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Background: Following
Congressional enactment of the National Wildlife Refuge System
Improvement Act of 1997, the U.S. Fish and Wildlife Service (FWS)
developed a new policy and regulations for recreation and other public
uses of the National Wildlife Refuges. The statute required that the
FWS
develop a formal policy on the compatibility of
proposed
refuge uses with the National Wildlife Refuge System mission and the
purpose
of that particular refuge. Further information about the NWRSIA is
given
below, in the Background section on the compatibility
rule.
Update, January 2005: According to the semiannual regulatory agenda that each agency must publish, the U.S. Fish and Wildlife Service took final action on the appropriate use rule in December 2003. To date, the rule has not been published in the Federal Register.
Update (May 2001): On 16 January 2001, the U.S. Fish and Wildlife Service proposed the appropriate use rules, which supplement the earlier compatibility rule. Once a refuge manager determines that a proposed use is compatible with the National Wildlife Refuge System mission and the purpose of that particular refuge, the manager must next determine if the use is appropriate.
The standards for appropriate use (ALL 11 factors must be satisfied) are:
3. The use has been determined to be
appropriate in a
documented analysis by the Refuge Manager, with the Refuge Supervisor's
concurrence. This documented analysis will address
the
following 11 factors.
a. Does the use comply with
applicable
laws and regulations?
b. Is the use consistent with
applicable
Executive Orders and Department and Service policies?
c. Is the use consistent with
refuge
goals and objectives in an approved refuge management plan?
d. Has an earlier documented
analysis
not denied the use?
e. Is the use consistent with
public
safety?
f. Is the use manageable within
available
budget and staff?
g. Is the use consistent with
other
resource or management objectives?
h. Will the use be easy to
control
in the future?
i. Is the refuge the only place
where
this activity can reasonably occur?
j. Does the use contribute to
the
public's understanding and appreciation of the refuge's wildlife or
cultural
resources, or is the
use
beneficial
to the refuge's wildlife or cultural resources?
k. Can the use be accommodated
without
impairing existing wildlife-dependent recreational uses or reducing the
potential to
provide
quality wildlife-dependent
recreation into the future?
If the answer is ``no'' to any of
these questions, we will generally not allow the use. If the answers
are
consistently ``yes'' to
these questions, or, if not, if there
are compelling reasons why the Refuge Manager believes the use is
appropriate
on the refuge, the
Refuge Manager then prepares a written
justification, and obtains concurrence from the Refuge Supervisor.
Requiring
concurrence
from the Refuge Supervisor will help
us promote consistency within the System.
23 March 2001
J. Kenneth Edwards
Refuge Program Specialist
National Wildlife Refuge System
U.S. Fish and Wildlife Service
4401 N. Fairfax Dr., Room 670
Arlington, VA 22203
RE: Appropriate Refuge Uses Policy
Dear Mr. Edwards,
The Ornithological Council appreciates the opportunity to comment on the National Wildlife Refuge Appropriate Use Policy. The Ornithological Council consists of ten leading scientific ornithological societies - the American Ornithologists' Union, Association of Field Ornithologists, CIPAMEX, Cooper Ornithological Society, Pacific Seabird Group, Raptor Research Foundation, Society of Canadian Ornithologists/La Société des Ornithologistes du Canada, Society for Caribbean Ornithology, Waterbird Society, and Wilson Ornithological Society - that together have a membership of nearly 6,500 ornithologists. It is our mission to provide scientific information about birds to legislators, regulatory agencies, industry decision makers, conservation organizations and others, and to promote the use of that scientific information in the making of policies that affect birds. We also represent the concerns of ornithologists to the regulatory agencies and other organizations that authorize research activities involving wild birds.
We applaud the U.S. Fish and Wildlife Service for recognizing the value of research to the refuge system. In stating, in section 1.9(D)(4) of the draft policy] that the National Wildlife Refuge System, “actively encourage[s] cooperative wildlife resource-related research activities that addresss our management needs,” the NWRS has taken an important first step in creating a mutually beneficial relationship between the refuges and both non-government and government scientists. We are concerned, though, about the extent to which this will actually improve scientists' access to refuges. The policy goes on to state, “We also encourage research related to the management of priority public uses. Wildlife resource-related research activities are generally appropriate. Research that directly benefits refuge management has priority over other research. these uses must be determined to be appropriate as defined in section 1.10 of this chapter.” If narrowly interpreted, the refuge manager may turn away research that should, in fact, be permitted. We would like to suggest some additional language that will help to bring scientists onto the refuges. The key is to understand how research benefits refuge management. The benefits are not always immediate or local. This is particularly true with regard to migratory birds. Understanding the factors driving population changes requires multiyear research across a wide geographic range. It is often critically important to compare populations at different locations to determine how differences in local conditions may affect populations. Eventually, this research will benefit those refuges where populations are not declining by identifying the factors responsible for maintaining self-sustaining populations. Therefore, it is critical that the NWRS make clear that “research that directly benefits refuge management” is to be interpreted broadly, in such a way that it includes long-range benefits to the refuge system as a whole, and that it need not pertain solely to short-term management activities.
We suggest that the policy be amended (or that additional guidance be issued) to make clear that any research that is of benefit to the management of a particular refuge, or to management of the refuge system as a whole, or to the management of the resources found on the refuges, is to be considered to be generally appropriate. Further, it should be made clear that the research need not have an immediate or “tactical” application. Finally, it would extremely helpful if the National Wildlife Refuge System could make available to the scientific community a list of research needs for each refuge and for the refuge system as whole. Doing so would make it easier for scientists to find select refuges with research needs that match their own research interests.
As we noted in our comments (letter dated 8 November 1999) on the compatibility policy and regulations, biological research is inherently compatible with and essential to the NWRS mission 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.” As §3.5(A) of the Policy states, “A significant goal of the Refuge Administration Act is to ensure that we maintain the biological integrity, diversity, and environmental health of the Refuge System for present and future generations of Americans.” Effective conservation, management, and restoration all rest on a foundation of science. Maintenance of biological integrity, diversity, and environmental health require biological research. With insufficient research budgets making it impossible for government scientists alone to meet all the research needs of the NWRS, the research of non-government scientists is of even greater value, not just to a particular refuge, or even to the refuge system as a whole, but for the wildlife that give the refuges their purpose for existing.
Non-governmental scientists can contribute a great deal to the management of individual refuges and the refuge system as a whole. Any policy or regulation that serves to deter non-government scientists from conducting research on the refuges is detrimental to refuge management.
Under this proposed policy, a non-government scientist faces significant hurdles in seeking permission to conduct research on a refuge. Under the appropriate use policy, the research must satisfy 11 separate criteria. None of these criteria is inherently unreasonable. However, because the policy lacks interpretive guidance, they can be interpreted and applied so stringently that virtually any application can be rejected. Of particular concern is factor (i) which asks if “the refuge is the only place where this activity can reasonably occur?” Research can be conducted wherever suitable conditions are found. It is rarely the case that a refuge will be the only place where the activity can reasonably occur. Therefore, under this criterion, virtually all research could be rejected, notwithstanding the text stating that scientific research is generally considered appropriate.
Assuming that the proposed research passes the appropriate use test, it must then undergo the compatibility review. Under the final compatibility policy (64 FR 49067; 9 September 1999), at least some proposed uses are subject to the public notice and comment process. Taken together, the appropriate use and compatible use procedures pose a significant barrier to scientific research.
In our comments on the compatibility policy and regulations, we suggested that scientific research generally be treated as a management activity, rather than a use. We noted that it is anomalous to declare that no compatibility determination is needed for scientific monitoring, studies, surveys, and censuses if conducted by refuge staff, but the same activity, if conducted by non-Service researchers, requires a compatibility determination. We again urge the NWRS to consider treating research activity that benefits management of a specific refuge or of the refuge system - as defined above - as management activity rather than as a use.
The goal, in our view, should be to establish a strong partnership between the NWRS and the research community. To reach this goal, OC pledges to help broadcast the research needs of the refuges and the refuge system to the ornithological community. We will encourage scientists to try to match their research needs with those of the refuges whenever possible, or to address some tactical, management-oriented research need while working on the refuge. We know, from the language in this policy, that the NWRS appreciates the potential contribution of the private research. By creating and sharing a list of refuge-specific and system-wide research needs, and by treating research activity on that list as a management activity, that potential can be achieved. For the very few kinds of research that cannot be regarded as a management activity, it would be helpful if the NWRS would issue guidance to explain the inherent value of biological and ecological research to the refuges and the refuge system and would encourage refuge managers to regard this “non-management” research as an appropriate use and include it in their Comprehensive Conservation Plans.
We hope these comments are helpful to the
NWRS and thank
you for considering our concerns.
Sincerely,
Ellen Paul
Executive Director
Compatiblity rule (finalized and
published in October 2000)
Synopsis of proposed compatibility rule
Comments filed by the Ornithological Council on the compatibility rule appear below.
Final compatibility rule: The U.S. Fish and Wildlife Service on 18 October 2000 published its final rule. Unfortunately, the USFWS chose not to make explicit policy about the value of scientific research to refuge management. Instead, the agency said, "While our experience has been that scientific research and other scientific activities are most often compatible, the NWRSAA-1966 as amended by the NWRSIA-1997 does not give us any authority to treat research differently than other uses. Nonetheless, we encourage many types of natural resource-related research and believe that we can cover many such proposed uses under our expedited compatibility review process." In short, for the purposes of refuge Comprehensive Conservation Plans and Management Plans, scientific research is treated the same as a family picnic: the public notice and review requirements for each permit application might be triggered, which will delay the issuance of permits and could lead to denial of permits. OC will continue to work to try to improve this unfortunate situation. The final rules promises that, " it provides for the expedited consideration of uses that will likely have no detrimental effect on the fulfillment of the affected national wildlife refuge's purposes or the National Wildlife Refuge System Mission." OC will do all it can to be sure that this promise encompasses scientific research.
Note: the final rule was accompanied by a policy statement. The policy statement, which can be found at http://www.fws.gov/r9pdm/home/newfrnotice.html, has a very good question-and-answer section that explains - in plain English - what the new regulations mean and how they will be implemented.
Synopsis of proposed compatibility policy and regulations: The draft policy and regulations address the "compatibility" standard for public uses of national wildlife refuges. Although the regulations focus on recreation and never discuss scientific research, the permitting decisions for scientific research are made subject to the same "compatibility" standard. Compatibility is defined as, "a proposed or existing wildlife-dependent recreational use or any other use of a national wildlife refuge that, in the sound professional judgment of the Refuge Manager, will not materially interfere with or detract from the fulfillment of the National Wildlife Refuge System Mission of the major purposes of the affected national wildlife refuge."
The proposed regulations also establish a process for determining whether or not a use of a national wildlife refuge is a compatible use. The process regulations include:
• identification of the refuge official responsible for making compatibility determinations
• a requirement that the proposed use include an estimated time-frame, location, manner, and purpose
• require that compatibility determinations be made in writing
• provide for the expedited consideration
of uses that
will likely have no detrimental effect on the fulfillment of the
affected
national wildlife refuge's purposes or the National Wildlife Refuge
System
Mission
The full text of the draft policy and regulations can be found at http://refuges.fws.gov/. Click on Draft Compatibility Regulations and Policy. Be sure to read the proposed questions-and-answer text that will be incorporated into Chapter 3 of the Fish and Wildlife Service Manual (included in the draft Policy notice).
Of particular interest to scientists are the following provisions:
• Both the NWRSIA and the proposed regulations give priority to certain general public uses, which are defined as compatible wildlife-dependent recreational uses. Under the NWRSIA, even if a proposed research project is determined to be compatible, if it conflicts with a priority use, a permit can be denied. Because this is a requirement of the statute, the FWS is powerless to change or modify application of this provision in its regulations.
• Compatibility determinations in existence as of 9 October 1997 (the date of enactment of the NWRSIA) will remain in effect until and unless modified. The FWS will continue to make compatibility determinations between 9 October 1997 and the date that the final regulations are issued. After the final regulations are issued, all compatibility determinations will be made in accordance with the final regulations, as to both process and substantive analysis.
All uses (other than wildlife-dependent recreational uses) will be reevaluated if conditions under which the permitted use change significantly or if there is significant new information regarding the effects of the use. These reviews will take place at least once every ten years.
• The NWRSIA requires each refuge, within 15 years, to develop a Comprehensive Conservation Plan (CCP). CCPs, which will be subject to public review and comment, can provide for certain types of (compatible) uses for the specific refuge. If the CCP does provide for a certain type of use, there is no need for public review and comment for individual refuge use applications. The refuge manager must still make a determination that a given research protocol falls within the uses provided for in the CCP. It is important that ornithologists monitor the development of these plans, to be sure they provide for scientific research. Otherwise, every application for a scientific research permit could be subject to a public comment process - leading to delays as well as opening the door to objections from animal rights activists, some of whom object to all research involving live animals. Until a given refuge develops a CCP, the new regulations require that the refuges provide an opportunity for public review and comment on each evaluation of a use.
If a refuge has a management plan, and that plan was subjected to public review and comment, any uses that are permitted under that plan may be approved by a refuge manager without public review and comment (provided that the refuge manager establishes that the specific research protocol falls within the uses provided for in the management plan).
• The regulations will provide for the expedited consideration of uses that will likely have no detrimental effect on the fulfillment of the affected national wildlife refuge's purposes of the National Wildlife Refuge System Mission
• Refuge managers are to consider the compatibility issue only after determining that there is no other reason for denying a permit, including:
- inconsistency with any applicable law, such as the Endangered Species Act, Migratory Bird Treaty Act, or Wilderness Act
- the proposed use is inconsistent with the goals or objectives of an approved refuge management plan
- the proposed use is inconsistent with any Executive Order or written Dept. of Interior or FWS policy
- the proposed use is inconsistent with public safety
- the proposed use is a use other than a wildlife-dependent recreational use that is not manageable within the available budget and staff
- the proposed use conflicts with other resource or management objectives
• The compatibility determination is to be made by the Refuge Manager using "sound professional judgment," which is based on the Manager's field experiences and knowledge of a refuge's resources, particularly its biological resources, and is consistent with principles of sound fish and wildlife management and administration, available scientific information, and applicable laws. In evaluating potential impacts, Refuge Managers are to use and cite available sources of information as well as their best professional judgment. Sources of information may include planning documents, environmental assessments, annual narratives, information from previously-conducted or ongoing research, data from refuge inventories or studies, published literature on related biological studies, State conservation management plans, and field management experience.
• Even if a use is determined to be compatible, the permit can be denied if the refuge does not have adequate resources (financial, personnel, facilities, or other infrastructure to properly develop, operate, and maintain the use in a way that will not materially interfere with or detract from the refuge purposes and the Refuge System Mission.
Background on compatibility rule: National wildlife refuges date back to 1903, when President Teddy Roosevelt established the first national wildlife refuge, Florida's Pelican Island, to protect fast-disappearing wading birds. National wildlife refuges that followed were established to manage and protect habitat for big game, migratory birds, and endangered species. Today, the National Wildlife Refuge System has grown to 509 refuges with more than 92 million acres of land and waters dedicated to wildlife conservation.
Not until 1966 did Congress establish the National Wildlife Refuge System, which consolidated administration of all the public lands administered by the Department of the Interior for the conservation of fish and wildlife. The National Wildlife Refuge System Administration Act (16 U.S.C. 668dd, 6683ee) and the Refuge Recreation Act of 1962 (16 U.S.C. 460k) govern the administration and use of the National Wildlife Refuges. The 1966 law established the mission of the National Wildlife Refuge System: 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.
The 1997 National Wildlife Refuge System Improvement Act (P.L. 105-57) amended the NWRSAA. It requires that each refuge be managed to fulfill the mission of the System as well as the specific purpose for which that refuge was established. It also authorizes the Secretary of the Interior to develop regulations that permit the use of any area within the System for any purpose, including but not limited to hunting, fishing, public recreation and accommodation, and access, whenever such uses are compatible with the major purposes for which such areas were established.
Comments filed by the Ornithological Council on compatiblity rule
8 November 1999
Jim Kurth
Chief
Division of Refuges
U.S. Fish and Wildlife Service
4401 North Fairfax Drive
Room 670
Arlington, VA 22203
Dear Mr. Kurth,
The Ornithological Council appreciates the opportunity to comment on the Fish and Wildlife Service's (the "Service") proposed compatibility policy (the "Policy') and regulations (the "Regulations") (64 FR 49067; 9 September 1999). The Ornithological Council consists of ten leading scientific ornithological societies - the American Ornithologists' Union, Association of Field Ornithologists, CIPAMEX, Cooper Ornithological Society, Pacific Seabird Group, Raptor Research Foundation, Society of Canadian Ornithologists/La Société des Ornithologistes du Canada, Society for Caribbean Ornithology, Waterbird Society, and Wilson Ornithological Society - that together have a membership of nearly 6,500 ornithologists. It is our mission to provide scientific information about birds to legislators, regulatory agencies, industry decision makers, conservation organizations and others, and to promote the use of that scientific information in the making of policies that affect birds. We also represent the concerns of ornithologists to the regulatory agencies and other organizations that authorize research activities involving wild birds. Our comprehensive, peer-reviewed publication entitled Guidelines to the Use of Wild Birds in Research that sets out the profession's standards for research methods has been distributed to the members of the Ornithological Council societies, to the US Fish and Wildlife Service (the Service), to the Biological Resources Division of the US Geological Survey, and to many other government agencies and researchers. This publication emphasizes the legal and ethical considerations that form the foundation for both permit requirements and acceptable research methods.
We are pleased to see that FWS has developed a more expansive, detailed compatibility Policy and that the new Policy has been committed to writing. Together with the regulations, it will help scientists who wish to conduct research on the refuges better understand what is required of the refuge managers in making the compatibility decisions. It will introduce the transparency and clarity that are hallmarks of good government decision-making. Incorporating the policy into the Fish and Wildlife Service Manual (the "Manual") will also help ensure consistency across the refuge system. Our comments focus on several issues that should be made clearer:
• Scientific research is part of the NWRS
mission and
therefore should have priority over
priority and nonpriority public uses
• As a matter of fact, biological research is critical to the NWRS mission and NWRS policy should reflect that fact
• Scientific research is of value to the refuge system as a whole, even though it may not have substantial benefit to the refuge where it is conducted
• Permits for biological research should be denied only if the manner in which the research is conducted is incompatible with the refuge purpose
Scientific
research is defined as part of the NWRS
mission
The mission of the National Wildlife Refuge System
(NWRS),
according to the National Wildlife Refuge System Inprovment Act
(NWRSIA)
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." The
NWRSIA
specifically defines the terms 'conserving,' 'conservation,' 'manage,'
managing' and management' to mean, "to sustain, and where appropriate,
restore and enhance, healthy populations of fish, wildlife, and plants,
utilizing, in accordance with applicable Federal and State laws,
methods,
and procedures associated with modern scientific resource programs.
Such
methods and procedures include, consistent with the provisions of this
Act, protection, research, live trapping and transplantation, and
regulated
taking." Because research is by definition part of the NWRS mission, it
should take priority over public uses, even priority public uses.
The
role and value of biological research in refuge management
The Service's Policy should recognize the role and
value
of biological research in achieving the NWRS Mission. It concerns us
greatly
that the Policy fails to mention, much less emphasize, the value of
scientific
research to the management of wildlife refuges, or the benefit to the
wildlife
that refuges are designed to protect.
Biological research is inherently compatible with and essential to the NWRS mission 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." As §3.5(A) of the Policy states, "A significant goal of the Refuge Administration Act is to ensure that we maintain the biological integrity, diversity, and environmental health of the Refuge System for present and future generations of Americans." Effective conservation, management, and restoration all rest on a foundation of science. Maintenance of biological integrity, diversity, and environmental health require biological research. With insufficient research budgets making it impossible for government scientists to meet the research needs of the NWRS, the research of non-government scientists is of even greater value, not just to a particular refuge, or even to the refuge system as a whole, but for the wildlife that give the refuges their purpose for existing. The NWRS has an opportunity to voice its support for and appreciation of scientific research in Policy.
Again, we suggest that science is within the top tier of uses because it is defined as part of the NWRS mission, and should have priority over all other uses, including priority public uses. However, we recognize that the Service may not agree with this interpretation. In that case, scientific research would have lower priority that the recreation-dependent wildlife uses. We think that is an untenable result. Nonetheless, should that be the case, we urge the Service to give priority to scientific research over all nonpriority uses. Scientific research is a special category of other uses, and should be given separate consideration in this Policy. Biological research is often of direct benefit to management of those very resources upon with the priority use - wildlife-dependant recreation - is based. For instance, waterfowl hunting regulations are based on Adaptive Harvest Management, which requires research and monitoring. There is an obvious difference between scientific research and all other possible compatible uses - such as oil wells, bicycling, or water sports - that can be made of the refuge lands. That distinction should be recognized in the Policy.
In regulatory terms, this policy could be reflected in a separate regulation that directs refuge managers to permit scientific research unless it is found to be incompatible with the major purposes of the refuge. In other words, scientific research would be presumed to be compatible, and only if a specific project presents problems that cannot be surmounted should a research permit be denied. The statutory language does not bar such presumptions. Further, the presumption is consistent with the proposed regulatory definition (§29.21) of compatible use: "Compatible use means a proposed or existing wildlife-dependent recreational use or any other use of a national wildlife refuge that, in the sound professional judgment of the Refuge Manager, will not materially interfere with or detract from the fulfillment of the National Wildlife Refuge System Mission or the major purposes of the national wildlife refuge." Specific scientific research projects may pose logistical problems that are deemed incompatible, but scientific research as a whole is inherently compatible with NWRS' mission and the major purposes of every national wildlife refuge in the system. Refuges could be directed to include scientific research in their CCPs and management plans unless refuge-specific conditions preclude all forms of scientific research.
There is another compelling reason for directing refuge managers to include scientific research as compatible uses in their CCPs and management plans. The proposed rules would require public review and comment on each evaluation of a use, unless the refuge has already provided that opportunity during the development or revision of a CCP. Public review and comment on each application for a research permit would be an unwieldy procedure that would add substantial delay to the research permit process. An entire research season could be lost while the public comment process is completed. Furthermore, it is not inconceivable that animal rights organizations, some of whom are opposed to any form of animal-based research, would abuse the public comment process by filing objections to every proposed research project. Research of substantial value to the refuge or to the refuge system would be delayed, or might be aborted altogether. Including scientific research as a compatible use in the CCPs would avoid time-consuming repetition of the same determination.
Further, the Policy and Regulations should direct the refuge manager that if the requested nonpriority uses will cumulatively surpass the threshold, that the application for scientific research should be given priority over all other non-wildlife-dependent uses.
Meanwhile, the definition of scientific research as a compatible use will not prevent refuge managers from denying permits for specific projects if there are other concerns about the proposed research activity, because, according to the Policy [§3.10(D)], the compatibility determination is made only after the refuge manager has considered seven other criteria, including public safety and other practical issues.
Refuge
management activity
The Policy (§3.10) exempts from compatibility
determinations
refuge management activities, which include ..." routine scientific
monitoring,
studies, surveys, and censuses." However, a compatibility
determination
is required for all refuge uses (§3.9), which, in turn are defined
as, "a recreational use including refuge actions associated with a
recreational
use or other general public use, refuge management economic activity,
or
other use of a national wildlife refuge by the public or other
non-Service
entity." It is anomalous to declare that no compatibility
determination
is needed for scientific monitoring, studies, surveys, and censuses if
conducted
by refuge staff, but the same activity, if
conducted
by non-Service researchers, requires a compatibility determination.
These
fundamental scientific studies are of direct benefit to the refuge on
which
they are conducted, regardless of who conducts them. Therefore,
we
urge NWRS to exempt from compatibility determinations this type of
activity,
even if conducted by non-Service researchers.
Standards
for determining compatible use
Both the Policy and the Regulations require that
the
refuge manager exercise sound professional judgment, taking into
consideration
the manager's field experience and knowledge of a refuge's resources,
particularly
its biological resources. Of course, the manager's knowledge of
the
refuge's biological resources is dependent upon biological research
conducted
on the refuge. The decision made by the manager must be consistent with
principles of sound fish and wildlife management and administration,
available
scientific information, and applicable laws. The refuge staff may
or may not have the scientific credentials and relevant expertise to
make
this assessment, which could require specialized knowledge about the
species
or system to be studied. Therefore, we suggest that the Service
require
that refuge managers consult with qualified scientists with appropriate
expertise when a research proposal is outside the refuge manager's own
expertise. As a practical matter, this consultation is really
neceessary
only if a refuge manager is planning to deny a permit application.
Therefore,
we request that the Policy and Regulations include a requirement that
before
a permit is denied based on the compatibility standard that the refuge
manager consult with scientists with appropriate expertise. NWRS staff
could consult with scientists in the FWS, U.S. Geological Survey,
Biological
Resources Division, or with professional scientific societies, such as
The Ornithological Council, The Wildlife Society, and The American
Institute
of Biological Sciences to identify appropriate reviewers. At the very
least,
the refuge manager should be required to consider data submitted by the
applicant with regard to potential impacts of the activity on the
resources
of the refuge.
Fulfillment
of the refuge's major purposes and the NWRS
system
Certain language in the proposed regulation could
potentially
be misinterpreted. The compatibility standard requires that the
proposed
use, "will not materially interfere with or detract from the
fulfillment
of the National Wildlife Refuge System Mission or the major purposes of
the affected national wildlife refuge." By contrast, new
§26.41(a)(9)
requires that the refuge manager determine how the proposed use affects
fulfilling the national wildlife refuge's major purposes and the
National
Wildlife Refuge System Mission. This language implies that the manager
may determine not only that the proposed use will not have the
proscribed
negative effects, but that it may also be required that the proposed
use
also further either the refuge purpose or the NWRS mission. We suggest
that the Service clarify this language. If there is a proscribed
effect,
then it should be described. If not, the regulation should simply
require a statement from that the proposed use described in items 1-7
will
not materially interfere with or detract from the fulfillment of the
National
Wildlife Refuge System Mission or the major purposes of the affected
national
wildlife refuge.
Refuge-specific
determinations
We recognize that each refuge has a specific
mission,
and that those missions vary. Biological conditions vary from
refuge
to refuge. CCPs will vary, as will management plans. Therefore,
complete
uniformity is not achievable. However, refuge managers should be
encouraged
to recognize that the process and the standards are the same throughout
the system, and that their decisions should conform to established
Policy
and Regulations. Refuge-specific analysis should not be viewed as an
opportunity
to add or amend compatibility determination criteria, or to impose
additional
requirements and restrictions.
Monitoring
and oversight
A permit tracking system would be useful in
determining
if refuge managers are making permit decisions consistent with the
Policy
and Regulations. Recurrent problems could be identified and addressed
by
the Service. Guidance for both refuge managers and applicants could be
developed.
With or without a formal tracking system, the
permitting
decisions of the individual refuge managers should be subject to some
degree
of oversight by NWRS senior management. The review procedures of 50 CAR
Part 25.45 apply only to individual permits. Unless individual
applicants
decide to seek review of a denial, problems will not come to the
attention
of regional or national NWRS staff.
Opening
areas to use for scientific research
According to 50 CAR 25.21, all areas acquired or
withdrawn
for inclusion in the NWRS are closed to the public unless FWS opens the
area for a use or uses in accordance with the National Wildlife Refuge
System Administration Act of 1966. Areas can be opened by regulation,
individual
permit, or by public notice. We urge the Service to provide by
regulation
that scientific research be allowed even on closed refuges, unless
there
are extenuating circumstances that specifically make this impossible
(such
as unexploded ordinance on transferred military lands).
Compatibility
determinations for types of scientific research
The regulations could provide that a refuge
manager may
make a compatibility determination for an entire category of scientific
research (e.g., all wildlife inventory and monitoring, or all studies
of
nesting habitat) and then simply issue permits when requested. In this
way, the permit system would be expedited and the refuge manager would
not have to make repeated compatability determinations for the same
kind
of activity.
We thank you for your efforts to undertake this needed reform. We hope our comments prove helpful to the Service. We look forward to the issuance of the proposed policy and regulatory changes and to a continuing, productive relationship with the Service.
Sincerely,
Ellen Paul
Executive Director
Final regulation: Published 18 October 2000 (Note: the full text is very lengthy. This is an abridged version. The full text can be found at http://www.fws.gov/r9pdm/home/newfinalrule.html.
Fish and Wildlife Service
50 CFR Parts 25, 26 and 29
Final Compatibility Regulations Pursuant to the
National
Wildlife Refuge System Improvement Act of 1997; Final Rule
Final Compatibility Policy Pursuant to the National Wildlife Refuge System Improvement Act of 1997; Notice
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR parts 25, 26 and 29
Final Compatibility Regulations Pursuant
to the National
Wildlife
Refuge System Improvement Act of 1997
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This rule contains the final changes to Parts 25, 26 and 29 of Title 50 of the Code of Federal Regulations (CFR) that describe the process for determining whether or not a use of a national wildlife refuge (refuge) is a compatible use. These changes are necessary to implement the compatibility provisions of the National Wildlife Refuge System Improvement Act of 1997 (NWRSIA-1997) that amends the National Wildlife Refuge System Administration Act of 1966 (NWRSAA-1966). Also, published concurrently in the notice section of this Federal Register is our final compatibility policy describing in more detail the process for determining whether or not a use of a refuge is a compatible use.
DATES: This rule is effective November 17, 2000.
FOR FURTHER INFORMATION CONTACT: To obtain
copies of this
final rule or for additional information, contact: J. Kenneth Edwards,
Refuge Program Specialist, Division of Refuges, U.S. Fish and Wildlife
Service, 4401 North Fairfax Drive, Room 670, Arlington, Virginia 22203
(Telephone 703/358-1744, Fax 703/358-2248). You may also download a
copy
from:
http://www.fws.gov/r9pdm/home/newfinalrule.html.
SUPPLEMENTARY INFORMATION: We published the Proposed Compatibility Regulations Pursuant to the National Wildlife Refuge System Improvement Act of 1997 in the Federal Register on September 9, 1999 (64 FR 49056). In addition, we published the Draft Compatibility Policy Pursuant to the National Wildlife Refuge System Improvement Act of 1997 in the Federal Register on September 9, 1999 (64 FR 49067). We invited the public to provide comments on the proposed rule and draft policy by November 8, 1999. During this 60-day comment period, we received several requests for an extension to the comment period. In order to ensure that the public had an adequate opportunity to review and comment on the proposed rule and draft policy, we extended the comment period until December 8, 1999 (64 FR 62163 and 62217 published November 16, 1999). Therefore, the proposed rule and draft policy were available for public review and comment for 90 days. We revised the proposed rule and draft policy based on comments we received.
Background
The NWRSIA-1997 amends
and builds upon
the NWRSAA-1966 providing an ``Organic Act'' for the National Wildlife
Refuge System. The NWRSIA-1997 clearly establishes that wildlife
conservation
is the singular National Wildlife Refuge System mission, provides
guidance
to the Secretary of the Interior (Secretary) for management of the
National
Wildlife Refuge System, provides a mechanism for refuge planning, and
gives
refuge managers uniform direction and procedures for making decisions
regarding
wildlife conservation and uses of the National Wildlife Refuge System.
The NWRSAA-1966 required the
Secretary,
before permitting uses, to ensure that those uses are compatible with
the
purposes of the refuge. We built this legal requirement into our policy
and regulations. Since 1966, the compatibility standard for refuge uses
has helped us manage refuge lands sensibly and in keeping with the
general
goal of putting wildlife conservation first. The NWRSIA-1997 maintains
the compatibility standard as provided in the NWRSAA-1966, provides
significantly
more detail regarding the compatibility standard and
compatibility determination process, and requires
that
we promulgate the compatibility process in regulations. These
regulations
will help
ensure that compatibility becomes a more effective
conservation
standard, is more consistently applied across the entire National
Wildlife Refuge System, and is more understandable
and
open toinvolvement by the public.
The House Report accompanying
the
NWRSIA-1997 states ``Currently, the law does not include a mission or a
definition of a ``compatible use'' for the Refuge System. Refuge
managers
are responsible for determining, on a case-by-case basis, whether
activities
on refuges are compatible. Management of the Refuge System has been the
focus of numerous studies in the last two decades, including two
General
Accounting Office reports, two reports of advisory boards to the
Interior
Department, a report prepared by the USFWS, and several hearings by the
former Committee on Merchant Marine and Fisheries, which then had
jurisdiction
over the Refuge System. These reports and hearings highlighted that
refuges
have not always been managed as a national system because of the lack
of
an overall mission for the System. These reports concluded that the
lack
of an overall mission and management procedures had allowed numerous
incompatible
uses to be tolerated on wildlife refuges.'' The House Report further
states
``H.R. 1420 establishes that the conservation of fish, wildlife, plants
and their habitats is the mission of the National Wildlife Refuge
System
and sets forth the policy and procedures through which the System and
individual
refuges are to be managed in order to fulfill that mission for the
long-term
benefit of the American public. H.R. 1420 requires that public use of a
refuge may be allowed only where the use is compatible with the mission
of System and purpose of the individual refuge, and sets forth a
standard
by which the Secretary shall determine whether such uses are
compatible.''
Lastly, the House Report states ``The Committee expects that this
legislation
will diminish the likelihood of future litigation by providing a
statutory
compatibility standard, a process for making those determinations, a
clear
conservation mission for the System, and a planning process that will
ensure
greater public involvement in management decisions on refuges.''
The NWRSIA-1997 includes a
number
of provisions that specifically address compatibility. The following is
a summary of those provisions and how they apply to us.
We 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 we have determined that
the use
is a compatible use and that the use is not inconsistent with public
safety.
We may make compatibility determinations for a national wildlife refuge
concurrently with the development of a Comprehensive Conservation Plan.
On lands added to the National
Wildlife
Refuge System after March 25, 1996, we will identify, prior to
acquisition,
withdrawal, transfer, reclassification, or donation of any such lands,
existing compatible wildlife-dependent recreational public uses (if
any)
that we will permit to continue on an interim basis pending completion
of a Comprehensive Conservation Plan for the national wildlife refuge.
We may authorize
wildlife-dependent
recreational uses on a national wildlife refuge when we determine they
are compatible uses and are not inconsistent with public safety. We are
not required to make any other determinations or findings to comply
with
the NWRSAA-1966 or the Refuge Recreation Act of 1962 (RRA-1962) for
wildlife-dependent
recreational uses to occur except for consideration of consistency with
State laws and regulations.
Compatibility determinations in
existence
on the date of enactment of the NWRSIA-1997, October 9, 1997, will
remain
in effect until and unless modified. In addition, we will make
compatibility
determinations prepared during the period between enactment of the
NWRSIA-1997
and the effective date of these compatibility regulations under the
existing
compatibility process. After the effective date of these regulations,
we
will make compatibility determinations and re-evaluations of
compatibility
determinations under the compatibility process in these regulations.
We will issue final regulations
establishing
the process for determining whether or not a use of a national wildlife
refuge is a
compatible use. These regulations will:
1. Identify the refuge official
responsible
for making compatibility determinations;
2. Require an estimate of the
time-frame,
location, manner, and purpose of each use;
3. Require the identification
of the
effects of each use on national wildlife refuge resources and purposes
of each national
wildlife refuge;
4. Require that compatibility
determinations
be made in writing;
5. Provide for the expedited
consideration
of uses that will likely have no detrimental effect on the fulfillment
of the affected national
wildlife refuge's purposes or the National
Wildlife Refuge
System Mission;
6. Provide for the elimination
or
modification of any use as expeditiously as practicable after we make a
determination that the use
is not a compatible use;
7. Require, after an
opportunity for
public comment, reevaluation of each existing use, other than
wildlife-dependent
recreational uses, if conditions under which the use is permitted
change
significantly or if there is significant new information regarding the
effects of the
use, but not less frequently than once every 10
years,
to ensure that the use remains a compatible use. In the case of any use
authorized for a period longer than 10 years (such as an electric
utility
right-of-way), the reevaluation will examine compliance with the terms
and
conditions of the authorization, not examine the
authorization
itself;
8. Require, after an opportunity for
public
comment, reevaluation of each existing wildlife-dependent recreational
use when conditions
under which the use is permitted change
significantly
or if there is significant new information regarding the effects of the
use, but not
less frequently than in conjunction with each
preparation
or revision of a comprehensive conservation plan or at least every 15
years,
whichever is earlier; and
9. Provide an opportunity for
public
review and comment on each evaluation of a use, unless we have already
provided an opportunity during the development or revision of a
Comprehensive
Conservation Plan for the national wildlife refuge or have already
provided
an opportunity during routine, periodic determinations of compatibility
for wildlife-dependent recreational uses.
Purpose of This Final Rule
The purpose of this
final rule is to
establish in regulation the process for determining compatibility of
proposed
refuge uses and
procedures for documentation and periodic review
of existing
uses, and to ensure that we administer proposed and existing uses
according
to the compatibility provisions of the NWRSIA-1997. Published
concurrently
in this Federal Register is our final compatibility policy, Part 603
Chapter
2 of the Fish and Wildlife Service Manual, which reflects this final
rule
and provides additional detail for each step in the compatibility
determination
process.
Summary of Comments Received
We received 506 comment
letters by
mail, fax or email on our proposed rule and draft policy. They were
from
Federal, State and local governments, Members of U.S. Congress, Alaska
Native Village Corporations, non-government organizations, research
institutions
and individuals.
Some comments addressed
specific elements
in the proposed rule and specific elements in the draft policy, while
many
comments addressed an issue that was common to both the proposed rule
and
draft policy. Since the comments on the proposed rule and draft policy
were so intertwined and oftentimes a comment on an issue was directly
related
to both the proposed rule and draft policy, we chose to address the
comments
collectively by issue rather than by proposed rule and draft policy
separately. Since we analyzed the comments
collectively
on the proposed rule and draft policy, we are including a full summary
of the comments and our responses in the SUPPLEMENTARY INFORMATION
section
of this final rule only and not in the SUPPLEMENTARY INFORMATION
section
of the notice of our final policy.
We considered all of the
information
and recommendations for improvement included in the comments and made
changes
to the proposed rule and draft policy where appropriate. The number of
issues addressed in each comment letter varied widely, ranging from one
issue to several issues. We identified 28 groups of issues.
[deleted]
List of Subjects
50 CFR Part 25
Administrative practice
and procedure,
Concessions, Reporting and
recordkeeping requirements, Safety, Wildlife
refuges.
50 CFR Part 26
Recreation and recreation areas, Wildlife refuges.
50 CFR Part 29
Public lands--mineral resources, Public lands--rights-of-way, Wildlife refuges.
PART 25--[AMENDED]
2. Amend Sec. 25.12 by
revising the
definitions of ``Coordination area,'' ``National wildlife refuge,''
``National
Wildlife Refuge
System,'' and ``Service or we'' and adding
alphabetically
definitions of ``Compatibility determination,'' ``Compatible use,''
``Comprehensive
conservation plan,'' ``Conservation, and Management,'' ``Director,''
``Fish,
Wildlife, and Fish and wildlife,'' ``National Wildlife Refuge System
mission,
and System mission,'' ``Plant,'' ``Purpose(s) of the refuge,'' ``Refuge
management activity,'' ``Refuge management economic activity,''
``Refuge
Manager,'' ``Regional Chief,'' ``Refuge use, and Use of a refuge,''
``Regional
Director,'' ``Secretary,'' ``Sound professional judgment,'' ``State,
and
United States,'' ``Wildlife-dependent recreational use, and
Wildlife-dependent
recreation,'' and ``You'' to read as follows:
Sec. 25.12 What do these terms mean?
(a) Compatibility
determination means a written determination signed and dated by the
Refuge
Manager and Regional Chief, signifying that a proposed or existing use
of a national wildlife refuge is a compatible use or is not a
compatible
use. The Director makes this delegation through the Regional Director.
Compatible use means 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 purpose(s) of the national
wildlife
refuge.
Comprehensive conservation plan means
a
document that describes the desired future conditions of a refuge or
planning
unit and provides long-range guidance and management direction to
achieve
the purposes of the refuge; helps fulfill the mission of the Refuge
System;
maintains and, where appropriate, restores the ecological integrity of
each refuge and the Refuge System; helps achieve the goals of the
National
Wilderness Preservation System; and meets other mandates.
Conservation, and Management mean to
sustain
and, where appropriate, restore and enhance, healthy populations of
fish,
wildlife, and plants utilizing, in accordance with
applicable
Federal and State laws, methods and procedures associated with modern
scientific resource programs. Such methods and
procedures
include, consistent with the provisions of the National Wildlife Refuge
System Administration Act of 1966 (16 U.S.C. 668dd-668ee), protection,
research, census, law enforcement, habitat management, propagation,
live
trapping and transplantation, and regulated taking.
Coordination area means a
wildlife
management area made available to a State by cooperative agreement
between
the U.S. Fish and Wildlife Service and a State agency having control
over
wildlife resources pursuant to section 4 of the Fish and Wildlife
Coordination
Act (16 U.S.C. 664 or by long-term leases or agreements pursuant to
title
III of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1010 et seq.). The
States manage coordination areas but they are part of the National
Wildlife
Refuge System. The compatibility standard does not apply to
coordination
areas.
Director means the Director,
U.S.
Fish and Wildlife Service or the authorized representative of such
official.
* * * * *
Fish, Wildlife, and Fish and
wildlife
mean any member of the animal kingdom in a wild, unconfined state,
whether
alive or dead, including a part, product, egg, or offspring of the
member.
* * * * *
National wildlife refuge, and
Refuge
mean a designated area of land, water, or an interest in land or water
located within the
National Wildlife Refuge System but does not
include
coordination areas.
National Wildlife Refuge
System, and
System mean all lands, waters, and interests therein administered by
the
U.S. Fish and Wildlife
Service as wildlife refuges, wildlife ranges,
wildlife
management areas, waterfowl production areas, coordination areas, and
other
areas
for the protection and conservation of fish and
wildlife
including those that are threatened with extinction as determined in
writing
by
the Director or so directed by Presidential or
Secretarial
order. The determination by the Director may not be delegated.
National Wildlife Refuge System
mission,
and System mission mean 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.
* * * * *
Plant means any member of the
plant
kingdom in a wild, unconfined state, including any plant community,
seed,
root, or other part of a plant.
Purpose(s) of the refuge means
the
purposes specified in or derived from the law, proclamation, executive
order, agreement, public land order, donation document, or
administrative
memorandum establishing, authorizing, or expanding a national wildlife
refuge, national wildlife refuge unit, or national wildlife refuge
subunit.
For refuges that encompass Congressionally designated wilderness, the
purposes
of the Wilderness Act are additional purposes of the wilderness portion
of therefuge.
Refuge management activity
means an
activity conducted by the Service or a Service-authorized agent to
fulfill
one or more purposes
of the national wildlife refuge, or the National
Wildlife
Refuge System mission. Service-authorized agents include contractors,
cooperating
agencies, cooperating associations, refuge support groups, and
volunteers.
Refuge management economic
activity
means a refuge management activity on a national wildlife refuge which
results in generation of a commodity which is or can be sold for income
or revenue or traded for goods or services. Examples include: Farming,
grazing, haying, timber harvesting, and trapping.
Refuge Manager means the official
directly
in charge of a national wildlife refuge or the authorized
representative
of such official. In
the case of a national wildlife refuge complex,
this
refers to the official directly in charge of the complex.
Regional Chief means the
official
in charge of the National Wildlife Refuge System within a Region of the
U.S. Fish and Wildlife
Service or the authorized representative of such
official.
Refuge use, and Use of a refuge
mean
a recreational use (including refuge actions associated with a
recreational
use or other general
public use), refuge management economic activity,
or
other use of a national wildlife refuge by the public or other
non-National
Wildlife
Refuge System entity.
Regional Director means the
official
in charge of a Region of the U.S. Fish and Wildlife Service or the
authorized
representative of such official.
Secretary means the Secretary
of the
Interior or the authorized representative of such official.
Service, We, and Us mean the
U.S.
Fish and Wildlife Service, Department of the Interior.
Sound professional judgment
means
a finding, determination, or decision that is consistent with
principles
of sound fish and wildlife
management and administration, available science
and
resources, and adherence to the requirements of the National Wildlife
Refuge
System Administration Act of 1966 (16 U.S.C. 668dd-668ee), and other
applicable
laws. Included in this finding, determination, or decision is a refuge
manager's field experience and knowledge of the particular refuge's
resources.
State, and United States mean
one
or more of the States of the United States, Puerto Rico, American
Samoa,
the Virgin Islands, Guam, and the territories and possessions of the
United
States.
* * * * *
Wildlife-dependent recreational
use,
and Wildlife-dependent recreation mean a use of a national wildlife
refuge
involving hunting,
fishing, wildlife observation and photography, or
environmental
education and interpretation. The National Wildlife Refuge System
Administration Act of 1966 (16 U.S.C.
668dd-668ee), specifies
that these are the six priority general public uses of the National
Wildlife
Refuge System.
* * * * *
You means the public.
3. Revise Sec. 25.21 to
read as follows:
Sec. 25.21 When and how do we open and close areas of the National Wildlife Refuge System to public access and use or continue a use?
(a) Except as provided
below, all areas
included in the National Wildlife Refuge System are closed to public
access
until and unless we open the area for a use or uses in accordance with
the National Wildlife Refuge System Administration Act of 1966 (16
U.S.C.
668dd-
668ee), the Refuge Recreation Act of 1962 (16
U.S.C.
460k-460k-4) and this subchapter C. See 50 CFR 36 for details on use
and
access restrictions, and the public participation and closure process
established
for Alaska national wildlife refuges. We may open an area by
regulation,
individual permit, or public notice, in accordance with Sec. 25.31 of
this
subchapter.
(b) We may open a national
wildlife
refuge for any refuge use, or expand, renew, or extend an existing
refuge
use only after the Refuge Manager determines that it is a compatible
use
and not inconsistent with any applicable law.....
(c) The Refuge Manager may
temporarily
allow or initiate any refuge use without making a compatibility
determination
if necessary to protect the health and safety of the public or any fish
or wildlife population.
(d) When we add lands to the
National
Wildlife Refuge System, the Refuge Manager will identify, prior to
acquisition,
withdrawal,
transfer, reclassification, or donation of those
lands,
existing wildlife-dependent recreational public uses (if any)
determined
to be
compatible that we will permit to continue on an
interim
basis, pending completion of the comprehensive conservation plan for
the
national wildlife refuge. We will make these compatibility
determinations
in accordance with procedures in Sec. 26.41 of this subchapter.
(e) In the event of a threat or
emergency
endangering the health and safety of the public or property or to
protect
the resources of the
area, the Refuge Manager may close or curtail
refuge
uses of all or any part of an opened area to public access and use in
accordance
with the provisions in Sec. 25.31, without advance notice....
(f) We will re-evaluate
compatibility
determinations for existing wildlife-dependent recreational uses when
conditions
under which the
use is permitted change significantly, or if there
is
significant new information regarding the effects of the use, or
concurrently
with the
preparation or revision of a comprehensive
conservation
plan, or at least every 15 years, whichever is earlier. In addition, a
refuge
manager always may re-evaluate the compatibility
of a
use at any time.
(g) Except for uses
specifically authorized
for a period longer than 10 years (such as right-of-ways), we will
re-evaluate
compatibility determinations for all existing uses
other
than wildlife-dependent recreational uses when conditions under which
the
use is
permitted change significantly, or if there is
significant
new information regarding the effects of the use, or at least every 10
years, whichever is earlier. In addition, a refuge
manager
always may re-evaluate the compatibility of a use at any time.
(h) For uses in existence on
November
17, 2000 that were specifically authorized for a period longer than 10
years (such as
right-of-ways), our compatibility re-evaluation
will
examine compliance with the terms and conditions of the authorization,
not the
authorization itself. We will frequently monitor
and
review the activity to ensure that the permittee carries out all permit
terms and
conditions. However, the Service will request
modifications
to the terms and conditions of these permits from the permittee if the
Service determines that such changes are necessary to ensure that the
use
remains compatible. After November 17, 2000 no uses will be permitted
or
re-authorized, for a period longer than 10 years, unless the terms and
conditions for such long-term permits specifically allows for
modifications
to the terms and conditions, if necessary to ensure compatibility. We
will
make a new compatibility determination prior to extending or renewing
such
long-term uses at the expiration of the authorization. When we prepare
a compatibility determination for re-authorization of an existing
right-of-way,
we will base our analysis on the existing conditions with the use in
place,
not from a pre-use perspective.
(i) When we re-evaluate a use
for
compatibility, we will take a fresh look at the use and prepare a new
compatibility
determination
following the procedure outlined in 50 CFR 26.41.
Sec. 26.41 What is the process for determining if a use of a national wildlife refuge is a compatible use?
The Refuge Manager 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 Refuge
Manager
has determined that the use is a compatible use. This section provides
guidelines for making compatibility determinations, and procedures for
documenting compatibility determinations and for periodic review of
compatibility
determinations. We will usually complete compatibility determinations
as
part of the comprehensive conservation plan or step-down management
plan
process for individual uses, specific use programs, or groups of
related
uses described in the plan. We will make all compatibility
determinations
in writing.
(a) What information do we
include
in a compatibility determination? All compatibility determinations will
include the
following information:
(1) The proposed or existing
use;
(2) The name of the national
wildlife
refuge;
(3) The authorities used to
establish
the national wildlife refuge;
(4) The purpose(s) of the
national
wildlife refuge;
(5) The National Wildlife
Refuge System
mission;
(6) The nature and extent of
the use
including the following:
(i) What is the use? Is the use
a
priority public use?;
(ii) Where would the use be
conducted?;
(iii) When would the use be
conducted?;
(iv) How would the use be
conducted?;
and
(v) Why is the use being
proposed?.
(7) An analysis of
costs for administering
and managing each use;
(8) The anticipated impacts of
the
use on the national wildlife refuge's purposes and the National
Wildlife
Refuge System mission;
(9) The amount of opportunity
for
public review and comment provided;
(10) Whether the use is
compatible
or not compatible (does it or will it materially interfere with or
detract
from the fulfillment of the National Wildlife Refuge System mission or
the purpose(s) of the national wildlife refuge);
(11) Stipulations necessary to
ensure
compatibility;
(12) A logical explanation
describing
how the proposed use would, or would not, materially interfere with or
detract from the fulfillment of the National Wildlife Refuge System
mission
or the purpose(s) of the national wildlife refuge;
(13) The Refuge Manager's
signature
and date signed; and
(14) The Regional Chief's
concurrence
signature and date signed.
(15) The mandatory 10- or
15-year
re-evaluation date.
(b) Making a use compatible
through
replacement of lost habitat values or other compensatory mitigation. We
will not allow compensatory mitigation to make a proposed refuge use
compatible,
except by replacement of lost habitat values as provided in paragraph
(c)
of this section. If we cannot make the proposed use compatible with
stipulations
we cannot allow the use.
(c) Existing right-of-ways. We
will
not make a compatibility determination and will deny any request for
maintenance
of an existing
right-of-way which will affect a unit of the
National
Wildlife 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. Maintenance of an existing
right-of-way includes
minor expansion or minor realignment to meet safety standards.
(d) Termination of uses that
are not
compatible. When we determine an existing use is not compatible, we
will
expeditiously terminate or modify the use to make it compatible. Except
with written authorization by the Director, this process of termination
or modification will not exceed 6 months from the date that the
compatibility
determination is signed.
Sec. 29.3 [Reserved]
9. Remove and reserve Sec. 29.3.
10. Amend Sec. 29.21 by:
a. Revising the heading;
b. Removing the paragraph
designations
and placing the definitions
in alphabetical order;
c. Removing the definitions of
``Compatible,''
``Regional
Director,'' ``Secretary,'' and ``Service;'' and
d. Adding a definition of
``Compatible
use'' to read as follows:
Sec. 29.21 What do these terms mean?
Compatible use means 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. The term ``inconsistent'' in section 28(b)(1) of the Mineral
Leasing
Act of 1920 (30 U.S.C. 185) means a use that is not compatible.
* * * * *