River Management 2000-2005, Wilderness Abandoned Yet Again

2000-2005: THE PARK SERVICE ABANDONS ITS PLAN (ONCE AGAIN) TO PROTECT THE RIVER’S WILDERNESS CHARACTER, PHASE OUT MOTORBOAT USE, AND PREPARE A NEW RIVER MANAGEMENT PLAN

On February 23, 2000 Grand Canyon Superintendent Arnberger announced that the Park Service would immediately cease all work on a revised CRMP. Superintendent Arnberger justified his decision to cease all work on a new CRMP on “the inability to resolve several . . .issues prior to resolution of the park’s Wilderness Recommendation, and lack of available fiscal and human resources to complete a comprehensive planning effort.”

The Park Service took the position that “motor use will continue on the river and user allocation will not change greatly.” On March 6, 2000 the Grand Canyon Private Boaters Association (GCPBA) wrote Superintendent Arnberger expressing their “deep disappointment in and strong disagreement with your decision to abandon the public participation process. The difficulty of decisions to be made should not warrant the abdication of the responsibility to make the decisions.”

After the Park Service refused to prepare a new CRMP, GCPBA and other plaintiffs filed a lawsuit in 2000 to compel preparation of the new CRMP. In 2002, the Park Service settled the case by agreeing to reinstate the CRMP planning process.

On April 5, 2000 the Deputy Wilderness Program Coordinator drafted a memo to Craig Sheldon, Office of Legislative Affairs regarding the authorization for Park Service “potential wilderness.” In the memo, the Park Service explains that “non-conforming uses” are uses that do not comport with wilderness management. Non-conforming uses are “contrary to the definitions of wilderness included within the Wilderness Act.” Such uses are “considered of a temporary nature which, once removed, should not preclude the final designation of the areas as wilderness.” This is why the Park Service’s regulations establishing “potential wilderness generally provide for the conversion of these areas into ‘designated’ wilderness . . . [once] the non-conforming use has been terminated or extinguished through authorized procedures.”

On December 1, 2000 the Park Service adopted Director’s Order 47: Soundscape Preservation and Noise Management.

In 2003, in preparing a new CRMP, the Park Service stated that “the continued use of [motorized] equipment within [the Colorado River corridor] violate[s] the letter and intent of the Wilderness Act and NPS management policies and director’s orders addressing wilderness.”

In preparing a new CRMP, the Park Service noted that “the cumulative impacts of related actions may result in impairment to resources even though the effects associated with a single event might not constitute impairment.” and the Park Service noted that “[n]early 11,000 commercial passengers currently put-in or take-out at the Whitmore helipad (mile 187) via helicopter shuttles from the rim.”

In preparing a new CRMP, the Park Service notes that helicopter passenger exchanges at Whitmore, by themselves, severely impact the River’s wilderness character and create “dramatic contrast” to the river-running experience. The adverse impacts from helicopters include noise, physical impacts (downwash from rotors blows sand and gear), visual impacts, congestion, safety risks from low flying aircraft, camp competition for sites near the helipad, and creation of an artificial end to the trip.

In the Quartermaster area (between Diamond Creek and Lake Mead) “approximately 600 to 800 helicopter flights per week land and take off at 15 helipads.”

In preparing a new CRMP, the Park Service notes that they have huge cumulative effects from such things as Glen Canyon Dam and overflights, for example, that when you add such cumulative effects to the impacts of the CRMP actions all the alternatives end up with the same overall impact (i.e., major).”

In preparing a new CRMP, the Park Service noted, in a February 17, 2003 memo that the “NPS has no current authority to allow motorized equipment use within the Colorado River corridor except that which is might be ‘necessary to meet minimum requirements of the administration of the area for the purpose of [the Wilderness Act]. By any measure, the current concession operations using motorized equipment exceeds that which is needed to meet established ‘minimum requirement’ tests. The continued use of this equipment within wilderness violated the letter and intent of the Wilderness Act and NPS management policies and director’s orders addressing wilderness.”

The Park Service also noted in the February 17, 2003 memo that section 4 (d)(1) of the Wilderness Act does not apply to the Secretary of Interior. The Park Service states that it “would be a major tactical mistake on the part of the NPS to attempt to adopt any of the section 4 (d) language and apply it to the Colorado River Management Plan without stating that the Congress would need to provide specific authority to do so.”

In preparing a new CRMP, the Park Service states that the “[s]econd to last sentence of the response should be rewritten to read ‘ . . .the determination presented in the EIS (impairment) . . .is expected to occur from motorized recreation under any of the alternatives.’ My point is that I would like to see this response rewritten to better clarify the limited scope of the impairment determination in the CRMP, and to not have a great influence (or precedent) on future aircraft use planning documents and potential impairment determinations.”

In preparing a new CRMP, the Park Service notes in terms of wilderness impacts, the Park Service can consider “Wilderness Act provisions/goals, Opportunities for solitude, Lack of motors, Zoning - bottlenecks/attraction sites, Generators – including blowers, blenders, Power Point presentations, ice cream makers, stereos. . ." and the Park Service notes that “I spoke with Laurie Domler regarding the question of whether or not Wilderness Character should be an impact topic . . . . The answer is Yes. . . .at one time prepared [a] wilderness affected environment section . .It was incorporated into Chapter 1. Politics got the best of us?”

In preparing the new CRMP, the Deputy Wilderness Program Coordinator wrote: “The NPS has no current authority to allow motorized equipment use within the Colorado River Corridor except that which might be “necessary to meet minimum requirements of the administration of the area for the purpose of [the Wilderness Act].” By any measure, the current concession operations using motorized equipment exceeds that which is needed to meet established “minimum requirement” tests. The continued use of this equipment within wilderness violated the letter and inten[t] of the Wilderness Act and NPS management policies and director’s orders addressing wilderness.”

The Park Service has stated that it must address “[h]ow ‘necessary and appropriate’ is the current concession allocation level” and the “National Park Service preference for motorized concession operations.”

In its internal planning document for the CRMP, the Park Service determined it needed information on the “relative demand for motor trips vs. oar trips” and “relative demand for different types of use over different seasons within the year (i.e. commercial, noncommercial, educational, research, etc.).”

The Park Service stated that the “primary user group that most needs access, and constitutes a broader range of economic levels, is the private [public] user.”

Members of the public who have the financial means and inclination to gain river access by paying for a private commercial trip are assured a trip down the river. Commercial trips are priced to keep demand below supply, the [split allocation commercial] access system favors the affluent), and a commercial user can generally go in the summer she chooses).

Public comments demonstrate that people take commercial trips down the river because they cannot gain access through the noncommercial permit system: (“At present, some companies allow clients to bring their rafts or kayaks; however they do not allow passengers on these boats and do not allow non-owners to paddle kayaks. However, there is a definite demand for these services within the paddling community. For instance, A[merican] W[hitewater]’s President Barry Tuscano, as well as other board members, have hired commercial outfitters to let them tag along in their personal kayaks or rafts since they could not get a private boater permit.”); (“I would like to let you know that I signed up with a rather expensive outfitter so I would be able to get to paddle the Colorado River through the Grand Canyon. I feel that the commercial outfitter is my only chance to get to run the river while I am still young enough to paddle it. I believe there ought to be many more opportunities for private boaters than the current system allows.”); (“I have pretty much written it off as impossible due to the 10 year waiting list to get in unless you pay thousands of dollars to a guide company.”); (“This summer I organized a group of 21 canoeists and 3 kayakers on a commercial raft supported trip paddling the Grand Canyon. It is my second such trip, the last being 1999. I had to wait 3 years to get this commercial trip organized. I have been on the private trip waiting list since 1999. If it goes as it has been, it looks like I’ll be 65 before I can organize a trip of my choosing down the canyon.”); (“Eliminate commercial outfitters offering ‘kayak support trips.’ Kayakers have a huge and unfair loophole in the system. They are literally buying private access to run their own boats. If kayakers can do this, why can’t rafters buy ‘rafting support trips?’”); (“I’ve twice payed to kayak this river – I hope to have my waiting list number come up before I’m too old to paddle – or I die while waiting!”); (“With commercial companies, we didn’t have to wait for years for a permit.”).

Many members of the public would like a chance to take a noncommercial trip down the Colorado River through the Grand Canyon and because of the preference given to commercial users, they fear that they will never have the opportunity.

The Park Service received many comments about the inequity in access for the public and the impairment of their experience when motorized boats are in the Grand Canyon.

THE 2005 CRMP, FEIS, AND RECORD OF DECISION The Final Environmental Impact Statement (“FEIS”)

In November, 2005 the Park Service released a Final Environmental Impact Statement (“FEIS”) for a new Colorado River Management Plan (“CRMP”). In the FEIS, the Park Service states that the cumulative effects of the management of backcountry toilets, trails and facilities . . .would have adverse, localized, short term, year-round impacts on wilderness character.”

In the FEIS, the Park Service states that cumulative impacts are “described for each alternative for natural and cultural resources and visitor use and experience.” The FEIS includes two non-motorized alternatives, and states that “[m]otorboat use introduces contaminants such as hydrocarbons and burned and unburned fuel and motor oil” to the Colorado River corridor.

The Park Service’s “wilderness character” section of the FEIS was not included in the draft EIS (“DEIS”) which was submitted and circulated for public review and comment.

The wilderness section of the FEIS was only added “[i]n response to comment” on the DEIS. In the FEIS, the Park Service commits to managing the Colorado River corridor “as potential wilderness in accordance with NPS Management Policies.”

In the FEIS, the Park Service determined that its continued authorization of motorboats, generators, and helicopter passenger exchanges in the Colorado River corridor does not “result in the impairment of the [Grand Canyon’s ] natural soundscape.” and states that “motorized raft use” is a “temporary, non-conforming or incompatible use.”

The FEIS states, the “Colorado River was identified as potential wilderness due to the existing motorized raft use.” and the Park Service finds that the “Grand Canyon’s natural soundscape is considered a disappearing resource that requires restoration, protection, and preservation.”

In the FEIS, the Park Service admits that there continues to be a “significant adverse effect” on the Grand Canyon’s “natural soundscape” that will not be alleviated by its decision to authorize motorboats, generators, and helicopters in the Colorado River corridor.

The Park Service’s own “criteria” for defining impairment is an action that causes an “unacceptable [noise] disturbance” or results “in sound pollution that intrudes upon the tranquility and peace of visitors” results in impairment.

In the FEIS, the Park Service states that “no impairment of park resources or values is expected to occur from activities associated with river recreation under any of the alternatives.” The natural sounds of the Grand Canyon are considered to be “an inherent component of the scenery, natural and historic properties, wildlands, and recommended wilderness that constitute the bulk of the park (94%)” and a “key component of the wilderness river experience.”

In the FEIS, the Park Service provides a partial list of actions that may cumulatively impact the Grand Canyon’s natural soundscape, and the Park Service concedes that its authorization of motorboats will “contribute to the overall cumulative effects of noise on the park’s natural soundscape.”

In the FEIS, the Park Service acknowledges that noise intrusions to the natural soundscape of the Park are “adverse, localized, and regional” and that, when viewed in combination with other sources of noise intrusions (i.e., aircraft overflights) would be a “significant adverse effect” on the Colorado River corridor’s natural soundscape.”

In the FEIS, the Park Service concedes that “impacts to wilderness character . . . will be detectable and measurable during most of the year, but more apparent during the higher mixed-use period, at the frequently visited areas and passenger exchange points along the river corridor.” and the Park Service states that “[f]or visitors seeking outstanding opportunities for solitude or a primitive and unconfined type of experience [i..e, a wilderness experience], the impacts would be adverse and of moderate intensity during the peak use motorized periods.”

In the FEIS, the Park Service justifies its decision to authorize motorized use of the Colorado River corridor by stating that such uses are only a “temporary or transient” disturbance of wilderness and are “established uses” pursuant to § 4 (d)(1) of the Wilderness Act that do not preclude wilderness designation.

In the FEIS, the Park Service failed to analyze and consider the overall, combined effects from all noise intrusions on the Park’s natural soundscape, and the Park Service never assessed how its authorization of motorboats, generators, and helicopter exchanges in relation to other past, present, or future actions occurring in, above, or adjacent to the Colorado River corridor impair the Park’s natural soundscape.

In the FEIS, the Park Service defines the term “wilderness character.” Wilderness,“in contrast with those areas where man and his works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” Wilderness areas are undeveloped lands that retain their “primeval character [and] influence with permanent improvements or human habitation . . .[g]enerally appear to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable” and provide “outstanding opportunities for solitude or a primitive and unconfined type of recreation.”

In the FEIS, the Park Service states that the baseline condition upon which impacts are to be measured, is the natural sound of the Colorado River corridor in the absence of human-caused noise, i.e., the flowing water and rapids of the River, wind, storm activity, wildlife activity, and other natural sound generation such as rock and mud slides.

In the FEIS, when evaluating the impairment to the Grand Canyon’s natural soundscape in this case, the Park Service failed to apply the proper natural ambient sound level or baseline standard.

The FEIS states that “the service provided by commercial concessioners, which enable thousands of people to experience the river in a relatively primitive and unconfined manner and setting (when many of them otherwise would be unable to do so), are necessary to realize the recreational and other wilderness purposes of the park.”

The FEIS states that “since visitors who wish to raft on the Colorado River through the Grand Canyon possess neither the equipment nor the skill to successfully navigate the rapids and other hazards of the river, the [Park Service] has determined that it is necessary and appropriate for the public use and enjoyment of the park to provide for experienced and professional river guides who can provide such skills and equipment.”

In the FEIS, the Park Service measured its authorization of motorized activities against “natural ambient sound levels . . . in the presence of audible human-caused noise including aircraft overflights.”

In the FEIS, the Park Service notes that “[a]ircraft overflights have an adverse, long-term, major cumulative effect on the park’s natural soundscape. Even if all river-related noise was removed from the park, the park would still experience adverse, major effects from aircraft overflights independent of [the] river management plan.” In 2007, the Park Service estimates that over 24,000 people will use the Colorado River corridor.

The Park Service has stated that commercial motorized uses of the Colorado River are not necessary for the public to realize the recreational or other wilderness purposes of the park. Even for special needs groups, the Park Service has found, since at least the late 1970s, that “[o]ar-powered rafts [ ] provide safe trips for aged, handicapped, and young people.”

Eliminating motorized trips would not sharply reduce recreational opportunity and use, and evidence in the record shows that commercial motorized uses of the Colorado River are not necessary for the public to realize the recreational or other wilderness purposes of the park.

Even for administrative resource trips, Park Service experts have said that motorized boats are unnecessary: “There is no reason to use motors, other tha[n] to placate the motor heads.”

Park studies have demonstrated that most people prefer smaller groups on the river and when commercial passengers took an experimental combination “motor-oar” trip, “92% reported that oar trips better enabled them to ‘experience the Grand Canyon environment.’”

In the FEIS, the Park Service never links the amount of commercial services authorized with a finding that the amount is essential. The Park Service failed to identify in the ROD or FEIS any specific amount of commercial services that meet its finding of “necessary and appropriate” commercial services. The only specific discussion of the necessity or propriety of commercial services is found on three pages of the FEIS. This discussion was not included in the DEIS.

The FEIS’s analysis of the allocation system does not account for what level of commercial services are necessary and appropriate. User-days and numbers of passengers are a function of the launches per day, group sizes and trip lengths. The FEIS caps commercial user-days at 115,500, finding that approximately 17,606 passengers will take a commercial trip annually, but allows for an increase in commercial motorized use.

One way in which the Park Service provides greater commercial access is by allowing 32 people on each commercial trip during the summer season and 24 people during the shoulder season, in contrast to 8 and 16 people for noncommercial trips. Motorized trips make up roughly 75 percent of the allocated commercial use.

In the FEIS, the Park Service’s methodology for estimating use levels for all of its alternatives was premised upon actual launch data between 1998 and 2003. The range of alternatives was developed by setting separate limits for the different variables (such as launches per day, group size limits, trip length) for each type of trip. The Park Service does not disclose how it arrived at these separate limits.

The Park Service never factored into its analysis the relative demand for commercial and noncommercial trips and methods for fairly allocating use between those two user groups. (“because we do not have and cannot obtain concrete data on relative demand from user groups, we can expect a lawsuit both if we change and if we do not change the allocations.”); (speculating that it would cost the Park around $2.5 million to conduct a demand study).

How to fairly allocate use between commercial and noncommercial users was one of the primary issues raised during public scoping for the CRMP. The FEIS does not cap noncommercial user days, but estimates they will reach 113,486 per year for an estimated 7,051 passengers. These estimates are based upon allocating noncommercial use primarily in the less-preferred winter season and in the shoulder seasons of spring and fall and by reducing the trip length for noncommercial oar-powered trips in order to increase the number of launches. (summer is preferred and winter is not).

All commercial users will be able to take their river trips in the summer and shoulder seasons, but over one-quarter of the annual noncommercial users will be forced to take a winter trip in order to float the river. In the past, only an average 318 noncommercial passengers per year have run the river in the winter. The Park Service estimates that 1,855 noncommercial passengers will now want to run the river in the winter.

For summer trips, the FEIS estimates that an additional 387 noncommercial passengers will be able to run the river. However, the majority of the theoretical increase in noncommercial passengers comes in the winter with an estimated 1,537 additional passengers and in the shoulder season with an estimated 1,556 additional passengers. Thus, nearly 89 percent of the estimated increase in noncommercial passengers annually is allocated to the winter and shoulder seasons, while the commercial users maintain the majority of their allocation in the summer (91,909 of 115,500 commercial user days in summer season).

The FEIS’s discussions of alternatives and carrying capacity do not address what level of commercial services are necessary and appropriate. The Park Service limits and allocates use in a split allocation system between commercial and noncommercial user groups, providing the majority of the allocated use to motorized commercial use. Commercial outfitters do not always launch the maximum number of trips allowed per day, do not always launch at the maximum group size and do not always take the maximum trip length. Other evidence also supports the fact that a commercial passenger can generally take a trip in the year she wants.

There is no evidence in the FEIS that commercial river runners have had to wait to obtain access through the concessioners’ user days.

Commercial river travelers are a select group with high incomes and educational levels. A commercial motorized trip down the river costs approximately $300 per day. Studies show that “[f]orty seven percent of commercial passengers have a household income over $100,000 while only 12% of the national population have a household income over $100,000. The household income of self-guided boaters i[s] very close to the national average.”

Members of the public who are not already on the noncommercial waitlist and who cannot afford to pay a commercial outfitter and/or do not wish to take a commercial trip, have no guarantee they will be able to take a trip down the Colorado River, ever. (the new permit system would favor those who have been unsuccessful in obtaining a permit in prior years, but does not guarantee a permit); (noncommercial demand has exceeded supply of permits since 1973); (“Based on the exponential growth of the waitlist, demand undeniably exceeds supply.”)

Under the old permit system, a member of the public (a trip leader) would wait between 10 and 20 years to obtain a permit to take a noncommercial trip down the river. At the time of the FEIS, there were approximately 8,000 trip leaders on this list who were waiting to obtain a permit, and roughly 1000 new applicants each year. Based on an average group size of 13, these 8,000 trip leaders represent approximately 104,000 members of the public who would go down the river on permits for noncommercial trips.

Under the new system, the Park Service estimates that over half of the waitlist applicants will receive a launch date within ten years and in twenty years, the majority of the waitlist will have successfully obtained a launch date. The FEIS finds that “noncommercial groups generally believe their proportion of the overall allocation is unfairly small,” while “[c]ommercial users generally believe their allocation is either appropriate, somewhat below where it should be, or slightly higher than it needs to be.”

Record of Decision

On February 17, 2006 the Park Service signed its Record of Decision (ROD) for the CRMP adopting the preferred alternatives in the FEIS – Modified Alternative H for the Lees Ferry to Diamond Creek or “Upper Gorge” segment of the Colorado River corridor and Modified Alternative 4 for the Lower Gorge segment of the Colorado River corridor.

The ROD authorizes the use of motorboats, helicopter passenger exchanges, and generators in the Grand Canyon’s Colorado River corridor, a potential wilderness area, and allows motorized use of the Colorado River corridor during the popular summer season (over 5 ½ months), helicopter passenger exchanges, and an increase in the maximum number of annual users of the Colorado River.

Pursuant to the ROD, commercial motorized use of the Colorado River corridor will increase, and commercial users will be able to take their river trips in the summer and shoulder seasons, but over one-quarter of the noncommercial users will be forced to take a winter trip in order to float the Colorado River in the Grand Canyon.

The ROD allows motorized use of the Colorado River from April 1 until September 15 and creates a non-motorized window from September 16 until March 31.

The ROD allows for an increase in the estimated yearly passengers on the Colorado River to totals of 24,657. Before the 2006 ROD, an average of 18,891 commercial passengers took trips down the river annually, while 3,570 noncommercial passengers took trips. Commercial use was capped at 115,500 user-days and noncommercial use was capped at 54,450 user days annually. Of the commercial passengers, 14,487 took motorized trips, accounting for 74,260 user-days.

Pursuant to the ROD and CRMP, the public gains access to travel down the river by either: (1) applying for a noncommercial permit through the lottery system and coordinating a public river trip; or (2) paying a commercial concessioner, which already has guaranteed allocated use of the river, to take people on a commercial trip down the river via motorized or non-motorized raft. Pursuant to the ROD, the number of total launches per day in the summer season would be decreased from nine to the current average of six. Commercial motor trip and oar trip group sizes would be decreased from the maximum of 42 to the current average of 32 people in the summer and 24 people during other times. Noncommercial trip group sizes would remain at 16 people for a standard trip and a new small group size of 8 was also added to reduce campsite competition along the river.

Pursuant to the ROD, even though the maximum number of river trips at one time would be reduced from 70 to 60 trips and the maximum number of people at one time would be reduced from 1,095 to 985, commercial motorized use is expected to increase to an estimated 76,913 user days.

The ROD eliminates the waiting list for noncommercial permits and replaces it with a weighted lottery system. Under the new system, trip leaders on the old waitlist would obtain launch dates within 10 to 20 years. The CRMP allows all recreational passengers to take one trip per year. The hybrid weighted lottery system for noncommercial use gives preference to those who have not taken a river trip in the last four years.

The ROD contends that the CRMP FEIS analyzed the types and level of commercial services that are necessary and appropriate for the Colorado River through the Park. In the ROD, the Park Service claims that noncommercial use will increase under the revised CRMP, but that claim is based primarily on the Park Service’s assumption that noncommercial river users will want to float the Colorado River in the winter season in greater numbers than they do today.

The ROD allocates roughly 60% of the user days for summer and shoulder river trip seasons to commercial concessionaires. This means that during the preferred summer and shoulder river trip seasons, roughly 77% of recreational river users will be paying, commercial users and roughly 23% of recreational river users will be noncommercial. During the winter, no commercial users will be on the river, but according to the Park Service, 1,855 noncommercial river runners may take a winter trip each year, even though in the past only approximately 318 people have done so. If any user wants to float the Grand Canyon without the noise and distraction of motorboats, they will be forced to do so in the winter season.

The ROD and FEIS do not base its allocation between commercial and noncommercial users on the best available information regarding river use and demand. The CRMP and ROD’s apportionment of use is inequitable in terms of overall use, group size and timing of use. The ROD allows helicopter exchanges at Whitmore to accommodate commercial river trips. An estimated 3,635 commercial passengers will be transported by helicopter to Whitmore to begin their river trips. An estimated 5,715 commercial passengers will be transported by helicopter at the end of their river trips at Whitmore.

The ROD authorizes the use of generators in the Colorado River corridor for “emergency situation and inflating rafts” and “other purposes.”

In the ROD, the Park Service states that “[i]mpacts to the natural conditions (except soundscape) and undeveloped character will be of minor intensity.” In the ROD, the Park Service states that “[f]or visitors seeking outstanding opportunities for solitude or a primitive and unconfined type of experience, the impacts will be adverse and of moderate intensity during the peak-use motorized periods, with beneficial and negligible impacts during the longer nonmotorized use period with smaller group size.”

In the ROD, the Park Service states that no impairment or derogation to the Grand Canyon’s resources or values is allowed.

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