FEDERAL LEGISLATION

    The Organic Administrative Act of 1897, 16 U.S.C. ßß473-482 (partially repealed, 1976), created the National Forest System and declared that the national forest lands of the United States "shall be as far as practicable be controlled and administered in accordance with the following provision," which reads, in part:

"No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States."

    The Organic Act entrusted the forest reserves to the Secretary of the Interior, but the Transfer Act of 1905 transferred forest administration to the Department of Agriculture, where it remains today.

    Essentially, the Organic Act authorizes the President to establish national forests for the dual purposes of: 1) securing "favorable conditions of water flows," and 2) "to furnish a continuous supply to timber." Although the Act sets some strict limits on timber harvesting, the statute provided no forest management guidelines. Regulatory/Responsible Agency: U.S. Forest Service.

    The National Park Service Organic Act of 1916, created the National Park Service in the Department of Interior to: "promote and regulate the use of the Federal areas known as national parks, monuments and reservations... by such means and measures as conform to the fundamental purpose of said parks, monuments and reservations, which purpose is to conserve the scenery and natural and historic objects and the wild life [in national parks] and to provide for the enjoyment of the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations."

    This provision of this Act clearly defines the mission of the Park Service as preservation, and amounts to a virtual prohibitation against economic resource development in a national park. However, the Park Service must still use its discretion to regulate the activities of persons with mining claims, reserved grazing rights, or other legally authorized land uses within the parks. The Act also empowers the Secretary of Interior to contract for recreational services. Regulatory/Responsible Agency: U.S. National Park Service.

    The Multiple Use Sustained Yield Act of 1960 (MUSYA), 16 U.S.C. ßß528-531 (1982), formally established a multiple-use policy on the national forests by stating "outdoor recreation, range, timber, watershed, and wildlife and fish" shall be subject to multiple use management. Congressional intent was to give each of the listed resources equal status in the eyes of Federal resource managers. Specific requirements of the Act directed the Forest Service to develop formal district and regional "Multiple-Use Planning Guides" and district-wide Management Plans. Many aspects of this planning mechanism have been carried forward into present-day planning under the National Forest Management Act (NFMA).

    The MUSYA created no new authority; it simply confirmed the Service's authority to continue doing what it had been doing for decades. The terms of the Act supplement and refine the Organic Administrative Act, but do not supersede it. MUSYA was largely a symbolic piece of legislation designed to provide explicit authority for recreation and other uses for which prior authority was unclear or nonexistent.

    Through the MUSYA, Congress redefined the functions of the National Forests to properly and legally encompass all of their uses in the context of modern needs. The legislation stated plainly that:

"The establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of this Act."

    The Act recognized that wilderness management is part of forestry and is a compatible and complementary function of all other fitting uses of the land. Congress, by this action, made it clear that wilderness can no longer be considered to serve only a single use. It provides a habitat for wildlife, opportunities for hunting, fishing, scientific research, exercise, and other enjoyment of the outdoors. Regulatory/Responsible Agency: U.S. Forest Service.

    The Wilderness Act of September 3, 1964, accepted and established as national policy a program to secure for the American people of present and future generations the benefits of an enduring resource of wilderness.

    Section 2(c) of The Wilderness Act of 1964 defined wilderness as follows:

"A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practical its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical values."

    Untrammeled means uncontrolled or unfettered, not untrampled as is sometimes read.

    The Wilderness Act of 1964 created the National Wilderness Preservation System with an initial endowment of 9.1 million acres of national forest lands. Since 1964, Congress has expanded the System to almost 91 million acres through dozens of separate laws,. The Wilderness System now contains 477 wilderness areas in 44 States. By the end of 1989, the Forest Service administered 32,532,285 acres of wilderness, the BLM administered 465,509 acres, the NPS administered 38,498,124 acres, and the FWS administered 19,332,897 acres. More than 60 percent of this land is in Alaska. One third of the System is administered by the Forest Service, whose charge comprises 80 percent of wilderness outside of Alaska. Regulatory/Responsible Agency: U.S. Forest Service, U.S. Bureau of Land Management, U.S. National Park Service, and U.S. Fish & Wildlife Service.

    This law, as amended 16 U.S.C. ß460L-12 et seq.; Supp. I, 1965, declared the intent of Congress that recreation and fish and wildlife enhancement are fully considered by Congress as purposes of Federal water-development projects if non-Federal public agencies agree to: (1) bear at least half of the separable costs; (2) administer the project land and waters devoted to such purposes; and (3) bear all of the operational, maintenance, and replacement costs. This Act also provides for expenditure of Federal water project funds for land acquisition needed to establish enhancement refuges for migratory waterfowl when recommended by the Secretary of the Interior, and authorizes the secretary to provide for outdoor recreational and fish and wildlife facilities at all reservoirs created under his control except those within national wildlife refuges. Regulatory/Responsible Agency: U.S. Bureau of Reclamation; U.S. Fish and Wildlife Service (USFWS); Secretary of the Interior.

    In 1974, Congress enacted the Forest and Rangelands Renewable Resources Planning Act (RPA), 16 U.S.C. ßß1600-1614 (1982), which, for the first time, required agency-wide strategic planning. The RPA emphasizes Congressional oversight of the Forest Service by requiring extensive reporting and formulation of a recommended Renewable Resource Program. The RPA requires planning at the national, regional, and individual forest levels.

    In effect, the RPA has been amended by and merged with the National Forest Management Act (NFMA), which reduced Forest Service management discretion by creating a comprehensive planning process with detailed forest-by-forest planning provisions, but preserved the agency's traditional management independence. Regulatory/Responsible Agency: U.S. Forest Service.

    The National Forest Management Act (NFMA) of 1976, 16 U.S.C. ßß1600-1616 (1982), provides a comprehensive planning framework for management of the National Forest System through the development of management plans for individual forest units. The Act's primary focus is to establish land and resource management planning, ostensibly in order to achieve the effective use and protection of renewable resources and a balancing of uses on forest lands. The Act also provides for integration of individual forest plans with nationwide forest objectives required under the Forest and Rangeland Renewable Resource Planning Act of 1974, and with the overall objective of the national forest system of multiple-use sustained yield of forest resources from national forests. Although non-NFMA legal authorities also govern management for recreation, range, watershed, and wildlife purposes in national forests, most planning for these resources is now conducted as part of the general NFMA planning process. Public participation in forest planning and economic analysis of management alternatives proposed in individual forest plans are required by NFMA. The NFMA planning process is also refined by the procedural requirements of the National Environmental Policy Act, but NFMA imposes greater public participation requirements.

    The statute provides direct legal authority for development of a Forest Service-wide riparian management policy in Section 1604(g)(E), which provides that timber harvests shall not be conducted if watershed conditions will be irreversibly damaged or unless protection is provided for streams from "detrimental changes in water temperature, blockages of water courses, and deposits of sediment which are likely to seriously and adversely affect water conditions or fish habitat." The only codified regulation implementing these provisions is a directive in the Forest Service regulations requiring forest managers to generally be guided by a 100 foot "riparian management zone" from the edge of a water body, within which land uses may not degrade water quality or fish habitat.

    At the general planning level, NFMA requires the development of four types of planning documents, which were also required under the RPA: 1) an Assessment, every ten years, which describes the renewable resources in all the national forests; 2) a Program, every five years, which proposes planning objectives over the next 45 years for all Forest Service activities; 3) an annual Report which evaluates actual forest activities in relation to Program objectives; and 4) a Presidential Statement of Policy, every five to ten years, which frames budget requests, as well as annual explanatory statements when such budget proposals fail to request adequate funds to achieve the objectives of the Statement of Policy.

    The NFMA also purports to preclude timber harvest in situations where necessary to preserve biodiversity or on "unsuitable" lands: 1) in managing fish and wildlife habitat, statute requires the Forest Service's regulations to specify land management guidelines which "provide for diversity of plant and animal communities;" and 2) management plans are required to identify marginal lands deemed "unsuitable for timber production," based on "physical, economic, and other pertinent factors" where "resource protection or reforestation cannot be insured on such lands." Regulatory/Responsible Agency: U.S. Forest Service.

    The Federal Land Policy and Management Act (FLPMA) of 1976, 43 U.S.C. ßß1701-1784 (1982), grants the Bureau of Land Management (BLM) authority to establish both policy for public lands under the jurisdiction of the BLM and guidelines for administering such policy. The Act also provides for the management, protection, development, and enhancement of these public lands. BLM is required to develop Resource Management Plans for lands under its jurisdiction.

    FLPMA was intended to institute formal, system-wide land use planning on BLM public lands. FLPMA states nine mandatory criteria for plan development and revision. First, the Secretary of Interior must prepare and maintain a continuing inventory of all public lands and resources. Second, the Secretary must "give priority" to the designation and protection of "areas of critical environmental concern (ACEC)" in developing and revising land use plans. Third, such plans must "provide for compliance with applicable pollution control laws." A fourth provision requires the BLM to "take any action necessary to prevent unnecessary or undue degradation of the [public] lands."

    The Resource Management Planning (RMP) process involves nine steps, starting with issue identification and ending with monitoring and evaluation. As required by the regulations, each plan is accompanied by an Environmental Impact Statement (EIS) and a Record of Decision. FLPMA states two mandatory procedural requirements: 1) public involvement and participation, and 2) the use of "a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences."

    The Act also authorizes the designation of Areas of Critical Environmental Concern (ACEC). FLPMA defines ACECs as "areas within the public lands...where special management attention is required to protect and prevent irreparable damage to important historic, cultural, and scenic values; fish, or wildlife resources; other natural systems or processes; or to protect human life and safety from natural hazards". BLM's ACEC designation indicates that the agency recognizes the area has significant values, and establishes special management measures to protect those values. In addition, this designation also serves as a reminder that significant values or resources exist which must be accommodated when future management actions and land use proposals are considered in or near an ACEC.

    Although agency guidance has accepted that riparian zones easily fall within the statutory definition of an ACEC because of their significance as natural systems and for fish and wildlife resources, the BLM has not promulgated regulations which specifically protect "riparian zones" or "riparian ecosystems" as ACECs. FLPMA does not require the BLM to prohibit grazing-caused riparian zone degradation, though the statute anticipates that the BLM would act to restore riparian zones. The Act declares that "a substantial amount of the Federal range is deteriorating in quality and that installation of additional range improvements could arrest much of the continuing deterioration." Based on this declaration, Congress went on to direct that 50 percent of all grazing fee receipts be available for "on the ground" range rehabilitation, protection, and enhancement and suggested that such projects include seeding and reseeding, fencing, water development, and fish and wildlife habitat enhancement. Regulatory/Responsible Agency: U.S. Bureau of Land Management.

    The Public Rangelands Improvement Act (PRIA) of 1978, 43 U.S.C. ßß1901-1908 (1982), states national rangeland policies applicable to the USFS and the BLM. The watershed provisions of the PRIA appear to prohibit BLM approval of activities which harm watershed values.

    Grazing and riparian management are addressed by PRIA, which also covers both Forest Service and BLM public lands. Grazing concessions are granted according to a permit system. PRIA is the primary authority over BLM grazing practices, stating that the goal of range management "shall be to improve the range conditions." In PRIA, Congress emphasized the manifest threats of grazing on watershed and aquatic habitat. Although PRIA instructed the Forest Service to inventory range conditions and trends, range improvement was not set forth as a management priority for national forests as it was on the BLM public lands.

    PRIA defines "range improvement" as "any activity or program on or relating to rangelands which is designed to improve production of forage; change vegetative composition; control patterns of use; provide water; stabilize soil and water conditions; and provide habitat for livestock and wildlife. The term includes, but is not limited to, structures, treatment projects, and use of mechanical means to accomplish the desired results."

    Through PRIA, Congress declared that "vast segments of the public rangelands are...in an unsatisfactory condition." PRIA went on to associate deteriorated range with soil loss, desertification, increased siltation and salinity, reduction of water quantity and quality, loss of fish and wildlife habitat, increased surface runoff and flood danger, and the potential for undesirable long-term local and regional climatic and economic changes. PRIA gave special attention to the rehabilitation necessary "to restore a viable ecological system that benefits both range users and the wildlife habitat." Regulatory/Responsible Agency: U.S. Forest Service, U.S. Bureau of Land Management.

    The National Parks and Recreation Act (NPRA) of 1978, 16 U.S.C. ßß1a to 7(b)(3) (1986), requires that all park management plans specify visitor carrying capacities. Under the NPRA, the Secretary of Interior must submit annually "a detailed program for the development of facilities, structures, or buildings for each unit of the National Park System consistent with the general management plans" and a list indicating the plan status for each unit.

    Each unit plan must contain four items: 1) measures for the preservation of the area's resources; 2) type and intensity of development for public enjoyment; 3) visitor carrying capacity and "implementation commitments;" and 4) proposed boundary modifications with explanations as to why they are necessary or desirable. Regulatory/Responsible Agency: U.S. National Park Service.

    The Forest Service first issued a National Riparian Management Policy in 1980, which appeared as a section in the National Forest Service Manual. Each region then issued its own manual supplements or "action plans" based on the policy. In 1986, the USFS revised its original policy to omit areas in the 100-year floodplain which are not perennial streams, such as ephemeral drainages.

    In 1989, the Chief of the Forest Service called for forest regions and individual forests to develop a schedule for improving 75 percent of the unsatisfactory riparian areas by 2000. In the fall in 1991, the Chief issued a two page document entitled "Riparian Management: A Leadership Challenge." This document called for increased agency efforts to: 1) "adjust activities and uses affecting riparian areas to achieve, over a reasonable period of time, consistency with existing forest plan standards and guidelines;" 2) "strengthen and clarify forest plan standards, where needed, to protect riparian areas and wetlands;" and 3) "implement regional riparian strategies and develop forest action plans that respond to the national strategy and RPA's commitment.

    Six Goals and five Strategies were also stated, summarized as follows:

Goals

• Improve 75 percent of "unsatisfactory" riparian conditions to meet forest plan standards by 2000, and the remaining 25 percent by 2010.

• Design future activities and current uses to avoid the degradation of "healthy riparian areas" and "wetlands."

• "Strengthen regional guidance and incorporate additional standards and direction in forest plans, as necessary, to sustain the health of riparian areas that are affected by mining, recreation, wildlife and domestic livestock, off-road vehicles, roads, and other activities."

• Assist and advise landowners via cooperation with State Foresters and the [Soil Conservation Service] to identify, manage, and improve riparian areas and to sustain "riparian productivity."

• Continue riparian and wetland research.

• Begin riparian demonstration projects on all ranger districts by fiscal year 1992.

Strategies

• Use an "integrated approach" to implementing forest plan riparian area and wetland standards.

• Set on-the-ground national, regional, and forest goals (e.g., "to meet forest plan riparian condition standards by the end of the forest planning period").

• Establish a "priority action program" in each region using the forest plan process, to improve riparian conditions through integrated resource management of "whole watershed basins."

• Complete a forest-wide inventory of riparian area conditions and ecological health by the year 1995.

• "Develop broad-based support for a strategy that energizes people, promotes innovation, supports entrepreneurial spirit, builds on success through networking, provokes appropriate change in perspective, and recognizes those that accept the challenge." Regulatory/Responsible Agency: U.S. Forest Service.