Understanding Permit Use Reviews Authorized in the Explore Act for Forest Service and BLM Permits

From David Brown, Regulatory Consultant to ACCT International

The Explore Act, which was signed into law on January 4, 2025 by President Biden after passing the Senate and House of Representatives with unanimous support, is the most consequential outdoor recreation legislation in recent history.  The legislation’s provisions include advancing outdoor recreation activities on federally managed lands and waters and improving recreation infrastructure, such as deteriorating campgrounds, by encouraging private investment.  One of the most prominent Titles in the bill deals with permitting outfitted activities on Forest Service and Bureau of Land Management (BLM) lands.

For companies with Forest Service and BLM permits, the bill includes important changes that will reduce some of the red tape and unreasonable terms associated with those permits.  For example, some Forest Service regions prohibited the use of exculpatory agreements between customers and recreation service providers that waived claims for the inherent risks associated with outdoor recreation activities.  Explore eliminated federal agency policies that prohibit the use of exculpatory agreements if they do not waive liability for gross negligence.  The bill promotes the adoption of additional categorical exclusions to reduce some of the NEPA analyses associated with issuing outfitter and guide permits.  It prohibits the inclusion of revenues derived from off-forest activities, such as lodging stays on private lands, in the determination of gross receipts, which is used as the basis for fee calculations.

One of the more important sections of the Title on permitting is the provision related to reviews of permitted allocations.  The Forest Service and, to some extent, the BLM routinely review a permit holder's performance and compliance with permit terms.  One aspect of the Forest Service reviews also included readjusting the level of use authorized by the permit to ensure it is being utilized at a reasonable level.  If not, that use is redistributed to others.  In other words, the agencies do not want someone to obtain a permit and then fail to utilize it to deliver the services to the public.  Explore mandates use reviews for the Forest Service and gives BLM the discretion to implement them as well. 

Use-it-or-lose-it requirements for holders of Forest Service special-use permits have been in place since the Forest Service finalized its special-use permitting policies in 1985.  In 2008, the Forest Service made significant changes to that policy, adopting one that authorized reviews of utilization of allocated capacity every five years.  Outfitters with 1,000 visitor-use days or less on their permit were assigned actual use plus 25% up to their original allocated capacity.  Outfitters with more than 1,000 visitor-use days received actual use plus 15% of their allocated capacity.  This policy was invalidated when Explore was signed into law on January 4, 2025.

Bifurcation of the assignment of use by permit size made no sense.  AO pushed to change this illogical requirement since the Go Act was first introduced in 2016.  The use review “directives” finalized in 2008 were not regulation, so the Forest Service was not legally required to execute them.  BLM never adopted this policy and did not have a formal use review policy, although the agency had the authority to terminate permits for non-use.

What Changed with the Explore Act

Use reviews were standardized for the Forest Service and the BLM under Explore.  The Forest Service is legally required to implement use reviews every five years.  BLM “may” implement them, but it is not legally required to do so.   If the BLM does implement use reviews, the agency is required to follow the same process as the Forest Service.  Both agencies are required to assign 125% of the actual use (up to the original allocated capacity in the permit) in the highest year of the five years used for review. 

One caveat: your performance evaluation must be “satisfactory” to qualify for assignment of 125% of actual use.  If you are less than “satisfactory”, your allocation is limited to actual use.  Performance reviews are mandated to be accomplished at least once every two years for 10-year permits and annually for temporary permits.

The policy to assign actual use plus 15% for outfitters with over 1,000 visitor use days was eliminated and replaced by actual plus 25% up to the original allocation.  Furthermore, a visitor use day is defined as a use day, launch, or any other metric used to assign permitted capacity.  There are areas where permits are issued without an assignment of allocated capacity.  Use reviews are not mandated in those circumstances.

Credits for Temporarily Surrendered Capacity

A new provision allows a ½ day credit for declared non-use if the permit administrator approves it, which is supposed to be acknowledged in advance of the surrender.  In other words, a permit holder may inform the agency of their inability to utilize a specific number of visitor-use-days and temporarily surrender that use in advance of the season, receiving a ½-day credit if the resource manager approves it.  Actual use plus the ½ day credit for approved non-use will constitute “actual use” when reviews are conducted. 

Under certain circumstances, such as natural disasters, the agency may provide one visitor-use day credit for each visitor-use day surrendered, provided that such circumstances are acknowledged by the permit administrator in advance.  How these circumstances will be officially acknowledged by the agency will be determined in directives or guidance, which is expected to be issued in the coming months.  For example, will an outfitter who suffers from a debilitating illness for a year or whose facilities are destroyed be allowed to surrender all their days and receive full credit for that year?  How will the impact of drought or fire be recognized? 

Temporary Reassignment of Surrendered Capacity

Explore authorizes the Forest Service and the BLM to temporarily assign surrendered capacity to

• existing or potential service providers, including the authority to temporarily allow capacity above the original allocation on the existing permit;
• organizational camps, single events, single organized group activities under 200 visitor use days, or to non-commercial users where their use is allocated.

Given the legislation’s mandate to increase or promote recreational use among youth and veterans, services to these groups may have priority in the assignment of surrendered capacity where those groups have expressed an interest in unused capacity.

May I Be Assigned Additional Capacity During the Permit Term?

Yes, that appears to be allowed under certain circumstances.  SEC. 317 (c) states: ADDITIONAL CAPACITY.—If unallocated visitor-use days are available, the Secretary concerned may, at any time, amend a special recreation permit to allocate additional visitor-use days to a qualified recreation service provider.  However, this assignment of additional capacity above the original allocation may not be part of the use review process, which limits the assignment of visitor use days to actual plus 25% of actual in the highest of the five years, up to the original allocation. 

When Will These Provisions Take Effect?

The agencies are currently working on directives to implement the provisions in Explore.  While there is no mandated deadline for implementing the use review provisions, other provisions, such as the authorization of a temporary permit, were supposed to be implemented within six months of enactment.