Federal Register, Volume 80 Issue 224 (Friday, November 20, 2015)
[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Proposed Rules]
[Pages 72665-72669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29592]
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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: Notice of proposed rulemaking; request for comment.
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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to
reinstate the North Fork Coal Mining Area exception of the Colorado
Roadless Rule. The Colorado Roadless Rule is a State-specific rule that
provides direction for conserving and managing approximately 4.2
million acres of Colorado Roadless Areas (CRAs) on National Forest
System (NFS) lands within the state of Colorado. The North Fork Coal
Mining Area exception allowed for temporary road construction for coal
exploration and/or coal-related surface activities in an area defined
as the North Fork Coal Mining Area, which was inadvertently reported as
19,100 acres in 2012, and was actually 19,500 acres. The Forest
Service, on behalf of the Department, has prepared a supplemental
environmental impact statement (SEIS) addressing specific environmental
disclosure deficiencies
[[Page 72666]]
identified by the District Court of Colorado. In addition, the
Department is proposing to correct certain CRA boundaries associated
with the North Fork Coal Mining Area based on updated information. The
Forest Service invites written comments on both the proposed rule and
supplemental draft environmental impact statement.
DATES: Comments on this proposed rule must be received in writing by
January 4, 2016. Comments concerning the supplemental draft
environmental impact statement contained in this proposed rule must be
received in writing by January 4, 2016.
ADDRESSES: Comments may be submitted electronically via the internet to
go.usa.gov/3JQwJ or to www.regulations.gov. Send written comments to:
Colorado Roadless Rule, 740 Simms Street, Golden, CO 80401.
All comments, including names and addresses, will be placed in the
project record and available for public inspections and copying.
The public may inspect comments received on this proposed rule at
USDA, Forest Service, Ecosystem Management Coordination Staff, 1400
Independence Ave. SW., Washington, DC, between 8 a.m. and 4:30 p.m. on
business days. Those wishing to inspect comments should call 202-205-
0895 ahead to facilitate an appointment and entrance to the building.
Comments may also be inspected at USDA, Forest Service Rocky Mountain
Regional Office, Strategic Planning Staff, 740 Simms, Golden, Colorado,
between 8 a.m. and 4:30 p.m. on business days. Those wishing to inspect
comments at the Regional Office should call 303-275-5156 ahead to
facilitate an appointment and entrance to the building.
FOR FURTHER INFORMATION CONTACT: Ken Tu, Interdisciplinary Team Leader,
Rocky Mountain Regional Office at 303-275-5156.
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:
Background
In July 2012, the USDA promulgated the Colorado Roadless Rule, a
State-specific regulation for conserving and managing approximately 4.2
million acres of CRAs on NFS lands. The Rule addressed State-specific
concerns while conserving roadless area characteristics. One State-
specific concern involved continued exploration and development of coal
resources in the North Fork Valley area of the Grand Mesa, Uncompahgre,
and Gunnison (GMUG) National Forests. The Colorado Roadless Rule
addressed this State-specific concern by defining an area called the
North Fork Coal Mining Area and developing an exception that allowed
temporary road construction for coal-related activities within that
defined area.
In July 2013, High Country Conservation Advocates, WildEarth
Guardians, and Sierra Club challenged the Forest Service consent
decision to the Bureau of Land Management (BLM) modifying two existing
coal leases, the BLM's companion decision to modify the leases, the
BLM's authorization of exploration in the lease modification areas, and
the North Fork Coal Mining Area exception of the Colorado Roadless
Rule. In June 2014, the District Court of Colorado found the
environmental documents supporting the four decisions to be in
violation of NEPA. The deficiencies identified by the Court associated
with the Colorado Roadless Rule included: 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
exploration plan, the lease modifications, and 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 final 2012 Colorado Roadless Rule was developed collaboratively
between the USDA, Forest Service, State of Colorado, and interested
publics. The North Fork Coal Mining Area exception was developed by a
13-member, bipartisan task force established under Colorado Revised
Statute Sec. 36-7-302 to make recommendations to the Governor
regarding management of roadless areas in Colorado national forests.
Between June 8, 2005, with the signing of Colorado Senate bill 05-243
which created the Roadless Task Force and November 13, 2006, with then
Governor Owen signing the Colorado State Petition, the task force held
nine public meetings throughout the State and six deliberative meetings
of the task force members that were open to the public, and reviewed
and considered over 40,000 public comments. Comments were both
supportive and opposed to coal extraction. The task force recommended a
Colorado Roadless Rule not apply to about 55,000 acres of roadless
areas in the GMUG National Forests for activities related to and in
support of underground coal mining.
On November 13, 2006 then-Governor Bill Owens submitted a petition
to the USDA to develop a State-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. The 2006 petition attempted to strike a balance between those
that supported coal extraction and those that opposed it by proposing
that a roadless rule not apply to the North Fork Valley. Potential coal
resources within roadless areas on the Pike-San Isabel, Routt, White
River, and San Juan National Forests were not included in the petition.
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 having the Colorado Roadless Rule not
apply to the North Fork Coal Mining Area but explicitly asked the area
remain in the Colorado roadless inventory. In 2010, John Hickenlooper
was elected Governor of Colorado. Governor Hickenlooper also supported
having a North Fork Coal Mining Area exception.
Throughout the development of the Colorado Roadless Rule, the USDA,
Forest Service, and State of Colorado attempted to strike a balance
between those that support and oppose coal mining in CRAs. The North
Fork Coal Mining Area reflects this effort to find common ground. In
November 2006, Governor Owens petitioned approximately 55,000 acres be
considered as the North Fork Coal Mining Area, which included all or
portions of Currant Creek, Electric Mountain, Flatirons, Flattops-Elk
Park, Pilot Knob, and Sunset CRAs. In July 2008, the North Fork Coal
Mining Area was reduced to approximately 29,000 acres in the proposed
rule and included all or portions of Currant Creek, Electric Mountain,
Flatirons, Pilot Knob, and Sunset CRAs. In April 2011, the North Fork
Coal Mining Area was further reduced to approximately 20,000 acres in
the revised proposed rule and included all or portions of Currant
Creek, Electric Mountain, Flatirons, Pilot Knob, and Sunset CRAs. In
July 2012, the North Fork Coal Mining Area was reported in error as
19,100 acres in the final rule. The actual acreage was 19,500, and
included all or portions of Flatirons, Pilot Knob, and Sunset CRAs. The
changes made to the North Fork
[[Page 72667]]
Coal Mining Area were a direct result of public comments and the desire
to balance economic concerns with roadless values.
Throughout the rulemaking process, a total of five formal comment
periods were held by the State and Forest Service resulting in 24
public meetings and over 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 there is an appropriate balance between
conserving roadless area characteristics and the state-specific
concerns in the continued exploration and development of coal resources
in the July 2012 final rule where less than 0.5 percent of the CRAs
were designated as the North Fork Coal Mining Area.
Need for Rulemaking
The State of Colorado maintains that coal mining in the North Fork
Coal Mining Area provides an important economic contribution and
stability for the communities of the North Fork Valley. USDA and the
Forest Service are committed to contributing to energy security, and
carrying out the government's overall policy to foster and encourage
orderly and economic development of domestic mineral resources.
All existing Federal coal leases within CRAs occur in the North
Fork Valley near Paonia, Colorado on the GMUG National Forests. Coal
from this area meets the Clean Air Act definition for compliant and
super-compliant coal, which means it has high energy value and low
sulphur, ash and mercury content. There are two mines currently holding
leases within CRAs. One is operating, producing approximately 5.2
million tons of coal annually. The second is currently idle due to a
fire and flood within their mine operation. The final rule accommodates
continued coal mining opportunities within the North Fork Coal Mining
Area. At approximately 19,500 acres, this area is less than 0.5% of the
total 4.2 million acres of CRAs. The North Fork Coal Mining Area
exception allows for the construction of temporary roads for
exploration and surface activities related to coal mining for existing
and future coal leases. The reinstatement of this exception does not
approve any future coal leases, nor does it make a decision about the
leasing availability of any coal within the State. Those decisions
would need to undergo separate environmental analyses, public input,
and decision-making.
Supplemental Environmental Impact Statement
A Supplemental Environmental Impact Statement (SEIS) has been
prepared to complement the 2012 Final EIS for the Colorado Roadless
Rule. The SEIS 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 (13-01723, D.
Col), correction of boundary information, and to address scoping
comments. In conjunction with the 2012 Final EIS, the SEIS discloses
the environmental consequences of reinstating the North Fork Coal
Mining Area exception into the Colorado Roadless Rule.
Three alternatives are addressed in detail in the SEIS. Alternative
A is the No Action Alternative, and would continue the current
management under the Colorado Roadless Rule without a North Fork Coal
Mining Area exception. Alternative A would manage the 19,500 acres of
CRA within the vacated North Fork Coal Mining Area as non-upper tier
roadless. Alternative B (proposed action), would reinstate the North
Fork Coal Mining Area exception, allowing temporary road construction
for coal mining related activities on 19,700 acres of NFS lands within
CRAs. Alternative C (exclusion of ``wilderness capable'' lands) would
establish the North Fork Coal Mining Area exception, but exclude lands
identified as ``wilderness capable'' during the 2007 GMUG Forest Plan
revision process. Alternative C would allow temporary road construction
for coal mining activities on 12,600 acres of NFS lands within CRAs.
In addition, all alternatives include boundary correction of CRAs
based on more accurate inventory of forest road locations obtained
since the promulgation of the 2012 Colorado Roadless Rule. These
corrections will add 65 acres into the CRAs, and subtract 35 acres from
CRAs along the existing road system. The court identified deficiencies
were addressed in the SEIS in the following manner:
1. Failure to disclose greenhouse gas emissions associated with
potential mine operations--The SEIS estimates greenhouse gas emissions
associated with mining of the coal based on three potential production
levels (low, average and air quality permitted). Table 1 displays
results for Alternative B (proposed action).
Table 1--Estimated Annual Gross Lifecycle Greenhouse Gas Emissions From Potential Coal Mining for Alternative B
Under Three Production Scenarios, in Annual Tons of Carbon Dioxide Equivalents
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Permitted
scenario (max
Alternative B Low scenario Average air quality
scenario permit
values)
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Coal Production (annual tons)................................... 5,300,000 10,000,000 15,500,000
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carbon dioxide equivalents
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Carbon dioxide--extraction...................................... 100,000 200,000 300,000
Methane--extraction............................................. 1,200,000 4,200,000 6,300,000
Nitrous oxide--extraction....................................... 0 0 0
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Total....................................................... 1,300,000 4,400,000 6,600,000
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2. Failure to disclose greenhouse gas emissions associated with
combustion of coal potentially mined from the area--The SEIS includes a
lifecycle analysis of greenhouse gas emissions that includes downstream
effects of combustion of coal based on three potential production
levels. Table 2 displays results for Alternative B (proposed action).
[[Page 72668]]
Table 2--Estimated Annual Gross Lifecycle Greenhouse Gas Emissions From Potential Transportation and Combustion
of Coal for Alternative B Under Three Production Scenarios, in Metric Tons of Carbon Dioxide Equivalents
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Permitted
scenario (max
Alternative B Low scenario Average air quality
scenario permit
values)
----------------------------------------------------------------------------------------------------------------
Coal Production (annual tons)................................... 5,300,000 10,000,000 15,500,000
-----------------------------------------------
carbon dioxide equivalents
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Carbon dioxide--combustion...................................... 11,600,000 22,000,000 34,500,000
All--rail transport............................................. 600,000 1,200,000 1,800,000
Carbon dioxide--overseas shipping............................... 100,000 200,000 300,000
-----------------------------------------------
Total....................................................... 12,300,000 23,400,000 36,600,000
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3. Failure to address a report about coal substitution submitted
during a public comment period--The SEIS includes a lifecycle analysis
of greenhouse gas emissions that includes the downstream effects of
substituted energy sources if the North Fork Coal Mining Area exception
is not reinstated (Alternative A).
Changes in gross production and consumption of coal from the North
Fork Coal Mining Area are expected to have an effect on production and
consumption of other fuel sources, including alternative supplies of
coal, natural gas, and other energy supplies such as renewables,
especially in later years of the analysis. The SEIS characterizes
market responses and substitution effects in order to estimate net
changes in energy production and consumption. The ICF International's
Integrated Planning Model (IPM[supreg]) was used to predict how
production and consumption of other sources of coal and natural gas, as
well as alternative sources of energy (e.g., renewables, bio/waste
fuel) respond to, substitute, or offset for changes in the supply of
low sulfur bituminous coal from the North Fork Coal Mining Area.
Assuming that total gross production of underground coal from the
North Fork Coal Mining Area increases by 172 million tons over the
period 2016 to 2054 for Alternative B, compared to Alternative A,
production from other substitute sources of underground coal around the
nation are likely to decrease, in many cases, in response to an
increase in North Fork Coal Mining Area underground coal production.
These decreases in other underground coal mining would offset, in part,
some of the 172 million tons of underground coal production from the
North Fork Coal Mining Area, resulting in net domestic underground coal
production of 91 million tons. These results are estimated using
response coefficients derived from IPM[supreg] modeling results.
Production of substitute sources of surface coal and natural gas
across the country are estimated to decrease by 23 million tons and 271
BCF, in response to increases in North Fork Coal Mining Area coal
production. Total electricity generation is assumed to remain constant
across the three alternatives, so change in total electricity
generation is equal to zero for Alternative B, compared to A. However,
the mix of energy sources used to generate the electricity will change,
in response to increases in North Fork Coal Mining Area coal
production.
These shifts in the mixtures of energy used to generate
electricity, as well as the production of different types of energy
will change carbon dioxide emissions. Total carbon dioxide emissions is
estimated to increase by 131 million tons under Alternative B, compared
to Alternative A.
4. The SEIS addresses the social cost of carbon as related to the
Colorado Roadless Rule. A social cost of carbon calculation was
completed as part of the present net value analysis considering the
2010, 2013, and 2015 Technical Update of the social cost of carbon for
Regulatory Impact Analysis Under Executive Order 12866--Interagency
Working Group on social cost of carbon.
Social cost of carbon estimates represent global measures because
emissions of greenhouse gasses from within the U.S. contribute to
damages around the world. The total social cost of carbon values
therefore account for global damages caused by greenhouse gas
emissions. The SEIS discusses greenhouse gas estimates in the context
of (i) total or global social cost of carbon estimates and (ii)
domestic (U.S.) estimate represented by applying 7 percent to 23
percent of social cost of carbon estimates, and (iii) a forest estimate
for the GMUG national forest boundary.
Discussion of these accounting stances is intended to help the
decision maker and the public understand the relative importance of
considering greenhouse gas damages as a global problem, in comparison
to the more traditional domestic benefit cost stance adopted for
regulatory impact analysis and NEPA effects analysis for public land
management decision-making.
Present net value results, which include the social cost of carbon
calculation, estimated under the global view are primarily negative,
with values as low as negative $12 billion in net damages to positive
$1.9 billion in net benefits for Alternative B, compared to Alternative
A. Present net value ranges from negative $6.8 billion to positive $1.3
billion for Alternative C, relative to Alternative A. Midpoint present
net value estimates range from negative $0.8 to negative $3.4 billion
in net damages for Alternatives B and C, compared to Alternative A.
Regulatory Considerations
Regulatory Planning and Review
USDA consulted with the Office of Management and Budget and
determined this proposed rule does not meet the criteria for a
significant regulatory action under Executive Order 12866.
Regulatory Flexibility Act and Consideration of Small Entities
USDA certifies the proposed 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.
Therefore notification to the Small Business Administration's Chief
Council for Advocacy is not required pursuant to Executive Order 13272.
[[Page 72669]]
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 novel legal or policy issues regarding
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 proposed 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 proposed rule
does not prohibit future mineral claims or mineral leasing in areas
otherwise open for such. The rulemaking provides a regulatory mechanism
for consideration of requests for modification of restriction if
adjustments are determined to be necessary in the future.
Federalism
USDA has determined the proposed rule conforms with the Federalism
principles set out in Executive Order 13132 and does not have
Federalism implications. The rulemaking would not impose any new
compliance costs on any State; and the rulemaking 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 proposed 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
USDA analyzed the proposed rule in accordance with the principles
and criteria contained in Executive Order 12630. The Agency determined
the proposed rule does not pose the risk of a taking of private
property.
Civil Justice Reform
USDA reviewed the proposed rule in context of Executive Order
12988. The Agency has not identified any State or local laws or
regulations that are in conflict with this proposed rule or would
impede full implementation of this proposed rule. However, if this
proposed rule were adopted, (1) all State and local laws and
regulations that conflict with this rulemaking or would impede full
implementation of this rulemaking would be preempted; (2) no
retroactive effect would be given to this proposed rule; and (3) this
rulemaking would not require the use of administrative proceedings
before parties could file suit in court.
Tribal Consultation
USDA provided an introductory letter and the Notice of Intent for
the Colorado Roadless Rule and the supplemental draft EIS to the Ute,
Ute Mountain Ute, and Southern Ute Indian Tribes in context of
Executive Order 13175. No specific requests from any tribes were made
for additional information or meetings. No letters from any tribes have
been received concerning the proposed action.
Unfunded Mandates
USDA has assessed the effects of the Colorado Roadless Rule on
State, local, and Tribal governments and the private sector. This
proposed 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 rulemaking 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 proposed 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), and State
petitions for inventoried roadless area management.
For the reasons set forth in the preamble, the Forest Service
proposes to amend part 294 of Title 36 of the Code of Federal
Regulations by reinstating 36 CFR 294.43(c)(1)(ix) to read 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. Amend Sec. 294.43 by revising 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 in 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 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.
* * * * *
Dated: November 6, 2015.
Robert Bonnie,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2015-29592 Filed 11-19-15; 8:45 am]
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