CWF-NWF Roadless Comments

October 8, 2009


October 6, 2009         
Mike King
Deputy Director
Colorado Department of Natural Resources
1313 Sherman Street, Room 718
Denver CO 80203
Via electronic mail:
And hand-delivered
Dear Mike:
Please accept the following comments from the Colorado Wildlife Federation and the National Wildlife Federation regarding the Forest Service’s proposed 2009 Roadless Area Conservation Rule for Colorado (July 28, 2009). (hereinafter “CRR”).
The Colorado Wildlife Federation (CWF) is a statewide tax exempt 501(c)(3) nonprofit, membership based, mainstream wildlife conservation organization. Formed in 1953, CWF is Colorado’s oldest wildlife conservation organization. CWF’s mission is to promote the conservation, sound management, and sustainable use of Colorado’s wildlife and wildlife habitat through education and advocacy. CWF understands that wildlife habitat is critical to conserving Colorado’s unique wildlife, hunting and fishing heritage and wildlife viewing opportunities. These wildlife-related recreation pursuits enrich the well-being of Colorado’s residents and out-of-state visitors and form a substantial segment of Colorado’s economy.
The National Wildlife Federation (NWF) is a national member-supported non-profit conservation, education, and advocacy organization. NWF is associated with conservation organizations in 47 states and territories, including CWF in Colorado. NWF is dedicated to conserving wildlife and other natural resources, and believes that hunting, fishing, and trapping are legitimate recreational pursuits and useful wildlife management practices. NWF works to promote responsible management of wildlife on public lands.
As an initial matter, we believe that the implementation of a roadless rule that is best for Colorado is essential for the conservation of wildlife, including threatened, endangered and sensitive species, U.S. Forest Service Management Indicator Species terrestrial species and aquatic species in Colorado. The Colorado Division of Wildlife, the state agency with the constitutional responsibility to manage Colorado’s wildlife, has noted the importance of roadless areas as necessary to conserve the values and characteristics essential to the success of the Division’s wildlife-management mission, and to the future of the state’s wildlife resource and the sustainable economies dependent on abundant natural resources. There is strong public support for continued robust protection of roadless areas on National Forest System lands within Colorado, including the hunting, fishing and wildlife viewing public who rely on those lands not only for direct recreational use, but also for the habitat they provide to maintain populations of a variety of important wildlife and fish species. Professional scientific data from the Colorado Division of Wildlife submitted to the Task Force provide overwhelming evidence of the importance of roadless areas for a large number of game and nongame species important to Colorado, Coloradans and visitors. The essential wildlife habitat values provided by Colorado’s approximately 4.1 million acres of Inventoried Roadless Areas are irreplaceable.
The 2001 Roadless Area Conservation Rule provided important, broad protection for 4.1 million acres of roadless areas in Colorado. We strongly support the basic intent and purpose of the 2001 roadless rule. As wildlife conservation organizations, we also recognize that there have been important changes in the states landscapes, forests and streams that have inevitably occurred since the 2001 rule was developed nearly nine years ago. The 2009 proposed CRR addresses some of these new realities, including:
--The proposed CRR addresses the significant problem of roadless area impairment due to development of existing oil and gas leases, an issue that the 2001 Roadless Area Conservation Rule failed to fully address.
-The proposed CRR includes major boundary changes recommended by Division of Wildlife managers that protect 410,000 acres not included in the 2001 rule.
--The CRR would allow additional boundary changes that are restricted under the 2001 rule.
--The CRR would eliminate the “construction zone exemption” identified in the 2001 rule by the 10th Circuit Court of Appeals. The 2001 rule includes a loophole that potentially could be used to advance any kind of construction project that did not require a road.
--Exceptions for roads to access grazing allotments would also be eliminated under the CRR.
For the 2009 proposed CRR to protect Colorado’s roadless areas, however, it is important to make selected strategic revisions.  While we recognize and appreciate several significant improvements in the State’s current version since the Forest Service’s draft rule, the proposed CRR is deficient in its use of some unsupported and ill-defined exceptions that undermine the stated goal of conserving roadless area values.   These necessary revisions include:
--Much stronger protections for roadless areas between ½-mile and 1-½-miles from communities at risk for catastrophic wildfire.
--A much tighter definition of what an “at-risk community” is under the CRR. The current language in the 2009 rule is much too vague.
--Overly broad allowances for road construction for coal mining in the North Fork area. We are especially concerned about mining the Currant Creek, an area with intact wildlife habitat and a migration corridor that the Division of Wildlife has specifically recommended for roadless protection.
--Removal of 8,200 acres from roadless protection for potential ski-area development.
These following comment sections are intended to address several specific issues in the proposed CRR, and to recommend some alternative rules that we believe would better fulfill the State’s stated purpose to “provide greater management flexibility under certain circumstances to address unique and local land management challenges, while continuing to conserve roadless values and characteristics.” Draft Environmental Impact Statement (“DEIS”), 73 Fed. Reg. 43644 (July 25, 2008).
I.         Wildland Fire Hazard Mitigation
Community Needs, Tree-Cutting and Temporary Road Building:
            Suggested Amendments to CRR §§ 294.32(b) and 294.33(c)
We recognize that the State, the Forest Service, and communities throughout Colorado have struggled for years how to manage National Forest System lands to appropriately mitigate fire risk to communities. A quandary in attempting to manage fire risk through actions on federal lands is that while the Forest Service has substantial responsibility for fire prevention and management, it has no authority over the bulk of the actions on private land that most immediately affect life and property. The Forest Service does not regulate where homes or other structures are to be built, nor what actions property owners take in the key area immediately surrounding those structures. 
 The 2001 Roadless Area Conservation Rule limited fuels treatment logging to either exigent circumstances or small-diameter timber in situations where forests have departed from natural fire regimes. We recognize that many communities and agencies in Colorado desire greater flexibility in fuels management, but the CRR as currently drafted is unclear due to undefined terms, provides excessive latitude for roads and logging deep into roadless areas, and does not address what is a fundamental issue: creating incentives for fire safety treatments in close proximity to homes and structures.
We appreciate and acknowledge attempts in proposed CRR §§ 294.32(b)(1-3) and 294.33(c) to limit the scope of scenarios under which tree cutting and temporary road building could occur outside the community protection zone (CPZ). However, we are concerned that an arbitrary CPZ has been carried over from the Forest Service’s proposed Colorado Roadless Rule, allowing tree cutting and road building for the purposes of fire mitigation to occur 1.5 miles from the boundary of an at-risk community with line officer approval. A 1.5-mile CPZ is an arbitrary distance that is not supported by scientific studies. Depending on topography, community layout, winds, vegetation, and forest composition, treatments areas relatively close to houses or other structures play a useful role in fire response. It is unrealistic to expect to clear all potential ignition sources within a 1.5-mile radius of a (undefined) CPZ.
Perhaps more seriously, the draft rule’s definition of what is a CPZ – the basis for all the proposed exceptions – is fundamentally uncertain in the absence of a definition of “at-risk community.” We submit that use of the definition in Section 101 of the Healthy Forest Restoration Act (generally 3 structure per acre density) would clarify this ambiguity and is an appropriate boundary of an at-risk community, absent specific factors enumerated in our third recommendation below.   (For ready reference, we have provided a glossary of definitions on pages 6-8 that we are recommending.)
We believe that an effective rule should provide substantially greater certainty, and prioritize areas for effective treatment and minimize loss of roadless values, by more precisely defining and limiting its exceptions -- tree cutting and temporary road building -- by incorporating the following recommendations. 
First, rather than incorporate an arbitrary distance with little practical significance, the CRR should narrow the scope of the CPZ to lands within 0.5 miles from the boundary of an at-risk community – but add an exception to enable the Regional Forester to authorize treatment beyond this distance, as explained below as the third recommendation. We believe it is problematic to extend treatment approval by a line officer to an additional mile for areas that have been identified as “high priority” by a community wildfire protection plan (CWPP).   CWPPs are very important. But many, to date, have been crafted without the benefit of scientists who are experts in wildfires. Work on the minimum standards for CWPPs is in process.   It is premature to know whether the standards for new CWPPs will address roadless areas. Further, CWPPs emphasize flexibility. Although flexibility is appropriate for a particular community’s plan, it is difficult to craft a rule that authorizes a line officer to draw upon a CWPP’s (sometime subjective) designation of “high priority” areas.    As noted below in the third recommendation, however, we believe it is appropriate that a CWPP’s designation of a “high priority” within a roadless area may be considered as a factor by the Regional Forester.
Second, the term “at-risk community” should not be left to ad hoc interpretation, but should be defined consistent with the term “interface community” from the Healthy Forest Restoration Act, which generally (with provision for site-specific exceptions) uses a density of three houses per acre to determine the wildland-urban interface boundary.   Dr. Theobald’s model was alarming in its projected population growth within the wildlife urban interface. We believe a definition for an at-risk community that specifies less density than three houses per acre would serve to exacerbate future logging and tree cutting in roadless areas.
Third, the CRR should provide that the Regional Forester may exercise non-delegable authority to authorize tree cutting and temporary (never permanent) road building outside of the 0.5-mile CPZ only in certain limited circumstances. We suggest those circumstances include the following requirements:
·      A site-specific written determination, following consultation with two or more persons with scientific expertise in wildfire issues, that local patterns of topography, forest structure, and foreseeable wind and fire behavior are such that there exists a substantial risk of extreme wildfire danger to a community that cannot be reasonably mitigated through treatments within the CPZ; or
·      A site-specific written determination, in consultation with public safety officials responsible for an at-risk community, that lands immediately bordering an evacuation route require treatment to ensure safer evacuation from the at-risk community.
·      For either general risk-reduction or evacuation-safety projects, there should be a requirement that the Forest Service consider and encourage efforts, even if they would require education and voluntary programs for communities or individuals outside the Forest Service’s own direct authority, to engage in strategic fuel reduction, thinning, and/or vegetative management within the home ignition zone (100-200 feet, as discussed below) of at-risk structures. Logging in roadless areas should be a last resort after opportunities have been exhausted within this ignition zone to improve firefighter safety and reduce the possibility of damage to or destruction of homes by fire.
Any decision to allow tree cutting (and road temporary construction) outside of the immediate interface community itself, as defined below, should be permitted only following environmental analysis and a specific finding that no reasonable alternative (e.g., creation of defensible space around communities and structures) exists that would not have adverse effects on roadless values. The CRR should require the Regional Forester to consult with a team of wildfire scientists, who shall prepare a written environmental analysis examining whether the topography, wind pattern and forest in the area establish a substantial risk of extreme wildfire behavior that justifies tree cutting outside of the CPZ. Finally, as noted above, the Regional Forester may consider as a factor whether a CWPP has designated the area as “high priority.” The Regional Forester’s final decision should be made in writing, and should not be delegable.   In addition, one or more roadless area characteristics must be maintained or improved if cutting is to be undertaken outside of the 0.5-mile CPZ.
The CRR also should attempt to incorporate the concept of “home ignition zone,” defined by Dr. Jack Cohen as within 100-200 feet of a home.   The Rule should mandate that CWPPs require strategic fuel reduction thinning and vegetative management in the home ignition zone for the purposes of improving firefighter safety and reducing the potential for home destruction. Such a program should aim at educating homeowners and encouraging homeowner cooperation with Forest Service wildfire mitigation activities. In referring to home ignition zones extensively in his research on the Wildland-Urban Interface Fire problem, Dr. Cohen states, “[p]reventing WUI fire disasters requires that the problem be framed in terms of home ignition potential. Because this principally involves the home ignition zone, and the home ignition zone primarily falls within private ownership, the responsibility for preventing home ignitions largely falls within the
 authority of the property owner. Preventing wildfire disasters thus means fire agencies helping property owners mitigate the vulnerability of their structures.” The Wildland-Urban Interface Fire Problem, Forest  History Today, 20 (Fall 2008).   Both the Forest Service’s proposed Colorado Roadless Rule and the State’s latest draft CRR omit any recognition of this valuable concept. Requiring CWPPs to incorporate strategies for the home ignition zone would lessen the burden and bolster the success of any Forest Service wildfire hazard mitigation activities within the CPZ and encourage greater wildfire awareness among landowners.
In addition, we recommend that those provisions of proposed Section 294.32(b)(1) regarding tree-cutting to protect municipal water supply systems, should be amended to clarify, as we believe the State intends, that such logging would be limited to removal of trees posing immediate risk to water supply facilities themselves (e.g. intakes and pipelines), as defined in the proposed rule’s definitions and HFRA Section 101, and to explicitly exclude more general, potential watershed-wide risks (e.g. possibility of sedimentation to a reservoir from watershed-wide effects following a major fire event).
Finally, we believe that applying the standards for fire safety to any road or logging project used for “prevention or suppression of an insect or disease epidemic,” proposed Rule 294.33(b)(3) and 294.33(c)(3), in particular the open-ended exception for tree-cutting anywhere within 1.5 miles of an at-risk community under 294.33(b)(3), is not appropriate. Fire safety is a unique issue because of the potential for loss of property and even life, whereas tree cutting to address insects and disease does not address a similar exigency, and fails, even with the weighing process defined in 294.33(b)(3), to adequately safeguard what is unique and irreplaceable about roadless forest lands. Either the insect and disease treatment should be limited more narrowly – for example, to 0.25 mile from the community itself – or else require a specific finding, by substantial evidence, that the proposed action would result in a long-term enhancement of roadless characteristics.
            Definitions Omitted from Section 294.31
At-Risk Community:
The Colorado draft counterproposal omits a definition for “at-risk community” while referring to it in the definition for CPZ (an area extending 1.5 miles from the boundary of an at-risk community). To create a comprehensive and consistent rule, this term must be clearly defined. The Forest Service’s Draft Colorado Roadless Rule, 73 Fed. Reg. 144 (July 25, 2008), defines “at-risk community” according to section 101 of the Healthy Forest Restoration Act (Pub. L. 108-148), which states:
The term "at-risk community" means an area-- (A) that is comprised of-- (i) an interface community as defined in the notice entitled "Wildland Urban Interface Communities Within the Vicinity of Federal Lands That Are at High Risk From Wildfire" (66 Fed. Reg. 753, January 4, 2001); or (ii) a group of homes and other structures with basic infrastructure and services (such as utilities and collectively maintained transportation routes) within or adjacent to Federal land; (B) in which conditions are conducive to a large-scale wildland fire disturbance event; and (C) for which a significant threat to human life or property exists as a result of a wildland fire disturbance event.
We recommend that the CRR adopt this definition of “at-risk community” as well as its reference to the “interface community” definition below for defining the boundaries of at-risk communities.
Interface Community:
The Forest Service defines “interface community” as follows:
An interface community exists where structures directly abut wildland fuels. There is a clear line of demarcation between residential, business, and public structures and wildland fuels. Wildland fuels do not generally continue into the developed area. The development density for an interface community is usually three or more structures per acre, with shared municipal services. Fire protection is generally provided by a local government fire department with the responsibility to protect the structure from both an interior fire and an advancing wildland fire. An alternative definition of the interface community emphasizes a population density of 250 or more people per square mile.
Wildland Urban Interface Communities Within the Vicinity of Federal Lands That Are at High Risk From Wildfire, 66 Fed. Reg. 753 (January 4, 2001).
Home Ignition Zone:
This term should be defined as the area including a house and its immediate surroundings within 100 to 200 feet. The condition of the home ignition zone principally determines the potential for home ignitions during a wildfire. A house burns because of its interrelationship with everything in its surrounding home ignition zone. To avoid a home ignition, the homeowner must eliminate a wildfire's potential relationship with his/her house. This can be accomplished by interrupting the natural path a fire takes - a relatively simple task. Flammable items such as dead vegetation must be removed from the area immediately around the house to prevent flames from contacting it. Also, reducing the volume of live vegetation will affect the intensity of the wildfire as it enters the home ignition zone.
            Definitions Requiring Amendment in Section 294.31
Community Protection Zone:
This term should be redefined to include only the area within a 0.5 mile of the boundary of an at-risk community.
Responsible Official:
We recommend either omitting this term from the CRR altogether and inserting “Regional Forester” in its place or defining this term to mean “Regional Forester.” This change reflects our belief that all decisions to extend wildfire mitigation activities beyond the community protection zone should be elevated to the Regional Forester. We also support a provision prohibiting the Regional Forester from delegating this responsibility. 
Wildland-Urban Interface:
We recommend that this definition omit the hard stop at 1.5 miles in section (2)(ii) because this distance was not based on wildfire science or empirical evidence when it was included in the definition for “wildland-urban interface” in the Healthy Forest Restoration Act, Pub. L. 108-148. Instead we recommend that “wildland-urban interface” be defined as “an area extending one half mile from the boundary of an at-risk community.” Rather than provide an alternative definition to include a 1.5-mile zone under special circumstances, the CRR should include a provision allowing the Regional Forester to implement special projects in areas identified as “critical” in a CWPP or when he determines there is significant wildfire risk to municipal water conveyance structures. Any decision pursuant to this provision must follow extensive analysis and consideration of alternative measures (discussed below in the section titled “Tree-Cutting and Temporary Road Building Outside the Community Protection Zone”).
Municipal Water Supply System and Water Conveyance Structures:
The rule should clarify and remove redundancies between these two very similar definitions. “municipal water supply system” as defined in the CRR seemingly incorporates all “water conveyance structures” listed. Thus, the CRR would be more coherent if “water conveyance structures is omitted and all references be changed to “municipal water supply system.”
            A.        Wildlife Habitat
We appreciate the changes made to § 294.32(b)(4) amending the overly-broad exception that allowed tree-cutting in CRAs “for the management… of wildlife and plant species.” By limiting the scope of paragraph (b)(4) to circumstances in which tree-cutting is needed to improve federally listed threatened, endangered, proposed, or Forest Service regionally designated species, and by requiring tree-cutting to be designed to maintain or improve roadless characteristics over the long term, the CRR inadvertently permits timber cutting projects that have incidental temporary benefits to one non-sensitive species but net long-term detriment to multiple species. 
We believe that § 294.32(b)(4) can be tightened further. We recognize that assistance to a species of special concern must sometimes justify timber cuts with adverse impacts to scarce roadless habitat for other species. However, such tree-cutting should be limited to circumstances in which there is no reasonable alternative means to achieve the desired habitat improvement. Additionally projects with primary non-wildlife purposes should never be permitted. Therefore, we recommend that paragraph (b)(4) safeguard against unnecessary cutting by requiring an express determination by the Regional Forester, with the concurrence of the Director of the Colorado Division of Wildlife, and, where federally listed species are implicated, the United States Fish and Wildlife Service, that timber cutting within a Colorado roadless area is indispensable to benefit a sensitive species.  
            A.        Road Realignment and Reconstruction
We appreciate proposed 2009 CRR § 294.33(b)(3)’s clarification that road realignment is only appropriate to prevent irreparable resource damage that cannot be mitigated by road maintenance. Maintenance is likely to have a much less significant impact on roadless area characteristics than full-blown realignment and we believe that it is correct to require the Forest Service to consider the less invasive of the two repair strategies first. We recommend that §249.33(b)(4), the road reconstruction provision, mirror paragraph (b)(3) by requiring that reconstruction be limited to road safety improvement projects that likewise cannot be implemented via maintenance.
Additionally, for a provision requiring consideration of road maintenance before road realignment and road reconstruction to effectively mitigate potential impacts on Colorado roadless areas, all three terms must be clearly defined. CRR’s proposed § 294.33(b)(3) and our proposed change to § 294.33(b)(4) would be meaningless if both “maintenance” and “reconstruction” could mean anything from filling in potholes to a full upgrading of a road. We recommend that the CRR adopt the definitions listed in the 2001 Roadless Rule. They read as follows:
Road Maintenance: The ongoing upkeep of a road necessary to retain or restore the road to the approved road management objective.
Road Realignment: Activity that results in a new location of an existing road or portions of an existing classified road, and treatment of the old roadway.
Road Reconstruction: Activity that results in improvement or realignment of an existing classified road. Road improvement is defined as activity that results in an increase of an existing road’s traffic service level, expansion of its capacity, or change in its original design function.
With the inclusion of these definitions, section 294.33(f)(5) could achieve what we understand to be its purpose – allowing road repairs to existing, authorized National Forest System roads, but not permitting, absent the presence of a section 294.33(b)(4), exception, the upgrading of roads within roadless areas to accommodate higher capacities, speeds, or ease of use. To clarify this intent, we would further recommend modification of 294.33(b)(3) to clarify that realignment would be authorized only to the extent to prevent resource damage, and that road improvement should not be made absent a finding of safety hazard under 294.33(b)(4).
            B.        Utilities and Water Conveyance
Proposed 2009 CRR §§ 294.33(b)(6) and (7), allowing for road construction within Colorado roadless areas for “the construction, reconstruction, or maintenance” of existing and future authorized electrical power lines and water conveyance structures, is overly broad. The exception should first be limited to existing structures. Prohibiting road construction for futurepower lines and water conveyance will decrease the risk that roadless values will be impaired by the siting of new facilities. The exception should be limited further by a provision analogous to the proposed oil and gas pipeline rule, outlined in § 294.35(a) and discussed below, that prohibits oil and gas pipelines from crossing roadless areas to transport oil or gas from sources located outside the Colorado roadless area. Similarly disallowing power lines and water conveyance structures from crossing roadless areas will help preserve remote wilderness and wildlife habitats.  
We recognize the State’s need to provide access to facilities. Ruptured pipelines and transmission lines toppled by landslides must be repaired. However, limiting §§ 294.33(b)(6) and (7) to road construction for existing structures will not hinder the State’s ability to ensure the safe operation of utility and water structures. The proposed 2009 CRR does not suspend or modify existing permits, contracts, or other legal instruments authorizing the use and occupancy of Colorado roadless areas. Existing roads and trails are not closed and existing rights of access are recognized. If new access to a facility is needed, a utility company can pursue necessary authorizations pursuant to the terms of its existing permit or contract. In addition, if the risk of a pipeline rupture or a landslide near a transmission line is severe enough in an area under particular circumstances that it threatens life or property, a utility company will qualify for the emergency public health and safety temporary road exception listed in § 294.33(c)(1). 
            C.        Oil and Gas Leases
We greatly appreciate that the proposed CRR addresses the significant problem of roadless area impairment due to development of existing oil and gas leases, by, at 294.35(a), imposing a set of mitigating conditions for development on such leases – an issue that the 2001 Roadless Area Conservation Rule failed to fully address. However, we disagree with the fundamental premise that the rule can apply to its full extent – prohibiting new road construction altogether – only to leases issued after its effective date, proposed 2009 CRR § 294.33(d)(1). We recognize that, during the period of legal uncertainty resulting from the Wyoming injunction and the Department of Agriculture’s now-enjoined 2005 attempt to repeal the Roadless Area Conservation Rule, the Department of Interior issued 60,000 or more acres of new oil and gas leases, whose legality remains in question, for Forest Service roadless areas within Colorado. The great majority of these new gap lease acres are in the White River, Grand Mesa, Uncompahgre, and Gunnison National Forests. These areas represent some of the last and largest unfragmented swaths of mid-elevation roadless land in Colorado. They constitute an important migration corridor that provides habitat for lynx, moose, cutthroat trout, deer, and elk, and are a critical source of clean drinking water for local residents and agricultural operations. To protect these critical roadless qualities we recommend that § 294.33(d)(1) be amended to clarify that it bars, to the fullest extent possible consistent federal law, new road construction on all oil and gas leases issued following the effective date of the 2001 Rule.
Application of the CRR to bar road construction on all post-Roadless Area Conservation Rule leases would not implicate retroactivity concerns, as it would merely be reaffirming law that had been in place. The ban on new road and infrastructure building has been in place since the passage of the 2001 Roadless Area Conservation Rule (save for the sixteen month period between the Bush Administration’s May 2005 repeal of the Rule and the federal court’s September 2006 reinstatement of the Rule in California ex rel. Lockyer v. U.S. Dept. of Agriculture, 468 F. Supp.2d 1140 (N.D. Cal. 2006)). Any lessee who obtained a roadless area mineral lease during the period 2001-2009 did so with full knowledge of the fact that, although legal challenges were underway, their leases were for an area: (a) to which the 2001 Roadless Area Conservation Rule had a substantial possibility of application; (b) that had been identified as possessing substantial roadless values; and (c) the Forest Service retained authority to regulate for those surface values.   
Regardless of whether the State elects to uphold the 2001 Rule’s effective date as the commencement of the ban on new road construction on oil and gas leases, we recommend that proposed 2009 CRR § 294.35(a)(1)(i-vii) be tightened to help protect roadless characteristics of CRAs leased for oil and gas surface use. We agree with the factors listed in paragraphs (a)(1)
(i-vii) that must be included in Surface Use Plans of Operation Environmental Impact Statements (EIS) under Section 102 of the National Environmental Policy Act (NEPA), 40 CFR 1500, and 36 CFR 220. We recommend, however, that the qualifiers in the factors be made uniform. For example, factor i reads: “to the extent possible.” Factor iii reads: “to the extent practical.” Factors iv and v read: “to the extent feasible.” Factor vi reads: “whenever possible.” These terms are not defined within the CRR. For purposes of clarity and consistency, we recommend that each of these conditions be applied “to the maximum extent possible,” a term which should be defined to clarify that it requires application wherever physically possible with existing or reasonably foreseeable technology. Furthermore, we recommend clarifying §294.35(a) to make explicit that, in considering mitigating conditions for oil and gas surface use plans, the Forest Service shall exercise its full authority to impose reasonable conditions on surface use to protect, to the maximum extent possible, the roadless area characteristics of the affected area.
Finally, while we commend proposed 2009 CRR § 294.35(c)’s prohibition on the construction of oil and gas pipelines in Colorado roadless areas to transport oil or gas from sources located outside roadless areas, we believe that the provision should apply as of the 2001 Rule’s effective date for the reasons discussed above. 
            D.        North Fork Coal Mines
Proposed 2009 CRR § 294.33(d)(2), allowing for road construction within Colorado roadless areas “in the North Fork coal mining area” of the Grand Mesa, Uncompahgre, and Gunnison National Forests, is overly broad and would pose unacceptable risks to high-quality wildlife habitat within, in particular, the Currant Creek roadless area. We recognize the economic importance of North Fork coal mines, but believe the current proposal is broader than necessary to accommodate existing mining activity and poses particular risks to Currant Creek wildlife habitat. (See the attached map that shows an elk migration corridor and production areas.)   Allowing, as the proposed rule would, a temporary or long-term temporary road to be constructed for any coal exploration and coal related surface activity in the approximately 29,000 acre area will have significant adverse effects on roadless area characteristics. Injury will be particularly severe on lands not currently being leased for coal – such as a major segment of the Currant Creek Inventoried Roadless Areas. Because new leases require full new sets of infrastructure, any accommodating road will likely be highly used and in place for a significant period of time. Currant Creek is an area of high-quality, intact wildlife habitat that is not adjacent to any currently operating coal mines or even leases, and, we believe, exceeds the justification for the North Fork mining exception.
The CRR should, therefore, limit road construction to what is necessary to support existing coal mining and methane capture activities in the North Fork Valley. The term “road” should be defined and the CRR exception should be crafted narrowly to correspond to the scope of identified needs. For example, a more tailored approach could read: “Temporary roads may be constructed if a documented need to facilitate underground coal mining operations that are extensions of existing coal mining operations can be shown.” Existing coal mines should be defined as any operation sanctioned before the 2001 Rule’s effective date. This definition will provide maximum protection to roadless characteristics and avoid the same retroactive imposition of law problems discussed in the Oil and Gas Leases comment section (see III. C. above). Such amendments also will enable North Fork coal mines to meet essential operational and safety needs without sacrificing high-quality roadless areas and wildlife habitat. 
We appreciate the safeguards built into paragraph (d)(2) requiring that all methane capture infrastructure be buried and restricted to existing rights-of-way and surface disturbance. This provision, we hope, will reduce the footprint of coal mining structures in roadless areas. 
III.      Ski Area Exclusion
Although the proposed 2009 CRR does not explicitly mention ski areas, we assume that the State still intends to remove 8200 acres of land located in forest plan ski area prescriptions or in permitted ski areas from the roadless inventory. We disagree with such modification of Colorado roadless area boundaries to accommodate potential ski area development and expansion. The Forest Service created the roadless inventory using objective criteria. We are not aware of any evidence that these 8200 acres have lost the objective characteristics that make them valuable as roadless areas by virtue of their location within ski area prescriptions or permit boundaries. In fact, some of these areas are particularly important to the conservation of watershed and wildlife habitat (including migration corridors) because of their adjacency to developed landscapes. It is therefore wholly inappropriate to arbitrarily shift Colorado roadless areas boundaries to accommodate one commercial interest. 
If the Forest Service does elect to endorse a policy decision (one with which we would disagree) that the public interest in additional roads for ski area development and expansion outweighs the public interest in preserving the roadless characteristics of our remaining roadless areas, we would advocate for less expansive approach in two respects. First, the 3500 acres added to forest ski area prescriptions after the 2001 Rule effective date should remain in the roadless inventory for reasons of retroactive imposition of law discussed in the Oil and Gas Leases comment section (see III. C. above). Second, the remaining 4700 acres also should be included in the roadless inventory but subject to an exception narrowly drafted to meet indentified and defined needs. For example, the provision could read: “Roads or temporary roads in acres A, B, and C may be constructed if a documented need to develop or expand ski resorts X, Y and Z can be shown.” 
            A.        Environmental Documentation
We appreciate the change to § 294.34 requiring an EIS for any proposed action within a Colorado roadless area that substantially alters the undeveloped character of roadless area. The provision is now aligned with the language of NEPA. We also appreciate that § 294.34 no longer contains environmental documentation loopholes for temporary road construction and tree cutting – two activities that often have a significant enough impact under NEPA to necessitate an EIS.   
We strongly disagree, however, with the wording of § 294.34(b)(1), which deems responsible official consideration of a temporary road option in lieu of road construction sufficient environmental documentation -- No road options do not need to be considered.
This is troublesome because the definition of “temporary road” in the 73 Fed. Reg. 43,561 includes “long-term temporary roads for oil and gas operations.” Such roads can subsist for 15-25 years within previously unroaded roadless areas. Because a “temporary road” designed to last two decades or more will have almost as significant of an impact on a Colorado roadless area as a permanent road, paragraph (b)(1) essentially creates a road construction exception to the environmental documentation requirement. We therefore recommend that the wording of paragraph (b)(1) be changed to mandate: “that the responsible official consider: a temporary road option and a no road option” rather than “a temporary road option and/or a no road option.” Not only will this change help ensure that minimally impactful no road project options are implemented whenever feasible, it will also align paragraph (b)(1) with (b)(2) – which already requires responsible official consideration of a no tree-cutting option before implementation of a tree-cutting project. 
B.             Modifications to Colorado Roadless Area Boundaries 
We appreciate the changes made to § 294.36, the proposed 2009 CRR modification provision. Restricting the Chief of the Forest Service’s Colorado roadless areas map modification powers to occurrences of “mapping errors” and “changed circumstances” provides an appropriate check on what would otherwise have been an unlimited ability to eradicate entire roadless areas. We also appreciate the 2009 CRR’s attempt to restrict what can be included in the definition of “changed circumstance.” However, we believe that a concrete definition “changed circumstance,” rather than a list negatives, will better serve the end of limiting the Chief’s power to modify roadless area boundaries at his or her discretion. 
We also very much appreciate the new safeguards built into proposed § 294.36 that require the Chief to make modifications in accordance with existing Forest Service policy, provide for a 90-day public notice and comment period, and mandate a formal state specific rule making process with State coordination and the appropriate level of NEPA analysis before the § 294.36 provision may be altered. 
            C.        Scope and Applicability
We strongly disagree with the addition of 2009 CRR § 294.37(g), which states: “Road construction and reconstruction as allowed under §293.33, and tree-cutting as allowed under §293.32, shall not be prohibited within Colorado roadless areas solely because there may be adverse effects to some roadless characteristics with project implementation.” This provision is objectionable on two grounds. The first is that its meaning is unclear. Does paragraph (g) mean that the Forest Service is compelled to allow any road construction or tree-cutting project that falls under the §293.33 and §293.32 exceptions? Or does the Forest Service retain the discretion to refuse projects with potentially significant adverse effects to Colorado roadless areas but only potentially minimal social benefits? The second objectionable ground is that paragraph (g) may (depending on its meaning) violate federal law. The National Forest Management Act (NFMA), P.L. 94-588, directs the National Forest Service to administer a national natural resource conservation posture that meets citizens' needs in perpetuity on all National Forest System lands. If § 294.37(g) strips the Forest Service of its ability to prohibit a project that has a significant, unmitigated adverse effect on roadless characteristics but happens to fall under a CRR exception, the CRR effectually renders it impossible for the Forest Service to comply with NFMA’s mandate. In promulgating this rule, the Forest Service is ultimately implementing NEPA and cannot adopt an inconsistent Rule.
We recommend that paragraph (g) either be eliminated entirely or clarified to state road construction and tree-cutting that fall within §293.33 and §293.32 are not categorically allowed. An amended provision that would be consistent with NEPA and NFMA could read:
Road construction and reconstruction as allowed under §293.33, and tree-cutting as allowed under §293.32, may still be prohibited within Colorado roadless areas if it is determined that the adverse effects to roadless characteristics and other resource values caused by project implementation outweigh the project’s benefits.
This modification would still allow for road construction and tree-cutting under the proposed exceptions where application of the exception is necessary for its purpose, but would retain the Forest Service’s inherent authority under NFMA to decline to undertake a project or issue a discretionary permit or license where the adverse affects of the proposed action on roadless area characteristics would outweigh the project’s benefits or otherwise pose unacceptable adverse impacts. 
Thank you for your consideration of these comments.
Suzanne O’Neill
Executive Director
Colorado Wildlife Federation
1410 Grant Street Suite C-313
Denver CO  80203
(303) 987-0400 x 1
Michael Saul