FWM#: 250 (new)
Date: April 12, 1996
Series: Real Property
Part 341: Land Acquisition
Originating Office: Division of Realty
2.1 Habitat Protection Measures. Service policy is to adopt habitat protection measures and strategies that involve acquiring the minimum possible interest or rights in lands and waters. The objective is to leave as large a proportion of these rights as possible in private ownership and still meet the defined resource objectives. Some private uses that negatively impact habitat are regulated under police powers (or regulatory controls) to protect public health and welfare. These powers are basic to the following discussion of regulatory authorities.
A. Regulatory Controls (Police Powers).
(1) Zoning. This is a local government action designating specific geographic areas where particular uses are either permitted or prohibited; such as residential, business, or open space for the parks or habitat protection. For example, zoning can be expressly to protect fish and wildlife habitat, open space, wetlands, or for such purposes as agriculture, which may effectively provide some measure of protection. Zoning protects habitat with a minimum of Federal involvement and cost. A principal disadvantage of zoning is the lack of permanency. Zoning cannot be used to provide areas for public use unless these rights are acquired and just compensation paid.
(2) Regulatory Permits. There is a wide variety of Federal, State, and local permits and licenses required to perform work on private, State, county, and municipal lands and waters. Many require consultation with the Service's Division of Habitat Conservation. Some of the more prominent authorities are listed below.
(a) Clean Water Act, Section 404 Permits (Federal Water Pollution Control Act "Clean Water Act", 33 U. S. C. 1251-1376; Chapter 758; P. L. 845, June 30, 1948; 62 Stat. 1155, as amended). Section 404 of the Clean Water Act of 1977 prohibits the discharge of dredged or fill materials into broadly defined classes of waters without a permit issued by the U.S. Army Corps of Engineers (Corps). The Service is among the reviewing agencies; and the U.S. Environmental Protection Agency (EPA) has veto authority over such permits. The permitting authority may be exercised by States in lieu of the Federal Government where approved by the EPA.
(b) Rivers and Harbors Appropriations Act of 1899, Section 10 Permits (33 U. S. C. 403; Chapter 425, March 3, 1899; 30 Stat. 1151). Under Section 10, the building of any wharfs, piers, jetties, and other structures is prohibited without congressional approval, and excavation or fill within navigable waters requires the approval of the Corps. The Fish and Wildlife Coordination Act, as amended, provides authority for the Service to review and comment on activities affecting fish and wildlife proposed to be undertaken or permitted by the Corps.
(c) Clean Water Act, Section 402. Section 402 of the 1972 Clean Water Act amendments established the National Pollutant Discharge Elimination System and authorized EPA to regulate the discharge of polluting substances into broadly defined classes of water.
(d) Coastal Zone Management Act (16 U. S. C. 1451-1464, Chapter 33; P. L. 92-583, October 27, 1972; 86 Stat. 1280, as amended). Many coastal States now have coastal zone management plans approved by the Department of Commerce, similar in some respects to zoning in that they prescribe permitted uses for specific areas. However, there are wide variations in degrees of protection among and within States and they should be carefully examined to determine the kind and permanency of protection that would be afforded. Close attention should be given to classified areas of concern and any estuarine or marine sanctuaries, since they can provide a high degree of environmental protection.
(e) State and Local Wetland Laws and Ordinances. Many States have wetland protection acts that offer varying levels of protection to coastal and/or inland wetland areas. Some are quite effective and the planner should be acquainted with these mandates. Depending on permanency, they can be very important in protecting habitats. They can be more permanent than local zoning.
(f) Other. There are other State and local laws/ordinances that can be relied on in specific instances, including laws (and regulations implementing such laws) on stream alteration, beach protection, agricultural land conservation, and a small body of public trust law. The Executive orders on wetlands and floodplains can afford some protection for land.
B. Direct Land Use Controls. When regulatory controls are not available or feasible, it is often necessary to move to some degree of land acquisition. Since wildlife habitat exists in significant quantity on privately owned land, it is often necessary to acquire this land in its entirety or in partial interests for habitat protection. The following are instruments/documents used to transfer property rights between parties. They are listed in order of degree of rights acquired (i.e., from least to most rights acquired).
(1) License or Permit. This type of instrument is an acquired authorization for a specific activity on land of another party. They are temporary in nature, and no property rights are acquired. Their advantages are simplicity and ease to negotiate. An example would be a license or permit to conduct a wildlife inventory.
(2) Cooperative Agreement, Memorandum of Understanding, and Memorandum of Agreement. This a simple habitat protection action, and no property rights are acquired. An agreement is usually long term but can be modified by either party. They are most effective in establishing multiple use management of land. An example would be a wildlife agreement on a Corps reservoir.
(3) Lease. This is a short-term (usually 5 to 10 years) agreement for full or specified use in return for a rental payment (usually annual) and generally includes occupancy rights. The rights revert back to the owner at the termination of the lease. This device is useful when the objectives are short term or the owners are unable to provide other forms of land transfer. The property remains on the tax rolls during the term of the lease.
(4) Easement. This is the acquisition of a limited right(s) (less-than-fee). The right to control access, grazing, timber harvest, hunting, and development of the property are some typical examples of rights acquired in easements. Easements are property rights and are usually perpetual. If a landowner sells his/her property, the easements continue as part of the title. Easements are especially useful when multiple uses for property can be developed. Properties subject to easements generally remain on the tax roll, although the assessment may be reduced by the reduction of market value.
(5) Fee Title. This is the acquisition of most or all of the rights to a tract of land. There is a total transfer of property rights with the formal conveyance of a title. While a fee title acquisition involves most rights to a property, certain rights may be reserved or not purchased. The following are some examples:
(a) Water Rights. Many properties have a defined water right that is part of the title. Laws of the individual States control how water rights are administered. The Western States' laws are based on a utilization concept in which appropriated water rights are determined by time and use. Individual tracts of land have an entitlement based on when the right was established and how much water was used. Most western properties have a defined water right associated with them that is part of the title. Except under very unusual circumstances, all water and water rights appurtenant to the land should be acquired. In Eastern States, water rights are based on the doctrine that riparian landowners must allow water courses to continue undiminished in quality and quantity. Land titles in the East do not normally have a water right associated with them. When the supply of water is a factor in planning, a determination must be made of what water rights exist and if they must be purchased separately or whether the owner can be allowed to reserve them for use on other lands.
(b) Mineral Rights. Current policy does not permit the Service to acquire land with reservations of minerals other than oil and gas (except where conveyance is prohibited by statute). The reservation of oil and gas rights should not interfere with the primary purpose for which the land is being acquired or managed. Management of oil and gas activities must be in accor- dance with the applicable Departmental and Service guidelines. (See 612 FW 2).
(c) Use Reservation. It is sometimes desirable to acquire fee title to land, but the existing owner is permitted to continue to live on or use the land. This is called "extended use" or "use reservation." An example is a property with a residence that would not interfere with project management if allowed to remain. A use reservation may be reserved by the owner for a specified period of time or for the remainder of his/her life. Many types of use reservations can be negotiated. This is a very useful tool in developing a land acquisition strategy with a minimum social impact.
2.2 Methods of Land Acquisition. A number of methods are available to acquire property rights. These include direct purchase, condemnation, donation or bequest, exchange, transfer, or withdrawal. A brief discussion of each method follows. Also, see 341 FW 1, Exhibit 1, Legislation Relating to Fish and Wildlife Service Land Acquisition.
A. Purchase. This is the most direct means of obtaining fee title or an interest in land. The Service negotiates the sale of one, some, or all rights to property from a willing seller. A willing seller includes landowners agreeing to price settlement by court action (condemnation) in order to resolve the issue of just compensation. All purchases by the Federal Government must be based on fair market value as determined by qualified appraisers.
B. Condemnation. There are occasions when direct purchase is not possible because the owner does not want to sell or will not accept the price offered. When valuable resources are threatened or the land is urgently needed for construction or use, a Federal agency can exercise the right of eminent domain (the taking of land without consent of the owner). This judicial process is also called condemnation. The disadvantages are that this process is usually controversial, frequently creating highly emotional reactions on the part of the landowners and sometimes the community at large. Under a Declaration of Taking (title vests in the United States as of the filing of the complaint), if the case is not settled before it goes to trial, the Service has no control over the cost of the land, which could exceed our appraised value. Condemnation may be used to quiet or clear title (determine the legal owner) (See 342 FW 4, Title Curative and Conveyancing).
C. Donation. A citizen or group of citizens may wish to make a gift of land or interests in land to the Service for wildlife purposes. Aside from the cost factor, these acquisitions are no different than any other means of land acquisition. Gifts and donations have the same planning requirements as do purchases.
D. Exchange. Lands under Service or other Federal agency control can be exchanged for land having greater potential for achieving habitat protection objectives. Inherent in the exchange concept is the requirement to get dollar value for dollar value. Exchanges are attractive in that they usually do not increase Federal land inholdings or require funds for purchase, but they may be very labor intensive and take years to complete. A third party may at times be utilized to facilitate an exchange.
E. Transfer. Title to Federal lands can be transferred to the United States with primary jurisdiction in specific Federal agencies. Within the Department of Interior, lands excess to program needs can be transferred to the Service from another agency by letter. Property can be transferred to the Service through the General Services Administration (GSA) under the Federal Property and Administrative Service Act (63 Stat. 377) and Public Law 80-537 (62 Stat. 240). Transfers of excess property between Federal agencies may be at fair market value or without reimbursement, depending on the authorities, circumstances, and GSA's prerogatives.
(1) Secondary jurisdiction can be obtained by the Service from other Federal agencies through Cooperative Agreement, Memorandum of Agreement, Memorandum of Understanding, etc. These agreements are usually for wildlife management purposes (overlays) and can be terminated in whole or in part, if necessary, by the agency having primary jurisdiction. In the majority of cases, wildlife management must be compatible with those uses for which the primary agency acquired the land.
(2) Regional Directors are authorized to accept non-purchase fee title acquisition proposals for any Farmer's Home Administration Inventory tract, following a favorable recommendation by the Assistant Regional Director (ARD) for Refuges and Wildlife. No documentation is required by Headquarters prior to ARD approval and Regional Office acquisition. Farmer's Home Administration prepares National Environmental Policy Act (NEPA)(P. L. 91-190, 42 U. S. C. 4321-4347, January 1, 1970, 83 Stat. 852, as amended) documen- tation for their property management and disposal actions, including transfers of land to the Service and other agencies.
F. Withdrawal. Lands remaining in the public domain; i.e., title was never patented into private ownership, are under the jurisdiction of the Bureau of Land Management (BLM). Service management can be obtained by formally withdrawing these lands from the public domain. Land withdrawn from the public domain must be used for the purposes stated in the withdrawal documents. The planning process leading to the prerequisite approval for applying for withdrawal is essentially the same as any acquisitions. Withdrawals require a rather complex system of public notices, hearings, mineral reports, etc., and can take many years to accomplish.
G. Mitigation Land. Lands acquired to mitigate losses or enhance fish and wildlife habitat and to be managed or administered by the Service must receive the Director's approval (through preliminary project proposal (PPP) approval) before any commitment is made to a construction agency for such mitigation measures.
2.3 Planning Overview. The land acquisition planning process incorporates preliminary planning and detailed planning processes. The guidance for land acquisition planning-related steps to be followed in planning for the disposal of real property is provided in 340 FW.
A. In general, the process conforms to line-staff philosophy, with primary responsibility for project design and execution at the Regional Director's level. The process provides for conceptual approval by the Director, before investment of substantial resources, to ensure the project will be in agreement with national management objectives and priorities.
B. Review responsibility is assigned to the Assistant Director, Refuges and Wildlife, in Headquarters.
C. The Land Acquisition Priority System (LAPS) is an integral part of the planning and evaluation process in the Region and Headquarters.
D. Proposals are planned to be responsive to Service goals and objectives, with the Regions having flexibility, discretion, and responsibility in the scheduling and development of proposals. The completion of these processes leads to final project selection, funding, and acquisition. (See Exhibit 1).
(1) A preliminary project proposal, developed during the first of these processes, is considered "conceptual"; however, the information and data provided must be of adequate substance to enable the Director to determine the benefits and costs of the proposal, to weigh them against national goals and objectives, and to make an informed decision when approving or disapproving a proposal.
(2) The detailed planning process calls for defining the objectives for the proposed action, establishing a series of alternatives, identifying the possible or probable impacts of each alternative, and determining (and certifying) if the proposed action complies with existing laws, policies, Executive orders and other mandates.
E. During preacquisition planning, preliminary decisions are made that may affect the future management of the unit. Pre-acquisition planning should be conducted in close coordination with refuge management staff to facilitate a continuous, integrated design of a refuge (or refuge expansion) from its conception to the completion of the refuge comprehensive management plan and appropriate refuge step down plans after the refuge has been established. Coordination between Refuges and Realty staff is especially beneficial during the public involvement and information gathering phases of planning. A conceptual management plan is developed as a part of the detailed land acquisition planning process to present a general outline on how the refuge would be operated and managed.
2.4 Preliminary Planning.
A. Project Selection. Based on Service concept plans (the North American Waterfowl Management Plan, recovery plans, Regional Wetlands Concept Plans, etc.), the Region will inventory its geographical area to determine habitat preservation needs that may be satisfied. Although in some cases recovery plans identify the location of critical habitat rather specifically, waterfowl plans are very generalized and specific sites will have to be identified and ranked using LAPS to determine if Regional resources are significant enough to warrant more planning. The Regional Director decides when and which projects will be planned. Some projects may also be legislatively mandated.
B. Preliminary Project Proposal (PPP). A PPP must be prepared for all acquisition proposals for new refuges or additions of over 40 acres to existing refuges, including those proposed for acquisition by purchase, exchange, transfer, donation, mitigation, or a proposed congressional action. Other types of proposals include Cooperative Agreement, Memorandum of Understanding, and withdrawal if interests are acquired for inclusion into the National Wildlife Refuge System. Exceptions are waterfowl production areas, Farmer's Home Administration interests transferred to the Service, and instances where Congress gives direction to the Service through an add-on appropriation to acquire specific property or property rights (not to be confused with congressionally authorized projects that come through an act or the regular appropriations process).
(1) The PPP and LAPS analysis will be the basis for the Director's approval or disapproval to proceed with detailed planning for a proposal. The primary focus of the PPP will be towards the area's total long-term management, biological, and ecological needs rather than opportunities to purchase properties.
(2) In addition to the location and site map showing relevant natural features, the PPP should address on the items listed below. Each item (a - n) should be identified as a subtitle. (See Exhibit 2 - Sample Preliminary Project Proposal).
(a) Introduction--a very brief overview plus anything unique about the proposal or data involved.
(b) Location and Size--self-explanatory.
(c) Description of Habitat--self-explanatory.
(d) Major Wildlife Values--migratory birds, endangered and threatened species, fishery resources.
(e) Relationship of Project to Ecosystem's Management Goals and Objectives--Discussion of the proposal's contribution to the protection and restoration of the respective ecosystem in which it falls.
(f) Related Resources--names and locations of the closest State, Federal, and private conservation lands.
(g) Threats--specific threats such as residential, commercial, agricultural, or oil and gas developments; public use interference; etc.
(h) Proposal Objectives and Funding--justification for the proposal and source of funding.
(i) Ownerships and Type of Acquisition--describe nature of project ownership, landowner attitudes, and method to acquire property rights.
(j) Initial and Annual Costs--cost estimates, both immediate (land, development, and relocation) and future (operation, maintenance, and revenue sharing).
(k) Water Rights --Discussions by Regions 1, 2, 6, and 7 on the adequacy and availability of water within the project area to carry out refuge management goals and objectives, an estimation of costs involved, and other pertinent issues. If this discussion is not applicable, the section should still be included and "not applicable" should be written under the heading.
(l) Contaminants and Hazardous Wastes--potential contaminant issues. Report negative as well as positive findings. Known historic uses will help determine the level of contaminant survey required. When known uses on the proposed area include a former sewage treatment site or refuse dump site, a Level I contaminant survey is not sufficient. (See 341 FW 3.)
(m) Public Attitude and Involvement--degree to which the proposal has been explored with the general public and other Federal, State, and local entities, and their reactions.
(n) Special Considerations--review of the project area in relation to military uses; e.g. low-level flight patterns, training areas, etc. Consider if the project contains any wilderness resources that could qualify for wilderness study after acquisition. New acquisitions or the expansions of existing units occasionally qualify for wilderness study or meet the criteria for wilderness suitability. Proposed uses or rights that may not be compatible with the primary purposes of the refuge and with Refuge System goals should be addressed. During the planning process, Regional offices should also coordinate the necessary activities to ensure there is concurrent police jurisdiction with the State when the tracts are acquired.
(3) The PPP is expected to be a brief executive overview of the relevant factors, generally three to six pages in length but of sufficient detail to provide a complete picture of the important issues. The Director will have to understand the commitments being made and the benefits to be derived. The LAPS analysis, which should be submitted at the same time as the PPP, will have a strong influence on any decision made relative to the future of detailed planning for the project.
(4) Director's Approval. The Regions should forward the PPP to Headquarters, Division of Realty, for review by appropriate Headquarters staff, evaluation of comments, and a recommendation for approval or disapproval. Based on these considerations, the PPP, and the LAPS ranking, the Director will either approve or disapprove further detailed planning.
(5) When a significant change in the parameters of a project is necessary, a revised PPP should be submitted as soon as possible prior to proceeding with additional planning. Significance will be determined by the impact the change will have on the natural resources; socioeconomic, political, and cultural issues; public use; etc.
2.5. Detailed Planning.
A. Requirement. Detailed planning is required for all new refuges and additions over 40 acres to existing refuges that are to be acquired by purchase, exchange, donation, transfers from other Federal agencies, mitigation, withdrawal, cooperative agreement, Memorandum of Understanding, and congressionally mandated projects. Exceptions to this are lands acquired for the waterfowl production areas and those transferred by the Farmer's Home Administration (See 340 FW 1). In broad terms, the detailed planning process calls for: clearly identifying the purpose or need for the action (defining objectives); establishing a series of alternatives, any one of which could in some significant degree solve the problem or meet the objectives; identifying the possible or probable consequences or impacts of each alternative and determining if the proposed action complies with existing laws, policies, Executive orders, and other mandates.
B. Project Selection. Following the Director's approval, the Region initiates detailed planning as appropriate. Normally the decision to begin the detailed planning would be based on how competitive the project would be in LAPS and on anticipated funding. In special cases, these factors may be overridden by extenuating circumstances such as threat, donation, political considerations, etc.
C. Core Report Preparation Approaches. During the detailed planning process, a core report is written to describe the general parameters of a proposed project. The core report, along with required compliance documentation, contains the basic resource information needed to make an informed decision. There are two alternative, but related, approaches to accomplishing the requirements for the core report:
(1) If a document under the NEPA is required, it may be combined into
the core report of the decision document (DD) package. The NEPA document
(either an environmental assessment (EA) or environmental impact statement
(EIS)) will be developed in accordance with Service NEPA guidelines (see 550
FW). If the report is supported by, or draws from, a previously issued report
(e.g., concept plan, recovery plan, etc.), one copy of that report shall be
included with the DD.
(2) If the project qualifies as a categorical exclusion under 516 DM 6, Appendix 1 (recommended whenever possible), a report covering the basic resource information should be prepared. This report may also be referred to as an executive summary.
D. Core Report Discussion Factors. With either approach, the core report must include discussions of the following nine factors:
(1) Objectives. The objective(s) should be carefully stated at the outset of the planning to provide a focus for the recommended action. They should clarify the purpose and guide the development of the proposal. The reader and decision maker should be able to judge the relative effectiveness of the alternatives both in terms of costs and benefits.
(2) Description of the Project. An essential element of this section is a description of the environmental conditions that are important to under-standing both the background of the problem to be solved and the desired situation to be achieved. It is unnecessary to inventory environmental factors that are not subject to change, not related to the objectives, and not otherwise essential to the decision. Other factors include considerations of the closest State, Federal, or private conservation interests.
(3) Threats. Threats should be determined and stated as specifically as possible. An indication of how soon the threat may materialize will be helpful. If there is an absence of threat and the proposed action stems from a situation where quality habitat can be acquired at an advantageous cost, that fact should be stated. The threat or opportunity should be capable of being related to the stated objective(s).
(4) Alternatives. The basic guidelines established in Section 1502.14 of the Council on Environmental Quality (CEQ) (400 CFR Part 1500) Regulations should be followed in presenting the discussion of alternatives considered and selected. This section should objectively evaluate all viable and reasonable alternatives, and for alternatives that were eliminated from detailed study, the reasons for their elimination should be briefly noted. Various project boundary configurations may also be analyzed. Since many objectives involve the need to protect, preserve, restore, or manage wildlife habitat, the following alternatives represent minimum considerations in those situations: easements, fee title, cooperative agreements, permit restrictions, withdrawal (public domain), zoning, acquisition by other entities, administrative regulation, and no action.
(5) Consequences. The consequences section of the core report goes to the heart of the decision. This section should enable the decision makers to get an adequate image of the present environmental situation, what conditions would there be with no action, and the effects of the several alternatives. What are the social, cultural, and economic effects? How many people will be displaced? Are they long-term residents? Are there implications for resource distribution patterns or wildlife disease potentials? The discussion must be a concise summary of all the factors pertinent to making the decision.
(6) Estimated Costs. This section should include a comprehensive summary of the estimated costs for acquisition, improvements, relocation, initial development, overhead and contingency, annual operation and maintenance, annual revenue sharing, and any other costs. These costs may be discussed in detail in other planning documents (Realty Land Acquisition Feasibility Report, Engineering Assessment). If so, a tabular summary will be sufficient for this section.
(7) Environmental Contaminants and Hazardous Waste. The Service should avoid acquisition of lands that will require costly cleanup of contaminants unless the resource values of those lands clearly outweigh those costs, or there is an assured means of payment for such a cleanup by others, such as a known responsible party with sufficient resources for the cleanup. If a contaminant problem exists but acquisition of the area is still considered desirable, the actual containment or cleanup expenses must be identified as part of the acquisition and management costs. (See 341 FW 3, Environmental Contaminants and Hazardous Substances Determination for compliance procedures.)
(8) Special Considerations. The planner should carefully consider the background facts that would be essential to the decision-making process. Some typical questions to ask include: What is the nature of the local support and opposition? To what extent have the public and landowner been involved in planning and what are their reactions? The backup material in this section should be comprehensive enough so that the Regional Director is not "blind-sided" by the absence of critical information.
(9) Recommendations. The recommendation section should be brief and straightforward. Information in the previous sections of the core report should set out the facts basic to a decision. The recommendation should reflect the Service's policy of acquiring the least interest that will achieve the stated objectives.
E. Public Participation. It is important to make the general public and the impacted landowners aware of a project as early as practicable in the planning process. Timing and methods of bringing the public into the planning process can often be critical. While there can be no firm guidance given, it is essential to make the public aware of the purposes and objectives under consideration. "Sunshine" planning can engender public confidence, trust, and support.
(1) Coordination and communication with the affected congressional delegation, State, and local officials is essential prior to the issuance of public statements on land acquisition. Press releases should be given to the local offices of the congressional delegation before they are distributed to the public.
(2) Public involvement as required in the NEPA process should suffice for most projects. However, where there is much concern or interest, special public meetings may be essential or beneficial.
(3) Meetings should be structured to facilitate public understanding and contribution. Preferably, meetings will be informal, held at times that facilitate public participation such as evenings and weekends, and at convenient locations with easy access to parking and transportation. The "open house" format stimulates informal one-on-one discussion.
(4) Formal public hearings will generally be held on unusually controversial proposals and when otherwise required by law or regulation. Department of the Interior guidelines regarding the planning, notification, and conduct of public hearings are discussed in 455 DM 1.
(5) All public meetings will be documented by a written summary of the principal issues discussed, comments made, and register of those attending. After a formal public hearing, a summary of the hearing transcript will also be prepared.
(6) The range of public participation and information techniques available to the planning staff is broad and the one(s) selected depends on conditions and needs. The following are some of the techniques available:
(a) Using citizen work groups.
(b) Producing and releasing materials for communication to the public.
(c) Educating the public about the decision-making process.
(d) Mapping sociopolitical and environmental data.
(e) Presenting to the public the full range of feasible alternatives.
(7) Various laws and policy directives mandate the involvement of citizens and State and local governments in the land acquisition planning process. Some of the more pertinent of these are:
(a) National Environmental Policy Act of 1969.
(b) Public Law 95-552 (Migratory Bird Hunting and Conservation Stamp Act Amendment).
(c) Executive Order 11988 (Floodplain Management).
(d) Executive Order 11990 (Protection of Wetlands).
(e) Executive Order 12372 (Intergovernmental Review of Federal Programs).
(f) Coastal Zone Management Act of 1972.
(g) Departmental Manual (301 DM 2--Public Participation in Decision-making).
F. Compliance with Laws, Regulations, and other Mandates. Various laws, regulations, policy directives, and Executive orders must be complied with prior to making decisions on land acquisition. A compliance certificate or statement, signed by the Regional Director, should list these items and indicate when compliance was met. These requirements include, but are not limited to:
(1) Endangered Species Act (16 U.S.C. 1531-1544, 87 Stat. 884, as amended). An Intra-Service Section 7 Evaluation must be completed for any land acquisition proposal that may affect listed or proposed species and/or their critical habitat. A formal internal consultation and biological opinion are required if the proposal will adversely affect a listed or proposed species.
(2) National Environmental Policy Act of 1969. All proposals shall
include evidence of NEPA compliance (an Environmental Action Memorandum (EAM)
with either a Statement of Categorical Exclusion, a Finding of No Significant
Impact, or a Record of Decision). The EAM serves as the vehicle for the review
and final approval for all Service actions that require NEPA documentation and
establishes the administrative record of compliance. At a minimum, the Regional
Director's signature is required on all EAMs involving EAs. The Regional
Director should determine the appropriate signatures to include. For actions
categorically excluded from NEPA and where a record of the Service's decision
is appropriate, only the signature of the initiator of the action should be
provided. (The Service's NEPA guidelines are described under 550 FW.)
(3) Environmental Site Assessment. The primary purpose of the environmental site assessment process is to protect the Service from acquiring interests in property for which it may become liable for hazardous substance-related or other environmental cleanup costs or damage. A secondary purpose of the survey process is to ensure the Service is not acquiring interest in habitat that would be detrimental to the health of fish and wildlife species for which the habitat is being acquired. (See 341 FW 3.)
(4) Executive Orders (E.O.) 11988 and 11990. The Service's prescribed procedures to be followed by all units of the Service in carrying out E.O. 11988 - Floodplain Management and E.O. 11990 - Protection of Wetlands are contained in 613 FW 1-2. All land acquisition proposals must be consistent with these directives and procedures.
(5) Executive Order 12372. The coordination process previously prescribed in OMB Circular A-95 for Intergovernmental Review of Federal Programs was developed to provide a formal vehicle for early evaluation, review, and coordination of Federal or Federally assisted activities with State and local governments. Executive Order 12372 rescinded Circular A-95 and left to each State the responsibility to establish its own clearinghouse function. In most instances, States have initially elected to maintain a similar system to that set up under A-95. Some States are no longer maintaining their clearinghouse functions. In those cases, Regions must ensure distribution of the acquisition documentation to the appropriate State agencies. (See 510 FW.)
(6) Cultural Resources. The National Historic Preservation Act of 1966, as amended (Sections 106 and 110) (16 U.S.C. 470 - 470x), requires all divisions of the Service to identify, evaluate, manage, and protect archeological, historic, and historic architectural resources. If such resources exist on land proposed for acquisition, they should be described in as much detail as possible. Such information should be gathered in consultation with the Regional historic preservation officer and State historic preservation officer. Potential identification, evaluation, protection, and management problems should be discussed. (See 614 FW)
(7) Coastal Zone Management Act - Section 307 of the Federal Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et. seq.), requires Federal agencies to conduct activities in a manner consistent with approved State Coastal Zone Management (CZM) programs. Certain Service activities (e.g., land acquisition), including development projects (e.g., establishment of wildlife refuges, fish hatcheries, research stations, etc.), may require compliance with State CZM programs and the Federal consistency requirements. All consistency determinations or, where appropriate, a negative declaration should be prepared in accordance with the Federal regulations (15 CFR Part 930; 44 FR 123, June 25, 1979). (See 613 FW 3)
(8) Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 - P.L. 91-646 as amended, establishes uniform land acquisition policies for all Federal agencies and establishes requirements for the uniform and equitable treatment of persons displaced from their homes, businesses, or farms by Federal or Federally assisted programs, including land acquisition.
2.6 Supplemental Reports. While the basic core report (i.e., NEPA documentation or report) can be adopted as described above to provide much of the information needed for decision making, land acquisition decisions usually require additional material and data. The following reports should also be completed during the detailed planning process to supplement the core report:
Realty Land Acquisition Feasibility Report, Engineering Assessment, Land Protection Plan, and Conceptual Management Plan or Comprehensive Management Plan.
A. Realty Land Acquisition Feasibility Report.
(1) Since the planning process requires consideration of a number of alternatives, this report must also look at the same basic options. Factors such as land costs, relocation problems, and the like may be the key on which plan selection is based. Effective planning in this regard requires close liaison between the biological planning staff and the realty staff. For each alternative considered for possible adoption, a preliminary evaluation of the following should be made:
(a) Ownership pattern.
(b) Potential willing/unwilling sellers.
(c) Government attitude (local and State).
(d) Legislative requirements.
(e) Relocation plan summary (see the Relocation Handbook for (341 FW 2 for details).
(f) Revenue sharing.
(g) Compliance (legal, political, appraisal, etc.).
(2) Although the final acquisition estimate for land and improvements is presented as a lump sum, the estimate should be based on the following:
(a) Direct cost of acquisition based on current estimate.
(b) Land appreciation projected over a reasonable period to a proposed date of project initiation. Presumptions on projections should also be stated.
(c) Indirect costs of acquisition (appraisals, negotiations, title evidence, surveys, closing, relocation, etc.) may entail a certain amount of projection.
(3) The report must identify any significant area of land to be added in excess of biological and/or engineering requirements solely to facilitate acquisition; e.g., the inclusion of uneconomic remnants and remainders to avoid large severance damages. The report must also identify any additional land that must be acquired or protected in order to establish the unit, such as the remainder of a drainage or irrigation district. Cost estimates, both with and without this additional land, must be clearly stated so that the significance of these actions is readily apparent to the decision makers.
(4) Other Information. During the study, additional data, other than real estate values, should be obtained. The size and nature of a project will generally dictate what additional facts are needed to get an overall picture of the proposed project and surrounding area and the impact the project could have on the locality. Some of these data are:
(a) The general financial situation of the county or counties where the project is located. This should include the county tax or mill rate schedule showing the proposed distribution of taxes to the State, county, school districts, roads, and other purposes.
(b) Information on the effect the project will have on drainage and irrigation districts partly or wholly within the proposed project.
(c) Other impacts of the project on the local area that should be identified may include the impact on an individual, on adjacent landowners, or on the local community at large.
(d) General information on the relocation aspects of the project under P.L. 91-646; i.e., approximate number of people; type of occupancy, businesses, farms, and ranches to be displaced; and the adequacy of the locality to absorb the displaced persons.
(e) Any possible acquisition problems uncovered during the feasibility study should be discussed, as well as any other matters that might have a bearing on the proposed project or would be helpful in considering the proposal.
(f) Include project map and color pictures.
(g) The report format should be varied to meet the complexities and nature of the particular project being studied.
(5) A land acquisition strategy shall be developed for the alternative being recommended and shall outline, in the order of acquisition priority, such factors as resource protection, public and administrative uses, changing land values and uses, and willingness of owners to sell. The land acquisition strategy should also address any proposed schedule for the transfer of property under the jurisdiction of other Government agencies. For projects that will have a complex and drawn out land acquisition program, the general strategy developed at this stage should be updated and expanded, after project inception, into a land acquisition plan.
B. Engineering Assessment.
(1) An Engineering Assessment should be provided in this phase of the land acquisition planning process. The assessment should be designed to apprise all parties of all engineering aspects of the proposed land acquisition. Close coordination between Realty, Refuges, and Engineering is necessary to determine the scope of the Engineering Assessment, which will vary depending on the proposed uses of the land to be acquired. If the land is to be developed for high intensity use by the public or structured developments for habitat management, the Engineering Assessment should address those elements critical to such development. If the intended use is habitat preservation, the Engineering Assessment should only cover certain critical elements affecting this usage.
(2) The Engineering Assessment should cover the following items, as applicable:
(a) Areas suitable for development of administrative and/or operational facilities.
(b) Areas likely to experience severe flooding and/or erosion and the impact on the proposed land usage.
(c) Suitability of land for development and sanitary disposal.
(d) Evaluation of existing facilities (if any). The Engineering Assessment should specifically address the condition of existing facilities. The main element of this segment should be a narrative describing the condition of facilities, work required to bring the facilities up to standards, feasibility of keeping the facilities, and cost required to upgrade the facilities.
(e) Water requirements for development versus water available on site.
(f) Status, need, and availability of water rights for station operation and development.
(g) Evaluation of offside locations that would impact on the environmental viability of the land (sewage treatment facilities, landfills, proposed development, etc.).
(h) Evaluation of water quantity and quality available for human consumption and wildlife needs.
(i) Evaluation of available power supplies.
(j) Evaluation of soil conditions.
(k) Evaluation of topographic or geologic features.
C. Land Protection Plan (LPP).
(1) The purpose of the LPP is to provide information to the public in a clear and concise format outlining resource protection needs, the implementation schedule and priorities, and the dimensions of Service preservation proposals. Such information not only informs landowners and the public of Service plans, but can also reduce public speculation and eliminate misunderstanding of Service acquisition initiatives.
(2) Regional Directors are responsible for compliance with the Department of the Interior's policy on land protection. Regional Directors were given the discretion to determine which projects would require a LPP by considering the following four general criteria: the number of landowners, controversy, the size of the acquisition, and the amount of public involvement. Land Protection Plans will be prepared for all current and future acquisition projects unless a written request for an exemption is approved by the Director. Exemption will generally be granted for those projects that conform to all of the following criteria: involve small numbers of landowners with whom there can be easy, daily communication; are non-controversial and are not politically sensitive; and can be categorically excluded from NEPA planning requirements.
(3) Language should be non-technical and in layman's English (or other indigenous language in certain circumstances). Maps, charts, tables, and other graphic displays should be used to assist the understanding of the landowners. A priority tract table supplemented by a legible map should inform individual landowners how they will be impacted.
(4) In conjunction with the draft EA, a draft LPP will also be distributed to all landowners and interested public organizations, officials, and individuals. The draft LPP and EA will be revised based on public comments and updated information. Both the draft and final EA and LPP will be produced as stand alone documents, but may be bound in the same cover. There are ten items that should be addressed in all LPPS (items (a-j) below). The extent to which each item will be discussed will vary with the project situation and the perceived information needs of the landowning public to which it is addressed.
(a) Project Description. Describe the total refuge even if the proposed action is only a small addition. Include a description of the proposed addition. It should be clear why the land (habitat) involved is a valuable national natural resource.
(b) Threat to or Status of Resource to be Protected. Explain why the subject resource needs protection and why it needs protection at this time.
(c) Proposed Action and Objective. Items (b) and (c) are closely linked and may be discussed in the same paragraph(s) if preferred. Because these items present the principal justification for the action, they should be clearly and adequately presented. The plan should indicate the preferred protection alternative for each tract. It should identify the minimum level of protection needed to ensure the continuation of the target resource.
(d) Protection Alternatives. The LPP should indicate the most cost-effective approach to solving the problem and meeting the objectives. The following are the principal land protection alternatives available: No action (what the situation will be in absence of the action proposed); acquisition and/or management by others (e.g., a State fish and wildlife agency), and if acquisition is the selected route, should it be in fee title (all rights of land/water management, with or without mineral rights) or less-than-fee (conservation easement, lease, or other), or combination of the above. Positive as well as negative aspects of each should be discussed in enough detail for landowners to understand the alternatives. It should also be clear to landowners that the alternatives were seriously considered and evaluated. The alternative selected is the one that provides the minimum level of protection needed and is a cost-effective means of achieving project objectives. Management of a unit often involves activities, restrictions, or prohibitions to such an extent that a large portion of the property rights are acquired. The justification for fee acquisition should identify the rights needed for project objectives and why few, if any, rights remain with the landowner.
(e) Acquisition alternatives. This would include purchase using Land and Water Conservation Fund or Migratory Bird Conservation Fund monies, partial donations, donation, withdrawal, transfer, or exchange. In the discussion, care should be taken not to confuse or mix item (d) protection alternatives (ends) with acquisition alternatives (means).
(f) Coordination. Discussion of past and ongoing coordination is usually appropriate, keeping in mind for whom this document is being written.
(g) Sociocultural Impacts. Emphasis should be on cultural effects on local people; i.e., effects on life styles, activities, a traditional way of living, and well-being of landowners or others directly impacted by the proposed action. Effects on public health, safety, and education are the immediate concern. Will visitors likely harass or benefit the local people? If no sociocultural factor is to be affected, there is no point in trying to report them unless there is a significant local perception of impacts that is in error and should be addressed.
(h) Table: Summary of Proposed Action. The table should contain at least six items: (i) tract numbers or land description; (ii) protection priorities by tract or land description (this should also be discussed in the text explaining the rationale for the various priorities); (iii) acreages of tracts; (iv) ownerships (person's name or simply indicate private or named public agency), (v) type of protection by tract, and (vi) type of acquisition by tract.
(i) Maps. Include a map showing general location within the State, a map which zooms in on the proposal, and another with sufficient detail to identify individual tracts shown in the priority table (h above). In some situations, a single map could be used. The map itself may indicate priorities if priority classifications are grouped. The maps may also summarize other pertinent information; however, care should be taken to avoid confusing clutter.
(j) Pictures. Quality photographs or drawings with simple legends can illustrate the project and aid in the understanding of the project. However, reproduction can be a problem, and time and costs should be weighed against effectiveness in deciding to include them.
(5) In general, the LPP has evolved into an important part of the local public involvement aspect of planning. In cases where the landowners have not actively participated in planning, a reasonable length of time should elapse between release of the document and plan implementation. During this period of time, feedback can be obtained from the landowners that may strengthen or improve the plan. A comment period may not be necessary where there are few landowners and they have been involved in the planning or are otherwise well informed. In that case, the LPP will be a confirmation of intent. It is a line of communication with the public that is important and of interest and concern to all levels of the Service, the Secretariat, and at times, Congress.
D. Conceptual Management Plan.
(1) The purpose of the conceptual management plan is to provide at a minimum, a general outline on how the refuge would be operated and managed until the comprehensive management plan has been developed and is in place. The plan should be designed to answer those questions commonly posed by landowners and the general public during the entire planning and public involvement process. A sample conceptual management plan is provided on Exhibit 3 - Sample Conceptual Management Plan.
(2) In addition to the location and site map showing the proposed refuge, the conceptual management plan should include the following:
(a) Introduction--a very brief purpose statement for the concept management plan.
(b) Goals of the National Wildlife Refuge System--standard statement.
(c) Refuge Administration--a statement on the administrative aspects of the refuge including location of refuge headquarters, personnel requirements, facilities, and an estimated budget for the refuge.
(d) Habitat Management--a brief statement on the conceptual plans for management of the existing habitat including discussions on use of management tools to restore and/or enhance habitat (e.g. burning, impoundments, mowing).
(e) Population Monitoring--a brief statement on the need for population surveys on the refuge.
(f) Public Use Opportunities and Management--a statement on the preliminary plans for wildlife and wildlands oriented public use on the refuge, including discussions on public access, hunting, fishing, boating, environmental education, and law enforcement.
(g) Facilities Management--a discussion on the preliminary plans for the maintenance of the refuge facilities including the upkeep of the buildings, posting of refuge signs, and maintenance of the roads within the refuge boundary.
(h) Miscellaneous--this section should include discussions on other management plans for the refuge (e.g. fire management, pest control, etc.).
(3) As a conceptual plan, it does not provide extensive detail, pinpoint exactly where facilities would be, or show where public use would be allowed. Those details would be included in formal refuge management planning with input from the public and in accordance with the National Environmental Policy Act.
A. Decision Document. Upon completion of the detailed planning process, a decision is needed to determine whether or not to proceed with the land acquisition option. If there are viable and desirable alternatives that do not involve land acquisition, these should be pursued and the land acquisition planning process should be halted. If there are still pressing reasons to acquire land, it is necessary to assemble a DD, which is essentially the compilation and consideration of all documentation completed during the detailed land acquisition planning process (which includes core report or NEPA document, compliance certificate and documentation, supplemental reports, and the land protection plan).
(B) Regional Director's Decision. The Regional Director reviews and approves all DDs prior to submission to making a decision. Following his/her decision, three copies of each DD are to be transmitted to the Assistant Director - Refuges and Wildlife, Headquarters, and will be retained in the Division of Realty for future reference.
For additional information about this policy, contact the Division of Realty. For more information about this Web page, contact Krista Bibb, in the Division of Policy and Directives Management, at Krista_Bibb@fws.gov