[Federal Register Volume 88, Number 140 (Monday, July 24, 2023)]
[Proposed Rules]
[Pages 47442-47453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15453]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 29
[Docket No. FWS-HQ-NWRS-2019-0017; FF09R50000-XXX-FVRS8451900000]
RIN 1018-BD78
Streamlining U.S. Fish and Wildlife Service Permitting of Rights-
of-Way Across National Wildlife Refuges and Other U.S. Fish and
Wildlife Service-Administered Lands
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; revisions and reopening of the comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising
our proposed rule that would streamline our process for permitting of
rights-of-way across National Wildlife Refuge System lands and other
Service-administered lands. By aligning Service processes more closely
with those of other Department of the Interior (DOI) bureaus, to the
extent practicable and consistent with applicable law, we will reduce
the amount of time the Service requires to process applications for
rights-of-way across Service-managed lands. We originally proposed
revisions that included requiring a preapplication meeting and use of a
standard application, allowing electronic submission of applications,
and providing the Service with additional flexibility, as appropriate,
to determine the fair market value or fair market rental value of
rights-of-way across Service-managed lands. We now further propose new
permit terms and conditions and other regulatory changes. The Service
seeks comments on this revised proposed rule.
DATES: The public comment period on the proposed rule that published on
January 19, 2021, at 86 FR 5120, is reopened. We will accept comments
until August 23, 2023.
ADDRESSES: This revised proposed rule, the original proposed rule (86
FR 5120, January 19, 2021), supporting documents, and the comments we
received on the proposed rule are available at https://www.regulations.gov at Docket No. FWS-HQ-NWRS-2019-0017.
Information collection requirements: Written comments and
suggestions on the information collection requirements may be submitted
at any time to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or [email protected] (email).
Please reference ``OMB Control Number 0596-0249'' in the subject line
of your comments.
FOR FURTHER INFORMATION CONTACT: Ken Fowler, U.S. Fish and Wildlife
Service, MS: NWRS, 5275 Leesburg Pike, Falls Church, VA 22041; (703)
358-1876. Individuals in the United States who are deaf, deafblind,
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point of contact in
the United States.
SUPPLEMENTARY INFORMATION:
Background
The Service's mission is working with others to conserve, protect,
and enhance, fish, wildlife, plants, and their habitats for the
continuing benefit of the American people. The Service has some amount
of management responsibility for more than 96 million terrestrial acres
as well as an additional 760 million acres of submerged lands in marine
national monuments. The 96 million acres of terrestrial land includes
approximately 89 million acres where the Service is the principal land
manager and permitting authority; nearly 4.9 million acres of
conservation easements on private lands, where landowners are the
principal land managers, but the Service has a permitting role when a
proposed use will affect the United States' real property interest;
more than 1.7 million acres of public land where another Federal agency
is the principal land manager and permitting authority, but where the
Service has some management responsibility through an agreement with
another agency; and approximately 775,000 acres under a temporary lease
or agreement where another entity is the permitting authority.
Of the 89 million acres of terrestrial land principally managed by
the Service, 76.8 million acres are in Alaska, 12.2 million acres are
in the lower 48 States, and 50,000 acres are in Hawaii. The vast
majority of these acres are part of the National Wildlife Refuge System
(Refuge System), the mission of which is to administer a national
network of lands and waters for the conservation, management, and where
appropriate, restoration of the fish, wildlife, and plant resources and
their habitats within the United States for the benefit of present and
future generations of Americans (16 U.S.C. 668dd(a)(2)). The total also
includes approximately 21,000 acres of public land in the National Fish
Hatchery System, which the Service manages for the propagation and
distribution of fish and other aquatic animal life.
The 89 million acres of terrestrial land includes more than 20
million acres of designated wilderness that the Service manages for
``the preservation of their wilderness character'' in accordance with
the Wilderness Act of 1964 (16 U.S.C. 1131 et seq.). Subject to
existing private rights, and special provisions included in specific
wilderness-designation statutes and the Alaska National Interest Lands
Conservation Act (ANILCA; Pub. L. 96-487; 16 U.S.C. 3101 et seq.), the
Wilderness Act prohibits commercial enterprises and permanent roads.
The law also prohibits temporary roads; motor vehicles, motorized
equipment, motorboats, landing of aircraft, and other forms of
mechanical transport; structures; and installations, unless their use
can be
[[Page 47443]]
demonstrated to be necessary to meet minimum requirements for the
administration of the area for Wilderness Act purposes.
Statutory Authority
Refuge System lands and waters are managed according to the
authorities of the National Wildlife Refuge System Administration Act
of 1966 (Administration Act; 16 U.S.C. 668dd-668ee), as amended by the
National Wildlife Refuge System Improvement Act of 1997 (Improvement
Act; Pub. L. 105-57), and ANILCA. For lands in Alaska, the Improvement
Act specifies that ANILCA provisions prevail in any situation in which
there is a conflict between any provision in the Improvement Act and
any provision of ANILCA. If a right-of-way across Refuge System lands
is specifically authorized by ANILCA, then the Service must follow the
procedures in 43 CFR part 36 when permitting the right-of-way and
follow other applicable Refuge System laws and regulations where they
do not conflict with ANILCA.
The Administration Act authorizes the Service to permit a new use,
or expand, renew, or extend an existing use, of a refuge only when the
Service determines it is a compatible use. The term ``compatible use''
means a wildlife-dependent recreational use or any other use of a
refuge that, in the sound professional judgment of the Service
Director, will not materially interfere with or detract from the
fulfillment of the mission of the Refuge System or the purpose(s) of
the refuge.
Compatible Use Determinations
A ``compatibility determination'' is a written determination,
signed and dated by the Refuge Manager, that an existing or new use of
a refuge is compatible with the Refuge System mission and the
purpose(s) of the refuge. Currently, there are more than 560 national
wildlife refuges, and each refuge has different establishing
authorities, purposes, habitat types, wildlife species, and public
uses, which can result in different compatibility determinations for
the same use. The Improvement Act required the Service to issue
regulations establishing a process for determining whether a proposed
use is a compatible use; these regulations are set forth in title 50 of
the Code of Federal Regulations in part 26. The Improvement Act
authorizes the Service to permit a right-of-way across Refuge System
land only when the right-of-way is a compatible use.
The Improvement Act's compatibility requirements apply only to
Service permitting of rights-of-way across Refuge System lands and do
not apply to other Service lands, except in the case of National Fish
Hatchery System lands, where, by regulation at 50 CFR 70.6, the Refuge
compatibility requirements in 50 CFR part 26 are equally applicable to
fish hatcheries, and at 50 CFR 70.7, where the right-of-way regulations
are equally applicable to fish hatcheries. The Service processes
applications for other rights-of-way across lands outside the Refuge
System and National Fish Hatchery System under the applicable authority
cited at 43 CFR part 2800, and these lands are not subject to the
Improvement Act's compatibility requirement.
The Administration Act authorizes the Secretary of the Interior,
acting through the Service Director, to issue a right-of-way permit
across Refuge System lands only after the applicant pays the Service
the fair market value or fair market rental value of the right-of-way,
unless the applicant is exempt from such payment by any other provision
of Federal law, including ANILCA title XI. In addition, before issuing
a right-of-way permit, the Service must assess the effects of the
proposed use, as required by the National Environmental Policy Act of
1969 (NEPA; 42 U.S.C. 4321 et seq.); the Endangered Species Act of 1973
(ESA; 16 U.S.C. 1531 et seq.), as amended; the National Historic
Preservation Act of 1966 (NHPA; 54 U.S.C. 300101 et seq.); and other
applicable laws and Executive orders.
Existing Rights-of-Way
The regulations at 50 CFR 26.41 state that, for existing rights-of-
way, the Service will not make a compatibility determination and will
deny any request for maintenance of an existing right-of-way that will
affect a unit of the Refuge System, unless:
The design adopts appropriate measures to avoid resource
impacts and includes provisions to ensure no net loss of habitat
quantity and quality;
Restored or replacement areas identified in the design are
afforded permanent protection as part of the national wildlife refuge
or wetland management district affected by the maintenance; and
All restoration work is completed by the applicant prior
to any title transfer or recording of the easement, if applicable.
In accordance with the Improvement Act, in instances where an
existing use is authorized for more than 10 years (such as an electric
utility right-of-way), the Service will not reevaluate whether the use
is a compatible use during the permit term so long as the right-of-way
holder is in compliance with all the terms and conditions of the
permit. In a permit's terms and conditions, the Service may require
permit modifications at a future date to ensure that the use remains a
compatible use. All right-of-way permits issued by the Service include
language allowing the Service to terminate the right-of-way permit if
the permittee's use violates the permit terms and conditions.
Additionally, this proposed rule and the Improvement Act's
compatibility requirement do not apply to permanent rights-of-way in
existence prior to land acquisitions by the United States, including
prior existing highway rights-of-way held by State and local units of
government, except in situations where there is a proposed expansion,
rerouting, or additional use of a right-of-way that will encumber
Refuge System lands. The Improvement Act requires that all uses of
Refuge System lands be compatible with the purpose(s) for which those
areas were established and the mission of the Refuge System, and
activities not authorized by a preexisting right-of-way are subject to
50 CFR 26.41 and the procedures in this proposed rule.
The Service may not authorize an expansion, rerouting, or
additional use of a right-of-way that will encumber Refuge System lands
unless the use is compatible with the purpose(s) for which those areas
were established and the Refuge System mission.
Original Proposed Amendments to the Right-of-Way Regulations
On January 19, 2021, we published in the Federal Register (86 FR
5120) a proposed rule to revise and streamline Service regulations for
permitting of rights-of-way by aligning Service processes more closely
with those of other DOI bureaus, to the extent practicable and
consistent with applicable law. The original proposed rule proposed to
revise the Service's regulations in 50 CFR part 29, subpart B, for
permitting of rights-of-way across Service lands. The proposed changes
would streamline the right-of-way permitting process for proposed uses
on Service-managed lands and reorganize the right-of-way regulations.
For a description of the substantive changes originally proposed to the
regulations in 50 CFR part 29, subpart B, see the January 19, 2021,
proposed rule (86 FR 5120).
Summary of Comments and Responses
We accepted public comments on the proposed rule for 60 days,
ending March 22, 2021. By that date, we received 15 comments on the
proposed rule. Three
[[Page 47444]]
comments suggested that the Service make no changes to its regulations
to streamline right-of-way permitting. Overall, nine comments suggested
no additional changes to those we had proposed. We discuss the
remaining comments by topic, below.
Comment (1): The State of Alaska and Doyan, an Alaska Native
corporation, commented that ANILCA authorizes certain types of rights-
of-way in Alaska, and that these rights-of-way have their own set of
regulations in 43 CFR part 36.
Our Response: In this document, we updated the proposed rule to
clarify that rights-of-way authorized by ANILCA must follow the
procedures in 43 CFR part 36.
Comment (2): The State of Utah and the Incorporated Research
Institutions for Seismology suggested that, in remote areas, requiring
an applicant to provide a survey plat prepared by a licensed
professional land surveyor or another professional licensed by the
State will create an unnecessary burden. These commenters suggested
that, in remote areas located far from any road system, the Service
should waive the requirement for an applicant to provide a survey plat
before the Service will issue a right-of-way permit.
Our Response: The regulations as previously written required
applicants to provide documentation that ``show the right-of-way in
such detail that the right-of-way can be accurately located on the
ground.'' As part of the development of the proposed rule, the Service
reviewed different types of location information, including GIS
coordinates, provided by some applicants in lieu of a survey plat, and
found that the information was generally insufficient for the Service
to accurately locate these sites on the ground.
The purpose of the revised land-survey portion of the proposed
regulations is to standardize applicant documentation that supports the
geographic location, linear length and direction, and overall land area
for those uses that will alter the landscape or otherwise provide for
long-term exclusive use of Federal land within national wildlife
refuges. The proposed rule requires an applicant to provide a survey
plat prepared by a licensed professional land surveyor or another
professional licensed by the State before the Service will issue a
right-of-way permit. However, the proposed rule does not require
applicants to submit a survey plat with their initial application, and,
in most cases, the Service is able to determine whether a proposed use
is a compatible use before the applicant must provide a survey plat.
The Service recognizes the challenges in surveying rights-of-way in
remote areas. However, the Service requires that a tenable right-of-way
boundary is in place and locatable on the ground. We did not make any
changes to the proposed rule as a result of these comments.
Comment (3): The Incorporated Research Institutions for Seismology
singled out the EarthScope: Transportable Array project, which installs
seismic monitoring stations in remote locations throughout Alaska, as a
scientific project that will be burdened if the Service requires
applicants to provide a survey plat before the agency permits a right-
of-way.
Our Response: The Service issues right-of-way permits to authorize
longer term uses, typically uses lasting 10 years or more. The Service
issues special use permits to authorize short-term uses of Refuge
System lands, and special use permits do not require a survey plat. To
authorize nonpermanent placement of equipment on Refuge System lands
for short-term scientific research purposes, the Service may issue a
special use permit if the Service determines the use is a compatible
use. We did not make any changes to the proposed rule as a result of
these comments.
Comment (4): ExteNet Systems suggested that the Service exempt
``small wireless facilities'' (as that term is defined at 47 CFR
1.6002(l)) from the requirement to pay the fair market value or fair
market rental value for use and occupancy of Service land, and, in its
place, implement a fixed use and occupancy fee of $270 per year for
each small wireless facility.
Our Response: The Administration Act requires the Service to obtain
payment of fair market value or fair market rental value for use and
occupancy of Refuge System land before permitting a right-of-way. If
the Department of the Interior approves a fee schedule for small
wireless facilities that assesses the fair market value or fair market
rental value for use and occupancy of Federal land for small wireless
facilities, then this rule would allow the Service to use that fee
schedule. We did not make any changes to the proposed rule as a result
of these comments.
Comment (5): The State of Alaska and the State of Utah stated that
the Service has no authority to regulate lands within existing State
road and highway systems, and they requested that the Service clarify
that these proposed regulations do not apply to existing State road and
highway systems.
Our Response: This proposed rule has no impact on prior existing
highway rights-of-way held by State and local units of government on
FWS-administered land, except that, consistent with 23 CFR 645.205,
activities not authorized by a prior existing highway right-of-way, as
well as activities that fall outside the footprint of an existing
right-of-way, are subject to 50 CFR 26.41 and the procedures in this
revised proposed rule. Under 50 CFR 26.41, which implements the
Improvement Act's compatible-use requirement, the Service may not
authorize an expansion, rerouting, or additional use of a right-of-way
that will encumber Refuge System lands unless the use is compatible
with the purpose(s) for which those areas were established. We did not
make any changes to the proposed rule as a result of these comments.
Comment (6): The National Rural Electric Cooperative Association
suggested that the Service clarify that the compatible-use requirement
for rights-of-way across Refuge System land does not apply to Service
lands outside the Refuge System.
Our Response: We clarified that Refuge compatibility requirements
do not apply to lands outside the Refuge System and National Fish
Hatchery System. By regulation at 50 CFR 70.6, the Refuge compatibility
requirements in 50 CFR part 26 are applicable to fish hatcheries.
Comment (7): A commenter suggested we eliminate gender-specific
references.
Our Response: We agree and made appropriate changes to the proposed
regulatory text in this revised proposed rule.
Changes From the Proposed Rule
As discussed above, under Summary of Comments and Responses, we
made changes to the proposed rule based on comments we received. We
clarified that permitting for rights-of-way authorized by ANILCA must
follow the procedures in 43 CFR part 36. We clarified that the
compatible-use requirement for rights-of-way applies to rights-of-way
on Refuge System land and does not apply to rights-of-way on other
Service lands, except in the case of National Fish Hatchery System
lands, where, by regulation at 50 CFR 70.6, the Refuge compatibility
requirements in 50 CFR part 26 are equally applicable to fish
hatcheries. We also eliminated gender-specific references in the
proposed rule.
In addition to these changes, we determined that additional
regulatory revisions are also necessary for clarity and to align
Service requirements more
[[Page 47445]]
closely with those of other DOI bureaus. Under Sec. 29.21-3, we
clarified that our evaluation of rights-of-way previously permitted for
more than 10 years will examine compliance with the terms and
conditions of the authorization and not reexamine the original
authorization, consistent with 16 U.S.C. 668dd(d)(3)(B)(vii). Under
Sec. 29.21-7, we clarified that a permit will be issued for a term of
up to 50 years when the Service Regional Director deems it appropriate,
or for a lesser term, as the existing regulatory language authorizing a
permit term (i.e., generally up to 50 years, or so long as the permit
is used for the purpose for which it was issued, or for a lesser term
when considered appropriate) is interpreted inconsistently by different
Service Regional offices.
Under Sec. 29.21-4(b)(2), we clarified that an applicant must
provide an environmental analysis for a proposed new right-of-way, but
that an environmental analysis for renewals of existing rights-of-way
that involve no changes to the permitted use need address only the
impacts of ongoing operation and maintenance and any new statutory
requirements since the original permit issuance. We also clarified
that, before the Service will issue a right-of-way permit, an applicant
must provide a preliminary site and facility construction plan for a
proposed right-of-way that requires construction, and provide a
vegetation management plan when vegetation will be disturbed by
construction, operation, or maintenance of the right-of-way; however,
this proposed rule would provide the Service Regional Director
discretion with respect to timing, i.e., when the Service requires this
information. The original proposed rule left it to a Regional Director
to determine, in all cases, whether the Service requires an
environmental analysis, preliminary construction plan, and vegetation
management plan.
Consistent with our goal of aligning Service processes more closely
with those of other DOI bureaus, we propose to update Sec. 29.21-6 to
clarify our cost-recovery procedures for application processing and
monitoring of rights-of-way. Under proposed Sec. 29.21-6(c)(2), the
Regional Director has the discretion to waive reimbursement for Service
costs for right-of-way application evaluation and processing activities
and monitoring activities so long as there are appropriated funds for
these activities. Under Sec. 29.21-6(d), we clarified that payments
received by the Service to reimburse the United States for the costs
incurred in evaluating and processing applications, and for monitoring,
will be deposited into the United States Treasury until such time that
any provision of law allows these payments to supplement the Service's
appropriation.
Under Sec. 29.21-8, we updated our proposed permit terms and
conditions to make them more consistent with those of other DOI
bureaus. We also clarified that certain permit terms and conditions are
always required and cannot be waived, and that other terms and
conditions are required but may be waived if the Regional Director
determines they are not relevant to the requested use. Under Sec.
29.21-8(e), we added the option for the Service to require a bond for a
right-of-way when the Regional Director determines that the Service is
likely to incur reclamation costs due to the construction or operation
of the right-of-way, or if the right-of-way is abandoned or terminated;
similar to the Bureau of Land Management, we propose to exempt Federal,
State, and local governments from these bonding requirements. Under
Sec. 29.21-8(f), we added terms and conditions for rights-of-way for
communications facilities to implement the Mobile Now Act (47 U.S.C.
1455(d)(1)).
Under Sec. 29.21-11(b), we clarified that the terms of the right-
of-way permit will specify the amount of the lump sum paid by the
applicant for use and occupancy during the current permit term, or, if
applicable, the initial annual rental payment amount for use and
occupancy of the permitted area. Under Sec. 29.21-11(d), we clarified
that, consistent with 16 U.S.C. 668dd(d)(2), payments received by the
Service for use and occupancy of rights-of-way on Refuge lands and
interests in land will be deposited into the Migratory Bird
Conservation Fund to carry out the provisions of the Migratory Bird
Conservation Act (16 U.S.C. 715 et seq.) and the Migratory Bird Hunting
Stamp Act (16 U.S.C. 718 et seq.). We also clarified that, consistent
with 16 U.S.C. 715s(a), payments received for use and occupancy of
rights-of-way on other Service-managed lands and interests in land will
be deposited into the National Wildlife Refuge Fund, to make payments
annually to counties and other units of local government.
We propose to revise Sec. 29.21-13(m) to be consistent with Public
Law 101-475, enacted October 3, 1990, which amended the Mineral Leasing
Act to eliminate the 60-day waiting period after the Secretary of the
Interior notifies Congress of DOI's intention to permit a right-of-way
for a pipeline 24 inches or more in diameter that will be used for the
transportation of oil, natural gas, synthetic liquid or gaseous fuels,
or any refined product produced from these substances.
Finally, we updated the structure of the regulatory language to
improve readability.
Required Determinations
As stated above, before issuing a right-of-way permit, the Service
must assess the effects of the proposed use, as required by NEPA, the
ESA, and the NHPA as well as other applicable laws and Executive
orders. In regard to NEPA, we believe that this proposed rulemaking
action qualifies for a categorical exclusion as described in 43 CFR
46.210(i) for rulemaking actions that are primarily procedural in
nature. As set forth in that regulation, under this proposed rule, we
will conduct NEPA analysis for individual permit applications.
For descriptions of our actions to ensure compliance with the
following statutes and Executive orders, see our January 19, 2021,
proposed rule (86 FR 5120):
Regulatory Flexibility Act;
Paperwork Reduction Act of 1995;
Unfunded Mandates Reform Act;
Executive Orders 12630, 12866, 12988, 13132, 13175, 13211,
and 13563.
List of Subjects in 50 CFR Part 29
Public lands mineral resources, Public lands rights-of-way,
Wildlife refuges.
Proposed Regulation Promulgation
For the reasons given in the preamble, we hereby propose to further
amend part 29, subchapter C of chapter I, title 50 of the Code of
Federal Regulations, as proposed to be amended January 19, 2021, at 86
FR 5120, as set forth below:
PART 29--LAND USE MANAGEMENT
0
1. The authority citation for part 29 continues to read as follows:
Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, 685, 690d,
715i, 725, 3161; 30 U.S.C. 185; 31 U.S.C. 3711, 9701; 40 U.S.C. 319;
43 U.S.C. 315a; 113 Stat. 1501A-140.
0
2. Amend Sec. 29.21 by:
0
a. Revising the section heading;
0
b. Adding introductory text;
0
c. Adding the definitions for ``ANILCA'' and ``National Fish Hatchery
System land'' in alphabetical order;
0
d. Revising the definitions for ``National Wildlife Refuge System
land'' and ``Other lands''; and
0
e. Adding the definitions for ``Regional Director'' and ``Right-of-
way'' in alphabetical order.
The revisions and additions read as follows:
[[Page 47446]]
Sec. 29.21 Definitions.
In this subpart, the following terms will have the meanings set
forth in this section:
ANILCA means the Alaska National Interest Lands Conservation Act
(16 U.S.C. 3101 et seq.).
* * * * *
National Fish Hatchery System land means lands and waters, and
interests therein, administered by the Secretary to propagate and
distribute fish and other aquatic animal life and managed for the
protection of all species of wildlife.
National Wildlife Refuge System land means lands and waters, and
interests therein, administered by the Secretary under the National
Wildlife Refuge System Administration Act (16 U.S.C. 668dd-668ee), as
amended, including wildlife refuges, game ranges, wildlife management
areas, conservation areas, waterfowl production areas, and other areas
administered for the protection and conservation of fish, wildlife, and
plant species.
Other lands mean all other lands, or interests therein, and waters
administered by the Secretary through the U.S. Fish and Wildlife
Service that are not included in the National Wildlife Refuge System or
the National Fish Hatchery System, e.g., administrative sites.
* * * * *
Regional Director means the official in charge of a region of the
U.S. Fish and Wildlife Service or an authorized representative of the
Regional Director. When the regulations in this part require the
Regional Director's signature or written approval, only the Regional
Director or the person acting in the Regional Director's official
capacity may sign.
Right-of-way means a use on, under, or over Federal lands that is
authorized pursuant to a right-of-way permit issued by the U.S. Fish
and Wildlife Service, unless the use is included in a contract for
services to a Service facility or if the use is requested by the
Service to benefit the mission of the National Wildlife Refuge System
or the National Fish Hatchery System.
0
3. Revise Sec. 29.21-1 to read as follows:
Sec. 29.21-1 Purpose and scope.
The regulations in this subpart prescribe the procedures for filing
applications and the terms and conditions under which rights-of-way
over and across the lands administered by the U.S. Fish and Wildlife
Service may be permitted.
(a) National Wildlife Refuge System lands except lands in Alaska.
Applications for all forms of rights-of-way on or over such lands must
be submitted under authority of Public Law 89-669, as amended (80 Stat.
926; 16 U.S.C. 668dd), or for oil and gas pipelines under section 28 of
the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.),
following the application procedures set out in Sec. 29.21-4. The
Service will not permit a right-of-way unless it meets the
compatibility-determination requirement described in Sec. 29.21-3. See
Sec. 29.21-12 for additional requirements applicable to rights-of-way
for electric power transmission lines and Sec. 29.21-13 for additional
requirements applicable to rights-of-way for pipelines for the
transportation of oil, natural gas, synthetic liquid or gaseous fuels,
or any refined product produced from these substances.
(b) National Wildlife Refuge System lands in Alaska. Applications
for rights-of-way authorized under title XI of ANILCA must be submitted
under authority of 16 U.S.C. 3101 et seq. and follow the procedures and
requirements set forth in 43 CFR part 36 and other applicable Refuge
laws and regulations where they do not conflict with ANILCA.
Applications for all other rights-of-way on or over lands in Alaska
must be submitted under authority of 16 U.S.C. 668dd, as amended, or
for oil and gas pipelines under section 28 of the Mineral Leasing Act
of 1920, as amended (30 U.S.C. 181 et seq.), following the application
procedures set out in Sec. 29.21-4.
(c) National Fish Hatchery System lands. Applications for rights-
of-way across National Fish Hatchery System lands follow the same
procedures as applications for rights-of-way across National Wildlife
Refuge System lands.
(d) National Wildlife Refuge System lands--less than fee interest.
The Service requires permits for rights-of-way that may affect a
property interest acquired by the United States. If the requested
right-of-way or regular maintenance of the requested right-of-way may
affect the United States' interest, then an application for a right-of-
way permit must be submitted in accordance with procedures set forth in
Sec. 29.21-4, except those applications for rights-of-way authorized
under title XI of ANILCA will follow the procedures set forth in 43 CFR
part 36. If the Regional Director determines that the requested right-
of-way and regular maintenance of the requested right-of-way will not
adversely affect the United States' interest, then the Regional
Director will sign a letter to the applicant stating that the proposed
right-of-way will not affect the interest of the United States and the
Service has no objection to the fee owner allowing the right-of-way.
(e) Other lands outside the National Wildlife Refuge System and
National Fish Hatchery System. Rights-of-way on or over other lands
will be permitted in accordance with controlling authorities cited in
43 CFR part 2800, or for oil and gas pipelines under section 28 of the
Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.). See
Sec. 29.21-12 for additional requirements applicable to rights-of-way
for electric power transmission lines and Sec. 29.21-13 for additional
requirements applicable to rights-of-way for pipelines for the
transportation of oil, natural gas, synthetic liquid or gaseous fuels,
or any other refined product produced from those substances.
Applications must be submitted in accordance with procedures set out in
Sec. 29.21-4, except that the compatibility-determination requirement
in Sec. 29.21-3 does not apply to lands outside the National Wildlife
Refuge System and National Fish Hatchery System.
0
4. Revise Sec. 29.21-2 to read as follows:
Sec. 29.21-2 Preapplication meeting.
Before submitting an application for a permit for a new right-of-
way or a modification of an existing right-of-way across lands managed
by the Service, an applicant must contact the appropriate Regional
Director to schedule a preapplication meeting with the Service. Contact
information for the Service Regional Offices is available at https://www.regulations.gov in Docket No. FWS-HQ-NWRS-2019-0017. There is no
fee for the preapplication meeting. During the meeting, the applicant
may ask questions about the application process, provide information
about the scope of the requested right-of-way and its location, and
receive feedback. The Service will advise the applicant of the
documentation required for the Service to review and process the
application, provide an estimated timeline for the Service to review
and process the application, and ask the applicant to provide
information necessary for the Service to estimate application
processing costs (See Sec. 29.21-6(a)(2)).
0
5. Redesignate Sec. Sec. 29.21-3 through 29.21-9 as Sec. Sec. 29.21-7
through 29.21-13, respectively, and add new Sec. Sec. 29.21-3 through
29.21-6, to read as follows:
Sec. 29.21-3 Compatibility-determination requirement.
Consistent with the National Wildlife Refuge System Administration
Act, as amended (16 U.S.C. 668dd-668ee), and the procedures set forth
in Sec. 26.41 of this chapter, the Service will not permit
[[Page 47447]]
or renew a right-of-way across National Wildlife Refuge System land
unless the Service determines that the use is compatible with the
mission of the Refuge System and the purpose(s) of the refuge. This
requirement does not apply to the access of privately owned minerals,
or when access is required by any other prevailing provision of law. In
the case of any right-of-way previously permitted for a period longer
than 10 years (such as an electric utility right-of-way), the Service
will not reevaluate whether the permitted use is a compatible use
during the permit term so long as the right-of-way permit holder is in
compliance with all the terms and conditions of the permit. The
requirements and procedures of Sec. 26.41(c) of this chapter apply to
any requested maintenance of or modifications to an existing right-of-
way. No compatibility determination is necessary to permit or renew a
right-of-way across lands outside of the National Wildlife Refuge
System and the National Fish Hatchery System.
Sec. 29.21-4 Application procedures.
(a) Preapplication meeting. To request the preapplication meeting
required by Sec. 29.21-2, contact the appropriate Service Regional
Office, the geographic jurisdictions of which are listed at 50 CFR 2.2.
Contact information for the Service Regional Offices is available at
https://www.regulations.gov in Docket No. FWS-HQ-NWRS-2019-0017.
(b) Application. Applicants must use Standard Form 299 (SF-299),
Application for Transportation and Utility Systems and Facilities on
Federal Lands, to request new rights-of-way, modifications of existing
rights-of-way, and renewals of existing rights-of-way. In addition to a
completed and signed SF-299, each application must include the
attachments described in paragraphs (b)(1) and (2) of this section.
There is no application fee, but applicants must reimburse the Service
for its costs to evaluate and process the application, as set forth at
Sec. 29.21-6(a). See paragraph (d) of this section for submission
instructions.
(1) Map. The map must show a general view of the proposed right-of-
way and a detailed view of the proposed project area in relationship to
the Service boundary. If the proposed right-of-way is within a Public
Land Survey System area, the map must show the section(s), township(s),
and range(s) within which the proposed right-of-way would be located.
See Sec. 29.21-5 for requirements regarding a survey plat and legal
description of the area.
(2) Environmental analysis. The environmental analysis supplements
the basic environmental information on the SF-299 and must include
information concerning the impact of the proposed right-of-way on the
environment, including, but not limited to, the impact on air and water
quality; scenic and aesthetic features; historic, architectural,
archeological, and cultural features; and wildlife, fish, and marine
life, including habitat connectivity and migratory routes.
(i) The environmental analysis must include sufficient data to
enable the Service to prepare a compatibility determination; prepare an
environmental assessment or environmental impact statement in
accordance with section 102(2)(C) of the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.); and comply with the requirements
of the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712), the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the Wilderness
Act of 1964 (16 U.S.C 1131 et seq.), the Wild and Scenic Rivers Act of
1968 (16 U.S.C. 1271 et seq.), and the National Historic Preservation
Act of 1966 (54 U.S.C. 300101 et seq.). To comply with the National
Environmental Policy Act, an environmental assessment or environmental
impact statement prepared by another Federal agency, the applicant, or
the applicant's contractor may be sufficient; however, in all cases,
this documentation must be prepared in consultation with the Regional
Director.
(ii) For renewals of existing rights-of-way that involve no changes
to the permitted use, the environmental analysis need address only the
impacts, including the cumulative effects, of the ongoing operation and
maintenance of the right-of-way, as well as any statutory requirements
not in place and therefore not considered at the time of original
permit issuance.
(c) Other required documents. Unless otherwise stated in this
section, the Service requires the following additional documents before
issuing a right-of-way permit. During the preapplication meeting or in
a subsequent communication, the applicant will be informed when the
Service requires this information and other information, which the
applicant must provide after the initial application submission but
before a right-of-way permit may be issued.
(1) Survey plat and legal description. See Sec. 29.21-5 for
requirements.
(2) Preliminary site and facility construction plans. These plans
are required for applications for rights-of-way or renewals of rights-
of-way where construction is required. They must show all proposed
construction work and include a list of equipment to be used in
construction and a proposed construction timeline.
(3) Vegetation management plan. A vegetation management plan is
required for applications for rights-of-way or renewals of rights-of-
way where there will be disturbance of vegetation resulting from the
construction, operation, or maintenance of the right-of-way. The
vegetation management plan must be prepared in consultation with the
Regional Director and must describe:
(i) Vegetation clearing that may occur as part of structural
construction, maintenance, and removal.
(ii) Routine vegetation management that may occur, including a
description of all physical and mechanical methods that will be used,
how equipment will be cleaned before and after entry to the right-of-
way, and how the spread of nonnative species by equipment and
activities will be minimized.
(iii) Any pesticides, herbicides, or other chemicals proposed for
use, as well as the actions the applicant will take to minimize the
adverse impacts of pesticides, herbicides, and other chemicals on
native species including pollinators present in or adjacent to the
right-of-way.
(iv) Any revegetation and restoration activities, including how the
applicant will incorporate regionally appropriate native seeds and
plants, particularly those that provide breeding, feeding, and
sheltering habitat for native species present in the area, including
but not limited to native pollinators.
(d) Submission instructions. Applicants may submit applications for
rights-of-way through electronic filing or certified mail.
(1) Electronic filing. Applications submitted through electronic
filing (E-file) must include a digital copy of the SF-299, the map, and
the environmental analysis, as well as any other attachments that the
Regional Director requires for application processing. The Service may
provide additional instructions at the preapplication meeting.
(2) Certified mail. Application submissions through certified mail
must include one printed copy of the SF-299, the map, and the
environmental analysis, as well as any other attachments that the
Regional Director requires for application processing. Applicants must
send all documents by certified mail to the Regional Director for the
region where the proposed right-of-way is located. Addresses for the
Service Regional Offices are provided at 50 CFR 2.2. Mailing envelopes
should
[[Page 47448]]
be clearly marked ``Attn: NWRS Realty Right-of-Way Permit Processing.''
Sec. 29.21-5 Survey plat and legal description.
(a) Before the Service will issue a right-of-way permit, the
applicant must provide a final survey plat and legal description that
shows and describes the proposed right-of-way in such detail that the
Service can accurately locate the proposed right-of-way on the ground.
(b) Survey plats and legal descriptions of the right-of-way area
must be stamped and signed by a licensed professional land surveyor or
other professional licensed or authorized by the State to carry out
land-surveying activities.
(1) Survey plats must meet the following standards:
(i) Survey plats must be geodetically referenced to the current
State or national datum. In some cases, new geodetic control points
will need to be set within or near the right-of-way area.
(ii) Survey plats must show ties to the monuments marking the
boundaries of the Service-owned land that the right-of-way would
affect, or from which those boundaries are calculated. In cases such as
road construction that involve allowing full control of the right-of-
way area, a boundary survey is required.
(iii) The points where the right-of-way enters and leaves Service
land must be annotated on the survey with distance ties to the nearest
boundary monuments.
(iv) For a linear strip right-of-way, the courses and distances of
the center line and the width of the right-of-way on each side of the
center line must be annotated.
(v) If the right-of-way or site is located wholly within Service
land, a minimum of two ties to boundary corners or geodetic control
points that can be readily recovered must be shown.
(vi) Survey plats must show the existing or proposed facilities in
sufficient detail that an average person can determine the nature and
extent of the proposed use.
(vii) Survey plats must include all uses of Service-managed land
required as part of the right-of-way, including access roads.
(viii) Survey plats must show the location of any other right-of-
way areas in the vicinity.
(ix) Survey plats must show major natural or cultural features such
as roads, rivers, fences, etc., required for orientation and
intelligent interpretation.
(x) The acreage contained within the right-of-way area must be
shown.
(xi) Letter-sized plats are preferred, but larger format plats,
such as the right-of-way plan sets prepared for highway and utility
projects, are acceptable if they meet the other requirements.
(xii) A digital version of the plat in AutoCAD, ArcGIS, or similar
format must be submitted along with a signed paper or document prepared
in Adobe Acrobat or similar process.
(2) The legal description must:
(i) Be in metes-and-bounds, aliquot parts, or linear strip format;
(ii) Conform to and reference the survey plat;
(iii) Be tied to the controlling monuments shown on the plat;
(iv) Reference the geodetic coordinates of the point of beginning
or point of commencement, and have a clearly documented basis of
bearing; and
(v) For linear corridor projects, use a ``strip description''
format, based on a geometrically defined centerline. For example: ``All
that portion of [land unit description] lying within the following
described strip of land.''
Sec. 29.21-6 Reimbursement of costs.
(a) Application evaluation and processing activities. (1) Unless
reimbursement is waived as provided under paragraph (c) of this
section, the applicant for a right-of-way permit must reimburse the
United States for the costs the Service incurs in evaluating and
processing the application, even if the result of this evaluation is a
denial of the application. These costs may include, but are not limited
to, the Service's costs to review the application and related
materials, conduct resource surveys of the proposed permit area,
prepare a compatibility determination, prepare documentation to comply
with the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and
other applicable laws, obtain an appraisal, draft correspondence, and
draft the permit.
(2) If requested by the applicant during or after the required
preapplication meeting, the Regional Director will provide the
applicant a preliminary estimate of the Service's application
evaluation and processing costs using the information provided by the
applicant during or after the preapplication meeting.
(3) After receiving a complete application, the Regional Director
will estimate the Service's application evaluation and processing costs
using the information the applicant provided in the application and
during or after the preapplication meeting.
(4) Unless reimbursement is waived as provided under paragraph (c)
of this section, the applicant must submit a payment to reimburse the
Service for its estimated costs before the Service will evaluate and
process the right-of-way permit application.
(5) If the Service's cost to evaluate and process the right-of-way
application exceeds the estimated amount, the Regional Director will
promptly notify the applicant of the deficient amount, and the
applicant must submit payment for the deficient amount before the
Service will issue a right-of-way permit. The Regional Director will
refund any overpayments at the request of the applicant.
(b) Monitoring activities. (1) By accepting a permit under this
subpart, the permit holder agrees to reimburse the Service for the
costs incurred for all monitoring activities, which include monitoring
the construction, operation, maintenance, and termination of
facilities, to ensure compliance with the terms, conditions, and
stipulations of the right-of-way permit.
(2) The Regional Director will estimate the total costs the Service
expects to incur for monitoring activities over the permit term using
the information the applicant provided in the application and during or
after the preapplication meeting.
(3) At the discretion of the Regional Director, the Service may
require reimbursement for its estimated monitoring costs in a lump-sum
payment before the Service issues a right-of-way permit, or at periodic
intervals, not to exceed 5 years, specified in the permit.
(4) When reimbursement for costs for monitoring activities is
required at periodic intervals specified in the permit, the Regional
Director will review the amount of reimbursement not more than every 5
years after the issuance of the permit. The Regional Director will
provide the permit holder with written notice of intent to impose new
charges to reflect current monitoring costs commencing with the ensuing
charge year. The revised charges will be effective unless the permit
holder files an appeal in accordance with Sec. 29.22.
(c) Waiver of reimbursement for Service costs. (1) No reimbursement
for Service costs for right-of-way application evaluation and
processing activities and monitoring activities will be required of:
(i) State or local governments or agencies or related
instrumentalities;
(ii) Federal Government agencies; or
(iii) Private individuals or organizations when the proposed right-
of-way contributes to the Service's operation or maintenance of the
refuge
[[Page 47449]]
or fish hatchery as certified in writing by the Regional Director.
(2) Additionally, the Regional Director has the discretion to waive
reimbursement for Service costs for right-of-way application evaluation
and processing activities and monitoring activities so long as there
are appropriated funds for these activities.
(3) When reimbursement for Service costs for monitoring activities
is waived during the permit term, the permit will contain a statement
to that effect.
(4) Reimbursement of costs is required and cannot be waived for any
right-of-way permit issued under section 28 of the Mineral Leasing Act
of 1920, as amended (30 U.S.C. 181 et seq.).
(d) Service use of payments received for reimbursement of costs.
Payments received by the Service to reimburse the United States for the
costs incurred in evaluating and processing applications, and for
monitoring, will be deposited into the United States Treasury until
such time that any provision of law allows these payments to supplement
the Service's appropriation.
0
6. Revise newly redesignated Sec. 29.21-7 to read as follows:
Sec. 29.21-7 Nature of interest granted.
(a) Where the land administered by the Service is owned in fee by
the United States and the right-of-way is compatible with the
objectives of the area, the Service may issue a permit after it is
approved in writing by the Regional Director.
(b) For rights-of-way permitted under authority of section 28 of
the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.),
for pipelines for the transportation of oil, natural gas, synthetic
liquid or gaseous fuels, or any refined product produced from these
substances:
(1) The permit term may not exceed 30 years.
(2) The right-of-way may not exceed 50 feet in width, plus the area
occupied by the pipeline and its related facilities, unless the
Regional Director finds, and records the reasons for the finding based
on the analysis in a compatibility determination, that a wider right-
of-way is necessary for operation and maintenance after construction
and to protect the environment or public safety. ``Related facilities''
include but are not limited to valves, pump stations, supporting
structures, bridges, monitoring and communication devices, surge and
storage tanks, and terminals.
(c) For rights-of-way other than those referred to in paragraph (b)
of this section, the permit term may be up to 50 years when the
Regional Director deems it appropriate, or a lesser term.
(d) The Service may issue a temporary permit supplementing a right-
of-way for additional land needed during construction, operation,
maintenance, or termination of the pipeline, or to protect the natural
environment or public safety.
(e) Unless otherwise provided, no interest granted shall give the
grantee any right whatever to remove any material, earth, or stone for
construction or other purpose, except that stone or earth necessarily
removed from the right-of-way in the construction of a project may be
used elsewhere along the same right-of-way in the construction of the
same project.
0
7. Revise newly redesignated Sec. 29.21-8 to read as follows:
Sec. 29.21-8 Terms and conditions.
(a) Prior rights. Any right-of-way permit issued will be subject to
rights reserved, if any, by a prior owner, and rights held, if any, by
a third party.
(b) Agreement of terms and conditions. An applicant, by accepting a
permit, agrees to such terms and conditions as may be prescribed by the
Regional Director, including special stipulations required to ensure
the permitted use is compatible with the mission of the Refuge System
and the purpose(s) of the refuge. (See Sec. 29.21-12 for specific
requirements for electric powerlines and Sec. 29.21-13 for specific
requirements for oil and gas pipelines.)
(c) Terms and conditions required for all permit holders. In
addition to any terms and conditions prescribed by the Regional
Director, the permit holder must agree to all of the following terms
and conditions:
(1) The permit is for the specific use described and may not be
construed to authorize any other use within the permit area unless
approved in writing by the Regional Director upon determination by the
Service project manager that the additional use is a compatible use.
(2) The permit may be amended only by a written instrument signed
and executed by the Regional Director and the permit holder.
(3) The permit holder may not transfer or assign this permit to
another party without obtaining the Regional Director's prior written
approval.
(4) The permit holder may not allow another party to collocate
equipment or activities on their infrastructure or right-of-way. Any
entity that wants to collocate equipment or activities must apply for
its own Service right-of-way permit in accordance with the regulations
in 50 CFR 29.21.
(5) The permit holder is responsible for ensuring that its
officers, employees, representatives, agents, contractors, and
subcontractors are familiar with the permit and comply with its terms
and conditions.
(6) The permit holder must provide the Service project manager with
current contact information (company address, points of contact,
telephone numbers, email addresses, etc.) for both routine and
emergency communications, and, in the case of corporations, of the
address of its principal place of business and the names and addresses
of its principal officers.
(7) Authorized representatives of the United States have the right
to enter and inspect the permitted area at any time without providing
prior notice to the permit holder.
(8) The Regional Director may suspend or terminate all or any part
of the issued permit for failure of the permit holder to comply with
any or all of the terms or conditions of the permit, or for
abandonment.
(i) A rebuttable presumption of abandonment is raised by deliberate
failure of the permit holder to use the permit, for any continuous 2-
year period, for the purpose for which the permit was issued or
renewed. In the event of noncompliance or abandonment, the Regional
Director will notify the permit holder in writing of any intention to
suspend or terminate the permit 60 days from the date of the notice and
state the reasons, unless prior to that time the holder completes such
corrective actions as are specified in the notice. The Regional
Director may allow an extension of time within which to complete
corrective actions if the Regional Director believes that extenuating
circumstances, not within the permit holder's control, such as adverse
weather conditions, disturbance to wildlife during breeding periods or
periods of peak concentration, or other compelling reasons, warrant an
extension.
(ii) Should the holder of a right-of-way permit issued under
authority of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181
et seq.), fail to take corrective action within the 60-day period, the
Regional Director will provide for an administrative proceeding,
pursuant to 5 U.S.C. 554, prior to a final departmental decision to
suspend or terminate the permit. In the case of all other right-of-way
permit holders, failure to take corrective action within the 60-day
period will result in a determination by the Regional Director to
suspend or terminate the permit.
(iii) No administrative proceeding is required in cases in which
the permit terminates under its terms.
[[Page 47450]]
(9) The permit holder must prevent the disturbance or removal of
any public land survey monument or project boundary monument unless and
until the permit holder has requested and received from the Regional
Director written approval of measures that the permit holder will take
to perpetuate the location of the monument.
(10) The permit holder must conduct operations, including by
setting their time and location, in a manner that avoids or minimizes
impacts to fish and wildlife or their habitats, including, but not
limited to, impacts caused by exposure to physical and chemical
hazards, disruption of hydrologic processes, lighting and visual
disturbance, and duration and frequency of noise.
(11) The permit holder must comply with State and Federal laws and
regulations that are applicable to the project within which the permit
is issued and to the lands that are included in the right-of-way.
(i) The permit holder must comply with the Archaeological Resources
Protection Act (16 U.S.C. 470aa et seq.). The disturbance of
archaeological or historical sites and the removal of artifacts from
Federal land are prohibited.
(ii) The permit holder must comply with the applicable requirements
of the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712), the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the Wilderness
Act of 1964 (16 U.S.C. 1131 et seq.), the Wild and Scenic Rivers Act of
1968 (16 U.S.C. 1271 et seq.), and the National Historic Preservation
Act of 1966 (54 U.S.C. 300101 et seq.).
(iii) The permit holder must immediately suspend all activities and
notify the Service project manager upon the discovery of any threatened
or endangered species or archeological, paleontological, or historical
resources within or near the permitted area. All natural and cultural
resources discovered in the permitted area are the property of the
United States.
(12) The permit holder must clear and keep clear the lands within
the permit area to the extent and in the manner directed by the Service
project manager in charge; and to dispose of all vegetative and other
material cut, uprooted, or otherwise accumulated during the
construction and maintenance of the project so as to decrease the fire
hazard and also in accordance with any instructions that the Service
project manager specifies.
(13) The permit holder must do everything reasonably within the
permit holder's power, both independently and on request of any duly
authorized representative of the United States, to prevent and suppress
fires on or near the permitted area, including making available such
construction and maintenance resources that are reasonably obtainable
for the suppression of such fires.
(14) After the expiration or termination of this permit, the permit
holder must remove all facilities and equipment from the permitted area
and restore the permitted area to its pre-permit condition as directed
and approved by the Service project manager. Any facilities or
equipment not removed within 6 months, unless more time is deemed
necessary for conservation purposes by the Regional Director, will be
deemed abandoned and will be disposed of in accordance with applicable
Federal law. In that event, the permit holder will be liable to the
Service for all of its costs in disposing of the facilities or
equipment and restoring the permitted area.
(15) In accordance with applicable Federal law, in the
construction, operation, and maintenance of the project, the permit
holder will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin
and must require an identical provision to be included in all
subcontracts.
(16) The permit holder must pay the United States the full value
for all damages to the lands or other property of the United States
caused by the permit holder or that person's employees, contractors, or
agents of the contractors.
(i) In cases in which the permit is issued to a State or other
governmental agency that has no legal power to assume such a liability
with respect to damages caused to lands or property, that agency will
repair all such damages.
(ii) In cases in which the permit involves lands that are under the
exclusive jurisdiction of the United States, the permit holder or his
or her employees, contractors, or agents of the contractors will be
liable to third parties for injuries incurred in connection with the
permit area.
(17) The permit holder will indemnify and hold harmless the United
States and its officers, employees, agents, and representatives from
and against all liability of any sort whatsoever arising out of the
permit holder's activities under this permit. This agreement to
indemnify and hold harmless from and against all liability includes
liability under Federal or State environmental laws, including but not
limited to the Comprehensive Environmental Response, Compensation, and
Restoration Act, as amended (42 U.S.C. chapter 103); the Resource
Conservation and Recovery Act, as amended (42 U.S.C. 6901 et seq.); and
what is commonly known as the Clean Water Act, as amended (33 U.S.C.
1251-1387). This agreement to indemnify and hold harmless will survive
the permit's termination or expiration.
(18) The Regional Director may require permit modifications at any
future date to ensure that the permitted use is compatible with the
Refuge System mission and the purpose(s) of the refuge. Required permit
modifications could include but are not limited to changes to permit
conditions and/or additional stipulations that a Regional Director
deems necessary based on new information.
(d) Terms and conditions required of most permit holders. The
permit holder must also agree to the following terms and conditions,
which are required unless the Regional Director determines they are not
relevant to the requested use:
(1) The permit holder must notify the Service project manager in
writing at least 5 business days before conducting any maintenance or
nonemergency repair work within the permitted area. The written notice
must describe the location of the proposed work, the equipment to be
used, and the size of work crews anticipated to be working on Service
land. The Service project manager may require an onsite meeting before
any maintenance or nonemergency repair work commences and may assign a
site monitor to be present during such work. Except in emergencies, all
work in the permitted area must be conducted during normal business
hours. To respond to an emergency, the permit holder may enter the
permitted area at other times to conduct repair work after calling the
Service project manager.
(2) The permit holder must erect and maintain appropriate warning
signs, barricades, or other warning devices during all periods when the
permit holder is using the permitted area, including periods of
maintenance or repair.
(3) The permit holder must rebuild and repair such roads, fences,
structures, and trails as may be destroyed or injured by construction
work.
(4) Notwithstanding the issuance of this permit, the Service may
establish trails, roads, or other improvements across, over, on, or
through the permitted area for use by the Service, by visitors, or by
others.
[[Page 47451]]
(5) Upon request by the Regional Director, the permit holder must
build and maintain necessary and suitable crossings for all roads and
trails that intersect the works constructed, maintained, or operated
under the right-of-way.
(6) The permit holder must take any soil and resource conservation
and protection measures, including weed control, on the land covered by
the permit that the Service project manager in charge requests.
(7) The permit holder must provide for habitat connectivity on the
land covered by the permit to the maximum extent possible, for example
through use of wildlife-friendly fencing, perches or perch deterrents
for birds, fish-passable culverts, vegetative screening or hiding
cover, that the Service project manager in charge requests.
(8) The permit holder must promptly notify the Service project
manager in charge of the amount of merchantable timber, if any, that
will be cut, removed, or destroyed in the construction and maintenance
of the project, and to pay the United States in advance of construction
such sum of money that the project manager determines to be the full
stumpage value of the timber to be cut, removed, or destroyed.
(9) Issuance of the permit is subject to the express condition that
the exercise of the permit will not unduly interfere with the
management, administration, or disposal by the United States of the
land to be affected. The permit holder agrees and consents to the
occupancy and use by the United States, or its grantees, permittees, or
lessees, of any part of the permit area not actually occupied for the
purpose of the permitted rights to the extent that the use does not
unreasonably interfere with the permittee's use of the permitted area.
(10) Any facility constructed on the permit area will be modified
or adapted, if modification is found by the Regional Director to be
necessary, without liability or expense to the United States, so that
the facility will not conflict with the use and occupancy of the land
for any authorized works that may be constructed on the land under the
authority of the United States. The modification will be planned and
scheduled so as not to interfere unduly with or to have minimal effect
upon continuity of energy and delivery requirements for Service
facilities.
(e) General liability insurance. The Service may require the permit
holder to procure and maintain in force and effect during the term of
this permit commercial general liability insurance to protect against
claims arising out of the acts or omissions of the permit holder or its
officers, employees, agents, or representatives while conducting the
activities authorized by this permit. The insurance policy must provide
coverage for discharges or escapes of pollutants or contaminants into
the environment, including sudden or accidental discharges or escapes.
The Regional Director will determine the minimum amount of coverage per
occurrence and in the aggregate. The policy must be issued by a company
duly licensed to do business in the State where the project is located
and must name the United States of America as an additional insured.
Before the Regional Director executes this permit, the permittee must
provide the Service with a copy of its certificate of insurance showing
the required coverage.
(f) Bonds. The Service may require a bond for a permit when the
Regional Director determines that the Service is likely to incur
reclamation costs during or after the term of the right-of-way due to
the construction, operation, or maintenance of the right-of-way. The
Service also may require a bond for a permit when the Service is likely
to incur reclamation costs if the right-of-way is abandoned or
terminated.
(1) No bond will be required of a Federal, State, or local
government or its agent or instrumentality, except those that are:
(i) Using the facility, system, space, or any part of the right-of-
way area for commercial purposes; or
(ii) A municipal utility or cooperative whose principal source of
revenue is customer charges.
(2) When the Service requires a bond, the permit holder must agree
to the following terms and conditions: Before the permit's effective
date, the permit holder must file with the Service a performance bond
payable to the Service, issued by a surety satisfactory to the Service,
to guarantee its compliance with all terms and conditions of the permit
and with all applicable laws and regulations. The Regional Director
will determine the amount of the bond and with whom it must be filed.
(g) Communications facilities. If this permit is for a
communications facility as defined by the Mobile Now Act (47 U.S.C.
1455(d)(1)), then the permit holder must also agree to the following
terms and conditions:
(1) The permit holder agrees that use of wireless communications
equipment is contingent upon the possession of a valid Federal
Communications Commission (FCC) or National Telecommunications and
Information Administration (NTIA) authorization/license (if required),
and the operation of the equipment is in strict compliance with
applicable requirements of FCC or NTIA. A copy of each applicable
license or authorization must be maintained at all times by the permit
holder for each transmitter being operated. The permit holder must
provide the Service project manager, when requested, with current
copies of all licenses for equipment in or on facilities covered by
this permit.
(2) The permit holder must, at the permit holder's sole cost and
expense, take all necessary actions to comply with all applicable FCC
radio frequency (RF) exposure regulations and requirements, and take
reasonable precautions so that neither workers nor the public are
subject to RF exposures above the FCC specific levels.
(3) The permit holder agrees that the provisions of 18 U.S.C. 431
(contracts by Member of Congress) and 41 U.S.C. 6306 (prohibition on
Members of Congress making contracts with the Federal Government) apply
to the permit, as if set forth in full.
Sec. 29.21-9 [Amended]
0
8. Amend newly redesignated Sec. 29.21-9, in paragraph (a), by
removing the words ``at his discretion''.
0
9. Amend newly redesignated Sec. 29.21-10 by revising the section
heading and paragraphs (b) and (c) to read as follows:
Sec. 29.21-10 Disposal, transfer, or termination of interest.
* * * * *
(b) Transfer of permit. Any proposed transfer, by assignment,
lease, operating agreement or otherwise, of a permit must be filed with
the Regional Director and must be supported by a stipulation that the
transferee agrees to comply with and be bound by the terms and
conditions of the original permit. A $100 nonrefundable service fee
must accompany the proposal. No transfer will occur unless and until
approved in writing by the Regional Director.
(c) Disposal of property on termination of right-of-way. In the
absence of any agreement to the contrary:
(1) The holder of the right-of-way must, within 6 months after
termination of the right-of-way, remove all property or improvements
placed there by the holder, other than a road and usable improvements
to a road.
(2) After 6 months, all property and improvements in the right-of-
way area become the property of the United States.
(3) The Regional Director may use discretion to extend this
timeframe.
0
10. Revise newly redesignated Sec. 29.21-11 to read as follows:
[[Page 47452]]
Sec. 29.21-11 Required payment for use and occupancy of National
Wildlife Refuge System land.
(a) Payment for use and occupancy of lands under the regulations of
this subpart is required for the fair market value or fair market
rental value as determined by the Regional Director using any method
approved by the Department of the Interior to determine those values.
(1) At the discretion of the Regional Director, the payment may be
a fair market rental payment, paid annually, or a lump-sum payment,
made before permit issuance.
(2) If any Federal, State, or local agency is exempt from payment
under any other provision of Federal law, the agency must inform the
Service of the applicable Federal law during the preapplication meeting
required by Sec. 29.21-2. The agency must also otherwise compensate
the Service by any other means acceptable to the Regional Director,
including, but not limited to, making other land available or loaning
of equipment or personnel, except that any such compensation must
relate to, and be consistent with, the mission of the National Wildlife
Refuge System. For agencies exempted from payment by law, the Regional
Director may waive the requirement for other compensation upon finding
this requirement to be impracticable or unnecessary.
(b) The terms of the permit will specify the amount of the lump sum
paid by the applicant for use and occupancy during the current permit
term, or, if applicable, the initial annual rental payment amount for
use and occupancy of the permitted area.
(c) When annual rental payments are used, the Regional Director
will periodically review and adjust the charges to reflect fair market
value. The Regional Director will provide the permit holder with
written notice of intent to impose new charges to reflect fair market
value commencing with the ensuing charge year. The revised charges will
be effective unless the permit holder files an appeal in accordance
with Sec. 29.22.
(d) Payments received by the Service for use and occupancy of
rights-of-way on Refuge lands and interests in land will be deposited
into the Migratory Bird Conservation Fund to carry out the land-
acquisition provisions of the Migratory Bird Conservation Act (16
U.S.C. 715 et seq.) and the Migratory Bird Hunting Stamp Act (16 U.S.C.
718 et seq.). Payments received for use and occupancy of rights-of-way
on other Service-managed lands and interests in land will be deposited
into the National Wildlife Refuge Fund, to make payments annually to
counties and other units of local government in accordance with
regulations in 50 CFR part 34.
Sec. 29.21-12 [Amended]
0
11. Amend newly redesignated Sec. 29.21-12:
0
a. In the introductory text, by removing the citation ``Sec. 29.21-
4(b)'' and adding in its place the citation ``Sec. 29.21-8'';
0
b. In paragraph (a), by removing the word ``his'' both times that it
appears and adding in its place the word ``the''; and
0
c. In paragraph (b), by removing the word ``him'' both times that it
appears and adding in its place the words ``the applicant''.
0
12. Revise newly redesignated Sec. 29.21-13 to read as follows:
Sec. 29.21-13 Rights-of-way for pipelines for the transportation of
oil, natural gas, synthetic liquid or gaseous fuels, or any refined
product produced from these substances.
(a) Application procedure. (1) Applications for pipelines and
related facilities under this section are to be filed in accordance
with Sec. 29.21-4 with the following exception: When the right-of-way
or proposed facility will occupy Federal land under the control of more
than one Federal agency or more than one bureau or office of the
Department of the Interior, a single application must be filed with the
appropriate State Director of the Bureau of Land Management in
accordance with regulations in 43 CFR part 2800.
(2) Any portion of the facility occupying land of the National
Wildlife Refuge System is subject to the provisions of the regulations
in this part.
(b) Right-of-way permits. Right-of-way permits issued under this
section are subject to the special requirements of section 28 of the
Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.).
Gathering lines and associated structures used solely in the production
of oil and gas under valid leases on the lands administered by the
Service are excepted from the provisions of this section.
(1) Pipeline safety. Rights-of-way permits issued under this
section will include requirements that will protect the safety of
workers and protect the public from sudden ruptures and slow
degradation of the pipeline. An applicant must agree to design,
construct, and operate all proposed facilities in accordance with the
provisions of 49 CFR part 192 or part 195 and in accordance with the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) and
any future amendments to that act.
(2) Environmental protection. An application for a right-of-way
must contain environmental information required by Sec. 29.21-4(b)(2).
The applicant must also provide a plan of construction, operation, and
rehabilitation of the proposed facilities. In addition to terms and
conditions imposed under Sec. 29.21-8, the Regional Director will
impose any stipulations required to ensure:
(i) Restoration, revegetation, and curtailment of erosion of the
surface;
(ii) That activities in connection with the right-of-way or permit
will not violate applicable air- and water-quality standards in related
facilities siting standards established by law;
(iii) Control or prevention of damage to the environment, including
damage to fish and wildlife habitat, public or private property, and
public health and safety; and
(iv) Protection of the interests of individuals living in the
general area of the right-of-way who rely on the fish, wildlife, and
biotic resources of the area for subsistence purposes.
(c) Disclosure. Applicants that are a partnership, corporation,
association, or other business entity must disclose the identity of all
participants. Such disclosure will include where applicable:
(1) The name and address of each partner;
(2) The name and address of each shareholder owning 3 percent or
more of the shares, together with the number and percentage of any
class of voting shares that the shareholder is authorized for voting
purposes; and
(3) The name and address of each affiliate of the entity, together
with, in the case of an affiliate controlled by the entity, the number
of shares and the percentage of any class of voting stock of that
affiliate owned, directly or indirectly, by that entity, and in the
case of an affiliate that controls the entity, the number of shares and
the percentage of any class of voting stock of the entity owned,
directly or indirectly, by the affiliate.
(d) Technical and financial capability. The Regional Director may
require a financial statement and will issue or renew a right-of-way
permit under this section only when satisfied that the applicant has
the technical and financial capability to construct, operate, maintain,
and terminate the facility.
(e) Reimbursement of costs. (1) In accordance with Sec. 29.21-6,
the holder of
[[Page 47453]]
a right-of-way permit must reimburse the Service for the cost incurred
in monitoring the construction, operation, maintenance, and termination
of any pipeline or related facilities as determined by the Regional
Director.
(2) Payments received by the Service to reimburse the United States
for the costs incurred in monitoring the construction, operation,
maintenance, and termination of any pipeline or related facilities will
be deposited into the United States Treasury until such time that any
provision of law allows these payments to supplement the Service's
appropriation.
(f) Public hearing. The Regional Director will give notice to
Federal, State, and local government agencies and the public of the
opportunity to comment on right-of-way applications under this section.
A notice will be published in the Federal Register, and a public
hearing may be held where appropriate.
(g) Bonding. Where appropriate, the Regional Director will require
the holder of a right-of-way permit to furnish a bond or other
satisfactory financial assurance to secure all or any of the
obligations imposed by the terms and conditions of the right-of-way
permit or by any rule or regulation, not to exceed the period of
construction plus 1 year or a longer period if necessary for the
pipeline to stabilize or for any reclamation or restoration
requirements to be met.
(h) Suspension of right-of-way. If the project manager determines
that an immediate temporary suspension of activities within a right-of-
way permit area is necessary to protect public health and safety or the
environment, the project manager may issue an emergency suspension
order to abate such activities prior to an administrative proceeding.
The Regional Director must make a determination and notify the permit
holder in writing within 15 days from the date of suspension as to
whether the suspension should continue and list actions needed to
terminate the suspension. The suspension will remain in effect for only
so long as an emergency condition continues.
(i) Joint use of rights-of-way. Each right-of-way permit will
reserve to the Regional Director the right to issue additional rights-
of-way permits for compatible uses on or adjacent to permitted rights-
of-way areas after giving notice to the permit holder and an
opportunity to comment.
(j) Common carriers. Pipelines and related facilities used for the
transportation of oil, natural gas, synthetic liquid or gaseous fuels,
or any refined product made from these substances will be constructed,
operated, and maintained as common carriers.
(1) The owners or operators of pipelines subject to this subpart
will accept, convey, transport, or purchase without discrimination all
oil or gas delivered to the pipeline without regard to whether such oil
or gas was produced on Federal or non-Federal lands.
(2) In the case of oil or gas produced from Federal lands or from
the resources on the Federal lands in the vicinity of the pipelines,
the Secretary may, after a full hearing following due notice to the
interested parties and a proper finding of facts, determine the
proportionate amounts to be accepted, conveyed, transported, or
purchased.
(3) The common carrier provisions of this section will not apply to
any natural gas pipeline operated by any person subject to regulation
under the Natural Gas Act (15 U.S.C. ch. 15B sec. 717 et seq.) or by
any public utility subject to regulation by a State or municipal
regulatory agency having jurisdiction to regulate the rates and charges
for the sale of natural gas to consumers within the State or
municipality.
(4) The owners or operators of pipelines will purchase, without
discrimination, any natural gas produced in the vicinity of the
pipeline that is offered for sale unless that natural gas is subject to
State regulatory or conservation laws governing its purchase by owners
or operators of pipelines.
(k) Required information. The Regional Director will require, prior
to issuing or renewing a right-of-way permit, that the applicant submit
and disclose all plans, contracts, agreements, or other information or
material that the Regional Director deems necessary to determine
whether to issue or renew the right-of-way permit or the terms and
conditions that should be included in the permit. That information may
include, but is not limited to:
(1) Conditions for and agreements among owners or operators
regarding the addition of pumping facilities, looping, or otherwise
increasing the pipeline or terminal's throughput capacity in response
to actual or anticipated increases in demand;
(2) Conditions for adding or abandoning intake, offtake, or storage
points or facilities; and
(3) Minimum shipment or purchase tenders.
(l) State standards. The Regional Director will take into
consideration, and to the extent practical comply with, applicable
State standards for right-of-way construction, operation, and
maintenance, taking into account any additional standards necessary to
protect refuge resources.
(m) Congressional notification. The Secretary will promptly notify
the Committee on Natural Resources of the United States House of
Representatives and the Committee on Energy and Natural Resources of
the United States Senate upon receipt of an application for a right-of-
way for pipeline 24 inches or more in diameter, and no right-of-way
permit for such a pipeline will be issued until a notice of intention
to permit the right-of-way, together with the Secretary's detailed
findings as to the terms and conditions the Secretary proposes to
impose, has been submitted to those committees.
Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-15453 Filed 7-21-23; 8:45 am]
BILLING CODE 4333-15-P