03-22491. Special Use Permits for Outfitter and Guide Operations on the Lower Rogue and Lower Illinois Rivers, Siskiyou National Forest, Curry County, OR

AGENCY:

Forest Service, USDA.

ACTION:

Notice of intent to prepare an environmental impact statement.

SUMMARY:

The USDA Forest Service will prepare an environmental impact statement (EIS) to disclose the environmental effects of reissuing 63 special use permits for outfitter and guide operations on the lower Rogue River from Lobster Creek to the pool below Blossom Bar Rapids and the lower Illinois River from the confluence with the Rogue River to the mouth of Nancy Creek. The types of special use activities on the Rogue River include: commercial tour boats offering scenic trips and transport of guests to lodges in the Wild Section; fishing guides using both float craft and motorboats; livery services transporting people and freight or offering scenic trips; whitewater motorboat training; half-day float trips from Foster Bar to Agness; and commercial transport of lodge guests from Foster Bar to Paradise Lodge. On the Illinois River, the type of commercial activity is guided fishing. As a connected action, there is also a need to issue or reissue special use permits for the docks of the three commercial lodges in the Wild Section of the Rogue River.

DATES:

Comments concerning the scope of this analysis should be received by October 3, 2003.

ADDRESSES:

Send written comments to John Borton, District Ranger, Gold Beach Ranger District, Siskiyou National Forest, 29279 Ellensburg, Gold Beach, OR 97444, Fax [phone], e-mail: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Bill Blackwell, District Recreation, Lands and Minerals Staff, Gold Beach Ranger District, [phone].

SUPPLEMENTARY INFORMATION:

The Rogue River was designated a Wild and Scenic River by Congress in 1968. For the portion of the river where the outfitters and guides operate, the river is classified as either Recreational or Scenic from Lobster Creek to Watson Creek (approximately 24 river miles), and Wild from Watson Creek to the pool below Blossom Bar Rapids (approximately 10 river miles). The Illinois River was designated Wild and Scenic in 1984 and is classified as Recreational from its confluence with the Rogue River upstream to the mouth of Nancy Creek.

Commercial fishing guides using motorboats and tour boats offering scenic trips started in the late 1920s and early 1930s. The number of guides and trips increased in the post-World War II era. The invention of hydro-jet powered motorboats in 1958 allowed boats to navigate the river during low summer flows. As the population has increased over the years, all types of recreational float craft and motorboat use has also increased. Today, thousands of people visit the Rogue River each year. The Rogue is internationally renowned for its fishing, and commercial fishing guides provide a recreational service to people who visit the area. The scenery of the Rogue is also internationally known, and each year thousands of people enjoy the recreational experience of riding on the tour boats that travel up the river.

In 1959, the Oregon State Marine Board was given responsibility to establish and administer boating regulations in the State of Oregon. In the 1970s, due to the increased amount of boating in the Wild Section of the Rogue River, the Marine Board, in cooperation with the Bureau of Land Management and the Forest Service, introduced a permit system to help limit the amount of use in the Wild Section. In 1974, the Marine Board eliminated motorboat use from the pool below Blossom Bar Rapids upstream to Grave Creek between May 15 and November 15. In 1976, after much public comment, the Marine Board limited commercial motorboats in the Wild Section from Watson Creek to the pool below Blossom Bar Rapids between May 15 and November 15 to current permittees and at the use level that existed as of January 15, 1976.

In 1979, the Forest Service first started requiring permits for commercial motorboat activities in the Wild Section of the Rogue River. In 1981, a Forest Service permit was required for any commercial motorboat or float craft activity from Lobster Creek to Watson Creek as well as in the Wild Section. In 1984, the Marine Board decided to re-evaluate its role in the motorboat permit system and begin to solicit public comment. In 1986, the Gold Beach District Ranger wrote to the Marine Board and stated that the Forest Service would continue to administer the motorboat limits and regulations in the Wild Section as the Marine Board had done, with only minor variations. Later that year, the Marine Board decided to repeal their rules, consolidating the motorboat permit system with the Forest Service. The Forest Service continued to issue permits to the tour boats, fishing guides, livery services, and other uses for the same number of trips that had been issued previously by the Marine Board.

In 1995, the Forest Service limited the number of fishing guides in the Lobster Creek to Watson Creek area to those that were currently under permit. These permits allowed use any time of the year, but they could only be used by the permittees and there could be no employees operating under that permit. Also in 1995, the Forest Service limited the number of trips by the tour boats from Lobster Creek to Watson Creek, based on the season of year: shoulder-season (May 1 to June 15 and the day after Labor Day to October 31), main-season (June 16 to Labor Day), and off-season (November 1 to April 30).

Prior to 1999, some guides who operated under permits issued by Bureau of Land Management and jointly administered by the Bureau of Land Management and the Forest Service would guide fishing trips entirely on the National Forest portion of the river. The language in these special use permits stated the outfitter and guide use was for the Rogue River from the Applegate River to Lobster Creek, so the National Forest section was included in the permit. In 1999, the Forest Service and Bureau of Land Management agreed that permittees operating entirely on National Forest must do so under permits issued by only the Forest Service. Permittees that could prove historical use (1974 to 1988) were issued permits for the same types of use and for the same number of trips that had been previously made. These permittees were limited to the maximum number of trips they could make, but were allowed to hire employees.

Also in 1999, Paradise Lodge was authorized to transport lodge guests via motorboat from Foster Bar to the lodge in the Wild Section. Terms and conditions of the special use permit for this activity were negotiated with the parties that appealed the decision the Forest Service had made concerning this activity through an informal resolution process.

In 2001, Riverhawks et al. filed a lawsuit in U.S. District Court alleging the U.S. Forest Service had violated the Wild and Scenic Rivers Act, the National Forest Management Act, and the National Environmental Policy Act (NEPA) by issuing special use permits and allowing motorboat use in the Wild Section of the Rogue River. The District Court ruled the Forest Service violated the procedural requirements of NEPA when reissuing the special use permits for outfitters and guides on the Rogue River, while all other claims made by the Plaintiffs were denied.

Purpose and Need for Action

There are a variety of recreational activities that have become established on the lower Rogue and lower Illinois rivers and thousands of people participate in them each year. The commercial operations that provide these recreational activities on the Rogue River include guided fishing trips, scenic tours, half-day float trips, and the transport of guests to the lodges in the Wild Section. On the lower Illinois River, the commercial activity is guided fishing. These commercial operations are required to have special use permits for these activities by Forest Service policy (Forest Service Manual 2700).

The purpose of this proposal is to provide these recreational activities on the lower Rogue and lower Illinois Rivers through outfitter and guide services as outlined by Forest Service policy. There is a need to respond to those permittees that want to continue their commercial operations and reissue their existing special use permits that expire on December 31, 2004 and April 30, 2006. As a connected action, there is also a need to issue or reissue special use permits for the docks of the three commercial lodges in the Wild Section of the Rogue River. These docks are needed for the tour boats, livery service boats, and the boats that transport commercial lodge guests to Paradise Lodge to safely load and unload passengers and their belongings.

This proposal is in accordance with the Rogue National Wild and Scenic River Management Plan (1972) and the management decisions that have been made about limiting use since the Management Plan was issued. These decisions are described in the Supplementary Information section of this document. This proposal is also in accordance with the Illinois Wild and Scenic River Management Plan (1985). These plans were incorporated into the Siskiyou National Forest Land and Resource Management Plan (1989) in their entirety. The Rogue River Management Plan states, “One of the key reasons for including the Rogue River in the National Wild and Scenic Rivers System was to protect and enhance the recreational values which the river possesses. These values are realized in a great variety of activities. They range from an individual pitting only his knowledge and skill against the sometimes hostile forces of nature to recreation uses where the facilities and equipment are so sophisticated that the river can be enjoyed with no special knowledge and skill. Since boating, fishing and sightseeing are the main recreational uses on the river, top priority for recreation development will be given to improving the quality of those activities.” The Siskiyou Land and Resource Management Plan states, “Increased emphasis has been placed on the Recreation program, the focus of which will be toward meeting the needs of the recreating public and toward working with four Southern Oregon Counties to assist them in developing their Economic development goals. These goals are based on the development of the Recreation/Tourism industry.”

Proposed Action

The proposed action is to reissue 63 special use permits for outfitter and guide operations on the lower Rogue River from Lobster Creek to the pool below Blossom Bar Rapids and the lower Illinois River from the confluence with the Rogue River to the mouth of Nancy Creek with the same terms and conditions as the current permits.

This proposed action does not include and is not addressing the permit system for private recreational motorboat trips in the Wild Section, private recreational motorboat or float use below the wild Section, or motorboat trips for ingress/egress purposes to private property along the Rogue River. These issues will be addressed in the revision of the rogue Comprehensive Wild and Scenic River Management Plan in cooperation with the Bureau of Land Management.

The types of activities on the Rogue River that would be permitted include: Commercial tour boats offering scenic trips and transport of guests to lodges in the Wild Section; fishing guides using both float craft and motorboats; livery services transporting people and freight or offering scenic trips; whitewater motor boat training; half-day float trips from Foster Bar to Agness; and commercial transport of lodge guests from Foster Bar to Paradise Lodge. On the Illinois River, the type of permitted commercial activity is guided fishing. The following details the terms and conditions for each type of permit:

Commercial tour boats. There are three permits for two companies to operate tour boats providing scenic trips from Gold Beach. There are three types of trips and the permitted area is from Lobster Creek to either Snout Creek (Agness), Watson Creek (where the Wild Section begins), or to the pool below Blossom Bar Rapids (approximately 10 miles upriver in the Wild Section). The boat size is limited to 43 feet long and/or 14 feet wide for those boats going to Snout Creek and 31.5 feet long and/or 12 feet wide with a maximum capacity of 42 passengers for those boats going past Snout Creek. The following are the seasons of use and maximum number of trips allowed: (1) Shoulder Seasons—May 1 through June 15 and the day following Labor Day through October 31. The maximum number of trips per day is 16. The maximum number of trips upstream of Snout Creek (Agness) per day is 13. The maximum number of trips upstream of Watson Creek (Wild Section) per day is six; (2) Main Season—June 16 through Labor Day. The maximum number of trips per day is 28. The maximum number of trips upstream of Snout Creek (Agness) per day is 17. The maximum number of trips upstream of Watson Creek (Wild Section) per day is six; and (3) Off Season—November 1 through April 30. The maximum number of trips per day is four with a maximum of eight trips per day.

Fishing guides. There are a total of 59 guides permitted to operate guided fishing trips and other trips on some portion of lower Rogue River and the lower Illinois River. Of the 59, there are 46 guides authorized to conduct guided fishing trips from Lobster Creek to Watson Creek. There is no limit to the number of days the permit can be used, but the permit is valid only for the permitee and the trips can be by either motorboats or float craft such as drift boats. There can be no employees operating under the permit. Of these 46 guides, nine guides can also operate on the lower Illinois River.

There are get guides currently operating the wild Section who originally authorized by the Oregon State Marine Board in 1976 or who bought a guide business that was authorized by the State. Their current permits autohrize use on the Rogue River from Lobster Creek to the pool below Blossom Bar Rapids with a motorboat or float craft. These guides are limited to the number of trips and user days (number of clients) they are permitted on an annual basis. These permittees can operate year-round with a maximum of 394 trips a year in the Wild Section, cumulatively. Six of the permittees can hire employees, but any trips the employees make are counted towards the total number of trips and user days the permittee is allowed. Two of the permittees operate a livery service (transporting people and freight), scenic trips (maximum 32 trips), whitewater boat training, and guided raft trips from Foster Bar to Agness (maximum 31 trips). Three of the permittees can operate on the lower Illinois River. All of these various trips count towards the total annual number of trips and user days that the permittee is authorized.

Nine fishing guides who originally operated under the jointly managed Bureau of Land Management and Forest Service permits are now operating under Forest Service permits as described in the Supplementary Information section. These guides can use both float craft and motorboats. Of these nine guides, four can guide fishing trips in the Wild Section year-around as described above. Three guides can operate in the Wild Section from November 15 to May 14 with a maximum of 57 trips a year, cumulative. Six guides can operate from Foster Bar to Watson Creek and Foster Bar downstream to Lobster Creek for a cumulative maximum of 197 trips a year and eight guides can operate from Foster Bar to Watson Creek and Foster Bar downstream to Quosatana Creek for a cumulative maximum of 285 trips a year.

Commercial transport of lodge guests. There is one permit to transport lodge guest from Foster Bar to Paradise Lodge which is located approximately 10 miles upstream of Foster Bar. A trip is defined as a round-trip from Foster Bar to the lodge and return. The maximum number of trips is 365 annually. Trips not used in the summer season can be carried over into the winter season, but trips not used in the winter season cannot be carried over into the summer season. The number of trips by season are: (1) Summer Season—May 1 to October 31. A maximum of two round trips per day, not to exceed 180 trips for the season, and not to exceed 15 total passengers (commercial and non-commercial combined) upstream in any one day, and not to exceed 15 total passengers (commercial and non-commercial) downstream in any one day; and (2) Winter Season—November 1 to April 30. No daily limit of trips, but not to exceed 185 trips for the season. There is no daily limit of passengers, but there is a limit of 18 total passengers and one operator on any one trip.

Preliminary Alternatives

In addition to the Proposed Action, the No Action alternative will be analyzed. With the No Action alternative, the special use permits would not be reissued. The development of any other alternatives will be completed following the public response to initial scoping.

Scoping Proceess

Scoping is an ongoing process throughout the planning process. A scoping letter will be mailed to those people and organizations on the Gold Beach Ranger District's mailing list that have indicated an interest in Rogue River management. A press release announcing the filing of this Notice of Intent will be sent to local newspapers and media. The public will be notified of any meetings regarding this proposal by mailings and press release sent to the local newspapers and media.

Comment Requested

This notice of intent initiates the scoping process under NEPA, which will guide the development of the draft EIS. The draft EIS is expected to be filed with the Environmental Protection Agency (EPA) and to be available for public comment by January 2004. The comment period for the draft EIS will be 45 days from the date EPA publishes the Notice of Availability in the Federal Register.

At the end of this period, comments submitted to the Forest Service, including names and addresses of those who responded, will be considered part of the public record for this proposal and, as such, will be available for public review. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR part 215. Additionally, pursuant to 7 CFR 1.27(d), any person may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such confidentiality should be aware that, under the FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the agency's decision regarding the request for confidentiality, and if the request is denied, the agency will return the submission and notify the requester that the comments may be resubmitted with or without name and address within a specified number of days.

The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft EISs must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 533 (1978). Also, environmental objections that could be raised at the draft EIS stage, but that are not raised until completion of the final EIS, may be waived or dismissed by the courts. City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir, 1986) and Wisconsin Heritages, Inc., v. Harris, 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is important that those interested in this proposed action participate by the close of the 45-day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final EIS.

To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft EIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft EIS. Comments may also address the adequacy of the draft EIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.

Comments on the draft EIS will be analyzed, considered, and responded to by the Forest Service in preparing the final EIS. The final EIS is scheduled to be completed in July 2004. The Responsible Official, John Borton, District Ranger, will review the analysis contained in the Environmental Impact Statement (EIS) to determine if the special use permits should be reissued and under what terms and conditions. The responsible official will consider comments, responses, environmental consequences discussed in the final EIS and applicable laws, regulations, and policies in making this decision and will document the decision and rationale in the Record of Decision. The decision will be subject to Forest Service Appeal Regulations (36 CFR part 215).

Dated: August 26, 2003.

John Borton,

District Ranger.