U.S. Fish and Wildlife Service Right-of-Way Application (3-FD-m)
ROWs across FWS managed lands that are not part of the National Wildlife Refuge System (National Fish Hatcheries, Research Areas, and Administrative Sites) are authorized under the applicable authority cited in 43 CFR 2800. ROWs on and off system lands are permitted in accordance with the FWS ROW procedures found in 50 CFR 29.21 and 29.22.
U.S. Fish and Wildlife Service Right-of-Way Application Process
3-FD-m.1 – Contact the FWS Field Office for a Pre-Application Consultation.
The developer should initiate the ROW process by contacting the Project Leader at the applicable FWS Field Office. During the initial contact, the Project Leader will determine the magnitude of the project, discuss proposed routing and alternatives, and provide the developer with a copy of the FWS ROW regulations. In some cases, the Project Leader may offer to develop the environmental assessment for the proposed ROW under a reimbursable agreement with the applicant. In other cases, the Project Leader may be able to recommend contractors that have experience in developing suitable environmental assessments for ROW across Service lands.
See the Fish and Wildlife Service Manual, Part 340 FW 3, Rights-of-Way and Road Closings, Section 3.8.
3-FD-m.2 to 3-FD-m.4 – FWS Right-of-Way Application; Review Application Materials for Completeness
The FWS does not require a special form for the ROW application. Instead, the developer should submit an application which states the purpose for which the ROW is requested, the length and width on each side the centerline, and the estimated acreage. In addition, applications must include:
- An application fee, determined in accordance with the schedule found in 50 CFR 29.21-2(a)(2)(ii);
- A detailed environmental analysis which includes sufficient data for the FWS to prepare an EA or EIS and comply with relevant environmental laws, including the National Historic Preservation Act of 1966 (NHPA) (16 U.S.C. 470 et seq.) and the Archaeological and Historic Preservation Act of 1974 (16 U.S.C. 469 et seq.); and
- A map or plat that shows the ROW in sufficient detail to locate it on the ground.
See 50 CFR 29.21-2
Once received, the FWS checks the application for completeness and conformance with the regulations. Legal questions are resolved before the application is forwarded to the project manager. See 340 FW 3, Rights-of-Way and Road Closings, Section 3.9.
3-FD-m.5 – Complete NEPA Process
The FWS will conduct a NEPA analysis before it makes a final compatibility determination. NEPA requires federal agencies to consider the potential environmental consequences of their proposed actions and any reasonable alternatives before undertaking a major federal action. An Environmental Impact Statement (EIS) is required when a major federal action significantly affects the quality of the human environment. See 40 CFR 1502.3. If the effects of the action are not significant an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be sufficient. For more information regarding the NEPA process, see Environmental Review: 9.
3-FD-m.6 – Estimate Costs of Processing the Application
After receiving an application, the FWS estimates the amount of processing costs it expects to incur. If the processing costs exceed the application fees, the FWS will require the developer to make periodic payments in advance of the incurrence of those costs. The developer may request an estimation of the processing costs based on the best available cost information. Overpayments are refunded to the developer. See 50 CFR 29.21-2(a)(2)(ii)(D)-(E).
3-FD-m.7 to 3-FD-m.10 – Will the ROW Be Located Within the Refuge System or Outside of the Refuge System?
The National Wildlife Refuge System Administration Act allows the FWS to permit uses on System lands, including transmission lines, whenever the FWS determines that the use is “compatible.” A new use of a refuge shall not be initiated or permitted “…unless the Secretary [of the Interior] has determined that the use is a compatible use and that the use is not inconsistent with public safety.” See 16 USC 668dd(d)(1)(B) and 16 USC 668dd(d)(3)(A)(i). “Compatible use” is defined by 50 CFR 29.21 as “a proposed or existing wildlife-dependent recreational use or any other use of a national wildlife refuge that, based on sound professional judgment, will not materially interfere with or detract from the fulfillment of the National Wildlife Refuge System mission or the purposes of the national wildlife refuge.” Consequently, the FWS will not initiate or permit a new use of a national wildlife refuge or expand, renew, or extend an existing use of a national wildlife refuge, unless the project manager has determined that the use is a compatible use. See the Fish and Wildlife Service Manual, Part 603 FW 2, section 2.3.
Before the compatibility determination is made, the public must be provided with an opportunity to review and comment on the use. The level of public participation is determined by the complexity, controversy, and level of impact on the refuge. For minor, incidental, or one time uses, notice of the proposed determination should be posted at the refuge headquarters. For all other uses, the project manager must, at a minimum, publish a notice in a newspaper with wide local distribution. For complex or controversial uses, the notification and review process may be expanded to include newspaper announcements, notice in the Federal Register, public meetings, an expanded comment period, letters to interested parties, etc. The public review effort, a summary of the comments, and actions taken or not taken as a result of the comments should be documented in the compatibility determination. See the Fish and Wildlife Service Manual, Part 603 FW 2, section 2.11(I).
The project manager must use his or her sound professional judgment when making a compatibility determination. The compatibility determination must include all of the information listed in the Fish and Wildlife Service Manual, Part 603 FW 2, section 2.12, including:
- The use and a description of the use;
- The refuge name;
- The establishing and acquisition authorities;
- The purpose of the refuge;
- The National Wildlife Refuge System Mission;
- A description of the public review (including a summary of comments received);
- The availability of resources for administering and managing the use;
- The anticipated impacts of the use;
- The compatibility of the use;
- Stipulations necessary to ensure compatibility;
- The justification for the determination;
- The signature of the manager;
- The concurrence of the Regional Chief; and
- A mandatory 10 or 15 year reevaluation date.
Once the compatibility review is complete, the project manager submits his or her recommendation to the Regional Director along with the application package (see below). In some cases, an otherwise incompatible use may be made compatible through the use of specific mitigation measures. See the Fish and Wildlife Service Manual, Part 340 FW 3, Rights-of-Way and Road Closings, Section 3.10. It should be noted that a determination that a use is compatible does not require the FWS to authorize the proposed use. See the Fish and Wildlife Service Manual, Part 603 FW 2, section 2.15.
3-FD-m.11 to 3-FD-m.12 – Right-of-Way Application Package; Refer Right-of-Way Application Package to Regional Office
The project leader will develop an application package concurrently with the compatibility determination. The application package must include information relating to:
- The National Environmental Policy Act (NEPA);
- The NHPA;
- Floodplains and Wetlands (if the proposed use is located in a floodplain or wetland);
- Coastal Zone Management;
- Endangered Species; and
- Terms and Conditions.
See the Fish and Wildlife Service Manual, Part 340 FW 3, Rights-of-Way and Road Closings, Section 3.10.
Included in the application package is the project manager’s recommendation with respect to the compatibility of the use (see above) and whether the ROW should be granted. If the project manager recommends that the ROW be granted, a Finding of No Significant Impact (FONSI) and a certification of compatibility is prepared for the Regional Director’s signature. See 340 FW 3, Rights-of-Way and Road Closings, Section 3.10.
Once complete, the project manager transmits the application package to the Regional Director. The Regional Director reviews the package and decides whether to grant or deny the ROW. See 340 FW 3, Rights-of-Way and Road Closings, Sections 3.10 - 3.11.
3-FD-m.13 to 3-FD-m.16 – Is the Right-of-Way approved?; Inform Developer of Denial in Writing; Appeal the Regional Director’s Decision
The FWS will inform the developer of a denial in writing, and the reasons for the denial will be stated in the letter. The Regional Director’s decision to deny the application for a ROW may be appealed to the Director of the FWS. See 50 CFR 29.22; Fish and Wildlife Service Manual, Part 340 FW 3, Rights-of-Way and Road Closings, Section 3.11.
3-FD-m.17 to 3-FD-m.21 – Right-of-Way
If the Regional Directors decides to approve the ROW, the FWS asks the Office of Valuation Services (OVS), a division of the Department of the Interior (DOI), to determine the rental charges based on the fair market value of the use and occupancy of the lands. See 50 CFR 29.21-7. Once the OVS supplies the FWS with the appraisal, the FWS prepares the ROW. The ROW must include the terms and conditions found in 50 CFR 29.21-4(b). 50 CFR 29.21-8 contains terms and conditions that must be included in ROWs that authorize transmission lines, in addition to the terms and conditions required by 50 CFR 29.21-4(b). The FWS may waive any of the required terms and conditions or include special stipulations, at its discretion.
The FWS sends the completed ROW to the developer for execution. By signing the ROW, the developer agrees to the terms and conditions contained therein. The developer then returns the executed ROW, along with application and rental fees, to the FWS. The Regional Director signs the ROW and returns the original copy to the developer. The developer may then commence construction. See the Fish and Wildlife Service Manual, Part 340 FW 3, Rights-of-Way and Road Closings, Section 3.11.
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