[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14305]
[[Page Unknown]]
[Federal Register: June 13, 1994]
_______________________________________________________________________
Part VI
Department of Agriculture
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Forest Service
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36 CFR Part 292
Hells Canyon National Recreation Area--Private Lands; Final Rule
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 292
RIN 0596-AA88
Hells Canyon National Recreation Area--Private Lands
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule implements section 10(a) of the Hells Canyon
National Recreation Area Act of 1975. The Act directs the Secretary of
Agriculture to promulgate rules and regulations deemed necessary to
guide the use and development of private lands within the Hells Canyon
National Recreation Area. This rule establishes the baseline standards
of private land use and development that are compatible with the
purposes of the Act and that, if not met, could result in the
Secretary's use of the private land acquisition authority provided by
the Act. The intended effect is to ensure that the values of the HCNRA
will be protected and preserved, and as envisioned by the Act, that
traditional ranching, grazing, farming, timber harvesting, and other
uses can be perpetuated.
EFFECTIVE DATE: This rule is effective June 13, 1994.
FOR FURTHER INFORMATION CONTACT:
Tom Lennon, Branch Chief, Special Designations, Recreation, Heritage,
and Wilderness Resources Staff, Forest Service, (202) 205-1423 or Ed
Cole, Area Ranger, (503) 426-4978.
SUPPLEMENTARY INFORMATION:
Background
Congress established the Hells Canyon National Recreation Area
(HCNRA) by the Act of December 31, 1975 (the Act) in order to assure
that the natural beauty, and historical and archaeological values of
the Hells Canyon area are preserved for this and future generations,
and that the recreational and ecologic values and public enjoyment of
the area are thereby enhanced. Public Law 94-199, 89 Stat. 1117 at Sec.
1 (codified at 16 U.S.C. 460gg et seq.).
Section 10 of the Act directs the Secretary to promulgate such
rules and regulations as are deemed necessary to accomplish the
purposes of the Act, including standards for the use and development of
privately owned property within the HCNRA. Section 10 further provides
that the Secretary may use the land acquisition authority in section 9
of the Act to implement the rules and regulations promulgated pursuant
to section 10. As for the Snake, Rapid, and Imnaha Wild and Scenic
Rivers, the governing authority for land acquisition is found in
section 6 of the Wild and Scenic Rivers Act. Both section 9 of the Act
and section 6 of the Wild and Scenic Rivers Act restrict the
Secretary's condemnation authority; i.e. acquiring land without the
consent of the landowner.
On December 14, 1993, the Forest Service published a proposed rule
that would establish the standards for the use and development of
private lands in the HCNRA (56 FR 65300). The purpose of the proposed
regulations was to make clear those circumstances which would trigger
possible use of the Secretary's condemnation authority. The proposed
rule established categories of private land and standards for the use
and development of private land within a given category. Compliance
with the standards would generally be deemed consistent with the
purposes for which the HCNRA was established. Violation of the
standards would generally be deemed inconsistent with the purposes for
which the HCNRA was established, and, thus the lands could become the
subject of federal acquisition. Thus, the proposed rule sought to make
clear to affected landowners those uses that could continue or be
undertaken without risk of federal acquisition.
Throughout its efforts to devise regulations applicable to private
lands within the HCNRA, the Forest Service has sought to avoid direct
regulation of private lands and their uses. Instead, the agency has
sought to define those uses of private lands that are consistent with
the purposes for which the HCNRA was established, to encourage
retention of traditional and valid private land uses as established by
the Act, and, thereby, to avoid having to exercise the condemnation
authority granted the Secretary by the Act. Under the proposed rule,
the Forest Service would not seek to regulate per se or enjoin proposed
uses or developments on private land. Rather, the agency chose to set
forth in the proposed rule standards for private land use and
development, which establish the basis for using the secretary's land
acquisition authority in the HCNRA. The proposed rule also established
a mechanism by which a landowner could petition for a change in land
category assignment and a mechanism by which a landowner could
determine whether an existing or proposed land use or development was
in compliance with the standards of the rule. The Forest Service may
also initiate a noncompliance determination on its own without having
first received a landowner request.
Under the proposed rule, the Secretary would not acquire the
subject land or interests therein unless it was with the consent of the
landowner in those cases where a landowner was in compliance with the
applicable standards. If, however, the landowner was not in compliance,
the Secretary could acquire a fee simple or lesser interest in the
subject land without the landowner's consent. The proposed rule also
provided landowners and other interested parties an opportunity to
appeal a compliance or noncompliance determination.
Eight letters expressing a variety of viewpoints were received
during the 60-day comment period on the proposed rule. These letters
contained the views of a power company, a powerboat association, a
preservation group, a local county government, another agency of the
federal government, an ad hoc citizens river committee, a state
agricultural organization, and a local chapter of the same
organization. The comments contained in these letters have been
carefully considered in the adoption of this final rule. The Department
appreciates the time and energy the reviewers invested in preparing
these letters and articulating their concerns on the proposed rule.
All comments received are available for review in the Office of the
Director, Recreation, Heritage, and Wilderness Resources Staff,
Auditors Building, 4th Floor, 201 14th Street SW at Independence Avenue
SW., Washington, DC, during regular business hours (8 a.m. to 4:30
p.m.) Monday through Friday.
Analysis of Public Comment
Comments on the proposed rule dealt both with general issues, such
as the scope and extent of the Secretary's authority under this rule,
as well as discrete issues relating to specific provisions enumerated
in the proposed rule. In addition, there were several comments urging
that language in the Supplementary Information section of the proposed
rule be corrected and/or clarified. A summary of the comments and the
Department's response follows.
General Comments
1. Scope and Extent of the Secretary's Authority Under This Rule
Two reviewers raised a number of concerns regarding the use of the
Secretary's land acquisition authority to effectuate the standards set
out in the rule for private land use and development. The comments
reflected the divergent views of the reviewers and, to some degree, a
misunderstanding of the system as envisioned in the proposed rule. The
comments received on this issue and the Department's response follow.
Comment: The Secretary is impermissibly engaged in the zoning of
private lands in the HCNRA. One reviewer suggested that the process set
forth in the proposed rule which establishes land use categories and
allowable uses within those categories is ``zoning.'' Further, this
same reviewer noted that the acquisition of lands without the
landowner's consent is ``zoning.'' Finally, this reviewer noted that
using condemnation to ensure compliance is an extreme measure and that
the Forest Service should attempt to ``work in harmony'' with the
private landowners in the HCNRA to ensure compliance.
Response. The proposed rule does not vest the Secretary with zoning
authority. Zoning is defined as the division of a community into areas
in each of which only certain designated uses of land are permitted, so
that a community may develop in an orderly manner.
While the end result may be the same in terms of protecting an area
against potentially incompatible land uses, there is an important
distinction between the exercise of a local government's zoning
authority and the federal government's eminent domain authority. Zoning
laws are rooted in the exercise of a state's police power (usually
delegated to a subdivision of the state) to prevent persons under its
jurisdiction from using their property to the detriment of the general
welfare. The power of eminent domain, on the other hand, is the power
to acquire, or to authorize the acquisition of, private property for a
public use or purpose without the owner's consent, conditioned upon the
payment of just compensation. Because, zoning laws ordinarily do not
constitute a taking of property for public use for which compensation
must be paid, they differ substantially from the government's right to
determine the use of real estate under the power of eminent domain,
which requires just compensation.
In the preamble to the proposed rule, the agency went to great
length to explain that the mechanism by which the Secretary would
protect the HCNRA from incompatible private land use and development
was through acquisition (condemnation) rather than regulation
(injunction). In the conclusion to the preamble of the proposed rule
[58 FR 65304, Col. 2], the agency expressly stated that: ``The proposed
regulations have been carefully drafted to avoid any conflict with
local zoning authority and any appearance that the Forest Service
desires to regulate private land uses.'' Relying on acquisition
authority to enforce zoning ordinances is entirely consistent with
sections 9 and 10 of the Act. Moreover, this approach is the least
intrusive to the private landowners in the HCNRA, and it will not
duplicate the role nor supplant the authority of the local governmental
units in the HCNRA.
Finally, the Department agrees with the reviewer's observation that
condemnation is an extreme measure to enforce compliance with the
standards set out in this rule. As was stated in the conclusion to the
preamble to the proposed rule [59 FR 65304, Col. 2], ``The agency views
the use of condemnation authority as a last resort to protect the
HCNRA,'' to be instituted only where other, more harmonious measures
and attempts to cooperate with the landowners do not succeed.
Comment: The Secretary should more actively regulate private lands
in the HCNRA. Ironically, while one reviewer asserted that the Forest
Service had virtually usurped local zoning authority over the private
lands in the HCNRA, another reviewer stated that the Forest Service was
obligated to assert a more vigorous regulatory role over these same
lands. In particular, this reviewer asserted that relying on the
condemnation authority delegated to the Secretary in section 9 of the
Act will not adequately protect the HCNRA and that the Forest Service
must exercise its ``inherent regulatory authority'' over private lands
that are adjacent to federal lands.
Response: In order to properly respond to this comment, the
following two questions must be addressed--(1) Does the Secretary have
an ``inherent regulatory authority'' vis-a-vis private lands in the
HCNRA? and (2) If so, is its exercise necessary to comply with the
HCNRA Act?
The Department does not dispute the proposition that, pursuant to
the Property Clause of the Constitution, Congress has delegated to it
the authority to regulate and administer National Forest System lands
under the Organic Act; the Multiple-Use, Sustained-Yield Act; the
National Forest Management Act; the Forest and Rangeland Renewable
Resources Planning Act; the Wilderness Act; the Wild and Scenic Rivers
Act; and the HCNRA Act, to name just a few. In furtherance of those
enactments, regulations throughout title 36 of the Code of Federal
Regulations vest broad authority in the Forest Service to manage
National Forest System lands and many of the activities that occur
thereon.
However, these authorities are confined to National Forest System
lands and do not apply to private lands. The options regarding
regulation on private lands are considerably more limited. To begin
with, the Forest Service cannot ``zone'' private lands as that term is
commonly understood. ``Zoning'' is an authority that is reserved to the
States and their subdivisions under the Constitution. Congress examined
this issue prior to the establishment of the Cape Cod National Seashore
many years ago. Their analysis then is instructive today.
The Federal Government does not have authority to directly enact
zoning laws applicable to private property in any of the States. If
it had such authority, the task of preserving an area such as lower
Cape Cod in such a way as to safeguard the interests of private
landowners might be somewhat simplified, for Congress could simply
enact a zoning law for the area. However, in the division of powers
between the States and the Federal Government, it is wisely left to
States to adopt zoning laws * * *
For this reason, [the Act] requires the Secretary of the
Interior to issue regulations as soon as possible after the
enactment of the bill setting forth the standards which must be met
by town zoning bylaws for purposes of suspending his power of
eminent domain.
The only regulatory authority that the Forest Service possesses
relative to private lands is its authority as a landowner to enjoin
activities on adjacent or nearby lands which threaten the National
Forest land.
It is the considered judgment of the Department that the
acquisition of lands or interests therein, in conjunction with locally
established zoning measures, remains the most efficient and viable
system to legally control potentially incompatible land use and
development in the HCNRA. This is the thrust of this rule. Its success
depends on the best efforts of the Forest Service, State and local
governments, and landowners in the HCNRA.
However, this rule should not be construed to foreclose the
Agency's right to enjoin certain activities which threaten to
compromise the values for which the HCNRA was established. Whether such
action is warranted would need to be decided on a case-by-case basis.
In the event that a nuisance-like activity should arise in the future
which threatens the HCNRA, the Forest Service would be fully authorized
to exercise its prerogative as a landowner to seek to get the activity
terminated or modified so as to eliminate the deleterious effects on
National Forest System lands.
Comment: Snake River water rights. One reviewer suggested that the
rule should address withdrawals and diversions of water from the Snake
River that are used for irrigating traditional farming and ranching
activities in and around the HCNRA. This reviewer urged that the rule
prescribe: how much water can be diverted, the time and purpose of
diversion, and whether the diversion should be phased out so water may
be retained in the Snake River.
Response. The use of water from the Snake River is an integral
component of many of the traditional farming and ranching operations
occurring in the HCNRA. While the reviewer's concern may be legitimate
and this rule would present an appropriate vehicle to address these
concerns, Section 6 of the Act expressly prohibits the incorporation of
these suggestions into this rule as follows: No provision of this Act,
nor any regulations issued hereunder, shall in any way limit, restrict,
or conflict with present and future uses of the waters of the Snake
River and its tributaries upstream from the boundaries of the [HCNRA]
created hereby, for beneficial uses, whether consumptive or
nonconsumptive, now or hereafter existing, including, but not limited
to, domestic, municipal, stockwater, irrigation, mining, power, or
industrial uses.
Comments: Access to private land. One reviewer stated that access
is an integral part of the traditional uses recognized under the HCNRA
Act and should not be arbitrarily limited since such limitations would
reduce property value and restrict traditional uses.
Response. While the reviewer did not make clear how the proposed
rule would limit access to private lands, nor did the reviewer offer
suggestions for addressing the access issue, the Department notes that
the proposed rule was silent on the issue of access and nowhere can it
be inferred that the rule would permit the Forest Service to
arbitrarily limit such access. The Department does not believe that
this rule needs to address access, since section 1323 of the Alaska
National Interest Lands Conservation Act (ANILCA) requires that access
be granted to nonfederally owned lands located within the National
Forest System. Agency rules at 36 CFR part 254, subpart E implement
section 1323 and already apply to private lands within the HCNRA which
are subject to the terms and conditions for reasonable ingress and
egress that may be imposed by the Forest Service.
Comment: Monitoring. One reviewer noted that the proposed rule
failed to establish a system whereby the use and development of private
land in the HCNRA could be monitored by the Forest Service to detect
violations. According to this reviewer, the rule is ``grossly
deficient, and contrary to law in this respect.''
Response. While there was no provision for monitoring in the
proposed rule, this rule is not somehow legally insufficient as a
result. Monitoring by the Forest Service can occur in a number of ways
and need not be expressly provided for or authorized in this rule. For
instance, monitoring can occur by reviewing the actions of the local
government regarding private land use and development issues. The
Forest Service also can and does monitor private land use and
development through routine aerial photographs for fire prevention and
control, forest pest management, and landscape planning and management
and on-the-ground observations from adjacent National Forest land.
Additionally, where the Forest Service receives permission from the
landowner, monitoring could also be accomplished via an on-site
investigation.
In the proposed rule, monitoring also would be accomplished through
the compliance determination process which is optional on the part of
the landowner. Although the Department believes that monitoring was
never eliminated from the Forest Service's responsibilities by the
proposed rule, it also believes that monitoring is so important that it
would like to make clear that the Forest Service may monitor the uses
and developments on private lands at any time it believes it has good
reason to be concerned about the protection of the values for which the
HCNRA was established. To emphasize this point, the final rule adds a
new standard in Sec. 292.24, paragraph (b)(2) which states that the
Forest Service may initiate the compliance process on its own without
having first received a landowner request. This standard clearly shows
that the Forest Service may initiate the determination of compliance
process, where the agency has reason to believe, based on monitoring or
other information, that the landowner may be violating the standards
for private land use and development established by this rule.
Specific Comments on Proposed Subpart E of 36 CFR Part 292
The following is a discussion of comments that were received
pertaining to specific sections of the proposed rule and the changes,
if any, resulting from the comments. No comments were received on
Sec. 292.20, Purpose and Scope, or on Sec. 292.25, Information
Requirements, and no substantive modifications have been made to the
text of these sections, although editing for improved readability and
word choice was made. Accordingly, neither section is set out for
further discussion.
Section 292.21 Definitions
This section listed and defined special terms used in this subpart.
Comment: ``Farm/forest/grazing lands.'' Two reviewers suggested
that the definition of ``farm/forest/grazing lands'' be modified to
eliminate references to watershed protection, fish & wildlife habitat
maintenance and recreational activities as purposes for which farm/
forest/grazing lands may be used. These reviewers felt that these
additional non-farming uses could pose burdensome and expensive
requirements on the management of farming or grazing operations.
Response. The reviewers' concern that this definition would result
in the imposition of additional requirements on their operations is
unfounded. The subject definition is set out in the disjunctive. In
other words, farm/forest/grazing lands may be used for farm/forest/
grazing purposes or for watershed purposes, or for fish & wildlife
purposes, or for recreational purposes, or for a combination of the
above. The inclusion of these terms in this definition does not imply
that new requirements would be incorporated into ongoing farming and
ranching operations in the HCNRA. Of course, these farming and ranching
operations are still subject to applicable federal, state, and local
laws and ordinances. Therefore, the definition is adopted without
change from the proposed rule. However, on consideration of the
comments on the term ``farm/forest/grazing lands,'' the Department has
determined that the definition of ``farm/forest/grazing uses'' should
be modified so that it more closely parallels the definition of ``farm/
forest/grazing lands.'' To that end, a new second sentence has been
included in the ``farm/forest/grazing use'' definition which recognizes
that uses related to watershed protection, fish and wildlife habitat
maintenance, and recreational activities may also be undertaken on
these lands. Again, because these activities may be undertaken does not
signify that they must be undertaken. The definition of ``farm/forest/
grazing use'' also has been rearranged for ease of reading and
comprehension.
Comment: ``Land modification.'' One reviewer noted that the
definition of ``land modification'' in the proposed rule included road
construction as an example but that the circumstances under which road
construction would be accommodated in conjunction with access needs for
the purpose of maintaining and constructing utility facilities were
unclear.
Response. The Department agrees that the potential applicability of
the definition of ``land modification'' to utility maintenance
activities is unclear. Indeed, while ``land modification'' was included
in Sec. 292.21 of the proposed rule, it was not used elsewhere;
therefore, it has been deleted from the final rule. Absent this term,
the Department construes the standard at Sec. 292.23(a)(4) of the final
rule as accommodating reasonable road access to utility facilities
provided that such access is associated with the routine and necessary
maintenance of these facilities.
In addition, further review of the definition section disclosed
that the terms, ``Comprehensive management plan,'' ``seasonal
feedlots,'' and ``zoning'', were not used in the proposed rule;
accordingly, those terms have not been retained in the final rule. All
other terms and their definitions are retained without change in the
final rule.
Section 292.22 Land Category Assignments
The proposed rule established four categories to which private
lands in the HCNRA would be assigned and would require that maps
showing private lands and the categories to which they have been
assigned be on file and available for public inspection at the Ranger's
office.
Comment. One reviewer complained that the map identifying the
private lands in the HCNRA and the land use category to which they had
been assigned was not available for review during the comment period on
the proposed rule.
Response. The Department regrets that the map was unavailable,
since this could have been of some assistance to the parties in the
preparation of their comments on the rule. The Department has modified
this section in the final rule to require the map (or maps) to be
prepared and available for review not later than 60 days after the
effective date of this regulation and also to require the Ranger to
give notice of the availability of the maps in the local newspapers of
record. If any parties are concerned about a specific land category
assignment, they can make their concerns known to the Forest Service at
that time, and the Forest Service will consider these concerns prior to
the adoption of a final map. No other changes were made to this
section.
Section 292.23 Standards of Compatible Land Use and Development
The proposed rule would establish standards of private land use and
development that reflect traditional and valid uses of private lands in
existence as of December 31, 1975 for four categories of land use.
These categories were farm/forest/grazing, mining, residential, and
commercial land. The standards for these land categories were intended
to guide the Ranger in determining whether uses of a private parcel are
compatible with the purposes for which the HCNRA was established. Some
standards applied to all categories of private lands, while others were
specific only to a particular land category. Standards were prescribed
to allow conformity of private land uses and developments with the laws
of various jurisdictions. Among other things, the proposed rule set
standards for the screening and blending of new and replacement
structures, banned solid waste and hazardous substance disposal sites,
required utility lines to be buried, disallowed new or replacement
structures in wilderness, and provided for the protection of historic
and archaeological sites.
Comment: Expense of underground utility installation. One reviewer
noted that the standard in Sec. 292.23(a)(4) regarding the placement of
new or replacement of existing utility lines underground could be
prohibitively expensive and environmentally damaging.
Response. While this standard clearly establishes a preference for
underground utility installation wherever feasible, the Department is
well aware of the rugged and varied terrain in the HCNRA and the
difficulty, if not impossibility, of installing utility lines
underground in certain areas. It is for that reason that the standard
in the proposed rule regarding underground utility installation
included the caveat ``where ground conditions and topography permit.''
Therefore, a change in the final rule was necessary. It is recognized
that, by necessity, the evaluation of the location of utility lines
must be made on a case-by-case basis.
Comment: Wilderness structures. One reviewer opposed the standard
in Sec. 292.23(a)(5) which provided that no new structures could be
developed on private lands within the boundaries of the Hells Canyon
Wilderness in the HCNRA. This reviewer stated that this standard
oversteps the professed bounds of the law. This reviewer further
contended that such a restriction should apply only if the structure
would be visible from the wilderness, since otherwise there would be no
negative effect on anyone's wilderness experience. The reviewer also
stated that nothing in the Wilderness Act permitted wilderness visitors
to trespass on private lands.
Response. The intent of the rule is, where deemed necessary, to
apply the same standards for private land uses and developments to
lands within the designated wilderness boundaries, as would be applied
outside of wilderness. Under the proposed rule, those lots within
wilderness would be classified as farm/forest/grazing lands. Most of
the private land parcels within wilderness are less than 160 acres, and
so, even without the wilderness lands restriction, the proposed rule
would not consider the development of any new residences appropriate.
In developing the proposed rule, the Department determined that the
protection of the wilderness resource is paramount. Congress designates
wilderness to protect and preserve a variety of natural resource and
other values; scenic value is only one of many attributes. Uses and
developments on private lands have the potential to impact a full range
of wilderness values, including scientific, cultural, historical, and
water quality values. One of the most important aspects of the
recreational experience within wilderness is the opportunity for
solitude and to experience an area where man is only a temporary
visitor. A standard which would allow development of new structures so
long as they are not visible from the wilderness simply ignores the
fact that other, non-visual impacts may result from the construction of
new structures. Furthermore, the Forest Service is unaware of any
location from which a new structure could be developed within the
wilderness and also not be visible because of the area's topography. As
noted in the proposed rule, the repair and maintenance of existing
structures that may be located on private land within a wilderness is
not affected by this standard. Therefore, after considering this
comment, no change was made in the final rule regarding the
construction of new or replacement structures in wilderness.
Comment: Lack of standards for livestock grazing, timber
harvesting, pesticide application, water quality, and ground disturbing
activities. One reviewer objected to the lack of standards in the
proposed rule for livestock grazing, timber harvesting, pesticide use,
water quality protection, and ground disturbing activities on private
lands.
Response. This concern is fully addressed by the proposed rule. In
determining what approach it should take to the regulation of private
lands, the Forest Service determined that if other federal, state, and
local laws and ordinances are enforced, then the HCNRA Act's purposes
would be accomplished. Accordingly, in developing the proposed rule,
the agency assessed existing ordinances and laws for their capability
to protect on private lands the values for which the HCNRA was
established. In many instances, the proposed rule expressed these local
ordinances as standards.
However, the proposed rule made it very clear that other laws would
be enforced; if not by the promulgating government, then, if necessary,
by the Forest Service through acquisition (condemnation) action. In
Sec. 292.23 paragraph (a)(1), the final rule retains the language of
the proposed rule, with minor editing, to make clear that land uses are
compatible if they conform to applicable local, state, and federal
laws. This provision is intended to cover such matters as those
referred to by the reviewer. Examples of the types of ordinances and
laws that this clause refers to include the following: Oregon Forest
Practices Act; Idaho Forest Practices Act; Idaho Water Quality
Standards and Wastewater Treatment Requirements; Oregon Water Quality
Standards; and the Idaho Agricultural Pollution Abatement Plan. The
Department is not aware of any situation which merits standards
different from those currently imposed by other laws. The proposed rule
addressed the concerns raised by this reviewer by providing for
compliance with environmental and other laws and ordinances. Therefore,
no modification has been made in the final rule as a result of this
comment.
Additional Changes Adopted in the Final Rule
In the process of reviewing the comments on Sec. 292.23, the
Department recognized the need to make two other changes.
1. Residences on less than 160 acre parcels in farm/forest/grazing
lands. As drafted, the provision at Sec. 292.23(b)(1) that limits
residences on farm/forest/grazing lands to minimum lots of 160 acres
could be interpreted to mean that an existing house on a lot that is
less than 160 acres would prompt the Secretary to exercise the
acquisition authority. This is not the Department's intent. It is
recognized that some of these smaller parcels have existed with
residential developments for years and there is no reason that they
should not continue as a recognized nonconforming use. Consequently,
the final rule is modified to make clear that nonconforming lots (i.e.,
less than 160 acres) with permanently affixed residences (i.e.,
constructed on a foundation or basement), existing on the effective
date of the final rule, are in compliance with the Act.
2. Sites used for the extraction of common mineral materials. The
proposed rule, at Sec. 292.23 (a)(7), would only allowed extraction of
common materials for road construction and maintenance and would limit
sites to not exceed 5 acres. The use limitation ignored other forms of
construction that may also use smaller quantities of materials, such as
in the repair or construction of structures. It is impractical to
require a landowner to find a gravel source outside of the HCNRA
boundaries, when a source may exist already within a mile of his or her
property. Upon reconsideration, the 5 acre size limit appears to be
excessive for the foreseen uses for this resource and the esthetic
concerns for the HCNRA. Therefore, the final rule is modified to
eliminate the references to only road construction and maintenance and
to decrease the size limit to not exceed 2 acres. As written, the final
rule may be more generally applied to the extraction of common mineral
materials for construction and maintenance purposes so long as these
sites have screening and are less than 2 acres in size.
Section 292.24 Determination of Compliance and Noncompliance
Under the proposed rule, this section provided an optional
compliance determination process so that the landowner could obtain
assurance from the Ranger that existing or proposed uses of their land
are compatible with the Act and thus would not be acquired by the
Secretary without their consent. A notice of noncompliance would mean
that a proposed or actual land use does not comply with the standards
in Sec. 292.23 and thus, could potentially trigger the initiation of
the Secretary's land acquisition authority, as authorized by the Act.
This section also proposed a process for reviewing a compliance or
noncompliance decision.
Comment: Noncompliance results in condemnation. One reviewer
thought that the system to determine compliance or noncompliance was
flawed because a finding of noncompliance resulted in condemnation.
Response. Condemnation is one option that may be considered in the
event of a noncompliance determination. However, it is not the only
option. The proposed rule clearly states that if the Forest Service
makes a noncompliance determination, it will offer suggestions on how
the land use or development could be modified to avoid this result. As
noted previously, condemnation is not the tool of choice to enforce
compliance with the standards of this rule--it is the last resort. In
administering the HCNRA, the Forest Service position has been, and will
continue to be, one which favors discussion, negotiation, and
cooperation with landowners to reach mutually satisfactory objectives
wherever possible.
Comment: Written petition. Three reviewers requested that the
procedure to appeal a determination of compliance or noncompliance be
modified to exclude ``other interested parties.'' These reviewers felt
that the petition process provided by this rule should be strictly
limited to the Forest Service and the affected landowner and that the
involvement of outside parties would unnecessarily complicate and
prolong the process. Another reviewer supported the petition process as
set out in the proposed rule.
Response. The Department agrees with the reviewers that requests
for reviews of compliance and noncompliance determinations involving
``other interested parties'' could be unnecessarily cumbersome and time
consuming and that the review process should be limited to those
directly affected, i.e. the landowner whose property was the subject of
the determination. Accordingly, in the final rule, paragraph (c) of
Sec. 292.24 has been revised to limit petitions for review to affected
landowners.
Comment: Acquiescence to local zoning ordinances and
administration. One reviewer felt that the compliance/noncompliance
determination procedure should be discarded in favor of a system in
which proposals for use and development of private land in the HCNRA
would be channeled through the existing local mechanisms provided under
the Wallowa County Land Use Development Ordinance and the Wallowa
County Comprehensive Land Use Plan. In this alternative, the HCNRA
Ranger's role would be limited to that of an interested party who would
be able to testify in favor of or in opposition to a proposed use or
development. However, if the Ranger opposed the proposal, it would be
his or her burden to prove that the proposal is contrary to the County
Ordinance and Plan. According to this reviewer, it is only through this
mechanism that the standard of local citizen involvement required by
state and local law would be satisfied.
Response. This alternative is not one that the Department can
implement and remain consistent with its responsibilities under the
HCNRA Act. The federal interest must be protected and cannot be
dependent upon, or subservient to, state and local zoning decisions. In
effect, this alternative would relegate the Forest Service to the
status of an interested party whose comments would be considered by the
County in the context of a pending development or use proposal. Forest
Service comments would not be binding on the commission, nor would they
necessarily even be persuasive. It is difficult to comprehend how the
Forest Service could carry out its responsibilities under the HCNRA Act
and effectively ensure that activities on the private lands not impair
the values for which Congress established the HCNRA under this system.
It is the hope of the Department that the procedures currently in
place at the state and local level will suffice to condition, restrict,
or preclude many incompatible uses or developments in the HCNRA. The
standards adopted by the final rule are from local zoning ordinances
and applicable laws that already adequately protect the HCNRA. The
County's disposition of pending development proposals should, in most
cases, result in decisions that are compatible with the purposes of the
HCNRA Act. However, in the event uses or developments are incompatible,
or in the event that the County Ordinances and Plan are amended in such
a way as to lessen the restrictions on private lands which would
thereby increase the potential threat to the HCNRA, then the Forest
Service must have the ability to enforce the standards needed to
protect the HCNRA. The rule as proposed provides this protection.
Therefore, no change was made to Sec. 292.24 in response to this
comment.
Finally, the heading for Sec. 292.24 was edited for clarity to
read: ``Determination of compliance and noncompliance.''
Conclusion
Having carefully considered the comments received on the proposed
rule, and explained the basis for adopting or not adopting changes
proposed by reviewers, the Department hereby adopts a final rule to
ensure that the use and development of private lands within the Hells
Canyon Recreation Area are compatible with the purposes for which
Congress established the Area and its management direction.
The standards established by the final rule are those essential to
protection of the Area. The approach adopted is not one of direct
federal regulation of private land but rather one of relying, to the
greatest extent possible, on local zoning authority. The rule gives
private landowners notice of those uses that are compatible with the
purposes of the HCNRA, provides a mechanism whereby the landowner and
the agency may determine compliance or noncompliance with the standards
of the rule and gives constructive notice to private landowners that
incompatible uses of private land may trigger the use of the
Secretary's condemnation authority. Nevertheless this rule is
predicated on the premise that the use of the Secretary's condemnation
authority is to be a last resort and that the agency shall make every
effort to work harmoniously and cooperatively with private landowners
to ensure protection of the HCNRA.
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. This rule will not have
an annual effect of $100 million or more on the economy nor adversely
affect productivity, competition, jobs, the environment, public health
or safety, nor state or local governments. This rule will not interfere
with an action taken or planned by another agency nor raise new legal
or policy issues. Finally, this action will not alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients of such programs. Accordingly,
this final rule is not subject to OMB review under Executive Order
12866.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by that Act. To
the extent that the rule imposes additional requirements on any small
entity, these requirements are the minimum necessary to protect the
public interest, are not administratively burdensome or costly to meet,
and are well within the capability of small entities to perform.
Takings Implication
Since this rule is premised on the formal exercise of the
Secretary's eminent domain authority, it is not an ``action'' as that
term is defined in Section 2(c)(1) of Executive Order 12630.
Nonetheless, the Office of General Counsel has reviewed this rule for
takings implications and determined that there is no risk of a taking
related to this rule or its implementation.
Executive Order 12778, Civil Justice Reform Act
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Accordingly, (1) all state and local laws and
regulations that are in conflict with this rule or which impede its
full implementation are preempted; (2) no retroactive effect will be
given to this rule; and (3) it will not require administrative
proceedings before parties could file suit in court challenging its
provisions.
Environmental Impact
This rulemaking was discussed as a proposed rule in the final
Environmental Impact Statement and Comprehensive Management Plan for
the Hells Canyon National Recreation Area, pages 155-158. The analysis
completed for the Comprehensive Management Plan was revalidated in
April 1990 with the signing of the Wallowa-Whitman National Forest Land
and Resource Management (pages 1-2). Information pertaining to the
environmental analysis may be obtained by writing or calling the
persons or offices listed under ADDRESSES and FOR FURTHER INFORMATION
CONTACT.
Information collection requirements
As outlined in the rule at Sec. 292.24, a landowner may request an
optional compliance determination from the Forest Service. As such,
this rule contains information requirements as defined in 5 CFR Part
1320. These information requirements are assigned control number 0596-
0135 and are approved for use through March 1997.
List of Subjects in 36 CFR Part 292
Recreation and recreation uses, and National forest.
Therefore, for the reasons set forth in the preamble, part 292 of
title 36 of the Code of Federal Regulations, is amended by adding a new
subpart E to read as follows:
PART 292--NATIONAL RECREATION AREAS [AMENDED]
Subpart E--Hells Canyon National Recreation Area--Private Lands
Sec.
292.20 Purpose and scope.
292.21 Definitions.
292.22 Land category assignments.
292.23 Standards of compatible land use and development.
292.24 Determination of compliance and noncompliance.
292.25 Information requirements.
Authority: 89 Stat. 1117; 16 U.S.C. 460gg-460gg-13.
Subpart E--Hells Canyon National Recreation Area--Private Lands
Sec. 292.20 Purpose and scope.
(a) Purpose. The Act establishing the Hells Canyon National
Recreation Area (hereafter referred to as HCNRA) (16 U.S.C. 460gg-
460gg-13) encourages the retention of traditional and valid uses of
private land within the HCNRA, such as ranching, grazing, farming,
timber harvesting, and the occupation of homes and lands associated
therewith, as they existed at the time the HCNRA was established on
December 31, 1975. To this end, the Act directs the Secretary of
Agriculture to promulgate regulations establishing standards for the
use and development of private land within the HCNRA and grants the
Secretary limited condemnation authority to address situations where
the standards are not met. The purpose of this subpart is to establish
standards that would guide the Secretary's consideration of the use of
the limited condemnation authority granted by the Act.
(b) Scope. The regulations in this subpart establish standards
applicable to all private property within the boundaries of the HCNRA,
including that within the boundaries of the Rapid, Snake, and Imnaha
Wild and Scenic Rivers and the Hells Canyon Wilderness. The regulations
in this subpart do not operate to restrict the use and development of
private property; rather, they serve to inform the landowner of those
uses that are compatible with purposes for which the HCNRA was
established. Uses not compatible with these standards could result in
the Secretary acquiring land or interests therein without a landowner's
consent.
The regulations in this subpart, in and of themselves, do not
effect a taking of private property, including valid, existing water
rights, nor do the standards established in this subpart limit or
restrict a private landowner's property use that is compatible with the
purposes of the Act. The Responsible Official may use the regulations
in this subpart solely to determine whether private land uses or
developments are compatible with the purposes and direction of the Act
and, if not, to determine whether the Secretary should consider
initiating condemnation proceedings to acquire land or scenic
easements.
Sec. 292.21 Definitions.
For the purposes of this subpart, the following terms are defined:
Act refers to the act of December 31, 1975, which established the
Hells Canyon National Recreation Area (89 Stat. 1117; 16 U.S.C. 460gg-
460gg-13).
Archaeological sites are those sites containing relics, artifacts,
and other evidence of past human cultures including historic properties
as defined by the National Historic Preservation Act.
Commercial land is land within the HCNRA developed for commercial
purposes as of June 13, 1994 and which is assigned to the commercial
land category (Sec. 292.22).
Condemnation is the acquisition of lands or interests therein by
the Secretary without the consent of the owner. In the case of the Act,
condemnation is a limited authority that may be exercised by the
Secretary only in the event that a standard or standards set forth
herein are violated for all private land categories except mining
lands. Where mining lands are involved, the Secretary may exercise his
or her condemnation authority notwithstanding the fact that the mining
land owner has complied with the relevant standards of this section.
Conservation easement or Scenic easement as defined in Section 9(d)
of the Act ``means the right to control the use of land in order to
protect aesthetic values for the purposes of this Act, but shall not be
acquired without the consent of the owner to preclude the continuation
of any farming or pastoral use exercised by the owner as of the date of
enactment of this Act.''
Dude ranching is a business oriented primarily towards furnishing
small groups with an outdoor recreational and educational experience
associated with ranching activities and perpetuates the purposes for
which the HCNRA was established. Dude ranching is subservient to the
primarily recognized ranching operation.
Existing uses are those uses of or developments to private land as
of the date of enactment of the Act on December 31, 1975.
Farm/Forest/Grazing lands are those lands used for farm, forest,
and grazing purposes, for maintaining watersheds as fish and wildlife
habitat, or for providing outdoor recreational activities. All such
lands are assigned to the Farm/Forest/Grazing land category in
Sec. 292.22.
Farm/Forest/Grazing Use is any traditional agricultural,
silvicultural, or livestock management use or combination thereof on
farm/forest/grazing lands within the HCNRA. This includes, but is not
limited to, truck farming, growing and harvesting of timber, grazing of
livestock, horticultural use, animal husbandry use, horse, cattle, and
sheep ranching, and preparation and storage of the products raised on
farm/forest/grazing land for on-site use or for disposal by marketing
or otherwise. Farm/forest/grazing uses may also consist of uses related
to and in furtherance of the protection of watersheds, maintenance of
fish and wildlife habitat, and the pursuit of recreational activities.
Hazardous substance includes any material so classified under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. 9601 et seq.).
Mining lands are lands primarily used for mining purposes as of
June 13, 1994 and which are assigned to the mining land category in
Sec. 292.22.
Outdoor recreational activities are activities such as camping,
picnicking, rafting, boating, hiking, rock climbing, fishing, hunting,
horseback riding, and the viewing of wildlife or scenery.
Parcel as used in this subpart refers to contiguous tax lots under
one ownership. For the purposes of this subpart, rights-of-way do not
divide parcels into smaller units.
Partition is the division of land into lots, and which, under
county planning ordinances, is identified by a map, drawing, or writing
which contains the descriptions, locations, specifications, and
dedications for roads, utilities, etc. and which has been properly
filed with the County recorder.
Private land is land not in federal, state, or local government
ownership.
Proposed uses are those uses of or development to a private land
parcel within the HCNRA initiated after June 13, 1994.
Ranger is the HCNRA Area Ranger, Wallowa-Whitman National Forest,
with offices located in Enterprise, Oregon, Riggins, Idaho, and
Clarkston, Washington, except for the Rapid Wild and Scenic River where
the term refers to the Salmon River District Ranger, Nez Perce National
Forest, located in Whitebird, Idaho.
Recreational facilities are facilities associated with or required
for outdoor recreational activities and include, but are not limited
to, parks, campgrounds, hunting and fishing lodges, and interpretive
displays.
Residential lands are lands within the HCNRA developed for
residential purposes as of June 13, 1994 and which are assigned to the
Residential land category in Sec. 292.22.
Scenic Easement. See Conservation Easement.
Screening is the reduction or elimination of the visual impact of
any structure or land modification as seen from any public travel route
within the HCNRA.
Solid waste is discarded solid materials resulting from mining,
industrial, commercial, agricultural, silvicultural, and community
activities. This term does not include domestic sewage or pollutants
such as silt or dissolved materials in irrigation return flows.
Structure is any permanent building or facility, or part thereof
such as barns, outhouses, residences and storage sheds. This includes
electric transmission line systems, substations, commercial radio
transmitters, relays or repeater stations, antennas, and other
electronic sites and associated structures.
Traditional uses are ranching, grazing, farming, timber harvesting
and the occupation of homes and land associated therewith within the
HCNRA, or other activities including outdoor recreational activities
and facilities, which existed on or before December 31, 1975.
Travel route is a route, such as a county or National Forest system
road or river or trail, that is open for use by members of the general
public.
Sec. 292.22 Land category assignments.
(a) Land categories. (1) All privately owned lands within the HCNRA
are to be assigned to one of the following four land categories:
(i) Farm/forest/grazing land.
(ii) Mining land.
(iii) Residential land.
(iv) Commercial land.
(2) Not later than August 12, 1994, a map or maps displaying the
privately owned lands within the HCNRA and the land categories to which
they have been assigned must be on file and available for public
inspection at the Ranger's office. The Ranger shall give notice of the
availability of this map or maps in the local newspapers of record.
(b) Changes in land category assignment. Lands assigned to the
Commercial, Residential, or Mining category may be reclassified as
farm/forest/grazing land so long as the intended use or development is
consistent with the standards in Sec. 292.23 and the Ranger has given
public notice of the proposed change in the local newspaper of record
and has notified adjacent landowners and the affected county government
at least 30 days prior to any decision on the proposed change.
Sec. 292.23 Standards of compatible land use and development.
Private land use that conforms to the standards of this section is
deemed to be compatible with the purpose for which the HCNRA was
established.
(a) Standards applicable to all private lands. As of June 13, 1994,
the use and development of private lands in all land categories within
the HCNRA is deemed compatible with the purposes for which the HCNRA
was established, if the use and development of such lands meets the
following standards:
(1) Use and development conforms to applicable local, state, and
federal environmental, natural resource, cultural resource, and land
use development law.
(2) All new or replacement structures are screened and/or
constructed of materials that blend with the natural environment,
except where structures typify the architectural style and materials of
a significant historic era such as pre-World War II. Screening is not
required, however, for new or replacement structures that are
associated with an existing unscreened structure or structures that
were not screened at the time this rule became effective.
(3) No public or commercial solid waste disposal sites or hazardous
substance disposal sites are located on private lands within the HCNRA.
(4) All new or replacement utility lines are placed underground
where ground conditions and topography permit. This standard does not
prevent or impair routine maintenance of utility lines or related
structures in existence prior to June 13, 1994.
(5) No new or replacement structures are developed within the
boundaries of the Hells Canyon Wilderness, provided that existing
structures may be repaired and/or maintained.
(6) Significant historic, archaeologic, or paleontologic sites are
protected.
(7) Sites used for the extraction of common mineral materials, such
as gravel, for construction and maintenance purposes on all except
designated mining lands, are screened where possible, and are not in
excess of 2 acres in size.
(8) New recreational facilities enhance and are compatible with the
purpose of the Act.
(b) Farm/forest/grazing lands standards. The following additional
standards are applicable to farm/forest/grazing lands:
(1) Except as otherwise provided in this paragraph, the minimum lot
size for residential development is 160 acres. Only residences
associated with farm/forest/grazing uses may be developed. Partitions
of less than 160 acres may be made to provide for the continuation of
existing commercial agriculture, but such partitions may not be
developed for residential use. Lots of less than 160 acres existing on
June 13, 1994, with residences permanently affixed to a foundation or
basement, are considered to be in compliance.
(2) Structures are limited to those necessary to conduct farm/
forest/grazing use.
(3) Dude ranching is permitted provided it is compatible with the
purpose and direction of the Act and is part of a recognized ranching
operation.
(4) New or replacement structures for farm/forest/grazing use are
not closer than 25 feet from a property line or 55 feet from the center
line of a travel route.
(c) Mining Lands. (1) The following standards are applicable to
mining lands:
(i) The owner of mining lands must consult with the Ranger
concerning proposed mineral development activities prior to submitting
a plan of operations to the relevant state or federal agencies.
(ii) Operations comply with Federal and State mining, air quality,
water quality, hazardous waste, water disposal and reclamation
standards.
(iii) The type and number of structures, including but not limited
to residences associated with the mining activity, are limited to the
minimum necessary for the use and development of the mining lands.
(iv) No new structures are located closer than 25 feet from a
property line or 55 feet from the center line of a travel route.
(v) Mining lands are not partitioned.
(2) Notwithstanding compliance with the standards of paragraph
(c)(1) of this section, the Secretary may acquire mineral interests in
the HCNRA without the consent of the owner, if the Secretary deems this
necessary to meet the purposes for which the HCNRA was established.
Sec. 292.24 Determination of compliance and noncompliance.
(a) Compliance. Landowners may request a determination by the
Forest Service as to whether an existing or a proposed use or
development complies with the relevant standards set out in this
subpart.
(1) Requests for a determination of compliance must be made in
writing to the Ranger and include the following information:
(i) The current land category to which the land is assigned
(Sec. 292.23);
(ii) The use of development that exists or that is proposed for the
property;
(iii) A statement as to whether a change in the land category
assignment will be necessary to accommodate the proposed use or
development;
(iv) The timeframe for implementing the proposed use or
development; and
(v) A statement as to how the proposed use or development satisfies
the relevant standards of Sec. 292.23 of this subpart.
(2) The Ranger shall review the request and notify the landowner in
writing within 45 days whether the existing or proposed use or
development is in compliance with Sec. 292.23 of this subpart. The
Ranger may extend the time for making a compliance determination by 30
days if additional information is needed.
(b) Noncompliance. (1) In the event that the Forest Service
determines that an existing or proposed use of development is not in
compliance with the standards of Sec. 292.23 of this subpart, the
Ranger shall give the landowner written notice of the manner and nature
of noncompliance. To the extent practicable, the notice will include
suggestions for achieving compliance. The notice also must include a
statement that the violation of a standard or standards and the failure
to cure such violation may result in the initiation of condemnation
proceedings by the Secretary.
(2) The Forest Service may initiate a noncompliance determination
on its own without having first received a landowner request.
(c) Written petition. The landowner may file a written petition
with the Forest Supervisor for a review of a decision of compliance or
noncompliance. The Forest Supervisor shall render a decision within 30
days of the receipt of the petition. A decision by the Forest
Supervisor constitutes the final administrative determination by the
Department of Agriculture. Petitions of decisions on lands within the
Rapid River Wild and Scenic River Corridor should be addressed to the
Forest Supervisor, Nez Perce National Forest, Route 2, P.O. Box 475,
Grangeville, Idaho 83450. All other petitions should be addressed to
the Forest Supervisor, Wallowa-Whitman National Forest, P.O. Box 907,
Baker City, Oregon 97814.
Sec. 292.25 Information requirements.
The information required by Sec. 292.24 of this subpart in order
for a landowner to obtain a determination of compliance constitutes an
information requirement as defined in the Paperwork Reduction Act (44
U.S.C. 3507) and has been approved for use by the Office of Management
and Budget and assigned control number 0596-0135.
Dated: June 6, 1994.
James R. Lyons,
Assistant Secretary, Natural Resources and Environment.
[FR Doc. 94-14305 Filed 6-10-94; 8:45 am]
BILLING CODE 3410-11-M
