RAPID/Roadmap/3-FD-d
U.S. Forest Service Special Use Authorization (3-FD-d)
A special use authorization is a legal document, such as a permit, lease, or easement, which authorizes use and/or occupancy of Forest Service lands. The authorization is granted for a specific use or occupancy of the land for a specific period of time.
Solar
The Forest Service has proposed a set of solar directives that will be included in the Forest Service Handbook, section 2709.11, chapter 80. The directives address proposals and applications for and issuance of a permit for construction and operation of a solar energy facility. The proposed directives also address competitive interest in solar energy uses, land use fees for solar energy, and potential effects from solar energy uses on wildlife, scenery, significant cultural resources, and national security. Consequently, this section will be revised for purposes of the Solar Regulatory Roadmap once the directives are finalized.
U.S. Forest Service Special Use Authorization Process
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3-FD-d.1 – Provide Early Notice of Proposed Special Use
When a developer proposes to occupy and use Forest System lands, they are required to contact the Forest Service office(s) responsible for the management of affected land as early as possible in advance of the proposed use. 251.54(a).
3-FD-d.2 – Proposal for Special Use Authorization
The developer must file a proposal for the special use either in writing or orally to the District Ranger or Forest Supervisor with jurisdiction over the affected land. 36 C.F.R. § 251.54(b)(2).
The proposal must identify the developer by name and mailing address, and if the developer is not an individual, the name and address of the developer’s agent who is authorized to receive notice of actions pertaining to the proposal. 36 C.F.R. § 251.54(d)(1). Proposals from noncommercial groups shall provide (1) a description of the proposed activity, (2) location and description of the National Forest System lands and facilities the proponent would like to use, (3) estimated number of participants, (4) starting and ending time and date of the proposed activity, and (5) name of the person or persons 21 years of age or older who will sign a special use authorization on behalf of the proponent. 36 C.F.R. §§ 251.54(d)(2)(A) - (E).
3-FD-d.3 - Is Special Use Authorization Required?
The Forest Service will review the proposal to determine if authorization is required. 36 C.F.R. § 251.50(e).
A special use authorization is not required if the authorized officer determines that:
- The proposed use will have nominal effects on Forest Service lands, resources, or programs, so protection of such interests through an authorization is not necessary;
- The proposed use is regulated by a state or territorial (hereinafter "state") agency or another federal agency in a manner that is adequate to protect the Forest Service interests; or
- The proposed use is not situated in a congressionally designated wilderness area, and is a routine operation or maintenance activity within the scope of a statutory right-of-way for a highway or the proposed use is a routine operation or maintenance activity within the express scope of a documented linear right-of-way. 36 C.F.R. §§ 251.50(e)(1) - (3).
3-FD-d.4 - No Permit Needed; Continue with Project
If the authorized officer determines that no special use authorization is required, then the developer may continue with the project.
3-FD-d.5 to 3-FD-d.6 – Review Proposal for Minimum Requirements
The authorized officer will review the proposal to ensure that it meets the following minimum requirements:
- The proposed use is consistent with the laws, regulations, orders, and policies establishing or governing National Forest System lands, with other applicable federal law, and with applicable state and local health and sanitation laws;
- The proposed use is consistent or can be made consistent with standards and guidelines in the applicable forest land and resource management plan prepared under the National Forest Management Act of 1976 ;
- The proposed use will not pose a serious or substantial risk to public health or safety;
- The proposed use will not create an exclusive or perpetual right of use or occupancy;
- The proposed use will not unreasonably conflict or interfere with administrative use by the Forest Service, other scheduled or authorized existing uses of the National Forest System, or use of adjacent non-National Forest System lands;
- The developer does not have any delinquent debt owed to the Forest Service under terms and conditions of a prior or existing authorization, unless such debt results from a decision on an administrative appeal or from a fee review and the developer is current with the payment schedule;
- The proposed use does not involve gambling or providing of sexually oriented commercial services, even if permitted under State law;
- The proposed use does not involve military or paramilitary training or exercises by private organizations or individuals, unless such training or exercises are federally funded; and
- The proposed use does not involve disposal of solid waste or disposal of radioactive or other hazardous substances. 36 C.F.R. §§ 251.54(e)(1)(i) - (ix).
If the request does not meet all of the minimum requirements, then it will not receive any further evaluation and processing. The Forest Service must advise the developer that the proposal does not meet the minimum requirements. 251.54(e)(2).
3-FD-d.7 – Notify Developer the Proposal does not Meet the Minimum Requirements and Return Written Proposal
The developer will be notified that the proposal does not meet the necessary minimum requirements, and the proposal will be returned. The developer, if possible, may amend the proposal to comply with the requirements and re-submit it to the Forest Service. 36 C.F.R. § 251.54(e)(2). If the proposal was made in writing, the authorized officer shall notify the proponent in writing that the proposed use does not meet the minimum requirements and shall simultaneously return the request.36 C.F.R. § 251.54(e)(2).
3-FD-d.8 – Is the Proposal Approved?
If the Forest Service approves the proposal, it is accepted as a formal application and will be put through further review.
3-FD-d.9 – Notify Developer of Reasons for Rejection and Return Written Proposal
If the Forest Service denies a written proposal they must notify the developer of the reasons for rejection and return the written proposal.
The authorized officer must reject any proposal, if upon further consideration, the officer determines that:
- The proposed use would be inconsistent or incompatible with the purposes for which the lands are managed, or with other uses;
- The proposed use would not be in the public interest;
- The developer is not qualified;
- The developer does not or cannot demonstrate technical or economic feasibility of the proposed use or the financial or technical capability to undertake the use and to fully comply with the terms and conditions of the authorization; or
- There is no person or entity authorized to sign a special use authorization and/or there is no person or entity willing to accept responsibility for adherence to the terms and conditions of the authorization. 36 C.F.R. §§ 251.54(e)(5)(i) - (v).
3-FD-d.10 – Process Application
After the Forest Service approves the proposal it becomes a formal application and is subject to further review. When the application is accepted for review, the authorized officer must evaluate the proposed use for the requested site, including effects on the environment. The authorized officer may request any additional information as necessary to obtain a full description of the proposed use and its effects. 36 C.F.R. § 251.54(g)(2)(i).
3-FD-d.11 to 3-FD-d.12 – Provide Public Notice
Federal, state, and local government agencies and the public must receive adequate notice and an opportunity to comment on a special use proposal accepted as a formal application in accordance with Forest Service NEPA procedures. 36 C.F.R. § 251.54(g)(2)(ii).
3-FD-d.13 – Is the Application Approved?
The Forest Service must decide whether to approve the proposed use, approve the proposed use with modifications, or deny the proposed use based on an evaluation of the information provided by the developer and other relevant information such as environmental findings. 36 C.F.R. § 251.54(g)(4)(i). A group of applications for similar uses may be evaluated with one analysis and approved in one decision. 36 C.F.R. § 251.54(g)(4)(i).
3-FD-d.14 – Special Use Authorization
Each special use authorization must contain the following terms and conditions:
- Carry out the purposes of applicable statutes, rules, and regulations;
- Minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment;
- Require compliance with applicable air and water quality standards established by or pursuant to applicable federal or state law; and
- Require compliance with state standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance if those standards are more stringent than applicable federal standards. 36 C.F.R. §§ 251.56(a)(1)(i)(A) - (D).
3-FD-d.15 – Sign Authorization and Return it to the Forest Service
The special use authorization becomes effective only when signed by the developer and returned to the Forest Service. The authorization must be signed and returned within 60 days of its receipt by the developer. Refusal of a developer to sign and accept a special use authorization within the time allowed will terminate the application and constitute denial of the requested use and occupancy.
3-FD-d.16 – Amend Application and Re-Apply or Move Project Location and Re-apply
If the application is not approved, then the developer may amend the application pursuant to suggestions provided by the Forest Service. If the application is not approved, the developer may choose to move the project location and re-apply to the Forest Service for special use authorization.
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