Return Address: 

Jason D. Robertson

Access Director

American Whitewater

1430 Fenwick Lane

Silver Spring, MD 90210

301-589-9453

301-589-6121 (fax)

Jason@awa.org

 

February 25, 2002

 

Andrea Csergei

Southern Region FOIA Officer

US Forest Service

Dept. of Agriculture

1720 Peachtree Road, NW

Atlanta, GA  30367

404-347-7310

404-347-5401 (Fax)                                                                           

acsergei@fs.fed.us

 

 

FOIA Request Re:

Recreational Boating Management of

Wild & Scenic Chattooga River

 

Dear Andrea Csergei:

 

On behalf of the non-profit American Whitewater, I hereby request the following information under the Freedom of Information Act, 5 U.S.C.§552:

 

1. Copies of any documents or records (including memoranda, correspondence, studies and planning documents) prepared or obtained by the United States Forest Service (USFS) or United States Department of Agriculture (USDA) between 1969 and the present, which contain any reference to “whitewater recreation”, “floating”, “boating,” “canoeing”, and/or “kayaking” on the Chattooga River upstream of Highway 28. 
1. Note that this river segment upstream of Highway 28 is often referred to as “Section 1” or uncommonly as “Section 0” in USFS documents and that the floating public often refers to this river section as “Section 0”, “Section 00”, or “Section 1”.
2. Note that this river segment is located in part in Nantahala National Forest in North Carolina, passes through the Ellicott Rock Wilderness, and separates the Chattahoochee National Forest in Georgia and Sumter National Forest in South Carolina. The Sumter  National Forest is the lead agency on managing the Wild and Scenic sections of the Chattooga.
3. Note that regulation 36 CFR 261.77.c may reference this subject, and that we are also interested in this regulation per requested item #3 below.
4. Note that “Appendix M” of the Sumter National Forest’s Chattooga River Wild and Scenic River Management Plan references floating on this section of river, and that we are also interested in Appendix M per requested item #3 below.
5. Note that floating use was addressed in the 1971 Chattooga Wild and Scenic River study document submitted to Congress. The study was done to support designation of the Chattooga as a Wild and Scenic River.
6. Note that on May 10, 1974 Congress identified 57 miles of the Chattooga River for inclusion in the National Wild and Scenic River System.
7. Note that numerous individuals and public interest non-profits, including American Whitewater, have expressed written interest since the mid-1970’s in the policy question of why this river section was closed to float use and how the Forest Service has developed policy addressing public requests to reopen boating and recreation upstream of Highway 28.
8. Note that former Forest Supervisor Donald W. Eng prohibited floating North (upstream) of SC/GA Highway 28 in 1981 for public safety purposes at the same time he required the use of safety equipment such as helmets and life jackets on the lower sections of the river [Appendix M, pg 32, 1985 Land and Resources Management Plan (LRMP) for this letter and a comment of the effect of this decision on safety on Appendix M, page 20, part III, subsection H].  Note that the ban was reaffirmed in the 1985 LRMP. As in 1981, the LRMP limited floating to Sections I, II, III, & IV in the Sumter and Chattahoochee National Forests. However, no mention of safety was made in regard to the boating ban; instead, the ban was described as a tool for providing "quality trout fishing." under Appendix M, page 16, part III, subsection C of the 1985 LRMP.
9. Note that many boaters floated the sections upstream of Highway 28 prior to passage of the Wild and Scenic Rivers Act in 1974, and that the decision to ban floating upstream of Highway 28 was apparently made after 1974 and prior to the 1981 decision that was documented in the 1985 LRMP.  We are seeking documentation dating prior to 1985 of this initial policy decision limiting use upstream of Highway 28.

 

2. Copies of any documents or records (including memoranda, correspondence, studies and planning documents) prepared or obtained by the United States Forest Service (USFS) or United States Department of Agriculture (USDA) since 1990, which contain any reference to USFS Policy on limiting non-commercial recreational boating, floating, or other whitewater recreation on Wild & Scenic Rivers, and the Chattooga River in particular, under the Wild and Scenic Rivers Act (P.L. 90-542.1.b).
1. Note that there may have been relevant policy discussions re limiting such use on the Wild & Scenic North Fork of the Kern River in California’s Sequoia National Forest.

 

3. Copies of any documents or records (including memoranda, correspondence, studies and planning documents) prepared or obtained by the United States Forest Service (USFS) or United States Department of Agriculture (USDA) between 1974 and the present, which contain (1) any reference to USFS policy or actions under 36 CFR 261.77.c, and/or also (2) any reference to USFS Policy regarding development or amendment of Appendix M of the Chattooga River Management Plan re recreational boating use upstream of Highway 28.
1. Note that Appendix M states “Floating north of Highway 28 Bridge is prohibited through a condition of the floater permit under 36 CFR 261.77.c.”; and that
2. 36 CFR 261.77.c provides the apparent legal foundation for the prohibition on boating in the headwaters by simply detailing that visitors must sign a self registration floater permit before boating, and that the permit will be made available at specified locations including the Highway 28 Bridge; but that
3. The decision to limit all float use above Highway 28, does not appear to have been detailed or explained in the public record and that the intent of our request is to reveal how this policy decision was made, who made it, and whether it was consistent with NEPA, the Wild and Scenic Rivers Act, and other relevant legislation, or whether the decision was simply made through an error of omission and could be rectified through the issuance of self-registration floater permits consistent with 36 CFR 261.77.c.

 

4. Copies of any documents or records (including memoranda, correspondence, studies and planning documents) prepared or obtained by the United States Forest Service (USFS) or United States Department of Agriculture (USDA) between 1969 and the present, which contain any reference to USFS Policy regarding Section 13.a of the Wild & Scenic Rivers Act, which states in part “Nothing in this Act shall affect existing rights of any State, including the right of access, with respect to the beds of navigable streams, tributaries, or rivers (or segments thereof) located in a national wild, scenic or recreational river area”; and also any which contain reference to Section 13.a in relation to the State of Georgia, South Carolina, and/or North Carolina on the navigability of the Chattooga River.
1. The intent of this request is to reveal any documentation that the Forest Service has available on the legal navigable status of the Chattooga River and how Section 13.a applies specifically to the Chattooga River; and
2. To reveal any documentation on management policy re navigation management or ownership claims or conflicts between the Forest Service and the States bordering the Wild & Scenic Chattooga River; and
3. To reveal any documentation on management policy re Forest Service limitations and/or controls of recreational navigation on the Chattooga River upstream of Highway 28, and Section III and IV.

 

I request that these records be provided within the ten working days required by law. I also request, in accordance with the requirements of FOIA, that any records or segments of records that are deemed to be exempt from the Act be specifically described and correlated with a particular FOIA exemption. If any requested documents cannot be sent because they are not in final form, I request any completed parts and that my order be split to avoid unnecessary delay.

 

I also request that you waive any applicable fees. The Department of Agriculture has published FOIA guidelines for agencies to follow in making fee waiver determinations.  The guidelines, found at 7 CFR, Subtitle A, Part 1, Subpart A, Appendix A, Section 6(a)(1), list six factors to be taken into consideration when assessing fee waiver requests. This FOIA request clearly meets all six factors: 

 

(1)   The request concerns the operations or activities of the government in managing recreational boating on the Wild and Scenic Chattooga River, as well as other federally-designated Wild and Scenic rivers. 

(2)   Management of recreational boating on the Chattooga River appears inconsistent with management practices on other federally-designated wild and Scenic Rivers; therefore clarification of the development of management policies on the Chattooga is in the direct public interest.  The disclosure of the requested information will contribute directly to an understanding of the subject by the general public with an interest in Forest Service management on the Wild and Scenic Chattooga Rivers as well as individuals interested in the precedential value of the management practices on the Chattooga relevant to other Federally-designated Wild & Scenic Rivers. 

(3)   American Whitewater will disseminate a complete analysis of the information to the general public via our website at www.AmericanWhitewater.org (15,000 visitors daily, web search term “Chattooga”) and our bimonthly publication the American Whitewater Journal (circ. 15,000).  Both venues cover conservation and access developments affecting whitewater recreationists, and American Whitewater’s publications are an important source of information to this community.

(4)   The disclosure of the requested information will contribute directly and significantly to public understanding of how the Forest Service is managing recreational boating on the Wild and Scenic Chattooga River.  The issue is of particular interest to the public as evidenced by the hundreds of comments received by the agency in a recent NEPA scoping period on government management of recreational boating on the Wild and Scenic Chattooga River.

 

(5)   American Whitewater is a non-profit 501.c.3, public interest organization and has no financial or commercial interest in the requested records.

(6)   American Whitewater represents 8,000 whitewater boaters directly, and 160 affiliate canoe and kayak clubs with memberships exceeding 80,000 boaters. American Whitewater's sole interest in the requested records is to advance the public's understanding of the government's policies and practices in managing recreation on Wild and Scenic Rivers.

 

Accordingly, it is clear that a fee waiver is appropriate in this case, since "disclosure of the information is in the public interest, because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U. S. C. § 552(a)(4)(A)(iii).  In addition, we do not make this request to waive fees lightly; we have only chosen to ask the taxpayers to fund the collection and sharing of this information after numerous failed attempts on our part, the part of our volunteers, and the part of other non-profits to obtain this information through non-FOIA public avenues and at American Whitewater’s direct expense.

 

If you have any questions regarding this FOIA request please call me at 301-589-9453 between 10am and 4pm on weekdays. 

 

You may also send correspondence to: Jason@awa.org, or American Whitewater, 1430 Fenwick Lane, Silver Spring, MD 90210.

 

Sincerely,

 

 

Jason D. Robertson

Access Director

 

CC:      Rita M. Morgan

FOIA/PA Officer

USDA Forest Service

FOIA/PA Office, Stop 1143

P.O. Box 96090

Washington, DC 20090-6090

 

Donald E. Kinser

Chattooga River Regional Coordinator

American Whitewater

1263 Colony Drive

Marietta, GA 30068

 

Attachments: 

1. Articles of incorporation of American Whitewater
2. Constitution and bylaws of American Whitewater