PL 105-57 Questions and Answers
Question: How will the amendments to the Refuge Administration Act improve the System?
Answer: The Act improves the System by putting into law that the mission of the System is wildlife conservation. It also provides direction and procedures for making determinations regarding wildlife conservation and public uses of the System and individual refuges. Many reports over the past two decades have focused on the lack of a unifying mission and management procedures as reasons why the System has not always been managed as a system and why numerous incompatible uses were tolerated on refuges.
This Act provides a solid foundation for management of the System, including many of the tenets that refuge managers have relied upon to ensure that wildlife is first on National Wildlife Refuges. By making these tenets law, the Act promises to minimize their misinterpretation through changes in the political climate. The Act intends to ensure that National Wildlife Refuges are managed for wildlife first.
Question: What direction do the amendments to the Administration Act give regarding uses of the Refuge System?
Answer: The legislation tells us that the primary use of refuges is to fulfill the mission of the System as well as the purposes for the individual refuges. The legislation identifies wildlife dependent recreational uses including hunting, fishing, wildlife observation and photography, or environmental education and interpretation as the priority general public uses of the System. The legislation establishes these wildlife-dependent recreational uses as "legitimate and appropriate" public uses of the Refuge System where they are compatible with the Refuge System mission and the purposes of individual refuges. Quoting the Committee Report: "Because priority uses like hunting, fishing, wildlife observation and environmental education are dependent upon healthy wildlife populations, they are directly related to the mission of the System and the purposes of many refuges. If our refuges and the Refuge System are managed well, then these priority uses will, in turn, prosper into the future." It states that these uses should receive priority consideration over other public uses in planning and management within the System. It also states that these priority public uses should be facilitated where compatible but does not mandate them.
Question: What about uses that are not the priority public uses?
Answer: The legislation does not preclude the Service from allowing compatible uses other than those identified as priority public uses. However, the legislation is clear that each refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for which it was established. The legislation also directs that the Service give enhanced consideration to priority public uses over other general public uses in planning and management. In other words non-priority public uses should only be considered after the System mission, refuge purposes, and priority public uses have been sufficiently addressed.
Question: As in Executive Order 12996, there is significant emphasis on public use within the Refuge Improvement Act. With the small staffs and budgets on many refuges it is becoming more and more difficult to maintain our existing public uses let alone initiate new ones and at the same time keep wildlife conservation first. How far does a manager have to go to accommodate proposed priority public uses?
Answer: The Act does provide stronger encouragement to the refuge manager to look for ways to provide opportunities for priority public uses. A good example of how this should work is provided in the Committee Report that accompanies the Act.
"For example, consider a hypothetical situation wherein a manager determines that a bird-watching program could be conducted in accordance with principles of sound fish and wildlife management and administration, but that the program is incompatible because adequate financial resources are not available to design, operate, and maintain the use so as to prevent trespassing on sensitive nesting areas and adjacent private lands. It is the Committee's expectation in this case that the manager would take reasonable steps to obtain outside assistance from States and other conservation interests before determining the activity is incompatible."
If a refuge manager makes a reasonable attempt to accommodate a priority public use but cannot do so without compromising the purposes of the refuge or the mission of the System, the use should not be allowed.
Question: Has the compatibility process changed with the changes to the Refuge Administration Act?
Answer: Yes. This legislation fundamentally changes how the Service will assess compatibility of uses. Although the root definition of compatibility which has been used for years ("will not materially interfere with or detract from the purposes of the refuge") has not changed, it must now be tested against the System mission as well as the individual refuge purposes. In addition, the legislation states that this determination will be made through the use of "sound professional judgment".
Question: What is the significance of adding the Refuge System mission to the definition of compatibility?
Answer: In the past a refuge manager would only have to ensure that a particular use would not materially interfere with or detract from the refuge purposes. In many cases individual refuge purposes are narrow in scope (i.e., Endangered Species Act of 1973, Emergency Wetlands Resources Act of 1986). Under the new process, a refuge manager will have to ensure that a particular use would not materially interfere with or detract from the oftentimes narrow purposes of the refuge as well as the much broader Refuge System mission.
Question: How will using sound professional judgment in making a compatibility determination change the compatibility process?
Answer: By exercising sound professional judgment in determining the compatibility of a use, the refuge manager will incorporate all of the common sense considerations that have traditionally been used in deciding whether or not to allow a use. In the past these determinations were made using separate processes. Biological decisions were made under the auspices of compatibility, funding determinations were made under the auspices of the Recreation Act, and issues such as public safety, conflicts between uses, and compliance with applicable laws were dealt with as separate issues to consider outside of compatibility. In short, compatibility has become a more holistic determination under the legislation. As the Committee Report states:
"Section 5(3) defines the term "sound professional judgment" as the collection of findings, determinations and decisions that support compatibility determinations. Such determinations are inherently complex and will require the manager to consider principles of sound fish and wildlife management and administration, available science and resources, and compliance with applicable laws. Implicit within this definition is that financial resources, personnel and infrastructure be available to manage permitted activities."
Question: Does this mean that the Service will no longer complete a Refuge Recreation Act funding analysis in the process of determining whether or not to allow a use?
Answer: Yes. The Act eliminates funding determinations under the Refuge Recreation Act. In the future, determinations regarding the availability of adequate resources including financial, personnel, law enforcement, and infrastructure will be made as part of the overall compatibility process. The other provisions of the Recreation Act remain in effect.
Question: Under the new process, if the Service finds a use to be compatible with the purposes of the refuge and the System mission, must the use be allowed?
Answer: No. As stated in the Committee Report: "If a refuge manager has other valid reasons for not permitting a use on the refuge, a determination of compatibility does not require the use to be allowed."
Question: When preparing compatibility determinations, if a conflict exists between the purposes of the individual refuge and the Refuge System mission, which one takes priority; individual refuge purposes or Refuge System mission?
Answer: The individual refuge purposes take priority over the Refuge System mission.
Question: How do the amendments to the Administration Act affect existing compatibility determinations?
Answer: Compatibility determinations in existence on the date of enactment of the legislation shall remain in effect until and unless modified. Within 2 years of enactment, the Secretary must issue final regulations pursuant to the new compatibility requirements. After that time, all new uses of a refuge and all expansions, renewals, and extensions of existing uses must be determined to be compatible pursuant to these regulations. Furthermore, any compatibility determinations required during the period between enactment of PL 105-57 and the implementation of the new regulations will be made under the existing compatibility standards and process.
Question: Does the legislation change the way the Service currently prepares interim compatibility determinations for existing wildlife-dependent recreational uses prior to acquisition?
Answer: No. The Service will continue to follow the policy provided in Director Beattie's May 2, 1996, memorandum regarding pre-acquisition consideration of refuge uses.
Question: Why did Congress include a requirement for refuge planning within the legislation?
Answer: Congress recognized that in the past planning for specific units with the Refuge System had been in need of improvement. It also recognized that many existing plans did not adequately involve the public and that they had not been regularly revised. Their goal was to require plans in organic legislation as has been done for other land management agencies. Congress was also intent in providing a forum for public involvement in the decision-making process regarding management of refuges.