[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-14305] [[Page Unknown]] [Federal Register: June 13, 1994] _______________________________________________________________________ Part VI Department of Agriculture _______________________________________________________________________ Forest Service _______________________________________________________________________ 36 CFR Part 292 Hells Canyon National Recreation Area--Private Lands; Final Rule DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 292 RIN 0596-AA88 Hells Canyon National Recreation Area--Private Lands AGENCY: Forest Service, USDA. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule implements section 10(a) of the Hells Canyon National Recreation Area Act of 1975. The Act directs the Secretary of Agriculture to promulgate rules and regulations deemed necessary to guide the use and development of private lands within the Hells Canyon National Recreation Area. This rule establishes the baseline standards of private land use and development that are compatible with the purposes of the Act and that, if not met, could result in the Secretary's use of the private land acquisition authority provided by the Act. The intended effect is to ensure that the values of the HCNRA will be protected and preserved, and as envisioned by the Act, that traditional ranching, grazing, farming, timber harvesting, and other uses can be perpetuated. EFFECTIVE DATE: This rule is effective June 13, 1994. FOR FURTHER INFORMATION CONTACT: Tom Lennon, Branch Chief, Special Designations, Recreation, Heritage, and Wilderness Resources Staff, Forest Service, (202) 205-1423 or Ed Cole, Area Ranger, (503) 426-4978. SUPPLEMENTARY INFORMATION: Background Congress established the Hells Canyon National Recreation Area (HCNRA) by the Act of December 31, 1975 (the Act) in order to assure that the natural beauty, and historical and archaeological values of the Hells Canyon area are preserved for this and future generations, and that the recreational and ecologic values and public enjoyment of the area are thereby enhanced. Public Law 94-199, 89 Stat. 1117 at Sec. 1 (codified at 16 U.S.C. 460gg et seq.). Section 10 of the Act directs the Secretary to promulgate such rules and regulations as are deemed necessary to accomplish the purposes of the Act, including standards for the use and development of privately owned property within the HCNRA. Section 10 further provides that the Secretary may use the land acquisition authority in section 9 of the Act to implement the rules and regulations promulgated pursuant to section 10. As for the Snake, Rapid, and Imnaha Wild and Scenic Rivers, the governing authority for land acquisition is found in section 6 of the Wild and Scenic Rivers Act. Both section 9 of the Act and section 6 of the Wild and Scenic Rivers Act restrict the Secretary's condemnation authority; i.e. acquiring land without the consent of the landowner. On December 14, 1993, the Forest Service published a proposed rule that would establish the standards for the use and development of private lands in the HCNRA (56 FR 65300). The purpose of the proposed regulations was to make clear those circumstances which would trigger possible use of the Secretary's condemnation authority. The proposed rule established categories of private land and standards for the use and development of private land within a given category. Compliance with the standards would generally be deemed consistent with the purposes for which the HCNRA was established. Violation of the standards would generally be deemed inconsistent with the purposes for which the HCNRA was established, and, thus the lands could become the subject of federal acquisition. Thus, the proposed rule sought to make clear to affected landowners those uses that could continue or be undertaken without risk of federal acquisition. Throughout its efforts to devise regulations applicable to private lands within the HCNRA, the Forest Service has sought to avoid direct regulation of private lands and their uses. Instead, the agency has sought to define those uses of private lands that are consistent with the purposes for which the HCNRA was established, to encourage retention of traditional and valid private land uses as established by the Act, and, thereby, to avoid having to exercise the condemnation authority granted the Secretary by the Act. Under the proposed rule, the Forest Service would not seek to regulate per se or enjoin proposed uses or developments on private land. Rather, the agency chose to set forth in the proposed rule standards for private land use and development, which establish the basis for using the secretary's land acquisition authority in the HCNRA. The proposed rule also established a mechanism by which a landowner could petition for a change in land category assignment and a mechanism by which a landowner could determine whether an existing or proposed land use or development was in compliance with the standards of the rule. The Forest Service may also initiate a noncompliance determination on its own without having first received a landowner request. Under the proposed rule, the Secretary would not acquire the subject land or interests therein unless it was with the consent of the landowner in those cases where a landowner was in compliance with the applicable standards. If, however, the landowner was not in compliance, the Secretary could acquire a fee simple or lesser interest in the subject land without the landowner's consent. The proposed rule also provided landowners and other interested parties an opportunity to appeal a compliance or noncompliance determination. Eight letters expressing a variety of viewpoints were received during the 60-day comment period on the proposed rule. These letters contained the views of a power company, a powerboat association, a preservation group, a local county government, another agency of the federal government, an ad hoc citizens river committee, a state agricultural organization, and a local chapter of the same organization. The comments contained in these letters have been carefully considered in the adoption of this final rule. The Department appreciates the time and energy the reviewers invested in preparing these letters and articulating their concerns on the proposed rule. All comments received are available for review in the Office of the Director, Recreation, Heritage, and Wilderness Resources Staff, Auditors Building, 4th Floor, 201 14th Street SW at Independence Avenue SW., Washington, DC, during regular business hours (8 a.m. to 4:30 p.m.) Monday through Friday. Analysis of Public Comment Comments on the proposed rule dealt both with general issues, such as the scope and extent of the Secretary's authority under this rule, as well as discrete issues relating to specific provisions enumerated in the proposed rule. In addition, there were several comments urging that language in the Supplementary Information section of the proposed rule be corrected and/or clarified. A summary of the comments and the Department's response follows. General Comments 1. Scope and Extent of the Secretary's Authority Under This Rule Two reviewers raised a number of concerns regarding the use of the Secretary's land acquisition authority to effectuate the standards set out in the rule for private land use and development. The comments reflected the divergent views of the reviewers and, to some degree, a misunderstanding of the system as envisioned in the proposed rule. The comments received on this issue and the Department's response follow. Comment: The Secretary is impermissibly engaged in the zoning of private lands in the HCNRA. One reviewer suggested that the process set forth in the proposed rule which establishes land use categories and allowable uses within those categories is ``zoning.'' Further, this same reviewer noted that the acquisition of lands without the landowner's consent is ``zoning.'' Finally, this reviewer noted that using condemnation to ensure compliance is an extreme measure and that the Forest Service should attempt to ``work in harmony'' with the private landowners in the HCNRA to ensure compliance. Response. The proposed rule does not vest the Secretary with zoning authority. Zoning is defined as the division of a community into areas in each of which only certain designated uses of land are permitted, so that a community may develop in an orderly manner. While the end result may be the same in terms of protecting an area against potentially incompatible land uses, there is an important distinction between the exercise of a local government's zoning authority and the federal government's eminent domain authority. Zoning laws are rooted in the exercise of a state's police power (usually delegated to a subdivision of the state) to prevent persons under its jurisdiction from using their property to the detriment of the general welfare. The power of eminent domain, on the other hand, is the power to acquire, or to authorize the acquisition of, private property for a public use or purpose without the owner's consent, conditioned upon the payment of just compensation. Because, zoning laws ordinarily do not constitute a taking of property for public use for which compensation must be paid, they differ substantially from the government's right to determine the use of real estate under the power of eminent domain, which requires just compensation. In the preamble to the proposed rule, the agency went to great length to explain that the mechanism by which the Secretary would protect the HCNRA from incompatible private land use and development was through acquisition (condemnation) rather than regulation (injunction). In the conclusion to the preamble of the proposed rule [58 FR 65304, Col. 2], the agency expressly stated that: ``The proposed regulations have been carefully drafted to avoid any conflict with local zoning authority and any appearance that the Forest Service desires to regulate private land uses.'' Relying on acquisition authority to enforce zoning ordinances is entirely consistent with sections 9 and 10 of the Act. Moreover, this approach is the least intrusive to the private landowners in the HCNRA, and it will not duplicate the role nor supplant the authority of the local governmental units in the HCNRA. Finally, the Department agrees with the reviewer's observation that condemnation is an extreme measure to enforce compliance with the standards set out in this rule. As was stated in the conclusion to the preamble to the proposed rule [59 FR 65304, Col. 2], ``The agency views the use of condemnation authority as a last resort to protect the HCNRA,'' to be instituted only where other, more harmonious measures and attempts to cooperate with the landowners do not succeed. Comment: The Secretary should more actively regulate private lands in the HCNRA. Ironically, while one reviewer asserted that the Forest Service had virtually usurped local zoning authority over the private lands in the HCNRA, another reviewer stated that the Forest Service was obligated to assert a more vigorous regulatory role over these same lands. In particular, this reviewer asserted that relying on the condemnation authority delegated to the Secretary in section 9 of the Act will not adequately protect the HCNRA and that the Forest Service must exercise its ``inherent regulatory authority'' over private lands that are adjacent to federal lands. Response: In order to properly respond to this comment, the following two questions must be addressed--(1) Does the Secretary have an ``inherent regulatory authority'' vis-a-vis private lands in the HCNRA? and (2) If so, is its exercise necessary to comply with the HCNRA Act? The Department does not dispute the proposition that, pursuant to the Property Clause of the Constitution, Congress has delegated to it the authority to regulate and administer National Forest System lands under the Organic Act; the Multiple-Use, Sustained-Yield Act; the National Forest Management Act; the Forest and Rangeland Renewable Resources Planning Act; the Wilderness Act; the Wild and Scenic Rivers Act; and the HCNRA Act, to name just a few. In furtherance of those enactments, regulations throughout title 36 of the Code of Federal Regulations vest broad authority in the Forest Service to manage National Forest System lands and many of the activities that occur thereon. However, these authorities are confined to National Forest System lands and do not apply to private lands. The options regarding regulation on private lands are considerably more limited. To begin with, the Forest Service cannot ``zone'' private lands as that term is commonly understood. ``Zoning'' is an authority that is reserved to the States and their subdivisions under the Constitution. Congress examined this issue prior to the establishment of the Cape Cod National Seashore many years ago. Their analysis then is instructive today. The Federal Government does not have authority to directly enact zoning laws applicable to private property in any of the States. If it had such authority, the task of preserving an area such as lower Cape Cod in such a way as to safeguard the interests of private landowners might be somewhat simplified, for Congress could simply enact a zoning law for the area. However, in the division of powers between the States and the Federal Government, it is wisely left to States to adopt zoning laws * * * For this reason, [the Act] requires the Secretary of the Interior to issue regulations as soon as possible after the enactment of the bill setting forth the standards which must be met by town zoning bylaws for purposes of suspending his power of eminent domain. The only regulatory authority that the Forest Service possesses relative to private lands is its authority as a landowner to enjoin activities on adjacent or nearby lands which threaten the National Forest land. It is the considered judgment of the Department that the acquisition of lands or interests therein, in conjunction with locally established zoning measures, remains the most efficient and viable system to legally control potentially incompatible land use and development in the HCNRA. This is the thrust of this rule. Its success depends on the best efforts of the Forest Service, State and local governments, and landowners in the HCNRA. However, this rule should not be construed to foreclose the Agency's right to enjoin certain activities which threaten to compromise the values for which the HCNRA was established. Whether such action is warranted would need to be decided on a case-by-case basis. In the event that a nuisance-like activity should arise in the future which threatens the HCNRA, the Forest Service would be fully authorized to exercise its prerogative as a landowner to seek to get the activity terminated or modified so as to eliminate the deleterious effects on National Forest System lands. Comment: Snake River water rights. One reviewer suggested that the rule should address withdrawals and diversions of water from the Snake River that are used for irrigating traditional farming and ranching activities in and around the HCNRA. This reviewer urged that the rule prescribe: how much water can be diverted, the time and purpose of diversion, and whether the diversion should be phased out so water may be retained in the Snake River. Response. The use of water from the Snake River is an integral component of many of the traditional farming and ranching operations occurring in the HCNRA. While the reviewer's concern may be legitimate and this rule would present an appropriate vehicle to address these concerns, Section 6 of the Act expressly prohibits the incorporation of these suggestions into this rule as follows: No provision of this Act, nor any regulations issued hereunder, shall in any way limit, restrict, or conflict with present and future uses of the waters of the Snake River and its tributaries upstream from the boundaries of the [HCNRA] created hereby, for beneficial uses, whether consumptive or nonconsumptive, now or hereafter existing, including, but not limited to, domestic, municipal, stockwater, irrigation, mining, power, or industrial uses. Comments: Access to private land. One reviewer stated that access is an integral part of the traditional uses recognized under the HCNRA Act and should not be arbitrarily limited since such limitations would reduce property value and restrict traditional uses. Response. While the reviewer did not make clear how the proposed rule would limit access to private lands, nor did the reviewer offer suggestions for addressing the access issue, the Department notes that the proposed rule was silent on the issue of access and nowhere can it be inferred that the rule would permit the Forest Service to arbitrarily limit such access. The Department does not believe that this rule needs to address access, since section 1323 of the Alaska National Interest Lands Conservation Act (ANILCA) requires that access be granted to nonfederally owned lands located within the National Forest System. Agency rules at 36 CFR part 254, subpart E implement section 1323 and already apply to private lands within the HCNRA which are subject to the terms and conditions for reasonable ingress and egress that may be imposed by the Forest Service. Comment: Monitoring. One reviewer noted that the proposed rule failed to establish a system whereby the use and development of private land in the HCNRA could be monitored by the Forest Service to detect violations. According to this reviewer, the rule is ``grossly deficient, and contrary to law in this respect.'' Response. While there was no provision for monitoring in the proposed rule, this rule is not somehow legally insufficient as a result. Monitoring by the Forest Service can occur in a number of ways and need not be expressly provided for or authorized in this rule. For instance, monitoring can occur by reviewing the actions of the local government regarding private land use and development issues. The Forest Service also can and does monitor private land use and development through routine aerial photographs for fire prevention and control, forest pest management, and landscape planning and management and on-the-ground observations from adjacent National Forest land. Additionally, where the Forest Service receives permission from the landowner, monitoring could also be accomplished via an on-site investigation. In the proposed rule, monitoring also would be accomplished through the compliance determination process which is optional on the part of the landowner. Although the Department believes that monitoring was never eliminated from the Forest Service's responsibilities by the proposed rule, it also believes that monitoring is so important that it would like to make clear that the Forest Service may monitor the uses and developments on private lands at any time it believes it has good reason to be concerned about the protection of the values for which the HCNRA was established. To emphasize this point, the final rule adds a new standard in Sec. 292.24, paragraph (b)(2) which states that the Forest Service may initiate the compliance process on its own without having first received a landowner request. This standard clearly shows that the Forest Service may initiate the determination of compliance process, where the agency has reason to believe, based on monitoring or other information, that the landowner may be violating the standards for private land use and development established by this rule. Specific Comments on Proposed Subpart E of 36 CFR Part 292 The following is a discussion of comments that were received pertaining to specific sections of the proposed rule and the changes, if any, resulting from the comments. No comments were received on Sec. 292.20, Purpose and Scope, or on Sec. 292.25, Information Requirements, and no substantive modifications have been made to the text of these sections, although editing for improved readability and word choice was made. Accordingly, neither section is set out for further discussion. Section 292.21 Definitions This section listed and defined special terms used in this subpart. Comment: ``Farm/forest/grazing lands.'' Two reviewers suggested that the definition of ``farm/forest/grazing lands'' be modified to eliminate references to watershed protection, fish & wildlife habitat maintenance and recreational activities as purposes for which farm/ forest/grazing lands may be used. These reviewers felt that these additional non-farming uses could pose burdensome and expensive requirements on the management of farming or grazing operations. Response. The reviewers' concern that this definition would result in the imposition of additional requirements on their operations is unfounded. The subject definition is set out in the disjunctive. In other words, farm/forest/grazing lands may be used for farm/forest/ grazing purposes or for watershed purposes, or for fish & wildlife purposes, or for recreational purposes, or for a combination of the above. The inclusion of these terms in this definition does not imply that new requirements would be incorporated into ongoing farming and ranching operations in the HCNRA. Of course, these farming and ranching operations are still subject to applicable federal, state, and local laws and ordinances. Therefore, the definition is adopted without change from the proposed rule. However, on consideration of the comments on the term ``farm/forest/grazing lands,'' the Department has determined that the definition of ``farm/forest/grazing uses'' should be modified so that it more closely parallels the definition of ``farm/ forest/grazing lands.'' To that end, a new second sentence has been included in the ``farm/forest/grazing use'' definition which recognizes that uses related to watershed protection, fish and wildlife habitat maintenance, and recreational activities may also be undertaken on these lands. Again, because these activities may be undertaken does not signify that they must be undertaken. The definition of ``farm/forest/ grazing use'' also has been rearranged for ease of reading and comprehension. Comment: ``Land modification.'' One reviewer noted that the definition of ``land modification'' in the proposed rule included road construction as an example but that the circumstances under which road construction would be accommodated in conjunction with access needs for the purpose of maintaining and constructing utility facilities were unclear. Response. The Department agrees that the potential applicability of the definition of ``land modification'' to utility maintenance activities is unclear. Indeed, while ``land modification'' was included in Sec. 292.21 of the proposed rule, it was not used elsewhere; therefore, it has been deleted from the final rule. Absent this term, the Department construes the standard at Sec. 292.23(a)(4) of the final rule as accommodating reasonable road access to utility facilities provided that such access is associated with the routine and necessary maintenance of these facilities. In addition, further review of the definition section disclosed that the terms, ``Comprehensive management plan,'' ``seasonal feedlots,'' and ``zoning'', were not used in the proposed rule; accordingly, those terms have not been retained in the final rule. All other terms and their definitions are retained without change in the final rule. Section 292.22 Land Category Assignments The proposed rule established four categories to which private lands in the HCNRA would be assigned and would require that maps showing private lands and the categories to which they have been assigned be on file and available for public inspection at the Ranger's office. Comment. One reviewer complained that the map identifying the private lands in the HCNRA and the land use category to which they had been assigned was not available for review during the comment period on the proposed rule. Response. The Department regrets that the map was unavailable, since this could have been of some assistance to the parties in the preparation of their comments on the rule. The Department has modified this section in the final rule to require the map (or maps) to be prepared and available for review not later than 60 days after the effective date of this regulation and also to require the Ranger to give notice of the availability of the maps in the local newspapers of record. If any parties are concerned about a specific land category assignment, they can make their concerns known to the Forest Service at that time, and the Forest Service will consider these concerns prior to the adoption of a final map. No other changes were made to this section. Section 292.23 Standards of Compatible Land Use and Development The proposed rule would establish standards of private land use and development that reflect traditional and valid uses of private lands in existence as of December 31, 1975 for four categories of land use. These categories were farm/forest/grazing, mining, residential, and commercial land. The standards for these land categories were intended to guide the Ranger in determining whether uses of a private parcel are compatible with the purposes for which the HCNRA was established. Some standards applied to all categories of private lands, while others were specific only to a particular land category. Standards were prescribed to allow conformity of private land uses and developments with the laws of various jurisdictions. Among other things, the proposed rule set standards for the screening and blending of new and replacement structures, banned solid waste and hazardous substance disposal sites, required utility lines to be buried, disallowed new or replacement structures in wilderness, and provided for the protection of historic and archaeological sites. Comment: Expense of underground utility installation. One reviewer noted that the standard in Sec. 292.23(a)(4) regarding the placement of new or replacement of existing utility lines underground could be prohibitively expensive and environmentally damaging. Response. While this standard clearly establishes a preference for underground utility installation wherever feasible, the Department is well aware of the rugged and varied terrain in the HCNRA and the difficulty, if not impossibility, of installing utility lines underground in certain areas. It is for that reason that the standard in the proposed rule regarding underground utility installation included the caveat ``where ground conditions and topography permit.'' Therefore, a change in the final rule was necessary. It is recognized that, by necessity, the evaluation of the location of utility lines must be made on a case-by-case basis. Comment: Wilderness structures. One reviewer opposed the standard in Sec. 292.23(a)(5) which provided that no new structures could be developed on private lands within the boundaries of the Hells Canyon Wilderness in the HCNRA. This reviewer stated that this standard oversteps the professed bounds of the law. This reviewer further contended that such a restriction should apply only if the structure would be visible from the wilderness, since otherwise there would be no negative effect on anyone's wilderness experience. The reviewer also stated that nothing in the Wilderness Act permitted wilderness visitors to trespass on private lands. Response. The intent of the rule is, where deemed necessary, to apply the same standards for private land uses and developments to lands within the designated wilderness boundaries, as would be applied outside of wilderness. Under the proposed rule, those lots within wilderness would be classified as farm/forest/grazing lands. Most of the private land parcels within wilderness are less than 160 acres, and so, even without the wilderness lands restriction, the proposed rule would not consider the development of any new residences appropriate. In developing the proposed rule, the Department determined that the protection of the wilderness resource is paramount. Congress designates wilderness to protect and preserve a variety of natural resource and other values; scenic value is only one of many attributes. Uses and developments on private lands have the potential to impact a full range of wilderness values, including scientific, cultural, historical, and water quality values. One of the most important aspects of the recreational experience within wilderness is the opportunity for solitude and to experience an area where man is only a temporary visitor. A standard which would allow development of new structures so long as they are not visible from the wilderness simply ignores the fact that other, non-visual impacts may result from the construction of new structures. Furthermore, the Forest Service is unaware of any location from which a new structure could be developed within the wilderness and also not be visible because of the area's topography. As noted in the proposed rule, the repair and maintenance of existing structures that may be located on private land within a wilderness is not affected by this standard. Therefore, after considering this comment, no change was made in the final rule regarding the construction of new or replacement structures in wilderness. Comment: Lack of standards for livestock grazing, timber harvesting, pesticide application, water quality, and ground disturbing activities. One reviewer objected to the lack of standards in the proposed rule for livestock grazing, timber harvesting, pesticide use, water quality protection, and ground disturbing activities on private lands. Response. This concern is fully addressed by the proposed rule. In determining what approach it should take to the regulation of private lands, the Forest Service determined that if other federal, state, and local laws and ordinances are enforced, then the HCNRA Act's purposes would be accomplished. Accordingly, in developing the proposed rule, the agency assessed existing ordinances and laws for their capability to protect on private lands the values for which the HCNRA was established. In many instances, the proposed rule expressed these local ordinances as standards. However, the proposed rule made it very clear that other laws would be enforced; if not by the promulgating government, then, if necessary, by the Forest Service through acquisition (condemnation) action. In Sec. 292.23 paragraph (a)(1), the final rule retains the language of the proposed rule, with minor editing, to make clear that land uses are compatible if they conform to applicable local, state, and federal laws. This provision is intended to cover such matters as those referred to by the reviewer. Examples of the types of ordinances and laws that this clause refers to include the following: Oregon Forest Practices Act; Idaho Forest Practices Act; Idaho Water Quality Standards and Wastewater Treatment Requirements; Oregon Water Quality Standards; and the Idaho Agricultural Pollution Abatement Plan. The Department is not aware of any situation which merits standards different from those currently imposed by other laws. The proposed rule addressed the concerns raised by this reviewer by providing for compliance with environmental and other laws and ordinances. Therefore, no modification has been made in the final rule as a result of this comment. Additional Changes Adopted in the Final Rule In the process of reviewing the comments on Sec. 292.23, the Department recognized the need to make two other changes. 1. Residences on less than 160 acre parcels in farm/forest/grazing lands. As drafted, the provision at Sec. 292.23(b)(1) that limits residences on farm/forest/grazing lands to minimum lots of 160 acres could be interpreted to mean that an existing house on a lot that is less than 160 acres would prompt the Secretary to exercise the acquisition authority. This is not the Department's intent. It is recognized that some of these smaller parcels have existed with residential developments for years and there is no reason that they should not continue as a recognized nonconforming use. Consequently, the final rule is modified to make clear that nonconforming lots (i.e., less than 160 acres) with permanently affixed residences (i.e., constructed on a foundation or basement), existing on the effective date of the final rule, are in compliance with the Act. 2. Sites used for the extraction of common mineral materials. The proposed rule, at Sec. 292.23 (a)(7), would only allowed extraction of common materials for road construction and maintenance and would limit sites to not exceed 5 acres. The use limitation ignored other forms of construction that may also use smaller quantities of materials, such as in the repair or construction of structures. It is impractical to require a landowner to find a gravel source outside of the HCNRA boundaries, when a source may exist already within a mile of his or her property. Upon reconsideration, the 5 acre size limit appears to be excessive for the foreseen uses for this resource and the esthetic concerns for the HCNRA. Therefore, the final rule is modified to eliminate the references to only road construction and maintenance and to decrease the size limit to not exceed 2 acres. As written, the final rule may be more generally applied to the extraction of common mineral materials for construction and maintenance purposes so long as these sites have screening and are less than 2 acres in size. Section 292.24 Determination of Compliance and Noncompliance Under the proposed rule, this section provided an optional compliance determination process so that the landowner could obtain assurance from the Ranger that existing or proposed uses of their land are compatible with the Act and thus would not be acquired by the Secretary without their consent. A notice of noncompliance would mean that a proposed or actual land use does not comply with the standards in Sec. 292.23 and thus, could potentially trigger the initiation of the Secretary's land acquisition authority, as authorized by the Act. This section also proposed a process for reviewing a compliance or noncompliance decision. Comment: Noncompliance results in condemnation. One reviewer thought that the system to determine compliance or noncompliance was flawed because a finding of noncompliance resulted in condemnation. Response. Condemnation is one option that may be considered in the event of a noncompliance determination. However, it is not the only option. The proposed rule clearly states that if the Forest Service makes a noncompliance determination, it will offer suggestions on how the land use or development could be modified to avoid this result. As noted previously, condemnation is not the tool of choice to enforce compliance with the standards of this rule--it is the last resort. In administering the HCNRA, the Forest Service position has been, and will continue to be, one which favors discussion, negotiation, and cooperation with landowners to reach mutually satisfactory objectives wherever possible. Comment: Written petition. Three reviewers requested that the procedure to appeal a determination of compliance or noncompliance be modified to exclude ``other interested parties.'' These reviewers felt that the petition process provided by this rule should be strictly limited to the Forest Service and the affected landowner and that the involvement of outside parties would unnecessarily complicate and prolong the process. Another reviewer supported the petition process as set out in the proposed rule. Response. The Department agrees with the reviewers that requests for reviews of compliance and noncompliance determinations involving ``other interested parties'' could be unnecessarily cumbersome and time consuming and that the review process should be limited to those directly affected, i.e. the landowner whose property was the subject of the determination. Accordingly, in the final rule, paragraph (c) of Sec. 292.24 has been revised to limit petitions for review to affected landowners. Comment: Acquiescence to local zoning ordinances and administration. One reviewer felt that the compliance/noncompliance determination procedure should be discarded in favor of a system in which proposals for use and development of private land in the HCNRA would be channeled through the existing local mechanisms provided under the Wallowa County Land Use Development Ordinance and the Wallowa County Comprehensive Land Use Plan. In this alternative, the HCNRA Ranger's role would be limited to that of an interested party who would be able to testify in favor of or in opposition to a proposed use or development. However, if the Ranger opposed the proposal, it would be his or her burden to prove that the proposal is contrary to the County Ordinance and Plan. According to this reviewer, it is only through this mechanism that the standard of local citizen involvement required by state and local law would be satisfied. Response. This alternative is not one that the Department can implement and remain consistent with its responsibilities under the HCNRA Act. The federal interest must be protected and cannot be dependent upon, or subservient to, state and local zoning decisions. In effect, this alternative would relegate the Forest Service to the status of an interested party whose comments would be considered by the County in the context of a pending development or use proposal. Forest Service comments would not be binding on the commission, nor would they necessarily even be persuasive. It is difficult to comprehend how the Forest Service could carry out its responsibilities under the HCNRA Act and effectively ensure that activities on the private lands not impair the values for which Congress established the HCNRA under this system. It is the hope of the Department that the procedures currently in place at the state and local level will suffice to condition, restrict, or preclude many incompatible uses or developments in the HCNRA. The standards adopted by the final rule are from local zoning ordinances and applicable laws that already adequately protect the HCNRA. The County's disposition of pending development proposals should, in most cases, result in decisions that are compatible with the purposes of the HCNRA Act. However, in the event uses or developments are incompatible, or in the event that the County Ordinances and Plan are amended in such a way as to lessen the restrictions on private lands which would thereby increase the potential threat to the HCNRA, then the Forest Service must have the ability to enforce the standards needed to protect the HCNRA. The rule as proposed provides this protection. Therefore, no change was made to Sec. 292.24 in response to this comment. Finally, the heading for Sec. 292.24 was edited for clarity to read: ``Determination of compliance and noncompliance.'' Conclusion Having carefully considered the comments received on the proposed rule, and explained the basis for adopting or not adopting changes proposed by reviewers, the Department hereby adopts a final rule to ensure that the use and development of private lands within the Hells Canyon Recreation Area are compatible with the purposes for which Congress established the Area and its management direction. The standards established by the final rule are those essential to protection of the Area. The approach adopted is not one of direct federal regulation of private land but rather one of relying, to the greatest extent possible, on local zoning authority. The rule gives private landowners notice of those uses that are compatible with the purposes of the HCNRA, provides a mechanism whereby the landowner and the agency may determine compliance or noncompliance with the standards of the rule and gives constructive notice to private landowners that incompatible uses of private land may trigger the use of the Secretary's condemnation authority. Nevertheless this rule is predicated on the premise that the use of the Secretary's condemnation authority is to be a last resort and that the agency shall make every effort to work harmoniously and cooperatively with private landowners to ensure protection of the HCNRA. Regulatory Impact This final rule has been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. It has been determined that this is not a significant rule. This rule will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor state or local governments. This rule will not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, this final rule is not subject to OMB review under Executive Order 12866. Moreover, this final rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been determined that this action will not have a significant economic impact on a substantial number of small entities as defined by that Act. To the extent that the rule imposes additional requirements on any small entity, these requirements are the minimum necessary to protect the public interest, are not administratively burdensome or costly to meet, and are well within the capability of small entities to perform. Takings Implication Since this rule is premised on the formal exercise of the Secretary's eminent domain authority, it is not an ``action'' as that term is defined in Section 2(c)(1) of Executive Order 12630. Nonetheless, the Office of General Counsel has reviewed this rule for takings implications and determined that there is no risk of a taking related to this rule or its implementation. Executive Order 12778, Civil Justice Reform Act This rule has been reviewed under Executive Order 12778, Civil Justice Reform. Accordingly, (1) all state and local laws and regulations that are in conflict with this rule or which impede its full implementation are preempted; (2) no retroactive effect will be given to this rule; and (3) it will not require administrative proceedings before parties could file suit in court challenging its provisions. Environmental Impact This rulemaking was discussed as a proposed rule in the final Environmental Impact Statement and Comprehensive Management Plan for the Hells Canyon National Recreation Area, pages 155-158. The analysis completed for the Comprehensive Management Plan was revalidated in April 1990 with the signing of the Wallowa-Whitman National Forest Land and Resource Management (pages 1-2). Information pertaining to the environmental analysis may be obtained by writing or calling the persons or offices listed under ADDRESSES and FOR FURTHER INFORMATION CONTACT. Information collection requirements As outlined in the rule at Sec. 292.24, a landowner may request an optional compliance determination from the Forest Service. As such, this rule contains information requirements as defined in 5 CFR Part 1320. These information requirements are assigned control number 0596- 0135 and are approved for use through March 1997. List of Subjects in 36 CFR Part 292 Recreation and recreation uses, and National forest. Therefore, for the reasons set forth in the preamble, part 292 of title 36 of the Code of Federal Regulations, is amended by adding a new subpart E to read as follows: PART 292--NATIONAL RECREATION AREAS [AMENDED] Subpart E--Hells Canyon National Recreation Area--Private Lands Sec. 292.20 Purpose and scope. 292.21 Definitions. 292.22 Land category assignments. 292.23 Standards of compatible land use and development. 292.24 Determination of compliance and noncompliance. 292.25 Information requirements. Authority: 89 Stat. 1117; 16 U.S.C. 460gg-460gg-13. Subpart E--Hells Canyon National Recreation Area--Private Lands Sec. 292.20 Purpose and scope. (a) Purpose. The Act establishing the Hells Canyon National Recreation Area (hereafter referred to as HCNRA) (16 U.S.C. 460gg- 460gg-13) encourages the retention of traditional and valid uses of private land within the HCNRA, such as ranching, grazing, farming, timber harvesting, and the occupation of homes and lands associated therewith, as they existed at the time the HCNRA was established on December 31, 1975. To this end, the Act directs the Secretary of Agriculture to promulgate regulations establishing standards for the use and development of private land within the HCNRA and grants the Secretary limited condemnation authority to address situations where the standards are not met. The purpose of this subpart is to establish standards that would guide the Secretary's consideration of the use of the limited condemnation authority granted by the Act. (b) Scope. The regulations in this subpart establish standards applicable to all private property within the boundaries of the HCNRA, including that within the boundaries of the Rapid, Snake, and Imnaha Wild and Scenic Rivers and the Hells Canyon Wilderness. The regulations in this subpart do not operate to restrict the use and development of private property; rather, they serve to inform the landowner of those uses that are compatible with purposes for which the HCNRA was established. Uses not compatible with these standards could result in the Secretary acquiring land or interests therein without a landowner's consent. The regulations in this subpart, in and of themselves, do not effect a taking of private property, including valid, existing water rights, nor do the standards established in this subpart limit or restrict a private landowner's property use that is compatible with the purposes of the Act. The Responsible Official may use the regulations in this subpart solely to determine whether private land uses or developments are compatible with the purposes and direction of the Act and, if not, to determine whether the Secretary should consider initiating condemnation proceedings to acquire land or scenic easements. Sec. 292.21 Definitions. For the purposes of this subpart, the following terms are defined: Act refers to the act of December 31, 1975, which established the Hells Canyon National Recreation Area (89 Stat. 1117; 16 U.S.C. 460gg- 460gg-13). Archaeological sites are those sites containing relics, artifacts, and other evidence of past human cultures including historic properties as defined by the National Historic Preservation Act. Commercial land is land within the HCNRA developed for commercial purposes as of June 13, 1994 and which is assigned to the commercial land category (Sec. 292.22). Condemnation is the acquisition of lands or interests therein by the Secretary without the consent of the owner. In the case of the Act, condemnation is a limited authority that may be exercised by the Secretary only in the event that a standard or standards set forth herein are violated for all private land categories except mining lands. Where mining lands are involved, the Secretary may exercise his or her condemnation authority notwithstanding the fact that the mining land owner has complied with the relevant standards of this section. Conservation easement or Scenic easement as defined in Section 9(d) of the Act ``means the right to control the use of land in order to protect aesthetic values for the purposes of this Act, but shall not be acquired without the consent of the owner to preclude the continuation of any farming or pastoral use exercised by the owner as of the date of enactment of this Act.'' Dude ranching is a business oriented primarily towards furnishing small groups with an outdoor recreational and educational experience associated with ranching activities and perpetuates the purposes for which the HCNRA was established. Dude ranching is subservient to the primarily recognized ranching operation. Existing uses are those uses of or developments to private land as of the date of enactment of the Act on December 31, 1975. Farm/Forest/Grazing lands are those lands used for farm, forest, and grazing purposes, for maintaining watersheds as fish and wildlife habitat, or for providing outdoor recreational activities. All such lands are assigned to the Farm/Forest/Grazing land category in Sec. 292.22. Farm/Forest/Grazing Use is any traditional agricultural, silvicultural, or livestock management use or combination thereof on farm/forest/grazing lands within the HCNRA. This includes, but is not limited to, truck farming, growing and harvesting of timber, grazing of livestock, horticultural use, animal husbandry use, horse, cattle, and sheep ranching, and preparation and storage of the products raised on farm/forest/grazing land for on-site use or for disposal by marketing or otherwise. Farm/forest/grazing uses may also consist of uses related to and in furtherance of the protection of watersheds, maintenance of fish and wildlife habitat, and the pursuit of recreational activities. Hazardous substance includes any material so classified under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.). Mining lands are lands primarily used for mining purposes as of June 13, 1994 and which are assigned to the mining land category in Sec. 292.22. Outdoor recreational activities are activities such as camping, picnicking, rafting, boating, hiking, rock climbing, fishing, hunting, horseback riding, and the viewing of wildlife or scenery. Parcel as used in this subpart refers to contiguous tax lots under one ownership. For the purposes of this subpart, rights-of-way do not divide parcels into smaller units. Partition is the division of land into lots, and which, under county planning ordinances, is identified by a map, drawing, or writing which contains the descriptions, locations, specifications, and dedications for roads, utilities, etc. and which has been properly filed with the County recorder. Private land is land not in federal, state, or local government ownership. Proposed uses are those uses of or development to a private land parcel within the HCNRA initiated after June 13, 1994. Ranger is the HCNRA Area Ranger, Wallowa-Whitman National Forest, with offices located in Enterprise, Oregon, Riggins, Idaho, and Clarkston, Washington, except for the Rapid Wild and Scenic River where the term refers to the Salmon River District Ranger, Nez Perce National Forest, located in Whitebird, Idaho. Recreational facilities are facilities associated with or required for outdoor recreational activities and include, but are not limited to, parks, campgrounds, hunting and fishing lodges, and interpretive displays. Residential lands are lands within the HCNRA developed for residential purposes as of June 13, 1994 and which are assigned to the Residential land category in Sec. 292.22. Scenic Easement. See Conservation Easement. Screening is the reduction or elimination of the visual impact of any structure or land modification as seen from any public travel route within the HCNRA. Solid waste is discarded solid materials resulting from mining, industrial, commercial, agricultural, silvicultural, and community activities. This term does not include domestic sewage or pollutants such as silt or dissolved materials in irrigation return flows. Structure is any permanent building or facility, or part thereof such as barns, outhouses, residences and storage sheds. This includes electric transmission line systems, substations, commercial radio transmitters, relays or repeater stations, antennas, and other electronic sites and associated structures. Traditional uses are ranching, grazing, farming, timber harvesting and the occupation of homes and land associated therewith within the HCNRA, or other activities including outdoor recreational activities and facilities, which existed on or before December 31, 1975. Travel route is a route, such as a county or National Forest system road or river or trail, that is open for use by members of the general public. Sec. 292.22 Land category assignments. (a) Land categories. (1) All privately owned lands within the HCNRA are to be assigned to one of the following four land categories: (i) Farm/forest/grazing land. (ii) Mining land. (iii) Residential land. (iv) Commercial land. (2) Not later than August 12, 1994, a map or maps displaying the privately owned lands within the HCNRA and the land categories to which they have been assigned must be on file and available for public inspection at the Ranger's office. The Ranger shall give notice of the availability of this map or maps in the local newspapers of record. (b) Changes in land category assignment. Lands assigned to the Commercial, Residential, or Mining category may be reclassified as farm/forest/grazing land so long as the intended use or development is consistent with the standards in Sec. 292.23 and the Ranger has given public notice of the proposed change in the local newspaper of record and has notified adjacent landowners and the affected county government at least 30 days prior to any decision on the proposed change. Sec. 292.23 Standards of compatible land use and development. Private land use that conforms to the standards of this section is deemed to be compatible with the purpose for which the HCNRA was established. (a) Standards applicable to all private lands. As of June 13, 1994, the use and development of private lands in all land categories within the HCNRA is deemed compatible with the purposes for which the HCNRA was established, if the use and development of such lands meets the following standards: (1) Use and development conforms to applicable local, state, and federal environmental, natural resource, cultural resource, and land use development law. (2) All new or replacement structures are screened and/or constructed of materials that blend with the natural environment, except where structures typify the architectural style and materials of a significant historic era such as pre-World War II. Screening is not required, however, for new or replacement structures that are associated with an existing unscreened structure or structures that were not screened at the time this rule became effective. (3) No public or commercial solid waste disposal sites or hazardous substance disposal sites are located on private lands within the HCNRA. (4) All new or replacement utility lines are placed underground where ground conditions and topography permit. This standard does not prevent or impair routine maintenance of utility lines or related structures in existence prior to June 13, 1994. (5) No new or replacement structures are developed within the boundaries of the Hells Canyon Wilderness, provided that existing structures may be repaired and/or maintained. (6) Significant historic, archaeologic, or paleontologic sites are protected. (7) Sites used for the extraction of common mineral materials, such as gravel, for construction and maintenance purposes on all except designated mining lands, are screened where possible, and are not in excess of 2 acres in size. (8) New recreational facilities enhance and are compatible with the purpose of the Act. (b) Farm/forest/grazing lands standards. The following additional standards are applicable to farm/forest/grazing lands: (1) Except as otherwise provided in this paragraph, the minimum lot size for residential development is 160 acres. Only residences associated with farm/forest/grazing uses may be developed. Partitions of less than 160 acres may be made to provide for the continuation of existing commercial agriculture, but such partitions may not be developed for residential use. Lots of less than 160 acres existing on June 13, 1994, with residences permanently affixed to a foundation or basement, are considered to be in compliance. (2) Structures are limited to those necessary to conduct farm/ forest/grazing use. (3) Dude ranching is permitted provided it is compatible with the purpose and direction of the Act and is part of a recognized ranching operation. (4) New or replacement structures for farm/forest/grazing use are not closer than 25 feet from a property line or 55 feet from the center line of a travel route. (c) Mining Lands. (1) The following standards are applicable to mining lands: (i) The owner of mining lands must consult with the Ranger concerning proposed mineral development activities prior to submitting a plan of operations to the relevant state or federal agencies. (ii) Operations comply with Federal and State mining, air quality, water quality, hazardous waste, water disposal and reclamation standards. (iii) The type and number of structures, including but not limited to residences associated with the mining activity, are limited to the minimum necessary for the use and development of the mining lands. (iv) No new structures are located closer than 25 feet from a property line or 55 feet from the center line of a travel route. (v) Mining lands are not partitioned. (2) Notwithstanding compliance with the standards of paragraph (c)(1) of this section, the Secretary may acquire mineral interests in the HCNRA without the consent of the owner, if the Secretary deems this necessary to meet the purposes for which the HCNRA was established. Sec. 292.24 Determination of compliance and noncompliance. (a) Compliance. Landowners may request a determination by the Forest Service as to whether an existing or a proposed use or development complies with the relevant standards set out in this subpart. (1) Requests for a determination of compliance must be made in writing to the Ranger and include the following information: (i) The current land category to which the land is assigned (Sec. 292.23); (ii) The use of development that exists or that is proposed for the property; (iii) A statement as to whether a change in the land category assignment will be necessary to accommodate the proposed use or development; (iv) The timeframe for implementing the proposed use or development; and (v) A statement as to how the proposed use or development satisfies the relevant standards of Sec. 292.23 of this subpart. (2) The Ranger shall review the request and notify the landowner in writing within 45 days whether the existing or proposed use or development is in compliance with Sec. 292.23 of this subpart. The Ranger may extend the time for making a compliance determination by 30 days if additional information is needed. (b) Noncompliance. (1) In the event that the Forest Service determines that an existing or proposed use of development is not in compliance with the standards of Sec. 292.23 of this subpart, the Ranger shall give the landowner written notice of the manner and nature of noncompliance. To the extent practicable, the notice will include suggestions for achieving compliance. The notice also must include a statement that the violation of a standard or standards and the failure to cure such violation may result in the initiation of condemnation proceedings by the Secretary. (2) The Forest Service may initiate a noncompliance determination on its own without having first received a landowner request. (c) Written petition. The landowner may file a written petition with the Forest Supervisor for a review of a decision of compliance or noncompliance. The Forest Supervisor shall render a decision within 30 days of the receipt of the petition. A decision by the Forest Supervisor constitutes the final administrative determination by the Department of Agriculture. Petitions of decisions on lands within the Rapid River Wild and Scenic River Corridor should be addressed to the Forest Supervisor, Nez Perce National Forest, Route 2, P.O. Box 475, Grangeville, Idaho 83450. All other petitions should be addressed to the Forest Supervisor, Wallowa-Whitman National Forest, P.O. Box 907, Baker City, Oregon 97814. Sec. 292.25 Information requirements. The information required by Sec. 292.24 of this subpart in order for a landowner to obtain a determination of compliance constitutes an information requirement as defined in the Paperwork Reduction Act (44 U.S.C. 3507) and has been approved for use by the Office of Management and Budget and assigned control number 0596-0135. Dated: June 6, 1994. James R. Lyons, Assistant Secretary, Natural Resources and Environment. [FR Doc. 94-14305 Filed 6-10-94; 8:45 am] BILLING CODE 3410-11-M