Chattooga Wild & Scenic River Case Study On the River and in the Courts May 19th, 2016 Tony White Joe Robles Steve Chesterton Staff Officer Recreation Program Manager Wild & Scenic Rivers Francis Marion & Sumter Francis Marion & Sumter National Program Manager National Forest National Forest U.S. Forest Service Photo by Tim Palmer The Chattooga River • Located in the Sumter, Nantahala and Chattahoochee National Forests • One of the longest free-flowing rivers in the Southeast • Lower River is below the Highway 28 bridge, and the Upper is above • Upper reach flows through the Ellicott Rock Wilderness Wild & Scenic River Designation and Early Management • Identified as a study river in the original Wild & Scenic Rivers Act of 1968 • 58.7 miles designated by Congress in 1974 • Managed to protect and enhance Outstandingly Remarkable Values (ORV’s) of geology, biology, scenery, recreation, and history • The Recreation ORV emphasizes opportunities for remoteness and solitude • Majority of the river is in “Wild” classification History of Use Lower Chattooga River • Nationally recognized whitewater boating • Class I-IV • Some equestrian use, hiking/backpacking, swimming and angling • Boating use on the lower river is roughly 50,000 people/year • Roughly 50% private and 50% commercial • Mandatory free registration for all boaters available at 11 distinct locations along the lower river Lower Chattooga River – Commercial Trips • Carrying capacity for commercial boating trips established early • Intentional scheduling/spacing of guided boating trips in operating plan • Outfitters are “Permittees,” but they are also “Partners” • Management of recreation use on the lower river has been successful due to excellent partnerships Upper Chattooga River Upper Chattooga River • Major use is hiking/backpacking and angling • Closed to boating in 1976 • Opened for paddling in December 2012 2012 Decision – Upper River Boating and Capacity Analysis • Work began in 2005 • 2005 Washington Office Appeal Decision required a visitor use capacity analysis be completed • A modified Limits of Acceptable Change (LAC) framework was used • Public involvement 2005-2011 • Environmental Analysis and Decision finalized in 2012 2012 Upper Chattooga Decision • Established frontcountry and backcountry capacities for all users on the Upper River 2012 Upper Chattooga Decision • Non-commercial boating permits required • Allow boating at 350 cfs or higher on specific reaches from December through April • Backcountry group size limits instituted • Allow camping only in designated campsites • Establish a trail system that is environmentally sustainable and minimizes encounters and conflict • Develop a monitoring plan Management Challenges • Prescriptive forest plan • Passionate stakeholders/users, oftentimes with competing interests • Hemlock woolly adelgid impacts • Coordination across 3 national forests (Upper River) • Limited staff on the ground/river • User capacities Wild and Scenic Rivers Act Section 3(d)(1) “The [comprehensive river management plan] shall address resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the purposes of the Act.” Photo by Tim Palmer Litigation Background • Wild & Scenic Rivers Act challenges are brought under the Administrative Procedures Act (5 U.S.C. 706(2)(A)) • Agency actions are only set aside by a court if determined to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” • Merced Decision (9th Circuit 2008) • Legal challenge of the user capacity decisions for the portion of the Merced WSR flowing through Yosemite NP (National Park Service-administered) • Court directed NPS to revise their CRMP/user capacity work to include “specific, measurable limits on use” (among other things) • Also stated “the plain meaning of the phrase ‘address . user capacities’ is simply that the [CRMP] must deal with or discuss the maximum number of people that can be received at a [WSR]” and “the plain meaning does not mandate ‘one particular approach to visitor capacity.’” American Whitewater v. Tidwell (District of South Carolina 2013) • Administrative challenge first brought in 2002 • First complaint filed in 2009 • Two parties intervened • Court rejected the challenges to the 2012 decision • Found that the Forest Service’s revised plan “carefully balance[s] the wide- ranging interests advocated by the several parties and participants” • Reiterated the 9th Circuit’s finding that “the plain meaning of [Section 3(d)(1) of the Act] does not mandate ‘one particular approach for the analysis of user capacity.’” American Whitewater v. Tidwell (4th Circuit 2014) • Appeal of district court decision • Court of Appeals affirmed lower court’s decision, finding: • “[t]he Forest Service has provided a cogent justification for the remaining limits on Headwaters floating, supported by the record [including a maximum capacities report], and that justification is sufficient to sustain its decision under the [Administrative Procedures Act].” • Floating is a "public use" of the recreational ORV of the river, not an "other use“ • Identified a distinction in the WSRA (Section 10(a)) between “public uses” of ORVs, which are implicitly subject to balancing by the river management agency to protect and enhance river values, and “other uses,” which are subject to limitation only when they substantially interfere with public use of ORVs. Georgia ForestWatch v. Lint (District of South Carolina 2015) • Challenge to 2012 decision brought by one of the intervenors in the American Whitewater litigation • Court again held in favor of the Forest Service, finding in part: • “At its base, the plaintiff’s main contention with the capacity analysis in this case appears to be that the Forest Service did not set enforceable capacity limits that trigger agency action before resource degradation occurs. However, there is no such requirement in the WSRA and the Court declines to read one into the statute.” National Policy Implications Interagency Wild & Scenic Rivers Coordinating Council Technical Paper: Addressing User Capacities on Wild & Scenic Rivers DRAFT IWSRCC Capacity Subcommittee: M. Chaudet; J. Harn; J. Ashor; C. Thomas; H. Emmons; R. Welsh; S. Chesterton; C. Bailey; D. Cernicek IWSRCC Definition (draft) User Capacity The maximum amounts and kinds of public use that a wild & scenic river collectively or by analysis area can accommodate without adversely impacting river values. IWSRCC Technical Paper & Training • Recommend steps to address user capacities on WSRs • Take into account that the WSRA does not mandate “one particular approach for the analysis of user capacity.” • Steps are intended to be flexible and applied as appropriate/needed for any given WSR • Distinguish between “public use” (e.g. recreational uses) and “other uses” (e.g. federally-authorized mining, grazing; use on non-federal lands in the corridor) 20 Questions?Questions? Photo by Tim Palmer.