[Federal Register Volume 76, Number 73 (Friday, April 15, 2011)]
[Proposed Rules]
[Pages 21272-21294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9119]
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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.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Forest Service, U.S. Department of Agriculture (USDA), is
proposing to establish a State-specific rule to provide management
direction for conserving and managing inventoried roadless areas on
National Forest System (NFS) lands in Colorado. A proposed rule was
published in the July 25, 2008, Federal Register. In response to public
comment on the 2008 Proposed Rule and a revised petition submitted by
the State of Colorado on April 6, 2010, the Forest Service is
publishing a new proposed rule.
The Agency is inviting public comment on this new proposed rule and
accompanying revised draft environmental impact statement (RDEIS). The
Agency is interested in public comments on the changes to exceptions
and prohibitions on activities in roadless areas that have been
developed in response to public comments on the 2008 Proposed Rule. The
Agency is particularly interested in receiving public comments on the
concept, management, and rationale for designation of specific areas
within Colorado Roadless Areas identified as ``upper tier.'' In this
proposed rule, these areas are provided a higher level of protection
than the 2001 Roadless Rule,
DATES: Comments must be received in writing by July 14, 2011.
ADDRESSES: Comments may be sent via e-mail to
[email protected]. Comments may also be submitted via the
Internet at http://www.regulations.gov. Written comments concerning
this notice should be addressed to: Colorado Roadless Rule/EIS, P.O.
Box 1919, Sacramento, CA 95812.
All comments, including names and addresses, are placed in the
record and are available for public inspection and copying. The public
may inspect comments received at http://roadless.fs.fed.us.
FOR FURTHER INFORMATION CONTACT: Colorado Roadless Rule Team Leader Ken
Tu at (303) 275-5156. Individuals using telecommunication devices for
the deaf (TDD) may call the Federal
[[Page 21273]]
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).
Colorado's Roadless Areas are of great importance to the people of
Colorado and the Nation. These magnificent landscapes provide a variety
of resources and open space opportunities for all Americans. They
provide the setting and backdrop for recreational experiences of all
kinds, including non-motorized and/or motorized recreational trail use.
They are sources of clean and safe public drinking water. They contain
intact habitat for species dependent on large, undisturbed areas of
land. The scenic quality of these naturally appearing landscapes is
among the highest in the Nation. These areas serve as bulwarks against
the spread of non-native invasive plant species and provide reference
areas for study and research. The USDA, Forest Service, and State
consider these areas an important component of the NFS and are
committed to the conservation and protection of Colorado Roadless Areas
(CRAs).
The unique perspectives and knowledge provided by the State and the
public was of great assistance throughout the development of this
proposed rule. Many of the CRAs form the setting and backdrop for
Colorado communities and have become part of their identity. These
areas help provide a high quality of life for local residents. They are
also the backdrop for world-class skiing, hunting and fishing, and
backcountry experiences for non-residents. Local communities are
sensitive to the economic consequences of Federal land management,
whether for tourism or other purposes.
The new proposed rule addresses both local and national interests
in the management of Colorado Roadless Areas. Recommendations from the
USDA Secretary's Roadless Area Conservation National Advisory Committee
(RACNAC) and public comment on the 2008 Proposed Rule both provided a
national perspective. The RACNAC was specifically designed as an
advisory committee composed of national interests to provide a national
perspective, and it no longer exists. The vast majority of respondents
to the 2008 Proposed Rule expressed a desire for a rule that protects
roadless area characteristics now and for future generations. However,
some respondents suggested alternative, less restrictive roadless
regulations. This proposed rule includes prohibitions on tree-cutting,
sale, or removal; road construction/reconstruction; and linear
construction zones, all with limited exceptions tailored to address
specific issues. This proposed rule requires, in many cases, the
Regional Forester to make specific determinations prior to authorizing
exceptions.
In this proposed rule, substantially altered acres have been
removed from the roadless inventory and new acres with high level of
roadless characteristics have been added. In the standard tier, 20,000
acres are in the North Fork coal mining area, where there is an
exception for temporary roads for underground coal activities such as
methane drainage wells. Existing ski areas (8,300 acres) have been
removed from the roadless inventory, although only 1,700 acres would be
currently restricted by the 2001 Rule due to the fact that there are
existing permits on the other 6,600 ski area acres.
Linear construction zones are prohibited with some exceptions.
There is no prohibition of linear construction zones in the 2001 Rule.
In the proposed rule, there are exceptions for temporary roads for
fuels treatment and for ecosystem maintenance and restoration, but
these are restricted to locations within one half mile of communities.
Road construction for these purposes is not allowed in the 2001 Rule.
There is an exception for roads for authorized water conveyance
structures operated according to a State water court decree in
existence at the time of the promulgation of the final rule. There is
no exception for roads for water conveyance structures in the 2001
Rule.
In the proposed rule, the tree cutting exceptions for fuel
treatment and ecosystem maintenance and restoration are restricted
spatially in this proposed rule to a maximum of one and a half miles
from communities. The only condition in which tree cutting could occur
outside the community protection zone (CPZ) requires a Regional
Forester determination that there is a significant risk from wildfire
to a municipal water supply system. The 2001 Rule exception for
ecosystem maintenance and restoration allows tree cutting anywhere
within roadless areas.
In the proposed rule, an upper tier of protection has been
designated with fewer exceptions than the 2001 Rule for road
construction and reconstruction and tree cutting. Exceptions are not
allowed for road reconstruction and realignment, and temporary roads
for public health and safety. The 2001 Rule tree-cutting exceptions for
maintenance and restoration of ecosystem characteristics, and for
habitat improvement for endangered, threatened or sensitive species are
not allowed in the upper tier of the proposed rule.
State of Colorado Petitions
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 Colorado Senate Bill 05-243, the Roadless Areas Review
Task Force legislation signed into Colorado law on June 8, 2005. The
law identified membership and responsibilities of a 13-member
bipartisan task force to make recommendations to the Governor regarding
inventoried roadless areas in Colorado. The law also identified the
Federal 2001 Roadless Area Conservation Rule (2001 Roadless Rule) as
the starting point for the task force. The task force held nine public
meetings throughout the State, reviewed and considered over 40,000
public comments, and conducted a comprehensive review of Colorado's 4.4
million acres of inventoried roadless areas included in the 2001
Roadless Rule.
Colorado's petition (2006 Petition) was submitted by then-Governor
Owens on November 13, 2006, to the Secretary of Agriculture for
consideration 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 additions (2007 Petition). After
reviewing the recommendation from the RACNAC, the Secretary of
Agriculture accepted the 2007 Petition on August 24, 2007, and directed
the Forest Service to initiate rulemaking based on the petition. The
State of Colorado was granted cooperating agency status for purposes of
compliance with the National Environmental Policy Act (NEPA) pursuant
to 40 CFR 1501.6 of the Council on Environmental Quality regulations in
a memorandum of
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understanding dated January 8, 2008. A notice of intent (NOI) to
prepare an environmental impact statement (EIS) was published in the
Federal Register on December 26, 2007 (72 FR 72982). The public comment
period ended on February 25, 2008. The Forest Service received about
88,000 responses.
On July 25, 2008, the Forest Service published the 2008 Proposed
Rule to establish State-specific management direction for conserving
roadless areas on NFS land in Colorado in the Federal Register (73 FR
43544). A notice of availability for the draft EIS was published in the
Federal Register on August 1, 2008 (73 FR 44991). The availability of
the regulatory risk assessment for the 2008 Proposed Rule was published
in the Federal Register on September 18, 2008 (73 FR 54125). The
comment period for all three documents closed on October 23, 2008.
Information applying to the 2008 Proposed Rule was provided to the
Ute Mountain Ute and Southern Ute Indian Tribes, located in Colorado,
prior to the release of the NOI. An introductory letter, the NOI,
background information on the 2008 Proposed Rule, and an offer for
additional information or meetings were sent to the Tribes. The 2008
Proposed Rule and DEIS were sent to each Tribe and each was contacted
by phone to determine interest in meeting or obtaining information. The
Tribes did not request additional government to government involvement,
and no formal comments from any of the Tribes were received. A letter
was sent to the Tribes with a draft version of this revised proposed
rule and the Forest Service met with those Tribes requesting further
consultation. In accordance with Executive Order 13175, consultation
efforts will continue throughout the process and preparation of a final
Rule.
As a result of its July, August, and September 2008 notices, the
Forest Service received approximately 106,000 responses of which
105,000 were form letters. Responses included advocacy for a particular
outcome or for specific regulatory language, and calls for compliance
with laws and regulations. Some responses contained suggestions on
further analyses and changes to issues, alternatives, and CRA
boundaries.
The RACNAC held public meetings in Washington, DC, and Salt Lake
City, Utah, and submitted recommendations to the Secretary of
Agriculture on December 5, 2008, to be considered in the development of
the rule.
Throughout the public involvement process, the USDA, Forest
Service, and State repeatedly heard comments requesting a reduction in
the scope of the Colorado State Petition's proposed exceptions for
tree-cutting, sale, or removal and road construction and
reconstruction. Based on the comments, the State requested the USDA
postpone further rulemaking efforts until the State considered revision
of its 2007 Petition.
On August 3, 2009, the State of Colorado released a proposed
revision of rule language to be used for its formulation of a revised
petition to the public. The State received approximately 22,000
comments during the 60-day comment period, the majority of which were
form letters. The State considered the public comments and submitted a
revised petition to the Secretary on April 6, 2010 (2010 Petition).
Upon receipt of the revised petition and consideration of the
public comments submitted on the petition, Secretary of Agriculture
Thomas J. Vilsack instructed the Forest Service to ``analyze the
potential of adding substantially to the number of acres receiving a
higher level of protection'' (upper tier lands) than the 2001 Roadless
Rule. The 2010 Petition contained 257,000 upper tier acres. Based on
the Secretary's direction, acres were added such that there are now
562,200 upper tier acres in this proposed rule. These areas were
selected to become upper tier based on their roadless characteristics,
and that they were already designated for higher levels of protection
in either draft or final forest plans.
The Forest Service analyzed four alternatives for managing roadless
areas in this RDEIS. Alternative 1 uses provisions of the 2001 Roadless
Rule and applies them to the 2001 roadless area inventory. Alternative
2 is the proposed rule, applies the rule to inventoried Colorado
Roadless Areas, and includes 562,200 acres in the upper tier.
Alternative 3 uses forest plan direction to manage roadless areas, and
alternative 4 uses the proposed rule direction, applies the direction
to Colorado Roadless Areas, and includes approximately 2.6 million
acres of upper tier. The RDEIS may be found at http://roadless.fs.fed.us. Following Secretarial instructions, as well as
reviewing public comments received to date, and the RACNAC
recommendations, the Forest Service in consultation with the State,
made additional adjustments and clarifications to this proposed rule.
Roadless Area Inventories in Colorado
Finally, the proposed rule includes an updated inventory of
roadless areas. The 2007 State Petition proposed using the inventories
used in the 2001 Roadless Rule. In some cases, these were based on
inventories from the late 70s. Those inventories used mapping
technologies that are now outdated, and also roads had been constructed
between the time of the original inventories and their use in the 2001
Roadless Rule. The Forest Service has reviewed and updated the 2001
inventories for the purpose of this rulemaking; making technical
corrections, removing private property and making other boundary
adjustments, including additions and deletions due to land exchanges.
Newly congressionally-designated areas have also been removed from the
CRA inventory.
During the public comment period on the 2008 Proposed Rule,
comments were received on many of the boundaries of individual CRAs.
The Forest Service and Colorado Department of Wildlife field staff
worked jointly to identify corrections to the inventories used for the
2008 Proposed Rule. Further information on the boundary changes and a
description of the uniqueness of each CRA can be found at http://roadless.fs.fed.us.
CRA boundaries have been adjusted where they overlap with ski areas
that have special use authorizations or land use management plan
allocations for ski areas that allow road construction.
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Proposed Net Change in Roadless Acres Designations by Forest--Inventoried Roadless Area Acres to Colorado Roadless Area Acres
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Corrected IRA
acres not Roadless acres Total roadless
2001 rule Corrected included added to acres to be Proposed net
total IRA Colorado IRA within Colorado managed under change
acres acres \1\ Colorado roadless areas Colorado rule
roadless areas
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Region 2 Colorado
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Arapaho-Roosevelt...................................... 391,000 352,500 10,800 5,400 347,100 (5,400)
GMUG................................................... 1,127,000 1,058,300 280,800 124,200 901,900 (156,500)
Pike San Isabel........................................ 688,000 667,300 63,000 170,300 774,600 107,300
Rio Grande............................................. 530,000 529,000 14,300 3,800 518,500 (10,500)
Routt.................................................. 442,000 442,300 10,300 1,700 433,700 (8,600)
San Juan............................................... 604,000 543,600 76,600 98,900 565,900 22,300
White River............................................ 640,000 639,500 7,500 4,700 636,700 (2,800)
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Region 4 Colorado
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Manti La Sal........................................... 11,000 11,000 3,800 500 7,700 (3,300)
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TOTAL STATE of COLORADO............................ 4,433,000 4,243,600 467,100 409,500 4,186,000 (57,600)
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Column 1 acres rounded to nearest 1,000 acres; others rounded to nearest 100 acres. Totals may not add due to rounding.
\1\ Net acres after technical corrections to 2001 rule IRA map acres.
Land Management Planning Efforts
The Agency is continuing land management planning efforts at the
national level as well on several forests in Colorado concurrent with
this rulemaking. The Rocky Mountain Region is presently conducting a
revision of the San Juan National Forest land management plan and the
revision schedule may be found at http://ocs.fortlewis.edu/forestplan.
A complete schedule of plan revisions is posted at http://www.fs.fed.us/emc/nfma/includes/LRMPschedule.pdf. At the national
level, the Agency is engaging in a revision of its land management
planning regulations. Information is posted at http://www.fs.usda.gov/planningrule. Some provisions of this proposed rule use terminology and
concepts from existing plans and planning regulations (e.g. ``sensitive
species''). The use of such terminology is potentially subject to
adjustment.
Specific Request for Public Comment
The Agency is particularly interested in receiving public input
regarding specific areas within the CRAs that should or should not be
included in the upper tier lands including the reason for the inclusion
or exclusion (see RDEIS, Appendix B and map packet); and what
exceptions to the prohibitions on tree-cutting, sale, or removal, and
road construction/reconstruction should apply to upper tier lands. In
addition, the Agency is interested in receiving comments on effective
means of managing linear facilities, such as electric power lines and
telecommunications lines, within roadless areas in context of this
proposed rule.
Section by Section Highlights of Changes From the July 2008 Proposed
Rule
This proposed rule replaces the proposed rule published in July
2008. The section numbers of this proposed rule do not correspond with
the numbering used in the 2008 Proposed Rule. Minor changes, edits, or
corrections are not discussed.
Section 294.40 Purpose
The purpose remains to provide State-specific direction for the
protection of roadless areas on NFS land in Colorado that sustains
roadless area characteristics now and for future generations.
Section 294.41 Definitions
Several terms have been added for clarification and some terms have
been removed where no longer needed.
The term at-risk community as defined in section 101 of the Healthy
Forest Restoration Act (HFRA) has been added.
The term Colorado Roadless Area upper tier acres has been added.
These are specific portions of or entire CRAs identified in the set of
CRA maps. The proposed rule prohibits all tree-cutting, sale, or
removal on these acres, except where incidental to the implementation
of a management activity not otherwise prohibited by the rule, or as
needed and appropriate for personal or administrative use. The proposed
rule would prohibit all road construction or reconstruction on these
lands, except where needed pursuant to reserved or outstanding rights
or as provided for by statute or treaty. All 562,200 acres analyzed in
alternative 2 of the RDEIS are part of the preferred alternative
(proposed rule).
The term Wildland Urban Interface (WUI) is removed and replaced by
the term Community Protection Zone (CPZ). A CPZ is defined as either an
area one-half mile from the boundary of an at-risk community or an area
up to 1[frac12] miles from the boundary of an at-risk community where:
the land has a sustained steep slope that creates the potential for
wildfire behavior endangering the at-risk community; or has a
geographic feature that aids in creating an effective fire break, such
as a river or a ridge top; or where the trees are in condition class 3
as defined by the HFRA. The CPZ is measured from the boundary of the
at-risk community and not from the boundary of the CRA.
The term hazardous fuels has been added. Hazardous fuels are
defined as excessive live or dead wildland fuel accumulations that
increase the potential for intense wildland fire and decrease the
capability to protect life, property and other resources.
The term roadless area characteristics has been retained, but
modified from the definition offered in the 2008 Proposed Rule. The
2008 definition indicated that the enumeration of the various resources
and features was not intended to 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
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otherwise authorized by this rule. The 2010 State Petition recommended
removing that language from the definition and inserting interpretive
language in the scope and applicability section of the regulation. The
proposed rule states in Sec. 294.40 that the intent of this regulation
is to protect roadless areas. Activities must be designed to conserve
the roadless area characteristics listed in Sec. 294.41, although the
proposed rule acknowledges that applying the exceptions in Sec.
294.42, Sec. 294.43, and Sec. 294.44 may have effects to some
roadless area characteristics.
The terms catchment, native cutthroat trout, and water influence
zone have been added to describe requirements that provide additional
protection for native cutthroat trout species when a road construction/
reconstruction or linear construction zone exception is authorized.
The term linear construction zone has been added.
The term utility has been removed, and replaced by linear facility
which includes pipelines, electrical power lines, and telecommunication
lines.
The definition for water conveyance structures has been modified to
include reservoirs to clarify that they are included under the
exception for construction, reconstruction or maintenance of roads for
authorized water conveyance structures. This exception in the proposed
rule applies only to those water conveyance structures operated
pursuant to a water court decree existing as of the date of the final
rule.
The term Pre-existing Water Court Decree has been defined.
Section 294.42 Prohibition on Tree-Cutting, Sale, or Removal
On lands designated as upper tier, tree-cutting, sale, or removal
would be prohibited except when the Responsible Official determines
that the activity is consistent with the applicable land management
plan (LMP), and incidental to the implementation of a management
activity not otherwise prohibited, or as needed and appropriate for
personal or administrative use. Upper tier areas provide for a higher
level of protection than the 2001 Roadless Rule because the exceptions
in the 2001 Roadless Rule to allow tree-cutting, sale or removal for
species habitat and for maintenance and restoration of ecosystem
composition and structure, including the reduction of risk of
uncharacteristic wildfire effects, are not applied to upper tier in
this proposed rule.
On the remaining CRA lands, the proposed rule would require the
Responsible Official to determine whether any proposed tree-cutting,
sale, or removal project would be consistent with the applicable LMP,
would maintain or improve one or more roadless area characteristic over
the long-term, and would qualify as a listed exception. Tree-cutting
incidental to a management activity otherwise authorized by this
proposed rule or for personal or administrative use would not be
required to maintain or improve one or more of the roadless area
characteristics over the long-term.
The exceptions concerning tree-cutting, sale, or removal allowed to
reduce fuel loadings to moderate the potential effects of a
catastrophic wildland fire have been refined. The proposed rule takes
into account that homes that have been constructed adjacent to
Colorado's national forests and the increasing threat of fire to these
at-risk communities. Treating hazardous fuels, and creating safety
zones for fire crews in areas around communities can make a difference
in the ability of firefighters to control wildfire moving toward an at-
risk community. Such conditions have been a major consideration in
developing the proposed rule language.
In Colorado, about 340 of the HFRA at-risk communities listed in
the Federal Register (66 FR 753, January 4, 2001) are within 1\1/2\
miles of a CRA. In the period between 1980 and 2008, over 1,700
ignitions affecting over 45,000 acres occurred within roadless areas in
Colorado. Over 45 percent of these ignitions and 25 percent of the
acres burned were within the 1\1/2\ mile CPZ. The proposed rule allows
flexible treatment prior to imminent fire activity and provides a more
restrictive approach than the 2001 Rule by limiting fuel treatments to
the CPZ. In addition, the proposed rule, by requiring treatment areas
beyond one-half mile from an at-risk community to be identified in a
Community Wildfire Protection Plan (CWPP), ensures consideration of
community and practitioner knowledge about conditions in a specific
area.
Within the CPZ, tree-cutting, sale, or removal may occur within the
first one-half mile of a CPZ only when the Regional Forester determines
it is needed to reduce the wildfire hazard to either an at-risk
community or a municipal water supply system, including reservoirs and
dams, diversion structures, headgates, canals, ditches, tunnels,
pipelines, and other surface facilities and systems.
Within the outer one mile of the CPZ, tree-cutting, sale, or
removal, if determined to be needed by the Regional Forester, may only
occur in an area identified in a CWPP. The CPZ would still be the
maximum boundary for allowed treatments within CRAs. If the CPZ
boundary exceeds the CWPP boundary, treatments would be limited to the
CWPP area.
Projects within the CPZ are to be focused on small diameter trees
to create fuel conditions to modify fire behavior while retaining large
trees to the maximum extent practical, as appropriate to the forest
type. In forest types such as lodgepole pine, trees may be dead or
dying, regardless of size, and may need to be removed, both to prevent
hazards to firefighters from falling and fallen trees, and for
successful hazardous fuel reduction.
Tree-cutting, sale, or removal for the protection of municipal
water supply systems outside of a CPZ is allowed only if the Regional
Forester determines that a significant risk exists to the municipal
water supply system or the maintenance of that system. This section
states that a significant risk exists under conditions in which the
history of fire occurrence and fire hazard and risk indicate a serious
likelihood that a wildland fire disturbance event would present a high
risk of threat to a municipal water supply system.
Projects outside of the CPZ are to be focused on small diameter
trees to create fuel conditions to modify fire behavior, while
retaining large trees to the maximum extent practical as appropriate to
the forest type. It is expected such projects will be infrequent.
The requested exception that allows tree-cutting, sale, or removal
to prevent or suppress an insect or disease epidemic has been replaced
with an exception that allows tree-cutting, sale, or removal to restore
the characteristics of ecosystem, composition, structure and processes.
This exception is intended to be used infrequently.
Tree-cutting, sale or removal for the purposes of wildlife habitat
improvement is limited to Federally threatened, endangered, and
proposed species or those listed as a regionally designated sensitive
species by the Forest Service, instead of all wildlife and plant
species as was allowed in the previously proposed rule.
Tree-cutting that is incidental to a management activity that is
otherwise not prohibited by the rule is allowed. Examples include, but
are not limited to, trail construction or maintenance; removal of
hazard trees adjacent to forest roads for public health and safety
reasons; fire line construction for wildland fire suppression or
control of
[[Page 21277]]
prescribed fire; survey and maintenance of property boundaries; or for
road construction and linear construction zones where allowed by this
rule.
Tree-cutting for personal or administrative use is allowed and
includes, but is not limited to, activities such as Christmas tree and
firewood cutting.
Section 294.43 Prohibition on Road Construction and Reconstruction
The proposed rule revises the exceptions to the prohibitions on
road construction or reconstruction from the previous proposal. Upper
tier land designations have been added that prohibit all road
construction/reconstruction, except when pursuant to reserved or
outstanding rights or as provided for by statute or treaty. Even in
such a situation, the Responsible Official would be required to make a
series of determinations to decide whether a proposal fits the
exception within the upper tier lands. The determinations would
include: consideration of technically feasible options without road
construction; when proposing to construct a forest road, consideration
of whether a temporary road would provide reasonable access; and within
a native cutthroat trout catchment or identified recovery watershed, a
determination whether road construction will diminish, over the long-
term, conditions in the water influence zone and in the native
cutthroat habitat.
The rule provisions concerning proposed road construction or
reconstruction for authorized water conveyance structures have been
modified. The definition of water conveyances has been expanded to
include reservoirs, and the exception is limited only to those
conveyances operated pursuant to a pre-existing water court decree as
of the effective date of a final rule. Water court decrees dated after
the final date of the rule would not be eligible for roaded access in
CRAs. Finally, the Regional Forester would be required to determine the
need for the road access.
The exception for temporary road construction associated with tree-
cutting, sale, or removal to reduce the wildfire hazard to an at-risk
community or municipal water supply system and tree-cutting associated
with maintenance and restoration of characteristics of ecosystem
composition, structure and processes, is limited to the first half mile
of the CPZ and would require a determination by the Regional Forester.
The road construction exception for the management of livestock
grazing has been eliminated. New grazing authorizations would be
limited to use of existing roads.
Temporary road construction may be authorized when associated with
exploration or development of an oil and gas lease that was issued
prior to the effective date of the rule and when the lease and
stipulations do not prohibit surface occupancy or roading.
Approximately 9,000 acres of the Currant Creek CRA, have been
removed from the North Fork Coal Mining Area exception due to public
comments regarding the wildlife values of this particular CRA and the
lack of existing coal leases in this area. In the remaining proposed
20,000 acres, temporary road construction would be allowed for coal
exploration and coal-related surface support activities, such as the
drilling of vent holes to extract methane gas to facilitate miner
safety. These same temporary roads could also be used for the purpose
of collecting and transporting coal mine methane to avoid venting
methane into the atmosphere. The authorized road right-of-way would
serve as the site for buried infrastructure, such as pipelines. The
proposed rule allows for the opportunity to develop this important low-
sulfur, cleaner-burning coal resource in a limited portion of the CRA
inventory, with areas being returned to long term management for
roadless area protection following the decommissioning of the
associated temporary roads.
Under all road exceptions, projects would have to be designed and
completed to reduce unnecessary or unreasonable surface disturbance.
All roads constructed would be decommissioned and the affected
landscape restored when a road was no longer needed for the original
purpose and/or when the authorization expired, whichever was sooner.
These decommissioning requirements would be included in all related
contracts or permits and could not be waived.
To prevent roads from affecting the landscape longer than intended,
temporary roads authorized under this subpart would not be converted to
a forest road (be designated as a permanent road), unless the specific
exception under which the temporary road was constructed allows for
forest road construction and reconstruction. All roads would also
restrict use to the purpose for the road, limiting the traffic and
overall impact to the area. Motorized use by the general public
including use by off-highway vehicles would be prohibited. General use
restrictions would not apply to administrative use by the Forest
Service, motor vehicle use that is specifically under an authorization
issued under Federal law or regulation, or use for public health and
safety or law enforcement reasons. Maintenance of temporary or forest
roads would be permitted.
Section 294.44 Prohibition on Linear Construction Zones
Prohibitions on linear construction zones (LCZs) have been added to
the proposed rule. The 2001 Roadless Rule did not restrict the use of
LCZs. LCZs would be prohibited in CRAs unless they meet one of three
exceptions: water conveyance structures with a pre-existing water court
decree; electrical power or telecommunication lines; and pipelines
associated with oil and gas leases that allow surface use within CRAs
or an oil and gas lease outside of CRA that connects to infrastructure
inside of CRAs. For all three LCZ exceptions, the Regional Forester
would be required to determine that motorized access is not possible
without an LCZ that the LCZ is consistent with applicable LMP, and that
in the long term the LCZ will not diminish conditions in native
cutthroat trout habitat.
The Regional Forester may authorize a LCZ when needed for
construction, reconstruction, or maintenance of an authorized water
conveyance structure that was operated pursuant to a pre-existing water
court decree, as of the effective date of this rule. This exception is
similar to the road construction/reconstruction for water conveyance
structures, but can be selected when a road is not necessary.
Colorado's petition and public comment identify that the current
electrical power line system, some of which is already located in CRAs,
will need to be maintained and upgraded. Additionally, demand for
additional lines is expected. The rule recognizes these possibilities
and would allow LCZs, when appropriate, as the method requiring the
least disturbance. For the construction, reconstruction, or maintenance
of existing or future electrical power lines or telecommunication lines
within a CRA, the Regional Forester would determine if a LCZ is needed.
The rule further clarifies that any future electrical power lines or
telecommunication lines could only be authorized within a CRA if there
is no opportunity for the project to be implemented outside the CRA
without causing substantially greater environmental damage. The agency
is inviting public comments on this exception.
[[Page 21278]]
The rule similarly recognizes that it may be appropriate to
authorize a LCZ within CRAs to allow the movement of product to market
from within a pre-existing oil and gas lease within the CRA. The
proposed rule also allows an LCZ when a proponent requests to connect
from outside the CRA to an existing infrastructure within a CRA in
order to avoid creation of a duplicate pipeline system and unnecessary
environmental harm. The Regional Forester would be required to
determine that such a connection would cause substantially less
environmental damage than alternative routes. An LCZ would not be
allowed for new pipelines that would merely pass through a CRA.
All LCZs would be constructed in a manner that minimizes ground
disturbance, and would include a reclamation plan. After installation
of the linear facility, the LCZ and all areas of surface disturbance
would be reclaimed according to the reclamation plan, and those
requirements would not be waived.
Section 294.45 Environmental Documentation
The Forest Service will comply with NEPA for activities within
CRAs. The Forest Service NEPA regulations at 36 CFR 220.5(a)(2)
normally require preparation of an EIS for any proposal that would
substantially alter the undeveloped character of an inventoried
roadless area, including CRAs.
The Forest Service would be required to offer the State of Colorado
cooperating agency status for all proposed projects and planning events
within CRAs. When the Forest Service is not the lead agency and does
not have the authority to offer formal cooperating agency status to the
State of Colorado, the Forest Service would offer to coordinate with
the State.
Section 294.46 Other Activities
The proposed rule would prohibit temporary and permanent road
construction and reconstruction associated with new oil and gas leases
issued within a Colorado Roadless Area. Some comments suggested that
the Colorado Roadless Rule establish restrictions to be applied
retroactively to oil and gas leases within CRAs. The proposed rule does
not implement that suggestion. Consistent with other past Department
rulemakings concerning roadless area management, this proposed rule is
not designed or intended to alter previously approved decisions but
instead establishes prospective management direction for the protection
and management of CRAs. Nevertheless, the proposed rule would establish
requirements to limit future discretionary decisions concerning oil and
gas leasing within CRAs. Specifically, the proposed rule would require
that only temporary roads could be developed in association with pre-
existing leases. In addition, the proposed rule would prohibit the
Agency from authorizing the Bureau of Land Management to grant any
request for a waiver, exception, or modification to any oil or gas
lease, if doing so would result in any road construction within a
Colorado Roadless Area beyond that authorized at the time of issuance
of the lease.
Comments were also received for and against establishment of a
prohibition on new oil and gas leasing or surface occupancy within
CRAs. Again, like prior rules, the proposed rule does not establish
such prohibitions. Instead, the proposed rule would allow only such
leasing that can be accomplished without road construction or
reconstruction and would require mandatory and non-waiveable
stipulations prohibiting road construction. The proposed rule
identifies regulatory requirements in 36 CFR 294.44 that would be
imposed for any linear construction zone associated with new leases.
The proposed rule also confirms that the forest travel management
processes will continue to be used for all future decisions regarding
motorized and non motorized use on trails within CRAs. Motorized access
not involving the construction or reconstruction of roads would
continue according to existing authorizations. CRA designation would
not eliminate or preclude any lands from being available for livestock
grazing.
Section 294.47 Modifications and Administrative Corrections
The Chief of the Forest Service would be able to modify CRA
boundaries based on a changed circumstance such as, the inclusion or
exclusion of lands due to land exchanges, and updated inventories. Such
changes to the boundaries would require public notice and a minimum 90-
day public comment period. Changes due to new congressional
designations would not require a modification, and would be adjusted to
conform to the applicable statute.
The Chief of the Forest Service would be able to make
administrative corrections to CRA boundaries. Administrative
corrections would require public notice and a 30-day comment period.
Administrative corrections include adjustments such as to correct
clerical errors or to reflect improved field data due to updated
imagery, global positioning data, or other collected field data.
Rulemaking would be required for any modification to final rule
language. The Secretary would provide for public notice and a minimum
90-day comment period, and the State would be consulted on any
rulemaking proposals.
Section 294.48 Scope and Applicability
The proposed rule's applicability would be limited to
authorizations for occupancy and use of NFS lands issued after the
effective date of a final rule. The proposed rule's provisions would
not affect project or activity decisions issued prior to the effective
date of a final rule.
Components of a LMP can be more restrictive than the rule and will
continue to provide guidance and direction for projects within CRAs.
The proposed rule does not compel amendment or revision of a LMP. A
project decision or LMP amendment or revision may not waive or
supersede the provisions of this proposed rule.
The proposed rule does not waive any requirements during project
analyses to consult with Tribes and other agencies, comply with
applicable laws, and involve the public.
If any provision of the rule or its application were held to be
invalid, the Department's intention is that the remainder of the
regulation would remain in force.
After promulgation of a final rule, the rule promulgated on January
12, 2001, would have no effect within the State of Colorado.
Section 294.49 List of Designated Colorado Roadless Areas
There are 363 Colorado Roadless Areas in the proposed rule; an
increase of 18 CRAs from the July 2008 Proposed Rule.
Regulatory Certifications
Regulatory Planning and Review
The proposed rule was reviewed under USDA procedures, Executive
Order 12866 (E.O. 12866), and the major rule provisions of the Small
Business Regulatory Enforcement and Fairness Act (5 U.S.C. 800). E.O.
12866 addresses regulatory planning and review and requires agencies
conduct a regulatory impact assessment 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. Total annual
[[Page 21279]]
output associated with oil, gas, and coal production in the affected
areas is projected to be approximately $970 million under the proposed
rule, compared to approximately $1,030 million under baseline
conditions, implying the annual impact of the proposed rule is
estimated to be a decrease of approximately $60 million for energy
mineral sectors. Due to the potential magnitude of economic impacts and
the level of interest in inventoried roadless area management, this
proposed rule has been designated as significant and is subject to
Office of Management and Budget (OMB) review under E.O. 12866.
A regulatory impact assessment has been prepared for this proposed
rule. OMB Circular A-4 as well as guidance regarding E.O. 12866
indicate that regulatory impact analysis should include an assessment
of distributional effects. The benefits, costs, and distributional
effects of four alternatives are analyzed over a 15-year time period.
These four alternatives referred to as follows: Alternative 1--the
provisions of the 2001 Roadless Rule (2001 rule); alternative 2--the
proposed Colorado Roadless Rule (proposed rule); alternative 3--Forest
Plans (no action); and alternative 4 (the proposed rule with public
identified upper tier acreage). The difference between alternative 2
and 4 is the number and location of upper tier acres identified within
the CRAs. For the purpose of regulatory impact assessment, the forest
plan alternative represents baseline conditions or goods and services
provided by NFS lands in the near future in the absence of the proposed
rule. In August 2008, the Wyoming District Court set aside and enjoined
the 2001 Roadless Rule. Colorado is under the Wyoming Court's ruling.
In the revised DEIS the baseline conditions are therefore assumed to
mean that IRAs in Colorado will be managed according to direction set
forth in the applicable forest plan (alternative 3).
The proposed rule is programmatic in nature and intended to guide
future development of proposed actions in 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 around communities to allow access to coal
reserves in the North Fork coal mining areas, and to allow access to
future water conveyances.
The proposed rule does not authorize the implementation of any
ground-disturbing activities, but rather it describes circumstances
under which certain activities may be allowed or restricted in 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 National Environmental Policy
Act (NEPA) and its implementing regulations.
Because the proposed rule does not prescribe site-specific
activities, it is difficult to predict changes in benefits and costs or
other changes under the different alternatives. It should also be
emphasized that the types of benefits derived from uses of roadless
areas in Colorado 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 area
characteristics' in an effort to remain consistent with the overall
purpose of the proposed rule, recognizing that benefits associated with
local challenges may trigger or overlap with benefits associated with
roadless area characteristics in some cases (e.g., forest health).
Access and designations for motorized versus non-motorized recreation
is a topic raised in comments, 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
forest 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 reducing wildfire
hazard are characterized by estimating the extent to which CPZ areas
(i.e., 0.5 to 1.5 mile buffer areas surrounding communities at-risk
from wildfire) overlap roadless areas where tree-cutting for fuel
treatments has been identified as being likely to occur. Distributional
effects or economic impacts are not evaluated for other economic
sectors (e.g., timber harvest, recreation) due to evidence presented in
Table 2 suggesting that the extent or magnitude of changes in output or
services are not sufficient to cause significant changes in jobs and
income for those economic sectors.
Details about the environmental impacts associated with the
proposed rule can be found in the RDEIS. Effects on opportunities for
small entities under the proposed rule are discussed in the context of
E. O. 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 assessment 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
alternatives 1, 2, 3 and 4. Table 3 summarizes distributional effects
and economic impacts of the proposed rule and alternatives.
Table 1--Framework for Analysis: Comparison of Roadless Area Acreage, Road Miles, and Tree-Cutting
----------------------------------------------------------------------------------------------------------------
Alternative 4
Proposed Rule with
Alternative 1 2001 Alternative 2 Alternative 3 Public Identified
Roadless Rule Proposed Rule Forest Plans Upper Tier Acres
\1\
----------------------------------------------------------------------------------------------------------------
Roadless Areas.................. Inventoried Colorado Roadless 4,243,600 acres... Colorado Roadless
Roadless Areas Areas (CRAs) = Areas
(IRAs) = 4,186,000 acres. (CRAs) = 4,186,000
4,243,600 acres. acres.
Total Existing Authorized Road 1,260 miles in 8.5 miles in CRAs. 1,260 miles in 8.5 miles in CRAs.
Miles in Roadless Areas \1\. IRAs. IRAs.
[[Page 21280]]
Road Construction and 14 miles/year (11 20 miles/year (16 28 miles/year..... 18 miles/year (14
Reconstruction Projected in the miles in IRAs). in CRAs). in CRAs).
Analysis Area.
Tree-cutting Projected in the 2,300 acres/year 7,000 acres/year 16,900 acres/year. 3,000 acres/year
Analysis Area. (1,200 in IRAs). (5,800 acres in (1,800 acres in
CRAs). CRAs).
----------------------------------------------------------------------------------------------------------------
\1\ Approximately 24 miles of roads are projected to be decommissioned in IRAs and 8 miles decommissioned in
CRAs. Alternative 4 is the same as Alternative 2 with the exception that more roadless areas are assigned to
the upper tier restrictions.
Table 2--Comparison of Environmental Consequences by Alternative
----------------------------------------------------------------------------------------------------------------
Alternative 4
Alternative 1 2001 Alternative 2 Alternative 3 (No Proposed Rule with
Issue or affected resource Roadless Rule Proposed Rule Action) Forest Public Identified
Plans Upper Tier Acres
----------------------------------------------------------------------------------------------------------------
Local Challenges and Resources: Roadless Area Management
----------------------------------------------------------------------------------------------------------------
Fire and Fuels (Hazardous Fuel Tree-cutting Tree-cutting Tree-cutting Tree-cutting
Reductions). projected for projected for projected for projected for
1,800 acres per 5,900 acres per 13,100 acres per 2,200 acres per
year in the year in the year in the year in the
analysis area to analysis area to analysis area to analysis area to
reduce hazardous reduce fuels reduce fuels; reduce fuels
fuels (900 of (5,300 of which this amounts to (1,600 of which
which are within are within CRAs); 20% of annual are within CRAs);
IRAs); this this amounts to fuel treatments this amounts to
amounts to 3% of 9% of annual fuel on all NFS lands 3% of annual fuel
average annual treatments on all in CO. treatments on all
fuel treatments NFS lands in CO. Greatest NFS lands in CO.
on all NFS lands More flexibility flexibility to Within the CRAs
in CO. to conduct conduct hazardous that are not
Least flexibility hazardous fuel fuel reduction upper tier acres,
to conduct reduction and and reduce fire the flexibility
hazardous fuel reduce fire risk risk to to conduct
reduction and to communities communities and hazardous fuel
reduce fire risk and municipal municipal water reduction and
to communities water supply supply systems. reduce fire risk
and municipal systems. to communities
water supply Unable to conduct and municipal
systems. hazardous fuels water supply
reduction on 12% systems is
of 0.5 mile CPZ identical to
and 13% of 1.5 alternative 2,
mile CPZ due to but there are
upper tier acre more upper tier
prohibitions. acres that cannot
be treated.
Unable to conduct
hazardous fuels
reduction on 48%
of 0.5 mile CPZ
and 52% of 1.5
mile CPZ due to
upper tier acre
prohibitions.
----------------------------------------------------------------------------------------------------------------
Ecosystem Maintenance and 500 acres per year 1,000 acres per 3,500 acres per 800 acres per year
Restoration Treatments. in the analysis year in the year within the in the analysis
area have analysis area analysis area area have
projected tree- have projected have projected projected tree-
cutting tree-cutting tree-cutting cutting
activities (300 activities (400 activities. activities (200
acres within acres within Greatest acres within
IRAs). Fewest CRAs). More opportunities to CRAs). More
opportunities to opportunities maintain and opportunities to
maintain and than alternatives restore ecosystem maintain and
restore ecosystem 1 and 4, but characteristics, restore ecosystem
characteristics, fewer including characteristics,
including opportunities resilience to including
resilience to than alternative insect and resilience to
insect and 4 to maintain and disease outbreaks insect and
disease outbreaks restore ecosystem and climate- disease outbreaks
and climate- characteristics, induced stressors. and climate-
induced stressors. including induced stressors
resilience to than alternative
insect and 1 but less than
disease outbreaks alternative 3 and
and climate- alternative 2 due
induced to upper tier
stressors. Unable acres.
to treat upper
tier acres.
----------------------------------------------------------------------------------------------------------------
Timber.......................... Tree-cutting (sale or removal) in the roadless analysis area is projected to
occur in association with treatments on 2,300, 3,000, 7,000, and 16,900 acres
per year respectively under Alternatives 1, 2, 3, and 4. However, average
annual treatment acreage on all NFS land is not expected to be affected
substantially by the alternatives, with the only change being the extent to
which treatments occur in roadless versus non-roadless areas on NFS lands.
Minimal impacts to the wood products sector are therefore expected.
----------------------------------------------------------------------------------------------------------------
Oil and Gas..................... Projections are for approximately 686 Projections are Same as
oil and gas wells in the analysis for approximately Alternative 1 and
area with access to 1,046 bcfg over a 783 oil and gas 2.
15-year period (same for Alternatives wells in the
1, 2, and 4). Projected annual road analysis area
construction and reconstruction is with access to
about 10 miles in roadless areas. 1,154 bcfg over a
15-year period,
providing
slightly more
opportunity
compares to the
other
alternatives.
Annual road
construction/
reconstruction is
11 miles.
----------------------------------------------------------------------------------------------------------------
[[Page 21281]]
Coal Analysis Area.............. Projections are Projections are Projections are Same as
for 16 miles of for 52 miles of for 73 miles of Alternative 2.
new roads in the new roads in the new roads in the
analysis area, of analysis area, of analysis area, of
which 7 are in which 50 are in which 64 are in
IRAs. CRAs. areas that
Restricts access Reduces overlap IRAs.
to potential coal restrictions on Least restrictive
resources in IRAs access to on access to
more than other potential coal potential coal
alternatives. resources in CRAs resources in IRAs
8,600 acres of compared to the compared to the
road-accessible 2001 rule, but is other two
reserves (7,100 more restrictive alternatives.
in current than Alternative 39,600 acres of
leases; 1,500 in 3 (limits new road-accessible
unleased areas roads to the reserves (7,100
outside of IRAs) North Fork coal in current
with access to mining area). leases; 32,500 in
157 million tons. 27,500 acres of unleased areas)
road-accessible with access to
reserves (7,100 724 million tons.
in current
leases; 18,900 in
unleased areas
outside of CRAs)
with access to
514 million tons.
Within North Fork
coal mining area,
15,600 unleased
within CRAs, 5300
in unleased areas
outside of CRAs.
----------------------------------------------------------------------------------------------------------------
Geothermal...................... Opportunities for geothermal development in roadless areas would not occur
under the 2001 rule, the proposed rule, and Alternative 4 due to new road
prohibitions. Opportunities for geothermal development in roadless areas
would occur under the forest plans alternative as most land management plans
allow new roads in roadless areas for this purpose. There are no current
leases on NFS lands in Colorado, though potential for geothermal resources is
being studied.
----------------------------------------------------------------------------------------------------------------
Public Safety................... All of the alternatives provide flexibility to respond to emergency situations
or major threats to public health and safety in roadless areas (refer to
features common to all alternatives). In contrast, the potential for
accidents and safety hazards increases as the amount of activity and traffic
increases. The Forest Service will continue to respond to wildfires, chemical
or oil spills, abandoned mine hazards, road-design hazards, hazard trees, and
other similar situations. Roads for this purpose must be temporary under the
proposed rule, and would be expected to be temporary under the 2001 rule and
forest plans. Upper tier acres in Alternatives 2 and 4 do not have a specific
public health and safety exception for road construction, as does alternative
1.
----------------------------------------------------------------------------------------------------------------
Special Uses: Non-recreational Special use authorizations issued prior to the effective date of rulemaking
(pipelines, electrical or would be unaffected.
telecommunication lines, water
conveyances).
-------------------------------------------------------------------------------
Future special use Future special use Future special use Same as
authorizations in authorizations in authorizations alternative 2.
IRAs would CRAs would would generally
generally generally allow for road
prohibit road prohibit road construction;
construction, but construction. except where
there would be no Limited exceptions prohibited under
prohibition on for the forest plans.
the use of LCZs. construction of There would be no
3.2 miles per year LCZ for future prohibition on
of LCZs projected. oil and gas the construction
pipelines, of LCZs.
electrical power 3.6 miles per year
lines or of LCZs projected.
telecommunication
lines, and water
conveyance
structures in
CRAs.
3.2 miles per year
of LCZs projected.
----------------------------------------------------------------------------------------------------------------
Developed Ski Areas............. Least Greater Same as Same as
opportunities for opportunity for alternative 2. alternative 2.
ski area ski area Forest plans can
development and development and be amended or
expansion. expansion. revised to expand
Road construction Road construction ski area
and tree-cutting and tree-cutting allocations
permitted on permitted on beyond the
6,600 acres 6,600 acres under current
within IRA permit as well as allocation.
boundaries and the additional
also under permit 1,700 acres of
prior to the ski areas
effective date of allocated under
this rule. Roads forest plans and
and tree-cutting located outside
would be existing permits.
prohibited in
1,700 acres of
ski areas
allocated under
forest plans but
outside of
existing permits.
----------------------------------------------------------------------------------------------------------------
Other Developed Recreation...... Only one mile of new road is current projected for recreational purposes over
the next 15 years under No Action; effects on developed recreation
opportunities therefore do not differ substantially across alternatives.
----------------------------------------------------------------------------------------------------------------
Livestock Management............ None of the projected activities in roadless areas that vary by alternative
would be likely to have any substantial beneficial or adverse impacts on
livestock management operations in roadless area grazing allotments.
----------------------------------------------------------------------------------------------------------------
Roadless Area Characteristics and Values
----------------------------------------------------------------------------------------------------------------
Scenic Quality.................. Projected activity levels (e.g., tree-cutting) occur on relatively small
percentages of total roadless area under all alternatives.
-------------------------------------------------------------------------------
Least risk to More risk to Greatest risk to Same as
scenic resources. scenic resources scenic resources. alternative 2
than alternatives within CRA
1 and 4. Upper boundaries that
tier acres same are not upper
as alternative 1. tier; upper tier
areas same as
alternative 1.
----------------------------------------------------------------------------------------------------------------
[[Page 21282]]
Wilderness and Other No major difference among the alternatives related to the risk of adverse
Congressionally Designated effects on congressionally designated areas. There would be no potential
Areas. direct effect on these areas as they are outside the roadless areas that are
the subject of each alternative.
Effects on areas in forest plans as recommended wilderness would not differ by
alternative as land management plans generally prohibit road construction and
tree-cutting and removal activities in those areas. However, restrictions on
activities in IRAs under the 2001 rule provide a greater opportunity to
maintain future options for recommending roadless acres as wilderness in the
future, compared to the proposed rule and forest plans.
-------------------------------------------------------------------------------
Indirect effects on wilderness area Higher risk of Similar to
characteristics or experience from indirect adverse Alternatives 1
activities in adjacent roadless areas effects on and 2. Greater
are expected to be low under wilderness opportunity to
Alternatives 1 and 2 because experience from establish uniform
projected activities are not expected activities in the management
to occur adjacent to wilderness area analysis area due approaches for
boundaries. to higher recommended
likelihood that wilderness
activities could through placement
occur adjacent to of roadless areas
wilderness in upper tier.
boundaries.
----------------------------------------------------------------------------------------------------------------
Soil............................ No major difference among alternatives related to the risk of soil impacts.
Alternative 1 and 4 would have the least risk of adverse effects, and
alternative 2 would have a slightly higher risk, followed by alternative 3.
However, these differences are expected to be small in magnitude and spread
over a wide geographic area. Most of the potential effects would be mitigated
by site-specific mitigation measures. The risk of post-fire soil erosion may
be higher under Alternative 1 and lowest under Alternative 3 as a result of
projected levels of fuel treatments.
----------------------------------------------------------------------------------------------------------------
Water and Water Quality......... Activities under all alternatives are unlikely to contribute to water quality
impairment (i.e., exceeding water quality standards) due to application of
mitigation measures and BMPs as a result of NEPA process and site-specific
analysis.
-------------------------------------------------------------------------------
Lowest risk of Slightly greater Higher risk of Similar to
direct adverse risk of direct direct adverse Alternative 2
effects from tree- adverse effects effects from tree- though slightly
cutting and road from tree-cutting cutting and road lower risk from
construction. and road construction. tree-cutting and
Higher risk from construction. Greatest decrease road construction
adverse impacts Decreased risks in risk from activities.
from floods and from floods and floods and
sedimentation sedimentation sedimentation
resulting from resulting from resulting from
wildfires. wildfire, wildfire due to
relative to increased fuel
alternatives 1 treatments to
and 4, due to protect
increased fuel communities and/
treatments to or water supplies.
protect
communities and/
or water supplies.
----------------------------------------------------------------------------------------------------------------
Air Resources................... Differences in effects on air quality do not substantially differ between the
alternatives. Atmospheric emissions within the analysis area are not expected
to increase to a level that would be likely to exceed State or Federal air
quality standards.
----------------------------------------------------------------------------------------------------------------
Threatened Endangered or No adverse impacts to threatened or endangered plants because no road
Sensitive Plants. construction or tree-cutting, sale, or removal is projected to occur where
threatened or endangered plants exist. Site-specific design criteria and
mitigation measures are expected to minimize risk. Individual sensitive
plants may be affected by projected activities; however, none of the
alternatives are expected to result in the loss of viability nor cause a
trend toward Federal listing of sensitive species.
-------------------------------------------------------------------------------
Least risk to More risk of Greatest risk of More risk of
adverse impacts adverse impacts adverse impacts adverse impacts
to sensitive to sensitive to sensitive to sensitive
plants, including plants, including plants, including plants, including
threats from threats from threats from threats from
invasives. invasives, than invasives. invasives, than
alternatives 1 or alternative 1;
4; less than less than
alternative 3. alternatives 2 or
3.
----------------------------------------------------------------------------------------------------------------
Aquatic Species and Habitat..... No long-term adverse effects are expected on threatened and endangered (T&E)
species, sensitive species, and MIS population trends; downstream T&E
species; or wetlands and riparian areas under any alternative due to the
assumption that mitigation measures and best management practices would help
avoid or minimize impacts from the projected activities.
-------------------------------------------------------------------------------
Least risk for Increase in risk Greatest potential Lower risk of
adverse impacts of adverse for adverse adverse impacts
on aquatic impacts to impacts to to aquatic
species. aquatic species. aquatic species. species compared
Provides greater to alternative 2
protection for and 3. A portion
cutthroat trout of upper tier
compared to acres are within
alternatives 1 watersheds
and 3. occupied by TES
fish, implying
potential
improvements in
protection
relative to
Alternative 2.
----------------------------------------------------------------------------------------------------------------
Terrestrial Species and Habitat. For all alternatives, potential adverse effects are expected to be avoided or
minimized through compliance with standards and guidelines in land management
plans and other applicable laws and policies. For all alternatives,
activities may affect individual animals but are not likely to adversely
affect populations or critical habitat of T&E species, nor result in the loss
of viability or cause a trend toward Federal listing for sensitive species.
-------------------------------------------------------------------------------
Least risk to Increased risk to Greatest risk to Increased risk to
terrestrial terrestrial terrestrial terrestrial
species and species and species and species and
habitat. habitat due to habitat due to habitat, but less
Limitations of activity activity than Alternative
tree-cutting to projections. projections. 2 due to activity
small diameter projections and
trees helps acreage
maintain larger allocation to
trees and upper tier.
variability in
forest structure.
----------------------------------------------------------------------------------------------------------------
[[Page 21283]]
Tree-cutting to Opportunities to Tree-cutting to
improve habitat improve early improve habitat
for threatened, seral stage and for TEPS species
endangered, and lower elevation prohibited on a
protected species habitat is greater number of
(TEPS) prohibited highest as a upper tier acres
in upper tier result of compared to
acres but fewer increased Alternative 2.
upper tier acres flexibility to Opportunities to
compared to treat fuels. improve early
Alternative 4. seral stage and
Opportunities to lower elevation
improve early habitat is lower
seral stage and than alternative
lower elevation 2 but higher than
habitat is higher alternative 1
as a result of (due to treatment
improved capacity projections).
to treat fuels.
Restricting tree-
cutting inside
and outside of
CPZs to small
diameter trees
helps maintain
larger trees and
forest structure
(also applies to
Alternative 4).
----------------------------------------------------------------------------------------------------------------
Biodiversity.................... The value of roadless areas in conserving biodiversity is likely to increase
as habitat loss and habitat degradation increase in scope and magnitude in
lands outside of roadless areas. Opportunities for protected large contiguous
blocks of habitat, biological strongholds, and habitat connectivity would be
greatest for the 2001 rule and lowest under the forest plans alternative.
Increasing opportunities for treatments under Alternatives 4, 2, and 3
respectively to address hazardous fuels and maintenance and restoration of
ecosystem characteristics may have off-setting beneficial effects on long-
term biodiversity.
-------------------------------------------------------------------------------
Invasive Plants................. Site-specific design criteria and mitigation measures are expected to minimize
risk.
-------------------------------------------------------------------------------
Lowest risk of Some higher risk Greatest risk of Slightly higher
spread due to low of the spread due the spread due to risk of the
projections of to greater the greatest spread compared
road construction projections of projections for to Alternative 1
or tree-cutting. road construction road construction but less than
or tree-cutting. or tree-cutting alternatives 2
Acres removed may compared to other and 3 due to
experience alternatives. projected levels
increased rates of road
of spread while construction and
acres added may tree-cutting.
have decreased
rates (same
applies for
Alternative 4).
----------------------------------------------------------------------------------------------------------------
Recreation--Primitive and Semi- Tree-cutting activity is projected to occur on only a small percentage of
primitive Recreation Settings roadless areas over 15 years across the alternatives. Dispersed recreation
and Opportunities. opportunities (including hunting and fishing) are therefore not expected to
change under any alternative, but feelings of remoteness and solitude may
change for periods of time in areas where activity occurs.
-------------------------------------------------------------------------------
Likely to retain Likely to retain a Greatest risk of Same as
the greatest high proportion shifts from Alternative 2 but
proportion of IRA of CRA acreage in primitive/semi- more likely to
acreage in a a semi-primitive primitive retain high
primitive or semi- setting; although settings to proportion of
primitive setting. some CRA acres roaded natural primitive/semi-
The substantially would shift settings in areas primitive acres
altered areas and toward roaded where the most given slight
developed ski natural settings roads and energy reductions in
areas in IRAs may in areas where operations are construction and
continue to the most roads projected to tree-cutting
appear and energy occur. activity.
inconsistent with operations are
semi-primitive projected to
characteristics occur in CRAs.
expected in
roadless areas.
The newly By not including
identified substantially
roadless acres altered areas and
(409,500 acres) developed ski
where road areas in CRAs and
construction and adding unroaded
tree-cutting, areas to CRAs,
sale or removal the CRAs would
is projected to appear more
occur that are consistent with
not within the semi-primitive
IRAs could shift characteristics
to less primitive expected in
settings. roadless areas.
----------------------------------------------------------------------------------------------------------------
Outfitters and Guides Out of 1,390 recreational special use permits authorized on NFS lands in
(recreation). Colorado, 1,066 are associated with outfitters and guides, some of which are
likely to operate in roadless areas. The alternatives are expected to have
negligible adverse effects on recreational special uses, including outfitter
and guide opportunities, based on the magnitude and distribution of
reasonably foreseeable activity projections; 7,000 acres of tree-cutting and
20 miles of road construction per year are projected over more than 4 million
CRA acres under the proposed rule. Limitations on road construction and tree-
cutting under any alternative would not be likely to affect ability to obtain
or use a recreation use authorization.
----------------------------------------------------------------------------------------------------------------
Cultural Resources.............. Least risk of Slightly higher Highest risk of Same or less than
damage to risk of damage to damage to alternative 2 due
cultural cultural cultural to larger number
resources because resources because resources because of acres in the
this alternative this alternative this alternative upper tier.
has the least has a high has the highest
projections for projection of projection of
tree-cutting, tree-cutting, tree-cutting,
sale, or removal. sale, or removal sale, or removal
and road and road
construction. construction.
Site-specific Site-specific Site-specific Site-specific
design criteria design criteria design criteria design criteria
and mitigation and mitigation and mitigation and mitigation
measures are measures are measures are measures are
expected to expected to expected to expected to
minimize risk. minimize risk. minimize risk. minimize risk.
----------------------------------------------------------------------------------------------------------------
[[Page 21284]]
Native Plants, Including Special No major difference among alternatives related to the risk of adverse effects
Status Plants. on native threatened, endangered, or sensitive plant species. There would be
very little to no increases in roads, tree-cutting, or energy development
activities in the roadless areas that support those plant species. The main
difference is the higher risk under the proposed rule and the forest plans
alternative that invasive plants would increase from the higher levels of
ground-disturbance, thereby increasing this threat to native plant
communities.
----------------------------------------------------------------------------------------------------------------
Geological and Paleontological None of the projected activities in roadless areas that vary by alternative
Resources. would be likely to adversely affect geological or paleontological resources,
which would either be avoided or otherwise protected from potential adverse
impacts.
----------------------------------------------------------------------------------------------------------------
Climate Change.................. None of the alternatives are expected to cause a measurable change in the
amount of carbon dioxide or other greenhouse gas emissions. With regard to
energy resources, it is assumed that if production is not allowed in roadless
areas, the same greenhouse impacts will be moved to sites outside roadless
areas and contribute the same amount to the atmosphere. In terms of fuels
treatments, biomass removed can be burned, used in products, replace fossil
fuels, or be left in piles elsewhere on the landscape. Except for prescribed
burning, any of these disposal methods would slow release of carbon to the
atmosphere.
----------------------------------------------------------------------------------------------------------------
Agency Costs
----------------------------------------------------------------------------------------------------------------
Vegetation and Fuel Treatments.. Treatments are Increased Capacity to shift Management
likely to be less flexibility to even more flexibility is
efficient and achieve treatment acres similar to
more costly in management into IRAs; Alternative 2,
IRAs. objectives in increased but projected
critical insect efficiency, treatment amounts
and disease effectiveness and are lower due to
areas; increase timeliness of constraints
ability to wildfire imposed by more
strategically suppression upper tier
locate treatments response as well acreage under
and improve as fuel Alternative 4.
efficiency. reductions in
CPZs.
----------------------------------------------------------------------------------------------------------------
Other Costs..................... Administrative costs are unlikely to change due to flat or static budgets and
corresponding constraints on projects. Emphasis on road decommissioning and
temporary roads is expected to ease demands on maintenance backlog. Overall
need to address invasive plants is expected to remain relatively constant
across alternatives; although new roads can contribute to the spread of
invasive plants, roads can also be an asset in helping to effectively control
invasive populations.
----------------------------------------------------------------------------------------------------------------
Table 3--Summary of Distributional Effects and Economic Impacts of the Proposed Rule and Alternatives
----------------------------------------------------------------------------------------------------------------
Alternative 4
Alternative 1 2001 Alternative 2 Alternative 3 (No Proposed Rule with
Roadless Rule Proposed Rule Action) Forest Public Identified
Plans Upper Tier Acres
----------------------------------------------------------------------------------------------------------------
Leaseable Minerals: Coal, Oil $636 million/yr $969 million/yr $1,026 million/yr $969 million/yr
and Gas--Output Value, Jobs Output. Output. Output. Output.
and Income (2006$) Contributed 1,557 Jobs 2,679 Jobs 2,796 Jobs 2,679 Jobs
(1). supported. supported. supported. supported.
$101.4 million per $183.2 million per $190 million per $183.2 million per
year Labor Income. year Labor year Labor year Labor
Income. Income. Income.
----------------------------------------------------------------------------------------------------------------
Revenue Sharing: Mineral Lease State Total: $28.4 State Total: $47.3 State Total: $49.7 State Total: $47.3
Payments and Tax Revenues million. million. million. million.
(2007$) (2). Energy-Affected Energy-Affected Energy-Affected Energy-Affected
Counties: $7.3 Counties: $10.2 Counties: Counties: $10.2
million. million. $11.1 million. million.
All other CO All other CO All other CO All other CO
Counties: $1.1 Counties: $1.9 Counties: $2.0 Counties: $1.9
million. million. million. million.
----------------------------------------------------------------------------------------------------------------
Values at risk: Number of Decrease: 13 Decrease: 2 NA. Decrease: 18
Counties Where Potential for counties. county. counties.
Fuel Treatments in CPZs May Increase: 1 county. Increase: 3 Increase: 5
Increase or Decrease Compared counties. counties.
to Baseline Conditions (3).
----------------------------------------------------------------------------------------------------------------
(1) Jobs and income contributed annually (2006 dollars) based on projected levels of coal, oil, and gas
production and regional economic modeling multipliers derived from an IMPLAN model representing the five
counties where employment effects are assumed to occur (Delta, Garfield, Mesa, Montrose, and Rio Blanco).
(2) Payments consist of property tax receipts from coal, oil, and gas production; State distribution of
severance taxes and Federal royalties. Energy-affected counties are Delta, Garfield, Gunnison, Mesa, Montrose,
and Pitkin counties. Changes in payments associated with the Secure Rural Schools and Self Determination Act
and Payments in Lieu of Taxes (PILT) are not expected to change significantly.
(3) CPZs = community protection zones (0.5 to 1.5 mile buffer area surrounding communities that have been
identified as being at-risk to wildfire. ``Potential for fuel treatments'' implies that at least one CPZ area
in a county overlaps with an IRA or CRA where tree-cutting has at least a low likelihood of occurring,
according to national forest unit field staff.
Proper Consideration of Small Entities
The proposed rule has also been considered in light of Executive
Order 13272 (E. O. 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 directly
impose small entities to regulatory requirements. The effects on small
businesses will not be substantial. 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), there are
minimal differences between the proposed rule and baseline or no-action
conditions (i.e., forest plans alternative). As a result, there is
little or no potential for significant adverse economic impacts to
small businesses under the proposed rule relative to forest plans.
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
[[Page 21285]]
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 recreation use authorizations. Impacts
under the proposed rule compared to forest plans are not expected to be
significant due to the small percentage of acreage affected (7,000
acres of tree-cutting per year) and roads constructed (20 miles per
year) spread across more than 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 community
protection zones where primitive or semi-primitive settings may already
be affected. 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 1,557 under the 2001 rule alternative to 2,679 jobs under
the proposed rule (as well as alternative 4), and 2,796 jobs under the
no action (forest plans) alternative. Labor income increases by a
similar degree from $101 million to $183.2 million and 190 million per
year under all alternatives. There is slightly higher job numbers
(2,796) under the forest plan alternative (alternative 3) relative to
the proposed rule (2,679) alternatives (alternatives 2 and 4), but the
magnitude of the difference between these alternatives does not suggest
that adverse impacts will be significant if choosing between the
proposed rule and forest plans. These results indicate minimal adverse
impacts to small entities associated with energy resource development
and extraction under the proposed rule relative to the forest plans
alternative.
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 (as well as alternative 4), and forest 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 forest plans
relative to the 2001 rule. There are slight increases in payments under
forest plans, relative to the proposed rule (aggregate payments
increase from $10.2 million to $11.1 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.
Under the proposed rule, as compared to the no action alternative,
the potential opportunities for fuel treatments near communities-at-
risk (i.e., within community protection zones (CPZs)) may increase for
two 'small population' counties (i.e., populations less than 50,000).
In contrast, potential opportunities for fuel treatments near
communities-at-risk may decrease for nine and eight 'small population'
counties under Alternative 1 (2001 rule) and Alternative 4 (proposed
rule with additional upper tier acreage) respectively, compared to the
no action alternative. 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 proposed rule 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 not expected to significantly decrease under the
proposed rule relative to forest plans. 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.
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 the involvement of local governments. The State is a
cooperating agency pursuant to 40 CFR 1501.6 of the Council on
Environmental Quality regulations for the development of the supporting
environmental impact statement. State and local governments are
encouraged to comment on this proposed rule, in the course of this
rulemaking process.
[[Page 21286]]
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. The relationship extends 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 November 5, 2009, President Obama signed a Memorandum
emphasizing his commitment to ``regular and meaningful consultation and
collaboration with Tribal officials in policy decisions that have
Tribal implications including, as an initial step, through complete and
consistent implementation of Executive Order 13175.'' He charged
agencies with engaging in consultation and collaboration with Indian
Tribal governments; strengthening government-to-government relationship
between the United States and Indian Tribes; and reducing the
imposition of unfunded mandates upon Indian Tribes.
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.
Tribal concerns surfaced during phone or e-mail consultations.
Information applying to the proposed Colorado Roadless Rule was
provided to the Ute Mountain Ute and Southern Ute Indian Tribes,
located in Colorado prior to the release of the NOI. The San Juan
National Forest staff held meetings with both Tribes to discuss the
proposed rule as well as other Forest issues. At these meetings, the
Tribes expressed concerns about hunting access, and unauthorized roads.
Nothing in this rule changes access or existing rights. The management
of unauthorized roads is addressed through travel management processes.
Additionally, an introductory letter and the NOI along with
background information on the proposed Colorado Roadless Rule and an
offer for additional information or meetings was sent to the following
Tribes and committees: Hopi Tribal Council, Navajo Nation, Northern
Cheyenne Tribal Council, Pueblo of Jemez, Pueblo of Namb[eacute], Ohkay
Owingeh, Pueblo of Picuris, Pueblo of Pojoaque, Pueblo of San
Ildefonso, Pueblo of Santa Clara, Pueblo of Taos, Pueblo of Tesuque,
Pueblo of Zuni, Jicarilla Apache Nation, Cheyenne and Arapaho Tribes of
Oklahoma, Ute Business Committee, Shoshone Business Committee, and the
Arapaho Business Committee. These 18 Tribes and committees were
selected based on their current proximity to Colorado, their current
use of lands in Colorado, and their historic use of lands within
Colorado.
The 2008 Proposed Rule and DEIS were sent to each Tribe and each
was contacted by phone to determine interest in meeting or obtaining
information. The Tribes did not request additional government-to-
government involvement, and no formal comments from any of the Tribes
were received. A letter was sent outlining the key points of this
revised proposed rule and the FS met with those Tribes requesting
further consultation. Consultation efforts will continue throughout the
process and for the final Rule.
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.
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
The 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
The 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 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
Based on guidance for implementing Executive Order 13211 (E.O.
13211) of
[[Page 21287]]
May 18, 2001, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution or 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 constitutes a ``significant energy action'' as defined in
E.O. 13211 because projected reductions in coal production under the
proposed rule are in excess of 5 million tons per year after 2024.
Projections of natural gas production are discussed in the RDEIS
and the Regulatory Impact Analysis for the proposed Colorado Roadless
Rule. Based on those projections, it has been determined that natural
gas production varies across alternatives for only two National Forests
(the Grand Mesa, Gunnison, and Uncompahgre (GMUG) and White River
National Forests). It has also been determined that there is no
appreciable difference in projected natural gas production between
Alternatives 1 (2001 rule) and 2 (proposed rule) or alternative 4. The
difference in potential natural gas production between alternatives 1,
2, or 4 (27 billion cubic feet per year) and alternative 3 (no action)
(31 billion cubic feet per year) is a decrease of only 4 bcf/year, or 4
million mcf/year, which is well below the E. O. 13211 criterion for
adverse effects of 25 million mcf.
Projected oil production ranges from approximately 50,000 barrels
under Alternatives 1, 2, and 4 to approximately 110,000 barrels under
Alternative 3 over a period of 15 to 30 years. The corresponding
reduction in oil production per day under alternatives 1 or 2 or
alternative 3 (no action) is inconsequential compared to the E. O.
13211 criterion of 10,000 barrels per day.
Based on average annual coal production rates estimated for
economic impact analysis purposes, annual aggregate production across
the three mines operating in the affected area is projected to be the
same under the proposed rule and the no action alternative (i.e.,
forest plans alternative) for the first 24 years after implementation
(2011 to 2034). Coal production and production schedules are also
projected to be the same for the proposed rule and alternative 4. It is
only after 24 years (2035) that annual coal production is projected to
decrease under the proposed rule compared to the no action alternative
by an amount of 5.6 million tons per year which is the average annual
production from the Elk Creek mine which ends after 2034. This
estimated decrease is based on the known extent of coal resources and
the exclusion of the Currant Creek area from the North Fork coal mining
area. A decrease of 5.6 million tons is only slightly above the E. O.
13211 criterion of 5 million tons per year for significant adverse
effects. Production is estimated to decrease by 6.0 million tons per
year under the proposed rule compared to no action by 2058 when
production ceases for all mines under the proposed rule. Coal
production is projected to continue for an additional 22 years (until
2079) under the no action alternative.
The total reduction in recoverable coal reserves from roadless
areas that are made accessible under the proposed rule, relative to no
action alternative, is estimated to be 210 million tons (i.e., 724-514
= 210 million ton reduction). In comparison, the recoverable coal
reserves \1\ reported for the State of Colorado by the U.S. Energy
Information Administration ranges from 629 million tons in 2002 to 328
million tons by 2007,\2\ recognizing that direct comparisons of
accessible coal reserves under the alternatives with recoverable
reserves estimated by USEIA are difficult due to differences in
estimation procedures. However, the reduction of 210 million tons made
accessible under the proposed rule is only 2% of the total estimated
recoverable reserves \3\ for the State of Colorado in 2007 (9,692
million tons) and less than 0.1% of total estimated recoverable
reserves for the nation in 2007 (262,689 million tons).
---------------------------------------------------------------------------
\1\ ``Recoverable Coal Reserves'' consist of the quantity of
coal that can be recovered (i.e., mined) from existing coal reserves
at reporting mines. Source: U.S. Energy Information Administration
(EIA), Independent Statistics and Analysis (Table 14--Recoverable
Coal Reserves and Average Recovery Percentage at Producing Mines by
State, 2000--2007) http://www.eia.doe.gov/cneaf/coal/reserves/reserves.html.
\2\ ``2008 Coal Production and Employment for Colorado''
Colorado Mining Association, Denver CO. http://www.coloradomining.com.
\3\ ``Estimated recoverable reserves'' consist of coal in the
demonstrated reserve base considered recoverable after excluding
coal estimated to be unavailable due to land use restrictions or
currently economically unattractive for mining. Source: U.S. Energy
Information Administration (EIA), Independent Statistics and
Analysis (Table 15--Recoverable Coal Reserves at Producing Mines,
Estimated Recoverable Reserves, and Demonstrated Reserve Base by
Mining Method, 2000-2007) http://www.eia.doe.gov/cneaf/coal/reserves/reserves.html.
---------------------------------------------------------------------------
The estimated reductions in the production life of affected mines
under the proposed rule compared to the no action alternative may be
significant, particularly when considering potential increases in
demand for coal from western mines \4\ and the Nation as a whole.\5\
However, both the proposed rule and the no action alternatives are
projected to sustain similar production rates over an extended period
of 24 years after implementation of the rule, and there are many other
factors that are likely to have a more significant effect on energy
markets after that time, compared to the effect of reduced production
under the proposed rule which begins 25 years after implementation of
this rule would occur (i.e., 2034). It is also noted that approximately
67% of all coal produced from Colorado in 2008 (32.7 million tons) was
exported to other States, suggesting that regional markets and prices
are likely to be heavily influenced by national prices, supplies, and
market trends.
---------------------------------------------------------------------------
\4\ In 2007, the Energy Information Administration called for a
5% per year increase in coal production from western mines, but
revised this statement in 2009, suggesting a slower rate of
increase.
\5\ Demand for coal is anticipated to increase as a consequence
of 153 new coal-fired electricity plants to be built by 2025, many
of which will be in States such as FL, TX, IL, KY that import
Colorado coal. (``Colorado Mineral and Energy Industry Activities,
2006'', Colorado Geological Survey, Department of Natural Resources,
Denver CO.)
---------------------------------------------------------------------------
The reduction in coal production under the proposed rule (as well
as alternative 4), relative to the no action alternative are not
expected to have adverse effects on the productivity, competition, or
prices in the energy sector regionally (or nationally) due to the
following observations:
--Potential reductions in coal production under the proposed rule,
relative to no action are not projected to occur until 24 years in the
future (2035) and estimated reductions after year 24 (i.e., 5.6 million
tons/yr) exceed the criterion of 5.0 million tons per year by only a
small fraction. A second decrease in production of similar magnitude
(6.0 million tons per year) is projected to occur farther in the future
(2059) when all mines cease operation under the proposed rule.
--The reduction in total accessible coal reserves under the proposed
rule relative to the no action alternative amounts to a relatively
small percentage of total estimated recoverable reserves in the State
of Colorado (2%) and the nation (< 0.1%), and
--The reductions in reserves and production rates under the proposed
rule compared to no action are estimated to occur well into the future
(e.g., 24 and 48 yrs), and the relative impact of these reductions is
expected to be insignificant compared to the impact of other factors
that could affect regional and national energy markets by that time.
The reductions in annual production under the 2001 rule, compared
to the no
[[Page 21288]]
action (reductions range from 5.6 million tons per year beginning as
early as 2013 and increase to 11.6 million tons by 2019) are somewhat
greater than the reductions noted for the proposed rule (and
Alternative 4), and production life is anticipated to extend for only 7
to 10 years under the 2001 rule compared to a longer production life
under the no action alternative.
There is a substantial reduction in annual production under the
2001 rule alternative compared to the no action alternative (reductions
range from 5.6 million tons per year beginning as early as 2013 and
increase to 11.6 million tons by 2019), and production life is
anticipated to extend for only 7 to 10 years under the 2001 rule
compared to a longer production life under the no action alternative.
The production reductions under the 2001 rule (i.e., 11.6 million tons/
yr beginning around 2019) exceed the criterion of 5 million tons per
year for adverse effects (but reductions are still relatively small),
and decreases in operating life of the mines as well as total reserves
may suggest the potential for adverse effects to regional markets. The
impacts of a number of other factors affecting energy markets and
national market trends are still expected to outweigh the effects of
implementing the 2001 rule alternative.
Alternative 1 has the greatest reduction in production, and
alternatives 2 and 4 have some reduction compared to forest plans.
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 RDEIS, or the Regulatory Impact Analysis
(RIA). None 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. As this action is a significant energy
action, the above constitutes the Statement of Energy Effects.
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 Area Management
Sec.
294.40 Purpose.
294.41 Definitions.
294.42 Prohibitions on tree-cutting, sale, or removal.
294.43 Prohibition on road construction and reconstruction.
294.44 Prohibition on linear construction zones.
294.45 Environmental documentation.
294.46 Other activities.
294.47 Modifications and administrative corrections.
294.48 Scope and applicability.
294.49 List of designated Colorado Roadless Areas.
Subpart D--Colorado Roadless Area Management
Authority: 16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201,
205.
Sec. 294.40 Purpose.
The purpose of this subpart is to provide, within the context of
multiple use management, State-specific direction for the protection of
roadless areas on National Forest System lands in Colorado. The intent
of this regulation is to protect roadless values by restricting tree
cutting, sale, and removal, road construction and reconstruction, and
linear construction zones within CRAs, with narrowly focused
exceptions. Activities must be designed to conserve the roadless area
characteristics listed in Sec. 294 .41, although applying the
exceptions in Sec. 294.42, Sec. 294.43, and Sec. 294.44 may have
effects to some roadless area characteristics.
Sec. 294.41 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).
Catchment: A watershed delineation beginning at the downstream
point of occupation of native cutthroat trout and encompassing the
upstream boundary of waters draining in the stream system.
Colorado Roadless Area Upper Tier Acres: A subset of Colorado
Roadless Areas identified in a set of maps maintained at the national
headquarters office of the Forest Service where not all exceptions for
tree-cutting, sale, or removal and road construction/reconstruction
would apply in order to provide a higher level of protection.
Colorado Roadless Areas: Areas designated pursuant to this subpart
and identified in a set of maps maintained at the national headquarters
office of the Forest Service. Colorado Roadless Areas established by
this subpart shall constitute the exclusive set of National Forest
System lands within the State of Colorado to which the provisions 36
CFR 220.5(a)(2) shall apply.
Community Protection Zone: An area extending one-half mile from the
boundary of an at-risk community; or an area within one and a half
miles from the boundary of an at-risk community, where any land:
(1) Has a sustained steep slope that creates the potential for
wildfire behavior endangering the at-risk community;
(2) Has a geographic feature that aids in creating an effective
fire break, such as a road or a ridge top; or
(3) Is in condition class 3 as defined by Healthy Forest
Restoration Act (Pub. L. 108-148).
Community Wildfire Protection Plan: As defined under section 101 of
the Healthy Forest Restoration Act (Pub. L. 108-148), and used in this
subpart, 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 at-risk 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 at-risk 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:
[[Page 21289]]
(i) The size, frequency, intensity, or severity of fires; or
(ii) Landscape patterns; and
(4) Vegetation attributes have been significantly altered from the
historical range of the attributes.
Fire Hazard: A fuel complex defined by volume, type, condition,
arrangement and location that determines the ease of ignition and the
resistance to control; expresses the potential fire behavior for a fuel
type, regardless of the fuel type's weather influenced fuel moisture
condition.
Fire Occurrence: One fire event occurring in a specific place
within a specific period of time; a general term describing past or
current wildland fire events.
Fire Risk: The probability or chance that a fire might start, as
affected by the presence and activities of causative agents.
Forest road: As defined at 36 CFR 212.1, the term means 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.
Hazardous Fuels: Excessive live or dead wildland fuel accumulations
that increase the potential for intense wildland fire and decrease the
capability to protect life, property and natural resources.
Linear Construction Zone: A temporary linear area of surface
disturbance over 50 inches wide that is used for motorized transport by
vehicles or construction equipment to install a linear facility. It is
not used as a motor vehicle route and is not engineered to road
specifications.
Linear Facility: Linear facilities include pipelines, electrical
power lines, telecommunications lines, ditches and canals.
Municipal Water Supply System: As defined under Section 101 of the
Healthy Forests Restoration Act (Pub. L. 108-148), and used in this
subpart, the term means the reservoirs, canals, ditches, flumes,
laterals, pipes, pipelines, and other surface facilities and systems
constructed or installed for the collection, impoundment, storage,
transportation, or distribution of drinking water.
Native Cutthroat Trout: Collectively, all the native subspecies of
cutthroat trout historically occurring in Colorado before European
settlement which includes yellowfin, Rio Grande, Greenback, and
Colorado River Trout.
Pre-existing Water Court Decree: A decree issued by the Colorado
Water Courts prior to [final rule effective date] adjudicating as the
point of a diversion or the place of use, a location within a Colorado
Roadless Area. A pre-existing decree does not include decrees
adjudicated prior to [final rule effective date] which right includes a
point of diversion or place of use outside of a Colorado Roadless Area,
the holder of which proposes to change or move the point of diversion
or place of use within a Colorado Roadless Area. Nothing in this
subpart shall be construed as affecting the jurisdiction or
responsibilities of the Forest Service.
Responsible Official: The Forest Service line officer with the
authority and responsibility to make decisions about protection and
management of Colorado Roadless Areas pursuant to this subpart.
Road: As defined at 36 CFR 212.1, the term means a motor vehicle
route over 50 inches wide, unless identified and managed as a trail.
Roadless Area Characteristics: Resources or features that are often
present in and characterize Colorado Roadless Areas, including:
(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 non-motorized, and semi-primitive
motorized classes of dispersed recreation;
(6) Reference landscapes;
(7) Naturaly-appearing landscapes with high scenic quality;
(8) Traditional cultural properties and sacred sites; and
(9) Other locally identified unique characteristics.
Temporary Road: As defined at 36 CFR 212.1, the term means 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.
Water Conveyance Structures: Facilities associated with the
transmission, storage, impoundment, and diversion of water on and
across National Forest System lands. Water conveyance structures
include, but are not limited to: reservoirs and dams, diversion
structures, headgates, pipelines, ditches, canals, and tunnels.
Water Influence Zone: The land next to water bodies where
vegetation plays a major role in sustaining long-term integrity of
aquatic systems. It includes the geomorphic floodplain (valley bottom),
riparian ecosystem, and inner gorge. Its minimum horizontal width (from
top of each bank) is 100 feet or the mean height of mature dominant
late-seral vegetation, whichever is greater.
Sec. 294.42 Prohibition on tree-cutting, sale, or removal.
(a) General. Trees may not be cut, sold, or removed in Colorado
Roadless Areas, except as provided in paragraph (b) and (c) of this
section.
(b) Upper Tier Acres. Notwithstanding the prohibition in paragraph
(a) of this section, trees may be cut, sold, or removed in Colorado
Roadless Areas upper tier acres if the Responsible Official determines
the activity is consistent with the applicable land management plan,
and:
(1) Tree-cutting, sale, or removal is incidental to the
implementation of a management activity not otherwise prohibited by
this subpart; or
(2) Tree-cutting, sale, or removal is needed and appropriate for
personal or administrative use, as provided for in 36 CFR part 223,
subpart A.
(c) Non-Upper Tier Acres. Notwithstanding the prohibition in
paragraph (a) of this section, trees may be cut, sold, or removed in
Colorado Roadless Areas outside upper tier acres if the Responsible
Official, unless otherwise noted, determines the activity is consistent
with the applicable land management plan, one or more of the roadless
area characteristics will be maintained or improved over the long-term
with the exception of paragraphs (c)(5) and (6) of this section, and
one of the following circumstances exists:
(1) The Regional Forester determines tree-cutting, sale, or removal
is needed to reduce hazardous fuels to an at-risk community or
municipal water supply system that is:
(i) Within the first one-half mile of the community protection
zone, or
(ii) Within the next one-mile of the community protection zone, and
is within an area identified in a Community Wildfire Protection Plan.
(iii) Projects undertaken pursuant to paragraphs (c)(1)(i) and (ii)
of this section will focus on cutting and removing generally small
diameter trees to create fuel conditions that modify fire behavior
while retaining large trees to the maximum extent practical as
appropriate to the forest type.
(2) The Regional Forester determines tree-cutting, sale, or removal
is needed outside the community protection zone where there is a
significant risk that a wildland fire disturbance event could adversely
affect a municipal water
[[Page 21290]]
supply system or the maintenance of that system. A significant risk
exists where the history of fire occurrence, and fire hazard and risk
indicate a serious likelihood that a wildland fire disturbance event
would present a high risk of threat to a municipal water supply system.
(i) Projects will focus on cutting and removing generally small
diameter trees to create fuel conditions that modify fire behavior
while retaining large trees to the maximum extent practical as
appropriate to the forest type.
(ii) Projects are expected to be infrequent.
(3) Tree-cutting, sale, or removal is needed to maintain or restore
the characteristics of ecosystem composition, structure and processes.
These projects are expected to be infrequent.
(4) Tree-cutting, sale, or removal is needed to improve habitat for
Federally threatened, endangered, proposed, or Agency designated
sensitive species; in coordination with the Colorado Department of
Natural Resources, including the Colorado Division of Wildlife.
(5) Tree-cutting, sale, or removal is incidental to the
implementation of a management activity not otherwise prohibited by
this subpart.
(6) Tree-cutting, sale, or removal is needed and appropriate for
personal or administrative use, as provided for in 36 CFR part 223,
subpart A.
Sec. 294.43 Prohibition on road construction and reconstruction.
(a) General. A road may not be constructed or reconstructed in a
Colorado Roadless Area except as provided in paragraphs (b) and (c) of
this section.
(b) Upper Tier Acres. Notwithstanding the prohibition in paragraph
(a) of this section, a road may only be constructed or reconstructed in
Colorado Roadless Area upper tier acres if the Responsible Official
determines that:
(1) A road is needed pursuant to reserved or outstanding rights, or
as provided for by statute or treaty.
(2) For any road construction/reconstruction authorized pursuant to
this provision, the Responsible Official must determine:
(i) Motorized access, without road construction is not technically
feasible;
(ii) When proposing to construct a forest road, that a temporary
road would not provide reasonable access; and
(iii) Within a native cutthroat trout catchment or identified
recovery watershed, whether road construction will diminish, over the
long-term, conditions in the water influence zone and in the native
cutthroat habitat.
(c) Non-Upper Tier Acres. Notwithstanding the prohibition in
paragraph (a) of this section, a road or temporary road may only be
constructed or reconstructed in Colorado Roadless Areas outside upper
tier acres if the Responsible Official determines:
(1) That one of the following exceptions exists:
(i) A road is needed pursuant to reserved or outstanding rights, or
as provided for by statute or treaty;
(ii) 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. Road
realignment may occur under this paragraph only if the road is deemed
essential for administrative or public access, public health and
safety, or other authorized use;
(iii) 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;
(iv) The Regional Forester determines a road is needed to allow for
the construction, reconstruction, or maintenance of an authorized water
conveyance structure which is operated pursuant to a pre-existing water
court decree (see also Sec. 294.44(b)(1));
(v) A temporary road is needed to protect public health and safety
in cases of threat of flood, fire, or other catastrophic event that,
without intervention, would cause the loss of life or property;
(vi) The Regional Forester determines a temporary road is needed to
facilitate tree-cutting, sale, or removal (Sec. 294.42(c)(1)) within
the first one-half mile of the community protection zone to reduce the
wildfire hazard to an at-risk community or municipal water supply
system;
(vii) The Regional Forester determines a temporary road is needed
to facilitate tree-cutting, sale or removal (Sec. 294.42(c)(3)) within
the first one-half mile of the community protection zone to maintain or
restore characteristics of ecosystem composition, structure and
processes;
(viii) A temporary road is needed within a Colorado Roadless Area
pursuant to the exploration or development of an existing oil and gas
lease that does not prohibit road construction or reconstruction,
including the construction of infrastructure necessary to transport the
product, on National Forest System lands that are under lease issued by
the Secretary of the Interior as of [final rule effective date]. The
Forest Service shall not authorize the Bureau of Land Management to
grant any request for a waiver, exception, or modification to any oil
or gas lease if doing so would result in any road construction or tree
cutting within a Colorado Roadless Area beyond that which was
authorized by the terms and conditions of the lease at the time of
issuance; or
(ix) A temporary road is needed for coal exploration and coal-
related surface activities for certain lands within Colorado Roadless
Areas 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 displayed on the final Colorado Roadless Areas map.
Such roads may also be used for collecting and transporting coal mine
methane. Any buried infrastructure, including pipelines, needed for the
capture, collection, and use of coal mine methane will be located
within the rights-of-way of temporary roads that are otherwise
necessary for coal-related surface activities including the
installation and operation of methane venting wells.
(2) If proposed road construction/reconstruction meets one of the
exceptions, subject to the legal rights identified in 36 CFR
294.43(c)(1), the following must be determined:
(i) Motorized access, without road construction is not technically
feasible;
(ii) When proposing to construct a forest road, that a temporary
road would not provide reasonable access;
(iii) Road construction is consistent with the applicable land
management plan direction;
(iv) Within a native cutthroat trout catchment or identified
recovery watershed, road construction will not diminish, over the long-
term, conditions in the water influence zone and in the native
cutthroat habitat; and
(d) Road construction/reconstruction project implementation and
management. Incorporate the following elements into any road
construction/reconstruction projects implemented within Colorado
Roadless Areas.
(1) Road construction. If it is determined that a road is
authorized in a Colorado Roadless Area, conduct construction in a
manner that reduces, to the extent practicable, effects on surface
resources, and prevents unnecessary or unreasonable surface
disturbance.
(2) Road decommissioning. Decommission any road and restore the
affected landscape when it is determined that the road is no longer
needed for the established purpose, or upon termination or expiration
of a
[[Page 21291]]
contract, authorization, or permit, whichever is sooner. Require the
inclusion of a road decommissioning provision in all such contracts or
permits. Design decommissioning to stabilize, restore, and revegetate
unneeded roads to a more natural state to protect resources and enhance
roadless area characteristics.
(3) Road designations. The designation of a temporary road
constructed or reconstructed pursuant to this subpart may not be
changed to forest road except where a forest road is allowed under
paragraphs (b) and (c) of this section.
(4) Road use. Use of motor vehicles for administrative purposes by
the Forest Service and by fire, emergency, or law enforcement personnel
is allowed. All roads constructed pursuant to paragraphs (b) and (c) of
this section shall prohibit public motorized vehicles (including off-
highway vehicles) except:
(i) Where specifically used for the purpose for which the road was
established;
(ii) Motor vehicle use that is specifically authorized under an
authorization issued under Federal law or regulation.
(5) Road maintenance. Maintenance of roads is permissible in
Colorado Roadless Areas.
Sec. 294.44 Prohibition on linear construction zones.
(a) General. A linear construction zone may not be constructed or
reconstructed in Colorado Roadless Areas except as provided in
paragraph (b) of this section.
(b) Linear Construction Zones. Notwithstanding the prohibition in
paragraph (a) of this section, the Regional Forester may authorize a
linear construction zone within a Colorado Roadless Area for:
(1) The construction, reconstruction, or maintenance of an
authorized water conveyance structure which is operated pursuant to a
pre-existing water court decree (see Sec. 294.43(c)(1)(iv));
(2) The construction, reconstruction, or maintenance of existing or
future authorized electrical power lines or telecommunication lines.
Authorize electrical power lines or telecommunication lines within
Colorado Roadless Areas only if there is no opportunity for the project
to be implemented outside of a Colorado Roadless Area without causing
substantially greater environmental damage; or
(3) The construction or reconstruction of a pipeline associated
with operation of an oil and gas lease that allows surface use within a
Colorado Roadless Area or the construction or reconstruction of a
pipeline needed to connect to infrastructure within a Colorado Roadless
Area from outside a Colorado Roadless Area where such a connection
would cause substantially less environmental damage than alternative
routes. The construction of pipelines for the purposes of transporting
oil or natural gas through a Colorado Roadless Area, where the
source(s) and destination(s) of the pipeline are located exclusively
outside of a Colorado Roadless Area, shall not be authorized.
(4) If a proposed linear construction zone meets one of the
exceptions, then the following must be determined:
(i) Motorized access, without a linear construction zone, is not
technically feasible;
(ii) A linear construction zone is consistent with the applicable
land management plan direction;
(iii) Within a native cutthroat trout catchment or identified
recovery watershed, a linear construction zone will not diminish, over
the long-term, conditions in the water influence zone and in the native
cutthroat habitat; and
(c) Linear construction zone decommissioning. Where a linear
construction zone is constructed in a Colorado Roadless Area,
installation of the linear facility will be done in a manner that
minimizes ground disturbance, including placement within existing
right-of-ways where feasible. All authorizations approving the
installation of linear facilities through the use of a linear
construction zone shall include a Responsible Official approved
reclamation plan for reclaiming the affected landscape. Upon completion
of the installation of a linear facility via the use of a linear
construction zone, all areas of surface disturbance shall be reclaimed
as prescribed in the authorization and the approved reclamation plan
and may not be waived.
Sec. 294.45 Environmental documentation.
(a) Environmental documentation will be prepared pursuant to
Section 102 of the National Environmental Policy Act, 40 CFR 1500, and
36 CFR part 220 for any proposed action within a Colorado Roadless
Area. Proposals that substantially alter the undeveloped character of a
Colorado Roadless Area require an Environmental Impact Statement (EIS).
(b) The Forest Service will offer cooperating agency status to the
State of Colorado, for all proposed projects and planning activities to
be implemented on lands within Colorado Roadless Areas. Where the
Forest Service does not have the authority to offer formal cooperating
agency status, the Forest Service shall offer to coordinate with the
State.
Sec. 294.46 Other activities.
(a) Oil and Gas Lease Stipulations. Oil and gas leases issued
within a Colorado Roadless Area after [final rule effective date] will
prohibit road construction/reconstruction. The Forest Service shall not
authorize the Bureau of Land Management to grant any request for a
waiver, exception, or modification to any oil or gas lease if doing so
would result in any road construction within a Colorado Roadless Area.
(b) Oil and Gas Surface Use Plans of Operation. Where applicable,
during the review of any application for a surface use plan of
operations affecting lands within a Colorado Roadless Area, the
Responsible Official will:
(1) Locate, to the extent possible without compromising health and
safety standards, roads, well sites, and facilities on pre-existing
areas of surface disturbance. Project design shall minimize the amount
of necessary temporary road construction or reconstruction.
(2) Consider an alternative for proposed operations that addresses
locating directional drilling of multi-well sites on pre-existing areas
of surface disturbance. Such an alternative can be dismissed from
detailed analysis with clear justification.
(3) Restrict road construction for leases partially within Colorado
Roadless Areas, to the extent practical, to portions of the lease
outside of Colorado Roadless Areas except when doing so will be
substantially more environmentally damaging, compromise safety
standards, or is unfeasible due to topography or surface conditions.
(4) Perform, to the extent feasible, reclamation of surface
disturbances incrementally, to minimize the total area of disturbance
at any given point in time during the exploration or development of a
lease.
(5) Design, to the extent feasible, temporary roads and facilities
to blend with the terrain to minimize visual impacts and to facilitate
restoration when the road is no longer needed.
(6) Co-locate, wherever possible and consistent with health and
safety standards, power lines, flow lines and pipelines within the
right-of-way of roads to minimize the area of surface disturbance.
(7) Consider new and developing low impact techniques and
technologies and either apply or dismiss with justification.
[[Page 21292]]
(8) Utilize the best available technology, to the extent possible,
to minimize noise and air emissions.
(c) Trails. Nothing in this subpart shall affect the current or
future management of motorized and non-motorized trails in Colorado
Roadless Areas. Decisions concerning the management or status of
motorized and non-motorized trails within Colorado Roadless Areas under
this subpart shall be made during the applicable forest travel
management processes.
(d) Motorized access. Nothing in this subpart shall be construed as
limiting the authority of the responsible official to approve existing
and future motorized access not requiring road construction or
reconstruction in Colorado Roadless Areas associated with grazing
permits, special use authorizations, and other authorizations.
(e) Livestock grazing. The authority to issue livestock grazing
permits on national forest system lands within a Colorado Roadless Area
is not affected by this subpart; however no new temporary or forest
roads shall be authorized through grazing permits issued after [final
rule effective date].
Sec. 294.47 Modifications and administrative corrections.
Modifications and administrative corrections pursuant to this
subpart, after coordination with the State, may be made under the
following circumstances:
(a) Modifications to boundaries. The Chief of the Forest Service
may modify the boundaries of any designated Colorado Roadless Area
identified in Sec. 294.49 or add new Colorado Roadless Areas based on
changed circumstances. Modifications and additions will be reflected in
the set of maps maintained at the national headquarters office of the
Forest Service. The construction or reconstruction of a temporary road
or tree-cutting, sale, or removal will not result in any boundary
modification of a Colorado Roadless Area. Public notice with a minimum
90-day comment period will be provided for any proposed Colorado
Roadless Area boundary modifications or additions.
(b) Administrative corrections to boundaries. The Chief of the
Forest Service may issue administrative corrections after public notice
and a 30-day comment period. Administrative corrections to the maps of
any designated Colorado Roadless Areas identified in Sec. 294.49 are
adjustments to remedy errors such as clerical, topographical, or
improvements in mapping technology. Other than clerical errors, an
administrative correction is based on improved field data due to
updated imagery, global positioning system data, or other collected
field data.
(c) Amendments to rule language. Any amendment of this subpart will
include coordination with the State and the appropriate level of NEPA
analysis. A minimum 90-day comment period will be provided.
Sec. 294.48 Scope and applicability.
(a) This subpart does not revoke, suspend, or modify any permit,
contract, lease, or other legal instrument authorizing or granting
rights to the occupancy and use of National Forest system land issued
prior to [final rule effective date] nor does it affect the authority
or the discretion of the responsible official to reissue any such
permit, contract, or other legal instrument upon its expiration or
termination.
(b) This subpart does not revoke, suspend, or modify any project or
activity decision made prior to [final rule effective date].
(c) The provisions set forth in this subpart provide the maximum
level of tree-cutting, sale and removal, and road construction and
reconstruction activity allowed within Colorado Roadless Areas. Land
management plan components can be more restrictive than this subpart
and will continue to provide direction and guidance for projects and
activities within Colorado Roadless Areas. Nothing in this subpart
shall prohibit a responsible official from further restricting
activities allowed within Colorado Roadless Areas. 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.
(e) Nothing in this subpart waives any applicable requirements
regarding site specific environmental analysis, public involvement,
consultation with Tribes and other agencies, or compliance with
applicable laws.
(f) If any provision in this subpart or its application to any
person or to certain circumstances is held to be invalid, the remainder
of the regulations in this subpart and their application remain in
force.
(g) After [final rule effective date] the rule promulgated on
January 12, 2001, (66 FR 3244) shall have no effect within the State of
Colorado.
Sec. 294.49 List of designated Colorado Roadless Areas.
All National Forest System lands within the State of Colorado
listed in this section are hereby designated as Colorado Roadless
Areas.
------------------------------------------------------------------------
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Arapaho-Roosevelt National Forest
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1. Bard Creek.
2. Byers Peak.
3. Cache La Poudre Adjacent Area.
4. Cherokee Park.
5. Comanche Peak Adjacent Area.
6. Copper Mountain.
7. Crosier Mountain.
8. Gold Run.
9. Green Ridge--East.
10. Green Ridge--West.
11. Grey Rock.
12. Hell Canyon.
13. Indian Peaks Adjacent Area.
14. James Peak.
15. Kelly Creek.
16. Lion Gulch.
17. Mount Evans Adjacent Area.
18. Mount Sniktau.
19. Neota Adjacent Area.
20. Never Summer Adjacent Area.
21. North Lone Pine.
22. North St. Vrain.
23. Rawah Adjacent Area.
24. Square Top Mountain.
25. Troublesome.
26. Vasquez Adjacent Area.
27. White Pine Mountain.
28. Williams Fork Ptarmigan Adjacent.
------------------------------------------------------------------------
Grand Mesa, Uncompahgre, Gunnison National Forest
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29. Agate Creek.
30. American Flag Mountain.
31. Baldy.
32. Battlements.
33. Beaver.
34. Beckwiths.
35. Calamity Basin.
36. Cannibal Plateau.
37. Canyon Creek--Antero.
38. Canyon Creek.
39. Carson.
40. Castle.
41. Cataract.
42. Cimarron Ridge.
43. Clear Fork.
44. Cochetopa.
45. Cochetopa Hills.
46. Cottonwoods.
47. Crystal Creek.
48. Crystal Peak.
49. Curecanti.
50. Currant Creek.
51. Deer Creek.
52. Dominguez.
53. Double Top.
54. East Elk.
55. Electric Mountain.
56. Failes Creek-Soldier Creek.
57. Flatirons.
58. Flattop Mountain.
59. Flattops--Elk Park.
60. Gothic.
61. Granite Basin.
62. Hightower.
63. Hope Lake.
[[Page 21293]]
64. Horse Ranch Park.
65. Horsefly Canyon.
66. Huntsman Ridge.
67. Italian Mountain.
68. Johnson Basin.
69. Kannah Creek.
70. Kelso Mesa.
71. Last Dollar--Sheep Creek.
72. Little Cimarron.
73. Long Canyon.
74. Matchless Mountain.
75. Matterhorn.
76. McClure Pass.
77. Mendicant.
78. Mineral Mountain.
79. Mirror Lake.
80. Mount Lamborn.
81. Munsey-Erickson.
82. Naturita Canyon.
83. North Henson.
84. Pilot Knob.
85. Poverty Gulch.
86. Salt Creek.
87. Sanford Basin.
88. Sawtooth.
89. Schofield Pass.
90. Soap Creek.
91. Steuben.
92. Sunnyside.
93. Sunset.
94. Texas Creek.
95. Tomahawk.
96. Turner Creek.
97. Turret Ridge.
98. Unaweep.
99. Union.
100. Whetstone.
101. Whitehouse Mountain.
102. Willow Creek.
103. Wilson.
104. Windy Point.
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Manti-La Sal National Forest
------------------------------------------------------------------------
105. Roc Creek.
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Pike-San Isabel National Forest
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106. Antelope Creek.
107. Aspen Ridge.
108. Babcock Hole.
109. Badger Creek.
110. Boreas.
111. Buffalo Peaks East.
112. Buffalo Peaks South.
113. Buffalo Peaks West.
114. Burning Bear.
115. Chicago Ridge.
116. Chipeta.
117. Cuchara North.
118. Cuchara South.
119. Elk Mountain--Collegiate North.
120. Elk Mountain--Collegiate South.
121. Elk Mountain--Collegiate West.
122. Farnum.
123. Green Mountain.
124. Greenhorn Mountain: Badito Cone to Dry Creek.
125. Greenhorn Mountain: Cisneros Creek to Upper Turkey Creek.
126. Greenhorn Mountain: Graneros Creek to Section 10.
127. Greenhorn Mountain: Little Saint Charles Creek to Greenhorn Creek.
128. Gunbarrel.
129. Hardscrabble.
130. Highline.
131. Holy Cross.
132. Hoosier Ridge.
133. Jefferson.
134. Kaufman Ridge.
135. Kreutzer--Princeton.
136. Little Fountain Creek.
137. Lost Creek East.
138. Lost Creek South.
139. Lost Creek West.
140. Methodist Mountain.
141. Mount Antero.
142. Mount Elbert.
143. Mount Evans.
144. Mount Massive.
145. Pikes Peak East.
146. Pikes Peak West.
147. Porphyry Peak.
148. Puma Hills.
149. Purgatoire.
150. Rampart East..
151. Rampart West.
152. Reveille Canyon.
153. Romley.
154. Sangre de Cristo: Alvarado Campground to Music Pass.
155. Sangre de Cristo: Blanca Peak to Slide Mountain.
156. Sangre de Cristo: Lake Creek to Hermit Creek.
157. Sangre de Cristo: Medano Pass to Carbonate Mountain.
158. Sangre de Cristo: Silverheels Gulch to Hunts Creek.
159. Sangre de Cristo: West Creek to Big Cottonwood.
160. Schoolmarm Mountain.
161. Scraggy Peaks.
162. Sheep Rock.
163. Silverheels.
164. Spanish Peaks.
165. Square Top Mountain.
166. St. Charles Peak.
167. Starvation Creek.
168. Tanner Peak.
169. Thirtynine Mile Mountain.
170. Thunder Butte.
171. Weston Peak.
------------------------------------------------------------------------
Rio Grande National Forest
------------------------------------------------------------------------
172. Alamosa River.
173. Antora Meadows-Bear Creek.
174. Beartown.
175. Beaver Mountain.
176. Bennet Mountain-Blowout-Willow Creek-Lion Point-Greenie Mountain.
177. Big Buck-Kitty-Ruby.
178. Box-Road Canyon.
179. Bristol Head.
180. Butterfly.
181. Chama Basin.
182. Conejos River-Lake Fork.
183. Copper Mountain-Sulphur.
184. Cotton Creek.
185. Crestone.
186. Cumbres.
187. Deep Creek-Boot Mountain.
188. Dorsey Creek.
189. Elkhorn Peak.
190. Four Mile Creek.
191. Fox Creek.
192. Fox Mountain.
193. Gibbs Creek.
194. Gold Creek-Cascade Creek.
195. Hot Springs.
196. Indian Ridge.
197. Kitty Creek.
198. La Garita.
199. Lake Fork.
200. Lower East Bellows.
201. Middle Alder.
202. Miller Creek.
203. Pole Creek.
204. Pole Mountain-Finger Mesa.
205. Red Mountain.
206. Ruby Lake.
207. Sawlog.
208. Sheep Mountain.
209. Silver Lakes-Stunner.
210. Snowshoe Mountain.
211. Spectacle Lake.
212. Spruce Hole-Sheep Creek.
213. Stunner Pass-Dolores Canyon.
214. Sulphur Tunnel.
215. Summit Peak-Elwood Pass.
216. Taylor Canyon.
217. Tewksberry.
218. Tobacco Lakes.
219. Trout Mountain-Elk Mountain.
220. Ute Pass.
221. Wason Park.
222. Wightman Fork--Upper Burro.
223. Wightman Fork--Lookout.
224. Willow Mountain.
------------------------------------------------------------------------
Routt National Forest
------------------------------------------------------------------------
225. Barber Basin.
226. Black Mountain.
227. Bunker Basin.
228. Bushy Creek.
229. Chatfield.
230. Chedsey Creek.
231. Dome.
232. Dome Peak.
233. Elkhorn.
234. Gold Creek.
235. Grizzly Helena.
236. Kettle Lakes.
237. Little Green Creek.
238. Long Park.
239. Mad Creek.
240. Morrison Creek.
241. Never Summer North.
242. Never Summer South.
243. Nipple Peak North.
244. Nipple Peak South.
245. Pagoda Peak.
246. Shield Mountain.
247. South Fork.
248. Sugarloaf North.
249. Sugarloaf South.
250. Troublesome North.
251. Troublesome South.
252. Walton Peak.
253. Whalen Creek.
------------------------------------------------------------------------
San Juan National Forest
------------------------------------------------------------------------
254. Baldy.
255. Blackhawk Mountain.
256. East Animas.
257. Fish Creek.
258. Florida River.
259. Graham Park.
260. HD Mountains.
261. Hermosa.
262. Lizard Head Adjacent.
263. Piedra Area Adjacent.
264. Runlett Park.
265. Ryman.
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266. San Miguel.
267. South San Juan Adjacent.
268. Storm Peak.
269. Treasure Mountain.
270. Turkey Creek.
271. Weminuche Adjacent.
272. West Needles.
273. Winter Hills/Serviceberry Mountain.
------------------------------------------------------------------------
White River National Forest
------------------------------------------------------------------------
274. Adam Mountain.
275. Ashcroft.
276. Assignation Ridge.
277. Baldy Mountain.
278. Basalt Mountain A.
279. Basalt Mountain B.
280. Berry Creek.
281. Big Ridge to South Fork A.
282. Big Ridge to South Fork B.
283. Black Lake East.
284. Black Lake West.
285. Blair Mountain.
286. Boulder.
287. Budges.
288. Buffer Mountain.
289. Burnt Mountain.
290. Chicago Ridge.
291. Corral Creek.
292. Crystal River.
293. Deep Creek.
294. Dome Peak.
295. East Divide-Four Mile Park.
296. East Vail.
297. East Willow.
298. Elk Creek B.
299. Elliot Ridge.
300. Fawn Creek-Little Lost Park.
301. Freeman Creek.
302. Gallo Hill.
303. Game Creek.
304. Grizzly Creek.
305. Gypsum Creek.
306. Hardscrabble.
307. Hay Park.
308. Holy Cross City.
309. Homestake.
310. Hoosier Ridge.
311. Housetop Mountain.
312. Hunter.
313. Little Grand Mesa.
314. Lower Piney.
315. Mamm Peak.
316. Maroon East.
317. Maryland Creek.
318. McClure Pass.
319. McFarlane.
320. Meadow Mountain A.
321. Meadow Mountain B.
322. Morapos A.
323. Morapos B.
324. Mormon Creek.
325. No Name.
326. North Elk.
327. North Independent A.
328. North Independent B.
329. North Woody.
330. Pagoda Peak.
331. Piney Lake.
332. Porcupine Peak.
333. Ptarmigan A.
334. Ptarmigan B.
335. Ptarmigan C.
336. Ptarmigan Hill A.
337. Ptarmigan Hill B.
338. Red Dirt A.
339. Red Dirt B.
340. Red Mountain.
341. Red Table.
342. Reno Mountain.
343. Ripple Creek Pass-Trappers Lake.
344. Ryan Gulch.
345. Salt Creek.
346. Sloan Peak.
347. Spraddle Creek A.
348. Spraddle Creek B.
349. Sweetwater A.
350. Sweetwater B.
351. Tenderfoot Mountain.
352. Tenmile.
353. Thompson Creek.
354. Tigiwon.
355. Treasure Mountain.
356. West Brush Creek.
357. West Lake Creek.
358. Wildcat Mountain.
359. Wildcat Mountain B.
360. Wildcat Mountain C.
361. Williams Fork.
362. Willow.
363. Woods Lake.
------------------------------------------------------------------------
Dated: April 11, 2011.
Jay J. Jensen,
Deputy Under Secretary, NRE.
[FR Doc. 2011-9119 Filed 4-14-11; 8:45 am]
BILLING CODE P