Permits & Permitting

Topic: U.S. Fish and Wildlife Service refuge use policies and regulations that affect refuge "special use" permits needed to conduct research on National Wildlife Refuges

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.

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.

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OC comments on appropriate use rule:

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

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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.

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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

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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

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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.