# Special Areas; Roadless Area Conservation; Applicability to the National Forests in Colorado

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-15958

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 3, 2012
- **Citation:** 77 FR 39576

## Text

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:

Final rule and record of decision.

SUMMARY:

The U.S. Department of Agriculture (USDA or Department), is adopting a State-specific final rule to provide management direction for conserving and managing approximately 4.2 million acres of Colorado Roadless Areas (CRAs) on National Forest System (NFS) lands. The final Colorado Roadless Rule is a rule that addresses current issues and concerns specific to Colorado. The State of Colorado and Forest Service, working in partnership, have found a balance between conserving roadless area characteristics for future generations and allowing management activities within CRAs that are important to the citizens and economy of the State of Colorado.

DATES:

This rule is effective July 3, 2012.

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 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:

This preamble states the basis and purpose of the rule, which includes responses to comments received on the proposed rule, and serves as the record of decision for this rulemaking. The preamble is organized into the following sections:

• Executive Summary

• Background

• Purpose and Need

• Decision

• Decision Rationale

• Public Involvement

• Tribal Involvement

• Alternatives Considered

• Environmentally Preferable Alternative

• Roadless Area Inventories

• Comments on the Proposed Rule and Changes Made in Response

• Regulatory Certifications

Executive Summary

The United States Forest Service manages approximately 14,520,000 acres of public lands in Colorado, which are distributed among eight national forests and two national grasslands. These national forests and grasslands are characterized by a diverse array of landscapes, ecosystems, natural resources, and land use activities.

In January 2001, the Roadless Area Conservation Rule (2001 Roadless Rule) was adopted into regulation. The 2001 Roadless Rule has been the subject of litigation for more than a decade, and is now currently in effect. Uncertainty about the future of the 2001 Roadless Rule, along with state-specific concerns, was a key factor that influenced Colorado to initiate a petition to manage roadless areas in Colorado in 2005.

The Department, the Forest Service, and the State of Colorado agree that a need exists to provide management direction for roadless areas in Colorado. In its petition to the Secretary of Agriculture, the State of Colorado indicated a need to develop regulations for the management of Colorado's roadless areas for the following reasons:

• Roadless areas are important because they are, among other things, sources of drinking water, important fish and wildlife habitat, semi-primitive or primitive recreation areas, including motorized and non-motorized recreation opportunities, and naturally appearing landscapes. A need exists to provide for the conservation and management of roadless area characteristics.

• The Department, the Forest Service, and the State of Colorado recognize that timber cutting, sale, or removal and road construction/reconstruction have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area characteristics. Therefore, there is a need to generally prohibit these activities in roadless areas. Some have argued that linear construction zones (LCZs) also need to be restricted.

• A need exists to accommodate state-specific situations and concerns in Colorado's roadless areas. These include the following:

○ Reducing the risk of wildfire to communities and municipal water supply systems

○ Facilitating exploration and development of coal resources in the North Fork coal mining area

○ Permitting construction and maintenance of water conveyance structures

○ Restricting LCZs, while permitting access to current and future electrical power lines

○ Accommodating existing permitted or allocated ski areas

• There is a need to ensure that Colorado Roadless Areas (CRAs) are accurately mapped.

The major provisions of the proposed rule would establish a system of CRAs with management direction to conserve roadless area characteristics. These areas would replace the roadless areas identified in the 2001 Roadless Rule for national forests in Colorado. The proposed rule conserves roadless area characteristics by prohibiting tree cutting, sale, or removal; road construction and reconstruction; and LCZs, with some limited exceptions. In addition, the rule establishes a system of upper tier acres within CRAs where additional restrictions apply, further limiting exceptions to the prohibitions.

The proposed CRAs encompass approximately 4.19 million acres of NFS land in Colorado, distributed among 363 separate roadless areas. The Colorado Roadless Rule provides for future adjustments to be made to CRA boundaries, subject to a public review and comment period, and applicable NEPA or other requirements. In addition, the rule provides for administrative corrections (defined as adjustments to remedy clerical and mapping errors) to upper tier boundaries, subject to a public review and comment period.

The rule adjusted roadless area boundaries from the 2001 inventory in the following ways:

• Correcting mapping errors that primarily resulted from improvements in inventory data and mapping technology.

• Excluding private land.

• Excluding land substantially altered by road construction and timber harvest activities.

• Excluding ski areas under permit or lands allocated in forest plans to ski area development.

• Excluding Congressionally designated lands, such as wilderness and other designations, that take legal precedence over roadless area regulations.

• Including unroaded areas outside IRAs that contain roadless area characteristics.

Official CRA and upper tier locations are contained in a set of maps at the Forest Service national headquarters. The Forest Service national headquarters office would maintain the official map of CRAs, including records of adjustments to such maps, pursuant to the final proposed rule. These maps will be available to the public.

The rule is expected to have a beneficial economic impact of about

$65,000,000 per year, which is not considered to be economically significant under Executive Order (E.O.) 12866, Regulatory Planning and Review. Even though this rule is not considered economically significant, it is considered a significant regulatory action under E.O. 12866 and E.O. 13563.

Background

On June 8, 2005, then-Governor Bill Owens signed Colorado Senate Bill 05-243 which directed the formation of a 13-person bipartisan task force to make recommendations to the Governor on the appropriate management of CRAs on National Forest Systems in Colorado. The Colorado law also identified the USDA 2001 Roadless Area Conservation Rule (2001 Roadless Rule) as the starting point for the task force. 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.

Colorado's petition (2006 Petition) was submitted by then-Governor Owens on November 13, 2006, to the Secretary of Agriculture for consideration under the Administrative Procedure Act. On April 11, 2007, then-Governor Ritter resubmitted the 2006 petition with additions (2007 Petition). After reviewing the recommendation from the Roadless Area Conservation National Advisory Committee (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.

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 State of Colorado was granted cooperating agency status in a memorandum of understanding dated January 8, 2008. On July 25, 2008, the Forest Service published the 2008 proposed rule to establish State-specific management direction to provide, within the context of multiple use, lasting protection for roadless areas on NFS land in Colorado (73 FR 43544). A notice of availability for the draft EIS was published on August 1, 2008, (73 FR 44991). The availability of the regulatory risk assessment for the 2008 proposed rule was published on September 18, 2008, (73 FR 54125).

Based on the comments on the 2008 draft EIS and other public involvement efforts, the State requested the USDA postpone further rulemaking efforts until the State considered its 2007 Petition. On August 3, 2009, the State of Colorado sought additional public comment. The State considered the public comments and submitted a revised petition to the Secretary on April 6, 2010 (2010 Petition).

On April 15, 2011, the Forest Service published a revised proposed rule (76 FR 21272) to provide State-specific direction for the protection of roadless areas on NFS lands in Colorado. A notice of availability for the revised draft EIS (RDEIS) was published on April 29, 2011, (76 FR 24021).

Since the promulgation of the 2001 Roadless Rule, it has been in litigation. The ongoing uncertainty regarding management of roadless areas was a key factor that influenced Governor Bill Owens to initiate a State-specific petition to manage Colorado roadless areas. On October 21, 2011, the U.S. Tenth Circuit Court of Appeals reversed the Wyoming District Court's decision to set aside the 2001 Roadless Rule and remanded the case to the District Court to vacate the permanent injunction. On February 24, 2012, the Tenth Circuit issued a mandate effectuating the October 21, 2011 opinion and requiring the injunction of the 2001 Roadless Rule to be vacated. As of the printing of this final rule, the 2001 Roadless Rule is in effect nationwide, except in Idaho, which has its own State-specific roadless rule.

Purpose and Need

The Department, Forest Service, and the State of Colorado agree there is a need to establish management direction for the conservation of roadless area values and characteristics in Colorado. In addition, there is a need to ensure that CRAs are accurately mapped. In its petition to the Secretary of Agriculture, the State of Colorado indicated a need to develop State-specific regulations for the management of Colorado's roadless areas.

Roadless areas are, among other things, sources of drinking water, important fish and wildlife habitat, semi-primitive or primitive recreation areas, including motorized and nonmotorized recreation opportunities, and natural-appearing landscapes. There is a need to provide for the conservation and management of roadless area characteristics.

The Department believes tree cutting, sale or removal, and road construction/reconstruction have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics, and there is a need generally to prohibit these activities in roadless areas. Some have argued that linear construction zones (LCZs) also need to be restricted in roadless areas.

The State has indicated flexibility is needed to accommodate State-specific situations and concerns in Colorado's roadless areas. These include: (1) Reducing the risk of wildfire to at-risk communities and municipal water supply systems; (2) facilitating exploration and development of coal resources in the North Fork coal mining area on the Grand Mesa, Uncompahgre, and Gunnison National Forests; (3) permitting the construction and maintenance of water conveyance structures; (4) restricting linear construction zones, while permitting access to current and future electrical power lines and telecommunication lines; and (5) accommodating existing permitted or allocated ski areas.

Decision

The Department hereby promulgates a regulation establishing CRAs and providing for management of CRAs as described in Alternative 2 of the “Rulemaking for Colorado Roadless Areas Final Environmental Impact Statement,” USDA Forest Service, 2012, and the supporting record. This decision is not subject to Forest Service administrative appeal regulations.

Decision Rationale

Governor Ritter stated in his April 11, 2007 letter to Undersecretary Mark Rey that, “Colorado's roadless areas are a treasure to be enjoyed by the citizens of Colorado and the visitors who come here to recreate and enjoy the natural beauty of our National Forests. Roadless areas provide critical wildlife habitat, clean drinking water, recreation and unmatched scenery. Roadless areas belong to all Americans and are a resource to protect and pass on to future generations.” The final rule will provide long-term management of CRAs to ensure roadless area values are passed on to future generations, while providing for Colorado-specific situations and concerns that are important to the citizens and economy of Colorado.

The final rule provides a high level of conservation of roadless area characteristics on approximately 4.2 million acres. The final rule achieves this by establishing prohibitions for tree cutting, road construction and reconstruction, and use of linear construction zones with limited exceptions and establishing upper tier acres. The final rule will be applied to 409,500 acres that were not covered in the 2001 Roadless Rule. It does not establish roadless management direction for 459,100 acres of lands that were associated with the 2001 Roadless Rule that have been determined to be

substantially altered and 8,300 acres for ski area management. The final rule provides a higher level of conservation for the designated CRA lands than management direction under either the forest plans or the 2001 Roadless Rule.

The final rule designates 1,219,200 acres of CRAs as upper tier, which are acres where exceptions to road construction and tree cutting are more restrictive and limiting than the 2001 Roadless Rule. Upper tier designations were designed to offset the limited exceptions for Colorado-specific concerns so that the final rule is more protective than the 2001 Roadless Rule.

Generally, the exceptions for Colorado-specific concerns allow for road construction and reconstruction beyond that which are allowed under the 2001 Roadless Rule where roadless acres are within the first 0.5 mile from an at-risk community as described in the definitions section of this final rule (about 250,000 acres) and within the 19,100-acre North Fork coal mining area. Tree cutting allowances in non-upper tier acres in the final rule are similar to the 2001 Roadless Rule, except within a community protection zone (CPZ) as described in the definitions section of this final rule. Tree cutting allowances in upper tier areas are much more restrictive in the final rule as compared to the 2001 Roadless Rule.

The use of LCZs is restricted under the final rule, unlike the 2001 Roadless Rule. The LCZ provisions of the final rule are designed to encourage placement of linear facilities outside of roadless areas to conserve the large tracts of undisturbed lands that roadless areas provide. The final rule also encourages co-locating facilities if they must be constructed within a CRA. Co-locating facilities within CRAs would minimize overall impacts by concentrating infrastructure and associated human activities in previously disturbed areas.

Although it is difficult to directly compare the level of protection afforded by the final rule and the 2001 Roadless Rule, the final rule clearly offers a higher level of conservation of roadless area characteristics within the upper tier acres. In addition, the 2001 Roadless Rule allows management activities to occur on more acres of roadless areas than the final rule does due to the upper tier designation.

Colorado-Specific Concerns

Ski Areas.
Roadless areas provide the scenic backdrop to many of Colorado's 22 ski areas located on public lands managed by the Forest Service. These 22 ski areas received about 11.7 million skier visits during the 2010-2011 ski season.

Colorado skiers spend about $2.6 billion annually, about one third of the annual tourist dollars spent in the State. The roadless area inventory for the 2001 Roadless Rule included portions of either the permit boundary and/or forest plan ski area management allocation for 13 ski areas. The final rule inventory excludes approximately 8,300 acres of permitted ski area boundaries or ski area management allocations from CRAs, which include roadless acres with degraded roadless area characteristics due to the proximity to a major recreational development and is less than 0.2% of the CRAs. This will ensure future ski area expansions within existing permit boundaries and forest plan allocations are not in conflict with desired conditions provided through the final rule and address one of the State-specific concerns identified by the State of Colorado. However, this final rule does not approve any future ski area expansions; any expansion proposal would need site-specific environmental analysis, appropriate public input, and independent approval.

Energy Development/Infrastructure.
All existing Federal coal leases within CRAs occur in the North Fork Valley near Paonia, Colorado on the Grand Mesa, Uncompahgre, and Gunnison National Forests. Coal from this area meets the Clean Air Act definition for compliant and super-compliant coal, which means it has high energy value and low sulphur, ash and mercury content, making it desirable for electric-generation plants throughout the country. Coal from these existing leases is currently being extracted at three underground mines, which collectively produce about 10 to 15 million tons of coal per year and accounts for about 40% of all the coal production in the State of Colorado. These mines provide about 2,100 jobs (direct, indirect and induced) and $151.1 million annually of direct labor income within Colorado.

The final rule accommodates the continued operation of these three mines by defining an area called the North Fork coal mining area. This area is about 19,100 acres which is less than 0.5% of the CRAs. The North Fork coal mining exception allows for the construction of temporary roads for exploration and surface activities related to coal mining for existing and future coal leases. The final rule does not approve any future coal leases, nor does it make a decision about the leasing availability of any coal within the State. Those decisions would need to undergo separate environmental analyses, public input, and decision-making.

Many comments were received on the 2008 DEIS and the 2011 RDEIS regarding whether the Currant Creek CRA should be included or excluded from the North Fork coal mining area. About 9,000 acres of the Currant Creek CRA was removed from the North Fork coal mining area in the RDEIS due to important wildlife habitats and juxtaposition of these habitats to nearby habitats. The Colorado Division of Parks and Wildlife reviewed comments regarding the inclusion of Currant Creek to the North Fork coal mining area, including the independent analysis of wildlife resources submitted by a commenter, and remains convinced of the importance of the wildlife habitat values in Currant Creek.

The Department agrees and will not include Currant Creek in the North Fork coal mining area to ensure conservation of these important wildlife habitats. The Department notes that there are no existing coal leases in Currant Creek. The Department reviewed likely scenarios of potential mining within the Currant Creek CRA and determined that the economic effects of including Currant Creek in the North Fork coal mining area would not be realized for more than three decades based on current coal production levels, current mining technologies, the assumption that an adjacent area on non-NFS lands known as Oak Mesa would be mined, and the fact that coal from Currant Creek would not be mined until Oak Mesa was mined out.

Oil and gas resources were another issue that generated substantial public input. Colorado has 8% of all dry natural gas reserves in the U.S., the third largest domestic reserves of onshore dry natural gas behind Texas and Wyoming. In 2009, Colorado wells produced 1.45 trillion cubic feet of natural gas for market, or 7% of U.S. production. In addition, about 28.3 million barrels of oil were produced in Colorado, or 1% of U.S. production. In 2010, of the $287 million in total royalties collected on Federal oil and gas production in Colorado, $117 million was paid to the State of Colorado and $64 million was collected in severance taxes from federal oil and gas production.

Within CRAs, there are about 266,900 acres classified as “moderate to high” oil and gas potential and about 631,600 classified as “high” potential. Projected natural gas and oil production from CRAs with high development potential, although locally significant, does not change significantly under the final rule. A total of 355 firms affiliated with

oil and gas development and production are located within the affected region, of which 337 are estimated to be small businesses. However, there is no difference in estimated average annual natural gas or oil production between the final rule and the 2001 Rule (baseline conditions). The only difference in natural gas production across alternatives is under forest plans (Alternative 3) where average annual production is estimated to increase by 4 billion cubic feet per year compared to the final rule, which is below the Executive Order 13211 criterion for significant effects of 25 bcf/year. The only difference in oil production across the alternatives is under forest plans (Alternative 3) where oil production is estimated to increase by about seven barrels per day, compared to the final rule, which is an inconsequential difference compared to the E.O. 13211 criterion of 10,000 barrels per day.

The final rule provides for the conservation of roadless area characteristics by prohibiting road construction for future oil and gas leases and requiring a no surface occupancy (NSO) stipulation on all future oil and gas leases within upper tier acres. The final rule balances roadless protection with energy development by allowing continued temporary access across CRAs to explore, develop, and transport products from existing oil and gas leases that do not otherwise prohibit road construction or reconstruction. The 2001 Roadless Rule prohibited road construction to access mineral leases issued after the promulgation of the rule (January 12, 2001). Since 2001, the 2001 Roadless Rule has been subject to legal challenges, and leases have been issued in areas now identified as Colorado Roadless Areas. The Colorado Roadless Rule does not affect the terms or validity of leases existing prior to the promulgation date of the final rule. This rule preserves any surface development rights and limitations on surface development rights existing at the time of adoption of this rule on all oil and gas leases. Although the road prohibitions of the final rule could constrain development of future oil and gas leases within some CRAs, the economic impact of this prohibition would be negligible in the context of total energy production within the State of Colorado. The projected difference in potential natural gas production from CRAs under the final rule is an increase in total recovery of about 19.2 billion cubic feet over 30 years when compared to the existing condition. Averaged over the 30 year period, this represents about 0.1% of the current state-wide annual production of natural gas in Colorado. For oil production, the final rule would result in a decrease of about 3,500 barrels over 30 years when compared to the existing condition. This averaged over 30 years, is minimal compared to the current annual oil production in Colorado.

The final rule would not restrict road construction to extract locatable minerals, which include metals such as gold, silver, lead, zinc, molybdenum, rare earth minerals, and uranium; non-metallic minerals such as fluorspar, feldspar, and gem stones; and uncommon varieties of sand, stone, gravel, pumice, pumicite, and cinders such as high calcium limestone used for cement. Like the 2001 Roadless Rule, the final rule contains a specific exception for roads provided for by statute which would allow access to develop these mineral resources, which are subject to location under the General Mining Law of 1872, as amended. This law provides United States citizens a possessory right to these minerals, use of the surface for purposes reasonably incident to mining, and a right of reasonable access to these minerals across Federal land. This statutory right also made it unnecessary to include a specific exception for mining roads in the final rule as requested by several commenters. Therefore, operations such as the Henderson Mine in Clear Creek County would not be affected by the final rule prohibitions should operations need to expand into or develop additional mineral resources in the adjacent CRA.

In January, 2009 energy transmission and distribution corridors were designated in 11 Western States, including Colorado, in an interagency effort known as the West-Wide Energy Corridor project. These corridors will facilitate interstate energy transmission and distribution as well as improving reliability, relieving congestion, enhancing the capability of the national grid to deliver electricity, and concentrating these uses. All the designated West-Wide Energy Corridors for oil, gas, and hydrogen pipelines and electric transmission and distribution facilities are located outside of CRAs. Therefore, interstate energy transmission is not expected to be affected by the final rule.

Water Supply/Infrastructure.
Water in Colorado is used for a variety of downstream purposes including public water supply, agriculture, and industrial uses (including mining/mineral development). Growing populations in Colorado are expected to increase the demand for reliable quantities of high-quality water. Roadless areas contribute to high quality water through high functioning watersheds, which provide for snow-pack retention and vegetative cover, resulting in reduced downstream sedimentation, lower water temperature, and decreased contaminants. The mountainous areas, where NFS lands are located, receive the highest amounts of precipitation in the State, primarily as snow. More than two-thirds of the water yield in Colorado originates on NFS lands. The streams and lakes within roadless areas generally have good to excellent water quality. Nearly all of the CRAs are located within watersheds that contribute to public supplies of surface or ground water.

Water projects are necessary to store and transport water from its origin in the mountains to where it is needed in downstream cities, towns, and farms. Storing water in mountain reservoirs provides more reliable year-round constant flows enabling distribution of water to places when needed. Water projects also allow for storage of excess water in one year to be saved and used in later years when water may not be as plentiful.

There are numerous reservoirs, diversions, ditches, tunnels and other water conveyance facilities located in CRAs. Access for operation and maintenance of these facilities is important to (1) ensure reliable delivery of needed water supplies to downstream users, and (2) prevent or mitigate failures in the water systems that could cause greater environmental impacts, such as an open ditch clogging with debris that overtops and carves a series of gullies into the hillside. The final rule allows access needed for the construction, reconstruction, or maintenance of authorized water conveyance structures operated pursuant to state decreed water rights.

With the current increased growth in the rural west, in and around the National Forests, the Forest Service anticipates proposals for new reservoirs and associated water conveyance structures on NFS lands. Existing permit holders are already asking for authorization to expand and enlarge existing reservoirs and water conveyance structures. The Department believes these circumstances require flexibility because in some cases, it may be preferable to expand existing facilities where impacts have already occurred than to construct new facilities in a relatively undisturbed area. In most cases, road access would be needed to transport the equipment and materials to complete new water projects or expansions efficiently, which is provided for in the final rule within non-upper tier areas through the road

construction exception and within upper tier areas through the LCZ exception for water rights with a pre-existing water court decree.

Community Protection.
The ongoing mountain pine beetle epidemic has caused wide-spread tree mortality on more than three million acres across the State of Colorado. About 750,000 acres of this tree mortality has occurred in CRAs. This high level of tree mortality has increased the concern for high-intensity wildfires due to the increased amount of combustible material (fuels). High-intensity wildfires are more difficult to control, have the potential for greater environmental impacts, and increase risks to firefighter and public health and safety.

Colorado has a high number of residences in the vicinity of forests that are at risk of wildfire. The final rule defines the areas up to 1.5 miles of an at-risk community as CPZs if certain ground conditions exist. In some areas, where CRAs are adjacent to at-risk communities, some portion of the CRA's acres fall within the CPZ. Currently, about 250,000 acres of proposed CRAs (6% of total) are within 0.5 miles of an at-risk community, and over one million acres of the proposed CRAs (25% of total) are within 1.5 miles of an at-risk community. The ability to conduct fuel-reduction projects around at-risk communities is a concern and priority for the State of Colorado. Fuel treatments alter fuel profiles so that public and firefighter safety is improved and communities, watersheds, infrastructure, and other at-risk values are less vulnerable to impacts from wildfire. The final rule provides for this by allowing fuel treatments within the CPZs and allowing temporary road construction within 0.5 miles of an at-risk community.

Linear Construction Zones.
Generally roadless areas are roadless because they are rugged, steep, and remote; the topography and juxtaposition of human developments have historically made going around roadless areas more practical than going through them; and they have limited economic development opportunities. For these reasons, opportunities to construct and the desire to construct linear facilities through roadless areas are expected to be limited. The majority of LCZ use in roadless areas is expected to come from the desire to move resources from inside roadless areas out of roadless areas, such as water, oil and gas. Although limited LCZ use is expected, it is a State-specific concern because the 2001 Roadless Rule does not restrict them and the potential for adverse impacts to roadless characteristics.

The final rule limits the potential impacts by prohibiting the use of LCZs across the 1,219,200 acres designated as upper tier except for reserved and outstanding rights; provided by statute or treaty; or water conveyance structures operated pursuant to a pre-existing water court decree.

The final rule further limits the potential impacts of LCZs by encouraging co-locating linear facilities within CRAs. Co-locating linear facilities would increase the width of the right-of-way, as power lines, pipelines or other linear facilities would parallel but not completely fall within the existing footprint. However, overall impacts would be reduced by concentrating infrastructure and associated human activities. These potential impacts, which would occur at a higher level under the 2001 Roadless Rule, include displacement of wildlife species sensitive to noise and human disturbance; soil compaction and erosion; fragmentation of aquatic and terrestrial habitats; and most notably an increased risk of the spread of invasive species. Many non-native plants establish themselves preferentially along disturbed habitats, which can lead to loss of native plants, loss of quality forage, and lowered reproductive success of native plants and wildlife. Expanding the width of existing right-of-ways would further amplify the magnitude and duration of these effects on roadless area values including fish, wildlife, and rare plants.

The increasingly high level of development that exists outside of roadless and wilderness areas accentuates the function of roadless areas as refugia for aquatic and terrestrial animal species. Refugia provide source populations that are not subject to high levels of angling or hunting pressure or frequent human disturbances, and can repopulate adjacent landscapes. This is why the final rule emphasizes placement of LCZs outside of roadless areas when at all possible. If additional LCZs need to be used in roadless areas, then the emphasis will be on co-locating or widening of existing right-of-ways.

Other Considerations.
Roadless areas provide for unaltered and high quality fish and wildlife habitat. Based on a U.S. Fish and Wildlife National Survey (2006 National Survey of Fishing Hunting, and Wildlife-Associated Recreation), it is estimated that hunters and anglers spent about 8,750,000 days hunting and fishing in Colorado expending approximately $1,584,779 million annually; and 1,819,000 people spend about 9,404,000 days watching wildlife expending approximately $1.4 billion annually. Based on the 2006 National Survey, Colorado residents and nonresidents spent about $3.0 billion in 2006 on wildlife recreation within the State. The final rule provides for conservation of native cutthroat trout through a requirement to ensure the native cutthroat trout habitat is not diminished over the long-term and the implementation of water conservation practices. In addition to the final rule protections, native cutthroat trout in Colorado are protected through the Endangered Species Act and/or the National Forest Management Act implementing regulations. Greenback cutthroat trout are listed as Threatened under the Endangered Species Act, and Colorado and Rio Grande cutthroat trout are listed as Sensitive on the Regional Forester's Sensitive Species list. These listings provide a high level of protection for native cutthroat trout in Colorado and provide for special management emphasis. The final rule ensures conservation of roadless area characteristics over the majority of the 4.2 million acres of CRAs, which will provide for wildlife dependent on large tracts of undisturbed land.

Based on a 2009 report by the Colorado Off-Highway Vehicle Coalition, it is estimated that 210,000 Colorado residents and nonresidents participated in the 2006-2007 season's off-highway vehicle recreation in Colorado, expending approximately $784 million. The final rule does not prohibit use of existing authorized motorized trails nor does it prohibit the future development of motorized trails in CRAs (see 36 CFR 294.46(f)). The final rule allows continued motorized trail use of CRAs if determined appropriate through local travel management planning.

Alternatives Considered.
Alternative 1, the 2001 Roadless Rule and No Action Alternative, was not selected as the final rule because it does not provide for Colorado specific concerns. The 2001 Roadless Rule limits economic opportunities important to the people of Colorado, such as coal development and ski area expansion. The 2001 Roadless Rule also poses a greater risk to communities adjacent to CRAs than the final rule by limiting fuel treatments designed to reduce wildfire intensities; and potentially impacting the efficient management of water needed to ensure an adequate future supply to the State in light of growing demands and increasing fluctuations in precipitation patterns.

Alternative 3, provisions of the Forest Plans, was not selected as the final rule because it does not provide for roadless area conservation to the degree that

Alternative 2 does. Although Alternative 3 does provide greater flexibility to provide for Colorado specific concerns, such as community protection and economic development, Alternative 2 balances Colorado specific concerns with roadless conservation, which is also important to the State. As stated in the purpose and need, roadless areas provide for sources of drinking water, important fish and wildlife habitat, semi-primitive and primitive recreation opportunities, and natural appearing landscapes as well as other attributes. It is important to balance the conservation of these roadless characteristics, while providing for the State-specific concerns, which Alternative 2 does.

Alternative 4 was not selected as the final rule because the amount of upper tier acres and location of those acres limit the ability of the Forest Service to accomplish its management objectives. Approximately 121,600 acres of Alternative 4 upper tier acres are within 0.5 mile of an at-risk community. This upper tier designation would prohibit fuels treatment within the CPZ, which would increase risk to public health and safety. In addition, some of the upper tier acres designated in Alternative 4 are located in areas with existing oil and gas leases, and should those existing leases be developed the designation of these acres as upper tier would be inconsistent with the purpose and desired condition of upper tier designations.

Public Involvement

The Forest Service and the State of Colorado have solicited public involvement and comments on the development of a Colorado Roadless Rule. Between the Forest Service and State efforts, there have been five formal public involvement processes, which have resulted in approximately 312,000 public comments. Public involvement efforts of the Forest Service and the State of Colorado included:

• Senate Bill 05-243, signed into Colorado law on June 8, 2005, created and identified a 13-member bipartisan task force. The task force held nine public meetings throughout the State, held six deliberative meetings that were open to the public, and reviewed and considered over 40,000 public comments.

• On December 27, 2007, the Forest Service published a notice of intent in the
Federal Register
to prepare an EIS on roadless area conservation on NFS lands in Colorado (72 FR 72982). The Forest Service also solicited comments from interested parties on the notice of intent from December 27, 2007 through February 25, 2008. Approximately 88,000 comments were received.

• On July 25, 2008, the Forest Service published a proposed rule to establish State-specific management direction for conserving roadless areas in Colorado (73 FR 43544). A notice of availability for the DEIS was published in the
Federal Register
(73 FR 44991). The availability of the regulatory risk assessment for the proposed rule was published on September 18, 2008 (73 FR 54125). Nine public meetings were held around the State of Colorado and in Washington, DC during the comment period. All comment periods closed on October 23, 2008. In total, approximately 106,000 comments were received.

• The State of Colorado held a comment period from August 3 to October 3, 2009 on a State-modified version of the Colorado Roadless Rule. Approximately 22,000 comments were received.

• On April 15, 2011, the Forest Service published a revised proposed rule (76 FR 21272). A notice of availability for the RDEIS was published in the
Federal Register
(76 FR 24021) on April 29, 2011. Nine public meetings were held around the State of Colorado and in Washington, DC during the comment period. Comment periods closed on July 14, 2011. Approximately 56,000 comments were received.

In addition to the five formal comment periods, the Forest Service and Colorado participated in Roadless Area Conservation National Advisory Committee (RACNAC) meetings that were open to the public in Washington, DC in June of 2007 and January, July and November of 2008. Also, a RACNAC meeting was held in Salt Lake City, Utah in October of 2008. Public comments were accepted at these meetings, which helped the RACNAC develop its December 5, 2008 recommendations to the Secretary of Agriculture.

On May 4, 2012, the notice of availability for the final EIS (FEIS) was published in the
Federal Register
(77 FR 26548). Although the Forest Service did not formally solicit comments, 181 comments were received.

Tribal Involvement

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 and in good faith.

A vital part of the State of Colorado's public process in developing its petition was receiving the recommendations and comments 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 Indian Tribes (consisting originally of the Weeminuche, Capote, Tabeguache, and Mouaches Bands) under the Brunot Agreement of 1874 have reserved hunting rights on certain lands 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 claim inherent aboriginal rights within the State.

The Forest Service has consulted with Colorado-affiliated Tribes regarding this rulemaking action and analysis process. Information on the proposed Colorado Roadless Rule was provided to the Ute Mountain Ute and Southern Ute Indian Tribes 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 the final rule changes hunting 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 25 Tribes 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 of these Tribes and each was contacted by phone to determine their level of 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 each Tribe outlining the key points of this revised proposed rule, and the Forest Service met with those Tribes requesting further consultation.

In October 2010, the Forest Service met with Tribal members of the Ute Mountain Ute and Southern Ute tribes to obtain information. In April 2011, the Proposed Rule was sent to 25 Tribes

based on their current proximity to Colorado and their current and historic use of lands within Colorado to determine their interest in meeting or obtaining information. Follow-up phone calls were made to each of the 25 Tribes. Additional information was sent to Tribes as requested. The Tribes did not request additional government-to-government involvement, and no formal comments from any of the Tribes were received.

Pursuant to Executive Order 13175 of November 6, 2000, “Consultation and Coordination with Indian Tribal Governments,” the Department has assessed the impact of this rule on Indian Tribal Governments and has determined that the proposed rule does not significantly or uniquely affect Indian Tribes. The final rule establishes direction governing the management and protection of CRAs. However, the final rule respects prior existing rights, and it addresses discretionary Forest Service management decisions involving road construction, tree cutting, and some mineral activities. The Department has also determined that the final rule does not impose substantial direct compliance costs on Indian Tribal Governments. The final rule does not mandate tribal participation in roadless management or the planning of activities in CRAs. 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.

Alternatives Considered

The Forest Service analyzed four alternatives for managing roadless areas in the FEIS. Alternative 1 the No Action Alternative and the 2001 Roadless Rule, continues the use of the 2001 Roadless Rule prohibitions, exceptions and mapping. Alternative 2, selected as the final rule, examines a two tier approach for prohibitions and exceptions designed to protect CRAs. Alternative 3, provisions of Forest Plans, examines reliance on forest plan direction without the 2001 Roadless Rule, to manage roadless areas. Alternative 3 would consist of a Colorado Rule that exempts the State from the 2001 Roadless Rule. Alternative 4 uses the same parameters for management described in Alternative 2 but includes approximately 2.6 million acres in the upper tier. The only difference between Alternative 2 and 4 is the location and amount of upper tier acres. The FEIS may be found at
http://www.fs.usda.gov/goto/coroadlessrule.

Environmentally Preferable Alternative

The environmentally preferable alternative is the alternative that would best promote the national environmental policy as expressed in Section 101 of the National Environmental Policy Act (NEPA), 42 U.S.C. 4331. Generally this means the alternative that causes the least damage to the biological and physical environment. It means the alternative that best protects, preserves, and enhances historic, cultural, and natural resources. In addition, it means the alternative that attains the widest range of beneficial uses of the environment without degradation, risk to health and safety, or other undesirable or unintended consequences.

All the alternatives presented in the FEIS meet the national environmental policy, as described in Section 101 of NEPA, to varying degrees. All the alternatives provide for safe, healthful, productive and aesthetically and culturally pleasing surroundings, now and into the future, by conserving and managing roadless area characteristics to a varying degree. However, of the four alternatives, Alternative 2 is the environmentally preferable alternative because it best promotes the national environmental policy. Alternative 2 is the environmentally preferable alternative because it attains the widest range of beneficial uses of the environment and achieves a balance between population and resource use while conserving roadless area characteristics. While Alternative 4 would cause the least amount of direct impact to the environment of all the alternatives, Alternative 4 limits activities, such as fuel treatments, that could protect the environment from wildfire. Under Alternative 4, hazardous fuels activities around at-risk communities that would reduce the severity of a wildfire and reduce impacts to watersheds would be limited due to upper tier designations. The higher amount of tree cutting projected for Alternative 2 is a result of hazardous fuel treatments around at-risk communities and is thus limited across the CRAs mainly to the 250,000 acres within the 0.5 mile CPZ. Alternative 4 does not provide as good of a balance between population and resource use, part of the national environmental policy. Alternative 2 provides for community protection and activities that are important to the economic well-being of the citizens of Colorado. Although Alternative 2 has a higher amount of road construction projected, this is mainly a result of allowing temporary roads within the North Fork coal mining area and within the CPZ. Thus this impact is limited in scope to the 19,100 acres of the North Fork coal mining area and the 250,000 acres within the 0.5 mile CPZ. This limited impact is offset by the 1,219,200 acres designated as upper tier, which would have less activities (tree cutting and road construction/reconstruction) occurring within them than what would occur under the 2001 Roadless Rule (Alternative 1, the No Action Alternative) or the forest plans (Alternative 3). The “Decision Rationale” section describes how the rule provides for these activities as well as why they are important to Colorado. Alternatives 1 and 4 do not provide for these benefits to the degree that Alternative 2 does.

Roadless Area Inventories

The final rule includes an updated inventory of roadless areas. The 2007 State Petition proposed starting with the inventories used in the 2001 Roadless Rule and updating them as necessary. In some cases, these inventories were conducted in the late 1970's and used mapping technologies that are now outdated. In addition, roads had been constructed in some areas between the time of the original inventories and their use in the 2001 Roadless Rule. The Forest Service has reviewed and updated the old inventories for use in this rulemaking by making technical corrections, removing private property, and making other boundary adjustments, including additions and deletions due to land exchanges. All congressionally-designated areas that overlapped roadless 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. Based on public comment received and work with the Colorado Division of Parks and Wildlife field staff, corrections were made to the inventories used for the 2008 Proposed Rule. Additional administrative corrections were made between the 2011 Proposed Rule and the final rule. Further information on the boundary changes and a description of the uniqueness of each CRA can be found at
http://www.fs.usda.gov/goto/coroadlessrule
.

Colorado Roadless Area boundaries have been adjusted where they overlap with ski areas that have special use authorizations (6,600 acres) or land use management plan allocations for ski areas that allow for possible future expansion of the permitted area (1,700 acres). Table 1 displays a comparison of

2001 Inventoried Roadless Area (IRA) acres and final CRA acres.

Table 1—Proposed Net Change in Roadless Acres Designations by Forest—Inventoried Roadless Area Acres to Colorado Roadless Area Acres

2001 Rule total IRA acres with forest plan vintage

IRA acres in Colorado
database

IRA acres not included within CRAs
Roadless acres added to CRAs

Total roadless acres to be managed under
Colorado rule

Net change
between 2001
IRA and CRA
acres

Arapaho-Roosevelt
391,000 (1997)
352,500
10,800
5,400
347,100
(5,400)

GMUG
1,127,000 (1979)
1,058,300
281,500
124,200
901,100
(157,200)

Manti La Sal
11,000 (1979)
11,000
3,800
500
7,700
(3,300)

Pike San Isabel
688,000 (1979)
667,300
62,900
170,300
774,700
107,400

Rio Grande
530,000 (1996)
529,000
14,200
3,800
518,600
(10,400)

Routt
442,000 (1998)
442,300
10,400
1,700
433,600
(8,800)

San Juan
604,000 (1979)
543,600
76,500
98,900
566,100
22,500

White River
640,000 (2002)
639,500
7,400
4,700
636,700
(2,800)

Total, State of Colorado
4,433,000
4,243,600
467,400
409,500
4,185,600
(58,000)

Column 2 acres rounded to nearest 1,000 acres; others rounded to nearest 100 acres. Acres do not add due to rounding.

Comments on the Proposed Rule and Changes Made in Response

Approximately 56,000 comments were received in response to the proposed rule and RDEIS. The Forest Service considered all substantive comments as part of the rulemaking. The following is a section-by-section description of changes to the final rule as compared to the proposed rule, comments received regarding that section, and the Agency response. A detailed analysis and response to public comment is contained in Appendix H of the FEIS.

§ 294.40 Purpose.
No substantive changes were made to this section. Only a minor edit was made to utilize the full name of “Colorado Roadless Areas” rather than CRA because it is the first time this term is used in the rule text.

Comments on the purpose of the rule:
Some respondents asked for clarification regarding the intent of the Colorado Roadless Rule.

Response:
The intent of the final rule is contained in the FEIS Purpose and Need for Action section in Chapter 1 and in the Purpose and Need section of this preamble. Section 294.40 of the rule states the purpose of the rule is to provide “State-specific direction for protection of roadless areas in Colorado.” It also states that the intent is to “protect roadless area characteristics * * * within CRAs.”

§ 294.41 Definitions.
Four changes were made to the definitions section based on comments received and/or concerns identified by the Forest Service.

(1) The definition of an LCZ was modified to clarify the difference between it and a temporary road. The term “maintain” was added to the definition of an LCZ to clarify that LCZs could be used to maintain a linear facility as well as install one.

(2) The definition of linear facilities was expanded to include dams.

(3) A definition of a permanent road was added.

(4) The definition of pre-existing water court decree was changed to include decreed water rights that were filed by the promulgation date of the final rule. In addition, the definition was changed to clarify that moving a head gate within a roadless area would not change the status of a pre-existing water court decree.

(5) The definition of Watershed Conservation Practices (WCPs) was added to clarify that all project-level activities within cutthroat trout habitat would apply WCPs.

Comments on the definition of at-risk community:
Respondents asked for clarification of the definition of at-risk community.

Response:
The final rule utilizes the definition of an at-risk community from the Healthy Forests Restoration Act (HFRA). HFRA defines the term as a community listed in the notice entitled “Wildland Urban Interface Communities Within the Vicinity of Federal Lands That Are at High Risk From Wildfire” (66 FR 751) or as a group of homes and other structures with basic infrastructure and services, such as utilities, and collectively maintained transportation routes, within or adjacent to Federal land in which conditions are conducive to a large-scale wildland fire disturbance event and for which a significant threat to human life or property exists as a result of a wildland fire disturbance event.

Comments on the definition of temporary road:
Some respondents requested further discussion and reconsideration of the definition for temporary road, given that temporary roads can impact soil and water resources.

Response:
A temporary road is defined as a road necessary for emergency operations or authorized by contract, permit, lease, or other written authorization. A temporary road is not considered a forest road and does not become part of the transportation atlas. Although a temporary road is decommissioned at the end of its authorized use, temporary roads can be in operation for a few years to a decade or more. Temporary roads are not open to public travel. Any temporary roads would be subject to existing forest plan standards and guidelines that protect ecosystem conditions, including water quality. An appendix is included in the FEIS that describes the planning, design, approval, administration, construction, operation, maintenance and decommissioning of temporary roads as they would be applied in CRAs.

§ 294.42 Prohibitions on tree cutting, sale, or removal.
No substantive changes were made to this section.

Comments on tree cutting near communities and consultation with the Colorado Division Parks and Wildlife.
Some respondents would like to see the Colorado Division of Parks and Wildlife consulted on tree cutting for fuels reduction treatments and ecosystem restoration projections.

Response.
The rule offers cooperating agency status to the State of Colorado, which would include the Division of Parks of Wildlife, on all proposed projects and planning activities

occurring on CRAs (§ 294.45(b)). Tree cutting for community protection beyond the first 0.5 mile of the CPZ must be consistent with a Community Wildfire Protection Plan, which is generally developed with assistance of State agencies.

Comments on tree cutting in upper tier.
Many respondents indicated concern over the ability to treat upper tier acres to manage for a multitude of environmental conditions. Some respondents indicated that the rule should include a tree cutting exception in upper tier acres to treat hazardous fuel loads, in areas that supply municipal water systems, to allow wildlife habitat improvements, watershed health, to treat for insects and diseases, acres that are adjacent to ski areas, and for fire suppression, emergencies, and public safety. Other respondents indicated that no tree cutting should occur in upper tier areas.

Response:
The rule strikes a balance between the need for tree cutting to protect at-risk communities and municipal water supply systems, habitat improvement projects, and ecosystem restoration, and the need to protect roadless area characteristics. Tree cutting for hazardous fuels treatment in upper tier is prohibited; however, the majority of the existing CPZs excluded upper tier acres in the final rule. The Colorado Roadless Rule provides for the State-specific concern of reducing the risk of wildfire to communities, despite the inclusion of 6,100 acres of the 0.5 mile CPZ in upper tier. This composes only about 2% of all the 0.5 mile CPZ, which is minimal, and it is likely that many of these acres would never be treated regardless of whether it is designated upper tier or non-upper tier. We note that although upper tier designation reduces the flexibility for fuel treatment on these particular 6,100 acres due to the limited exceptions, there are about 247,800 acres in the non-upper tier that are located within 0.5 miles of an at-risk community that will have increased flexibility compared to the 2001 Roadless Rule to cut trees and construct roads in order to minimize the risk of fire.

In addition fuel reduction, as well as other objectives, such as watershed protection and insect/disease treatments, can be accomplished through the use of prescribed fire, limbing to reduce ladder fuels, and piling and burning. Fire line construction would be allowed in conjunction with prescribed burning, including incidental tree cutting to ensure effective fire lines. Tree cutting for wildlife habitat improvements in upper tier is prohibited; however, prescribed fire could be used for terrestrial wildlife habitat improvement. Tree cutting around ski areas is addressed by removal of existing ski area permit boundaries and forest plan allocated ski areas from CRAs.

The only tree cutting allowed in upper tier is incidental to the implementation of a management activity not otherwise prohibited or for personal or administrative use. The responsible official determines if an activity is consistent with a tree cutting exception in upper tier. Examples of activities not otherwise prohibited include but are not limited to trail construction and maintenance; hazard tree removal along trails; fire line construction for wildland fire suppression or prescribed fire; survey and maintenance of property boundaries; maintenance of linear facilities such as existing electrical power lines, water conveyance structures with a pre-existing water court decree, and pipelines; use of LCZs associated with water conveyance structures; or road construction and reconstruction where allowed by the final rule. Tree cutting is allowed for imminent, direct risks to public safety and other emergency situations. Personal use includes activities such as Christmas tree and firewood cutting. Administrative use includes providing materials for activities such as construction of footbridges or fences.

Comments on tree cutting in roadless areas to treat hazardous fuels.
Many respondents indicated a need to cut trees for hazardous fuel management around communities and to protect infrastructure such as transmission lines and water conveyance facilities.

Response:
The rule recognizes the need for tree cutting to reduce the risk of wildfire to at-risk communities. It allows tree cutting in non-upper tier within 0.5 miles from the boundary of an at-risk community, or up to 1.5 miles if certain conditions exist and the area is within a Community Wildfire Protection Plan (CWPP). A temporary road may be constructed to facilitate hazardous fuel reduction within 0.5 miles of the boundary of an at-risk community. Tree cutting for protection of linear facilities such as transmission lines and water conveyance facilities is considered to be maintenance of those facilities, which is allowed under the final rule.

In addition, tree cutting is allowed in non-upper tier acres if a significant risk exists to the municipal water supply system or the maintenance of that system. The final rule 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 could present a high risk or threat to a municipal water supply system. Examples of determining the risk to municipal water supply systems include the watershed assessments completed by the Front Range Watershed Wildfire Protection Group. These assessments were based on methods used by the Pinchot Institute for Conservation and considered wildfire hazard, flooding, debris flow risk, soil erodibility, and water uses to identify zones of concerns.

§ 294.43 Prohibition on road construction and reconstruction.
An exception in upper tier CRAs to allow for road construction to protect public health and safety in cases of an imminent threat of flood, fire or other catastrophic event was added. In addition, the word “imminent” was added to this exception as it is applied to non-upper tier CRAs. The timeframe for the term imminent is situational dependent and could vary from hours to years. For example, for a flood or fire, imminent is likely hours but for dam failures, this could mean years. This exception does not constitute permission to engage in routine forest health activities, such as temporary road construction for thinning to reduce mortality due to insect and disease infestation. In addition, the responsible official must ensure conditions outlined in section 294.43, paragraph (b)(3) are met, which will ensure road construction is minimized and permanent roads are rare. Examples of appropriate uses of this exception include but are not limited to: A circumstance in which a road is needed to repair a dam that without intervention would fail and cause the loss of life or property; burned area emergency rehabilitation activities to protect municipal water supply systems; or activities to prevent or mitigate rock fall or a rock slide above a highway that without intervention could result in the loss of life or property.

The phrase “subject to the legal rights identified in 36 CFR 294.43(b)(1)” was added to the provision outlining items the responsible official must determine to utilize one of the two road exceptions for upper tier. This change in paragraph (b)(3) was to make the language consistent with paragraph (c)(2) and to clarify that the determinations made by the responsible official are subject to the legal rights pursuant to reserved or outstanding rights or as provided by statute or treaty in upper tier as well as non-upper tier.

The phrase “technically feasible” has been changed to “feasible” in

paragraphs (b)(3)(i) and (c)(2)(i). This change was made to clarify that the determination of what is feasible includes more factors than just technical issues.

The condition that road construction must be consistent with applicable land management plan direction was added to (b)(3) to make it consistent with paragraph (c)(2) and to clarify that roads must be consistent with forest plan direction in upper tier as well as non-upper tier.

The phrase “extent of the occupied” was added to the provisions regarding whether road construction will diminish, over the long-term, conditions in the water influence zone and in occupied native cutthroat trout habitat (paragraph (b)(3)(iv) and paragraph (c)(2)(iv)). This term was added because almost all perennial streams in CRAs are historic native cutthroat trout habitat and the intent of this provision is not to have it applied to all streams, rather only those with native cutthroat trout within them.

A provision was added that WCPs will be applied for all activities occurring in occupied cutthroat trout habitat. The WCP provision is to highlight that while some activities may appear disruptive to trout habitat and resources in the short-term, over the long-term, WCP techniques and methods are used to ensure that impact to trout habitat is minimized to only what is necessary, and that over time the overall trout habitat is restored and improved. Any project, including trout habitat restoration activities, may have short-term disturbances to roadless area characteristics. The rule includes flexibility to allow such projects to go forward, with WCPs applied, in order to improve or maintain roadless area characteristics and fish habitat conditions over the long-term.

The term authorized use in paragraph (c)(1)(ii) was clarified to include uses authorized under permit, easement or other legal instrument.

The phrase “with the use of the road limited to the water right identified in the pre-existing water court decree” was added to paragraph (c)(1)(iv) to clarify that a road constructed under this exception cannot be used for other uses. In addition, it was clarified that the Regional Forester would determine the need for a temporary road under this provision.

Road decommissioning was added to the title of paragraph (d) and reconstruction was added to the title of paragraph (d)(1) for clarification. In addition, paragraph (d)(2) was modified to clarify that road decommissioning would occur upon termination of the authorizing instrument if possible. Examples of activities related to road decommissioning was added to paragraph (d)(2) to clarify the concept of road decommissioning.

Three other edits were made for clarification.

(1) In paragraph (c)(1)(ix) the word “or” was added between coal exploration and coal related surface activities to allow for only one purpose for road construction and not both purposes.

(2) In paragraph (d)(4)(ii) the words “an authorization issued under” were removed because they were not necessary.

(3) In paragraph (d)(1) the words “to the extent practicable” were removed because they were not necessary.

Comments on road construction and reconstruction.
Many respondents expressed concerns regarding access in upper tier areas for the operation, maintenance or development of water supply systems, for access to private properties, for mining and recreation and for grazing permit holders. Some respondents wanted additional exceptions and others wanted to eliminate exceptions for road construction altogether.

Response:
The rule strikes a balance between the need for roads for community protection, existing rights, economic interests, and the need to protect roadless area characteristics. Currently, there are no forest roads within CRAs, and it is the intent of the rule to limit road construction. Any road constructed under any of the exceptions in the rule will not provide public access, whether these roads are within upper tier portions of CRAs or not. The rule prohibits road construction in upper tier acres for the development of a future water supply structures but allows for development using a LCZ. In addition, areas with high potential for future water development projects were excluded from the areas designated as upper tier, reducing the potential limitations on future water supply projects.

The rule provides for roads needed pursuant to reserved or outstanding rights, or as provided for by statute or treaty. “Reserved or outstanding rights” is a legal term of art that deals with a class of real property rights conveyed through sale or exchange. “Reserved rights” are property interests held back when land is conveyed between parties, such as split estate surface/subsurface conveyances. “Outstanding rights” are third party rights in real property retained when the property is transferred or acquired. The “reserved or outstanding right” exception is intended to apply only when the agency lacks the authority or discretion to prohibit roads because the roads were reserved or outstanding prior to federal acquisition of the property. This reserved and outstanding exception would not provide the legal basis to access State created water rights as the State grant of a water right is not a reserved or outstanding right. Instead, access to State water rights on federal lands would occur in accordance with federal statutes, such as the Federal Land Policy and Management Act.

The rule provides for an exception for road construction to accommodate public health and safety concerns, which would include necessary reconstruction or maintenance of water conveyance structures in cases of emergency situations that threaten life or property. In addition, the rule allows motorized and non-motorized access into CRAs and does not affect reasonable exercise of reserved, outstanding, statutory, or treaty rights for access, occupancy and use of NFS lands within CRAs when the Agency lacks legal discretion to forbid such activities, for example exploration and mining of locatable minerals under the 1872 Mining Law.

Comments were received indicating the need for an exception in all roadless acres to allow for post-fire recovery efforts. Burned area emergency rehabilitation activities to protect roads, private property or municipal water supply systems would be an appropriate use under the public health and safety exception. An example of this could be the need for a temporary road to construct sediment traps and check dams to control debris flows that could block culverts or jam bridges or damage reservoir capacity after a fire.

One comment pointed out an inconsistency in the construct of the regulatory language between paragraph (b)(2) and paragraph (c)(2) of the proposed rule (paragraph (b)(2) is now (b)(3) in the final rule), expressing concern that it could be construed as an attempt to preclude roads for activities under the 1872 Mining Law in upper tier acres. In response, the final rule adds language to current paragraph (b)(3) to make it consistent with the wording of paragraph (c)(2) and reflects that the determinations to be made by the responsible official under both paragraphs are subject to the legal rights pursuant to reserved or outstanding rights, or as provided for by statute or treaty. The final rule also modified the language in paragraph (c)(2) to clarify its reference to the legal rights provided for in paragraph (c)(1) and that determinations are made by the

responsible official. These changes underscore that the right of reasonable access to locatable mineral exploration and development is not affected by the final rule or any of the alternatives analyzed in the FEIS, regardless of roadless designation as upper tier acres or non-upper tier acres.

Comments on line officer authority for use of road construction exceptions.
Some respondents indicated that there should be limitations to the discretionary authority granted to line officers (responsible officials) especially concerning road construction and reconstruction in upper tier acres.

Response:
The final rule limits the responsible official discretion by providing a narrow range of activities that are permitted in CRAs and several determinations must be made for road construction or reconstruction to be allowed. In addition, the Forest Service has very limited discretion for the two exceptions for road construction or reconstruction in upper tier. The exception for reserved or outstanding rights or as provided by statute or treaty means the Forest Service has limited authority to deny access. Examples of this include Revised Statute 2477 rights; access to inholdings under the Alaska National Interest Lands Conservation Act (ANILCA); access to locatable minerals under the General Mining Law of 1872; response actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Federal Aid Highway project authorized pursuant to Title 23 of the United States Code; or Federal Railroad project authorized pursuant to Title 49 of the United States Code.

The other exception for road construction or reconstruction in upper tier is for roads needed to protect public health and safety in cases of an imminent threat of flood, fire or other catastrophic event that without intervention would cause the loss of life or property. This exception is anticipated to be applied infrequently because threats to life or property are relatively infrequent. Limiting the discretion of a responsible official for these types of cases could result in greater loss of life or property.

Many of the exceptions would require a Regional Forester's determination on whether a proposed activity is consistent with the final rule. Activities allowed under the final rule which were not allowed under the 2001 Rule and the use of LCZs would require a Regional Forester determination. This higher level of review will provide for greater consistency on the implementation of the rule.

Comment on constructing roads for coal mining.
Some respondents specifically commented that there should be no exception for road construction for coal mining.

Response.
The final rule includes an exception to the prohibitions on road construction associated with coal mining only in the North Fork coal mining area. Coal mining is a valuable economic consideration to the State of Colorado and to many communities around the North Fork coal mining area. Roads are necessary for exploration and other coal related activities. Some of the areas within the North Fork coal mining area are under lease and others are not. Coal-related roads are used only by the coal operator and agency personnel, and are not open to the general public.

Experience in the West Elk IRA on the Grand Mesa, Uncompahgre, Gunnison National Forests shows that decommissioning roads by obliteration, along with land reclamation, effectively restores these underground mined areas.

Comment on road decommissioning.
Some respondents requested that the rule provide more direction for road decommissioning.

Response.
The final rule provides the broad programmatic requirement of road decommissioning in paragraph (d)(2). Providing specific requirements of road decommissioning in a programmatic regulation is problematic due to the high variability of ground conditions and road situations that could be encountered across 4.2 million acres. Defining road decommissioning restrictions at the programmatic level limits the flexibility needed to address specific and possibly unique purposes for temporary roads in a variety of landscapes. This type of direction is generally best provided as Forest Service handbook direction, guidance, or in a site-specific decision in which each unique situation can be assessed.

The FEIS includes Appendix F, page F-5 specifically, which outlines temporary road decommissioning requirements based on Forest Service manual and handbook. This section of the appendix describes direction for road decommissioning that would apply to temporary roads in CRAs.

§ 294.44 Prohibition on linear construction zones.
This section was reorganized into an upper tier section, paragraph (b), and non-upper tier section, paragraph (c), to accommodate limiting the use of linear construction zones in upper tier. Under the final rule, LCZs are limited in upper tier to just two circumstances: (1) Reserved or outstanding rights, or as provided by statute or treaty; and (2) for water conveyance structures pursuant to a pre-existing water court decree.

Paragraph (b) was changed from “the Regional Forester may authorize a linear construction zone” to “the Regional Forester determines a linear construction zone is needed”. This change was made to parallel other Regional Forester determination language in the final rule and to clarify that this determination is not a formal decision under the National Environmental Policy Act (NEPA).

The phrase “technically feasible” has been changed to “feasible” in paragraph (d)(1). This change was made to clarify that the determination of what is feasible includes more factors than just technical issues.

The phrase “extent of the occupied” was added to the provision regarding whether LCZs will diminish, over the long-term, conditions in the water influence zone and in occupied native cutthroat trout habitat. This word was added for the same reasons described in the parallel language for road construction and reconstruction in § 294.43.

Provisions were added including LCZs would be no wider than its intended use; reclamation of LCZs will not diminish roadless area characteristics; and WCPs will be applied for all activities occurring in occupied cutthroat trout habitat. The WCP provision parallels the road provision and has been added for the same reasons, to minimize short-term impact with the long-term objective of restoring or improving native cutthroat trout habitat.

The phrase “while conserving roadless area characteristics over the long-term” was added to paragraph (e) to clarify that decommissioning of LCZs needs to be conducted in a manner that minimizes impacts to roadless area characteristics over the long-term.

Comment on linear construction zones.
Some respondents indicated that LCZs should be prohibited in upper tier and others indicated that no LCZs should be allowed under the rule. Others offered various suggested limitations or exceptions for the use of LCZs for a variety of management activities. Some respondents were concerned about the rule's affect to maintenance, development and expansion of reservoirs and oil and gas development.

Response.
Linear construction zones were not prohibited under the 2001 Roadless Rule. One of the State-specific concerns is to restrict the use of LCZs, while permitting access to current and future electrical power lines and meeting the other State-specific

concerns. Linear construction zones are prohibited under the Colorado Roadless Rule with specific exceptions if a responsible official determines that the LCZ meets certain conditions.

The rule accommodates the development and expansion of reservoirs by the use of road construction (in non-upper tier acreage) or LCZs (in all CRA acreage) where the water right has been filed with the State prior to July 3, 2012. Future known reservoir locations are not within upper tier acreage, acknowledging the fact that for the most part, a road will not need to be constructed in upper tier for development of a reservoir.

The rule provides that the Regional Forester may authorize an LCZ for construction, reconstruction, and maintenance of existing or future authorized electrical power and communication lines within non-upper tier acres if there is no opportunity for the project to be implemented outside the CRA without causing substantially greater environmental damage. In doing this the Forest Service and the State of Colorado seek a balance between protecting roadless area characteristics and accommodating State-specific concerns. LCZs for electric power and communication lines are not allowed within upper tier acres.

The rule prohibits oil and gas pipelines within CRAs, except on oil and gas leases within CRAs where surface use is allowed and for leases outside of CRAs that need to connect to infrastructure within a CRA. Surface use would not be allowed on any new leases issued in upper tier acres, so pipelines would not be allowed. Pipelines would be allowed for new leases in non-upper tier acres where the forest plan allows surface occupancy. However, it is anticipated that there would be few new leases actually issued in non-upper tier areas as they would have to be developed by directional drilling from locations outside of CRAs. The limited applicability of the LCZ exception in the rule is a reasonable approach to addressing the issues of preventing the loss of roadless area characteristics and preventing the loss of opportunity to feasibly transport oil and gas resources using pipelines. The LCZ exceptions are allowed because water development is critical to Colorado and many other western states; energy sources need to be connected to the electrical grid, and oil and gas developments need pipelines for product removal. Within upper tier acres, LCZs are only allowed for oil and gas leases existing as of July 3, 2012 that allow surface occupancy.

Some commenters indicated a desire to utilize existing disturbed areas as much as possible for future linear facilities. Nothing in the final rule would prohibit an LCZ being routed through a previously used LCZ. In addition, the rule encourages utilization of previously disturbed areas as provided in section 294.44, paragraph (e), which requires LCZs to minimize ground disturbance, including the placement within existing right-of-ways where feasible. Also, section 294.46, paragraph (d)(6) encourages co-location of oil and gas linear facilities, consistent with health and safety standards, within areas of existing areas of disturbance. However, industry standards for separation of utilities or other factors could reduce the ability to do so.

Comments on Regional Forester determinations for LCZ:
Some respondents indicated that the Regional Forester should not have determinations for LCZ decisions.

Response.
The final rule includes Regional Forester determination for LCZs to ensure a level of consistency. This is of particular importance with LCZs because of the potential overlap of certain aspects of an LCZ and a temporary road. Both are utilized by motorized vehicles to move from one point to another on a temporary basis. However, key differences exist that separate the two, including location selection, design, and use. Generally, the location of a temporary road is defined largely by the desired end points with substantial discretion of road location in between the end points. On the other hand, the location of an LCZ on the landscape is often constrained by the linear facility requirements, which limits the discretion of where an LCZ can be put. For example, it is difficult and often impractical to design a pipeline with a sharp turn. However a temporary road can be designed to go around obstacles and areas of concerns more readily.

Both LCZs and temporary roads need to consider environmental/resource conditions and safety issues during design. However, traffic requirements, level of service, traffic management, user efficiency, stopping distance, and surfacing are rarely considered in the design of an LCZ. Rather construction right-of-way width is a main consideration for LCZ design, which includes the determination of how much surface disturbance is needed to install or maintain the linear facility. Often an LCZ is created at the same time it is being used. For example, a pipeline being constructed across flat ground, an LCZ can be “developed” as the trench is being dug. In this example, no construction is needed to “use” the LCZ. In contrast, temporary roads are constructed prior to use. Gradients of LCZs, especially for power lines, are often much steeper than would typically be found on a temporary road.

Due to the relatively new concept of LCZs and the potential for confusion with temporary roads, it was deemed important to centralize the determination for use of LCZs in CRAs with the Regional Forester. This would also facilitate identification of any additional guidance needed to ensure resource protection as well as appropriate use of LCZs. Regional Forester determination is a review process designed to be separate from the NEPA process. The Regional Forester is required to review the project but will not be the “responsible official” in the NEPA context.

Comment on linear construction zone decommissioning.
Some respondents were concerned that the LCZ decommissioning direction was not addressing roadless area characteristics over the long-term.

Response.
The language “while conserving roadless area characteristics over the long-term” was added to (c) to address the need to reclaim the affected landscape but also retain and or improve the roadless area characteristics.

§ 294.45 Environmental documentation.
The sentence in paragraph (a) that states “proposals that substantially alter the undeveloped character of a Colorado Roadless Area require an EIS” was changed to “proposed actions that would significantly alter the undeveloped character of a Colorado Roadless Area would require an EIS”. This change was made so the final rule is consistent with the Agency's environmental policies for EISs as described in FSH 1909.15.21.

The words “subject to this rule that would” were added in paragraph (b) to read: “* * *all proposed projects and planning activities subject to this rule that would be implemented on lands within CRAs* * *” This change was made because the intent of offering the cooperating agency status to the State is to ensure consistent implementation of the final rule. Many projects, such as trail construction projects or reissuance of a grazing permit, are not subject to the final rule and therefore, may not be appropriate for State involvement.

Comments on “substantially alter” definition:
Some respondents requested that the definition of “substantially alter” should be clarified in the context of certain activities.

Response.
There no longer is a need to define “substantially alter” in the final rule because the term has been replaced with “significantly alter.” This

change was made so paragraph (a) is consistent with agency policy and regulations on when an EIS is required. The term “significantly” is defined in 40 CFR 1508.27.

§ 294.46 Other activities.
A new paragraph was inserted, paragraph (a), to address the concern regarding the modification of a water right. This change was needed to clarify that a water right with a pre-existing water court decree could be modified and still be accommodated by the exceptions in the final rule for water conveyance structures despite having a new filing date.

Sentences were added to paragraph (b) to clarify that the intent of the rule is to maintain the status quo in terms of existing leases, including surface development rights, and limitations on surface developments. The final rule does not validate nor invalidate any existing leases.

A new paragraph was inserted, paragraph (c), to require a no surface occupancy stipulation for oil and gas leases issued within upper tier after the promulgation date of the final rule. This provision was added to provide greater protection for upper tier acres.

In paragraph (d) the phrase “and consistent with lease rights” was added to clarify that the conditions (d)(1) to (d)(8) must be consistent with the existing lease rights to be applied to the surface use plan of operation.

In paragraph (d)(3) the text “to the extent practical” was removed, as it was determined to be not necessary. Also, “topography” was removed and “surface conditions” was replaced with “surface and or operational conditions” for clarification.

In paragraphs (d)(1), (d)(4), (d)(5) and (d)(6) the qualifying language “to the extent possible” and “to the extent feasible” were removed as not necessary.

Paragraph (d)(8) was changed from “utilize the best available technology” to “consider the best available technology”. This change was made because the Forest Service does not have the authority to mandate the use of best available technology, which is a Clean Air Act term used in the context of limiting pollutant discharges.

Comments on water conveyance structures.
Comments were received requesting that the rule allow for the construction and maintenance of existing and future water conveyance structures in response to future and pre-existing water rights.

Response.
The rule does not confer any right to existing or future use of water or occupancy of NFS lands within the State of Colorado. Such rights must be acquired in accordance with applicable State and Federal laws. The final rule exempts activities associated with conditional and absolute water rights decreed by the Colorado Water Courts prior to promulgation of the final rule. In addition, the final rule accommodates modification of water rights with a pre-existing water court decree.

Comments requesting no surface occupancy in upper tier:
Some respondents requested the rule require no surface occupancy in upper tier acres.

Response.
Based on public comments that were received and additional analysis, prohibiting surface occupancy in upper tier acres was added to the preferred alternative in the FEIS and is part of the final rule.

Comments on oil and gas.
Many responses were received concerning various aspects of oil and gas development and the rule. Some respondents requested that roadless areas that have high potential for oil and gas development be excluded from roadless area protection or that exceptions for oil and gas be provided to allow for development. Other respondents felt the rule should prohibit oil and gas leasing, or exceptions for roads for leasing, within CRAs. Still other respondents requested that the rule prohibit road construction specifically on leases issued after the 2001 Roadless Rule was promulgated.

Response.
Roadless inventory procedures follow Forest Service Handbook 1909.12, Land Management Handbook procedures. Whether or not an area is identified as having high mineral potential is not an inventory criterion and a high potential for mineral occurrence does not always equate to a high potential for mineral development. The purpose of the rule was to provide for the management of roadless areas, not to prohibit oil and gas leasing. Under the rule, existing legal oil and gas leases as of the date of the final rule can continue to operate under their lease stipulations. The 2001 Roadless Rule prohibited road construction to access mineral leases issued after the promulgation of the rule (January 12, 2001). Since 2001, the 2001 Roadless Rule has been subject to legal challenges, and leases have been issued in areas now identified as Colorado Roadless Areas. The Colorado Roadless Rule does not affect the terms or validity of leases existing prior to the promulgation date of the final rule. This rule preserves any surface development rights and limitations on surface development rights existing at the time of adoption of this rule on all oil and gas leases.

However, in response to public comment, the rule has been modified to include stipulations for no-surface occupancy for new oil and gas leases (leases issued after the promulgation date of the final rule) within the upper tier. Under the rule, leasing could still occur, but occupancy of the surface with roads, wellpads, or other infrastructure within the upper tier is prohibited. In non-upper tier areas, surface occupancy but not road construction would still be allowed for new oil and gas leases.

The final rule does not distinguish whether existing oil and gas leases were issued before or after the original promulgation date of the 2001 Roadless Rule. Forest Service actions concerning leases issued within roadless areas in Colorado since promulgation of the 2001 Roadless Rule were done in compliance with all legal requirements and forest plans/leasing decisions in effect at the time consent was provided to the BLM. Once issued by the BLM, leases grant the exclusive right to drill for, extract, remove, and dispose of all the oil and gas from the lease, subject to terms and stipulations made as part of the lease. For purposes of the FEIS, all existing oil and gas leases within roadless areas, including post-2001 leases, are considered to be “existing authorizations”. None of the alternatives in the FEIS restrict or prohibit activities associated with existing authorizations, including the construction of temporary roads and pipelines reasonably necessary to exercise lease rights.

All oil and gas leases issued by the BLM are considered valid regardless of whether they were issued before or after the 2001 Roadless Rule. If an existing lease is found at a later date to be invalid through a court of law, then any rights associated with that particular lease, including surface occupancy rights, would not be provided for by the final rule.

§ 294.47 Modifications and administrative corrections.
No substantive comments specifically related to modifications and administrative corrections of the rule were received. However, the Forest Service recognized a need to be able to correct boundaries for upper tier designations. Therefore, paragraph (b) for administrative correction to boundaries was modified to include the ability to correct upper tier boundaries based on clerical errors or improvements in mapping technology.

§ 294.48 Scope and applicability.
No changes were made to this section. No substantive comments were specifically related to scope and applicability.

§ 294.49 List of designated Colorado Roadless Areas.
No substantive comments were received specifically related to the list of designated CRAs. However, a column was added to the list of CRAs to indicate which CRA includes upper tier acres. This change was made to clarify locations of upper tier.

Comments received related to the rule but not to a particular section.
Many comments were received related to the rule but not specific to a particular provision or section of the rule. For example, the designation of upper tier acres and the North Fork coal mining area is not specifically addressed in the provisions of the rule but certainly an important outcome of the final rule. The following sections summarize those comments.

Based on public comments, the amount of upper tier acres designated was increased to about 1,219,200 acres. This change was needed to balance the conservation of roadless area characteristics with activities to provide for State-specific concerns. In addition, the North Fork coal mining area was reduced to 19,100 acres based on additional consideration of potential mineable coal.

Comments on the authority of the Secretary to make rules.
There were concerns expressed that there is no congressionally approved authority for designation of upper tier acres and that a future Secretary could change the prohibitions and exceptions in the current rule.

Response.
The Constitution provides the fundamental basis for control, acquisition, disposition, use and management of all federally owned lands, including NFS lands. Article IV, Section 3, paragraph 2 of the Constitution provides: The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States. Congress has authorized the Secretary of Agriculture to manage NFS lands under conditions described in various acts, including the Organic Administration Act of 1897 and the Multiple-Use Sustained Yield Act of 1960. The Organic Administration Act of 1897 provides the Secretary of Agriculture with the authority to make “rules and regulations” that will provide protection from fire and depredation, regulate occupancy and use, and preserve the forest from destruction. The Secretary of Agriculture has the authority to make rules and regulations such as the Colorado Roadless Rule and future Secretaries will also have the authority to make, or change, such rules.

Comments on multiple uses.
Some respondents requested that the rule address recreation and management of recreational areas and areas of multiple uses.

Response.
The Agency's mission is to manage multiple uses across NFS lands, including developed and dispersed recreation opportunities. The rule restricts only tree cutting, sale, and removal; road construction and reconstruction; and LCZs (with some exceptions) in CRAs. None of the alternatives affect access or use of existing roads and trails, including motorized travel on roads and trails, nor do they regulate recreational activities such as hunting, fishing, hiking, camping, mountain biking, summer/winter motorized recreation and skiing.

Comments on protection of resources:
Comments were received that the Forest Service should increase protection on a variety of resources including, but not limited to: Municipal water supplies, cold water resources, fisheries, big game habitat, wildlife viability, etc.

Response.
One of the primary purposes of the Colorado Roadless Rule is the conservation of roadless area characteristics, which includes sources of public drinking water and diversity of plants and animals, as well as other resources. The provisions of the final rule provide for an increased level of conservation of roadless area characteristics while balancing State-specific concerns, when compared to Alternatives 1 or 3.

Comments to modify the rule to expand, reduce, or eliminate upper tier designations.
Many comments were received regarding upper tier designation in the rule. Respondents either favor the designation of upper tier acres or oppose the designation of any upper tier areas in the rule. Some respondents indicated that there is a need for more upper tier acres to increase protection for fish and wildlife habitats and Colorado's recreational resources. Some comments suggested substantially increasing the number of acres within the upper tier, while others consider the upper tier “de facto wilderness” and therefore inappropriate. Some comments suggested provisions that would allow for expansion of the upper tier in the future. Respondents in favor of the upper tier often had specific suggestions on CRAs to be included in upper tier. Some respondents suggested removing all upper tier acres from the Colorado Roadless Rule.

Response.
Upper tier acres are a subset of the CRAs which have limited exceptions to provide a high-level of conservation. Upper tier acres in the rule represent areas with the highest-quality roadless area characteristics where there are no known conflicts, or limited conflicts, such as existing oil and gas leases, existing or future coal leases, known water conveyance structures or the high likelihood of future development needs for water development. A common theme heard from the public was to allow tree cutting and minimal road construction to reduce the risk of a high severity wildfire threatening Colorado's at-risk communities within upper tier acres. Therefore, the majority of the upper tier acres were removed from CPZs in the final rule. The designation of upper tier is distributed among all of the forests in the final rule.

The final rule increases the amount of upper tier to about 1,219,200 acres (29% of CRAs) for the final rule, which is about 657,000 acres more than what was proposed action in the RDEIS. The Department, Forest Service and State of Colorado agreed that an increase in the amount of upper tier acres provides a better balance of protection and uses. Substantially more upper tier acres than have been designated for the final rule could hinder the Forest Service's ability to provide for State-specific concerns. Substantially less upper tier acres than have been proposed in the RDEIS would not offset the greater flexibility the final rule provides for the State-specific concerns.

Upper tier acres are not a designation of
de facto
wilderness. Upper tier only restricts tree cutting, road construction and use of LCZs. Upper tier allows for the use of motorized and mechanized equipment, while official wilderness does not. Upper tier allows for motorized recreation, including future development of off-highway vehicle trails; official wilderness prohibits motorized recreation. Upper tier prohibitions can be modified through rulemaking, while wilderness changes require an act of Congress.

Comment.
The Forest Service should reconsider upper-tier restrictions, including their overlap with CPZs, to ensure that options are available for fuels and forest health treatments.

Response.
In response to public comments, the final rule excludes the majority of upper tier acres from the CPZ. Not all CPZs were excluded from upper tier designation due to topography, forest plan desired conditions, and manageability of an area.

Comments on Currant Creek CRA and the North Fork coal mining area.
Many respondents had concerns regarding Currant Creek CRA and the North Fork coal mining area. Some respondents felt

that the rule should exclude Currant Creek from the North Fork coal mining area, while others felt the rule should include Currant Creek in the North Fork coal mining area. Some respondents felt the rule should not reduce the size of the North Fork coal mining area. Some respondents felt the rule should revise road construction provisions related to the North Fork coal mining area.

Response.
After consideration of public input and additional analyses, the final rule excludes the Currant Creek CRA from the North Fork coal mining area. Therefore, no roads will be constructed in the Currant Creek CRA related to coal mining activities. The residual North Fork coal mining area includes 19,100 acres where temporary roads can be constructed for coal related activities. The Forest Service consulted with BLM and State agencies, and considered information on the presence and mineability of coal resources in Currant Creek CRA and adjacent areas. The Forest Service also weighed public input and economic factors, information on wildlife resources, and the best available geologic information available from the United States Geological Survey (USGS), Colorado Geological Survey, and BLM when making determinations on the boundaries of the North Fork coal mining area.

Currant Creek CRA was not added to the North Fork coal mining area due to the presence of high priority habitat as identified by the Colorado Division of Parks and Wildlife, the juxtaposition of these habitats to adjacent important habitat, and the need to maintain contiguous areas insulated from roads and fragmentation. In addition, Currant Creek CRA was not added because it is a relatively unique roadless area due to its low elevation and the potential that road development for coal mining activities could displace the two elk herds currently utilizing this area increasing wildlife-human conflicts.

Comments regarding effect to mining interests.
Some respondents suggested modifying the roadless area boundaries to exclude the Henderson Mine and other mining interests, because it may prevent their ability to develop future potential sites and respond in the case of emergencies. Additionally, some respondents are concerned that the proposed rule will prohibit mineral extraction, such as quarries to construct roads and highways.

Response.
The rule does not prohibit mineral extraction or the development of mineral material sites. Any person prospecting, locating, and developing mineral resources on NFS lands under the 1872 mining law has a statutory right of reasonable access for those purposes. Roads that are reasonably necessary for an activity conducted under the 1872 mining law are provided for by statute, and therefore exempt from the road construction and reconstruction prohibitions of the rule. With the right of access preserved under the rule, it was not necessary to exclude any unpatented mining claims from designated roadless areas. Road construction and reconstruction are allowed under the rule for emergency situations that threaten human life and property.

Comments regarding modification of the West Needles CRA boundary near Durango Mountain Resort.
A commenter requested that the West Needles CRA boundary be modified to exclude activities permitted to the Durango Mountain Resort ski area.

Response.
The Forest Service reviewed the activities authorized under the current Durango Mountain Resort ski area permit against the boundary of the West Needles CRA. Authorized activities on the east side of Highway 550 include a proposed sleigh/accessible trail, a nordic ski trail system, and a trailhead. The trailhead and associated parking are outside of the West Needles CRA. Portions of the proposed sleigh/accessible trail and nordic ski trail system are within the West Needles CRA. Construction and maintenance of the proposed sleigh/accessible trail and nordic trail system as authorized by the September 2008 Record of Decision for the Durango Mountain Resorts 2008 Improvement Plan are not prohibited under the Colorado Roadless Rule. Future tree cutting needed to construct or maintain these trails could occur under the exception for tree cutting incidental to the implementation of a management activity not otherwise prohibited. For these reasons, the Forest Service did not see the need to change the boundary of the West Needles CRA.

Regulatory Certifications

Regulatory Planning and Review

The final rule was reviewed under USDA procedures, E.O. 12866 issued September 30, 1993 as amended by E.O. 13497 on Regulatory Planning and Review, and the major rule provisions of the Small Business Regulatory Enforcement and Fairness Act (5 U.S.C. 800). Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. These executive orders require that agencies conduct a regulatory analysis for economically significant regulatory actions. Economically significant regulatory actions are those that have an annual effect on the economy of $100 million or more or adversely affect the economy or economic sectors. Total annual output associated with oil, gas, and coal production in the affected areas is projected to be approximately $760 million under the final rule, compared to $694 million under baseline conditions, implying the annual incremental monetized impact of the final rule is an increase of $65 million per year for total oil, gas, and coal output. The monetized economic impacts for the final rule are therefore estimated to be less than $100 million per year. However, this rule has been designated a significant regulatory action although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget. This final rule is not expected to interfere with an action taken or planned by another agency, or to raise new legal or policy issues. This action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs.

The benefits, costs, and distributional effects of four alternatives are analyzed over a 15-year time period. The four alternatives evaluated are referred to as follows: Alternative 1—the 2001 Roadless Rule; Alternative 2—the final Colorado Roadless Rule (final rule); Alternative 3—provisions of Forest Plans; and Alternative 4—a modified version of Alternative 2 with additional upper tier acreage. The baseline condition for regulatory impact analysis is the 2001 Roadless Rule (Alternative 1). The final rule is programmatic in nature and intended to guide future development of proposed actions in CRAs. The final rule is intended to provide greater management flexibility under certain circumstances to address unique and local land management challenges, while continuing to conserve roadless area characteristics. Increased management flexibility is primarily needed to reduce hazardous fuels around at-risk communities, to allow access to coal reserves in the North Fork coal mining area, and to

allow access to future water conveyances.

The final rule does not authorize the implementation of any ground-disturbing activities, but rather it describes circumstances under which several activities may be allowed or restricted in CRAs. Before authorizing land use activities in roadless areas, the Forest Service must complete a more detailed and site-specific environmental analysis pursuant to NEPA and its implementing regulations.

Because the final 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 final 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 final rule does not provide direction on where and when off-highway vehicle 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, 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 at-risk communities from wildfire) overlap CRAs 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 Tables 2 and 3 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 effects of the final rule can be found in the FEIS. Effects on opportunities for small entities under the final rule are discussed in the context of Executive Order 13272 regarding proper consideration of small entities and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et.seq.).

The results of the regulatory impact assessment for the final rule are summarized in the following tables. Table 2 provides information related to roadless area acreage, road miles, and tree cutting. Table 3 summarizes the potential benefits (i.e., protection of roadless area characteristics and values) and costs (i.e., local resource challenges, agency costs) of Alternatives 1, 2, 3 and 4. Table 4 summarizes distributional effects and economic impacts of the proposed rule and alternatives.

Table 2—Framework for Analysis: Comparison of Roadless Area Acreage, Road Miles, and Tree Cutting

Alternative 1—
2001 Roadless Rule
(baseline condition)

Alternative 2—
Final Rule

Alternative 3—
forest plans

Alternative 4—

proposed rule with public identified upper tier acres
1

Roadless Area Acreage
2

IRAs = 4,243,600 acres (4.24 million acres)
CRAs = 4,186,000 acres (4.19 million acres)
IRAs = 4,243,600 acres
CRAs = 4,186,000 acres (4.19 million acres).

Upper Tier CRAs = 1,219,200 acres

Upper Tier CRAs = 2,614,200 acres.

Roadless Acres in Upper Tier
Not applicable
1,219,200 acres
Not applicable
2,614,200 acres.

Total Existing Authorized Road Miles in Roadless Areas
3

1,235 miles in IRAs
0 miles in CRAs
1,235 miles
0 miles in CRAs.

Road Construction and Reconstruction Projected in the Analysis Area
13.8 miles/year (11 miles in IRAs)

19.7 miles/year (16 in CRAs)
5.9 miles/year more than 2001 Roadless Rule

25.8 miles/year
12.0 miles/year more than 2001 Roadless Rule

17.9 miles/year (14 in CRAs).
4.1 miles/year more than 2001 Roadless Rule.

Tree cutting Projected in the Analysis Area
2,670 acres/year (1,520 acres within IRAs)
7,320 acres/year (5,970 acres within CRAs, majority within CPZs)
17,380 acres/year
3,140 acres/year (1,790 acres within CRAs).

4,650 acres/year more than 2001 Roadless Rule
14,710 acres/year more than 2001 Roadless Rule
470 acres/year more than 2001 Roadless Rule.

1
Alternative 4 is the same as Alternative 2 with the exception that more roadless areas are assigned to the upper tier restrictions.

2
The total analysis area is approximately 4.65 million acres and is the same across all four alternatives.

3
Approximately 117 miles of roads are projected to be decommissioned in IRAs and 0 miles decommissioned in CRAs.

Table 3—Comparison of the Final Rule and Alternative 4 With Baseline Conditions

Issue or affected resource

Alternative 1—
2001 Roadless Rule
(baseline condition)

Alternative 2—
Final rule

Alternative 3—
Forest plans

Alternative 4—
proposed rule with public identified upper tier acres

Local Challenges and Resources: Roadless Area Management

Fire and Fuels (Hazardous Fuel Reductions)

Tree cutting projected for 890 acres per year in the analysis area to reduce hazardous fuels (30 acres of which are within IRAs substantially altered acres); this amounts to 1% of average annual fuel treatments on all NFS lands in Colorado.
Least flexibility to conduct hazardous fuel reduction and reduce fire hazard around at-risk communities and municipal water supply systems.

Tree cutting projected for 5,510 acres per year in the analysis area to reduce fuels (4,900 of which are within CRAs, mostly with the CPZ); this amounts to 9% of annual fuel treatments on all NFS lands in CO and is 4,620 acres more than the 2001 rule and 7,869 acres less than forest plans.
More flexibility than the 2001 rule (and Alternative 4) to conduct hazardous fuel reduction and reduce fire risk to communities and municipal water supply systems. Less flexibility than forest plans.
Limited amounts of the CRAs within either the 0.5 or 1.5 mile CPZs are in the upper tier acres.

Tree cutting projected for 13,350 acres per year in the analysis area to reduce fuels; this amounts to 21% of annual fuel treatments on all NFS lands in CO.
Greatest flexibility to conduct hazardous fuel reduction and reduce fire risk to communities and municipal water supply systems.
Options available for fuel reduction include prescribed fire, mechanical treatment, and road construction as needed to facilitate treatment.

Tree cutting projected for 2,000 acres per year in the analysis area to reduce fuels (1,390 of which are within CRAs, mostly within the CPZ); this amounts to 3% of annual fuel treatments on all NFS lands in CO and is 110 acres more than the 2001 rule and 11,350 less than forest plans.
Within the CRAs that are non-upper tier acres, the flexibility to conduct hazardous fuel reduction and reduce fire risk to communities and municipal water supply systems is identical to the final rule.
Greater amount of upper tier acres with tree cutting prohibited results in least number of acres for tree cutting for fuels reduction.

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.

Forest Health including reduced risk from Insect and Disease Outbreaks
Forest health treatments are limited to some degree due to the characteristics and locations of roadless areas, as well as economic viability of treatments, under all alternatives. Most or large portions of roadless areas will remain unmanaged (i.e., with no treatments) under the alternatives and baseline conditions. Roadless areas that remain unmanaged will likely continue to depart from desired conditions. Declines in forest health would result in some landscapes being less resilient to large-scale insect and disease outbreaks.

Fewest opportunities to improve forest health.
Tree cutting for treatment purposes is projected for 2,670 acres per year.

Greater opportunity to improve forest health compared to the 2001 rule and Alternative 4 but lower than forest plans.
Tree cutting for treatment purposes projected for 7,320 acres per year (4,650 acres more than the 2001 rule and 10,060 acres less than forest plans).
Increased likelihood of achieving management objectives in CPZs but similar to Alternative 1 outside of CPZs.

Greatest opportunity and flexibility to improve forest health.
Tree cutting for treatment purposes projected for 17,380 acres per year.
Higher likelihood of achieving management objectives.

Similar effects compared to the final rule but slight decrease in opportunities to improve forest health due to restrictions on tree-cutting in upper tier roadless areas.
Tree-cutting for treatment purposes projected for 3,140 acres per year (470 acres more than the 2001 rule and 14,240 less than forest plans).
Increased likelihood of achieving management objectives in CPZs but similar to Alternative 1 outside of CPZs.

Timber
Reduction in allowable sale quantity (ASQ) estimates, may occur. However, foreseeable timber production (volume of timber sold) is well below the ASQ and is expected to remain so under the alternatives and baseline conditions. Therefore, timber supplies outside of roadless areas are available to substitute for decreases in timber availability within roadless. Timber output is expected to vary only by location (i.e., proportion of cutting occurring within versus outside of roadless areas). Tree cutting (sale or removal) in the roadless a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-15958. Public record. Not legal advice.