservation Rule environmental
impact statement. Such roads may also
be used for the purpose of collecting
and transporting coal mine methane. All
infrastructure needed for the capture of
methane will be located within the road
right-of-way of coal-related temporary
and/or long-term temporary roads or
within areas of surface disturbance for
methane venting wells otherwise
needed for coal mining purposes. No
additional roads shall be constructed to
facilitate capture of coal mine methane.
When a road is no longer needed for
coal mining purposes or coal mine
methane capture, the road shall be
decommissioned and the affected
landscape restored.
(d) Road Closures. All roads
constructed pursuant to paragraphs (b)
and (c) shall be closed to motorized
vehicles (including OHVs) unless
specifically used for the purpose for
which the road was established; except
the use of motor vehicles for
administrative use by the Forest Service;
emergency access for fire and law
enforcement purposes; motor vehicle
use that is specifically authorized under
a written authorization issued under
Federal law or regulations; or motor
vehicle use by any fire, emergency, or
law enforcement personnel.
(e) Environmental Documentation. An
EIS will be prepared pursuant to section
102 of the National Environmental
Policy Act and 40 CFR 1500 for any
proposed action or alternative that
includes constructing a forest road
within a CRA. A no-road and a
temporary road alternative shall be
considered in the EIS. For projects
proposing temporary roads within a
CRA, an environmental analysis will be
documented pursuant to the Council on
Environmental Quality regulations at 40
CFR 1500–1508 and will include a noroad option.
(f) Road Maintenance. Maintenance of
forest roads and NFS roads is
permissible in CRAs.
§ 294.34 Prohibition on tree cutting, sale,
or removal in Colorado Roadless Areas.
(a) Trees may not be cut, sold, or
removed in CRAs, except as provided in
paragraph (b) of this section.
(b) Notwithstanding the prohibition in
paragraph (a) of this section, trees may
be cut, sold, or removed in CRAs if the
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responsible official determines that one
of the following circumstances exists
and the activity is consistent with the
applicable forest plan.
(1) The cutting, sale, or removal of
trees is needed for one of the following
purposes:
(i) For management and improvement
of wildlife and plant species (including
threatened, endangered, proposed, or
sensitive species) in coordination with
the Colorado Department of Natural
Resources, including the Colorado
Division of Wildlife. Such activities
should be designed to maintain or
improve roadless characteristics as
defined by this rule.
(ii) To reduce the hazard of wildfire
effects or large-scale insect and disease
outbreaks, in areas covered by and as
provided in a community wildfire
protection plan or, if a community
wildfire protection plan is not present,
within areas of the wildland urban
interface. Consistent with the purposes
of this paragraph, the responsible
official shall implement projects to
reduce the wildfire hazard to
communities after careful consideration
to roadless area characteristics as
defined by this rule.
(2) The cutting, sale, or removal of
trees is incidental to the implementation
of a management activity not otherwise
prohibited by this subpart; or
(3) The cutting, sale, or removal of
trees is needed and appropriate for
personal or administrative use, as
provided for in 36 CFR 223.
(c) In authorizing the cutting, selling,
or removal of trees within a CRA, the
responsible official shall consider the
need for the cutting, sale, or removal of
trees along with other resource and
community protection needs and effects
to roadless characteristics.
§ 294.35
Oil and Gas Pipelines.
The construction of permanent or
temporary pipelines for the purposes of
transporting oil or gas through a CRA,
from a source or sources located
exclusively outside of a CRA, shall be
prohibited after [final rule effective
date] of the rule and shall not be
excepted, allowed, or otherwise
authorized.
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§ 294.36
Scope and applicability.
(a) This subpart does not revoke,
suspend, or modify any permit,
contract, or other legal instrument
authorizing the occupancy and use of
NFS land issued prior to [final rule
effective date].
(b) This subpart does not revoke,
suspend, or modify any project or
activity decision made prior to [final
rule effective date].
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(c) This subpart does not compel the
amendment or revision of any land
management plan.
(d) The prohibitions and restrictions
established in this subpart are not
subject to reconsideration, revision, or
rescission in subsequent project
decisions or land management plan
amendments or revisions undertaken
pursuant to 36 CFR part 219. Nothing in
this rule shall be construed as limiting
the authority of a responsible official to
establish additional restrictions
regarding any management activities,
including matters covered by this rule,
within CRAs through a land
management plan amendment or
revision undertaken pursuant to 36 CFR
Part 219.
(e) When the Forest Service is the lead
agency, the Forest Service will offer
cooperating agency status to the State of
Colorado, pursuant to the Council on
Environmental Quality regulations at 40
CFR 1500–1508 for all proposed projects
and planning activities to be
implemented on lands within CRAs,
and those ski area acres identified in
Table 50 of the Rulemaking for Colorado
Roadless Areas final EIS. Where the
Forest Service does not have the
authority to offer cooperating agency
status, the Forest Service shall
coordinate with the State.
(f) Nothing in this rule shall be
construed as expressly or implicitly
affecting the current or future
management of existing trails or existing
roads in CRAs. Decisions concerning the
future management and/or status of
existing roads or trails within CRAs
under this rule shall be made during the
applicable forest travel management
processes.
(g) Nothing in this rule shall be
construed as limiting the authority of
the Forest Service to issue grazing
permits on lands within a CRA. An
area’s classification as a CRA shall not,
by itself, be reason to not authorize
grazing.
(h) If any provision this subpart or its
application to any person or to certain
circumstances is held invalid, the
remainder of the regulations in this
subpart and their application remain in
force.
(i) After [final rule effective date] the
rule promulgated on January 12, 2001,
(66 F.R. 3244) shall have no effect
within the State of Colorado.
§ 294.37
Administrative corrections.
Correction or modification of
designations made pursuant to this rule
may occur under the following
circumstances, after coordination with
the State:
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(a) Administrative Corrections.
Administrative corrections to the maps
of lands identified in § 294.32(b)
include, but are not limited to,
adjustments that remedy clerical,
typographical, mapping errors, or
improvements in mapping technology.
The Chief of the Forest Service may
issue administrative corrections after 30
days public notice and opportunity to
comment.
(b) Modifications. The Chief may add
to, remove from, or modify the
designations listed in § 294.38 based on
changed circumstances or public need.
The Chief shall provide at least 60 days
public notice and opportunity to
comment for all modifications.
§ 294.38 List of Designated Colorado
Roadless Areas.
Arapaho-Roosevelt National Forest
1 ......
2 ......
3 ......
4 ......
5 ......
6 ......
7 ......
8 ......
9 ......
10 ....
11 ....
12 ....
13 ....
14 ....
15 ....
16 ....
17 ....
18 ....
19 ....
20 ....
21 ....
22 ....
23 ....
24 ....
25 ....
26 ....
27 ....
28 ....
Bard Creek
Byers Peak
Cache La Poudre Adjacent Area
Cherokee Park
Comanche Peak Adjacent Areas
Copper Mountain
Crosier Mountain
Gold Run
Green Ridge—East
Green Ridge—West
Grey Rock
Hell Canyon
Indian Peaks Adjacent Areas
James Peak
Kelly Creek
Lion Gulch
Mount Evans Adjacent Areas
Mount Sniktau
Neota Adjacent Area
Never Summer Adjacent Area
North Lone Pine
North St. Vrain
Rawah Adjacent Area
Square Top Mountain
Troublesome
Vasquez Adjacent Area
White Pine Mountain
Williams Fork
Grand Mesa, Uncompahgre, Gunnison
National Forest
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
....
....
....
....
....
....
....
....
....
....
....
....
....
....
....
....
....
....
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Agate Creek
American Flag Mountain
Baldy
Battlements
Beaver
Beckwiths
Calamity Basin
Cannibal Plateau
Canyon Ck/Antero
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Castle
Cataract
Cimarron Ridge
Clear Fork
Cochetopa Creek
Cochetopa Hills
Cottonwoods
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Currant Creek
Deer Creek
Dominguez
Double Top
East Elk
Electric Mountain
Failes Creek/Soldier Creek
Flat Irons
Flattops/Elk Park
Gothic
Granite Basin
Hope Lake
Horse Ranch Park
Horsefly Canyon
Huntsman Ridge
Italian Mountain
Johnson Basin
Kannah Creek
Kelso Mesa
Last Dollar/Sheep Creek
Little Cimarron
Long Canyon
Matchless Mountain
Matterhorn
Mendicant
Mirror Lake
Mount Lamborn
Munsey Creek/Erickson Springs
Naturita Canyon
Pilot Knob
Poverty Gulch
Salt Creek
Sanford Basin
Sawtooth
Soap Creek
Steuben
Sunnyside
Sunset
Texas Creek
Tomahawk
Turner Creek
Turret Ridge
Unaweep
Union Park
Whetstone
Whitehouse Mountain
Wilson
Windy Point
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Badger Creek
Boreas
Buffalo Peaks East
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Burning Bear
Chipeta
Cuchara North
Cuchara South
Elk Mountain-Collegiate North
Elk Mountain-Collegiate South
Elk Mountain-Collegiate West
Farnum
Green Mountain
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Gunbarrel
Hardscrabble
Highline
Holy Cross
Jefferson
Kreutzer-Princeton
Lost Creek East
Lost Creek South
Lost Creek West
Methodist Mountain
Mount Antero
Mount Elbert
Mount Evans
Mount Massive
Pikes Peak East
Pikes Peak West
Porphyry Peak
Puma Hills
Purgatoire
Rampart East
Rampart West
Romley
Saint Charles Peak
Sangre de Cristo: Alvarado Campground to Music Pass
Sangre de Cristo: Blanca Peak to
Slide Mountain
Sangre de Cristo: Lake Creek to Hermit Creek
Sangre de Cristo: Medano Pass to
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Sangre de Cristo: Silverheels Gulch to
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Cottonwood
Scraggy Peaks
Sheep Rock
Silverheels
Spanish Peaks
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Starvation Creek
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Beartown
Beaver Mountain
Bennet Mountain/Blowout/Willow
Creek/Lion Point/Greenie Mountain
Big Buck/Kitty/Ruby
Box/Road Canyon
Bristol Head
Butterfly
Chama Basin
Conejos River/Lake Fork
Copper Mountain/Sulphur
Cotton Creek
Crestone
Cumbres
Deep Creek/Boot Mountain
Dorsey Creek
Elkhorn Peak
Four Mile Creek
Fox Creek
Fox Mountain
Gibbs Creek
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Hot Springs
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Miller Creek
Pole Creek
Pole Mountain/Finger Mesa
Red Mountain
Ruby Lake
Sawlog
Sheep Mountain
Silver Lakes/Stunner
Snowshoe Mountain
Spectacle Lake
Spruce Hole/Sheep Creek
Stunner Pass/Dolores Canyon
Sulphur Tunnel
Summit Peak/Elwood Pass
Taylor Canyon
Tewksberry
Tobacco Lakes
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Ute Pass
Wason Park
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Chatfield
Chedsey Creek
Dome
Dome Peak
Elkhorn
Gold Creek
Grizzly Helena
Kettle Lakes
Little Green Creek
Long Park
Mad Creek
Morrison Creek
Never Summer North
Never Summer South
Nipple Peak North
Nipple Peak South
Pagoda Peak
Shield Mountain
South Fork
Sugarloaf North
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Graham Park
HD Mountains
Hermosa
Lizard Head Adjacent
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Runlett Park
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Treasure Mountain
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Berry Creek
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Black Lake West
Blair Mountain
Boulder
Budges
Buffer Mountain
Burnt Mountain
Chicago Ridge
Corral Creek
Crystal River
Deep Creek
Dome Peak
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Elk Creek B
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Freeman Creek
Gallo Hill
Game Creek
Grizzly Creek
Gypsum Creek
Hardscrabble
Hay Park
Holy Cross City
Homestake
Hoosier Ridge
Housetop Mountain
Hunter
Little Grand Mesa
Lower Piney
Mamm Peak
Maroon East
Maryland Creek
McClure Pass
McFarlane
Meadow Mountain A
Meadow Mountain B
Morapos A
Morapos B
Mormon Creek
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Ptarmigan Hill A
Ptarmigan Hill B
Red Dirt A
Red Dirt B
Red Mountain
Red Table
Reno Mountain
Ripple Creek Pass/Trappers Lake
Ryan Gulch
Salt Creek
Sloan Peak
Spraddle Creek A
Spraddle Creek B
Sweetwater A
Sweetwater B
Tenderfoot Mountain
Tenmile
Thompson Creek
Tigiwon
Treasure Mountain
West Brush Creek
West Lake Creek
Wildcat Mountain
Wildcat Mountain B
Wildcat Mountain C
Williams Fork
Willow
Woods Lake
Dated: July 21, 2008.
Abigail R. Kimbell,
Chief, U.S. Forest Service.
[FR Doc. E8–17109 Filed 7–24–08; 8:45 am]
BILLING CODE 3410–11–P
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[Federal Register Volume 73, Number 144 (Friday, July 25, 2008)]
[Proposed Rules]
[Pages 43544-43565]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17109]
[[Page 43543]]
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Part III
Department of Agriculture
-----------------------------------------------------------------------
Forest Service
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36 CFR Part 294
Special Areas; Roadless Area Conservation; Applicability to the
National Forests in Colorado; Proposed Rule
Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 /
Proposed Rules
[[Page 43544]]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 294
RIN 0596-AC74
Special Areas; Roadless Area Conservation; Applicability to the
National Forests in Colorado
AGENCY: Forest Service, USDA Forest Service.
ACTION: Notice of proposed rulemaking; request for comment.
-----------------------------------------------------------------------
SUMMARY: The Forest Service, U.S. Department of Agriculture (USDA), is
proposing to establish a State-specific rule to provide management
direction for conserving Colorado roadless areas. The USDA invites
written comments on both the proposed rule and the draft environmental
impact statement (DEIS) and will consider those comments in developing
a final rule and final environmental impact statement (FEIS). The final
rule will be published in the Federal Register.
DATES: Comments must be received in writing 90 days from the date the
rule is published in the Federal Register.
ADDRESSES: Comments may be sent via e-mail to
COcomments@fsroadless.org. Comments also may be submitted via the
internet at https://www.regulations.gov. Written comments concerning
this notice should be addressed to Roadless Area Conservation--
Colorado, P.O. Box 162909, Sacramento, CA 95816-2909, or via facsimile
to 916-456-6724.
All comments, including names and addresses, when provided, are
placed in the record and are available for public inspection and
copying.
A copy of this proposed rule, draft environmental impact statement
(DEIS), the DEIS summary, dates and locations of public meetings, and
other information related to this rulemaking will be available at the
national roadless Web site https://www.roadless.fs.fed.us. Reviewers may
request printed copies or compact disks of the DEIS and the summary by
writing to Colorado Roadless Team/Planning, USDA Forest Service, Rocky
Mountain Regional Office, 740 Simms Street, Golden, CO 80401-4720, or
by e-mail to comments-rocky-mountain-regional-office@fs.fed.us, or by
Fax to 303-275-5134. When ordering, requesters must specify their
address, if they wish to receive the summary or full set of documents,
and if the material should be provided in print or compact disk.
Printed copies will be available for public viewing at Forest Service
district and supervisor's offices within the State of Colorado.
FOR FURTHER INFORMATION CONTACT: Colorado Roadless Rule Team Leader
Kathy Kurtz at (303) 275-5083. Individuals using telecommunication
devices for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m. Eastern
Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background
As a leader in natural resource conservation, the Forest Service
provides direction for the management and use of the Nation's forests,
rangeland, and aquatic ecosystems under its jurisdiction. Similarly,
the State of Colorado is committed to sustained natural resource use
and conservation of State and Federal land within its borders.
Furthermore, the Forest Service is charged to collaborate cooperatively
with states and other interested parties regarding the use and
management of the National Forest System (NFS).
State of Colorado Petition
On July 14, 2005, the State of Colorado announced it would submit a
petition requesting specific regulatory protections for the inventoried
roadless areas within the State. The State's commitment to participate
was evidenced by Senate Bill 05-243, the ``Roadless Areas Review Task
Force'' legislation signed into law on June 8, 2005. The bill outlined
membership and responsibilities of a 13-member bipartisan task force to
make recommendations to the Governor regarding inventoried roadless
areas in NFS lands in Colorado. The task force held nine public
meetings throughout the State, reviewed over 40,000 public comments,
and conducted a comprehensive review of Colorado's 4.4 million acres of
roadless areas (2001 Roadless Rule).
Colorado's petition (2006 petition) was submitted to the Secretary
of Agriculture for consideration on November 13, 2006, by then-Governor
Owens with the provision it be considered under section 553(e) of the
Administrative Procedure Act and USDA regulations at 7 CFR 1.28. On
April 11, 2007, Governor Ritter resubmitted the 2006 petition with a
substantive letter of transmittal, which became the 2007 petition.
Governor Ritter's transmittal letter requested that state-specific
rulemaking be undertaken to provide an ``insurance policy for
protection of our roadless areas,'' given ongoing legal uncertainty.
The 2007 petition took into account State and local resource management
challenges along with the national interest in maintaining roadless
characteristics and the need for management flexibility in certain
circumstances.
The Roadless Area Conservation National Advisory Committee (RACNAC)
reviewed the 2007 petition on June 13 and 14, 2007, in Washington, DC.
Harris Sherman, executive director of the Colorado Department of
Natural Resources, representing Governor Ritter, described the scope
and intent of the 2007 petition. The RACNAC also heard comments from
other State and Forest Service officials, task force members, and
members of the public. On August 8, 2007, the RACNAC issued a unanimous
consensus-based recommendation to the Secretary to direct the Forest
Service, with the State of Colorado as a cooperating agency, to proceed
with rulemaking based on the 2007 petition.
After reviewing the RACNAC's recommendation, the Secretary accepted
the 2007 petition on August 24, 2007, and directed the Forest Service
to initiate rulemaking based on the petition. The proposed rule would
respond to the 2007 petition by establishing a system of Colorado
Roadless Areas (CRAs) with protections for these areas that would
supersede the 2001 Roadless Rule.
The USDA, State, and Forest Service are committed to conserving and
managing roadless areas and consider these areas an important and
exceptional component of the NFS. The USDA, State, and Forest Service
believe the most viable path for lasting conservation of these areas is
through properly integrating local, State, and national perspectives on
roadless area management on NFS lands located within the State of
Colorado.
Through a memorandum of understanding dated January 8, 2008, the
State of Colorado was granted cooperating agency status with the Forest
Service, under 40 CFR 1508.5, for the preparation of the environmental
impact statement (EIS) associated with this rulemaking.
Within the 2007 petition, the State requested the Colorado
Department of Natural Resources and/or the Colorado Division of
Wildlife be offered cooperating agency status to assure participation
in the evaluation of future proposed activities in CRAs associated with
Federal coal reserves under certain lands in the North Fork coal mining
area on the Grand Mesa, Uncompahgre, and Gunnison National Forests, and
[[Page 43545]]
proposed activities associated with ski area lands proposed for removal
from roadless designation, listed in Table 2. In addition, the Forest
Service will offer cooperating agency status to the State where it
expresses an interest for any Forest Service project or planning
activity on NFS lands located within CRAs, pursuant to the Council on
Environmental Quality implementing National Environmental Policy Act
(NEPA) regulations at 40 CFR 1500-1508. Where the Forest Service does
not have the authority to grant cooperating agency status, the Forest
Service will coordinate with the State.
National Forest System Land Inventories in Colorado
The 2007 petition proposed using the 2001 Roadless Rule inventoried
roadless areas as a basis for identifying CRAs. These inventories would
be updated by technical corrections to the inventory, such as but not
limited to, congressionally-designated areas as defined in Table 3,
land exchanges, and any boundary line revisions including additions and
deletions to the inventory through revised forest plans (Arapaho and
Roosevelt, Routt, Rio Grande and White River National Forests) and
ongoing forest plan revisions (Grand Mesa, Uncompahgre, and Gunnison;
San Juan; Pike and San Isabel; and Manti-La Sal National Forests).
Finally, the 2007 petition identified that certain portions of ski
areas (described in Table 2) were not to be included in CRAs. Table 1
displays the acreage changes between the 2001 inventoried roadless
areas (IRAs) and the proposed CRA boundaries.
Table 1.--Net Change in Roadless Acres Designations by Forest--Inventoried Roadless Area Acres to Colorado Roadless Area Acres
--------------------------------------------------------------------------------------------------------------------------------------------------------
Congressionally
designated as Total IRA acres
2001 Rule wilderness or without IRA acres not Net change
total IRA special areas congressionally included Unroaded acres Total roadless between IRA
acres \1\ \2\ not designated within CRAs added to CRAs acres in CRAs and CRA acres
included in acres
IRAs or CRAs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arapaho-Roosevelt..................... 391,000 (37,000) 354,000 (5,000) 1,000 350,000 (4,000)
(1997)
GMUG.................................. 1,127,000 (67,000) 1,060,000 (329,000) 120,000 853,000 (207,000)
(1979) (2005 draft)
Pike-San Isabel....................... 688,000 (19,000) 669,000 (77,000) 82,000 674,000 5,000
(1979) (2006 draft)
Rio Grande............................ 530,000 ............... 530,000 (16,000) 4,000 518,000 (12,000)
(1996)
Routt................................. 442,000 ............... 442,000 (10,000) 2,000 434,000 (8,000)
(1998)
San Juan.............................. 604,000 (60,000) 544,000 (84,000) 99,000 558,000 14,000
(1979) (2006 draft)
White River........................... 640,000 ............... 640,000 (5,000) 1,000 636,000 (4,000)
(2002)
Manti La Sal in Colorado.............. 11,000 ............... 11,000 (4,000) 500 8,000 (3,000)
(1979) (2006 draft)
���������������������������������������
Total State of Colorado........... 4,433,000 (184,000) 4,249,000 (529,000) 309,000 4,031,000 (218,000)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acres may not add due to rounding (ref. DEIS).
\1\ The 2001 Roadless Rule used inventoried roadless areas from forest plans that were in effect at the time the 2001 Rule was developed, or a roadless
inventory that had undergone public involvement. The date of each forest's inventory used for the 2001 Rule is shown here. Acreages are from the 2001
Roadless Rule FEIS.
\2\ This column includes acres for the James Peak and Spanish Peak Wildernesses and additions to the Indian Peaks Wilderness, and Bowen Gulch and James
Peak Protection Areas, Roubideau and Tabeguache Special Areas, Fossil Ridge Recreation Management Area, and the Piedra Special Management Unit all
designated by Congress but not excluded from the 2001 RACR inventory.
\3\ Acres not included are those identified as substantially altered, mapping errors, updated GIS technology, land exchanges, and ski area acres.
Table 2.--Ski Area Acres in 2001 IRAs or Forest Plan Inventories Not Included in CRAs per 2007 Petition
----------------------------------------------------------------------------------------------------------------
Additional Total ski
Colorado roadless Ski area ski area acres not
National Forest ski areas area(s) permitted allocation \1\ included in
acres acres CRAs
----------------------------------------------------------------------------------------------------------------
Arapaho-Roosevelt National Forest
----------------------------------------------------------------------------------------------------------------
Loveland.............................. Bard Creek, Mount 1,370 1,620 2,990
Sniktau.
----------------------------------------------------------------------------------------------------------------
Grand Mesa, Uncompahgre, and Gunnison National Forest
----------------------------------------------------------------------------------------------------------------
Crested Butte......................... Gothic.................. 900 0 900
----------------------------------------------------------------------------------------------------------------
Pike-San Isabel National Forest
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Ski Cooper............................ Mad Creek DB & DB1...... 560 0 560
----------------------------------------------------------------------------------------------------------------
[[Page 43546]]
Routt National Forest
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Steamboat Springs..................... Long Park............... 180 0 180
----------------------------------------------------------------------------------------------------------------
San Juan National Forest--(Draft Revised Forest Plan)
----------------------------------------------------------------------------------------------------------------
Durango Mountain Resort............... San Miguel.............. 0 \2\90 90
----------------------------------------------------------------------------------------------------------------
White River National Forest
----------------------------------------------------------------------------------------------------------------
Arapahoe Basin........................ Porcupine Peak.......... 1,050 0 1,050
Aspen Mt.............................. McFarlane............... 50 0 50
Beaver Creek.......................... Meadow Mountain A & B... 510 0 510
Breckenridge.......................... Tenmile................. 150 0 150
Buttermilk............................ Burnt Mountain.......... 50 0 50
Copper Mountain....................... Ptarmigan Hill.......... 720 0 720
Snowmass.............................. Burnt Mountain.......... 80 0 80
Vail.................................. Game Creek.............. 900 0 900
���������������������������������������
Total............................. ........................ 6,500 1,700 8,200
----------------------------------------------------------------------------------------------------------------
Ski area acres rounded to nearest 10 acres and total acres rounded to nearest 100 acres. Totals may not add due
to rounding.
Ski areas on National Forest System lands in the State of Colorado that are not listed here do not contain
roadless acres within their permit or allocation boundary.
\1\ Acres allocated in forest plans to ski area management that adjoin currently operating ski areas but are not
within the current permitted area.
\2\ Expansion of Durango Mountain Resort is included within the San Juan's forest plan revision, draft preferred
alternative. There are 90 acres of roadless area to be excluded from the CRA inventory.
Table 3.--Congressionally Designated Acres Included in 2001 IRAs and Not
Included in CRAs
------------------------------------------------------------------------
Acres within
Congressional designations National Forest roadless areas
------------------------------------------------------------------------
Bowen Gulch Protection Area....... Arapaho-Roosevelt... 8,600
Indian Peaks Wilderness additions. Arapaho-Roosevelt... 3,000
James Peak Protection Area........ Arapaho-Roosevelt... 11,300
James Peak Wilderness............. Arapaho-Roosevelt... 14,300
Fossil Ridge Recreation Management Grand Mesa, 39,800
Area. Uncompahgre, and
Gunnison.
Roubideau Area.................... Grand Mesa, 18,600
Uncompahgre, and
Gunnison.
Tabeguache Area................... Grand Mesa, 8,900
Uncompahgre, and
Gunnison.
Spanish Peak Wilderness........... Pike-San Isabel..... 18,700
Piedra Special Management Unit.... San Juan............ 60,400
�����������������������������������
Total......................... .................... 184,000
------------------------------------------------------------------------
Using these inventories, the Forest Service has identified 4.031
million acres of roadless areas that would be subject to this proposed
rule. This rule, if finalized as proposed, would establish CRA maps
defining the boundaries of these areas and would be maintained at the
national headquarters office of the Forest Service as provided in
section 294.32 of this rule. These maps and acreages may be modified
with additions or deletions to boundary lines only as outlined in
section 294.37. Acres not included in the CRAs that were within the
boundaries of the 2001 Roadless Rule IRAs would not be subject to the
2001 Roadless Rule and would be managed under their respective forest
plan direction as provided in section 294.36(i).
Proposed Roadless Area Conservation Rule for Colorado
The USDA, State, and Forest Service believe this proposed rule for
Colorado represents a unique opportunity to collaboratively manage and
protect roadless areas within the State of Colorado. The petitioning
process and the proposed rule enables the Forest Service to consider
the comments of people most affected by or concerned about the contents
of state-specific rulemaking for roadless areas across the State in
balance with national concerns for these areas. The proposed rule
represents a balanced solution for retaining the integrity and natural
beauty of Colorado's roadless areas while maintaining management
flexibility to affect future changes where needed.
The Forest Service, in cooperation with the State, has completed a
review of the social, economic, and environmental characteristics and
values associated with the IRAs in Colorado. With public input, the
Forest Service has considered the question of how these roadless lands
should be managed within the scope of the Forest Service's authority.
The management direction proposed by these regulations would take
precedence over any inconsistent regulatory provision or land
management plan but would not supersede valid existing rights. All
forests must meet the requirements of the proposed rule, regardless of
their forest plan guidance. However, the
[[Page 43547]]
proposed rule at sections 294.33 and 294.34 does allow restrictions
from forest plans to apply if they are more stringent than the proposed
rule. Forest plans are revised at approximately 15-year intervals and
are amended as needed. A revision or amendment could result in more
restrictive direction for an individual CRA, but any forest plan
direction with less restrictive direction, would have no force or
effect (sec. 294.36(d)).
Ski Areas
The State of Colorado's petition requested the Forest Service not
include within CRAs, certain acres that are within the 2001 IRAs and
allocated in forest plans to a ski-based management area prescription.
This includes acres that are currently within the ski area permitted
boundaries (6,500 acres) as well as acres that have been allocated in
forest plans (current or draft, 1,700 acres) to a ski-based management
area prescription that are not currently within the permitted areas but
directly adjoin current operating ski areas. A list of the acres not
included in the CRAs by ski area can be found in Table 2.
The combined 8,200 ski area acres that are not proposed for CRA
designation would remain subject to their respective forest plan
direction and applicable terms and conditions of special use
authorizations. Any proposal for these ski area acres, including
expanding a ski area permit boundary into an area allocated to a ski-
based management prescription would be subject to all appropriate
environmental analysis, including NEPA analysis.
Limited Road Construction and Reconstruction
The proposed rule at section 294.33 prohibits road building in CRAs
except under certain circumstances. The circumstances in section
294.33(b) allow for a road, whereas circumstances in section 294.33(c)
are specific to temporary roads. Whenever a forest road is proposed, an
EIS will be prepared (sec. 294.33(e)). For all other circumstances,
NEPA requirements will be used to determine the level of environmental
analysis needed.
Many exceptions in the proposed rule mirror the exceptions for road
building provided in the 2001 Roadless Rule, but several additional
circumstances allowing road building are proposed. The proposed rule at
section 294.33(b)(6) includes an additional circumstance that would
allow for the construction and maintenance of roads for existing and
future utility and water conveyance structures. The Forest Service and
the State believe this is a needed exception so Colorado's water and
utility infrastructure can be properly operated and maintained. This
provision is only intended to apply to existing and future authorized
utility and water conveyance structures. The proposed rule at section
294.31 provides the definition for utility and water conveyance
structures. The definition does not include road construction or
reconstruction for the construction or maintenance needed for
reservoirs. In addition, the proposed rule at section 294.33(b)(7)
includes an additional circumstance that would allow for the
construction and maintenance of roads needed for the management of
livestock grazing. The Forest Service and State recognize the
importance of maintaining a viable ranching industry in Colorado.
Conserving sustainable, working grasslands reduces development pressure
on these lands and is a component of the Forest Service's Open Space
Conservation Strategy.
Another change from the 2001 Roadless Rule is the emphasis the
proposed rule places on using temporary roads to the extent possible
for any of the circumstances allowing for road building (sec. 294.33(c)
and (e)). The proposed rule also emphasizes restoration of temporary
roads at section 294.33(c).
The Forest Service is charged with managing the National Forest
transportation system, including requirements for temporary roads to be
designed with the goal of reestablishing vegetative cover on the
roadway and areas where the vegetative cover has been disturbed by road
construction within ten years after the termination of a contract,
permit, or lease through either artificial or natural means (ref. 16
U.S.C. 1608). The Forest Service and State have considerable experience
dealing with road restoration activities across many types of programs
and activities. For example, the State administers a federally-funded
abandoned mine reclamation program in which one principal goal is to
identify environmental problems arising from abandoned mines and then
to design appropriate closure methods and reclamation techniques
(including restoring roads) at project sites. The State has restored
over 1,500 acres of abandoned mine lands statewide since 1980.
The proposed rule anticipates that lands affected will be returned
to a condition consistent with the preexisting roadless characteristics
(sec. 294.33(c)). However, the proposed rule recognizes that
restoration efforts are to proceed in an environmentally sound way. In
rare instances, complete obliteration and restoration (such as fully
recontouring the roadway to its natural state) may cause more
environmental harm than recontouring to a level that stabilizes against
soil loss or other damage. For example, when the Forest Service
decommissions temporary roads, restoration and obliteration are
intended to make the corridor unusable as a road, stabilize it against
soil loss or other damage, and reestablish the affected land's natural
resource capabilities through such actions as: removing bridges and
culverts and reestablishing normal maximum water flow, eliminating
ditches, out-sloping the roadbed, removing ruts and berms, and
recontouring road cuts. However, fully recontouring a road cut may set
the stage for higher levels of soil loss due to unsuccessful
revegetation on a steep slope as compared to partial recontouring
incorporating a design that facilitates revegetation.
Roads built for access to existing oil and gas leases as of the
date of the Colorado Rule (sec. 294.33(c)(3)) and roads built to
accommodate coal mining exploration and coal-related surface activities
in the North Fork coal mining area (sec. 294.33(c)(4)) would be
classified as temporary or long-term temporary roads. The proposed rule
would establish a new category of road, long-term temporary road, which
would have application only in CRAs. The intent is to provide a
classification for roads associated with oil and gas, or coal leases
that better recognizes the longer term, but non-permanent nature that
is typical of such roads. Long-term temporary roads would be expected
to be in place anywhere from 10 to 30 years. They would be included in
the forest transportation system, ensuring they will be monitored and
maintained in compliance with the terms of the applicable permit or
special use authorization. However, as with other temporary roads, any
long-term temporary roads constructed pursuant to an oil and gas lease
or pursuant to a coal exploration license or a coal lease shall be
decommissioned and the affected landscape restored when the road is no
longer needed, or upon termination of the lease or license. The intent
of this provision is to preserve the roadless character of CRAs to the
maximum extent practicable.
Except for emergency purposes, administrative use, or motorized
vehicle use that is specifically authorized, all roads constructed in
CRAs will be closed to motorized vehicles, including off-highway
vehicles (OHVs) not authorized for the specific activity for
[[Page 43548]]
which the road was constructed (sec. 294.33(d)). Any temporary roads,
including long-term temporary roads, built in a CRA would not serve as
the basis for altering the management status for that CRA. (sec.
294.33(c)).
Colorado State Land Board Mineral Interests
The proposed rule at section 294.33(b)(2) aligns with the Colorado
State Land Board's current ability to develop its mineral interests
that underlie NFS lands in CRAs. Access to such mineral interests would
continue to be governed by operation of the standard applicable laws
and regulations rather than by this rule. The Forest Service and the
State are committed to exploring opportunities for land exchanges
whereby the State could acquire other property interests of equal
value, outside of roadless areas. Such exchanges would provide the
Forest Service with unified administration of both surface and mineral
interests in CRAs.
Public and Safety
The USDA, Forest Service, and State are committed to preserving
roadless area characteristics while also protecting human health and
safety. In an effort to achieve a proper balance, the proposed rule
would allow for the construction of a temporary road if it is needed to
safeguard public health when there is a catastrophic event, such as a
flood or fire, which would cause the loss of life or property (sec.
294.33(c)(2)).
Locatable Minerals
Development of locatable minerals is subject to the General Mining
Law of 1872, as amended. Like the 2001 Roadless Rule the proposed rule
does not seek to impose any limits on activities related to the
exploration for or development of locatable minerals. The proposed rule
at section 294.33(b)(2) allows for roads provided for by statute or
treaty, which includes roads provided under the General Mining Law of
1872, as amended. The proposed rule does not affect or seek any
withdrawal of the mineral estate in CRAs. Therefore, the proposed rule
will not affect rights of reasonable access to prospect and explore
lands open to mineral entry and location, or to develop any minerals
discovered.
Saleable Minerals
Disposal of saleable minerals (mineral materials) is at the
discretion of the Forest Service, subject to the provisions of 36 CFR
228 subpart C. The proposed rule prohibits road construction or
reconstruction associated with developing new mineral material sites in
roadless areas, unless this material is necessary to and accessible
from roads allowed to be constructed under other provisions of the
rule.
Leasable Minerals--Oil and Gas
Like the 2001 Roadless Rule the proposed rule does not prohibit oil
and gas leasing. However, prohibitions on road construction and
reconstruction provided in the proposed rule (sec. 294.33), would
affect Federal oil and gas leases, subject to valid and existing
rights. The proposed rule (sec. 294.33 (c)(3)) would require future
leases within CRAs include stipulations that prohibit road
construction. Drilling and production may be allowed on leases in
roadless areas issued after the effective date of the rule, but new
roads to access sites for drilling and production will not be allowed.
Oil and gas resources in roadless areas under leases issued after the
effective date of the final rule may be developed by helicopter access
or by other means such as directional drilling from outside the
roadless areas. These provisions bar roading, but would not restrict
the construction of oil and gas pipelines in CRAs where the
construction of a pipeline is necessary to transport the product of an
oil and gas lease on lands within a CRA that are under lease by the
Secretary of the Interior as of the effective date of the final rule.
The proposed rule at section 294.33(c)(3) would allow for temporary
or long-term temporary road construction or reconstruction for access
on and to Federal oil and gas leases that were issued before the
effective date of the final rule and that allow road construction. Such
access will be allowed pursuant to valid existing rights but restricted
to lessees, operators, and their designated contractors; Forest Service
and Bureau of Land Management (BLM) personnel and other federal and
state agencies with jurisdictional authority over mineral development
activity allowed under the proposed rule; and fire, emergency, or law
enforcement personnel.
The proposed rule does not allow the Forest Service to authorize
the BLM to grant a waiver (permanent removal), exception (case-by-case
exemption), modification (permanent changes), or otherwise remove
stipulations prohibiting surface occupancy or road construction or
reconstruction on existing leases or on any future lease in any CRAs
where these stipulations occur, It is the intent of the proposed rule
to maintain all no surface occupancy, controlled surface use and other
stipulations that restrict road construction and reconstruction on all
existing leases, including those specifically tied to the 2001 Roadless
Rule.
Leasable Minerals--Coal
The proposed rule at section 294.33(c)(4) provides for temporary or
long-term temporary roads associated with the exploration and mining of
coal resources in roadless areas in the North Fork coal mining area on
the Grand Mesa, Uncompahgre, and Gunnison National Forests. This area
is identified on the North Fork coal mining area map within the DEIS
for the proposed Colorado Roadless Rule. This area would be included in
the CRAs and will be managed in a way that permits temporary or long-
term temporary roads and other coal related surface activities
associated with coal exploration and coal mining to occur (sec.
294.33(c)(4)). Such temporary or long-term temporary roads will be
closed to the public. The use of these roads will be restricted to coal
mine and oil and gas operations, the Forest Service and other Federal
and State agencies with jurisdictional authority, including emergency
response, fire, and law enforcement personnel.
Temporary and long-term temporary coal mine roads may be
constructed for exploration drilling, resource monitoring, safety, or
installation and operation of surface facilities needed to operate coal
mines, including methane venting wells. In some instances roads are
necessary to comply with Mine Safety and Health Administration (MSHA)
requirements for mine safety, and to meet Colorado Division of
Reclamation, Mining, and Safety requirements for resource monitoring.
For example, roads may be constructed to facilitate the venting of coal
mine methane gas. Methane is a by-product of coal mining in the North
Fork area and must be removed from the mines to protect miner health
and safety.
The proposed rule also provides the opportunity for an oil and gas
lessee to use roads for the purpose of collecting and transporting coal
mine methane rather than venting the methane into the atmosphere. These
activities will remain within the authorized right of way for the long-
term temporary roads; no additional roads or pipelines outside the
right-of-way will be constructed. Any roads constructed pursuant to a
coal lease or exploration license and used for collection and
transportation of coal mine methane under an oil and gas lease shall be
decommissioned and the affected landscape restored when the road is no
longer needed for coal mining
[[Page 43549]]
purposes or coal mine methane collection, whichever is later.
Leasable Resources--Geothermal Energy
Colorado has high geothermal energy potential on NFS lands both
inside and outside roadless areas. However, site-specific information
on this resource in CRAs is limited. At this time, the proposed
Colorado Roadless Rule does not include a specific exemption for
geothermal energy resources. The proposed rule makes no special
provision for road construction and reconstruction associated with
geothermal energy sources. Once additional information becomes
available, the State or other parties could choose to seek a change in
the rule's restrictions.
Road Closures
The proposed rule does not provide direction about where and when
OHV use would be permissible except roads constructed under this
provision would be closed to OHVs pursuant to section 294.33(d). Travel
planning-related actions will continue to be addressed through travel
management and individual forest plans.
Tree Cutting, Sale, or Removal--Forest Health
In order to reduce the hazard of wildfire near communities and
after careful consideration of roadless area characteristics, the
proposed rule at sections 294.34(b)(1)(ii) and 294.33 (c)(1) allows for
forest health treatments and temporary road construction to meet needs
described in Community Wildfire Protection Plans (CWPPs) or, if a CWPP
is not in place, within the Wildland Urban Interface (WUI). CWPPs are
collaborative agreements in which local communities identify and
prioritize areas for hazardous fuel reduction treatments. The Forest
Service and the State believe that allowing forest health treatments
for projects identified in CWPPs or within WUIs strike the proper
balance of protecting roadless area characteristics while allowing
forest health and community protection needs to be addressed.
Oil and Gas Pipelines
After the petition was submitted the State requested that the
proposed rule (sec. 294.35) restrict the construction of oil and gas
pipelines through CRAs where a source or sources of the oil and/or gas
are exclusively outside CRAs. The proposed rule would not prohibit the
construction of pipelines that were authorized by the Forest Service or
another jurisdictional agency prior to the effective date of the final
rule. The proposed rule would not restrict the construction of oil and
gas pipelines in CRAs where the construction of a pipeline is necessary
to transport the product of an oil and gas lease on lands within a CRA
that are under lease by the Secretary of the Interior as of the
effective date of the final rule.
Access
The Forest Service and State are committed to conserving roadless
area characteristics while also providing reasonable access to public
and private property and facilities. Several aspects of the proposed
rule address the need for the State and/or private parties to access
property and/or facilities (sec. 294.33(b)(2) and (6); (sec.
294.33(c)(3) and (4); sec. 294.36(g)).
Regulatory Certifications
Regulatory Planning and Review
This proposed rule was reviewed under USDA procedures, Executive
Order 12866 issued September 30, 1993 (E.O. 12866), as amended by E.O.
13258 and E.O. 13422 on Regulatory Planning and Review, and the major
rule provisions of the Small Business Regulatory Enforcement and
Fairness Act (5 U.S.C. 800). These executive orders address regulatory
planning and review and require that agencies conduct a regulatory
analysis for economically significant regulatory actions. Economically
significant regulatory actions are those that have an annual effect on
the economy of $100 million or more or adversely affect the economy or
economic sectors. Because this rule is projected to have an annual
effect on the economy of approximately $500 million, this proposed rule
has been designated as significant and is subject to Office of
Management and Budget (OMB) review under E.O. 12866. This proposed rule
is not expected to interfere with an action taken or planned by another
agency nor raise new legal or policy issues. This action will not alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients of such programs.
A regulatory impact analysis has been prepared for this proposed
rule. OMB Circulars as well as guidance regarding E.O. 12866 indicate
that regulatory impact analysis should include benefit cost analysis
and an assessment of distributional effects. We are seeking comments on
assumptions, methods, and conclusions in the Regulatory Impact Analysis
and Cost-Benefit Analysis. The benefits, costs, and distributional
effects of three alternatives referred to as follows: the proposed
Colorado Roadless Rule (proposed rule), 2001 Roadless Rule (2001 rule)
and land management plans (LMPs) are analyzed over a 15 year time
period. As of the printing of this proposed rule, the 2001 rule is in
operation. For the purpose of regulatory impact analysis, the 2001 rule
represents baseline conditions or goods and services provided by NFS
lands in the near future in the absence of the proposed rule.
The proposed rule is programmatic in nature and intended to guide
future development of proposed actions within roadless areas. The
proposed rule is intended to provide greater management flexibility
under certain circumstances to address unique and local land management
challenges, while continuing to conserve roadless values and
characteristics. Increased management flexibility is primarily needed
to reduce hazardous fuels and large-scale insect and disease outbreaks,
allow access to coal reserves in the North Fork coal mining areas and
ski area development, and to allow access to future utility and water
conveyances, while continuing to conserve roadless area values and
characteristics.
This proposal does not authorize the implementation of any ground-
disturbing activities, but rather it describes circumstances under
which certain activities may be allowed or restricted within roadless
areas. Before authorizing land use activities in roadless areas, the
Forest Service must complete a more detailed and site-specific
environmental analysis pursuant to the NEPA and its implementing
regulations at 40 CFR 1500-1508.
Because the proposed rule does not prescribe site-specific
activities, it is difficult to predict the benefits and costs or other
changes of the different alternatives. In addition, the types of
benefits derived from roadless characteristics and the uses of roadless
areas are far ranging and include a number of non-market and non-use
benefit categories that are difficult to measure in monetary terms. As
a consequence, benefits are not monetized, nor are net present values
or benefit cost ratios estimated. Instead, increases and/or losses in
benefits are discussed separately for each resource area in a
quantitative or qualitative manner. Benefits and costs are organized
and discussed in the context of local land management challenges or
concerns (`local challenges') and `roadless characteristics' in an
effort to remain consistent with the overall purpose of the proposed
rule, recognizing that benefits associated
[[Page 43550]]
with local challenges may trigger or overlap with benefits associated
with roadless characteristics in some cases (e.g., forest health).
Access and designations for motorized versus non-motorized recreation
is a topic raised in comments during scoping, however, the proposed
rule does not provide direction on where and when off-highway vehicle
(OHV) use would be permissible and makes clear that travel planning-
related actions should be addressed through travel management planning
and individual land management plans.
Distributional effects or economic impacts, in terms of jobs and
labor income, are quantified for the oil and gas and the coal sectors
for an economic area consisting of five Colorado counties (Delta,
Garfield, Mesa, Montrose, and Rio Blanco) using a regional impact
model. Fiscal impacts (i.e., mineral lease payments) are estimated for
counties where changes in mineral activity are expected to be
physically located (Delta, Garfield, Gunnison, Mesa, Montrose, and
Pitkin). The distributional effects associated with protecting values
at risk from wildfire are characterized by estimating the number of
communities-at-risk expecting to benefit from fuel treatments in
roadless areas. Distributional effects or economic impacts are not
evaluated for other economic sectors (e.g., timber harvest, recreation)
due to evidence presented in respective resource sections suggesting
that the extent or magnitude of changes in output or services are not
sufficient to cause significant changes in distributional effects.
Details about the environmental effects of the proposed rule can be
found in the Roadless Area Conservation; National Forest System Lands
in Colorado Draft Environmental Impact Statement (DEIS). Effects on
opportunities for small entities under the proposed rule are discussed
in the context of Executive Order 13272 regarding proper consideration
of small entities and the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). The results of the regulatory impact
analysis for the proposed rule are summarized in the following tables.
Table 1 provides information related to roadless area acreage, road
miles and tree-cutting. Table 2 summarizes the potential benefits and
costs of the proposed rule, the 2001 roadless rule, and land management
plans alternatives. Table 3 summarizes distributional effects and
economic impacts of the proposed rule and alternatives.
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Proper Consideration of Small Entities
This proposed rule has also been considered in light of Executive
Order 13272 regarding proper consideration of small entities and the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Forest Service with the assistance of the State of Colorado has
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by the E.O. 13272
and SBREFA, because the proposed rule does not subject small entities
to regulatory requirements. Therefore, an initial regulatory
flexibility analysis is not required for this proposed rule.
For small businesses affiliated with most industry sectors involved
with activities in roadless areas (e.g., coal, oil and gas), potential
opportunities increase due to easing of restrictions on road
construction and tree-cutting in certain circumstanced under the
proposed rule. As a result, there is little or no potential for
significant adverse economic impacts to small businesses under the
proposed rule relative to no-action conditions (i.e., 2001 rule).
There are about 1,390 recreation special use permits currently
authorized within NFS lands in Colorado of which a large majority are
small businesses, and 1,066 (77%) are associated with outfitter and
guide permits, some of which are likely to operate within roadless
areas. However, there is little difference between alternatives with
respect to recreation special use authorizations in roadless areas,
because limitations on roading and tree-cutting under any alternative
would not be likely to affect ability to obtain or use a recreation use
authorizations. Exceptions might be special-use permit holders who rely
on primitive or semi-primitive recreational settings to maintain the
quality of the outdoor or remote experience. Increases in road
construction and tree-cutting may have adverse impacts on permit
holders in specific areas under the proposed rule, but impacts are not
expected to be significant due to the small percentage (0.2%) of
acreage affected (7,600 acres of tree-cutting per year) and roads
constructed (21 miles per year) spread across 4 million acres of
Colorado Roadless Areas. It is also noted that a significant percentage
of roads and tree-cutting activity will occur within or near the
wildland urban interface areas where primitive or semi-primitive
settings may already be affected.
Projected harvest volumes from roadless areas from the seven
affected National Forest units are all greater under the proposed rule
and land management plans relative to the no-action alternative (2001
rule). As such there is little or no potential for adverse impacts to
small entity opportunities, relative to no-action, in aggregate or in
the context of individual forest unit areas. Volumes are projected to
be 17,700 hundred cubic feet (ccf) less under the proposed rule,
relative to the land management plans, and approximately 70% of the
decrease is due to volume changes on the Pike San Isabel National
Forest (decrease of 12,720 ccf). All seven National Forest units have
been in compliance with small business set aside shares for the period
1/1/2000 to 9/30/2005. The proposed rule, relative to the land
management plans alternative, may decrease small entity opportunities
for wood products businesses associated with the Pike San Isabel
National Forest, recognizing that small business shares are already
being met and that aggregate volumes sold from NFS lands may not change
significantly under any alternative due to flat budget assumptions.
Flat budgets imply that the percentage of harvest from roadless areas
may change under the alternatives, but aggregate volumes across all NFS
land are expected to remain relatively unchanged, on average, implying
little potential for adverse impacts to small entities.
For leasable minerals associated energy resources (coal, oil and
gas), significant changes in output are projected across alternatives.
More than 95 percent of the firms associated with these sectors can be
classified as small as defined by Small Business Administration
standards. Any changes in oil and gas, or coal development or
production can therefore have an effect on small business opportunities
in these sectors. A five-county region has been defined to model the
economic impacts associated with energy resources (Delta, Garfield,
Mesa, Montrose, and Rio Blanco counties). A total of 355 firms
associated with oil and gas, and coal development and extraction are
estimated to be located within this region, of which 95% are likely to
be small (337 firms). However, energy resource sector jobs, supported
annually by projected activity within roadless areas, are estimated to
increase from 297 under no-action (2001 rule) to 1,481 jobs under the
proposed rule. Labor income increases by a similar degree from $17.5
million to $96.2 million per year. There is a slight increase in job
numbers under land management plans (1,592 jobs), relative to the
proposed rule, but the magnitude of the difference between the two
alternatives does not suggest that adverse impacts will be significant
if choosing between the proposed rule and land management plans. These
results indicate that there is no potential for adverse impacts to
small entities associated with energy resource development and
extraction under the proposed rule relative to the 2001 rule, and that
potential adverse impact under the proposed rule relative to land
management plans are not significant.
For all other economic sectors considered, changes in resource
outputs are not projected to be significant to the extent that adverse
impacts to small entities could occur in aggregate or within regions.
Among 64 counties in the state of Colorado, 36 counties (56%) are
considered to be small governments (population less than 50,000). These
36 counties are considered to be small rural counties having NFS lands
within IRAs/CRAs. Six counties are energy (coal, oil and gas) producing
counties. These six counties (Delta, Garfield, Gunnison, Mesa,
Montrose, and Pitkin) are expected to be the counties most likely to
benefit from mineral lease payments and revenue sharing under the
proposed rule and land management plans. All of these counties, with
the exception of Mesa can be considered small governments (population
less than 50,000), and all are forecast to receive significant
increases in property tax receipts from coal, and oil and gas
production, as well as state distributions of severance taxes and
federal royalties under the proposed rule and land management plans
relative to the no-action alternative. There are slight increases in
payments under land management plans, relative to the proposed rule
(aggregate payments increase from $6.8 million to $7.7 million per
year). Payments associated with the Secure Rural Schools and Self
Determination Act (SRSA) and Payments in Lieu of Taxes (PILT) are not
expected to change significantly, or any decreases would be largely
offset by increases in federal mineral lease payments.
The number of at-risk-communities that may potentially benefit from
fuel treatments in the wildland urban interface (WUI) areas are
projected to increase under the proposed rule and land management plans
relative to the 2001 rule (no-action alternative). The likelihood of
tree-cutting or fuel treatments and corresponding reduction in wildfire
hazard is projected to increase for a total of 90 at-risk-communities
in 16 counties with small populations (<50,000) under the
[[Page 43559]]
proposed rule, relative to no-action. Similarly, the likelihood of
reduced wildfire hazard is projected to increase for 150 at-risk-
communities in 18 small counties under land management plans, compared
to no-action. No counties are projected to experience a decrease in the
likelihood of road construction or tree-cutting in the WUI under the
proposed rule or land management plans, compared to the no action
alternative. A total of 10 counties may experience a decrease in the
likelihood of tree-cutting or road construction in the WUI under the
proposed rule, relative to land management plans. These results
indicate that adverse impacts to small governments, in association with
protection of values at risk from wildfire, are not likely, when
comparing the action alternatives with no-action.
Therefore, for small governments, including counties with small
populations and at-risk-communities from wildfire within those
counties, opportunities for revenue sharing, as well as protection of
values-at-risk are expected to be maintained or increase for all
counties under the proposed rule and land management plans compared to
no-action conditions under the 2001 rule.
Mitigation measures for small entity impacts associated with the
proposed rule are not relevant in many cases, because the proposed rule
eases restrictions on a number of activities in many areas, implying
increases in potential opportunities for small entities, as noted
above. Mitigation measures associated with existing programs and laws
regarding revenue sharing with counties and small business shares or
set-asides will continue to apply.
Controlling Paperwork Burdens on the Public
This proposed rule does not call for any additional record keeping
or reporting requirements or other information collection requirements
as defined in 5 CFR part 1320 that are not already required by law or
not already approved for use and, therefore, imposes no additional
paperwork burden on the public. Accordingly, the review provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
Regulatory Risk Assessment
This is a proposed major regulation as defined in 7 U.S.C. Section
2204e and a regulatory risk assessment is being prepared. The
regulatory risk assessment will be made available during the comment
period. A Notice of Availability of the risk assessment will be
published in the Federal Register and it will be available at the
Forest Service Internet roadless Web site (https://
www.roadless.fs.fed.us).
Federalism
The Department has considered this proposed rule under the
requirements of Executive Order 13132 issued August 4, 1999 (E.O.
13132), Federalism. The Department has made an assessment that the
proposed rule conforms with the Federalism principles set out in E.O.
13132; would not impose any compliance costs on the states; and would
not have substantial direct effects on the states, on the relationship
between the national government and the states, nor on the distribution
of power and responsibilities among the various levels of government.
Therefore, the Department concludes that this proposed rule does not
have Federalism implications. This proposed rule is based on a petition
submitted by the State of Colorado under the Administrative Procedure
Act at 5 U.S.C. 553(e) and pursuant to Department of Agriculture
regulations at 7 CFR 1.28. The State's petition was developed through a
task force with involvement of local governments. The State has been a
cooperating agency for the development of this proposed rule. State and
local governments are encouraged to comment on this proposed rule, in
the course of this rulemaking process.
Consultation With Indian Tribal Governments
The United States has a unique relationship with Indian Tribes as
provided in the Constitution of the United States, treaties, and
federal statutes. These relationships extend to the Federal
government's management of public lands and the Forest Service strives
to assure that its consultation with Native American Tribes is
meaningful, in good faith, and entered into on a government-to-
government basis.
On September 23, 2004, President George W. Bush issued Executive
Memorandum Government-to-Government Relationship with Tribal
Governments recommitting the Federal government to work with federally
recognized Native American Tribal governments on a government-to-
government basis and strongly supporting and respecting Tribal
sovereignty and self-determination.
Management of roadless areas has been a topic of interest and
importance to Tribal governments. During promulgation of the 2001
Roadless Rule, Forest Service line officers in the field were asked to
make contact with Tribes to ensure awareness of the initiative and of
the rulemaking process. Outreach to Tribes was conducted at the
national forest and grassland level, which is how Forest Service
government-to-government dialog with Tribes is typically conducted.
Tribal representatives remained engaged concerning these issues during
the subsequent litigation and rulemaking efforts.
The State's petition identifies that a vital part of its public
process in developing its petition were the recommendations and
comments received from Native American Tribes. The Governor's office
was keenly aware of the spiritual and cultural significance some of
these areas hold for the Tribes.
There are two resident tribes in Colorado, both retaining some of
their traditional land base as reservations via a series of treaties,
agreements, and laws. The Ute Mountain Ute and Southern Ute Tribes
(consisting originally of the Weeminuche, Capote, Tabeguache, and
Mouaches Bands)--each a ``domestic sovereign'' nation--have reserved
some specific off-reservation hunting rights in Colorado and retain
inherent aboriginal rights throughout their traditional territory. Many
other tribes located outside Colorado maintain tribal interests,
including aboriginal and ceded territories, and retain inherent
aboriginal rights within the state.
The Forest Service has been consulting with Colorado-affiliated
tribes regarding this proposed rulemaking action and analysis process
(see chapter 1). Tribal concerns surfaced during phone or e-mail
consultations. Those concerns related to: maintaining existing tribal
hunting and access rights within roadless areas, limiting public use of
temporary roads, and decommissioning temporary roads after they are no
longer needed. Those land uses and management activities would not be
affected by the proposed Colorado Roadless Rule; therefore, those
concerns are briefly discussed but not analyzed in detail in this EIS.
Consultation with interested or affected tribes will continue
throughout the analysis and decisionmaking process.
Pursuant to Executive Order 13175 of November 6, 2000,
``Consultation and Coordination with Indian Tribal Governments,'' the
Department has assessed the impact of this proposed rule on Indian
Tribal governments and has determined that the proposed rule does not
significantly or uniquely affect Indian Tribal government communities.
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The proposed rule would establish direction governing the management
and protection of Colorado Roadless Areas, however, the proposed rule
respects prior existing rights, and it addresses discretionary Forest
Service management decisions involving road construction, timber
harvest, and some mineral activities. The Department has also
determined that this proposed rule does not impose substantial direct
compliance costs on Indian Tribal governments. This proposed rule does
not mandate Tribal participation in roadless management of the planning
of activities in Colorado Roadless Areas. Rather, the Forest Service
officials are obligated by other agency policies to consult early with
Tribal governments and to work cooperatively with them where planning
issues affect Tribal interests.
No Takings Implications
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630 issued March
15, 1988. It has been determined that the proposed rule does not pose
the risk of a taking of private property.
Civil Justice Reform
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. After adoption of this proposed rule, (1) all
State and local laws and regulations that conflict with this proposed
rule or that would impede full implementation of this proposed rule
will be preempted; (2) no retroactive effect would be given to this
proposed rule; and (3) this proposed rule would not require the use of
administrative proceedings before parties could file suit in court
challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Ac
