Federal Register, Volume 81 Issue 243 (Monday, December 19, 2016)


[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 91811-91822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30406]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 294

RIN 0596-AD26


Roadless Area Conservation; National Forest System Lands in
Colorado

AGENCY: Forest Service, USDA.

ACTION: Final rule and record of decision.

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SUMMARY: The U.S. Department of Agriculture (USDA) is reinstating the
North Fork Coal Mining Area exception to the Colorado Roadless Rule.
The Colorado Roadless Rule is a State-specific rule that establishes
management direction for the conservation of roadless area values and

[[Page 91812]]

characteristics across approximately 4.2 million acres of land located
within the State of Colorado in Roadless Areas on National Forest
System (NFS) lands. The North Fork Coal Mining Area exception to the
Colorado Roadless Rule provides for the construction of temporary
roads, if needed, for coal exploration and coal-related surface
activities in the 19,700-acre area defined as the North Fork Coal
Mining Area. The Colorado Roadless Rule was promulgated on July 3,
2012, but the U.S. District Court for the State of Colorado ruled that
the environmental analysis performed by the U.S. Forest Service on
behalf of the USDA pursuant to the National Environmental Policy Act
was deficient. The Forest Service prepared a Supplemental Environmental
Impact Statement (SEIS) to respond to the specific deficiencies
identified in that U.S. District Court ruling. In addition, an
administrative correction is being conducted by the USDA for Colorado
Roadless Area (CRA) boundaries associated with the North Fork Coal
Mining Area based on updated information. The correction adds an
additional 200 acres to the roadless area in the 2012 Colorado Roadless
Rule. These boundary corrections address changes identified by new road
survey information.

DATES: This rule is effective February 17, 2017.

ADDRESSES: The public may inspect the project record for this final
rule at the USDA, Forest Service, Rocky Mountain Regional Office,
Strategic Planning Staff, 740 Simms Street, Golden, Colorado, between 8
a.m. and 4:30 p.m. on business days. Those wishing to inspect the
project record at the Regional Office should call 303-275-5103 ahead of
arrival to facilitate an appointment and entrance to the building. In
addition, key documents from the project record are posted on the
Forest Service Web site at www.fs.usda.gov/goto/coroadlessrule.

FOR FURTHER INFORMATION CONTACT: Jason Robertson; Acting Director;
Recreation, Lands, and Minerals; Rocky Mountain Regional Office, at
303-275-5470. Individuals using telecommunication devices for the deaf
may call the Federal Information Relay Services at 1-800-877-8339
between 8 a.m. and 8 p.m. Eastern Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: This preamble describes the basis and
purpose of the rule, summarizes public comments received and Agency
responses, describes alternatives considered, and serves as the record
of decision for this rulemaking. The preamble is organized into the
following sections:

Executive Summary
Background
Purpose and Need
Decision
Decision Rationale
Public Involvement
Alternatives Considered
Environmentally Preferable Alternative
Comments on the Proposed Rule
Regulatory Certifications

Executive Summary

The Forest Service manages approximately 14.5 million acres of
public lands in Colorado distributed among eight National Forests and
two National Grasslands. Of this, the Forest Service designated about
4.2 million acres as CRAs under the 2012 Colorado Roadless Rule.
In January 2001, the Roadless Area Conservation Rule (2001 Roadless
Rule) was adopted into regulation (36 CFR 294, Subpart B (2001)). The
2001 Roadless Rule was subject to litigation for more than a decade
that created uncertainty over the management of roadless areas
throughout the Nation. This uncertainty, along with State-specific
concerns, was a key factor that influenced the State of Colorado to
petition the USDA for a State-specific roadless rule in 2006.
On July 3, 2012, the USDA promulgated the final Colorado Roadless
Rule (36 CFR 294, Subpart D) which replaced the 2001 Roadless Rule
authority over roadless areas in Colorado. The Colorado Roadless Rule
included a provision that allowed for construction of temporary roads
when needed for coal exploration and/or coal-related surface activities
for certain lands within CRAs in the North Fork coal mining area of the
Grand Mesa, Uncompahgre, and Gunnison National Forests. In July 2013,
High Country Conservation Advocates, WildEarth Guardians, and the
Sierra Club challenged the North Fork Coal Mining Area exception of the
Colorado Roadless Rule, and in June 2014 the District Court of Colorado
found the environmental documents supporting the Colorado Roadless Rule
to be in violation of the National Environmental Policy Act due to
analysis deficiencies. In September 2014, the District Court of
Colorado vacated the North Fork Coal Mining Area exception of the
Colorado Roadless Rule, but left the remainder of the Rule intact. On
April 7, 2015, the Forest Service published a Notice of Intent to
prepare a SEIS for rulemaking to reinstate the North Fork Coal Mining
Area exception and address the concerns raised by the court (80 FR
18598). On November 20, 2015, the Forest Service published the proposed
rule and Supplemental Draft Environmental Impact Statement (SDEIS) for
public comment (80 FR 72665).
This Final Rule and Supplemental Final Environmental Impact
Statement (SFEIS) focuses on the court-identified deficiencies as well
as Endangered Species Act compliance. To address the court-identified
deficiencies, the Forest Service quantified carbon dioxide and methane
emissions from potential coal-mining operations and combustion of coal
from the North Fork Coal Mining Area that could occur from
reinstatement of the North Fork Coal Mining Area exception. In
addition, the Forest Service conducted a market substitution analysis
of coal absent the North Fork Coal Mining Area exception to address the
court-identified deficiencies. The Forest Service also reinitiated
consultation under the Endangered Species Act due to new species
listings that did not exist in 2012 when the original Colorado Roadless
Rule was released and changed critical habitat designations as required
by the Endangered Species Act; and provided new information regarding
fisheries that were not included or available for the 2012 analysis.
The Forest Service analyzed three alternatives in detail in the
SEIS. Alternative A is the no action alternative in which the North
Fork Coal Mining Area exception is not reinstated and the area is
managed as general roadless areas under the Colorado Roadless Rule.
Alternative B is the selected alternative and reinstates the North Fork
Coal Mining Area exception as written in the 2012 Colorado Roadless
Rule to an area of about 19,700 acres. Alternative C is similar to
Alternative B in that it reinstates the North Fork Coal Mining Area
exception as written in the 2012 Colorado Roadless Rule but would only
apply it to an area of about 12,600 acres.

Background

The history of the Colorado Roadless Rule and, in particular, the
North Fork Coal Mining Area exception, provide important context for
the current rulemaking effort. Colorado Senate Bill 05-243, signed into
Colorado law on June 8, 2005, created and identified a 13-member
bipartisan task force to examine protection of NFS roadless areas
within Colorado. The task force was directed to make recommendations to
the Governor regarding management of these lands. On November 13, 2006,
then-Governor Bill Owens submitted a petition to the USDA to develop a
State-

[[Page 91813]]

specific roadless rule. The petition reflected the task force
recommendations and included the North Fork Coal Mining Area exception.
Governor Owens stated that the petition weighed Colorado's interests
and reflected the concerns of the entire State. Specific to coal
resources, the task force recommended that the Colorado Roadless Rule
not apply to about 55,000 acres of CRAs within the Grand Mesa,
Uncompahgre, and Gunnison National Forests. However, the rule would be
applied to and protect areas with potential coal resources within CRAs
on the Pike-San Isabel, Routt, White River, and San Juan National
Forests, eliminating future roaded access to coal resources in those
CRAs. The North Fork Coal Mining Area, as originally petitioned by
Governor Owens, was about 55,000 acres and included all or portions of
Currant Creek, Electric Mountain, Flatirons, Flattops-Elk Park, Pilot
Knob, and Sunset CRAs.
After Governor Owens submitted the State's petition, Bill Ritter,
Jr. was elected Governor of Colorado. In April 2007, then-Governor
Ritter resubmitted the petition with minor modifications. Governor
Ritter supported the concept of the Colorado Roadless Rule and the
North Fork Coal Mining Area but explicitly asked that the area remain
in the Colorado roadless inventory, rather than having the acres
removed.
In July 2008, in response to public comments and discussions with
coal interests, the USDA reduced the size of the North Fork Coal Mining
Area to about 29,000 acres in the proposed Colorado Roadless Rule and
included all or portions of Currant Creek, Electric Mountain,
Flatirons, Pilot Knob, and Sunset CRAs (73 FR 43543). In 2010, John
Hickenlooper was elected Governor of Colorado. Governor Hickenlooper
also supported having a North Fork Coal Mining Area exception. In April
2011, in response to additional public comments, the USDA further
reduced North Fork Coal Mining Area to approximately 20,000 acres in
the revised proposed Colorado Roadless Rule and included all or
portions of Currant Creek, Electric Mountain, Flatirons, Pilot Knob,
and Sunset CRAs (76 FR 21272).
The State of Colorado, USDA, Forest Service, and the public worked
in partnership for many years to find a balance between conserving
roadless area characteristics for future generations and allowing
management activities--including the construction of temporary roads
that would not foreclose coal exploration and development--within CRAs
that are important to Colorado's citizens and the economy. Throughout
the rulemaking process, a total of five formal comment periods were
held by the State and Forest Service resulting in 27 public meetings
and more than 312,000 comments. In addition, five meetings open to the
public were held by the Roadless Area Conservation National Advisory
Committee, which provided recommendations to the Secretary of
Agriculture. The USDA believes that designation of the North Fork Coal
Mining Area and its road exception strikes an appropriate balance
between conserving roadless area characteristics and addressing State-
specific concerns regarding the continued exploration and development
of coal resources in the North Fork Valley.
On July 3, 2012, the USDA promulgated the final Colorado Roadless
Rule, which replaced the 2001 Roadless Rule authority over roadless
areas in Colorado (36 CFR 294, Subpart D). The 2012 Colorado Roadless
Rule included a North Fork Coal Mining Area exception for temporary
road construction but further reduced its size by removing the acreage
in the Currant Creek CRA in response to public concerns and to balance
the value of roadless characteristics with economic development. The
final rule included a North Fork Coal Mining Area of 19,100 acres but
U.S. Forest Service has since learned that number was misrepresented;
the actual acreage is 19,500 acres. The reduced North Fork Coal Mining
Area included all or portions of the Flatirons, Pilot Knob, and Sunset
CRAs (less than 0.5% of the total CRAs). While the North Fork Coal
Mining Area was included under the protections of the current rule,
that rule also provided for the construction of temporary roads, if
needed, for future coal exploration and development activities.
In July 2013, High Country Conservation Advocates, WildEarth
Guardians, and the Sierra Club challenged the North Fork Coal Mining
Area exception of the Colorado Roadless Rule in part of a larger
lawsuit regarding Forest Service and Bureau of Land Management (BLM)
decisions related to coal lease modifications and an exploration
proposal within the North Fork Coal Mining Area (High Country
Conservation Advocates v. United States Forest Service, 52 F. Supp. 3d
1174, D. Colo. 2014). With respect to the challenge to the Colorado
Roadless Rule, in June 2014, the District Court of Colorado identified
environmental analysis deficiencies including failure to disclose
greenhouse gas emissions associated with potential mine operations;
failure to disclose greenhouse gas emissions associated with combustion
of coal potentially mined from the area; and failure to address a
report about coal substitution submitted during a public comment
period. In September 2014, the District Court of Colorado vacated the
North Fork Coal Mining Area exception of the Colorado Roadless Rule (36
CFR 294.43(c)(1)(ix)) but otherwise left the rule intact and
operational. The court also vacated Forest Service and BLM decisions on
lease modifications and exploration proposal. High Country Conservation
Advocates v. United States Forest Service, 67 F. Supp. 3d 1262 (D.
Colo. 2014).
On April 7, 2015, the Forest Service published a Notice of Intent
to prepare a SEIS to reinstate the North Fork Coal Mining Area
exception in the Federal Register (80 FR 18598). The SEIS complements
the 2012 Final Environmental Impact Statement for the Colorado Roadless
Rule and is limited in scope to address the deficiencies identified by
the District Court of Colorado in High Country Conservation Advocates
v. United States Forest Service. The Forest Service prepared the SEIS
on behalf of the USDA to reinstate the North Fork Coal Mining Area
exception with the Department of the Interior's BLM and Office of
Surface Mining Reclamation and Enforcement, and the State of Colorado,
Department of Natural Resources all serving as cooperating agencies
under the National Environmental Policy Act regulations (40 CFR
1501.6).

Purpose and Need

The overarching purpose and need for reinstating the North Fork
Coal Mining Area exception is the same as the purpose and need for the
2012 Colorado Roadless Rule. However, the specific purpose and need for
reinstating the North Fork Coal Mining Area exception is to provide
management direction for conserving approximately 4.2 million acres of
CRAs while addressing the State's interest in not foreclosing
opportunities for exploration and development of coal resources in the
North Fork Coal Mining Area. The original purpose of and need for
action as articulated in the 2012 FEIS is as follows:
The USDA, the Forest Service, and the State of Colorado agree that
a need exists to provide management direction for conserving roadless
area characteristics within roadless areas in Colorado. In its petition
to the Secretary of Agriculture, the State of Colorado indicated a need
to develop State-specific regulations for the management

[[Page 91814]]

of Colorado's roadless areas for the following reasons:
Roadless areas are important because they are, among other
things, sources of drinking water, important fish and wildlife habitat,
semi-primitive or primitive recreation areas that include both
motorized and non-motorized recreation opportunities, and naturally
appearing landscapes. A need exists to provide for the conservation and
management of roadless area characteristics.
The USDA, the Forest Service, and the State of Colorado
recognize that timber cutting, sale, or removal and road construction/
reconstruction have the greatest likelihood of altering and fragmenting
landscapes, resulting in immediate, long-term loss of roadless area
characteristics. Therefore, there is a need to generally prohibit these
activities in roadless areas. Some have argued that linear construction
zones also need to be restricted.
A need exists to accommodate State-specific situations and
concerns in Colorado's roadless areas. These include:
[cir] reducing the risk of wildfire to communities and municipal
water supply systems,
[cir] facilitating the exploration and development of coal
resources in the North Fork Coal Mining Area,
[cir] permitting construction and maintenance of water conveyance
structures,
[cir] restricting linear construction zones, while permitting
access to current and future electrical power lines, and
[cir] accommodating existing permitted or allocated ski areas.
There is a need to ensure CRAs are accurately mapped.

Decision

USDA hereby reinstates part 294 of Title 36 of the Code of Federal
Regulations, 36 CFR 294.43(c)(1)(ix), as described in Alternative B of
the ``Rulemaking for Colorado Roadless Areas Supplemental Final
Environmental Impact Statement.'' This decision is not subject to
Forest Service administrative review regulations.
In addition, USDA is administratively correcting CRA boundaries
based on the increased accuracy of the inventory of forest road
locations obtained since the promulgation of the Colorado Roadless Rule
in 2012.

Decision Rationale

The Colorado Roadless Rule as promulgated in 2012 provides a high
level of conservation of roadless area characteristics on approximately
4.2 million acres. The Colorado Roadless Rule achieves this by
establishing prohibitions for tree cutting, road construction/
reconstruction, and the use of linear construction zones. The 2012
Colorado Roadless Rule also addressed State-specific concerns that are
important to the citizens and economy of Colorado. These concerns
included: (1) Reducing the risk of wildfire to communities and
municipal water supply systems, (2) permitting construction and
maintenance of water conveyance structures, (3) restricting linear
construction zones, (4) accommodating ski areas, and (5) facilitating
exploration and development of coal resources in the North Fork Coal
Mining Area. Providing for the State-specific concerns generally allows
for tree cutting and road construction/reconstruction beyond what was
allowed under the 2001 Roadless Rule. The 2012 Colorado Roadless Rule
designated about 1.2 million acres of CRAs as upper tier to offset the
potential impacts of providing the exceptions. The upper tier are acres
within CRAs where exceptions to road construction/reconstruction and
tree cutting are more restrictive and limiting than the 2001 Roadless
Rule. The selection of Alternative B as the final rule restores the
balance between providing for the conservation of roadless area
characteristics across the 4.2 million acres of CRAs and addressing the
State-specific concern of preserving the exploration and development
opportunities of coal resources in the North Fork Coal Mining Area.
The 2012 Colorado Roadless Rule was developed in a highly
collaborative manner. Five formal comment periods were held, which
included 27 public meetings and resulted in about 312,000 comments. The
final amount of CRA and upper tier acreage was arrived at through a
collaborative process between the Forest Service and stakeholders. The
final North Fork Coal Mining Area is a result of a series of
compromises. The North Fork Coal Mining Area was originally proposed in
Governor Owens' 2006 petition as about 55,000 acres including six
different CRAs. Through the collaborative process, the North Fork Coal
Mining Area was reduced to 29,000 acres in July 2008; then to 20,000
acres in April 2011; and finally to 19,500 acres in July 2012. The
reinstatement of the North Fork Coal Mining Area demonstrates USDA's
commitment to the public collaborative process and respects the
stakeholders' good faith compromises and engagement during the original
effort to develop the 2012 Colorado Roadless Rule.
The main purpose of the SEIS and this rulemaking is to address the
deficiencies identified by the District Court of Colorado, which
included the quantification of greenhouse gas emissions associated with
potential mine operations and coal combustion from the North Fork Coal
Mining Area and consideration of coal substitution if the coal in the
North Fork Coal Mining Area remained inaccessible. In addition, some
public comments to the proposed version of this rule expressed concern
regarding the impact the final rule could have on greenhouse gas
emissions and climate change. The SEIS estimates that gross greenhouse
gas emissions of recovering and combusting all 172 million short tons
of coal estimated to be made accessible by the final rule could result
in approximately 443 million metric tons of carbon dioxide equivalent
(CO2e) occurring between 2016 and 2054 (the projected
timeframe over which coal resources could be produced). The SEIS also
estimates gross annual greenhouse gas emissions of approximately 13.5
million metric tons of CO2e at the projected low production
level and 39.9 million metric tons of CO2e at the projected
high production level based on established air quality permits. These
estimated emissions are conservative and likely overestimate potential
greenhouse gas emissions because the analyses assumed all coal in the
North Fork Coal Mining Area would be recovered and the upper bound of
the analyses utilized the maximum production rates authorized under
state air quality permits, which is unlikely ever to be reached.
The Forest Service conducted an analysis to determine the impact
the final rule would have on net greenhouse gas emissions and
considered the substitution of North Fork Coal Mining Area coal with
other energy sources. This analysis assumes that if the no action
alternative were selected, coal that would have otherwise become
accessible via the North Fork Coal Mining Area exception would be
substituted with other forms of energy or other coal to meet
electricity generation demands. This analysis also assumes for modeling
purposes that electricity generation across all fuel sources, by year,
would remain constant across alternatives. Under the average production
scenario, the North Fork Coal Mining Area would produce about 10
million short tons annually.
Results from models used by the Forest Service indicate that absent
the final rule, most North Fork Coal Mining Area coal would likely be
substituted

[[Page 91815]]

with other coal (both underground and surface coal), natural gas, and
minor amounts of renewable energies contributing to electrical
generation. The Integrated Planning Model (maintained by ICF
International) was used by the Forest Service for coal market estimates
which included a number of updates to key energy outlooks and
regulatory factors (80 FR 64662), as requested by the public and the
Environmental Protection Agency during the comment period for the
proposed rule and SDEIS.
The SFEIS estimates the final rule would result in a net increase
in carbon emissions from energy production, transportation, and
combustion of about 17 million metric tons of CO2 from 2016
to 2054 based on substitution effects. Similarly, the final rule could
result in a net increase in methane gas emissions from coal operation
releases of 16.7 million metric tons of CO2e from 2016 to
2054 based on substitution effects.
According to data retrieved from EPA's Greenhouse Gas Data
Inventory Explorer, coal mining in the United States accounted for 73.9
million metric tons CO2e of GHG emissions in 2014. Estimated
annual emissions from extraction of North Fork Coal Mining Area coal
would be about 1.5-4.5% of the 2014 coal-mining emissions, depending
upon the scenario (assuming a constant emissions rate for comparison
purposes). If transportation of North Fork Valley coal is included,
estimated emissions would be about 2.4-7% of National 2014 coal-mining
emissions (this is likely an overestimate as the National figure does
not include transportation). National emissions of CO2 from
fossil fuel combustion for electricity generation were estimated at
2,039 million metric tons in 2014. Estimated annual CO2
emissions from combustion of North Fork Coal Mining Area coal,
including combustion assumed to occur outside the United States, would
therefore be about 0.6-1.7% of the 2014 national estimate (assuming a
constant emissions rate for comparison purposes). For additional
context, the City of Denver estimated its 2013 annual GHG emissions to
be about 13 million metric tons CO2e (Denver Environmental
Health, 2015). For the State of Colorado in 2010 total GHG emissions
were about 130 million metric tons CO2e, of which 96 million
metric tons resulted from fossil fuel combustion and 36 million metric
tons resulted from coal combustion (CDPHE, 2014).
The Forest Service monetized the climate impacts associated with
these projected GHG changes using a range of estimates of the social
cost of carbon (SCC) and social cost of methane (SCM) developed by the
U.S. Interagency Working Group on the Social Cost of Greenhouse Gases
(IWG). The IWG social cost of carbon and methane metrics provide a
monetary estimate of the future damages associated with a marginal
increase in carbon dioxide and methane emissions, respectively, in a
particular year. See Table 1 for the results of this analysis. When
accounting for the social cost of both carbon dioxide and methane
emissions, the quantified net benefits of the final rule are mostly
negative based on the range of social cost of carbon and methane
estimates recommended by the IWG for use in regulatory analysis.

Table 1--Present Net Values of the Final Rule, 2016-2054
[Millions of 2014 dollars]
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3% Discount 3% Discount
Analysis Lower estimate avg. (lower) avg. (upper) Upper estimate
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SDEIS (carbon dioxide only)..................... -$12,468 -$3,363 -$1,624 $1,920
SFEIS (carbon dioxide only)..................... -1,394 -197 253 457
SFEIS (carbon dioxide and methane).............. -3,440 -964 -479 206
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USDA reviewed the social cost of carbon and social cost of methane
analyses contained in the SEIS. While USDA considered the full range of
values presented in the analyses, it primarily focused on the 3%
discount average rates for the upper and lower estimates.
USDA recognizes the provisional nature and uncertainties associated
with efforts to characterize net benefits of this regulatory action.
This is demonstrated by the differences in results used in the SDEIS
and SFEIS (see Table 1). At the extreme, the estimated net benefits
when excluding the social cost of methane emissions changed from -$12.5
billion to -$1.4 billion. These differences were due to a number of
changes to future market and regulatory projections between the SDEIS
and the SFEIS that include changes to assumptions used in the
substitution analysis affected the estimates that were largely based on
changes in energy markets:
Electricity demand was revised downward;
The natural gas supply assumption was revised, leading to
lower gas prices;
Coal supply was revised, leading to lower coal prices;
Coal transportation costs were revised due to a higher
diesel outlook: and
The final Clean Power Plan is represented in the SFEIS
while a proxy for the proposed Clean Power Plan was represented in the
SDEIS.\1\
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\1\ The United States is currently defending the legality of the
Clean Power Plan. West Virginia v. Environmental Protection Agency,
No. 15-1363 (D.C. Cir.). On February 9, 2016, the U.S. Supreme Court
stayed the Clean Power Plan pending judicial review before the D.C.
Circuit Court of Appeals and any subsequent proceedings in the
Supreme Court.
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The substantial differences in the estimates conducted only 6
months apart, in addition to the differences across production
scenarios and discount rates, demonstrate the provisional nature of
this type of analysis. The analysis of the costs of emissions impacts
spans 50 years. Greater changes will likely occur during those 50 years
in the context of energy markets, policies for management of greenhouse
gases, and new technologies affecting carbon dioxide output than have
occurred over the last 6 months. For example, the Department of the
Interior announced in January of 2016 it would undertake a broad,
programmatic review of the Federal coal program as well as pause from
holding lease sales, issuing coal leases, and approving lease
modification, with exceptions, during the programmatic review (Dept. of
the Interior Sec. Order No. 3338, Jan 15, 2016).
According to the U.S. Energy Information Administration, in 2014
coal provided 39% of U.S. electricity generation and 60% of Colorado's
energy generation. The final rule reinstates the exception for
temporary road construction and reconstruction within the North Fork
Coal Mining area that would facilitate future coal exploration and
potential development, which in turn preserves access to approximately
172 million short tons of coal. North Fork Valley coal meets the
definition for compliant and super-

[[Page 91816]]

compliant coal, indicating the coal has high energy value and low
sulfur, ash, and mercury content, making it desirable for generation of
electricity. The final rule does not authorize any coal leasing,
exploration, or development. These actions would only occur after
additional environmental review, public involvement, and Agency
decision-making.
The USDA, Forest Service, and State of Colorado maintain that coal
production in the North Fork Coal Mining Area provides an important
economic contribution and stability for the communities in the North
Fork Valley. Employment and income are not considered measures of
benefits (in the SEIS, nor in the 2012 analysis), but are a descriptor
of distribution of potential impacts of the decision on local or
regional economies and populations, consistent with Office of
Management and Budget Circular A-4, and Forest Service Manual 1970 and
Handbook 1909.17. The SEIS analyzed a study area most affected by
mining operations in the North Fork Valley and indicates mining,
including all other mining activities in addition to coal mining, could
account for approximately 9,500 jobs and $871 million in labor income
(2013 dollars), depending on the number of mines operating in the area.
Jobs in the mining sector typically show higher average labor income
than both State and study area averages. The SFEIS estimates that
implementation of this final rule could support approximately 410 to
1,050 direct jobs and 840 to 2,180 total jobs (direct, indirect, and
induced), which could result in $47 to $67 million in direct labor
income and $122 to $172 million in total labor income (direct,
indirect, and induced). It is important to note that these economic
impact figures are estimates based on available information and
analytical assumptions that are subject to changes in coal and energy
markets, policies for management of greenhouse gases, technological
advancements, and other factors.
Almost half (49%) of mineral royalties collected by the Federal
Government on coal leases go to the State in which the lease is
located. Of the royalties paid in Colorado, 50% goes to public school
funding and 10% funds the Water Conservation Board. The remaining 40%
goes to local impact programs with half going directly to the counties
and towns and the other half available through a grant program for
local governments. The SFEIS estimates that implementation of the final
rule could result in about $6.8 million in Federal mineral royalties.
However, any new leases could undergo negotiations with the BLM and
result in a lower royalty rate.
The USDA believes that the final rule is in the public interest
because the North Fork Coal Mining Area and its temporary road
construction exception strikes an appropriate balance between
conserving roadless area characteristics and addressing the State's
interest in not foreclosing opportunities for exploration and
development of coal resources in the North Fork Valley. As the Colorado
Department of Natural Resources noted in its comment letter on the
proposed rule, this exception is ``fundamental to this balance . . . to
ensure that the coal mines in that area would be able to expand and
continue to provide critical jobs for Coloradans.'' The North Fork Coal
Mining Area exception applies to about 0.5% of CRAs. Its current size
of 19,700 acres represents a substantial reduction of the 55,000-acre
area originally proposed by the State of Colorado to be excluded from
the Rule entirely. As noted in the District Court of Colorado's
decision, the Colorado Roadless Rule is a product of ``collaborative,
compromise-oriented policymaking'' and represents ``a balance of
important conservation interests with the also important economic need
to develop natural resources in Colorado.'' This decision restores that
balance.
USDA has given serious consideration to the potential environmental
effects of this decision. This decision preserves the opportunity for
subsequent coal exploration and development but does not represent an
irreversible or irretrievable commitment of coal resources. Coal
resources would not be leased or developed without additional
environmental review, public involvement, and decision making.
The USDA considered Alternatives A and C for the final rule.
However, Alternative A was not selected as the final rule because it
does not meet the purpose of and need for the action to address the
State's interest in not foreclosing opportunities for exploration and
development of coal resources in the North Fork Coal Mining Area.
Alternative C was not selected as the final rule because it provides
fewer local economic benefits and makes less coal available than
Alternative B.

Public Involvement

The Forest Service and cooperating agencies solicited public
comments on the reinstatement of the North Fork Coal Mining Area
exception through two public comment periods. The first comment period
began on April 7, 2015, with the publication of the notice of intent to
prepare an SEIS in the Federal Register. The initial comment period
ended on May 22, 2015, (45-day comment period), and approximately
119,400 letters were received. The second comment period began on
November 20, 2015, with the publication of the notice of availability
for the SDEIS in the Federal Register. This comment period ended on
January 15, 2016, (45-day comment period with 11-day extension to allow
for sufficient time to comment over the holiday season), and
approximately 104,500 letters were received, with approximately 700
unique letters and the remainder were form letters. An additional
33,000 letters were received after the close of the comment period. In
addition, two public open houses were held, one on December 7, 2015, in
Paonia, Colorado, and one on December 9, 2015, in Denver, Colorado, to
allow the public to ask questions and clarify information on the
proposal to reinstate the North Fork Coal Mining Area exception.

Alternatives Considered

The Forest Service analyzed three alternatives in detail in the
SEIS. Alternative A is the required no action alternative and reflects
the continuation of current management. The District Court of Colorado
vacated only the North Fork Coal Mining Area exception, leaving the
remaining Colorado Roadless Rule intact. Currently the North Fork Coal
Mining Area is being managed the same as non-upper tier acres with
general prohibitions on tree cutting, sale, and removal; road
construction/reconstruction; and use of linear construction zones
within CRAs.
Alternative B, selected as the final rule, reinstates the North
Fork Coal Mining Area exception as written in the 2012 Colorado
Roadless Rule. It would apply the exception to about 19,700 acres,
which varies from the 2012 North Fork Coal Mining Area by an additional
200 acres to align it with corrected CRA boundaries based on updated
road inventory data.
Alternative C is similar to Alternative B in that it reinstates the
North Fork Coal Mining Area exception as written in the 2012 Colorado
Roadless Rule. The difference is that the North Fork Coal Mining Area
boundaries would not include ``wilderness capable'' acres identified in
the 2007 Draft GMUG Forest Plan revision effort per Alternative C. The
exception would apply to about 12,600 acres.
All alternatives, including Alternative A, add the administrative
boundary correction to CRA boundaries associated with the North Fork
Coal Mining Area.

[[Page 91817]]

This correction is part of the final decision and will update the
official CRA boundaries. The changes are based on road inventories
utilizing global positioning systems of roads that existed prior to
2012 in the vicinity of the North Fork Coal Mining Area. The boundaries
of the CRAs will be adjusted to match the actual location of the roads
on the ground.
In addition to the alternatives analyzed in detail, the Forest
Service also considered another 12 alternatives that were not carried
into detailed analysis. These alternatives were raised during the
public comment process and included:
methane capture and use or reduction,
carbon offset,
carbon fee,
limit of sale of North Fork coal to facilities using
Integrated Gasification Combined Cycle or carbon capture/storage
technologies,
utilizing greenhouse gas and climate effects for
determining the value of coal,
energy efficiency measures and renewable energy,
providing assistance to coal companies and local
communities with switching to renewable energy,
issuance of new leases based on bond obligations,
requirement of an irrevocable bond,
exclusion of the Pilot Knob CRA,
increased upper tier acreage, and
increased recreational opportunities.

Environmentally Preferable Alternative

The environmentally preferable alternative is the one that would
best promote the national environmental policy as expressed in Section
101 of NEPA, 42 U.S.C. 4331. Generally, this means the alternative that
causes the least damage to the biological and physical environment. It
also means the alternative that best protects, preserves, and enhances
the historic, cultural, and natural resources. In addition, it means
the alternative that attains the widest range of beneficial uses of the
environment without degradation, risk to health and safety, or other
undesirable or unintended consequences.
Of the three alternatives analyzed in detail, Alternative A is the
environmentally preferable alternative because it would likely result
in the least environmental damage. However, Alternative A does not meet
the purpose of and need for the action to address the State's interest
in not foreclosing opportunities for exploration and development of
coal resources in the North Fork Coal Mining Area.

Comments on the Proposed Rule

U.S. Forest Service received approximately 104,500 timely comments
in response to the proposed rule and SDEIS. The Forest Service
considered and responded to all substantive comments and modified its
analysis as appropriate in the Final SEIS. However, the final rule
remains the same as the proposed rule. The following section summarizes
the major themes from comments received that suggested a change in the
rule and the Agency response. Substantive comments not suggesting a
change in the rule (that is, changes to analyses, alleged violation of
laws, and so forth) are not included here and can be found in the
Supplemental Final Environmental Impact Statement SFEIS, Appendix E.
Comment: The Forest Service should not rely on the BLM's methane
rulemaking process to determine the Forest Service's policy on methane
capture.
Response: The USDA believes the BLM's effort will provide valuable
insight into development of sound public policy on mitigating the
effects of waste mine methane. Therefore, the USDA is deferring this
issue to the required environmental review that is performed when
specific lands are being considered for leasing because the analysis
will be better informed and more efficient by:
1. A site-specific proposal when unknown factors that influence the
selection of potential capture systems are better known,
2. Agencies in charge of mine safety and mine operations can be
consulted, and
3. Knowing the results of BLM's waste mine methane rulemaking
effort.
Comment: The Forest Service must utilize the original purpose and
need as articulated during scoping. The SDEIS purpose and need was
arbitrarily modified and expanded to all CRAs and not just the North
Fork Coal Mining Area.
If the Forest Service is going to rely on the arbitrarily modified
purpose and need statement, then a broader range of alternatives needs
to be developed to address protection of all CRAs.
Response: The purpose and need statements in the scoping notice and
SDEIS are paraphrased from the 2012 FEIS. As stated on page 1 of the
SDEIS, the purpose and need statement is the same as the 2012 purpose
and need statement for the rule. To avoid confusion, the 2012 purpose
and need statement is now included verbatim in the SFEIS.
Comment: There is no demonstrated need or immediate need for the
exception. There is no demonstrated need for leaving the Pilot Knob
Roadless Area in for potential coal exploration and development.
Response: The North Fork Coal Mining exception considers the future
long-term opportunities for coal exploration and development, not just
the current situation or short-term opportunities. The established
legal and regulatory framework governing Federal coal resources has not
changed; therefore, the USDA retains responsibility within context of
these laws and regulations to manage the surface resources in areas
where Federal coal occurs. The Colorado Roadless Rule addresses this
established and on-going responsibility. Further, the USDA must honor
its commitment to address the concerns of the State of Colorado for
management of CRAs.
Comment: The bankruptcy of Arch Coal renders some or all of this
proposal moot. It is not the Forest Service's job to prevent
bankruptcies.
Response: The reinstatement of the North Fork Coal Mining Area
exception is not for the benefit of any specific mining company. The
State-specific concern is the stability of local economies in the North
Fork Valley and recognition of the contributions that coal mining have
provided in the past and may provide in the future to those
communities.
The commenter is correct that it is not the role of the Forest
Service to prevent bankruptcies of any individual company.
Comment: The North Fork Valley is not dependent on the coal
industry, a major argument for the proposal.
Response: It is the position of the State of Colorado that
providing the North Fork Coal exception provides a major benefit to the
North Fork Valley. It was a concern expressed by the State of Colorado
when it identified 55,000 acres in this area for exemption from
coverage of the roadless rule. In addition, the SEIS highlights the
total employment and labor income for the six-county study area as well
as the State of Colorado in 2013 for major industry sectors. The
largest study area industries in terms of employment include
construction, retail trade, real estate, accommodation/food services,
and government. In terms of labor income, the SEIS shows that mining,
construction, manufacturing, information, transportation, and the
government sectors all show higher average labor income than both the
State and the study area total employment averages.

[[Page 91818]]

The estimated annual average economic impacts by alternative are
displayed in the SEIS. Potential loss of jobs and associated labor
income with no additional production associated with the North Fork
Coal Mining Area have been disclosed. The energy market's fluctuations
have been extensively discussed. The SEIS further recognized that
layoffs have occurred within the study area for the coal mining, oil/
gas, and dairy sectors, and the impact of the loss of direct jobs
within any sector would be followed by changes to other sectors as the
ripple effects of lost wages work their way through the economy. The
SEIS also acknowledged that any new layoffs within a community can be
difficult, from the directly affected workers, to real estate values
and local school enrollment. Not all communities within the economic
study area would be affected the same; for example, some communities
have diversified economies, have attracted retiree populations, or are
less dependent on coal mining. Those communities that are still
dependent on coal mining would be most directly affected.
Comment: The Forest Service must evaluate an alternative that
forecloses exploration and mining on some of the North Fork Coal Mining
Area to conserve roadless character. Alternative C is not the only
reasonable alternative that the Forest Service must analyze to provide
the public and decision maker a range of reasonable alternatives.
The SDEIS fails to evaluate a range of reasonable alternatives as
required by NEPA and case law.
Response: The Forest Service evaluated a total of 15 alternatives,
which included three alternatives considered in detail (the no action
alternative and two action alternatives) and 12 alternatives that were
considered but eliminated from detailed study. As an SEIS, the scope of
this analysis is narrowly focused on the reinstatement of the North
Fork Coal Mining Area exception into the Colorado Roadless Rule. The
purpose of the Rule is to conserve roadless area characteristics while
accommodating State-specific concerns, which include not foreclosing
exploration and development of coal resources in the North Fork Valley.
The Colorado Roadless Rule is a landscape-level programmatic rule that
addresses roadless areas and prohibits road construction and tree
cutting. The Colorado Roadless Rule is not a coal-mining regulation but
a regulation to manage CRAs. Therefore, many of the alternatives
suggested through public comments that would regulate coal mining
operations were dismissed from detailed analyses. These alternatives
are better considered when site-specific proposals are submitted and
additional necessary information is known. At this time, 80% of the
area has not been explored and little is known. Mining may or may not
occur throughout the area. It is less speculative and more efficient
and practical to evaluate these alternatives in subsequent
environmental analyses.
One of the purposes of a range of alternatives is to sharply define
the issues and provide a clear basis for choice among options by the
decision maker and the public (40 CFR 1502.14). From a roadless
conservation standpoint, the primary decision is if and how much the
North Fork Coal Mining Area exception should apply to roadless areas
under the 2012 Colorado Roadless Rule. The range of alternatives is
adequate to define this issue and provides a clear basis for choice; in
this case, whether to apply the exception to 0, 12,600, or 19,700
acres.
Comment: The SDEIS fails to evaluate mitigation measures as
required by NEPA and case law. The SDEIS contains no mitigation
measures, instead asserting measures can wait until later stages of
analyses. Then there is no description of what those measures actually
are. The SDEIS fails to evaluate alternatives and mitigation measures.
Response: As an initial matter, the Colorado Roadless Rule
mitigates for the exceptions that accommodate the State-specific
concerns. Specifically, the Colorado Roadless Rule added 409,500 acres
into the roadless inventory that were not managed under the 2001
Roadless Rule; designated 1,219,200 acres as upper tier roadless lands
where exceptions to tree cutting and road construction are more
restrictive and limiting than the 2001 Roadless Rule; and restricted
the use of linear construction zones, which were not restricted under
the 2001 Roadless Rule. These features offset or mitigated the
environmental impacts of the Colorado Roadless Rule exceptions, such as
the North Fork Coal Mining Area exception, to provide a final rule that
is more protective to CRAs than the 2001 Roadless Rule.
The Colorado Roadless Rule includes regulatory provisions to
mitigate impacts of road construction within CRAs. Specifically:
Within a native cutthroat trout catchment or identified
recovery watershed, road construction will not diminish, over the long-
term, conditions in the water influence zone and the extent of the
occupied native cutthroat trout habitat (36 CFR 294.43(c)(2)(iv)).
Watershed conservation practices will be applied to all
projects occurring in native cutthroat trout habitat (36 CFR
294.43(c)(2)(v)).
Conduct road construction in a manner that reduces effects
on surface resources and prevents unnecessary or unreasonable surface
disturbance (36 CFR 294.43(d)(1)).
Decommission any road and restore the affected landscape
when it is determined that the road is no longer needed for the
established purpose prior to, or upon termination or expiration of a
contract, authorization, or permit, if possible. Require the inclusion
of a road decommissioning provision in all contracts or permits. Design
decommissioning to stabilize, restore, and revegetate unneeded roads to
a more natural state to protect resources and enhance roadless area
characteristics (36 CFR 294.43(d)(2)).
Moreover, mitigation measures would be discussed and considered in
connection with NEPA compliance at the project-specific stage. Listing
of potential mitigation measures that would and could be applied to
future coal mining activities and then describing what they are would
be redundant, inefficient, and marginally useful at the rulemaking
stage. Standard mitigation measures, performance standards, and
reclamation requirements applied to coal mining activities by the
Forest Service, BLM, Office of Surface Mining Reclamation and
Enforcement, and the State of Colorado have proven to be sufficient to
protect resources based on the condition of areas previously used for
surface activities related to coal mining. Hundreds of standard
mitigation measures are applied to mining operations and to describe
all of them in this SEIS would be encyclopedic and detract from the
primary reason for this SEIS, which is to decide whether or not
temporary road construction should be allowed in the North Fork Coal
Mining Area.
Comment: Methane flaring should be reconsidered because it is a
safe practice, and would reduce 90% of methane emissions.
Response: The Agency reconsidered methane flaring, as well as other
capture and reduction measures, and did not carry this alternative
through detailed study (See Chapter 2, Alternatives Considered but
Eliminated from Detailed Study section). Methane flaring (like capture)
is best considered at the leasing stage when there is more information
on the specific minerals to be developed and the lands that would be
impacted by a flaring operation. This decision does not foreclose any
future

[[Page 91819]]

lease stipulations related to methane capture and use or reduction.
Temporary roads authorized under this exception may also be used for
collecting and transporting coal mine methane, including any buried
infrastructure, such as pipelines needed for the capture, collection,
and use of coal mine methane.
In addition, making flaring a regulatory requirement for coal
mining operations in the North Fork Coal Mining Area could be
problematic because the Mine Safety and Health Administration could
ultimately decide not to allow flaring if it determined it jeopardizes
the safety of the miners. To date, the Mine Safety and Health
Administration has not approved a flaring system for a coal mine in the
Western United States. This could result in the coal mining company
being required to flare by two agencies but not allowed to flare by
another agency charged with miner safety, which would be inappropriate
from the perspective of agency-to-agency coordination.
Comment: If an exception is being made for coal mining, then an
exception should be made to allow companies to harvest dead and
diseased trees in the area.
Response: Tree cutting, including the harvesting of dead and
diseased trees, is generally prohibited in CRAs with limited
exceptions. The Colorado Roadless Rule allows tree cutting in non-upper
tier:
within the first 0.5 mile of a community protection zone;
within the first 0.5 to 1.5 miles of a community
protection zone if a community wildfire protection plan identifies the
area as a need for treatment;
outside of a community protection zone if there is a
significant risk to a municipal water supply;
to maintain or restore ecosystem composition, structure,
and processes;
incidental to a management activity not otherwise
prohibited by the Rule; or
for personal or administrative use.
Just because an exception is made for temporary road construction
for coal removal, it does not follow that an exception should be made
for tree removal. The purpose of this rule is to amend the North Fork
Coal Mining Area exception by addressing identified analysis
deficiencies, not to expand the existing prohibitions or exceptions
that have already been decided in the 2012 Colorado Roadless Rule.
Comment: The Roadless Rule is too restrictive. The rule leaves very
little flexibility for safety, fire suppression, water demands, or
forest health.
Response: The Colorado Roadless Rule has several other exceptions
specifically designed to address fire and fuels, water supply, and
forest health. The Rule balances the need to address these issues while
conserving roadless area characteristics.
Comment: Please also consider allowing bikes on all (or most)
trails. The original intent of wilderness was not to preclude human
powered exploration of our forests, but rather to encourage it. This
rule has been warped over the years and needs to be amended.
Response: This rulemaking does not propose any activity within
designated Wilderness areas. The Wilderness Act prohibits mechanized
use (including bicycles) in designated Wilderness Areas. The Colorado
Roadless Rule only prohibits tree-cutting, sale, or removal and road
construction or reconstruction--with some exceptions in CRAs. Mountain
biking access is considered as a part of individual forests' travel
management plans, but is not necessarily precluded from roadless areas.
Comment: Attempts to create de facto wilderness through alternate
means such as removing ``wilderness capable lands'' from the North Fork
Coal Mining Area are beyond the scope of this analysis. For this
reason, we find Alternative C to be fatally flawed due to the inclusion
of such a provision. We suggest that no special consideration be given
to ``wilderness capable lands'' in any alternatives included in future
versions of the SEIS.
Response: Recommendations for Wilderness under the 1982 forest
planning regulations were processed through several screens to
determine if an area was to be recommended. One of the first screens
was ``wilderness capable.'' The polygons identified to be removed from
the North Fork Coal Mining Area in Alternative C did not pass through
the next wilderness review screen to move forward. The SEIS states that
removing these acres from the North Fork Coal Mining Area does not
recommend them for Wilderness. The use of the term ``wilderness
capable'' is only a mechanism to identify these lands that were
requested for removal in a scoping comment for consideration as an
alternative.
Comment: The process used to create the Colorado Roadless Rule
revealed that much of the land identified as ``roadless'' were not in-
fact roadless and had contained roads used for mining, grazing, and
recreational vehicles. Once, reclamation is completed, there will be
more roadless than there was before. As the roaded lands recover, they
will serve as a carbon sink.
Response: It is correct that some of the CRAs once contained roads
used for mining, grazing, recreation, and other uses. The basis of
keeping the North Fork Coal Mining Area within the roadless inventory
is recognition that areas with temporary roads can regain roadless
character once roads are reclaimed and the area has had time to
recover.
Comment: There is increasing pressure on National Forests and
wilderness by summer campers and fall hunters seeking, naturalness,
solace, isolation, and peace so more roadless areas are needed.
Response: About 29% of NFS lands in Colorado have been identified
as roadless and are managed under the Colorado Roadless Rule. About 22%
of NFS lands in Colorado have been congressionally designated as
Wilderness. Activities in Wilderness are limited to non-motorized uses,
while activities in roadless areas can be motorized, mechanized, as
well as non-motorized uses. The final rule reasonably balances the
multiple use mandate for use of NFS lands and conservation of roadless
area characteristics.
Comment: The Pilot, Sunset, and Flatiron Roadless Areas were
designated precisely because they meet the criteria for roadless areas
and thus should not be opened up for an exception.
Response: During the Governor's petition process, the North Fork
Coal Mining area was specifically identified as an area that many
interest groups desired to see managed as roadless with an exception
for temporary road construction for coal development. USDA evaluated
this approach and determined that these lands are best managed as
described in the final rule.
Comment: Mining operations should include mitigation strategies
that will minimize the environmental impact.
Response: Coal mining operations are subject to performance
standards, mitigation measures, and reclamation requirements set forth
in the Surface Mining Control and Reclamation Act of 1977, as well as
State-specific coal mining statutes, among other Federal and State
laws. The Colorado Division of Reclamation, Mining and Safety ensures
that coal mining operations in the state comply with these laws. In
addition, under its legal and regulatory authority associated with coal
leasing, the Forest Service applies mitigation measures in the form of
lease stipulations when an application for a new coal lease or lease
modification has been received. The Forest Service provides these
mitigation measures (stipulations) to the BLM as a condition

[[Page 91820]]

of consent to lease (43 CFR 3425.3, 3432.3). At the permitting stage,
the Forest Service also brings forward conditions within its
jurisdiction to mitigate use and effects on NFS lands for the State to
include in coal mine permits.
Comment: Regulatory authorities must conduct due diligence on the
financial positions of present and future self-bond guarantors,
particularly with respect to prior or duplicate encumbrance of their
assets. If surface mine reclamation self-bonds are found to be secured
by assets that will not be available in the event of a reclamation
claim, State regulatory authorities must require alternative,
collateralized financial assurance. The danger of effectively unsecured
reclamation bonds is especially acute in a time of significant debt
loads and shrinking coal markets.
Response: The State of Colorado administers reclamation bonds under
its delegated Surface Mining Control and Reclamation Act authority from
Office Surface Management Reclamation and Enforcement.
Comment: The Forest Service and Office of Surface Mining
Reclamation and Enforcement should require all bonding as necessary to
complete all future reclamation and restoration needs in the exception
area considering the company's recent bankruptcy filing will not
jeopardize the prior or future commitments to reclamation and
restoration associated with any and all operations of the West Elk
Mine. The Office of Surface Mining Reclamation and Enforcement has
admitted that bonding is not high enough to complete remediation.
Response: Reclamation bonds are required and administered by the
State of Colorado under its delegated Surface Mining Control and
Reclamation Act authority from the Office Surface Mining Reclamation
and Enforcement. It is inefficient and impractical for the Forest
Service to engage in this analysis, which is focused on the prohibition
of road construction/reconstruction and tree cutting within roadless
areas.
Comment: The road construction will open up the area to off road
activities. Temporary roads never stay temporary because of things like
pipelines and management facilities. The temporary roads should be open
to off road vehicles/motorcycles. The temporary roads should only be
open to recreational access.
Response: The 2012 Colorado Roadless Rule is specific on future
road use in order to maintain the roadless character of the CRAs. For
any use of an exception that allows for a temporary road, those
temporary roads are not open to public travel. For further information,
please see 36 CFR 294.43(c)(4):
Comment: A legally sufficient analysis would have found that Pilot
Knob provides winter range for deer and bald eagles, and that it alone
provides the only severe winter range for elk.
Response: The specialist reports, Biological Evaluation, and
Biological Assessment for the 2012 Colorado Roadless Rule Final
Environmental Impact Statement used explicit information about
occurrence of wildlife and special status species by roadless area that
were available at the time from accepted reputable sources, including
Colorado Parks and Wildlife records, Colorado Natural Heritage Program,
and Forest Service records. This included information similar to what
the commenter describes for the roadless areas associated with the
North Fork Coal Mining Area. The data did inform the evaluation of
alternatives for the Colorado Roadless Rule. The Forest Service is
unaware of substantial new information since that time for general fish
and wildlife resources or concerns, whether for the larger roadless
network or specifically for the North Fork exception area.
Consequently, the evaluations in the SEIS focus on those species of
plants and animals for which there was substantial new information
since the 2012 rulemaking, specifically related to more recent
Endangered Species Act listings and critical habitat designations
affecting National Forests in Colorado. The Agency also reconsidered
the effects of the roadless rule and North Fork Coal Mining Area
exception and changed the 2012 determination for the endangered fishes
of the Upper Colorado River. Wildlife-related concerns like the
commenter identified will be addressed and mitigated as appropriate in
future NEPA evaluations, forest plan consistency reviews, and Forest
Service decisions. Site-specific information existing at the time a
proposal is made to explore for or mine coal--which could be 50 years
in the future--will better inform the analysis.
Comment: Rural areas could make a lot of money from drought
resistant farming if we would fix our rail lines. Make Arch build more
rail lines rather than more roads.
Response: The Forest Service is not familiar with the success of
drought resistant farming on the privately held lands in and around the
North Fork Valley. The Agency is not familiar with problems with the
existing railing lines. It is not within the Forest Service's authority
to make companies build infrastructure that is outside the purview of
the Forest Service.
Comment: The proposed action is not in the public interest because
it would release climate pollution, waste methane, adversely impact the
global economy and environment with billions in climate damages,
degrade high elevation-forests and wildlife habitat, and benefit only
one company--now bankrupt Arch Coal.
The new decision should be based on the SDEIS analysis and not the
prior deals made. The SDEIS demonstrates the 2012 FEIS was wrong in its
conclusion, and the Rule would have little impact on climate change.
Response: The Secretary of Agriculture or his designee considered
the public interest, SFEIS, comments received on the SDEIS, and
additional information contained in the project record, as needed, to
determine whether to reinstate the North Fork Coal Mining Area
exception.
Comment: Many commenters urged the selection of a certain
alternative for multiple reasons. Support and opposition were voiced
for all the alternatives presented in the SDEIS. The majority of
comments urged the selection of Alternative A, the no action
alternative, for a wide variety of reasons including, but not limited
to:
Adverse impacts to roadless areas, climate change, local
real estate values, wildlife habitat, listed species, recreation
values, and human health/safety;
Ecosystem services are greater than the benefits of the
coal;
Social cost and damage to the global environment;
Contribution to social unrest;
Undermining of the renewable energy industry;
Coal is available elsewhere;
Lack of rationale presented in the SDEIS for selection of
an action alternative; and
Lack of need.
Reasons commenters gave for the selection of Alternative B
included, but were not limited to:
The multi-year collaborative effort to develop the 2012
final rule;
Mining jobs are among the highest paying jobs in the area;
Quality of North Fork Valley coal;
Impacts to local economies; and
U.S. energy needs.
Reasons commenters gave for selection of Alternative C included,
but were not limited to: It protects the most sensitive and wilderness
capable areas while providing economic opportunities, and protects
nearly as much resources as Alternative A.
Response: The Secretary of Agriculture or his designee considered

[[Page 91821]]

the public interest, SFEIS, and comments received on the SDEIS, and
additional information contained in the project record, as needed, to
determine whether to reinstate the North Fork Coal Mining Area
exception.

Regulatory Certifications

Regulatory Planning and Review

When the proposed rule was circulated for public comment, USDA
identified that it had been designated as a non-significant regulatory
action under Executive Order 12866. USDA consulted with the Office of
Management and Budget (OMB) during the preparation of the final rule,
and OMB determined that the regulation was economically significant.
The SFEIS includes a detailed benefit-cost analysis.

Regulatory Flexibility Act and Consideration of Small Entities

The USDA certifies that the final regulation, if promulgated, will
not have a significant economic impact on a substantial number of small
entities as determined in the 2012 Regulatory Flexibility Analysis
because the final rule does not subject small entities to regulatory
requirements. Therefore, notification to the Small Business
Administration's Chief Council for Advocacy is not required pursuant to
Executive Order 13272.

Energy Effects

The Colorado Roadless Rule and the North Fork Coal Mining Area
exception do not constitute a ``significant energy action'' as defined
by Executive Order 13211. No adverse effects to supply, distribution,
or use of energy are anticipated beyond what has been addressed in the
2012 FEIS or the Regulatory Impact Analysis prepared in association
with the final 2012 Colorado Roadless Rule. The reinstatement of the
North Fork Coal Mining Area exception does not restrict access to
privately held mineral rights, or mineral rights held through existing
claims or leases, and allows for disposal of mineral materials. The
final rule does not prohibit future mineral claims or mineral leasing
in areas otherwise open for such. The rule provides a regulatory
mechanism for consideration of requests for modification of restriction
if adjustments are determined to be necessary in the future.

Federalism

The USDA has determined that the final rule conforms to the
Federalism principles set out in Executive Order 13132 and does not
have Federalism implications. The rule would not impose any new
compliance costs on any State, and the rule would not have substantial
direct effects on States, on the relationship between the National
Government and the States, nor on the distribution of power and
responsibilities among the various levels of government.
The final rule is based on a petition submitted by the State of
Colorado under the Administrative Procedure Act at 5 U.S.C. 553(e) and
pursuant to USDA regulations at 7 CFR 1.28. The State's petition was
developed through a task force with local government involvement. The
State of Colorado is a cooperating agency pursuant to 40 CFR 1501.6 of
the Council on Environmental Quality regulations for implementation of
NEPA.

Takings of Private Property

The USDA analyzed the final rule in accordance with the principles
and criteria contained in Executive Order 12630. The Agency determined
that the final rule does not pose the risk of a taking of private
property.

Civil Justice Reform

The USDA reviewed the final rule in context of Executive Order
12988. The USDA has not identified any State or local laws or
regulations that are in conflict with this final rule or would impede
full implementation of this rule. However, if this rule were adopted,
(1) all State and local laws and regulations that conflict with this
rule or would impede full implementation of this rule would be
preempted; (2) no retroactive effect would be given to this rule; and
(3) this rule would not require the use of administrative proceedings
before parties could file suit in court.

Executive Order 13175/Tribal Consultation

This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments''. Executive Order 13175 requires
Federal agencies to consult and coordinate with tribes on a government-
to-government basis on policies that have tribal implications,
including regulations, legislative comments or proposed legislation,
and other policy statements or actions that have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The Forest Service has assessed the impact of this final rule on
Indian tribes and determined that this rule does not, to our knowledge,
have tribal implications that require consultation under E.O. 13175. If
a Tribe requests consultation, the Forest Service will work with the
Office of Tribal Relations to ensure meaningful consultation is
provided where changes, additions and modifications identified herein
are not expressly mandated by Congress.

Unfunded Mandates

The USDA has assessed the effects of the Colorado Roadless Rule on
state, local, and tribal governments and the private sector. This rule
does not compel the expenditure of $100 million or more by State,
local, or tribal governments, or anyone in the private sector.
Therefore, a statement under section 202 of title II of the Unfunded
Mandates Reform Act of 1995 is not required.

Paperwork Reduction Act

This final rule does not call for any additional recordkeeping,
reporting requirements, or other information collection requirements as
defined in 5 CFR 1320 that are not already required by law or not
already approved for use. The rule imposes no additional paperwork
burden on the public. Therefore the Paperwork Reduction Act of 1995
does not apply to this proposal.

List of Subjects in 36 CFR Part 294

National Forests, Recreation areas, Navigation (air), State
petitions for inventoried roadless area management.

For the reasons set forth in the preamble, the Forest Service
amends part 294 of title 36 of the Code of Federal Regulations as
follows:

PART 294--SPECIAL AREAS

Subpart D--Colorado Roadless Area Management

0
1. The authority citation for part 294, subpart D, continues to read
as follows:

Authority: 16 U.S.C. 472, 529, 551, 1608, 1613; 23 U.S.C. 201,
205.

0
2. In Sec. 294.43, revise paragraph (c)(1)(ix) to read as follows:


Sec. 294.43 Prohibition on road construction and reconstruction

(c) * * *
(1) * * *
(ix) A temporary road is needed for coal exploration and/or coal-
related surface activities for certain lands with Colorado Roadless
Areas within the North Fork Coal Mining Area of the Grand Mesa,
Uncompahgre, and Gunnison National Forests as defined by the North Fork
Coal Mining Area displayed on the final Colorado

[[Page 91822]]

Roadless Areas map. Such roads may also be used for collecting and
transporting coal mine methane. Any buried infrastructure, including
pipelines, needed for the capture, collection, and use of coal mine
methane, will be located within the rights-of-way of temporary roads
that are otherwise necessary for coal-related surface activities
including the installation and operation of methane venting wells.
* * * * *

Robert Bonnie,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2016-30406 Filed 12-16-16; 8:45 am]
BILLING CODE 3411-15-P