Recreation Not Red Tape: All the Details
First introduced in March 2016, Senator Wyden's Recreation Not Red Tape Act had a hearing in the Senate Energy and Natural Resources Committee this past week. We are pretty excited that the Committee has an interest in outdoor recreation and scheduled a hearing covering 9 bills focused on outdoor recreation. We were part of launching that interest among Committee Members when our Pacific Northwest Stewardship Director Thomas O’Keefe was invited to testify before the Committee in March 2019.
We are carefully evaluating all of the bills and have worked with Outdoor Alliance to provide testimony to the Committee. Of the bills before the Committee, we have had the most direct input on the Recreation Not Red Tape Act. We have worked on this bill, first introduced in March 2016, for several years and provided extensive input on the development of Title III which is the most exciting and would provide a protective designation for areas of recreational value. Title I includes reforms to the process for issuing outfitter-guide permits. We know that allocation of outfitter-guide permits is always an important topic for our members and we have worked hard to ensure proposed reforms do not come at the expense of members of the paddling community who prefer to organize their own trips.
Here's a quick summary of what the bill does followed by a detailed section-by-section analysis.
Quick Summary — What Does the Bill Do?
- Enable Congress to protect places for their recreation value with a new organic designation for National Recreation Areas;
- Direct land managers to inventory for areas where there is valuable recreation and help Congress move toward protecting these recreational experiences;
- Make it easier to buy national and state recreation passes;
- Extend seasonal recreation opportunities where appropriate;
- Make recreation a bigger part of how land managers do their jobs by directing land management agencies to develop recreation performance metrics for evaluations;
- Add recreation to the mission of some land management agencies that don’t already have it;
- Help land managers accept volunteers to conduct stewardship activities and facilitate trail maintenance across agency jurisdictions.
Detailed Section by Section explanation
TITLE I — MODERNIZING RECREATION PERMITTING
Title I covers special recreation permits and largely mirrors the language of the SOAR Act. Here at American Whitewater we know most of our members prefer organizing their own trips but there are many groups we partner with who are working to diversify the community of people who recreate on public lands and waters. Many kids, particularly those from historically underrepresented communities, don’t have a mentor to introduce them to the magic of wild rivers. If the YMCA wants to take local youth out to the local National Forest, many of whom have never had the opportunity to experience public lands or waters, they need a special recreation permit (YMCA testified that they can’t take kids out on the local National Forest and instead offer climbing programs in Canada because they can’t secure a permit). Similarly, if a local shop wants to put on a creeking clinic or if we want to take a hydropower company representative or elected official down a river it can be very challenging or impossible to secure the permit.
It’s important to understand what this bill does not do: it does not make changes to existing carrying capacity determinations or change allocations between different user groups. In other words, the bill does not take capacity away from the general public and allocate it to commercial outfitters. The bill does not take user days away from the general public on rivers like the Middle Fork Salmon and allocate them to commercial outfitters or outdoor programs. It was important to American Whitewater that reforms to special recreation permits sought by the outfitting and guiding community did not come at the expense of those who enjoy recreational opportunities on their own. Similarly, it was important to the conservation community that reforms to special recreation permits did not come at the expense of the ecological health and vitality of our public lands which is why The Wilderness Society was directly involved and supports the legislation.
Following is a section-by-section overview of Title I which covers special recreation permits:
Sec. 101. Definitions.
This section is a simple overview of definitions for key terms in this section.
Sec. 102. Special recreation permit and fee.
Subsection a establishes basic definitions.
Subsection b includes provisions to ensure that those providing outfitter-guide services are paying fees for use of public lands and waters at a rate of 3% of gross revenue of recreation services provided. The subsection further clarifies that the fee be based on activities that occur on public lands and waters as opposed to total gross revenue for the business. The section specifically states that “revenue from goods, services, souvenirs, merchandise, gear, food, and activities provided or sold by a special recreation permit holder in a location other than the Federal recreational lands and waters covered by the permit, including transportation costs, lodging, and any other service before or after a trip” will be excluded from calculation of gross revenue used to determine outfitter-guide fees.
Subsection c covers use of special recreation permit revenue. Currently this revenue can be used for a number of activities as listed under 16 USC §6807 that include “A) repair, maintenance, and facility enhancement related directly to visitor enjoyment, visitor access, and health and safety; B) interpretation, visitor information, visitor service, visitor needs assessments, and signs; C) habitat restoration directly related to wildlife-dependent recreation that is limited to hunting, fishing, wildlife observation, or photography; D) law enforcement related to public use and recreation; E) direct operating or capital costs associated with the recreation fee program; and F) a fee management agreement established under section 6805(a) of this title or a visitor reservation service.” The bill would add expenses “associated with processing applications for special recreation permits” to this list. Currently resource agencies cite lack of resources as a reason they won’t even respond to a request for an application for a special recreation permit.
Subsection d eliminates the sunset provision for the Federal Lands Recreation Enhancement Act (FLREA). For the past several years a mad scramble has ensued at the end of the federal fiscal year to extend this Act for another year. Reforms to FLREA are needed, and we have had many conversations with Congressional offices to discuss how fees are collected for use of public lands but we need to take the time and care to do this right and can’t accomplish that in the two week scramble at the end of the federal fiscal year.
Sec. 103. Permitting process improvements.
Subsection a directs the agencies to “evaluate the special recreation permitting process and identify opportunities — (i) to eliminate duplicative processes; (ii) to reduce costs; and (iii) to decrease processing times.”
Subsection b directs the agencies to “evaluate” whether additional categorical exclusions, under the National Environmental Policy Act, could be adopted to improve the permitting process “without significantly affecting the quality of the human environment.” As noted in the text of the bill, any such categorical exclusions must be “in compliance with the National Environmental Policy Act” and be implemented through a revision to regulations that will be subject to public input and comment.
As stated in current regulation (40 CFR § 1508.4), a “Categorical Exclusion means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.” In cases where Extraordinary Circumstances exist (see 7 CFR § 799.33), “the presence and impacts of Extraordinary Circumstances require heightened review of proposed actions that would otherwise be categorically excluded.”
A real world example of the implications of this section would be a local kayaking shop who wants to lead a couple creeking clinics on the Cooper River, located on the Okanogan-Wenatchee National Forest on the east side of Snoqualmie Pass. When a local shop in Seattle inquired about offering such a clinic, the Forest Service responded that they would be required to conduct an Environmental Assessment before issuing a permit at a cost of several thousand dollars. This section does not bypass the National Environmental Policy Act but directs the agencies to identify opportunities for increased efficiency within the process. Where Extraordinary circumstances exist (e.g. impacts to endangered salmon, high use rivers that are fully allocated), a more comprehensive environmental review is justified and will still happen. Even under a Categorical Exclusion, there are opportunities for public meetings and public comment where input on carrying capacity, the need for and scope of permits, and size of trips can be provided and then analyzed (the Chetco River Kayaking Permit Decision Memo illustrates an example of this).
Subsection c eliminates a needs assessment as a condition of issuing a special use recreation permit. This assessment is not formal analysis under the National Environmental Policy Act but it is a step agencies can take prior to determining whether analysis of outfitting and guiding needs is warranted. Some of our members have sought to offer new opportunities for kayak instruction on rivers on our National Forests and the agency has responded that they have not conducted a needs assessment to determine if the public has an interest in these services. We have even had situations where National Forest staff say that they don’t see a need for any whitewater kayaking services (e.g. local shops who want to teach a clinic a couple times a year) because the number of people whitewater rafting has declined over the past decade. The agency logic is clearly we don’t need to offer any permits for whitewater kayaking instruction because fewer people are rafting. A small business owner or local paddling club is more capable of determining if a market exists for a service than the resource agency; recognizing this reality, the bill states that the “Secretary concerned shall not conduct a needs assessment as a condition of issuing a special recreation permit under this Act.”
Subsection d provides accommodations to submit a permit application online. Currently the process for submitting an application for a special recreation permit involves numerous phone calls and visits to a local office to find out who can accept an application. In several cases, a small business owner or organization had to enlist the services of their Member of Congress to get the agency to even acknowledge receipt of an application. Many just give up.
Sec. 104. Permit flexibility.
Subsection a directs agencies to establish a protocol to allow those with special recreation permits who provide services that are “substantially similar to the specific activity authorized under the special recreation permit” to offer those activities under their existing permit. As a specific example, this provision would allow an outfitter who provides kayak and canoe trips to also add stand-up-paddleboarding without having to go through a new administrative process to add a “new activity” to their permit. Specific safeguards are included to ensure that the new activity “does not result in a greater impact on natural and cultural resources than the authorized activity.”
Subsection b allows those with special recreation permits to “voluntarily and temporarily return to the Secretary concerned one or more service days, to be made available to any other existing or potential permittee.” We worked to secure this language to include “any other existing or potential permittee” to ensure surplus service days can be utilized by outfitters or the public on rivers where all users must obtain a permit.
Subsection c includes a provision to “establish and implement a program to authorize the issuance of temporary special recreation permits for new or additional recreational uses of Federal recreational lands and waters.” Too often permits are locked in to one type and style of trip and do not recognize changing recreation demand. For rivers, an outfitter may have been offering guided whitewater trips with passengers sitting passively in a raft. A new business owner might have ideas for offering different types of trips or experiences where participants take a more active role in the experience (e.g. kayaking, inflatable kayaking, or stand-up-paddleboarding trips). This section would allow a business owner or instructor to test out new ideas for trips or experiences.
Sec. 105. Permit administration.
Subsection a provides information for those seeking special recreation permits as well as the general public in a transparent format on a website as well as an email notification system. This level of visibility will help everyone and take the administrative process associated with special recreation permits out of the backrooms of agencies ensuring that everyone has knowledge of where the agency might be making opportunities for special recreation permits available. A transparent notification process allows organizations like ours and the general public to track plans to issue new permits and raise any concerns early in the process. We believe this will enhance opportunities for public participation and engagement when the agency begins to consider new special recreation permits.
Subsection b requires agencies to acknowledge receipt of an application for a special recreation permit within 60 days and either issue a decision or provide a “projected date for a final decision on the application.” In too many cases a small business or organization seeking opportunities to provide an experience on public lands is not even able to get a response to their request. Here is an example of a response that an outfitter received in response to his request for a timeline for his application:
“Hi XXXX, my apologies for not responding to your message. I did get it and have been consumed by many things. I appreciate your patience with us, but the XXX Ranger District is trying to work through a very difficult and complex program of work, including some legacy projects and court ordered settlements. I don’t want to be a wet blanket, but also do not want to give any false hope on your proposal to provide outfitting services on the XXXX River. As I have said, its not a bad proposal, actually it's one with a lot of merit. Just that we have so much required work and have all but cut out our discretionary projects. I truly cannot see us doing the required NEPA analysis and consultation anytime in the near future.”
As Thomas O’Keefe said in his testimony before the Senate Energy and Natural Resources Committee, since when did recreation become a “discretionary activity?” You know what the Ranger District above is spending all their time on? — evaluating a proposal for a new mine.
Sec. 106. Permits for multijurisdictional trips.
With river trips and other outdoor activities it is not uncommon to cross jurisdictions. You might start a trip on Bureau of Land Management land and end the trip on Forest Service land. This section includes provisions for coordinated special recreation permits for a single trip or experience that crosses more than one land management agency. This is already done on many rivers (consider the Rogue that flows through BLM lands and then Forest Service lands), but for many land-based trips there is no clear system for multijurisdictional permits. It’s a good thing to have this spelled out and clarified with respect to lead agency, basic requirements, cost recovery, and enforcement that are all covered in this section.
Sec. 107. Forest Service permit use reviews.
This section includes a provision that applies to a specific set of circumstances that occur when the Forest Service reviews a permit holder’s performance and the number of service days actually used under the permit. As currently-stated in USFS Forest Service Handbook 2709.14 Section 53.1n, “During the 5th year of a priority use permit, review actual use, and adjust the allocation of use to match the highest amount of actual use in one calendar year during that period.”
Subsection a of the bill specifically states, “if the special recreation permit holder receives a satisfactory performance review, allocate to the special recreation permit holder the highest level of actual annual use during the period under review plus 25 percent of that use, not to exceed the level allocated to the special recreation permit holder on the date on which the special recreation permit was issued.”
This section directs the Forest Service to take the highest actual use level during the five-year review period and add 25%. However, it limits this adjustment to the amount allocated when the permit was originally issued. Consequently, there is no overall increase in the permittee’s allocation, and no overall increase in the allocation of use to permit holders. Existing Forest Service policy directs the agency to make a similar adjustment. See USFS Handbook 2709.14 Section 53.1n(2) and (3).
Subsection b includes a provision that “if additional use capacity is available, the Secretary may, at any time, assign the remaining use to one or more qualified recreation service providers.” It is important to understand that land use plans and river management plans set limits on guided recreational access and where those limits have been reached, then no additional capacity is available and this section cannot be used to increase an allocation. It does not allow for unlimited growth in outfitting and guiding.
Subsection c states the “The Secretary may waive a special recreation permit use review for any period during which use of the assigned capacity for the special recreation permit has been prevented by a circumstance beyond the control of the special recreation permit holder, such as — (1) unfavorable weather; (2) fire; (3) natural disaster; (4) wildlife displacement; (5) business interruption; (6) insufficient availability of hunting and fishing licenses; or (7) significant seasonal variability or off-peak periods within the allocated period of use.” We have seen examples where low snowpack, wildfire, or dam removal have severely impacted operations for small business owners. This section ensures that they are not “penalized” for not using their allocation in these situations as happened to an outfitter on the Elwha River who could not operate at capacity due to river conditions immediately following dam removal.
Subsection d includes authority to approve non-use in a manner that does not reduce service days and it also includes a provision to reassign that use to “another qualified recreation service provider.” We are seeking a change in this language so it includes “any other existing or potential permittee.” That would allow reassignment to other outfitters or the public in cases where limited entry permits are required for everyone.
Sec. 108. Liability
Subsection a authorizes a recreation permit holder to require a client of the permittee to sign a liability release form. There is nothing particularly revolutionary about liability release forms. They are commonly used across the outdoor recreation industry and they are recognized as valid and enforceable in many states. Furthermore, liability release forms are already allowed in many circumstances on public lands. For example, the Bureau of Land Management allows permittees to use them. Some National Forests do as well. However, other forests do not, and the National Park Service prohibits them. Accordingly, the bill seeks to establish consistency in the use of liability release forms across the federal land agencies by establishing the principle that State law rather than federal law governs the use of these forms.
Subsection b simply states that an agency “may not not require a recreation service provider to indemnify the United States as a condition of issuing a special recreation permit for a public land unit.” It further states that the recreation service provider “carries the minimum amount of liability insurance coverage required by the issuing agency for the activities conducted” or is “self-insured for the same amount.” This section is important because it would allow college outdoor recreation programs and municipal recreation districts, many of which offer low-cost outdoor programs for youth, to provide outdoor programs on public lands. Under current law, state-based institutions such as colleges, universities, and municipalities are unable to hold special recreation permits due to their inability to fulfill the indemnification requirement.
Sec. 109. Cost recovery reform.
Subsection a requires revision of regulations on cost recovery. “Cost recovery” is the mechanism through which the agencies charge permit applicants and permit holders the costs of processing and administering their permits. Cost recovery charges are in addition to the permit fees based on gross revenue that are set forth section 102 of the bill.
Subsection b modifies existing cost recovery rules to provide an “exemption providing that fees may not be recovered for not less than the first 50 hours of work necessary in any 1 year to process the application or monitor the authorization.” Currently, cost recovery is waived for less than 50 hours of work, but if the agency goes over 50 hours, the applicant must pay for the full 50+ hours. The modification in section 109 provides applicants with greater certainty regarding cost recovery expenses.
Subsection c gives the agency the authority to incorporate information from previous environmental analyses that have been conducted. As an example of how this could benefit our conservation work, we have had situations where analysis has been conducted in hydropower licensing but when we try to work with outfitters to introduce people to the resource we have restored, the agency won’t utilize the extensive environmental analysis and work we have already done. Consider the North Fork Feather where some guided trips and a larger and more diverse constituency that includes small businesses and outdoor programs would help us in our advocacy to keep water in the river.
Sec. 110. Extension of special recreation permits.
This section suspends the expiration of a special recreation permit if the agency hasn’t gotten around to processing the permit holder’s application for renewal. Agencies often do not complete renewals before the expiration of a permit and this removes uncertainty for outfitters who are awaiting renewal of a permit..
Sec. 111. Availability of Federal and State recreation passes.
The section includes language whereby “the Secretaries are encouraged to consult with States to coordinate the availability of Federal and State recreation passes to allow a purchaser to buy a Federal recreation pass and a State recreation pass in the same transaction.” If implemented the goal would be to have an option to place one pass on your dashboard and not have to review land management maps to determine who the land manager is when you park your vehicle.
Sec. 112. Online purchases of National Parks and Federal Recreational Lands Pass.
This section directs agencies to make recreation passes available through a website.
Sec. 113. Effect on NPS concessions contracts
The section makes clear that the bill does not affect the authority of the Secretary of Interior to award concessions contracts for those providing services in National Parks. In other words, this bill does not affect outfitter and guide concession contracts in Grand Canyon National Park or any of the other units of the National Park Service where outfitting and guiding is administered through concession contracts. Because concession contracts are unaffected, they will continue to be administered under existing law.
Certain provisions of the bill will apply to outfitting and guiding that is administered by the National Park Service through a different type of authorization — a commercial use authorization (CUA). CUAs are temporary permits that can be issued for no more than 2 years. However, not every section of the bill applies to CUAs (see section 113(b)). For example, section 107 of the bill does not apply to NPS commercial use authorizations (or to concession contracts, as described above). Consequently, this bill would not create any new authority for the National Park Service to increase outfitter allocations on rivers like the Colorado in Grand Canyon National Park under any circumstances. However, the bill would create the ability for outfitters to return unused service days to the National Park Service, so those unused service days can be made available to the general public or other outfitters (see section 104(b)).
TITLE II — ACCESSING THE OUTDOORS
This section recognizes the benefits of outdoor recreation for physical and mental health for service members and veterans. Key provisions include the following:
“The Secretaries are encouraged to work with the Secretary of Defense and the Secretary of Veterans Affairs to ensure service members and veterans have access to outdoor recreation and to outdoor-related volunteer and wellness programs as a part of the basic services provided to service members and veterans.”
“Each branch of the Armed Forces is encouraged to permit members of the Armed Forces on active duty status, at the discretion of the commander of the member, to use not more than 7 days of a permissive temporary duty assignment or terminal leave allotted to the member to participate in a program related to environmental stewardship or guided outdoor recreation following deployment.”
TITLE III — MAKING RECREATION A PRIORITY
American Whitewater was most directly involved in this title of the bill in partnership with Outdoor Alliance. This title includes the provisions that provide significant benefits to those who value outdoor recreation opportunities on public lands and waters and seek to protect them.
Following is a section-by-section overview of Title III that directs our land management agencies to make outdoor recreation a higher priority:
Sec. 301. Extension of seasonal recreation opportunities.
In this section, federal land managers are directed to “extend the recreation season or increase recreation use in a sustainable manner during the offseason.” Whitewater kayakers know that our activity may not be aligned with the typical Memorial Day to Labor Day recreation season. In the Pacific Northwest for example the rain falls during the winter and snowmelt begins in early spring — on many rivers the opportunities for whitewater boating are starting to diminish by Memorial Day. Too often we encounter locked gates, closed campgrounds, and areas that are not accessible during the peak of the whitewater boating season. The bill provides direction for “improvement of access to the area to extend the season” and will enable us to more effectively advocate for access to opportunities that might not take place in the summer recreation season.
Sec. 302. Recreation performance metrics.
Adding recreation performance metrics will recognize those land managers who go the extra mile to take actions that benefit outdoor recreation. It stipulates that agencies “shall evaluate land managers under their jurisdiction based on the achievement of applicable agency recreational and tourism metrics as described in applicable land management plans.” We are particularly pleased that we were able to focus metrics on experiences and not just encouraging a greater number of visitors; examples include “the quality of visitor experience” and “visitor satisfaction” that we advocated to include.
Sec. 303. Recreation mission.
Many agencies may not have recreation as their central focus but are engaged in management actions that affect outdoor recreation. This section states, “With respect to the mission of the [Corps of Engineers, Bureau of Reclamation, Federal Energy Regulatory Commission, and Department of Transportation] each Federal agency shall consider how land and water management decisions can enhance recreation opportunities and the recreation economy.”
Corps of Engineers, Bureau of Reclamation, and Federal Energy Regulatory Commission all manage dams that impact river-based recreation. Management decisions on how these agencies operate dams on rivers like the West (VT), Green (WA), Crooked (OR), Gauley (WV), Feather (CA), and Deerfield (MA) can enhance or diminish recreational opportunities. With the Department of Transportation we see additional opportunities to work together with transportation officials to ensure that river access at bridges is available.
Sec. 304. National Recreation Area System.
This is one of the most exciting sections of the bill. Currently land managers are not required to evaluate lands they manage for their recreation value or protect the recreational experience. Subsection f is particularly important as it requires agencies, in land management planning, to:
- “(A) identify eligible areas that possess one or more remarkable recreational attributes;”
- “(B) develop and maintain a list of eligible areas as potential additions to the [National Recreation Area System];”
Currently land managers are not required to assess areas within their unit for their recreation value. When working on the Forest Planning for the Okanogan-Wenatchee National Forest, several members of the outdoor recreation community tried to engage the Forest Service in identifying Icicle Creek as a corridor to be recognized and managed for its recreation value. The response we received was that the Forest Service was not required to recognize the special recreation values of this destination for climbing, hiking, and whitewater paddling.
This bill would require the agency to identify areas with Remarkable Recreation Values that includes “A) a natural feature that supports high-quality outdoor recreation opportunities and experiences; B) a unique cultural or historic feature or attribute that supports high-quality recreation opportunities and experiences; C) the offering of outstanding existing or prospective recreation opportunities and uses; D) having an important role in, and contributing significantly, to the outdoor recreation economy; and E) having high fish and wildlife values.” We are particularly pleased that the section focuses on quality of the recreational experiences a place provides and not the total use numbers or popularity.
This section is in part inspired by the Wild and Scenic Rivers Act where rivers are inventoried for potential addition to the Wild and Scenic River system during agency planning, are managed by our federal resource agencies for the values that make them eligible for addition to the system, and can ultimately be added to the Wild and Scenic Rivers system by an act of Congress. Why can’t we do the same for areas that have remarkable recreation values?
TITLE IV — MAINTENANCE OF PUBLIC LAND
Subtitle A — Volunteers, Sec. 401. Private-sector volunteer enhancement program.
As stated in the bill text, “the purpose of this section is to promote private-sector volunteer programs within the Department of the Interior and the Department of Agriculture to enhance stewardship, recreation access, and sustainability of the resources, values, and facilities of the Federal recreational lands and waters managed by the Federal land management agencies.” This section provides authority for cooperative agreements between organizations like American Whitewater and federal agencies. Authorized programs include on-the-ground projects like development or maintenance of a river put-in but also includes programs that “increase awareness, understanding, and stewardship of Federal land through the development, publication, or distribution of educational materials and products.” This could provide new opportunities for information sharing and coordination of recreational river resources — e.g. the National Whitewater Inventory — in a similar manner to what we have done with the U.S. Coast Guard to partner in providing river safety information.
Subtitle B — Priority Trail Maintenance, Sec. 411. Interagency trail management.
Under this section “the Secretaries shall establish an interagency trail management plan to manage and maintain in a uniform manner trails that cross jurisdictional boundaries between Federal land management agencies.”
Recreation Not Red Tape is a good bill for the outdoor recreation community. Among our staff we have taken several trips to Washington DC and spent time out on rivers with Members of Congress and their staff. In addition to the policy issues covered in this bill, we will continue to advocate for robust conservation measures that protect public lands and waters, sufficient funding to manage recreation, and revision of outdated management plans where capacity limits and allocations need to be reexamined.