Broadband Authorities and Regulations
The U.S. Fish and Wildlife Service (Service) administers roughly 95 million acres of (non-submerged) land within the National Wildlife Refuge System, National Fish Hatchery System, National Monuments and Administrative Sites. The vast majority of these lands fall under the National Wildlife Refuge System. Lands within the Refuge System are managed according to the authorities of the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee), as amended by the National Wildlife Refuge System Improvement Act of 1997.
The mission of the Refuge System 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.”
National Wildlife Refuge System Improvement Act
The National Wildlife Refuge System Improvement Act of 1997 states that the Service shall not initiate or permit a new use of a national wildlife refuge (refuge) unless determined that the use is a compatible use, not inconsistent with public safety, and will not materially interfere with or detract from the fulfillment of the mission of the Refuge System or the purposes of the refuge. There are more than 565 national wildlife refuges, many with different establishing authorities and purposes.
Alaska National Interest Lands Conservation Act
Refuges in Alaska are also governed by the Alaska National Interest Lands Conservation Act of 1980, Pub. L. 96-487, 94 Stat. 23-71 (ANILCA). ANILCA (section 1104(g) and 43 C.F.R. 36.7(a)(2)) may alter the compatibility process to include additional procedural steps when reviewing applications for utility systems such as telecommunications and broadband. This requires a federal agency to consider economically feasible alternatives before routing the transportation or utility system through an area. A compatibility determination is not required on Service lands other than those in the Refuge System (national fish hatcheries, research areas, and administrative sites).
U.S. Fish and Wildlife Service Right-of-Way Policy
The Service is revising policy to streamline right-of-way processes and increase coordination with applicants. Currently, the Service’s 1993 Rights-of-Way and Road Closings policy (340 FW 3) guides granting rights-of-way on and across refuge lands, in 50 C.F.R. 29.21 and 29.22.
Rights-of-way (ROW) for uses of other than refuge lands (national fish hatcheries, research areas, and administrative sites) are made under applicable authority in 43 C.F.R. 2800, in accordance with procedures in 50 C.F.R. 29.2.
The 1993 ROW policy describes when to use permits (duration of rights-of-way for a maximum of 50 years before permit reapplication is required) and when to use easements (when the type of use will substantially alter the real property and is permanent or of a long-term nature; duration of 50 years maximum). The policy also describes roles and responsibilities, including approval by the Service regional director. Requests for use, including applications for telecommunications and broadband facilities, follow the same process after they have been deemed a compatible use.
Other statutory and compliance considerations may include National Environmental Policy Act (NEPA) analysis, other applicable laws, such as the Endangered Species Act, the National Historic Preservation Act and the Wilderness Act of 1964, as well as public health and safety.
The Service has categorical exclusions to NEPA analysis, which can be used when a request for issuance or reissuance of permits for an existing right-of-way for underground or above ground power, telephone, or pipelines, where no new structures (i.e., facilities) or major improvement to those facilities are required; and for permitting a new right-of-way, where no or negligible environmental disturbances are anticipated (516 DM 8.5.C.(4)). Generally, buried communication lines fit this category, and categorical exclusions are used instead of environmental assessments. The Service is revising our policy to streamline right-of-way processes and increase coordination with applicants.