AW Comments on Chattooga Amendment 2001

Mr. Michael Crane District Ranger Andrew Pickens Ranger District 112 Andrew Pickens Circle Mountain Rest, SC 29664

Intro Issue 1: Purpose and Need Issue 2: Reopening Headwaters Issue 3: Affected Regulations Issue 4: Private Boater Access Allocation Issue 5: Private Boater Access Permits Issue 6: Water Quality Protection Issue 7: Shuttle Permits Issue 8: Commercial Outfitter Management Conclusion

Comments

Re Recreational Boating Use on the Chattooga Wild and Scenic River - Amendment #14 District Ranger Crane,

We are writing on behalf of American Whitewater in regard to proposed amendment #14 to the Sumter National Forest Land and Resource Management Plan (File Code 1920, dated July 16, 2001) in which you request comments about issues or areas of concern that would result if the proposed plan is implemented. Our comments are prepared and submitted consistent with 36 CFR 215 Notice, Comment, and Appeal Procedures and 36 CFR 217 Appeal of Regional Guides and National Forest Land and Resource Management Plans.P> We commend the Forest Service for moving forward with needed revisions to the Chattooga Wild and Scenic River Management Plan now rather than waiting for the more broad scale Forest Plan revision. This timely tiered approach allows a more focused consideration of the issues surrounding recreational boating use on the river and addresses the need to correct deficiencies in the current river management plan rather than waiting several years for the conclusion of the broad Forest planning process.

While the specific proposed actions regarding self-guided users are a step in the right direction (see further discussion below), the proposal fails to address several key river management issues including boater access to the headwaters of the Chattooga and water quality improvements, and is non-responsive to hundreds of comments demonstrating a significant level of interest by the boating public on these issues.

Additionally, American Whitewater sees no reason to change the current river management and operating plan relative to guided use. The current river management regime regarding guided use on the river appears to work well and should not be revised (see ISSUE #8 below).

Our greatest concern arises from the Forest Service's decision to narrowly limit the river management plan amendment to three issues rather than responsibly addressing all recreation-specific river management issues voiced by the public during the last three years of scoping (1999-2001).

While it may be appropriate to tier terrestrial NEPA management issues separate from boating relating issues, all boating related issues on the Chattooga Wild and Scenic River should be addressed in one concise document through one comprehensive planning process. Therefore, we strongly recommend incorporating all boating-related issues in the forest on the Chattooga River under a single plan amendment. This is consistent with 40 CFR 1508.25 which advises that "interdependent parts of a larger action" be managed concurrently.

ISSUE 1: Purpose and Need Statement is Inadequate

The introduction to the "Purpose and Need" statement in Amendment #14 explains that the 1985 Forest Plan contains several inadequacies with respect to boating on the Chattooga River. This indicates that the scope of the planned amendments broadly includes all boating related issues.

Currently boating use on all sections of the Chattooga River is managed under Appendix M of the 1985 Land and Resource Management Plan (LRMP). Section II.B of the Appendix makes the Andrew Pickens District responsible for administering floating use throughout the Wild and Scenic river corridor. As Appendix M is being modified significantly under Amendment #14, other aspects of the Appendix for which there has been significant public input should be reviewed concurrent with development of the amendment.

The Forest Service's failure to address all river management issues raised during the past two years of scoping is inexcusable and violates the spirit, if not the intent, of NEPA and the Administrative Procedures Act (APA). American Whitewater members and others throughout the nation's private boating community submitted hundreds of comments in good faith regarding re-opening the headwaters of the Chattooga for boating and managing the tributaries for water quality. Yet these concerns are neither mentioned nor addressed in the proposed amendments.

American Whitewater proposes adding the following item to the "Purpose and Need" statement:

The current Forest Plan prohibits boating above the Highway 28 bridge. This prohibition is neither necessary nor consistent with standard Forest Service recreation or Wild & Scenic management practices. Natural flows sufficient for floating occur about 30 days each year and are rainfall dependent; likewise there are no guarantees that these flows will occur on weekends. Thus floating use is likely to be low and limited, and should not result in user conflicts or degradation of the environment. The prohibition serves no practical purpose; therefore the Forest Plan needs to be revised to accommodate the public.P>

ISSUE 2: Reopening the Chattooga River Above Highway 28 for Boater Access

The Forest Service should lift the prohibition on boating in the headwaters of the Chattooga via Amendment #14. Boater use would be limited by natural barriers to very low levels. Boater use is consistent with law and policy, whereas the prohibition is not.

As early as October 27, 1999 American Whitewater requested review of the boating closure during the initial scoping process for development of the new Forest Plan. This initial request was followed by nearly 400 letters from the boating community, at least six meetings with American Whitewater staff and/or regional coordinators, broad public discussion in scoping meetings, and at least a dozen phone calls between American Whitewater and Forest Planner Tony White and District Ranger Michael Crane. During the course of these meetings and conversations, American Whitewater was led to believe that the current ban on boating fell within the scope of the proposed amendments to the Appendix M River Management Plan.

Appendix M states as a matter of fact, rather than regulation:

Floating is limited to the 26 mile portion below Highway 28 Bridge and the West Fork's lower 4 miles in Georgia. Sections of the river designated I-IV are open to boating with each section providing progressively more difficult white water than the preceding one.

American Whitewater proposes amending this language to state:

Floating is permitted on the Chattooga River.

As discussed in ISSUE #1 (above), the Sumter Forest Plan revisions, which will address broad landscape level management directions, are not an appropriate forum for reviewing this amended language. Instead, our proposed revision should be addressed under Amendment #14 dealing specifically with river recreation management issues under Appendix M. This interpretation is encouraged under the proposed amendment, which recognizes that:

Public meetings and comments have demonstrated a significant level of interest in the issues surrounding river management.

Proposing and analyzing these actions separately from the more broad scale Forest Plan Revision for the Sumter National Forest will allow a more focused consideration of the issues and alternatives.

The decision to be made will be whether… some modifications to the proposal are needed to respond to public issues.

NEPA: This interpretation is also supportable under the National Environmental Policy Act (NEPA), which courts have consistently interpreted as preventing an agency from segmenting projects into less significant portions that do not require environmental assessments (see San Antonio Cons Soc'y v. Texas Highway Dep't., 446 F.2d 1013, 1 ELR 20379 (5th Cir. 1971)). While the courts have ruled an agency may tier its decision making process 40 CFR 1502.4(d) for issues that are ripe for decision, incorporating by reference what has gone before (40 CFR 1502.4.d, 1502.20, 1508.28), it is not appropriate to avoid the issue of reopening access to the headwaters at this time. While the Agency can choose to limit the scope of a plan (40 CFR 1501.7.a.(2) and (3)), the lead agency must:

[I]dentify and eliminate from detailed study the issues which are not significant or which have been covered by previous environmental review, narrowing the discussion of these issues in the statement to a brief presentation of why they will not have a significant effect on the human environment or providing a reference to their coverage elsewhere.

It seems inappropriate that an amendment to the Forest Plan titled "Recreational Boating Use on the Chattooga W&SR" would only address part of the Wild and Scenic river, particularly when the issue of access to the headwaters was raised through numerous forums during the scoping process.

According to the President's Council for Environmental Quality (CEQ), scoping under NEPA should be used to determine significant issues that affect the quality of the human environment (see 40 CFR 1500.1.f, 1500.4.g). Clearly when the overwhelming majority of public scoping comments seek access to the headwaters as an issue, it is because the management decisions there have negatively affected the public's ability to enjoy the resource. Therefore the issue should be addressed in the relevant planning process, which in this case is via Amendment #14.

Under NEPA, an agency must address all reasonable alternatives (40 CFR 1502.14) Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint, rather than simply desirable. "Desirable" is used in relation to applicants for Federal permits, but this definition of reasonable has been extended to agency proposals. The environmental document must "explore and objectively evaluate all reasonable alternatives, and for alternatives that were eliminated from detailed study [e.g. private boating on upper sections], briefly discuss the reasons for their having been eliminated (40 CFR 1502.14.b).

40 CFR 1502.14.c says that an agency must include reasonable alternatives not within the jurisdiction of the lead agency. In this case, the Sumter National Forest Andrew Pickens District is recognized as the lead agency for managing river recreation on the Wild & Scenic Chattooga River. Though the upper sections of the Chattooga are within the jurisdiction of another Forest, the Sumter document still has to evaluate boating on the upper section because it is a reasonable alternative and because this unit is the lead agency.

APA: Additionally, it is doubtful whether the decision to omit the headwaters from the proposed Amendment would withstand scrutiny under the Administrative Procedures Act (APA) as it appears to meet the arbitrary and capricious (abuse of discretion) standard since the decision to ban boating on the headwaters of this Wild and Scenic river is completely inconsistent with national forest and recreation management guidelines and procedures as well as Wild & Scenic River management standards (See Oregon Envtl. Council v Kunzman, 817 F.2d 484, 492, 17 ELR 20756, 20759 (9th Cir. 1987) and Hanley v. Kleindienst, 471 F.2d 823, 2 ELR 20717 2d Cir. 1972), cert denied, 412 US 908 (1973)).

APPENDIX M: The legal foundation for the prohibition on boating in the headwaters of the Chattooga is not codified in regulation in any location other than Appendix M, which states:

Floating north of Highway 28 Bridge is prohibited through a condition of the floater permit under 36 CFR 261.77.c.

36 CFR 261.77.c: However, the referenced regulation, 36 CFR 261.77.c. (Prohibitions in Region 8, Southern Region), does not address the prohibition on boating and simply details that visitors must sign a self registration floater permit before boating, and that the permit will be made available at specified locations including the Highway 28 Bridge. Hence, simply modifying the permit application process to let boaters submit permits for floating in the headwaters would allow access under 36 CFR 261.77.c.

USFS STRATEGIC PLAN: In developing the 2000 Forest Service Strategic Plan the issue of discriminately prohibiting floating use on the headwaters of the Chattooga was discussed. Partially as a result of this specific discussion, the Forest Service added Objective 4.f which states that the Forest Service will "Provide appropriate access to National Forest System lands and ensure nondiscrimination in the delivery of all USDA Forest Service programs." While this is an atypical definition of discrimination, the continued prohibition on boating contradicts this objective as written, developed, and expounded upon in open public forums. The prohibition clearly discriminates against boaters as a human-powered recreational use class of visitor in the river corridor.

WILD & SCENIC RIVERS ACT: The Wild & Scenic Rivers Act (P.L. 90-542.1.b) explains that the purpose of the Act is to protect the river and its immediate surroundings "for the benefit and enjoyment of present and future generations." Our research has uncovered no documentation indicating that the prohibition on boating either provides a recognizable public benefit or protects the river. Additionally, there is no research on any river measuring observable or quantifiable environmental impacts by boaters at anywhere near the levels of use which the headwaters would experience if opened. In fact, relative to other existing forest uses, boater use will likely have the least measurable impact in both the short and long term as it is a particularly low impact activity and uses an untracked trail via the river. Furthermore Section 10.a. of the Act states:

Each component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values. {emphasis added, see also Federal Register, Vol. 47, No. 173 9/7/1982 Sect III, paragraph 5 for Forest Service's parallel management guidelines and emphasis on highlighted text}

The idea that re-opening boater use of the headwaters for less than a tenth of the year will substantially interfere with other public uses is laughable and clearly fails to meet any form of straight-face test. Float use meets Forest Service non-degradation and enhancement guidelines as referenced in agency management policies under the Wild and Scenic Rivers Act. The prohibition therefore appears to violate this portion of the Act. The Wilderness Act (78 Stat. 890; 16 USC, Ch 23) also applies to portions of the headwaters in North Carolina; however float use in the Wilderness areas is consistent with this Act as well.

Section 13.a. of the Wild & Scenic Rivers Act states:

Nothing in this Act shall affect existing rights of any State, including the right of access, with respect to the beds of navigable streams, tributaries, or rivers (or segments thereof) located in a national wild, scenic or recreational river area.

The prohibition on floating likely violates this portion of the Act as (1) the Chattooga is a navigable waterway, (2) as navigation extends by Federal law under the Commerce Act for the entire length of navigable rivers regardless of natural or man-made obstructions, (3) as there is evidence of historic use and navigation prior to the Act, (4) and as none of the neighboring states have waived their existing rights under the "Equal Footing" principle to the river.

INTERAGENCY WILD AND SCENIC RIVERS COORDINATING COUNCIL: The technical report of the Interagency Wild and Scenic Rivers Coordinating Council, which answers common questions about the Wild & Scenic Rivers Act, asks and answers:

Q. Does WSR designation affect the public's right to float a river?

A. No. The public's right to float a particular river does not change with designation.

While this language does not carry the weight of law, it clearly conveys standard agency interpretation and management practices for units under the Act. The existing boater prohibition is contrary to the agencies' peer panel viewpoint of appropriate management practices.

ROS: Re-opening recreational floating on the Chattooga is unlikely to affect the Recreation Opportunity Spectrum (ROS) and is consistent with all ROS settings in the corridor including semi-primitive, semi-primitive non-motorized, and roaded natural standards for management. Likewise, Appendix M notes that:

Numerous people may use the river at the same time, but bends and rapids prevent long site distances, and falling water mutes sound.

Management will be geared to feature challenging, semi-primitive experiences in the Chattooga Wild and Scenic River Corridor.

Both statements are contextually consistent with re-opening the headwaters to boating.

APPENDIX M REPRISED: Though boater use of the headwaters would be naturally limited by flows, and though there have been no studies forecasting potential social or ecological impacts of boating these reaches, the District Office continues to support a boating ban on Forest Service lands that is completely inconsistent with recreation lands management and Wild & Scenic Rivers Management throughout the country. In fact, the current forest plan states in Appendix M (page M-9) that in the high use areas of the Chattooga:

The Chattooga's visual environment has not been affected by increased floating use. Vegetation, soil, rock, gravel and sand constituting the shoreline reflect no significant damage from floating use.

CONCLUSION: It appears that the District Office is acting independent of Forest Service policy by maintaining and enforcing the prohibition on recreational boating in the headwaters of the Chattooga; a prohibition that is neither environmentally nor socially justifiable. The prohibition should be lifted immediately and the river should be reopened for recreation, which will be limited effectively by natural conditions such as streamflow and rainfall.

ISSUE 3: Identify existing regulations, which will be affected by amendment.

Amendment #14 does not specifically describe what portions of the 1985 LRMP or other USFS regulations are being amended. These regulations, which are incorporated by reference, should be described and made reasonably available as detailed under 40 CFR 1502.21. This omission should be remedied. Referenced documents should also be scanned and provided via the Internet and posted on the Web.

ISSUE 4: Self guided boating allocations

Thank you for responding to our concerns about equitable self guided user allocations on the Chattooga River. American Whitewater supports increases to self-guided boater limits and the elimination of the boaters/hour and groups/hour allocations. American Whitewater also supports regulating weekday and weekend allocation and reservations separately. However, we propose implementing a more liberal allocation system for self-guided boaters for sections III and IV on weekends and holidays as follows:

Weekends and Holidays: 200 people
Weekdays: 125 people

As boaters can expect some additional crowding on weekends and more primitive experiences on weekdays, the higher number would facilitate public enjoyment of the river, while providing public opportunities for more independent experiences on reduced use weekdays. The higher numbers would also account for disparities in reporting and non-compliance within the existing registration system. These disparities likely result in an underestimation of self-guided use. Therefore the higher 200 number would provide a useful management buffer before implementing what would likely be an unpopular and cumbersome permit system, while also providing the agency flexibility to increase reporting compliance in the future.

ISSUE 5: Self-Guided Boating: Proposed Enforcement Procedures for Self-Guided Use Allocations.

We generally find your proposed enforcement triggers acceptable if the self guided user allocations are increased to the figures suggested in ISSUE #4 (above). If permits are implemented on a first-come first-serve basis as proposed, then the permits should be made available at the Highway 76 river access point and parking area. Poor Forest Service management on the Forks of the Kern in CA has demonstrated the need to distribute permits directly at the river access points rather than remote and inaccessible district offices with restricted hours of operation.

FEES: There should be no fee for self-guided use of the river, either to park at any access point or to secure a reservation or permit. If fees are collected, they should target all forest visitors equally and should only be used to maintain existing facilities.

Alternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable. The EIS may serve as the basis for modifying the Congressional approval or funding in light of NEPA's goals and policies. If the agency uses the Chattooga EA to justify Fee Demo programs, the agency needs to look at all "reasonable" alternatives in the EA. The environmental document must "explore and objectively evaluate all reasonable alternatives, and for alternatives that were eliminated from detailed study [e.g. private boating on upper sections], briefly discuss the reasons for their having been eliminated (1502.14 (b)). Section 1502.14 (c) says that an agency must include reasonable alternatives not within the jurisdiction of the lead agency. If the upper sections of the Chattooga are within the jurisdiction of another Forest, the Sumter document still has to evaluate boating on the upper section because it is a reasonable alternative.

There is an additional concern that any trips ending below the Highway 76 bridge (i.e. Thrifts Ferry to Woodall Shoals) may count against the overall private use allocation for Section IV.

ISSUE 6: Wild & Scenic Management for Water Quality on Stekoa Creek and headwater areas of the West Fork.

The proposed amendment fails to address water quality problems from increased development pressures on Stekoa Creek and the headwaters of the West Fork of the Chattooga. American Whitewater raised these concerns multiple times during the initial scoping period in 1999 and 2000. Our concern is that the pristine nature of the river corridor is threatened by increased sedimentation, turbidity, and unprocessed sewage and urban runoff. Even if the Forest Service chooses not to look at this issue in the amendment, it should explicitly state that the issue has been noted and will be addressed as a forest-wide management issue in the upcoming Forest Plan.

The 2000 USDA Forest Service Strategic Plan states (Objective 1.a) that it will:

Improve and protect watershed conditions to provide the water quality and quantity and soil productivity necessary to support ecological functions and intended beneficial water uses.

Additionally, continued degradation and pollution of the Chattooga likely violates the Clean Water Act (40 CFR 131.12.a.3.), which prohibits any activity that degrades an "outstanding water" such as a Wild & Scenic waterway that has high recreational or social value.

Most importantly though, Section 12.a. of the Wild and Scenic Rivers Act specifically states:

The head of the agency administering a component of the national wild and scenic rivers system shall cooperate with the Administrator, Environmental Protection Agency and with the appropriate State water pollution control agencies for the purpose of eliminating or diminishing the pollution of waters of the river.

Therefore, we encourage the Forest Service to address this issue in the planning process and work closely with the states of Georgia, South Carolina, and North Carolina to develop and implement a plan for protecting the Chattooga's entire watershed from development and related water quality degradation.

ISSUE 7: Shuttle Permits

The proposed amendment suggests that a minimum of two private boater shuttle permits will be issued. We strongly encourage revising this language and stating that a maximum of two private boater shuttle permits will be issued.

Our concern is that excessive inflatable kayak or ducky rentals might lead to congested use and access beyond historic hardboat levels and create a new demand for semi-commercial ducky rental trips under the private boater permit system.

ISSUE 8: Commercial/Outfitter Use Management

American Whitewater sees no reason to change the current river management and operating plan relative to guided use. The current river management regime for guided use on the river appears to work well and should not be revised to allow for more watercraft, which has been proposed in order to increase use. The proposal to increase commercial use gives the appearance of coming at the expense of private boater use based on proposed private boater limits.

CONCLUSION

Please forward a copy of the final Environmental Assessment to me as soon as the Deciding Officer has issued a Record of Decision on proposed amendment #14.

In summary, we expect to see the following responses incorporated the ROD:

1. An expanded statement of need addressing boating in the headwaters.
2. If the agency fails to assess the prohibition on boating in the
headwaters, an explanation of how the decision to omit was made and justified.
3. The regulations incorporated by reference under the Amendment.
4. An increase in the self-guided visitor quota to 200 people/day.
5. Language that guarantees permits will be made available at launch sites.
6. A statement on how and when water quality-related issues will be addressed in the River Amendment or Forest Plan.

Sincerely,

{SIGNED}

Jason D. Robertson
Access Director
American Whitewater
1430 Fenwick Lane
Silver Spring, MD 90210

Don Kinser
Regional Coordinator
1263 Colony Drive
Marietta, Georgia 30068

Kevin Colburn
Eastern Access & Conservation
American Whitewater
P.O. Box 842
Weaverville, NC 28787