Friends,
Trail and ultrarunning needs you.
I get it. Someone sounds the alarm, and you immediately start questioning if there is really a reason to worry. We live in a society where unless something is directly affecting you, in your face, the chances of you giving a sh*t is minimal. This is one of those instances where if you don’t care, if you don’t let your voice be heard in the here and now (at least by June 20, 2023) than this issue will not only be in your face but has the potential to smack the entire sport of trail and ultramarathon running in the mouth.
I have the privilege of serving on several committees: on municipal (local), regional, and national levels. Each of these committees focuses on public land usage, conservation, and habitat considerations all in unison. Today was the first time that I have ever been joined by another race director, or individual with “skin in the game,” in being an active participant in these initiatives. That’s not to say it isn’t happening elsewhere, it is to say that in general trail runners and race directors do not have the best “Give A Sh*t” track record when it comes to pulling a seat up to the table.
My hope is that by presenting this issue to you and providing you with an opportunity to discover more on your own, that you might provide your voice to this issue to save trail and ultrarunning from the potential harmful effects of this proposed rule.
If you don’t have time to read this post but have time to listen to a podcast on this issue, please do check out the HPRS Podcast Episode #34.
For starters, I would ask that you try and check out:
The America the Beautiful Initiative (May 2021)
or The White House’s Announcement of America the Beautiful (May 2021)
and USDA Equity Action Plan (February 2022)
Now to the meat and potatoes.
One of the organizations I have had the privilege to assist as a member of their policy committee is the Coalition for Outdoor Access (COA). COA has been working diligently (for many years) to introduce legislation into congress called the SOAR Act. S.O.A.R. stands for Simplifying Outdoor Access for Recreation. You can read more about the SOAR Act HERE. You can read the US Senate’s actual language of the bill HERE.
IN SHORT: The SOAR Act bill sets forth and revises provisions regarding special recreation permits for use by individuals and groups to engage in recreational activities on federal recreational lands and waters. It seeks to improve the permitting process for outfitters, guides, and other outdoor leaders on public lands.
BILL HIGHLIGHTS:
- Reauthorizes outfitter and guide permitting authority for the Forest Service, the BLM, and brings the Fish and Wildlife Service and the Bureau of Reclamation under FLREA so those agencies can keep permit fees;
- Authorizes agencies to issue one permit when a trip crosses multiple agency boundary, an authorization that includes NPS Commercial Use Authorizations and other agency permits;
- Reauthorizes permit fees and allows use for permit administration and simplifying processes as well as for previously authorized purposes;
- Eliminates fees based on goods and services delivered and consumed off federal lands and authorizes a flat, per person fee to simplify permit calculations;
- Authorizes temporary permits to help facilitate access for new uses and provides for conversion to long term permits when appropriate (does not require conversion);
- Sets important deadlines for simplifying and revising permitting processes and regulations, a goal the Forest Service adopted internally but has never been able to deliver on;
- Provides more flexibility for use of permitted capacity by qualified service providers;
- Reforms cost recovery in the Forest Service and the BLM by giving a 50-hour credit for each permit when a group of permits is renewed and provides exceptions to the cost recovery requirement, a practice that the agencies have adopted although it is not authorized in their regulations;
- Prohibits the use of waivers for gross negligence, requires indemnification of agencies by permit holders and allows waivers for ordinary negligence.
(From: https://www.americaoutdoors.org/soar-act-summary/)
After this bill was introduced in the US Senate, and after the US Congress has introduced its own similar version of the bill and now passed through committee, the United States Forest Service chimed in at the 11th hours with a proposal of their own.
In March of this year, the USFS issued a proposed rule governing special uses cost recovery. You can read the full text of their proposed rules by clicking HERE. (If you click on any of the links in this article, please let is be these two.)
Here is the summary of the USFS proposal:
“The Forest Service (Forest Service or Agency), United States Department of Agriculture, is proposing to amend its special use regulations to update the processing and monitoring fee schedules based on current Agency costs; to provide for recovery of costs associated with processing special use proposals, as well as applications; and to remove the exemption for commercial recreation special use applications and authorizations that involve 50 hours or less to process or monitor. In addition, the Forest Service is proposing to amend its special use regulations to increase the strict liability limit consistent with the strict liability limit established by the United States Department of the Interior, Bureau of Land Management, and to expressly provide for requiring holders of a special use authorization to obtain insurance, as needed.”
(From: https://www.federalregister.gov/documents/2023/03/09/2023-04180/land-uses-special-uses-cost-recovery-strict-liability-limit-and-insurance)
What is the 50-Hour Exemption?
Currently no fee is charged for any permit that takes a USFS employee less than 50-Hours to process or monitor. This does not mean that permits are free, it is to say that if it takes less than 50 hours to process and monitor a permit then no administrative fee is applied to the overall cost of a permit.
Typically, trail and ultramarathon running events qualify under the 50-Hour Exemption. The USFS has proposed getting rid of the 50-Hour Exemption and instead charge fees for the application, processing and monitoring of ALL permits regardless of however many hours is takes for them to process and monitor. This means that anyone with so much as a proposal for an event, will now be charged by the USFS for even having a conversation about the possibility of a permit.
The USFS proposal does not identify how many hours it typically takes a USFS employee to process and/or monitor permits. At this time, their proposal is completely arbitrary in nature, and no one knows how much these fees should or could be. However, we can expect that the addition of this fee would subsequently double the fees many of us currently pay for a race permit. It would also discourage new race directors from exploring the opportunity for obtaining a permit for new events, as the myriad of unknowns when planning a trail event would affect the reality of someone being willing to pay to have a conversation without knowing if a permit would indeed be possible or not.
Don’t races already need to be insured as a condition of your permits?
Yes. It is indeed a condition of our permits that we ourselves be insured, and that we add the USDA United States Forest Service (Enter Ranger District) as an additionally insured to our policy.
This is a no-brainer and changes nothing regarding what we already are required to do for a permit. This proposal ensures that the insurance policy requirements are the same across all federal land managers.
What do permits currently cost for trail running events?
It Depends…
Generally, it is 3-5% of an event’s gross revenue. Now don’t get all crazy thinking that “Gross Revenue” is revenue minus the cost of shirts, food, porta potties, other permits, etc. That’s not what “Gross Revenue” means to the USFS. To them it means revenue minus the cost of awards and prize monies. That’s it.
Now.. some of our permitting rangers understand their own rules to state that if you have only one (1) permit within a specific ranger district, that permit will cost 5% of your gross revenue. If you have more than one permit (2+) within a specific ranger district, both of those permits will cost 3% of your gross revenue.
Other permitting rangers view the rule to state that if you have more than one (2+) permit within ANY number of USFS ranger districts, than each of your permit’s cost 3% of your gross revenue.
If you have a one-year or year-to-year permit, it is typically 5% of your gross revenue. If you obtain “The White Whale” of permits with the USFS, which is a multi-year permit (for 3, 5, or 10 years) than your fee drops to 3% of your gross revenue.
I mention all of the above because it highlights that not all rangers interpret the current permitting rules of the USDA-USFS in the same way. These new proposed rules only opens the door to even more arbitrary interpretations, by ranger and/or by district, of the rules.
So, let’s use round numbers to answer the question. If my race’s gross revenue is $8,500 and is one of many permits within the same district, my permit at current costs $255.
Let’s be honest and fair, that’s not a lot of money for a permit and I’m willing to guess many of you assumed it was a lot more considering some of the entry fees that are out there. Please note that for a race like our Indian Creek Fifties, we acquire 5 permits/permissions from 5 different land managers and they all have their fists in the coffers. Some charge us for permits, some don’t. Permitting in general is not one size fits all, but as far as the USFS permits go this is indeed how it has historically been handled.
What would a permit cost under the new USFS Proposal?
No one knows.
I wish that wasn’t the actual answer but, that is the answer at this time. The new rule proposal from the USFS tries to speak on how much a permit would ultimately cost but there are barriers that prevent us from having a full understanding:
Only the USFS knows how long it takes a ranger to review and process a permit.
Only the USFS knows how long it takes a ranger to monitor events like ours; in some cases, rangers attend a race and are present for much if not the entire day. In other cases, rangers never come out at all. In the events that I have directed, I have seen a ranger come and monitor our events (for varying lengths of time) maybe half of the time if not less.
Again, arbitrary in nature and leaves a lot up to ranger discretion. Hard to know how much we’ll be charged if we don’t know the standard that will be followed for monitoring. I would suspect that most race directors would feel that if we’re paying for it we’ll want it to be a guarantee that they’ll come out.
No one knows what the new administrative fee will be for the processing and monitoring of permits. However, when you only pay $255 for a permit at present, it’s easy to see how a new administrative fee would likely double our permit fees overnight, right out of the gate, not including the new cost recovery payments.
Then we must look to the bill. From my best estimation, trail and ultrarunning events fall under Category 2 of their proposed fee schedule, which means our permits would now cost $1,019 in ADDITION to the administrative fee, and in addition to the percentage of our gross revenue.
If I go back to my example of a race with gross revenue of $8,500 where it is one of multiple permits within a specific ranger district, the cost of our permit would increase from $255 to $1,274 not including any additional administrative fee(s).
THIS WOULD BE A 400% INCREASE FOR PERMITS!
How will this ultimately affect trail and ultrarunning events?
Guess who pays for the increase in permit fees? The runner does.
At current, if my permit costs $255 and I had 100 runners in the event, your share of the permit costs is $2.55
Under the new rules (not knowing the initial admin fees) expecting that our permits costs will increase 400%, your share would be $12.74, which is also a 400% increase.
Keep in mind that the current calculation of permit fees depends entirely on gross revenue. The USFS proposal now includes the number of hours required to discuss, process, administer, and monitor a permit. This means that if you direct a race that sees only 50 runners show up; naturally your gross revenue depends on your entry fees, but that $1,019 fee imposed by the USFS is static, it does not change. It would theoretically always be the same, and always be there.
Let’s use my same race example and cut the numbers in half, from 100 to 50 runners. Let’s also cut gross revenue in half as that makes sense.
3% of $4,250 = $127.50
+ $1,019 = $1,146.50
divided by 50 runners = $22.93 (The runner’s share).
I don’t think it would be hard to see how this could dramatically affect entry fees for races, especially where race directors don’t always know how many runners are going to sign up each year. One year it’s feast, another year it’s famine (as far as registration numbers go). As business owners (which we all are) we’ll need to proactively consider how much we need to increase our entry fees to cover these new costs regardless of how many runners enter the event.
On top of that, some race directors treat entry fees much like a mechanic would treat parts. Sure, you can buy a new pair of wiper blades and put them on your vehicle yourself for $35-$45. A mechanic is going to add an “up-charge” to the cost of the parts, and then you’re paying for labor on top of that. Wipers through the mechanic could cost you $70-$90. Some race directors operated the same way. If they can theorize that the new permit structure will cost an additional $20 per runner, they’ll ultimately charge you $40 for it.
Look, this isn’t to denigrate anyone. Reality has shown us that some race directors have used Covid and inflation as rationale for “jacking” their entry fees from year to year. Just like some race directors significantly raise their entry fees once they become a Western States or Hardrock qualifier. To them, it’s business. They charge what they charge because you’ve indicated you’ll pay it.
Ultimately this adds an additional barrier towards equity in our sport. There are many runners who view cost of entry as a barrier to participating in trail and ultrarunning events. There is no question in my mind that the new USFS proposal will crush the idea of equity in our sport and set many of us who have been attempting to craft a more inclusive and accessible sport back YEARS.
Furthermore, a lot of races will disappear. The biggest impact will affect those smaller mom-and-pop type races without a lot of working revenue to cover the costs of these permit fees. If you have a race that doesn’t generate a lot of revenue to begin with, or your profit margin is already slim, suddenly the idea of losing money on a race is less romantic. Most trail and ultra-running events average 100-250 runners; some of that is by design, some of that is based on what the resource can handle (the number of people the USFS will allow you to have in your race. Think Western States 100 who is capped at 364 runners or something like that). This type of new fee structure will significantly impact our sport by either forcing races to close shop or will force many race directors to significantly increase entry fees to cover the cost.
Honestly, the trail running events that gather the most runners together will maneuver these new rules the best whereas they tend to have more capital to work with. If you’re a series like HPRS where while we have 12 events, we average ~150 runners per event, this could honestly crush us if we don’t raise our fees significantly. The way we operate, and always have, serves as an incredible disservice to us in this case and will significantly alter the way we conduct business. We’re not alone in our space.
So what now?
Look. We LOVE the USFS and many of the employees we have been fortunate to form a relationship with over the years. They’re good people.
The USFS has been routinely understaffed and underfunded for far too long. Since congress seemingly won’t help them out by injecting additional funding into the USDA as a way to provide them the tools they need for permitting; it instead falls on our shoulders. And we get it… $255 is not a ton of money for a permit, and I don’t think you need to be a rocket scientist to imagine that $255 does not cover the cost of administering the permit.
The issue here is that the new proposal is not well thought out or laid out. It is arbitrary in nature. There is an insane number of unknowns, and it leaves the door open to more arbitrary interpretations of the rules. It’s dangerous and irresponsible.
This new rule proposal also doesn’t address the USFS’s plan (or lack thereof) for improved communication and customer service, clarifying for all how much a permit should cost (present and future), nor does it discuss how much time it takes a ranger to do the things they’re requesting we pay for.
We’re not asking you to write the USFS and tell them to pound sand. That isn’t going to help anyone.
We ARE asking you to write them asking them to deliberately and as detailed as humanly possible, clarify the fee structure. How much time does it indeed take to review a permit, to administer the permit, to monitor a permitee, and to send a bill.
We’re asking you to write the USFS asking them to clean up the permitting process as discussed within the SOAR act, and to make this a priority first. If the permitting process can be modernized and streamlined, they would take a USFS employee less time to review, process, and administer.
We’re asking you to write the USFS to tell them how their new proposal would affect you as a user of public lands. How this new rule would affect your wallet and equitability of racing. How this new proposal creates a barrier for your continued ability to participate in guided public land experiences.
We’re asking you to write your congressperson to implore them to pay attention to both the SOAR act, and this new proposed USFS cost recovery rule; and to ask your congressperson to consider injecting needed funding to the USFS, and to continue to work on passing the SOAR act.
The information on the USFS/USDA website states that comments will be accepted until May 8th. The comment period was extended to June 20th. If you have anything to say DO IT NOW. If nothing else, share this with any race director you know who hosts a race on USFS lands, as a staggering number of RDs have no idea this is even happening. Help us by spreading the word.