# Special Areas; Roadless Area Conservation; Applicability to the National Forests in Idaho > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-24285 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** October 16, 2008 - **Citation:** 73 FR 61456 ## Text DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 294 RIN 0596-AC62 Special Areas; Roadless Area Conservation; Applicability to the National Forests in Idaho 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 establishing management direction for designated roadless areas in the State of Idaho. The final rule designates 250 Idaho Roadless Areas (IRAs) and establishes five management themes that provide prohibitions with exceptions or conditioned permissions governing road construction, timber cutting, and discretionary mineral development. The final rule takes a balanced approach recognizing both local and national interests for the management of these lands. The Department and Forest Service are committed to the important challenge of protecting roadless areas and their important characteristics. The final rule achieves this through five land classifications that assign various permissions and prohibitions regarding road building, timber cutting, and discretionary mineral activities. The final rule also allows the Forest Service to continue to be a good neighbor and reduce the risk of wildland fires to at-risk communities and municipal water supply systems. The rule does not authorize the building of a single road or the cutting of a single tree; instead it establishes permissions and prohibitions that will govern what types of activities may occur in IRAs. Any decision to build a road, allow mineral activities, harvest a tree, or conduct any other activity permissible under this final rule will require appropriate site-specific analysis under the National Environmental Policy Act (NEPA) and other applicable laws. Projects will also be consistent with the applicable land management plan (LMP) components. This final rule supersedes the 2001 Roadless Area Conservation Rule (2001 roadless rule) for National Forest System (NFS) lands in the State of Idaho. DATES: Effective Date: This rule is effective October 16, 2008. FOR FURTHER INFORMATION CONTACT: Idaho Roadless Rule Team Leader Brad Gilbert at (208) 765-7438. 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 document serves as both notice of final rule and record of decision. Decision For the reasons set out below, the Department hereby promulgates a regulation establishing IRAs as described in Alternative 4 of the “Roadless Area Conservation National Forest System Lands in Idaho Final Environmental Impact Statement,” USDA Forest Service, 2008, and the supporting record. This decision is not subject to Forest Service appeal regulations. Outline The following section outlines the contents of the preamble. Introduction and Background Roadless Area Inventories in Idaho Purpose and Need for the Idaho Roadless Rule Public Involvement on the Proposed Rule • How Was Public Involvement Used in the Rulemaking Process? • How Did the RACNAC Participate in the Rulemaking Process? Alternatives Considered • Alternatives Considered by the Department • The Environmentally Preferred Alternative Comments on the Proposed Rule and Changes Made in Response • General Comments Not Related to Particular Rule Provisions • Summary of Changes and Comments Related to Particular Rule Provisions Regulatory Certifications Introduction and Background On October 5, 2006, Idaho Governor James Risch submitted a petition to the Secretary of Agriculture (Secretary) to establish new management for Idaho's inventoried roadless areas on NFS lands. Idaho's petition divided roadless areas into five broad management themes: Wild Land Recreation (WLR); Special Areas of Historic or Tribal Significance (SAHTS); Primitive; Backcountry/Restoration (BCR); and General Forest, Rangeland, and Grassland (GFRG). The petition was submitted under section 553(e) of the Administrative Procedure Act and Department regulations at 7 Code of Federal Regulations (CFR) 1.28. The Roadless Area Conservation National Advisory Committee (RACNAC) (72 FR 13469) reviewed the Idaho petition on November 29 and 30, 2006, in Washington, DC. The committee issued a unanimous, consensus-based recommendation on December 19, 2006, that the Secretary direct the Forest Service, with the State of Idaho as a cooperating agency, to proceed with rulemaking. The Committee's report provided specific advice and suggested clarifications regarding particular issues. After considering the advisory committee's review and report, the Secretary accepted the petition and directed the Forest Service to initiate rulemaking on December 22, 2006. A notice of intent to prepare an environmental impact statement (EIS) was published in the Federal Register April 10, 2007, (72 FR 17816). A notice of availability for the draft environmental impact statement (DEIS) was published on December 21, 2007, (72 FR 72708). The Forest Service published a proposed rule for conservation of NFS inventoried roadless areas within Idaho on January 7, 2008, (73 FR 1135). The notice of availability for the final environmental impact statement (FEIS) was published on September 5, 2008, (73 FR 51815). Additional information, maps, and other materials concerning the FEIS, IRAs, and roadless areas nationally, can be found at http://roadless.fs.fed.us/ . The Department is committed to conserving and managing inventoried roadless areas. The Department considers the final rule as the most appropriate solution to address the challenges of inventoried roadless area management on NFS lands in the State of Idaho. Collaborating and cooperating with states and other interested parties regarding the long-term strategy for the conservation and management of inventoried roadless areas allows recognition of both national values and local situations. The Department believes that the final Idaho Roadless Rule collaboratively resolves an issue of great importance to the people of Idaho and the nation. The management of large tracts of undeveloped land has been a contentious issue since the founding of the Forest Service in 1905. The Forest Service has engaged in numerous approaches and periodic reviews to address how to best manage these lands. The Idaho Roadless Rule represents a unique effort to address these difficult questions. How can the Agency best conserve open space? How can the Agency protect some of the most magnificent areas in Idaho and the nation? How much active management, including reducing fuel levels through timber harvest, should the Agency consider allowing to reduce the risk of unwanted wildland fire effects on adjacent private and other public lands? The State of Idaho petition included specific information and recommendations for the management of individual inventoried roadless areas in the State. Additionally, the State of Idaho examined roadless areas sharing boundaries or overlapping with all neighboring states and determined coordination with Montana and Utah was necessary to ensure consistency of management themes assigned to these inventoried roadless areas. The unique perspectives and knowledge provided by the State and its citizens was of great assistance throughout this rulemaking. Many of these roadless areas form the backdrop for Idaho communities and have become part of their identity. They are used for hiking, camping, hunting, and motorized recreation on backcountry trails. Local communities are also sensitive to the economic consequences of Federal land management, whether for recreation or other multiple-use purposes. Although this rule does not provide management direction for recreation and access management, its emphasis on retaining the roadless characteristics over the vast majority of IRA acres will address recreation and scenery concerns from both national and local perspectives. Recently, there have been several attempts to resolve the roadless issue nationally and in the State of Idaho. Since the Forest Service Roadless Area Review and Evaluation (RARE II), the Agency has used locally driven forest plans to manage inventoried roadless areas. While these plans accounted for the comments of local communities by considering the characteristics of each individual roadless area, some felt these plans lacked a national perspective and allowed too much modification of roadless characteristics. The 2001 roadless rule sought to answer these questions from a national perspective, but many felt that the rule's approach would cause undue harm to local communities. Some states and communities felt disenfranchised by the process. The State of Idaho indicated that its decision to petition was precipitated by the State's belief that it was not provided an adequate opportunity to participate in the development of the 2001 roadless rule. The State expressed concern that the rule could be interpreted as not allowing adequate protection for communities and municipal water supplies from the threat of unwanted wildland fire effects. Additionally, the State indicated its belief that the 2001 roadless rule could negatively affect some local communities that are dependent on use of resources from NFS lands. On August 12, 2008, the Federal District Court for the District of Wyoming declared that the 2001 Roadless Area Conservation Rule (2001 roadless rule) was promulgated in violation of the National Environmental Policy Act (NEPA) and the Wilderness Act. The court held “the roadless rule must be set aside” and that “[t]herefore, the Court ORDERS that the Roadless Rule, 36 CFR 294.10 to 294.14, be permanently enjoined, for the second time.” Previously, another Federal district court in California had issued an order that reinstated the 2001 roadless rule, including the Tongass-specific amendment, and specified that “federal defendants are enjoined from taking any further action contrary to the [2001] Roadless Rule * * *.” Both these orders have been appealed and the Forest Service has sought relief in both Federal district courts. For purposes of this rulemaking, however, nothing in the pending litigation limits the Secretary from conducting state-specific rulemaking regarding roadless area management or from evaluating the 2001 roadless rule as one alternative in the FEIS. The Department has continued to seek a middle ground to resolve this issue by using forest plans, the locally driven state petition process, and integrating the national perspective provided by RACNAC. While the proposed rule made strides in accomplishing this objective, several respondents and RACNAC expressed concern whether some provisions could be read to allow portions of the BCR areas to be managed in a way that varied from the Governor's stated intent to manage the BCR similar to the way the area would be managed under the 2001 roadless rule while providing for limited stewardship activities. This was not the intent. This final rule refines provisions and represents a compromise that balances the nationally recognized need for conservation of IRAs with being more responsive to local communities and citizens. Specifically, the final rule conserves the undeveloped/unroaded character for the vast majority of the IRAs; allows limited fuel treatment activities to reduce the risk of wildland fire effects to private and public property and municipal water supply systems; and accommodates limited exceptions for some communities highly dependent on the natural resources found on NFS lands. These undeveloped lands will become increasingly important as sources of public drinking water, plant and animal diversity, natural appearing landscapes, and other unique resources as the nation continues to grow in population and faces increasing demands for the various multiple-use resources available from NFS lands. Roadless Area Inventories in Idaho This rulemaking relies on the most recent inventory available for roadless areas within each national forest in the State of Idaho. Land management plans were used, as well as other assessments and the inventories associated with the 2000 Roadless Area Conservation Final Environmental Impact Statement. Using these inventories, the Forest Service has identified approximately 9.3 million acres of inventoried roadless areas that are the subject of this rule. The Agency has sought to be particularly sensitive to concerns over the accuracy of the inventories. The 2001 roadless rule used the inventories of record from late 1999 as their basis for boundaries. This final rule uses these inventories as a starting point but also looked at updates identified through land management plan (LMP) revisions, most notably on the Caribou-Targhee National Forest (NF) in 1998 and the southwest Idaho forests (Boise, Payette and Sawtooth NFs) in 2003. New inventories for northern Idaho forests (Idaho Panhandle, Clearwater, and Nez Perce NFs) currently in LMP revision were also used. These inventories are based on agency direction in Forest Service Handbook (FSH) 1909.12, section 70. The oldest inventory used is from the Salmon-Challis NF, which dates to their LMP from mid-1980. Changes to the roadless inventory reflect improvements in mapping and elimination of some areas that had been developed since the last inventory of record and inclusion of some areas after review. Inventories used for this final rule have all received review and comment by the public during the LMP revision process prior to this rulemaking. Purpose and Need for the Idaho Roadless Rule The purpose of the Idaho Roadless Rule is to respond to the State's petition to recommend State-specific direction for the conservation and management of inventoried roadless areas within the State of Idaho. The final Idaho Roadless Rule integrates local management concerns and the need to protect these areas with the national objectives for protecting roadless area values and characteristics. Collaborating with the State of Idaho on the long-term strategy for the management of IRAs recognizes national values and local situations and resolves unique resource management challenges. Collaboration with others who have a strong interest in the conservation and management of inventoried roadless areas also helps ensure balanced management decisions that maintain the most important characteristics and values of those areas. The management direction established by the rule is based on individual roadless characteristics for lands containing outstanding or unique features where there is minimal or no evidence of human use; culturally significant areas; general roadless characteristics where human uses may or may not be apparent; as well as some areas displaying high levels of human use. The Department also recognizes there is compelling interest in— • Reducing the threat to communities, homes, and property from the risk of severe wildfire or other risks associated with adjacent Federal lands; • Reducing the threat to forests from the negative effects of severe wildfire and insect and disease outbreaks; and • Assuring access to property, for the State, Tribes, and citizens that own property within roadless areas. Between 2001 and 2007, wildland fires burned about 3.1 million acres in Idaho, of which about 1 million acres were in IRAs. Wildland fire is a natural component of these roadless areas; however, actions to reduce the risk of wildland fire effects to communities and municipal water supply systems may be needed in some situations. In 2003, Congress recognized the need to improve the capacities of the Departments of Agriculture and Interior to conduct hazardous fuel reduction projects, by passing the Healthy Forests Restoration Act (HFRA) (Pub. L. 108-148). Aware of all of these concerns and the long unresolved debates over conserving and managing inventoried roadless areas in the absence of wilderness legislation for the State of Idaho and after considering the State's petition, the advice and recommendations of the RACNAC, Tribes, and public; the Secretary determined that regulatory direction for managing Idaho's roadless areas was needed. Public Involvement on the Proposed Rule • How Was Public Involvement Used in the Rulemaking Process? A notice of intent to prepare an EIS on “Roadless Area Conservation; National Forest System Lands in Idaho” was published in the Federal Register , April 10, 2007, (68 FR 17816). The public comment period ended on May 10, 2007. The Forest Service received about 38,000 comments, of which 32,000 were form letters. The remaining letters consisted of original comments or form letters with additional original text. A notice of availability for the DEIS was published in the Federal Register on December 21, 2007, (72 FR 72708). The Forest Service published a proposed rule for conservation of national forests inventoried roadless areas in Idaho on January 7, 2008, (73 FR 1135). A copy of the proposed rule and the DEIS has been available on the World Wide Web/Internet at http://roadless.fs.fed.us/ since January 7, 2008. A public meeting on the proposed rule was held in Washington, DC on January 14, 2008. Sixteen public meetings were held in Idaho between January 22 and February 28, 2008. In addition to the suggestions from the RACNAC, the Department received approximately 140,000 responses. Responses included advocacy for a particular outcome or regulatory language, as well as suggestions for analyses to conduct, issues to consider, alternatives to the proposed action, and calls for compliance with laws and regulations. Response to comments on the DEIS are in Appendix R of the FEIS. These comments played a key role in the development of modifications to the proposed rule and the decision made in this record of decision. It is noteworthy that many of the improvements between draft and final were made in response to requests made by Idaho Indian Tribes. Some of the theme changes were made in direct response to Tribal requests (see FEIS Appendix P). Chapters 3.15 (Cultural Resources) and 3.16 (Idaho and Affected Indian Tribes) were modified in the FEIS based on Tribal input. Section 294.28(h) was added to Scope and Applicability assuring Tribes this rule would not affect any of their rights or Federal Government responsibilities to consult on projects in roadless areas. The Department and Forest Service are grateful for the insights and serious attention the Tribes have provided during this rulemaking. • How Did the RACNAC Participate in the Rulemaking Process? The RACNAC held open meetings in various locations across the country. The meetings helped the RACNAC develop recommendations to the Secretary to be considered in the development of the final rule. The RACNAC submitted their final recommendations to the Secretary in a letter dated May 30, 2008. Through the public meetings as well as Tribal and public comments, the Agency and State repeatedly heard that any exception to the 2001 roadless rule's road building prohibitions must be based on an actual on-the-ground need. Most notable among those needs was the protection of property and municipal water supply systems for at-risk communities, and phosphate development. The Agency and State sought the RACNAC's advice concerning a framework for better achieving the objectives laid out in the proposed rule. The RACNAC recognized that a one-size-fits-all management regime for the BCR theme was unrealistic. The committee provided advice on a framework for protecting at-risk communities and their water systems after several public meetings and careful deliberation. The Department adopted most of these recommendations in the final rule. The Department carefully considered all input before making a decision in areas where the RACNAC could not reach consensus; for example, building new roads for forest health activities. The RACNAC served a critical role in advising the Department regarding the critical need to go beyond past differences and focus on the on-the-ground management issues for these lands. This focus led to important adjustments including: (1) Reducing GFGR acres by 200,000; (2) increasing BCR acres by 280,000, primarily in recognition of high fish and wildlife values; (3) lowering the determination threshold for temporary roads and timber cutting within the community protection zone (CPZ), which increases opportunities for the Forest Service to address local communities' concerns with wildfire risks; (4) defining more clearly the permissions for hazardous fuel treatments outside CPZ to clarify that the vast majority of these acres will be subject to management direction that is similar to the 2001 roadless rule; and (5) defining with greater precision where phosphate mining, a nationally strategic mineral, may occur. The Department recognizes the invaluable work and advice provided by the RACNAC throughout the rulemaking process. Alternatives Considered Alternatives Considered by the Department The FEIS examines four fully developed alternatives based on public comments: No Action, Existing Plans, Proposed Idaho Roadless Rule, and Modified Idaho Roadless Rule. Additional alternatives were considered but were eliminated from detailed analysis because they did not meet some aspect of the purpose and need or for other reasons in response to public comments including: Alternative allocations of management themes; additional conservation measures for the GFRG theme; additional limitations on management activities in the various themes; motorized access; and expansion of the scope of the proposal. Chapter 2 of the FEIS provides a more complete discussion of the disposition of these alternatives. Alternative 1 (No Action) (2001 Rule) The 2001 roadless rule was the product of a national process and established management direction at the national level with limited focus on state or local issues. The 2001 roadless rule (66 FR 3244, Jan. 12, 2001) proposed to ensure that inventoried roadless areas sustain their values for this generation and for future generations. By sustaining these values, a continuous flow of benefits associated with healthy watersheds and ecosystems was expected. The Forest Service identified timber cutting and road construction or reconstruction as having the greatest likelihood of altering and fragmenting landscapes and the greatest likelihood of resulting in an immediate, long-term loss of roadless area values and characteristics. Therefore, the 2001 Rule prohibited these activities with certain exceptions in each roadless area. The 2001 Rule alternative identified a list of exceptions to the prohibitions on road construction (sec. 294.12) that respond to circumstances where the prohibitions might conflict with legal responsibilities to provide for public health and safety or environmental protection. The Department noted that while in some cases, the exceptions could result in effects contrary to the purpose of the rule; the Department determined that they were necessary to honor existing law or address social or economic concerns (66 FR 3255). The 2001 Rule alternative also allows for timber cutting for activities such as improving threatened, endangered, proposed, or sensitive species habitat; maintaining or restoring the characteristics of ecosystem composition and structure to reduce the risk of uncharacteristic wildfire effects; selling or removing timber incidental to other authorized activities; cutting, selling, or removing timber needed for personal or administrative uses; or improving roadless characteristics that have been substantially altered in a portion of an inventoried roadless area due to the construction of a classified road and subsequent timber harvest. These exceptions, with some modifications, are carried forward as part of Alternatives 3 and 4. Alternative 2 (Existing Plans) Management direction in this alternative represents a roadless area management regime based on each forest's land management plan (LMP). Each forest's plan is unique to its planning area. Collectively the LMPs provide a broad range of management opportunities from wilderness to intensive management. When revising a LMP, each forest or group of forests collaborates with the public to develop management direction for their roadless areas. Overall, as national forests in Idaho have revised the LMPs, the trend has been to move more roadless areas into management prescriptions that emphasize the conservation of roadless characteristics. Under this alternative, management of roadless areas would be governed by the specific management allocations assigned in each LMP. Management direction would be periodically reviewed as plans are revised. Alternative 3 (Proposed Idaho Roadless Rule) (Proposed Rule) Alternative 3 considers establishment of regulatory direction based on the State's petition, as presented to the RACNAC and set forth in the Proposed Rule. This alternative represents a strategy for the conservation and management of Idaho Roadless Areas (IRAs) that takes into account State and local situations and unique resource management challenges, while recognizing and integrating the national interest in maintaining roadless characteristics for future generations. Building from the petition's examination of the management direction assigned in each forest's existing or proposed LMPs, the Proposed Rule assigned the lands within each roadless area to one or more of five broad management themes: Wild Land Recreation (WLR); Special Areas of Historic or Tribal Significance (SAHTS); Primitive; Backcountry/Restoration (BCR); and General Forest, Rangeland, and Grassland (GFRG). These themes span a continuum that includes at one end, a restrictive approach emphasizing passive management and natural restoration approaches, and on the other end, active management designed to accomplish sustainable protection of roadless characteristics. The continuum accounts for stewardship of the uniqueness of each roadless area's landscape and the quality of roadless characteristics in that area. The Proposed Rule did not apply to other special areas referred to as forest plan special areas such as research natural areas; wild and scenic rivers (designated, eligible, and suitable); special interest areas; and visual corridors. Table S-1 in the FEIS shows 334,500 acres as forest plan special areas. These areas would be managed according to applicable current and future LMP direction. However, if the current special status designations for an area are changed in the future, these lands would be subject to the terms of the rule and a modification would be undertaken. The Proposed Rule presented a continuum of prohibitions and permissions for each roadless area through the allocation of themes. Allocation to a specific theme does not mandate or direct the Forest Service to propose or implement any action; rather, the themes provide an array of permitted and prohibited activities related to cutting, selling or removing timber; road construction or reconstruction; and discretionary mineral activities. The Proposed Rule would have established prohibitions and permissions for discretionary mineral activities that vary according to an area's classification theme. However, like the 2001 Rule alternative, the Proposed Rule allowed for road construction or reconstruction in the case of reserved or outstanding rights or as provided for by statute or treaty, including roads associated with locatable mineral activities pursuant to the General Mining Law of 1872. The Proposed Rule provided additional direction regarding common variety minerals. Alternative 4 (Modified Idaho Roadless Rule) (Final Rule) Alternative 4 considers establishment of regulatory direction based on modifications to the Proposed Rule (Alternative 3). Public comment identified the need for modifications to the Proposed Rule and DEIS. The Department and Forest Service officials, in consultation with the State, reviewed and considered the public comment, Tribal recommendations, and the advice of the RACNAC and concluded the rule could be improved. Many of the suggested modifications contributed to the development of the final rule and FEIS. Alternative 4 (Final Rule) uses the thematic approach of Alternative 3 but adds refinements to address five principle concerns: (1) The amount and type of roadless areas placed in the various themes; (2) The permissions and restrictions for road construction and reconstruction, and timber cutting, sale, and removal in the BCR theme; (3) Management of lands containing phosphate deposits in BCR areas; (4) Tribal interests regarding activities in roadless areas and future consultations; and (5) Public comment requirements for corrections and modifications. The Final Rule alternative reflects consideration of other adjustments beyond these principal issues as well. Overall, Alternative 4 provides more protections from development than the 2001 Rule alternative on 3.25 million acres of IRAs. These lands are in the WLR, Primitive, and SAHTS themes. All road construction and reconstruction is prohibited, except when provided by statute or treaty, or pursuant to valid existing rights or other legal duty of the United States. In addition, Alternative 4 prohibits surface use and occupancy and road construction or reconstruction to access new mineral leases. Similarly, Alternative 4 provides the same or more restrictions than the 2001 Rule alternative for cutting, selling, or removing timber for lands in the Primitive and SAHTS themes. By reassigning acres to the WLR, Primitive, or SAHTS themes, Alternative 4 provides greater protection from development for 76,400 acres more than the Existing Plans alternative and 199,500 acres more than the Proposed Rule alternative. As to lands managed under the BCR theme, Alternative 4 provides similar management direction as the 2001 Rule alternative for 5.26 million acres, although an estimated 442,000 acres would be subject to special consideration of specific situations involving reducing the risk of wildland fire to at-risk communities within the CPZ. Outside the CPZ, temporary roads could be constructed only where, in the regional forester's judgment, such roads are the only reasonable way to meet the objectives of reducing the significant risk of wildland fire effects to an at-risk community or municipal water supply system, and the activity is developed in a way that maintains or improves one or more roadless characteristics over the long-term. Infrequent use of this provision, with its conditions, is anticipated due to resource conditions, agency budgets, and regional forester approval and oversight. CPZ status will be confirmed at the project level, based on the definition of CPZ provided in section 294.21. Alternative 4 reduces the lands managed under the GFRG theme to 405,900 acres. These areas are mainly managed according to forest plan direction except that roads may not be constructed to access new mineral or energy leases other than to access specific areas of phosphate deposits. Design of projects in these areas will consider roadless characteristics and will meet all environmental laws, and the area will remain on the roadless inventory. In sum, Alternative 4 assures retention of the roadless characteristics of approximately 8.5 million acres of roadless lands. On the remaining 0.8 million acres (community protection zones in the BCR theme and GFRG acres), the Agency's best estimates indicate only about 0.1 percent of IRAs would likely see any changes in roadless characteristics over the next 15 years. The Environmentally Preferred Alternative Under NEPA, the Department is required to identify the environmentally preferred alternative (40 CFR 1505.2(b)). This is interpreted to mean the alternative that will promote the national environmental policy as expressed in NEPA's section 101 and that would cause the least damage to the biological and physical components of the environment. This alternative best protects, preserves, and enhances historic, cultural, and natural resources (Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations (46 FR 18026). The Department believes the alternative that best meets these criteria is Alternative 1 (No Action, 2001 Rule). Alternative 1 generally protects all inventoried roadless areas from adverse environmental impacts associated with limited exceptions for road construction, reconstruction, and tree cutting for commodity purposes and discretionary mineral activities and is projected to result in the least road construction (15 miles) and fewest harvested acres (9,000 acres) over the next 15 years. Alternatives 2, 3, and 4 allow for an array of vegetation management activities potentially needed to maintain or improve roadless characteristics or restore ecological structure, function, composition, or processes; including reducing the risks of uncharacteristic or unwanted wildland fire effects. In addition, these alternatives provide additional protections to certain lands with outstanding roadless characteristics. However, these alternatives provide varying levels of road construction and reconstruction to facilitate timber cutting and also provide differing levels of limited tree cutting for commodity purposes and mineral resource development. The total projected road construction or reconstruction over the next 15 years is 15 miles (Alternative 1, 2001 Rule), 180 miles (Alternative 2, Existing Plans), 61 miles (Alternative 3, Proposed Rule), and 50 miles (Alternative 4, Modified Rule). Alternative 1 projects the fewest ground disturbing activities and is deemed the environmentally preferred alternative. Comments on the Proposed Rule and Changes Made in Response The Department received approximately 140,000 comments in response to the proposed rule and DEIS. A detailed analysis and response to public comment is set out in Appendix R of the FEIS. The Forest Service considered all comments as part of the rulemaking. The discussion of public comment below is divided between general comments and those that involve particular regulatory provisions, as well as providing a summary of changes made in the final rule. General Comments Not Related to Particular Rule Provisions Comment: State role in rulemaking. Some respondents expressed concerns over the legality of the State of Idaho's efforts to submit a petition to change current Federal land management or that the State would have undue influence on the outcome of the rule. Response: This is a Federal rule and the Department has, in no way, abdicated or delegated its authority or responsibility for management of these NFS lands. The Governor of Idaho, pursuant to 5 U.S.C. 553(e) and 7 CFR 1.28 filed a petition to conduct rulemaking for these immensely valuable lands. The Forest Service has worked cooperatively with the State of Idaho during consideration of the petition and during the development of this final rule as is expected under numerous statutes, regulations, and Executive orders. Pursuant to NEPA's implementing regulations, State, local, and Tribal governments are frequently granted cooperating agency status. State governments are especially important partners in management of the nation's land and natural resources. States, particularly in the West, own and manage large tracts of land with tremendous social and biological value. State governments frequently pioneer innovative land management programs and policies. State governments exert considerable influence over statewide economic development and private land use, both of which significantly affect natural resource management. In addition, State conservation agencies' relationships with others offer additional partnership opportunities. Strong State and Federal cooperation regarding management of inventoried roadless areas can facilitate long-term, community-oriented solutions. Collaborating with the State of Idaho on the long-term strategy for the management of IRAs recognizes national values and local situations and resolves unique resource management challenges. Collaboration with the State, Tribes and others who have a strong interest in conserving and managing inventoried roadless areas also helps to ensure balanced management decisions that maintain the most important characteristics and values of those areas. Comment: Idaho's Roadless Rule Implementation Commission. Some respondents questioned the role and authority of the Governor's Roadless Rule Implementation Commission (Idaho Executive Order No. 2006-43 of December 21, 2006). Other respondents thought the structure of the commission should be better defined, that there should be a time frame for the commission to respond to a proposed project, and that county commissioners and rural communities should be involved in designing and implementing projects. Some respondents raised concern over the legality of the commission. The RACNAC recommended additional procedural requirements in the rule, which includes collaborative review of projects, especially in the BCR theme, by a State Implementation Commission with a regional advisory committee-like structure. Response: Although it is the Department's position that it cannot mandate the creation of or the scope of the commission's responsibilities to the State, the Department supports this collaborative concept and feels it would be an essential part of the overall collaborative process with the public, Tribes, and local and state governments. The Forest Service shared public comments and the RACNAC recommendations on the composition and function of the implementation commission received during this rulemaking with the State of Idaho. The State of Idaho has already committed to having the implementation commission as its way of providing a collaborative approach pursuant to State of Idaho Executive Order 2006-34 and may continue to determine its own course for providing input and cooperation during the NEPA process for a proposal affecting an IRA. It is the Department intent that the State of Idaho can request cooperating agency status for proposals affecting IRAs like it has done for this rulemaking. It is important to note that although the recommendations provided by the commission will be non-binding on the Agency, the Department encourages the responsible Forest Service officials to give priority to those projects recommended by the commission. Comment: Compliance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Some Tribal officials requested more government-to-government consultation on the proposed rule. One Tribe expressed concern that the change clause builds in categorical exclusions that will exclude public input and Tribal government-to-government consultation on individual projects. One Tribe questioned the use of the theme approach suggesting that maintaining all roadless areas should provide the same or similar values and opportunities. Another Tribe stated the themes do not incorporate the holistic nature of Tribal rights and interests that include areas outside those identified as SAHTS, and clarification was needed so areas of Tribal interest would still have project-by-project consultation with affected Tribes. Response: On September 20, 2007, the State of Idaho and the Forest Service met with the Idaho Council on Indian Affairs and presented a joint overview of the history of the Idaho Roadless Petition and the DEIS associated with development of the proposed rule. The Forest Service and the State of Idaho committed to meeting with each Tribe to discuss in more detail the Idaho Roadless Rule prior to the release of the DEIS. These meetings took place between October 2007 and January 2008 and were tailored to meet each Tribe's preference. After the release of the DEIS and the proposed rule, several staff-to-staff and government-to-government meetings were held between January and August 2008 with each Tribe. Many of the Tribes' ideas and suggestions resulted in improvements to the final rule. Nothing in the final rule should be construed as eliminating public input or Tribal consultation requirements for future projects conducted in accordance with this rule. The final rule clarifies that it does not modify the unique relationship between the United States and Indian Tribes. The final rule requires the Federal government to work with federally recognized Indian Tribes, government-to-government, as provided for in treaties, laws, or Executive orders. Nor does the final rule limit or modify prior existing Tribal rights, including those involving hunting, fishing, gathering, and protecting cultural and spiritual sites. Finally, the Department listened carefully and understood Tribal concerns that the Tribe's holistic interests are in no way limited to one particular theme or management classification. The SAHTS designation highlights and protects certain areas that possess historically and culturally important attributes, but is not the exclusive indicator of areas that possess such values. The final rule allows continued recognition of Tribal rights and interests in IRAs outside of the SAHTS theme. Comment: NEPA requirements for projects. Some respondents felt an EIS should be required for all projects proposed in IRAs and the use of an environmental assessment (EA) should be disallowed. Response: The Idaho Roadless Rule focuses on general land classifications rather than project-level analysis and documentation requirements. However, since 1992, the Forest Service has routinely required the use of EISs for proposals that “would substantially alter the undeveloped character of an inventoried roadless area or a potential wilderness area.” This requirement, originally in its implementing procedures in Forest Service Handbook 1909.15 at section 20.6, is now in the Agency's regulations at 36 CFR 220.5(a) (73 FR 43095). The Department has determined that a general prohibition on the use of EAs is not warranted as some proposed actions will not have significant environmental effects and will not harm roadless characteristics. Public response to scoping for a proposed action in an IRA will help the responsible Forest Service official determine the appropriate level of documentation for compliance with NEPA. Comment: Endangered species consultation. Several respondents expressed concern regarding the proposed rules effects to threatened and endangered species and sought clarifications regarding consultation under the Endangered Species Act (ESA). Response: Idaho Roadless Areas have been identified as an important habitat for a variety of terrestrial and aquatic wildlife and plants, including some threatened and endangered species. The large, relatively undisturbed areas provide biological strongholds and play a key role in proving for diversity of plant and animal communities. The National Oceanic and Atmospheric Administration (NOAA) Fisheries and the U. S. Fish and Wildlife Service (FWS), have oversight responsibilities for implementation of the Endangered Species Act (ESA). Informal consultation and conferencing on the proposed rule began with frequent discussions among Forest Service, FWS, and NOAA Fisheries biologists. The Agency has prepared a biological assessment on the final rule and formally consulted with the FWS and NOAA. The biological opinions can be found at http://roadless.fs.fed.us/idaho.shtml and effects are discussed in the FEIS at sections 3.7 Botanical Resources, 3.8 Aquatic Species, and 3.9 Terrestrial Animal Habitat and Species. Summary of Changes and Comments Related to Particular Rule Provisions Proposed Section 294.20 Purpose Summary of Changes in Proposed Section 294.20 (Final Rule Section 294.20) . Text about the relationship between this rule and other roadless rulemakings was removed from paragraph (a) and is now addressed in section 294.28(a). Paragraph (b) was removed as unnecessary because the multiple-use mission of the Forest Service is well understood and is provided for elsewhere in statute and regulation. Comment: Purpose and need. A respondent suggested the same statement of purpose and need as described in the DEIS should be included in the rule. Response: The regulatory purpose set out in the final rule has been slightly revised and is now a more accurate statement of purpose of the Idaho Roadless Rule as providing State-specific direction for management of roadless areas. The purpose and need statement included with the DEIS served a related but distinct function under NEPA. Proposed Section 294.21 Definitions Summary of Changes in Proposed Section 294.21 (Final Rule Section 294.21) . Definitions of the following terms have been included in response to public comment: community protection zone, fire hazard and risk, fire occurrence, Forest Plan Special Area, forest type, hazardous fuels, road decommissioning, and uncharacteristic wildland fire effects . Most of these definitions were added to improve clarity on the use of the exemptions allowed for road construction and reconstruction, timber cutting, and mineral activities. Rational for their inclusion is discussed in the appropriate sections below. Definitions for significant risk and the individual management classification themes have been removed. Significant risk is now addressed at section 294.24(c)(1)(ii). The Department believes the themes are best understood in terms of the specific permissions and restrictions established by the rule for each land classification rather than a generalized description of desired conditions. Comment: Definition of road. A respondent stated it was unclear if user-created roads or unclassified roads under the 2001 roadless rule are roads for purposes of this rule and whether deciding officers can designate an unclassified road as a forest road. Response: First, the definition of forest road used in the proposed and final rule is drawn from the Agency's definition of that term in the travel management regulations found at 36 CFR part 212. Travel management decisions are not affected by this rule as noted in section 294.26(a). Adjustments to NFS road inventories are made pursuant to the Travel Management rule (70 FR 68264). Comment: Management theme definitions. Several respondents requested clarification of the management themes. Some suggested that specific references to recreation in the theme definitions should be dropped. Response: Definitions for individual themes are removed in the final rule. The Department believes the prohibitions and permissions established for each individual theme best defines the management intended and the redundant definitions in the proposed rule were unnecessary and led to confusion. Proposed Section 294.22 Idaho Roadless Areas Summary of Changes in Proposed Section 294.22 (Final Rule Section 294.22). Paragraphs (b) and (c) have been reordered to improve continuity. Similarly, the narrative description of the management continuum that was set out in proposed paragraph (c) has been removed as unnecessary. The final rule remains structured around five themes: (1) Wild Land Recreation (WLR); (2) Special Areas of Historic or Tribal Significance (SAHTS); (3) Primitive; (4) Backcountry/Restoration (BCR); and (5) General Forest, Rangeland, and Grassland (GFRG). These five themes were proposed following review of the allocations set out in the existing and proposed revisions to land management plans. The five themes and allocations for particular areas were refined in response to public comment on the proposed rule. The themes span a continuum from more restrictive to more permissive (see Figure 1). This continuum accounts for stewardship of each roadless area's unique landscape and the quality of roadless characteristics in that area. ER16OC08.000 Allocation to a specific theme does not mandate or direct the Forest Service to propose or implement any action; rather, the themes provide an array of permitted and prohibited activities regarding road construction, timber cutting, and discretionary mineral activities. Although the ability of the Forest Service to conduct certain activities (road building, activities associated with mineral development, and timber cutting) typically varies from theme-to-theme, other activities (motorized travel, current grazing activities, or use of motorized equipment and mechanical transport) is not changed by this final rule. Although these other activities are not regulated by this rule, these activities and others not addressed by this rule are still subject to the allowances and restrictions of their current LMP and would be subject to future planning and decisionmaking processes of the Forest Service. For example, when allowed under the LMP, the use of prescribed fire as a management tool would be available across all themes as this rule does not require, limit or prohibit the use of prescribed fire. Similarly, some activities ( e.g. , locatable mineral access and operations) are governed under entirely separate regulations. Additionally, like the 2001 roadless rule, timber cutting, sale, or removal in inventoried roadless areas is permitted when incidental to implementation of a management activity not otherwise prohibited by the final rule. Examples of these activities include, but are not limited to, trail construction or maintenance; removal of hazard trees adjacent to forest roads for public health and safety reasons; fire line construction for wildland fire suppression or control of prescribed fire; survey and maintenance of property boundaries; other authorized activities such as ski runs and utility corridors; or for road construction and reconstruction where allowed by this rule. Comment: Eliminate the use of multiple themes. A respondent suggested the removal of the multiple theme approach from the rule and return to the single theme approach used for the 2001 roadless rule. Response: The Governor's petition sought refinement of the 2001 roadless rule's one-size-fits-all approach maintaining that some areas deserved higher protections, others similar, and others less protection then those granted in the 2001 roadless rule. Comments received by the various Idaho County commissioners and other members of the public were in accord. The wide-variety of management regimes given these areas by individual Forest Service LMPs further demonstrates the value of a more measured approach. Therefore, the Department has elected to maintain the flexibility the multiple theme approach allows and has retained it in the final rule. Comment: Theme assignment. Some respondents requested changes in theme assignments for specific IRAs. Response: In response to these requests, some theme assignments were adjusted for the final rule. In general, public requests for changes in theme assignments for IRAs in section 294.29 in this final rule were adopted when the Forest Service review, demonstrated that the theme change would better reflect the uniqueness of the roadless area and the appropriate level of conservation needed for the protection and management of the particular area. The FEIS, Appendix P describes each of the specific requests and the disposition of those requests. The following changes were made to theme assignments as a result of public and Tribal comments. (1) Approximately 279,800 acres were changed from GFRG to BCR. This includes important big game habitat and known phosphate lease areas on the Caribou portion of the Caribou-Targhee NF where development would be precluded because of aquatic concerns (portions of Deer Creek). (2) Approximately 75,900 acres were changed from BCR to GFRG. This includes lands that were already roaded on the Salmon and Targhee NFs and lands adjacent to Jesse Creek Watershed that are outside the CPZ but where the community wildfire protection plans (CWPPs) anticipate treatment is needed to protect the municipal water supply system. (3) Approximately 149,200 acres were changed from BCR to Primitive. (4) Approximately 68,400 acres of the Rapid River Roadless Area on the Payette and Nez Perce NFs were changed from Primitive to WLR. (5) Approximately 10,700 acres of the Selkirk Roadless Area on the Idaho Panhandle NF were changed from Primitive to WLR. (6) Approximately 21,000 acres of the Pioneer Area in the Mallard Larkins Roadless Area on the Idaho Panhandle NF was changed from SAHTS to WLR. Comment: Management under existing LMPs for certain areas. A respondent suggested areas not recommended for wilderness in the 2001 roadless rule should be removed from this process and be managed under their existing plans. Response: The 2001 roadless rule made no wilderness recommendations. The Forest Service makes preliminary wilderness recommendations through the land management planning process. Recommendations to Congress concerning wilderness recommendations are an authority reserved to the Secretary. However, the suggested approach of directing that preliminarily recommended areas be managed in accordance with existing LMP direction would essentially be achieved through the approach described in FEIS Alternative 2. The Department believes that in the absence of Congressional action, it is appropriate to include such lands in the IRA system. Comment: Wild Land Recreation (WLR) theme. A respondent suggested the WLR theme should be eliminated as it unlawfully creates de facto wilderness. Another respondent felt the rule should maintain current wilderness recommendations, maintain the current type of recreation activities allowed in each individual WLR area, and recommend additional areas for wilderness designation. Response: It is important to note that IRAs are not de facto wilderness areas and the final rule does not make any recommendations for potential wilderness. The Department is mindful that only Congress can establish additions to the National Wilderness Preservation System and that Congress has not called for the creation of protective perimeters or buffer zones around wilderness areas. The Department maintains that the WLR theme provides appropriate protections for selected areas. It is correct that most lands in the WLR theme were identified and recommended for wilderness designation during the land management planning process. In the context of land management planning, the Forest Service Manual 1923.03 states, “Any inventoried roadless area recommended for wilderness or designated wilderness study is not available for any use or activity that may reduce the wilderness potential of an area. Activities currently permitted may continue, pending designation, if the activities do not compromise wilderness values of the area.” Similarly, the final rule does not change current recreational opportunities in WLR areas, including motorized travel (see sections 294.27(a) and 294.28). A wide-array of motorized and mechanical recreation and other multiple-use activities that are not allowed in designated wilderness areas will continue to be available and are unaffected by this rule. Comment: Primitive theme. A respondent suggested the Primitive theme should be avoided because areas designated as Primitive would fall short of the wilderness suitability criteria because of the proposed rule's permitted activities. Response: This rule is not designed to address potential wilderness designations. However, agency wilderness evaluation criteria associated with LMPs provide that although a forest road or other permanently authorized road is one criteria for not considering an area for potential wilderness, Forest Service Handbook (FSH) 1909.12, section 71.11, paragraph 9, provides for including areas where prior timber harvest and road construction is not evident. Road construction and reconstruction is prohibited in the Primitive theme except to access reserved or outstanding rights, or other legal duty of the United States. Any roads constructed for these purposes could affect consideration for wilderness. Timber cutting, sale, or removal is also prohibited except under limited conditions and only when done from an existing road or using aerial systems and is subject to numerous restrictions. The FEIS, section 3.14 Roadless Characteristics, discloses that the existing character may be modified on the edges of a roadless area with the interior kept intact. Future activities in the Primitive theme could have potential effects on the undeveloped and natural qualities of a roadless area but these activities are expected to be limited, infrequent, and would not affect natural ecosystems processes or opportunities for primitive and unconfined recreation. Comment: Backcountry/Restoration theme (BCR). Several respondents felt the use of the BCR theme should be avoided because it would allow road construction, logging, and other development. Response: The BCR theme represents the largest amount of acreage across all of the theme designations in this rule, and it received the majority of the comments. During his original presentation to the RACNAC, Governor Risch expressed a desire to have the areas designated under this theme managed similar to the 2001 roadless rule while also providing for certain stewardship activities. The proposed rule sought to provide this balance by only allowing new road construction or reconstruction facilitating timber cutting where necessary to address significant risks and to facilitate permitted forest health activities. Many respondents felt that the criteria by which new roads could be constructed were left undefined and potentially could vary from the purpose of the 2001 roadless rule. Specifically, several respondents felt that new road construction to facilitate timber cutting should only be done in cases of imminent threat to people and property, although others felt significant risk was too restrictive and did not have enough flexibility to address forest health issues in IRAs. Based on public comments and advice from the RACNAC, the Department saw a need to refine the scope and conditions by which temporary roads could be constructed in the BCR theme. The RACNAC spent a considerable amount of time discussing this theme and recognized that the theme did not lend itself to a one-size-fits-all management approach, particularly with regard to fuel treatments for protecting at-risk communities and municipal water supply systems, but also felt that the proposed rule was too expansive and needed further clarification and refinement. The Department agrees that the principles articulated by the RACNAC represented a good starting point. The final rule adopts the RACNAC's advice of borrowing the CPZ concept from HFRA to focus timber cutting and temporary road construction where needed to protect at-risk communities. The definition of at-risk communities used in the proposed and final rule reflects the definition of that term as used in the HFRA. Within the CPZ, the Department believes the balance should tip in favor of community protection while ensuring that temporary road construction is not undertaken where in the responsible official's judgment the project cannot reasonably achieve the community protection objectives without a temporary road. Additionally, the RACNAC recognized that the geographic definition from HFRA may not provide enough flexibility for some IRAs. Therefore, the Department is limiting the scope of temporary road building for fuels treatments outside the CPZ to projects that can demonstrate significant risk of wildland fire effects to an at-risk community or a municipal water supply system while positively determining that one or more roadless characteristics will be maintained or improved over the long-term. The long-term perspective is especially important because a temporary road may have the potential for immediate short-term effects to an area's roadless characteristics, but stand thinning, strategic fuel breaks, and other activities accomplished by building a temporary road could have long-term beneficial effects. The final rule also emphasizes the importance of maximizing the retention of large trees, as appropriate for the forest type, to the extent the trees promote fire resilient stands and exercises restraint by permitting projects that cannot reasonably be accomplished without a temporary road. Notably, the final rule does not permit new road construction for the purpose of conducting limited forest health activities. Under the final rule, the vast majority of the BCR acres will be managed comparable to the 2001 roadless rule with a small amount of additional timber cutting and temporary road construction to allow fuel treatments to better protect vital community interests. Comment: General Forest, Rangeland, and Grassland (GFRG) theme. A respondent suggested elimination of the GFRG theme. Another suggested any small strips of GFRG lands should go into adjacent BCR and felt that the GFRG theme should be eliminated to avoid the conflict of the rule allowing for activities not permissible in LMPs. A respondent thought the Agency should reconsider the roadless character for some of the GFRG designations based on the Idaho Conservation League maps. Response: The FEIS considered the request to eliminate the GFRG theme in, section 2.3, Consideration of Comments and determined that this request was effectively accomplished through examination of the 2001 Rule alternative (Alternative 1). Based on public comment, including Idaho Conservation League's maps, some areas were changed from GFRG to BCR to better retain the roadless character in these areas to respond to Tribal interests and to provide important big game habitat. For example, several small strips adjacent to the outer boundaries of roadless areas were changed to BCR, including lands associated with the East Cathedral, Magee, Mallard Larkins, and Upper Priest Roadless Areas on the Idaho Panhandle NF and the Scotchmans Peak Roadless Area on the Idaho Panhandle and Kootenai NFs. Some developed lands, which are areas that have been previously roaded and harvested, were changed from the BCR theme to the GFRG theme. In total, the land area encompassing the GFRG theme was reduced by approximately 203,700 acres. See Appendices E and P of the FEIS. Comment: Forest Plan Special Areas. Several respondents asked for clarification about whether wild and scenic river management areas and other LMP special areas have precedence over the rule. Response: Under section 294.28(f), Forest Plan Special Areas (FPSA), like wild and scenic river management areas, are managed in accordance with local LMP components. For clarification, a definition of FPSA has been added to the final rule. These lands include areas such as research natural areas, designated and eligible wild and scenic river corridors, developed recreation sites, or lands identified for other specified management purposes. A listing of all the FPSAs is set out in the FEIS, Appendix Q. The State's petition identified that some roadless areas are already part of other land classification systems that are governed by specific agency directives and existing LMP direction. The petition did not request the Forest Service to impose additional or superseding management direction or restrictions for these FPSAs. Instead, the petition identified a preference that these lands be administered under the laws, regulations, and other management direction unique to the special purpose of the applicable land classification. The Department agrees, and although these lands are included in section 294.29 for the sake of completeness, the final rule does not establish any management direction for, or that applies to, any of these identified FPSAs. Proposed Section 294.23 Road Construction and Reconstruction in Idaho Roadless Areas Summary of Changes in Proposed Section 294.23 (Final Rule Section 294.23). No substantive changes were made to paragraph (a). In response to advice from the RACNAC and public comment, the Department refined the road construction provisions concerning the BCR theme. The proposed rule allowed roads for classes of timber cutting activities per the 2001 roadless rule with the addition of a significant risk threshold determination and allowed for forest health activities consistent with the timber cutting provision. The final rule follows the list of excepted activities from the 2001 roadless rule and adds two refined categories of actions. First, the final rule accepts advice from the RACNAC and public comment to retain the 2001 roadless rule's general exceptions. All exceptions are retained except the minerals roads provision which is separately addressed in section 294.25. Second, there was confusion regarding the expected level of treatment to address significant risk situations in BCR theme areas. RACNAC and many respondents wanted clarification for the situations in which road building would be permitted. Some respondents expressed concern that all 5.3 million acres would be treated under these provisions. This was never the Department's or the State's intention. The State had noted, at the January 2008 RACNAC meeting, that it desired such projects to focus mainly on protecting the wildland urban interface (WUI) and municipal water supply systems. The RACNAC agreed that such refinements were appropriate but were unable to reach consensus regarding road construction for forest health treatments outside CPZ. See the discussion under Summary of Changes in Proposed Section 294.25 (Final Rule Section 294.24). In light of these considerations, the Department refined the final rule and will allow temporary roads in CPZ recognizing that in balancing public interests of community protection and roadless characteristics—the balance tips sharply in favor of communities within the CPZ. Further, the Department has found there is broad support for addressing instances where wildland fire can affect vital community interests and infrastructure even beyond CPZs. Local communities, the RACNAC, and various officials strongly supported providing limited opportunities for hazardous fuel reduction projects in a way that continues to recognize the importance of conserving roadless area characteristics. In contrast to treatments within the CPZ, the Department believes the balance tips in favor of maintaining or improving roadless characteristics over the long-term for projects conducted outside the CPZ. However, the Department will allow temporary roads outside CPZ to protect at-risk communities and municipal water supply systems under limited circumstances. To meet these goals, Forest Service officials will make a positive determination that the community or water supply system is facing a significant risk from a wildland fire disturbance event, and the project will maintain or improve one or more roadless characteristics over the long-term. A significant risk exists where the history of fire occurrence and fire hazard and risk indicated a serious likelihood that a wildland fire disturbance event would present a high risk of threat to an at-risk community or municipal water supply system. Officials must also determine that the project cannot be reasonably accomplished without a temporary road. Clearly, temporary roads will not need to be constructed to address every significant risk situation inside or outside a CPZ. In paragraph (c), new wording has been added that specifically directs the minimizing of effects and clarifies the intent to conform to applicable LMP components. Existing LMPs for these areas set out forestwide and area specific direction and make general suitability determinations but do not generally authorize any particular projects. Under this framework the Forest Service examines site-specific environmental effects when projects or activities are actually proposed. See Ohio Forestry Ass'n v. Sierra Club, 118 S. Ct. 1665, 1668, 1671 (1998). The RACNAC and some members of the public suggested that the requirements for roads under the proposed minerals section be carried forward and applied to all road construction. In response, the final rule at section 294.23(d) provides additional direction concerning temporary roads comparable to that provided for mineral activities. Additionally, a provision has been added that existing roads and those permitted under this final rule may be maintained. Comment: Significant risk. Several respondents requested the establishment of more guidelines to determine what constitutes a significant risk situation. Others suggested that the significant risk criteria should be confined to WUI areas and only apply the imminent threat criteria for the remaining areas. Some respondents felt vegetation activities outside CPZs should have more restrictions than those inside the zone. A respondent suggested inclusion of threats to irrigation and water rights as part of the significant risk exception. Response: The Department, based on public comment and advice from the RACNAC, concluded that the significant risk threshold should not be required for projects, including temporary road construction, in the CPZ as defined in this rule. See also the discussion below under Summary of Changes in Proposed Section 294.25 (Final Rule Section 294.24.) However, the Department, based on the RACNAC's advice, does not believe that all BCR theme areas outside the CPZ should have to demonstrate the imminent threat standard of the 2001 roadless rule. Instead, this rule provides the flexibility needed to implement Community Wildfire Protection Plans (CWPPs) where consistent with this rule and allows for limited treatment of hazardous fuels that threaten at-risk communities and municipal water supply systems. Thus, the Department has determined an allowance will be made for individual projects that can demonstrate a significant risk that a wildland fire disturbance event could adversely affect an at-risk community or municipal water supply system and maintain or improve one or more roadless characteristics in the long-term. Notably, the responsible Forest Service official must determine that the activity cannot be reasonably accomplished without a temporary road. For further clarity, a definition taken from the 2006 Interagency Protecting People and Natural Resources: A Cohesive Fuels Treatment Strategy (2006 Cohesive Strategy) for hazardous fuels has been added to the Final Rule. Furthermore, on advice from the RACNAC, the Department has limited the application of the term significant risk in geographic terms as well. First, a proposed project must demonstrate that its purpose is to treat hazardous fuels connected to an at-risk community or municipal water supply system. This greatly reduces the potential geographic scope of road building and treatments in the BCR theme from those in the proposed rule. Second, the Department refined the term significant risk to situations where the history of fire occurrence, and fire hazard and risk, indicated a serious likelihood that a wildland fire disturbance event would present a high risk of threat to an at-risk community or municipal water supply system. The final rule defines fire hazard and risk to mean the fuel conditions on the landscape. Fire occurrence is defined as the probability of wildfire ignition based on historic fire occurrence records and other information. Under these definitions, this significant risk determination focuses largely on landscape conditions, probability of ignition (serious likelihood), departure from historical fire frequencies, and the severity of the risk of adverse affects (significant) to an at-risk community or municipal water supply system. The Department's experience indicates that much of this pertinent information may be in individual Idaho county CWPPs and encourages responsible officials to use these plans where appropriate in determining whether or not a project qualifies under this exception. The Department expects that responsible officials will give due consideration during the public comment process to input from the State's Collaborative Implementation Commission. The Commission's recommendations would be considered along with other public and Tribal comments. The Department believes it has appropriately considered roadless area characteristics and the interests in protecting at-risk communities or municipal water supply systems in defining the scope of the significant risk exception. Expansion of the significant risk determination to include irrigation and water rights is beyond the scope of the HFRA provision used as a model for this provision and therefore was not adopted. Comment: Temporary roads standards, reclamation, and alternatives. Several respondents suggested the rule should include plans and standards for temporary road design criteria, identification of the responsible party to close it, and timeframes for rehabilitation. They felt definitions for decommissioning, rehabilitation, and closure of roads should be included in the rule. One respondent suggested that the Agency should require monitoring and funding to occur for temporary roads prior to their construction thus ensuring the temporary road is reclaimed and re-vegetated to meet roadless characteristics. The RACNAC recommended further clarifications when temporary roads could be built, who could use them, and how they would be decommissioned. Response: The final rule now contains a definition of temporary road . Use of such roads is restricted, although use of these roads for Forest Service administrative purposes is permissible, as defined at 36 CFR 212.51(a)(5) (involving fire, military, emergency, or law enforcement vehicles for emergency purposes). In the final rule, the use of a discretionary temporary road outside the CPZ will be limited in scope and only occur if no other reasonable alternative for treating the fuels is available. If a temporary road is determined to be necessary to support allowed activities such as fuel treatments to reduce a significant risk situation, the Forest Service can ensure closure and rehabilitation through contract provisions for any associated timber sale or stewardship contract. Temporary roads are sometimes necessary to allow purchasers to access and transport timber. Specific timber and stewardship contract provisions govern the authorization, construction, operation, and restoration of these temporary roads. In the past, the Agency has sometimes waived the contract's decommissioning requirement because the Agency intended to continue to use the road for other multiple-use purposes, such as post-sale reforestation projects, monitoring, or fire protection. However, closure of these roads then became dependent upon the Agency receiving funding. This led to many temporary roads remaining open without decommissioning. The final rule reinforces that new temporary fuel treatment roads must be decommissioned when the project is completed and will not be open for public use while the project is underway. Additional funding for road closures would not be necessary. A definition for road decommissioning is provided in the final rule. Definitions for rehabilitation and closure are not provided as these terms are not used in the final rule. Agency road definitions are found at 36 CFR 212.1, and the regulations found in 36 CFR part 212 are applied for all road construction and do not need to be repeated in this rule. See FEIS Appendix O for more details regarding road construction and decommissioning. Comment: Roads in the BCR theme. Several respondents felt that the proposed rule allowed too many opportunities to build roads in the BCR theme. They suggested that the 2001 roadless rule language should be used to protect these areas. One respondent suggested no roads be built in the BCR theme. Another respondent suggested limiting all roads in BCR to temporary roads and using them only for fire protection needs, not habitat improvement projects. If a permanent road is needed, the respondent wanted more justification requirements. Others suggested more roads should be allowed in the BCR theme without restrictions. Response: The Department agrees with respondents that the scope and conditions for building temporary roads in the BCR theme needed refinement. The Department has concluded that building new roads for fuels treatments should be limited to two circumstances: (1) To conduct fuel treatment activities within the CPZ; and (2) to conduct fuel treatment activities outside the CPZ only where a significant risk of wildfire effects to an at-risk community or municipal water supply system can be demonstrated and only when roadless values can be improved or maintained over the long-term. Other exceptions are made in the BCR theme for public health and safety reasons or for reserved or outstanding rights. The 2001 roadless rule lists the same exemptions. Like the 2001 roadless rule, roads for habitat improvement projects are not allowed. It is anticipated that most roads will be temporary. However, the Department recognizes that a permanent road may need to be constructed in some situations, such as access for a private land inholding. Justification for a permanent road will need to be established for any proposed project. Comment: Roads for forest health activities. Several respondents recommended that no roads be allowed in the BCR and the GFRG themes for the purpose of forest health. Other respondents suggested that temporary roads should be permitted only for vegetation management for wildlife and forest health reasons. Another respondent suggested allowing temporary roads for only forest health activities but not habitat improvement projects in the BCR theme. Response: The RACNAC could not come to a consensus on whether new roads to facilitate forest health activities should be permitted outside the CPZ. After careful deliberation, the Department decided that no new roads (temporary or permanent) for forest health purposes should be built in the BCR theme, but such activities could be conducted from existing permanent roads, temporary roads allowed by this rule, or by aerial harvest systems. The final rule does permit road construction for forest health activities in the GFGR theme as long as the activity is consistent with applicable LMP components. Comment: Responsible official for authorizing construction of permanent roads. One respondent thought that decisions regarding whether or not a permanent road is needed should be made at a higher level than that of the local line officer. Response: The final rule identifies roles for responsible officials in connection with various activities across the different themes. Regional foresters will be responsible for certain determinations, for example road construction activities in BCR theme outside the CPZ. Standard delegation of decisionmaking authority found at Forest Service Manual (FSM) 1230 will operate unless specified otherwise in the final rule. Comment: Roads in GFRG. One respondent felt that no permanent roads should be built GFRG. Another respondent felt that the 2001 roadless rule approach should be the minimum protection for the GFRG theme. Response: Based on public comment, input from Tribal representatives, and RACNAC advice, the Department made a net reduction in the amount of the GFRG theme by approximately 203,700 acres. In addition, roads may not be constructed or reconstructed to access new mineral leases except in association with specific phosphate deposits. The Agency has carefully reviewed existing management direction and potential uses of these lands to ensure that the appropriate management theme is being applied for each IRA. This specific review goes beyond what was undertaken during the 2001 rulemaking and these refinements reflect the best judgment and expertise of the Forest Service. Proposed Section 294.24 Mineral Activities in Idaho Roadless Areas Summary of Changes to Proposed Section 294.24 (Final Rule Section 294.25). Mineral and energy potential within IRAs was given serious consideration. The minerals portion of the rule has been reorganized and now provides management direction for each theme. Paragraphs (a) and (b) separately identify that the rule provisions apply prospectively and only where the Department exercises discretionary authority. The final rule does not include the proposed rule's (section 294.24(a)) language “including any subsequent renewal, reissuance, continuation, extension, or modification, or new legal instruments, for mineral and associated activities on these or adjacent land.” This provision, in particular, the adjacent land phrase allows new access and road building, mainly for phosphate mining, to occur where a post-rule modification to a pre-existing lease resulted in an enlargement of the original lease boundary regardless of theme. The RACNAC could not reach consensus on the issue of phosphate mining. However, there were discussions during committee deliberations expressing support for a recommendation that the final rule eliminate the exception for phosphate mining in the BCR theme lands and move appropriate acres of known phosphate lease areas (KPLAs) and a buffer zone into GFRG theme lands. Based on these comments, the Department is eliminating the adjacent lands provision. New access will only be permitted where the expansion falls within the GFRG theme. This change is not to be construed as limiting access or other related activities associated with mineral leasing, including lease renewals, reissuances, continuations, extensions, or modifications issued prior to the effective date of this rule regardless of the theme. The Forest Service in cooperation with the State, Bureau of Land Management (BLM), the RACNAC, and other interested parties identified the locations of phosphate mining activities most likely to occur in the future and adjusted the land classifications to focus on a smaller number of acres that could be available for mineral development and conserving the roadless character of the remaining areas. These adjustments allow the Agency to preserve the unroaded character of the vast majority of these lands, especially certain high quality fish and game habitat (e.g., portions of Deer Creek and Bear Creek), while recognizing long-standing interest in limited development of nationally critical phosphate mineral resources by industry and local communities. By adjusting the classifications for specific lands the Agency will provide better resource protection while making essentially the same number of acres available for phosphate development. Because of these adjustments, the proposed rule's exceptions for new phosphate activities in the BCR theme were no longer necessary and have been removed. Thus, for leases obtained after the effective date of this rule, road construction and other associated activities can only occur in areas designated as GFRG theme to access specific phosphate deposits identified in Figure 3-20 in the FEIS. As a result, under the final rule road construction or reconstruction will only be permissible in specific areas (5,770 acres of KPLAs) where there is very high potential for development in the future. This refinement addresses concerns regarding unbounded geographic scope of these possible activities within IRAs. Road construction is not permitted after the effective date of the final rule for mineral leasing in BCR theme areas, but the final rule does not bar surface occupancy unless prohibited by the applicable LMP. The Forest Service will no longer recommend, authorize, or consent to road construction or reconstruction associated with post-rule mineral leases in GFRG theme areas, except for phosphates. Currently, the known oil and gas potential is low and some LMPs restrict or prohibit new exploration. Geothermal development is currently speculative in IRAs and a major part of the areas with potential for its development is outside IRAs. Therefore, an exception for oil and gas or geothermal leasing is not warranted. The final rule also clarifies that surface occupancy is permissible within GFRG theme areas unless prohibited by the applicable LMP. This is consistent with the approach taken by the 2001 roadless rule. The Agency will also require that permissible road construction or reconstruction associated with mining activities in the GFRG theme will only be approved after evaluating other access options. The use or sale of common variety mineral materials in the GFRG theme will only be permitted where it is incidental to an otherwise lawful activity. Comment: Mineral activities. One respondent asked for clarifying language concerning surface use and roading for mineral activities with respect to each of the themes. Others felt that the proposed regulations did not provide adequate environmental protection for mineral extraction operations. Some respondents felt there should not be any new roads allowed for mineral development. Others felt there should be no mineral development of any kind on national forests and suggested pursuing a formal statutory withdrawal of lands under the mining laws. Response: After consideration of these comments, the Department determined that surface use and occupancy for leasable minerals will only be permitted in the BCR and GFRG theme areas, and that any such operations may be further restricted or prohibited by the applicable LMP components. Comparatively, these limitations are more restrictive than the 2001 roadless rule, which permitted surface use and occupancy on any inventoried roadless area. However, the Department declines the request submitted by some respondents that USDA request the Secretary of Interior to initiate the Federal Land Policy and Management Act (FLPMA) withdrawal process for all roadless areas or all NFS lands. Instead, the final rule establishes limitations on the future exercise of discretion available to Forest Service responsible officials. These limitations include: (1) No road construction or reconstruction or surface occupancy in the WLR, SAHTS, and Primitive theme areas; (2) no road construction or reconstruction for mineral leases in BCR theme areas; (3) no road construction or reconstruction for mineral leases in GFRG theme areas except for activities associated with phosphate deposits; and (4) in the BCR and GFRG theme areas, the use and sale of common variety mineral materials, and associated road construction access these mineral materials may occur only when the use of these mineral materials is incidental to an activity otherwise permissible by this rule. Comment: Saleable minerals. One respondent suggested that sale of common variety minerals should be restricted within BCR theme areas. Another respondent asked for clarification for why some saleable mineral activities are allowed when associated with other allowable activities, what these other allowable activities would be, how frequent, and what is the pubic benefit. Another suggestion was to provide an exception for the Forest Service to use of common variety minerals in support of its activities, like road or trail maintenance. Response: Commercial permitting of salable minerals in the BCR and GFRG themes is prohibited in the final rule. This addresses public concerns over this type of mineral development. Practically speaking, there is no independent commercial interest in development of these saleable minerals in IRAs. The total average production of mineral materials from NFS lands represents only about 1 percent of the total mineral materials production for all of Idaho (FEIS, section 3.5 Minerals and Energy). Saleable minerals will only be made available as incidental to an otherwise permissible activity. The majority of saleable mineral use has been gravel for road construction, reconstruction, and maintenance or for Agency facilities development including trails. For example, gravel may be necessary to reduce the sediment from a road permitted in the BCR theme by this rule and could be authorized where an appropriate gravel source is in proximity of the road. This exception is expected to be rarely used, but is important because it allows use of saleable minerals for protection of other resources in IRAs without the increased costs of hauling these materials long distances. It also allows the Agency to use these sources in support of permissible road, trail, or facilities construction or maintenance. Comment: Phosphate and leasable minerals. Several respondents expressed concern over allowing any expansion of phosphate mining in IRAs, especially Primitive and WLR themes, although phosphate is only known to occur on about 14,460 acres in IRAs. Many comments pertained to public concern for the phosphate mining-related effects of selenium on water quality. Some Tribes shared this concern and also expressed concern over the potential loss of trust resources. Respondents requested clarification about how far road construction and development would extend outside of existing leases into roadless areas. The BLM suggested the rule allow for a one-half mile expansion buffer around existing leases as there are some leases outside the known phosphate lease areas (KPLAs) and the rule should not restrict access to these deposits. The BLM sought other clarifications and urged the Department to provide flexibility to administer existing leases to ensure maximum recovery of the resource by allowing the building of roads, water wells, power lines, and other supporting facilities on off-lease sites. Other respondents stated that the rule should clarify whether modifications of existing leases in an IRA, which are part of the KPLA, are allowed and how existing lease rights are dealt with in the Primitive designation. One respondent felt that all KPLA and existing leases should be moved to the GFRG theme. Other respondents felt phosphate leases should be confined to KPLAs and not to the entire BCR theme. Another respondent suggested known and high potential KPLA areas should be moved to the GFRG theme, and all other KPLAs moved to BCR where their development should not be allowed. Another respondent felt the rule should include requirements for mine clean up and the prevention of any future selenium pollution before any expansion of phosphate mining areas. One respondent felt there should be no expansion of phosphate mines under any circumstances. Response: Mineral activities were one of the areas where the Department made a specific request for public comment in the preamble to the proposed rule (73 FR 1139). The RACNAC could not come to consensus on the issue of phosphate mining within IRAs. However, during RACNAC's deliberations, several committee members recommended that if the Agency were to allow road construction and reconstruction for leases obtained after the effective date of this final rule, that those activities be limited to areas managed pursuant to the GFRG theme. The Department agrees, and believes that with fine tuning of the allocations, all new road construction or reconstruction associated with post-rule phosphate leases can be limited to the GFRG theme. After careful review of KPLAs and the specific classifications in the proposed rule, the Agency changed the proposed designation of some BCR theme areas in the proposed rule to the GFRG theme in the final. Not all KPLAs with phosphate potential proposed as BCR theme were changed to the GFRG theme. Several areas including the Bear Creek IRA, retain their BCR theme designation because those areas exhibit other high resource values. Approximately 1,280 acres of unleased phosphate are retained in the Primitive theme and 6,500 acres in the BCR theme. In addition, about 910 acres are in the GFRG theme in the Bear Creek Roadless Area but are not specified on figure 3-20. Therefore, roads may not be constructed to access any of these areas. The Agency also agreed with the BLM's recommendation that, consistent with local land management plan components, the KPLAs should have a one-half mile buffer to allow for any uncertainties about where the ore body is located. For leases obtained after the effective date of this rule, road construction and other associated activities can only occur in areas designated as GFRG theme to access phosphate deposits identified in Figure 3-20 in the FEIS. This rule does not grant automatic access across the GFRG theme to ore bodies depicted in the map. However, it does allow consideration and review of the merits of individual applications which will undergo site-specific environmental analysis, including consideration of access options. The Department believes maintaining future options within the select GFRG theme areas are important to communities in Southeast Idaho and to the nation because of the increasing demand for phosphate. The Department believes these permissions and restrictions provide a balance between providing access to a limited portion of a significant national resource and protecting roadless area values. Of course, any future development proposals would themselves require site-specific environmental analysis. Additionally, the final rule directs the responsible official to review other access options and assure consistency with applicable LMP components before authorizing any new road construction associated with mineral activities in IRAs. Similar to the proposed rule, the final rule also directs that temporary road construction must be conducted in a way that minimizes effects on surface resources, is consistent with LMP components, and may only be used for specified purposes. Like the 2001 roadless rule, this final rule honors valid existing leases. In this situation, the Forest Service will permit necessary road construction, road reconstruction, and surface occupancy for existing leases regardless of the theme. The issue of phosphate mining and selenium pollution is discussed in the FEIS at pp. 186, 187, 205, 208, 210, 211, 216, 259, 262, 264, 267, 277, 291, and 294. The Department has determined that requirements for mine clean up and the prevention of any future selenium pollution is best handled at the site-specific project level. Comment: Locatable minerals. One respondent suggested language allowing access similar to the language proposed under leasable minerals should be included for locatable minerals. Response: The final rule is clear that it does not intend to regulate mining activities conducted pursuant to the General Mining Law of 1872. The Agency has separate requirements relating to road construction and maintenance for locatable minerals at 36 CFR 228.8(f) that adequately provide for these protections. Recently, the Agency proposed a revision of its locatable mineral regulations; questions concerning access to locatable minerals will be governed by that final rule. Therefore, it was determined that no further adjustment of this regulation is necessary. Comment: Energy resources. Several respondents suggested that the rule should not include an exemption for oil and gas or geothermal development as there is currently no known potential for their development. These respondents further asserted that future energy exploration should be dealt with under the proposed change clause, and that there are sufficient places outside roadless areas where alternative energy sources like wind, biomass, and geothermal can be developed. Response: As identified in the FEIS, there is low potential for oil and gas development in Idaho but there is some potential for geothermal energy. Wind energy is more developed in southern Idaho and there appears to be ample opportunities for expansion outside roadless areas. The Western Energy Corridor study was also considered during development of this rule and no corridors have been identified in IRAs. There is currently one geothermal facility in Idaho generating electricity. Because the development of this resource is in its infancy and would be widely available on private and the roaded portion of NFS lands, the Department has determined there is not a need to allow roads for developing geothermal energy in IRAs at this time. If the State or other parties believe new information or circumstances warrant an adjustment, a change of the rule's restrictions can be sought and considered though the rule's modification process. For now, the final rule prohibits new road construction or reconstruction within any theme for post-rule oil and gas, and geothermal leasing. Surface use and occupancy would still be permitted in the BCR and GFRG themes so long as the LMP components do not expressly prohibit such activities. Comment: Consultation with mining and energy interests. A respondent suggested the Agency should consult with State of Idaho agencies and mining, energy, and geothermal industry representatives to assure the rule does not restrict or confuse development. Response: The Department highlighted its desire for public comment concerning mineral and energy issues in the proposed rule. With regard to phosphates, as noted above, the Agency and State have coordinated with BLM, representatives of the affected industry, Tribal representatives, environmental groups, and other interested parties to identify the IRAs that possess resource values other than phosphate development and placed those areas in themes that would preclude future development. The Forest Service also worked with the BLM to ensure that both agencies understood the extent of phosphate development that would be permissible in IRAs. Comment: Project-by project approach. One respondent recommended that decisions regarding mineral exploration and development should be made project-by-project rather than rule classifications for BCR and GFRG themes. Response: A project-level approach would effectively be the same as the system examined in Alternative 2—Existing Plans, which is analyzed in detail in the draft and final EISs. The Department believes that the final rule (Alternative 4) presents a better approach blending local understanding of these regional interests along with national interest in roadless area management, minerals management, and energy security. Additionally, the modification provision set out in section 294.27 is available for adjustments as needed for individual projects. Proposed Section 294.25 Timber Cutting, Sale, or Removal in Idaho Roadless Areas Summary of Changes in Proposed Section 294.25 (Final Rule Section 294.24) . Paragraph (a) has been reworded for clarity but retains the same limitations on timber cutting in WLR presented in the proposed rule. The proposed rule's use of significant risk in paragraph (b)(1)(ii) in the Primitive and SAHTS themes has been eliminated and has been revised with language that better describes a narrower exception focusing on protection for at-risk communities and municipal water supply systems from uncharacteristic wildland fire effects. As explained in the FEIS at section 3.3, Fuels Management, these fuel treatments are necessary to reduce potential direct and indirect effects of wildland fires to these communities. This aligns more closely to the Department's, Forest Service's, and State's desire to provide protections similar or beyond those provided by the 2001 roadless rule without sacrificing necessary flexibility for the protection of critical community interests. Instead of splitting limitations on these activities across multiple paragraphs as in the proposed rule, section 294.24(b)(2) lists all limitations. The final rule also clarifies that when assessing whether actions maintain or improve roadless characteristics, responsible official's evaluations examine long term effects rather than only immediate consequences. Several refinements have been made to the provisions concerning timber cutting in the BCR theme. The final rule includes new provisions in section 294.24(c)(1)(i-ii) to refine instances where timber cutting can be conducted to reduce hazardous fuel conditions. The rule now distinguishes between cutting for fuel reduction purposes inside and outside CPZs and requires additional protections and findings for actions taken outside a CPZ. The final rule clarifies that significant risk will be addressed in terms of landscape condition and fire event probability. Consistent with the concepts of the 2006 Cohesive Strategy, the regulation now identifies and defines the factors that go into that determination—history of fire occurrence along with fire hazard and risk. These adjustments parallel changes made in the road construction provision in the final rule discussed above. The RACNAC and some respondents expressed concern regarding whether temporary roads should be constructed for facilitating forest health or other permissible timber cutting, sale, or removal activities in BCR theme areas. The Department agrees that new roads, even temporary roads, should not be developed to undertake these types of timber cutting activities because of their potential to diminish roadless characteristics. However, the final rule recognizes that with appropriate limitations, such as maximizing the retention of large trees, these activities could make use of roads that already exist and roads authorized under the various provisions of this rule (including temporary roads until decommissioned). By allowing the use of existing and permissible roads to support limited timber cutting activities, the ability to accomplish limited forest health objectives can be met without diminishing roadless characteristics over the long-term. Such roads would not be available to support further timber cutting operations once they are decommissioned. General instructions regarding temporary roads have been added in a new paragraph (d) based on input from RACNAC and the public. Comment: Limits on timber cutting. One respondent suggested limiting timber cutting, sale, or removal in the Primitive theme to only those timber activities that will improve one or more of the roadless characteristics. Several respondents suggested timber cutting should be limited in the Primitive theme to instances where it would improve one or more roadless characteristics and maintain the quality of game and fish habitat and recreation experience. Other respondents suggested that an exception be included for the Primitive theme allowing treatment for human health and safety near trails or other recreation sites. For the BCR theme, it was suggested the cutting, selling, or removing of timber be limited to where it will maintain all roadless characteristics or improve one or more of the roadless characteristics. Another respondent felt the rule should disclose the controversy over the use of logging as a fuels reduction method. Another felt that the proposed rule exceptions were ambiguous and that the DEIS underestimated potential effects. Other respondents wanted to know why language in the 2001 roadless rule concerning generally small diameter and the range of variability were are not carried forward into the proposed rule. Similarly, other respondents asked for clarification about whether large diameter trees can be logged and consideration of a limitation to small diameter trees and/or an old-growth, large tree retention requirements. Response: Based on these comments, the Department has elected to follow the approach used in the Healthy Forests Restoration Act (HFRA) with modifications recommended by the RACNAC. In the Primitive theme, timber cutting under the final rule would be prohibited unless existing roads or aerial systems are used and the cutting, selling, or removing of timber would: (1) Improve threatened, endangered, proposed, or sensitive species habitat; (2) maintain or restore ecosystem composition, structure, and processes; or (3) reduce the risk of uncharacteristic wildfire to at-risk communities and municipal water supply systems. Such cutting, selling, or removing of timber would also have to maintain or improve one or more of the roadless characteristics over the long-term. Some additional requirements for timber cutting were added, including: (1) Timber cutting, selling, or removing must be approved by the regional forester; (2) retention of large trees as appropriate for the forest type to the extent the trees promote fire-resilient stands must be maximized; and (3) projects must be consistent with applicable plan components. With these limitations, timber cutting activities on these lands is expected to be limited and infrequent. The cutting of hazard trees near trails and recreation sites for human health and safety is allowed under section 294.24(b)(v) as it is incidental to a management activity not otherwise prohibited by this final rule. For the BCR theme, the final rule modifies the proposed rule's timber cutting provisions (section 294.25(c)(1)(ii)) to be more specific about where and under what conditions timber cutting is permissible. The final rule identifies that timber cutting would only be allowed as follows: (1) To reduce hazardous fuel conditions within the CPZ; (2) to reduce the significant risk of wildland fire effects to an at-risk community or municipal water supply system outside the CPZ; (3) to improve threatened, endangered, proposed, or sensitive species habitat; (4) to maintain or restore the characteristics of ecosystem composition, structure, and process; (5) to reduce the risk of uncharacteristic wildland fire effects; (6) for personal or administrative use; (7) where incidental to implementation of a management activity not otherwise prohibited by this rule; or (8) in a substantially altered portion of an IRA. Additional conditions were added for actions undertaken to reduce significant risk of wildland fire effects outside of a CPZ; to maintain or restore characteristics of ecosystem composition, structure, and process; and to reduce the risk of uncharacteristic wildland fire. These actions must also maintain or improve one or more of the roadless characteristics over the long-term; maximize the retention of large trees as appropriate for the forest type, to the extent the trees promote fire-resilient stands; are consistent with LMP components; and are approved by the regional forester. The 2001 roadless rule used the phrase generally small diameter . The requirement to retain large trees as appropriate for the forest type replaces that terminology. This language was recommended by the RACNAC and has been part of the Agency's implementation of HFRA and the Agency believes the language will be better understood by field personnel. The new language reflects the site-specific flexibility needed to treat certain forest types in Idaho (e.g., lodgepole pine). A definition of forest type has been added in the final rule that is drawn from the definition of that term in the Dictionary of Ecology. The Agency will continue to emphasize the use of stand thinning, strategic fuel breaks, and prescribed fire where possible to reduce the forest fuel loading. Similarly, the language “within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period” found in the 2001 roadless rule is not used in this rule because it does not easily account for species like lodgepole pine that routinely experiences stand replacement fires, and although it may not be outside of its natural disturbance regimes, it could pose a significant risk to at-risk communities. Comment: Restrictions on logging methods. One respondent suggested that only selective logging by helicopter should be allowed in themes where timber cutting is allowed because it would allow for better quality wood without habitat destruction. Another respondent felt that the rule should clarify whether maintaining roadless character means that there will be no clear-cutting or seed tree harvest methods. Response: The Department believes selection of logging methods to meet silvicultural treatment objectives is best left to project-specific decisionmaking. A general prohibition on particular harvest systems, like clear-cutting or seed tree harvest methods, could preclude necessary and otherwise permissible activities for treating areas. Some areas with low commercial value, like lodgepole pine stands, may be in need of treatment to protect local communities and municipal water supplies. Restricting logging methods would unnecessarily endanger these at-risk communities and municipal water supplies. Comment: Timber cutting and vegetative treatments to improve roadless characteristics. Several respondents felt it was confusing to allow timber cutting under proposed section 294.25 if it will maintain or improve one or more of the roadless characteristics and suggested changing the standard to be an assurance that timber cutting does not degrade roadless character. One respondent suggested more rationale is needed before conducting vegetative treatments to reduce significant risks or for forest health activities in the Primitive and BCR themes. Other respondents felt language was needed that requires scientific documentation before activities for the maintenance and improvement of threatened, endangered, and sensitive species can be authorized in roadless areas. Response: The final rule language has been modified and section 294.24(c)(2)(i) now provides that actions should maintain or improve roadless characteristics over the long-term. The final rule includes additional definitions and clarifications addressing when and where actions undertaken for maintaining or restoring the characteristics of ecosystem composition, structure, and processes; or significant risk situations may occur. Agency procedures already require responsible officials to identify the reasons for their decisions and the scientific and other source material relied upon for agency conclusions. Therefore, additional requirements are not necessary. Comment: Wildland urban interface (WUI). Many respondents requested clarifications and definition concerning WUIs and communities. One respondent felt that a roadless area by definition is not part of the urban interface and should not be included in WUI areas. Some respondents suggested expanding the radius beyond one mile, while others suggested reducing the radius to 200 feet. Still others wanted more application of science when determining WUI boundaries. Response: The proposed rule did not specifically use WUI as a condition for road construction or timber cutting. The proposed rule permitted road construction or reconstruction and timber cutting, sale, or removal in the BCR theme to reduce the significant risk of wildland fire effects. Significant risk was defined as “a natural resource condition threatening an at-risk community or municipal water supply system.” WUI as defined by the HFRA includes an area within or adjacent to an at-risk community that is identified in a community wildfire protection plan (CWPP) or is based on default criteria if a CWPP does not exist. CWPPs are completed for all counties in Idaho. Based on public comment and RACNAC recommendations, the timber cutting section was modified to be more precise about where and under what conditions timber cutting could be done. Timber cutting, sale, or removal could be done in the CPZ as described as an at-risk community in HFRA. The CPZ is an area extending one-half mile from the boundary of an at-risk community; or an area within one and a half miles of the boundary of an at-risk community, where any land (1) has a sustained steep slope that creates the potential for wildfire behavior endangering the at-risk community; (2) has a geographic feature that aids in creating an effective fire break, such as a road or a ridge top; or (3) is in condition class 3 as defined by HFRA meaning areas where fire regimes on land have been significantly altered from historical ranges; there exists a high risk of losing key ecosystem components from fire; fire frequencies have departed from historical frequencies by multiple return intervals, resulting in dramatic changes to: (1) The size, frequency, intensity, or severity of fires; and (2) landscape patterns; and vegetation attributes have been significantly altered from the historical range of the attributes. The final rule's definition of an at-risk community comes from the HFRA. Comment: Use of community wildfire protection plans (CWPPs). Several respondents raised concerns over the legality of using CWPPs in the rule to define the WUI because the development of a CWPP is not solely in the control of the Federal Government. Some felt the Proposed Rule's references to HFRA may unintentionally broaden forest fuels treatments in roadless areas beyond limited community protection needs. Others suggested adding language to cover any updates to the HFRA Interim Field Guide. They also noted the field guidance is not limited to community protection and includes municipal watersheds, ecosystem components, and forest/rangeland resources. Response: CWPPs were not specifically referenced in the proposed rule. However, consideration of CWPPs was implied in provisions regarding timber cutting and road construction to reduce significant risk. The CWPPS were considered when developing the final rule as a way to define a geographic area for projects that reduce significant risks to communities and municipal water supply systems. However, this concept was not considered in detail because it is too difficult to define. Each CWPP is developed based on a variety of information, some more scientific than others; and a set distance may not work in many cases. While CWPPs can provide helpful information, they are not developed and controlled solely by the Federal Government, and can vary widely. In some instances, the county's CWPP indicates the entire county is a WUI including all IRAs within the county. Therefore, the Department decided that reliance exclusively on CWPPs was not appropriate. After consideration of public comments and the RACNAC's recommendation for allowing road building in certain circumstance described above, the Department has decided to use a combination of specific geographic criteria (the CPZs) and added requirements for the situations when road construction and reconstruction could be used to facilitate timber cutting to reduce significant risk outside the CPZs. Responsible officials can consider information from CWPPs as in many instances they may be a useful tool for determining whether a significant risk situation exists. Comment: Vegetation treatments in the BCR theme. One respondent suggested that documentation should be required for maintenance or improvement of habitat for threatened, endangered, proposed, indicator, and sensitive species. Another respondent recommended inclusion of aspen as a type of restoration project. One respondent felt that the rule should be more flexible in the BCR theme to allow for management treatments outside of WUI and municipal watersheds. Another respondent questioned if timber cutting activities in the BCR theme would maintain all roadless characteristics or improve one or more of the roadless characteristics. Response: Agency planning procedures (i.e., NFMA, NEPA, ESA) already require analysis, documentation and disclosure of the scientific and other information relied upon for agency conclusions regarding wildlife habitat. Therefore, additional requirements are not necessary. Treatments in aspen stands are allowed as long as they conform to the requirements of the rule. For a discussion of activities outside of WUI, see the discussions above under significant risk and under Summary of Changes in Proposed Section 294.25 (Final Rule Section 294.24 ). As a clarification, the final rule limits timber cutting in the BCR theme to situations that (1) maintain or improve one or more of the roadless characteristics over the long-term; (2) maximize the retention of large trees as appropriate for the forest type to the extent the trees promote fire-resilient stands; (3) are consistent with LMP components other than those inconsistent with this final rule; and (4) are approved by the regional forester. Comment: Forest health activities. Some respondents were concerned over the possible abuse of this exception and thought the language should be struck from the rule. One respondent thought the two exceptions in proposed section 294.25(c)(1) should stand on their own and the reference to forest health should be removed. Others felt that a definition was needed for the term forest health and that further parameters should be included. Another respondent thought forest health projects should not be allowed in the BCR theme, making the proposed rule more like the 2001 roadless rule. One respondent felt forest health should not be confined to the health of trees but other parts of the ecosystem. Response: The final rule has been designed to address vital forest health needs. The final rule removes the proposed criteria that a road could be constructed “to facilitate forest health activities.” The final rule does not include a definition for forest health because the term is not used. The BCR theme in the final rule does not permit road building for the purpose of conducting limited forest health activities. However, these limited forest health activities may proceed using other means, including the use of aerial systems and existing roads, including those temporary roads authorized by this rule until the road is decommissioned. This adjustment is intended to add a small degree of flexibility under special circumstances while maintaining essentially the same management regime for these lands as directed under the 2001 rule. The final rule does not impose restrictions on forest health activities for the betterment of the ecosystem beyond those expressly addressed by the regulation. For example, stream habitat improvements like willow planting for shade improvement are unaffected by the rule. Proposed Section 294.26 Other Activities in Idaho Roadless Areas Summary of Changes in Proposed Section 294.26 (Final Rule Section 294.26) . The rule language concerning motorized travel, motorized equipment, and mechanical transport has been simplified with no change in intent. Along with other minor wording changes, the grazing provision now uses permit rather than allotment . The proposed and final rules both indicate that future grazing operations will conform to the rule, but that current operations are not affected. Standard Forest Service grazing permits have a maximum ten-year term. Allotment management planning occurs periodically and has no set term. The Department's intention for bringing future grazing operations into conformance with the rule classifications is more readily accomplished through the mandatory term permit system than through the optional allotment management planning system as not all operations are covered by an existing allotment management plan. Comment: Public involvement during transportation planning. A respondent suggested the rule should require that any present or future roads analysis conducted in an Idaho roadless area should be shared with county commissioners. Response: The Governor's petition and final rule at section 294.26(a) identify that decisions concerning the future management and/or status of existing roads or trails in IRAs under this rule will be made during the applicable travel management processes. Forest Service responsible officials are already directed to coordinate with counties when engaged in travel management d [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-24285. Public record. Not legal advice.