Date: July 28, 1993
Series: Real Property
Part 340: Real Property Management
Originating Office: Division of Realty
3.1 Purpose. The purpose is to set out the procedures to be followed by the Service in relation to rights-of-way and road closings in accordance with statutes, regulations, and policies.
3.2 Scope. This chapter applies to all Service activities relating to rights-of-way and road closings.
3.3 Policy. It is the policy of the Service to discourage the types of uses embodied in right-of-way requests. On areas in the National Wildlife Refuge System (System), if a right-of-way cannot be certified as compatible with the purposes for which a unit was established, it cannot be granted without authorization by Congress (50 CFR 29.21(g)). (See 3.6A(3) and A(4) below).
3.4 Authority and Regulations.
A. Prior to December 19, 1969, permits for rights-of-way across lands under the primary jurisdiction of the Service were issued by the Bureau of Land Management in accordance with regulations now published in 43 CFR 2800. After December 19, 1969, the Service's basic authority for granting right-of-way permits and/or easements is the National Wildlife Refuge System Administration Act (16 U.S.C. 668dd(d)). In addition, authority to grant rights-of-way for pipelines for the transportation of oil, natural gas, or synthetic liquid, or gaseous fuels, or any refined product therefrom, is Section 28 of the Mineral Leasing Act of 1920, as amended, (30 U.S.C. 185).
B. Regulations covering the granting of rights-of-way on and across refuge lands are promulgated in 50 CFR, Parts 29.21 and 29.22. 50 CFR 29.21 requires a payment to the Service for use and occupancy of lands for rights-of-way. Fees from System lands are deposited in the Migratory Bird Conservation Fund and used for land acquisition. The Division of Realty has copies of these regulations available upon request.
C. Rights-of-way for the use of other than System lands (National Fish Hatcheries, Research Areas, and Administrative Sites) will be made under applicable authority cited in 43 CFR 2800 in accordance with procedures prescribed in 50 CFR 29.21. Some of these authorities are 43 U.S.C. 959, 43 U.S.C. 961, and 40 U.S.C. 319-319(c). These statutes should be thoroughly reviewed to determine which is applicable for a specific situation. Fees from other than System lands are deposited as directed by the Refuge Revenue Sharing Act (16 U.S.C. 715s).
A. Right-of-way. The term right-of-way as used in this chapter covers uses that will encumber real property by granting a right to use and alter the landscape through construction of a facility such as a road, powerline, pipeline, or building (air navigation facility, radio tower, etc.). Generally, such uses are for a relatively long period of time; i.e., 10 years or longer.
B. Compatibility. The term compatibility means that the requested right-of-way or use will not interfere with or detract from the purposes for which the unit of the National Wildlife Refuge System was established.
C. Primary or Sole Control Areas. These are lands owned by the United States where the Service is the primary administering agency. Lands acquired in fee by the Service, lands acquired by other Federal agencies and transferred to the Service, and public domain lands on which the Service has the primary withdrawal or reservation fall into this category. The Service grants rights-of-way on these areas.
D. Secondary Control Areas. These are lands owned by the United States, States, or others that are made available to the Service for management through permit, cooperative agreement, and overlay or secondary withdrawal. For such areas, the primary administering agency has the ultimate responsibility to grant rights-of-way. Most management agreements give the Service the right to make recommendations concerning such requests.
E. Easement Areas. These are areas on which the United States owns an interest in land but for which the fee title remains with the landowner. Usually, such easements are negative easements in that the landowner has agreed to maintain the land in an undeveloped state in accordance with terms as specified in the easement. For example, in Waterfowl Production Area easements, landowners agree to maintain wetlands by not filling, leveling, draining, or burning.
F. Coordination Areas. These are areas in which the United States has title (withdrawn or acquired lands) with custody in the Service, and made available to a State pursuant to the Fish and Wildlife Coordination Act (16 U.S.C 661-666c), as amended; or by long-term lease or agreement pursuant to the Bankhead-Jones Farm Tenant Act (50 Stat. 525), as amended. In such cases, the Service will grant the right-of-way.
G. Alaska Native Claims Settlement Act (ANCSA) Lands. These are lands in Alaska which were conveyed out of a refuge but for which application of refuge laws and regulations are retained in accordance with Section 22(g) of the Alaska Native Claims Settlement Act. These are similar to easement areas for granting of rights-of-way.
A. General Guidance
(1) The term right-of-way should not be confused with short term and temporary use of an existing road or trail, etc., that can best be accommodated through special use permits. Rights-of-way that may be included in a contract for services, such as a powerline or telephone line that provides service to project facilities only, should also be handled through special use permits. Rights-of-way should not be confused with uses of project lands through rights that were reserved or outstanding at the time of acquisition. In these cases, a special use permit with stipulations to protect project values is used to authorize entry onto Service lands. No charge is made for the special use permits; however, surface damages that occur beyond what is ordinary or expected can be assessed to the user.
(2) Applications by any Federal, State, local agency, private individual, or organization for rights-of-way for roads and highways may be made under the above authorities in accordance with 50 CFR 29.21. In the case of Federal, State, or local agencies, use and occupancy charges can be waived only if there is an exemption from payment by any other provision of law. The Federal Aid Highway Act (Title 23 U.S. Code provides no such exemption).
(3) A determination of compatibility or noncompatibility cannot be made in an arbitrary manner and such a determination must be supported by facts. The facts can best be presented in an environmental assessment (EA) or environmental impact statement (EIS). A determination of compatibility with the purposes for which a unit of the System was established must mean consideration only of wildlife values or project values, not of any broader social or economic concerns.
(4) For lands in the System, the file must contain a finding by the Regional Director that the proposed use is compatible as defined in 50 CFR 29.21(g). If the proposed use cannot be certified as compatible, the permit or easement cannot be granted. The term "inconsistent" in Section 28(6)(1) of the Mineral Leasing Act of 1920, as amended, shall be deemed to mean a use that is "not compatible," as "compatible" is defined herein (50 CFR 29.21(g)). A compatibility determination is not required on Service lands other than those in the System (National Fish Hatcheries, Research Areas, and Administrative Sites).
(5) The regulations require a right-of-way permit from the Service where the interest owned by the United States will be adversely affected (thus needing protection by special stipulations). However, no charge will be made. If such interest will not be adversely affected, the Regional Director may simply give a letter of no objection. In each case, the landowner must grant the right-of-way.
(6) On Coordination Areas, written approval of the State administering the land must be obtained before a permit or easement may be granted.
B. When to Use Permits. Permits should be utilized for most Service outgrants. Permits generally have the same force and effect as easements and are subject to the same terms and conditions. Permits may be granted for up to 50 years. In the case of oil and gas pipelines, only permits are authorized and are limited to a 30-year period. Permits should contain stipulations to protect the interests of the United States and provide for termination for non-use or non-compliance. A basic form of permit is found in Exhibit 1.
C. When to Use Easements. Right-of-way easements may be used when the type of use will substantially alter the real property and is of a permanent or long term nature. Also when the charge to be made for the grant is large, a permittee may insist on a recordable instrument to justify the investment. Some examples are major pipelines and electric power transmission lines (when permanent towers will be erected on the land). Generally, easements should be limited to a term of 50 years (30 years for oil and gas pipelines) and should be used only when public utilities are involved. Permits and/or easements for Federal aid or other public highways may be granted without term limitations. Permanent or long term easements for private use should not be granted. Any easement granted should contain stipulations to protect the interests of the United States and to provide for termination for non-use or non-compliance. A basic easement form is found in Exhibit 2.
(1) For record keeping purposes, permits and easements will carry a designation assigned (by Region) at the time of application and in sequence by date of application and specific type. Records will be established for uses that encumber real estate; i.e., those requiring construction or alteration of the land (roads, powerlines, etc.); and those granting exclusive use of Federal property for a long period of time, 10 years or more. The use of Service land and/or facilities for a temporary or short period of time is usually handled by special use permit which should not be assigned a case number or included in the real property records. The Realty records will reflect a current record of permits/easements for each project in sequence of their application, e.g.:
(E1) Mountain States Power Co.
(E2) Golden Valley Electric Corp.
(D1) Valley Drainage District.
(E3) Valley Electric Corp.
(2) The alphabetical letter used to identify permits/easements for uses of a similar nature is capitalized and used as a prefix. Letter designations are as follows:
D - Ditch, canal, culvert
E - Electric transmission lines
L - Levee, dike
M - Miscellaneous (dock site, jetties, recreational area, stock driveway, right of passage, roadside park, dams)
P - Pipelines (gas, oil, sewer, water)
R - Road or highway
RR - Railroad
T - Telephone or telegraph
(3) An application which covers more than one use should carry the designation of the primary use; e.g., application for a highway and material site should be designated "R".
(4) When permits or rights-of-way are obtained by the Service on lands outside project boundaries, the designation assigned becomes 1E, 2E, 1D. etc.
A. Regional Office. The Regional Office (Division of Realty) will review right-of-way applications for adequacy and resolve any legal questions. The Regional Office will also prepare the appraisal of market value of the right-of-way and prepare the permit document and appropriate charges to the applicant. In situations where Ecological Services is involved with the application at the field level, Ecological Services will coordinate activities to develop a unified Service response.
B. Project Leader. The project leader plays a key role in the decision as to whether or not a right-of-way will be granted. He/she must have a good working knowledge of Title 50, Code of Federal Regulations, Parts 29.21 and 29.22, and the procedures under which rights-of-way are granted. The basic responsibilities of the project leader, as they apply to rights-of-way, are to:
(1) Ensure there is no occupancy of project lands unless a right-of-way has been granted except as stated in 3.6 above.
(2) When a right-of-way is granted, ensure that the recipient complies with the terms and conditions of the grant and that the right-of-way is used only for the specific use granted.
(3) Report to the Regional Director any right-of-way that has been abandoned so that it can be terminated and removed from the Service's real estate records.
3.8 Preapplication Contact. A prospective applicant will usually make an initial contact with the project leader concerning his/her desired use of project lands. For uses such as large powerlines, pipelines, or highways, the initial contact may be made at the Regional Office. At this contact, it is important to determine the magnitude of the proposed use. Will it affect only project lands or is it a part of a larger facility such as a power transmission line, a pipeline, or highway affecting the environment on and off the project? The project leader should discuss proposed routing and alternatives, if any. The prospective applicant should be given a copy of the regulations, 50 CFR 29.21 to 29.22, which describe the requirements for filing an application. If it is determined that the proposed right-of-way will affect the environment on and off the project, the Regional Office must be alerted and brought into discussions if not already involved. Care should be taken not to commit the Service to the granting of a right-of-way prior to actual approval by the Regional Director.
3.9 Application Procedure. The prospective applicant files an application with the Regional Director in accordance with the regulations and accompanies this request with an application fee as required by 50 CFR 29.21-2. Realty will check the request for completeness and conformance with the regulations and resolve any legal questions before it is coordinated with the project leader, Ecological Services, and other agencies as appropriate.
3.10 Right-of-Way Package - Project Leader. The project leader will consider the application and develop a package which will include the following information. Documents referenced are available in Realty offices.
A. National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA). The regulations in CFR 29.21-2(a)(4) require the applicant to furnish an environmental analysis from which the project leader may develop the environmental assessment (EA). This analysis should include alternatives to the proposed use and information concerning historical and cultural features. If these features are present, measures to protect them should be included in accordance with NEPA, NHPA, and Executive Order 11593.
B. Floodplains and Wetlands. If the proposed use is located in a floodplain or wetland, include an analysis of the potential effects, if any, of the proposed use on the floodplain or wetland. (See Executive Orders 11988 and 11990.)
C. Coastal Zone Management. Include a statement from the applicant as to the consistency of the proposed use with State coastal zone management programs, if appropriate.
D. Endangered Species. List any endangered species occurring on the project, if any, and a recommendation as to whether Section 7 consultation is required.
E. Terms and Conditions. List any special terms and conditions needed to protect the interest of the Service over and above the standard fifteen in 50 CFR 29.21-4(b) and recommend whether any of the standard fifteen should be deleted. If a proposed use can be made compatible through mitigation measures (50 CFR 29.21-7(c)), the applicant's recommendation of such mitigation measures should be included.
F. Project Leader's Recommendation. The project leader will make a recommendation whether the proposed use will be compatible (required on System lands only), can be made compatible through specific mitigation measures, or will not be compatible and should be denied and the reasons for such denial. If he/she concurs with the granting of the right-of-way, a Finding of No Significant Impact (FONSI) and a certification of compatibility will be prepared for the Regional Director's signature. If the right-of-way is to be denied, a draft of a letter of denial will be prepared to the applicant for the Regional Director's signature (See 3.6A(3) and (4) above).
3.11 Right-of-Way Package - Regional Office.
A. The right-of-way package will be referred to the Regional Office for preparation of the final documents. If the Regional Director decides to grant the right-of-way, Realty will make a determination of market value charges for the right-of-way and prepare the permit or easement document. The Regional Director will send the permit or easement including all special terms and conditions to the applicant for execution. Upon receipt of the approved permit and fees, the Regional Director will execute the permit or easement and send the original to the applicant. Realty will send a copy of the permit to the project leader and maintain a record file in the Regional Office.
B. At the time the right-of-way granting document is sent to the applicant, a certificate of completion of construction is transmitted to the applicant which is to be executed upon completion of construction and returned to the Regional Director.
C. If the Regional Director decides to deny the permit or easement, the applicant will be so informed in writing and the reasons for the denial stated. The Regional Director's decision may be appealed to the Director and the Director's decision may be appealed to the Secretary (43 CFR Part 4.700 Subpart G).
3.12. Oil and Gas Pipelines.
(1) Applications for pipelines and related facilities for the transportation of oil, natural gas, synthetic liquid or gaseous fuels, or any refined product therefrom are to be filed in accordance with 50 CFR 29.21. Special requirements for these rights-of-way are included in 50 CFR 29.21-9. When the right-of- way or proposed facility will occupy Federal land under the control of more than one Federal agency and/or more than one bureau or office of the Department of the Interior, a single application shall be filed with the appropriate State Director of the Bureau of Land Management in accordance with regulations in 43 CFR Part 2800.
(2) Federal, State, and local government agencies and the public shall be given adequate notice and opportunity to comment upon pipeline right-of-way applications (Publish notice in the Federal Register).
(3) In accordance with 50 CFR 29.21-9(m), the Senate - Committee on Energy and Natural Resources and the House - Committee on Interior and Insular Affairs must be notified when the Service receives an application for a right-of-way for a pipeline 61.44 centimeters (24 inches) or more in diameter. Headquarters will notify the committees. If the Service decides to grant the right-of-way, a follow-up letter will be sent to the committees including a copy of the proposed right-of-way document. If a waiver of the 60-day waiting period is requested, the following information must be provided:
(a) Justification for the waiver.
(b) Description of the area affected by Township and Range.
(c) The kilometers (miles) of right-of-way and hectares (acres) of permanent use which cross Federal lands by agency and county.
3.13 Reimbursement of Costs.
A. When an application is received, the costs expected to be incurred in processing will be estimated. If the estimated costs exceed the application fee, the Regional Director shall require the applicant to make periodic payments in advance of the incurrence of such costs by the United States. On request by the applicant or prospective applicant, the Regional Director will provide an estimate of costs for processing the application.
B. If the permit or easement is to be granted, the holder agrees to reimburse the United States for reasonable costs incurred by the Service in monitoring the construction, operation, maintenance, and termination of facilities.
C. If actual costs for processing a right-of-way are used, Realty must document the charges (including those of all Divisions) in the file. The same procedure applies to monitoring fees.
D. Realty or the applicant will prepare an appraisal (subject to Service review and approval) of the market value to be charged for the right-of-way and also prepare the grant document.
E. No application or monitoring costs will be required of State or local governments or agencies or instrumentalities thereof except those for rights-of-way, easements, or permits for oil and gas pipelines under Section 28 of the Mineral Leasing Act or 1920, as amended by P.L. 93-153 (50 CFR 29.21-2). If any Federal, State or local agency is exempted from the payment for the use and occupancy of the land under another provision of Federal law, such agency shall otherwise compensate the Service at the discretion of the Regional Director or payment may be waived if he/she finds such payment impractical or unnecessary. The Federal Aid Highway Act does not provide an exemption from payment for the use and occupancy of Service lands.
F. Actual payment may be by lump sum or an annual market rental. Payment is to be made in advance. When annual rental payments are used, the rates shall be reviewed at any time not less than 5 years after the grant of the permit, right-of-way, or easement or last revision of charges and a new charge established if appropriate. (See 50 CFR 29.21-2 through 7).
3.14 Post Permit Procedures. The project leader is responsible for monitoring the construction and operation of the facility to ensure that the terms and conditions in the permit are being met and to protect the project and the public.
3.15 Road Closings.
A. On any area acquired by the Service, it may become necessary or desirable to close certain public roads or highways that may no longer serve the public because of the establishment of the project. Public roads are established in a number of ways, such as dedication by the landowner, by prescription, or by statutory proceedings under the power of eminent domain.
B. Roads can be closed by condemnation proceedings or by complying with the applicable statutes of each State. Condemnation will not be used unless all other means fail and it is essential the road be closed. Each situation is best treated separately. Realty should provide the same assistance as if acquiring any other interest in land.
C. Revised Statute 2477 may need to be considered when attempting to eliminate access across public domain lands. Such access might be asserted according to State law. The right originated after 1886 and was repealed in 1976 with the enactment of the Federal Lands Policy and Management Act (P.L. 94-579). Use prior to 1976 can still be asserted, so public access rights thought to be eliminated are possible under Revised Statute 2477.
For more information about this chapter, please contact the Division of Realty. For more information about this Web page, contact Krista Holloway, in the Division of Policy and Directives Management.