In this subpart, the following terms will have the meanings set forth in this section.

ANILCA means the Alaska National Interest Lands Conservation Act (16 U.S.C. 3101 et seq.).

Applicant means an entity that has submitted an application for a right-of-way permit.

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.

Department means the U.S. Department of the Interior unless otherwise specified.

National Fish Hatchery System land means lands and waters, and interests therein, administered by the Secretary to propagate and distribute fish and other aquatic animal life and managed for the protection of all species of wildlife.

National Wildlife Refuge System land means lands and waters, and interests therein, administered by the Secretary under the National Wildlife Refuge System Administration Act (16 U.S.C. 668dd-668ee), as amended, including wildlife refuges, game ranges, wildlife management areas, conservation areas, waterfowl production areas, and other areas administered for the protection and conservation of fish, wildlife, and plant species.

Other lands mean all other lands, or interests therein, and waters administered by the Secretary through the U.S. Fish and Wildlife Service that are not included in the National Wildlife Refuge System or the National Fish Hatchery System, e.g., administrative sites.

Permit holder means an entity that holds a current, fully executed right-of-way permit.

Permitted area means the area of land or water mapped, described, and authorized for use, including construction, operation, maintenance, as well as routes and means of access, in a right-of-way permit issued by the U.S. Fish and Wildlife Service.

Regional Director means the official in charge of a region of the U.S. Fish and Wildlife Service or an authorized representative of the Regional Director.

Right-of-way permit means a discretionary and revocable permit issued by the U.S. Fish and Wildlife Service to authorize a use on, under, or over Federal lands, excluding uses that are included in a contract for services to a Service facility and excluding uses requested by the Service to benefit the mission of the National Wildlife Refuge System or the National Fish Hatchery System. A right-of-way permit does not grant, convey, or imply transfer of title to any interest in, including a leasehold or easement interest in, the lands or waters authorized for use.

The regulations in this subpart prescribe the procedures for filing applications and the terms and conditions under which rights-of-way over and across the lands administered by the U.S. Fish and Wildlife Service may be permitted.

(a) National Wildlife Refuge System lands except lands in Alaska. Applications are submitted under authority of Public Law 89-669, as amended (80 Stat. 926; 16 U.S.C. 668dd), or for oil and gas pipelines under section 28 of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.), following the application procedures set out in § 29.15. The Service will not issue a right-of-way permit for a requested use that would conflict with the goals or objectives in an approved refuge management plan, nor will the Service issue a right-of-way permit unless the use is a compatible use as described in § 29.13. See § 29.24 for additional requirements applicable to rights-of-way for electric power transmission lines and § 29.25 for additional requirements applicable to rights-of-way for pipelines for the transportation of oil, natural gas, synthetic liquid, or gaseous fuels, or any refined product produced from these substances.

(b) National Wildlife Refuge System lands in Alaska. Applications for rights-of-way authorized under ANILCA (see 16 U.S.C. 3162(B)) must be submitted under authority of 16 U.S.C. 3101 et seq. and follow the procedures and requirements set forth in 43 CFR part 36 and other applicable Refuge laws and regulations where they do not conflict with ANILCA. Applications for all other rights-of-way on or over lands in Alaska must be submitted under authority of 16 U.S.C. 668dd,as,or,as (30 U.S.C. 181 et seq.), following the application procedures set out in § 29.15, except that compatibility determinations for Alaska Native Claims Settlement Act 22(g) lands shall follow the procedures in § 25.21(b)(1) of this chapter.

(c) National Fish Hatchery System lands. Applications for rights-of-way across National Fish Hatchery System lands follow the same procedures as applications for rights-of-way across National Wildlife Refuge System lands in this section.

(d) National Wildlife Refuge System lands—less than fee interest. The Service requires permits for rights-of-way that affect a property interest acquired by the United States. If the requested right-of-way or regular maintenance of the requested right-of-way may affect the United States' interest, then an application for a right-of-way permit must be submitted in accordance with procedures set forth in § 29.15, except those applications for rights-of-way authorized under ANILCA (see 16 U.S.C. 3162(B)) will follow the procedures set forth in 43 CFR part 36. If the Regional Director determines that the proposed right-of-way and regular maintenance of the proposed right-of-way will not affect the United States' interest, then the Regional Director will sign a letter to the applicant stating that the proposed right-of-way will not affect the interest of the United States and the Service has no objection to the right-of-way.

(e) Other lands outside the National Wildlife Refuge System and National Fish Hatchery System. Rights-of-way on or over other lands will be permitted in accordance with controlling authorities cited in 43 CFR part 2800, or for oil and gas pipelines under section 28 of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.). See § 29.24 for additional requirements applicable to rights-of-way for electric power transmission lines and § 29.25 for additional requirements applicable to rights-of-way for pipelines for the transportation of oil, natural gas, synthetic liquid, or gaseous fuels, or any other refined product produced from those substances. Applications must be submitted in accordance with procedures set out in § 29.15, except that the compatibility-determination requirement in § 29.13 does not apply to lands outside the National Wildlife Refuge System and National Fish Hatchery System.

The regulations in this subpart have no impact on permanent rights and rights-of-way in existence prior to acquisition by the United States, except those activities not explicitly authorized by a preexisting right-of-way, as well as activities that fall outside the footprint of such a right-of-way, are subject to § 26.41 of this chapter and the procedures in this subpart.

The Service will not issue or renew a right-of-way permit across National Wildlife Refuge System land if the use would conflict with the goals or objectives in an approved refuge management plan. The Service will not issue or renew a right-of-way permit across National Wildlife Refuge System land unless the agency determines that the use is a compatible use in accordance with the requirements and procedures of § 25.21 of this chapter. The requirements and procedures of § 26.41(c) of this chapter apply to any requested maintenance of or modifications to an existing right-of-way except as modified by any other prevailing provision of law. None of the requirements in this subpart apply to the access of privately owned minerals or to activities explicitly authorized by a permanent right or right-of-way obtained prior to acquisition by the United States, nor do they apply when access is required by any other prevailing provision of law. No compatibility determination is necessary to permit or renew a right-of-way across lands outside the National Wildlife Refuge System and National Fish Hatchery System.

Before submitting an application for a new right-of-way permit or a modification of an existing right-of-way permit across lands managed by the Service, a potential applicant must contact the appropriate Regional Director to schedule a preapplication meeting with the Service. Contact information for the Service Regional Offices is available at https://www.regulations.gov in Docket No. FWS-HQ-NWRS-2019-0017. There is no fee for the preapplication meeting. During the meeting, the potential applicant may ask questions about the application process, provide information about the scope of the requested right-of-way permit and its location, and receive feedback. The Service will advise the potential applicant about documentation needed to make an application complete and provide the potential applicant with an expected timeline and potential costs to review and process the application.

(a) Preapplication meeting. To request the preapplication meeting required by § 29.14 for a new right-of-way or a modification of an existing right-of-way, contact the appropriate Service Regional Office, the geographic jurisdictions of which are listed at 50 CFR 2.2. Contact information for the Service Regional Offices is available at https://www.regulations.gov in Docket No. FWS-HQ-NWRS-2019-0017.

(b) Application submission. Applicants must submit an application that includes the completed form and required attachments as described in § 29.16. The Service will deem a right-of-way application to be complete, and notify the applicant of such, after the Service has determined that the provided information is sufficient for the agency to make a compatibility determination and comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). The Service will also notify the applicant if additional information is required for a complete application.

(c) Payment for cost recovery. After the Service has determined that an application is complete, the agency will notify the applicant and provide an updated estimate of application processing costs, as set forth at § 29.18(a). The Service will review and process a right-of-way permit application after it has requested and received payment for these costs.

(d) Providing additional information for permit. If the Service determines that the requested right-of-way is a compatible use, then the agency will request additional information from the applicant necessary to draft a right-of-way permit document for applicant review. This includes but is not limited to the survey plat or Global Positioning System (GPS) location information described in § 29.17. The applicant must provide this information in order for the Service to develop the permit.

(e) No guarantee of right-of-way permit. Submitting a complete application and payment for application processing costs do not guarantee that the Service will issue or renew a right-of-way permit. Issuance or renewal of a right-of-way permit is contingent on a Service determination that the right-of-way is a compatible use. Permit issuance or renewal is also contingent on the applicant:

(1) Providing the information the Service requires to develop the right-of-way permit;

(2) Agreeing to the permit's terms and conditions; and

(3) Providing payment for use and occupancy of the land as well as for future right-of-way monitoring costs.

(a) Complete application requirement. The Service will not begin processing a right-of-way permit application until after the applicant has submitted a complete application with all required information. See paragraph (e) of this section for submission instructions.

(b) Application form. To request a new right-of-way permit, modifications to an existing right-of-way permit, or renewal of an existing right-of-way permit, applicants must submit a complete Standard Form 299, Application for Transportation, Utility Systems, Telecommunications and Facilities on Federal Lands and Property (SF-299), or the applicable common form approved by the General Services Administration at the time of the application, including all materials required in the SF-299 and the regulations in this subpart. The SF-299 must be signed by the applicant or applicant's authorized representative.

(c) Required application attachments. In addition to a completed and signed SF-299, an application for a right-of-way permit must include the attachments described in this section.

(1) Map(s). The map(s) must show a general view of the proposed right-of-way and a detailed view of the proposed project area in relation to the Service unit boundary. If the proposed right-of-way is within a Public Land Survey System area, the map(s) must show the section(s), township(s), and range(s) within which the proposed right-of-way would be located. The maps must identify:

(i) The area proposed to be included in the right-of-way permit, including the placement of proposed infrastructure; and

(ii) Proposed access points and routes (including uses of existing roads), and other areas associated with the requested right-of-way.

(2) Preliminary site and facility construction plans. These plans, which are listed as an attachment to SF-299, are required for applications for rights-of-way or renewals of rights-of-way where construction is required. The plans must show all proposed construction work and include a list of equipment to be used in construction and a proposed construction timeline.

(3) Proposed access. The application must include a description of proposed access routes and means of access for construction and maintenance of the requested right-of-way.

(4) Supplemental environmental information. In addition to the basic environmental information on the SF-299, the applicant must provide supplemental information on the environmental impact of the proposed right-of-way that is suitable for the Service to determine whether the proposed use is compatible with the mission of the Refuge System and the purpose(s) of the refuge. This supplemental information may include, but is not limited to, anticipated impacts of the proposed use on air and water quality; scenic and aesthetic features; historic, architectural, archeological, and cultural features; and wildlife, fish, and marine life, including habitat connectivity and migratory routes. The supplemental information also may describe proposed design measures that will minimize or avoid resource impacts. The Service will review the provided supplemental environmental information to determine what additional information, if any, the agency requires from the applicant to determine whether the proposed use is compatible with the mission of the Refuge System and the purpose(s) of the refuge.

(d) Other required documents. During the preapplication meeting or in a subsequent communication, the Service will inform the applicant when the agency requires the following information and other information to prepare a right-of-way permit, which the applicant must provide before the Service may issue a right-of-way permit.

(1) Survey plat and legal description. See § 29.17 for requirements.

(2) Detailed environmental analysis. To comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an environmental assessment or environmental impact statement must be prepared in accordance with section 102(2)(C) of the National Environmental Policy Act and comply with the requirements of the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the Wilderness Act of 1964 (16 U.S.C 1131 et seq.), the Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.), and the National Historic Preservation Act of 1966 (54 U.S.C. 300101 et seq.). The environmental assessment or environmental impact statement may be prepared by the Service, another Federal agency, the applicant, or the applicant's contractor; however, in all cases, this documentation must be prepared in consultation with the Regional Director.

(i) If the environmental assessment or environmental impact statement will be prepared by the Service or another Federal agency, rather than the applicant or the applicant's contractor, the applicant must provide sufficient data to enable the Service or the other agency to satisfy the requirements in this paragraph (d)(2) and reimburse the Service for its costs as described in § 29.18.

(ii) For renewals of existing rights-of-way permitted that involve no changes to the permitted use, the environmental analysis need address only the impacts, including the cumulative effects, of the ongoing operation and maintenance of the right-of-way. The environmental analysis must also address any statutory requirements not in place when the original permit was issued and therefore not previously considered.

(3) Proposed vegetation management plan. A proposed vegetation management plan is required for a requested right-of-way permit or permit renewal where there will be disturbance of vegetation resulting from the construction, operation, or maintenance of the right-of-way. The plan must be prepared in consultation with the Regional Director's designee and must describe:

(i) Vegetation clearing that may occur as part of structural construction, maintenance, and removal.

(ii) Routine vegetation management that may occur, including a description of all physical and mechanical methods that will be used, how equipment will be cleaned before and after entry to the right-of-way, and how the spread of nonnative species by equipment and activities will be minimized.

(iii) Any pesticides, herbicides, or other chemicals proposed for use, as well as the actions the applicant will take to minimize the adverse impacts of pesticides, herbicides, and other chemicals on native species including pollinators present in or adjacent to the right-of-way.

(iv) Any revegetation and restoration activities, including how the applicant will incorporate regionally appropriate native seeds and plants, particularly those that provide breeding, feeding, and sheltering habitat for native species present in the area, including but not limited to native pollinators.

(4) Financial assurance and liability insurance. As appropriate to the proposed right-of-way, the Service may require proof of acceptable financial assurance and liability insurance.

(e) Submission instructions. Applicants may submit applications for rights-of-way through electronic filing or certified mail.

(1) Electronic filing. Applications submitted through electronic filing (E-file) must include a digital copy of the SF-299, the map(s), the preliminary site and facility construction plans, and the supplemental environmental information, as well as any other attachments that the Regional Director requires for application processing. The Service may provide additional instructions at the preapplication meeting.

(2) Certified mail. Application submissions through certified mail must include one printed copy of the SF-299, the map(s), the preliminary site and facility construction plans, and the supplemental environmental information, as well as any other attachments that the Regional Director requires for application processing. Applicants must send all documents by certified mail to the Regional Director for the region where the proposed right-of-way is located. Addresses for the Service Regional Offices are provided at 50 CFR 2.2. Mailing envelopes should be clearly marked “Attn: NWRS Realty Right-of-Way Permit Processing.”

(a) Before the Service will issue or renew a right-of-way permit, the applicant must provide a final survey plat and legal description that shows and describes the right-of-way in such detail that the Service can accurately locate the right-of-way on the ground.

(b) Survey plats and legal descriptions of the right-of-way area must be stamped and signed by a licensed professional land surveyor or other professional licensed or authorized by the State to carry out land-surveying activities.

(1) Survey plats must meet the following standards:

(i) Survey plats must be geodetically referenced to the current State or national datum. In some cases, new geodetic control points will need to be set within or near the right-of-way area.

(ii) Survey plats must show ties to the monuments marking the boundaries of the Service-owned land that the right-of-way would affect, or from which those boundaries are calculated. In cases such as road construction that involve allowing full control of the right-of-way area, a boundary survey is required.

(iii) The points where the right-of-way enters and leaves Service land must be annotated on the survey with distance ties to the nearest boundary monuments.

(iv) For a linear strip right-of-way, the courses and distances of the center line and the width of the right-of-way on each side of the center line must be annotated.

(v) If the right-of-way or site is located wholly within Service land, a minimum of two ties to boundary corners or geodetic control points that can be readily recovered must be shown.

(vi) Survey plats must show the existing or proposed facilities in sufficient detail that an average person can determine the nature and extent of the proposed use.

(vii) Survey plats must include all uses of Service-managed land required as part of the right-of-way, including access roads.

(viii) Survey plats must show the location of any other right-of-way areas in the vicinity.

(ix) Survey plats must show major natural or cultural features such as roads, rivers, fences, etc., required for orientation and intelligent interpretation.

(x) The acreage contained within the right-of-way area must be shown.

(xi) Letter-sized plats are preferred, but larger format plats, such as the right-of-way plan sets prepared for highway and utility projects, are acceptable if they meet the other requirements.

(xii) A digital version of the plat in AutoCAD, ArcGIS, or similar format must be submitted along with a signed paper or document prepared in Adobe Acrobat or similar process.

(2) The legal description must:

(i) Be in metes-and-bounds, aliquot parts, or linear strip format;

(ii) Conform to and reference the survey plat;

(iii) Be tied to the controlling monuments shown on the plat;

(iv) Reference the geodetic coordinates of the point of beginning or point of commencement, and have a clearly documented basis of bearing; and

(v) For linear corridor projects, use a “strip description” format, based on a geometrically defined centerline. For example: “All that portion of [land unit description] lying within the following described strip of land.”

(c) A licensed Service land surveyor may waive the requirement of a survey plat for a proposed right-of-way in a remote location if they determine that the GPS coordinates and supporting location information submitted by the applicant for inclusion in the right-of-way permit are adequate to locate the proposed right-of-way with minimal risk to the United States.

(a) Application evaluation and processing activities. (1) Unless reimbursement is waived as provided under paragraph (c) of this section, the applicant for a right-of-way permit must reimburse the United States for the costs the Service incurs in evaluating and processing the application, even if the result of this evaluation is a denial of the application.

(i) These costs may include, but are not limited to, the Service's costs to review the application and related materials, conduct surveys of the proposed permit area, prepare a compatibility determination, obtain an appraisal, draft correspondence, and draft the permit.

(ii) If the applicant or the applicant's contractor will prepare the environmental assessment or environmental impact statement necessary to comply with the National Environmental Policy Act (42 U.S.C. 4321 et seq.) and other applicable laws, then the Service shall require no reimbursement for National Environmental Policy Act compliance with exception to the costs the Service incurs to ensure that the materials meet agency requirements.

(2) If requested by the applicant during or after the required preapplication meeting, the Regional Director will provide the applicant a preliminary estimate of the Service's application evaluation and processing costs using the information provided by the applicant during or after the preapplication meeting.

(3) After receiving a complete application, the Regional Director will estimate the Service's application evaluation and processing costs using the information the applicant provided in the application and during or after the preapplication meeting.

(4) Unless reimbursement is waived as provided under paragraph (c) of this section, the applicant must submit a payment to reimburse the Service for its estimated costs before the Service will evaluate and process the right-of-way permit application.

(5) If the Service's cost to evaluate and process the right-of-way application exceeds the estimated amount, the Regional Director will promptly notify the applicant of the deficient amount, and the applicant must submit payment for the deficient amount before the Service will issue a right-of-way permit. The Regional Director will refund any overpayments at the request of the applicant.

(b) Monitoring activities. (1) By accepting a permit under this subpart, the permit holder agrees to reimburse the Service for the costs incurred for all monitoring activities, which include monitoring the construction, operation, maintenance, and termination of facilities, to ensure compliance with the terms, conditions, and stipulations of the right-of-way permit.

(2) The Regional Director will estimate the total costs the Service expects to incur for monitoring activities over the permit term using the information the applicant provided in the application and during or after the preapplication meeting.

(3) At the discretion of the Regional Director, the Service may require reimbursement for its estimated monitoring costs in a lump-sum payment before the Service issues a right-of-way permit, or at periodic intervals, not to exceed 5 years, specified in the permit.

(4) When reimbursement for costs for monitoring activities is required at periodic intervals specified in the permit, the Regional Director will review the amount of reimbursement not more than every 5 years after the issuance of the permit. The Regional Director will provide the permit holder with written notice of intent to impose new charges to reflect current monitoring costs commencing with the ensuing charge year. The revised charges will be effective unless the permit holder files an appeal in accordance with § 29.26.

(c) Waiver of reimbursement for Service costs. (1) No reimbursement for Service costs for right-of-way application evaluation and processing activities and monitoring activities will be required of:

(i) State or local governments or agencies or related instrumentalities;

(ii) Federal Government agencies; or

(iii) Private individuals or organizations when the proposed right-of-way contributes to the Service's operation or maintenance of the refuge or fish hatchery as certified in writing by the Regional Director.

(2) Additionally, the Regional Director has the discretion to waive reimbursement for Service costs for right-of-way application evaluation and processing activities and monitoring activities so long as there are appropriated funds for these activities.

(3) When reimbursement for Service costs for monitoring activities is waived during the permit term, the permit will contain a statement to that effect.

(4) Reimbursement of costs is required and cannot be waived for any right-of-way permit issued under section 28 of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.).

(d) Service use of payments received for reimbursement of costs. Payments received by the Service to reimburse the United States for the costs incurred in evaluating and processing applications, and for monitoring, will be deposited into the United States Treasury until such time that any provision of law allows these payments to supplement the Service's appropriation.

(a) Where the land administered by the Service is owned in fee by the United States and the right-of-way is compatible with the objectives of the area, the Service may issue a permit after it is approved in writing by the Regional Director.

(b) For rights-of-way permitted under authority of section 28 of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.), for pipelines for the transportation of oil, natural gas, synthetic liquid, or gaseous fuels, or any refined product produced from these substances:

(1) The permit term may not exceed 30 years.

(2) The right-of-way may not exceed 50 feet in width, plus the area occupied by the pipeline and its related facilities, unless the Regional Director finds, and records in writing the reasons for the finding based on the analysis in a compatibility determination, that a wider right-of-way is necessary for operation and maintenance after construction and to protect the environment or public safety. “Related facilities” include but are not limited to valves, pump stations, supporting structures, bridges, monitoring and communication devices, surge and storage tanks, and terminals.

(c) For rights-of-way other than those referred to in paragraph (b) of this section, the permit term may be up to 50 years when the Regional Director deems it appropriate, or a lesser term.

(d) The Service may issue a temporary permit supplementing a right-of-way for additional land needed during construction, operation, maintenance, or termination of the pipeline, or to protect the natural environment or public safety.

(e) Unless otherwise provided, no interest granted shall give the grantee any right whatsoever to remove any material, earth, or stone for construction or other purpose, except that stone or earth necessarily removed from the right-of-way in the construction of a project may be used elsewhere along the same right-of-way in the construction of the same project.

(a) Prior rights. Any right-of-way permit issued will be subject to rights reserved, if any, by a prior owner, and rights held, if any, by a third party.

(b) Agreement of terms and conditions. An applicant, by accepting a permit, agrees to such terms and conditions as may be prescribed by the Regional Director, including special stipulations required to ensure the permitted use is compatible with the mission of the Refuge System and the purpose(s) of the refuge. (See § 29.24 for specific requirements for electric powerlines and § 29.25 for specific requirements for oil and gas pipelines.)

(c) Terms and conditions required for all permit holders. In addition to any terms and conditions prescribed by the Regional Director, the permit holder must agree to all of the following terms and conditions:

(1) The permit is for the specific use described and may not be construed to authorize any other use within the permit area unless approved in writing by the Regional Director upon determination by the Service project manager that the additional use is a compatible use.

(2) The permit may be amended only by a written instrument signed and executed by the Regional Director and the permit holder.

(3) The permit holder may not transfer or assign the permit to another party without obtaining the Regional Director's prior written approval.

(4) The permit holder may not allow another party to collocate equipment or activities on their infrastructure or right-of-way unless the other party first obtains a right-of-way permit from the Service. Any entity that wants to collocate equipment or activities must apply for its own Service right-of-way permit by following the procedures set forth in § 29.15.

(5) The permit holder is responsible for ensuring that its officers, employees, representatives, agents, contractors, and subcontractors are familiar with the permit and comply with its terms and conditions.

(6) The permit holder must provide the Service project manager with current contact information (company address, points of contact, telephone numbers, email addresses, etc.) for both routine and emergency communications, and, in the case of corporations, of the address of its principal place of business and the names and addresses of its principal officers.

(7) Authorized representatives of the United States have the right to enter and inspect the permitted area at any time without providing prior notice to the permit holder.

(8) The Regional Director may suspend or terminate all or any portion of the issued permit for failure of the permit holder to comply with any or all of the terms or conditions of the permit, or for abandonment.

(i) A rebuttable presumption of abandonment is raised by deliberate failure of the permit holder to use the permit, for any continuous 2-year period, for the purpose for which the permit was issued or renewed. In the event of noncompliance or abandonment, the Regional Director will notify the permit holder in writing of any intention to suspend or terminate the permit 60 days from the date of the notice and state the reasons, unless prior to that time the holder completes such corrective actions as are specified in the notice. The Regional Director may allow an extension of time within which to complete corrective actions if the Regional Director believes that extenuating circumstances, not within the permit holder's control, such as adverse weather conditions, disturbance to wildlife during breeding periods or periods of peak concentration, or other compelling reasons, warrant an extension.

(ii) Should the holder of a right-of-way permit issued under authority of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.), fail to take corrective action within the 60-day period, the Regional Director will provide for an administrative proceeding, pursuant to 5 U.S.C. 554,prior. In the case of all other right-of-way permit holders, failure to take corrective action within the 60-day period will result in a determination by the Regional Director to suspend or terminate the permit.

(iii) No administrative proceeding is required in cases in which the permit terminates under its terms.

(9) The permit holder must prevent the disturbance or removal of any public land survey monument or project boundary monument unless and until the permit holder has requested and received from the Regional Director written approval of measures that the permit holder will take to perpetuate the location of the monument.

(10) The permit holder must conduct operations, including by setting their time and location, in a manner that avoids or minimizes impacts to fish and wildlife or their habitats, including, but not limited to, impacts caused by exposure to physical and chemical hazards, disruption of hydrologic processes, lighting and visual disturbance, and duration and frequency of noise.

(11) The permit holder must comply with State and Federal laws and regulations that are applicable to the project within which the permit is issued and to the lands that are included in the right-of-way.

(i) The permit holder must comply with the Archaeological Resources Protection Act (16 U.S.C. 470aa et seq.). The disturbance of archaeological or historical sites and the removal of artifacts from Federal land are prohibited.

(ii) The permit holder must comply with the applicable requirements of the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-712), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the Wilderness Act of 1964 (16 U.S.C. 1131 et seq.), the Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.), and the National Historic Preservation Act of 1966 (54 U.S.C. 300101 et seq.).

(iii) The permit holder must immediately suspend all activities and notify the Service project manager upon the discovery of any threatened or endangered species or archeological, paleontological, or historical resources within or near the permitted area. All natural and cultural resources discovered in the permitted area are the property of the United States.

(12) The permit holder must clear and keep clear the lands within the permit area to the extent and in the manner directed by the Service project manager in charge; and to dispose of all vegetative and other material cut, uprooted, or otherwise accumulated during the construction and maintenance of the project so as to decrease the fire hazard and also in accordance with any instructions that the Service project manager specifies.

(13) The permit holder must do everything reasonably within the permit holder's power, both independently and on request of any duly authorized representative of the United States, to prevent and suppress fires on or near the permitted area, including making available such construction and maintenance resources that are reasonably obtainable for the suppression of such fires.

(14) After the expiration or termination of the permit, the permit holder must remove all facilities and equipment from the permitted area and restore the permitted area to its pre-permit condition as directed and approved by the Service project manager. Any facilities or equipment not removed within 6 months, unless more time is deemed necessary for conservation purposes by the Regional Director, will be deemed abandoned and will be disposed of in accordance with applicable Federal law. In that event, the permit holder will be liable to the Service for all of its costs in disposing of the facilities or equipment and restoring the permitted area.

(15) In accordance with applicable Federal law, in the construction, operation, and maintenance of the project, the permit holder will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin and must require an identical provision to be included in all subcontracts.

(16) The permit holder must pay the United States the full value for all damages to the lands or other property of the United States caused by the permit holder or that person's employees, contractors, or agents of the contractors.

(i) In cases in which the permit is issued to a State or other governmental agency that has no legal power to assume such a liability with respect to damages caused to lands or property, that agency will repair all such damages.

(ii) In cases in which the permit involves lands that are under the exclusive jurisdiction of the United States, the permit holder or his or her employees, contractors, or agents of the contractors will be liable to third parties for injuries incurred in connection with the permit area.

(17) The permit holder will indemnify and hold harmless the United States and its officers, employees, agents, and representatives from and against all liability of any sort whatsoever arising out of the permit holder's activities under the permit. This agreement to indemnify and hold harmless from and against all liability includes liability under Federal or State environmental laws, including but not limited to the Comprehensive Environmental Response, Compensation, and Restoration Act, as amended (42 U.S.C. chapter 103); the Resource Conservation and Recovery Act, as amended (42 U.S.C. 6901 et seq.); and what is commonly known as the Clean Water Act, as amended (33 U.S.C 1251-1387). This agreement to indemnify and hold harmless will survive the permit's termination or expiration.

(18) The Regional Director may require permit modifications at any future date to ensure that the permitted use is compatible with the Refuge System mission and the purpose(s) of the refuge. Required permit modifications could include but are not limited to changes to permit conditions and/or additional stipulations that a Regional Director deems necessary based on new information.

(d) Terms and conditions required of most permit holders. The permit holder must also agree to the following terms and conditions, which are required unless the Regional Director determines they are not relevant to the proposed use:

(1) The permit holder may not restrict public access to any portion of the permitted area unless the Service project manager concurs in writing that making the area accessible to the public would pose a threat to public safety or the environment.

(2) The permit holder must notify the Service project manager in writing at least 5 business days before conducting any maintenance or nonemergency repair work within the permitted area. The written notice must describe the location of the proposed work, the equipment to be used, and the size of work crews anticipated to be working on Service land. The Service project manager may require an onsite meeting before any maintenance or nonemergency repair work commences and may assign a site monitor to be present during such work. Except in emergencies, all work in the permitted area must be conducted during normal business hours. To respond to an emergency, the permit holder may enter the permitted area at other times to conduct repair work after calling the Service project manager.

(3) The permit holder must erect and maintain appropriate warning signs, barricades, or other warning devices during all periods when the permit holder is using the permitted area, including periods of maintenance or repair.

(4) The permit holder must rebuild and repair such roads, fences, structures, and trails as may be destroyed or injured by construction work.

(5) Notwithstanding the issuance of the permit, the Service may establish trails, roads, or other improvements across, over, on, or through the permitted area for use by the Service, by visitors, or by others.

(6) Upon request by the Regional Director, the permit holder must build and maintain necessary and suitable crossings for all roads and trails that intersect the works constructed, maintained, or operated under the right-of-way.

(7) The permit holder must take any soil and resource conservation and protection measures, including weed control, on the land covered by the permit that the Service project manager in charge requests.

(8) The permit holder must provide for habitat connectivity on the land covered by the permit to the maximum extent possible, for example through use of wildlife-friendly fencing, perches or perch deterrents for birds, fish-passable culverts, vegetative screening or hiding cover, that the Service project manager in charge requests.

(9) The permit holder must promptly notify the Service project manager in charge of the amount of merchantable timber, if any, that will be cut, removed, or destroyed in the construction and maintenance of the project, and to pay the United States in advance of construction such sum of money that the project manager determines to be the full stumpage value of the timber to be cut, removed, or destroyed.

(10) Issuance of the permit is subject to the express condition that the exercise of the permit will not unduly interfere with the management, administration, or disposal by the United States of the land to be affected. The permit holder agrees and consents to the occupancy and use by the United States, or its grantees, permittees, or lessees, of any part of the permit area not actually occupied for the purpose of the permitted rights to the extent that the use does not unreasonably interfere with the permit holder's use of the permitted area.

(11) Any facility constructed on the permit area will be modified or adapted, if modification is found by the Regional Director to be necessary, without liability or expense to the United States, so that the facility will not conflict with the use and occupancy of the land for any authorized works that may be constructed on the land under the authority of the United States. The modification will be planned and scheduled so as not to interfere unduly with or to have minimal effect upon continuity of energy and delivery requirements for Service facilities.

(e) General liability insurance. The Service may require the permit holder to procure and maintain in force and effect during the term of the permit commercial general liability insurance to protect against claims arising out of the acts or omissions of the permit holder or its officers, employees, agents, or representatives while conducting the activities authorized by the permit. The insurance policy must also provide coverage for discharges or escapes of pollutants or contaminants into the environment, including sudden or accidental discharges or escapes. The Regional Director will determine the minimum amount of coverage per occurrence and in the aggregate. The policy must be issued by a company duly licensed to do business in the State where the project is located and must name the United States of America as an additional insured. Before the Regional Director executes the permit, the applicant must provide the Service with a copy of its certificate of insurance showing the required coverage.

(f) Bonds. The Service may require a bond for a permit when the Regional Director determines that the Service is likely to incur reclamation costs during or after the term of the right-of-way due to the construction, operation, or maintenance of the right-of-way. The Service also may require a bond for a permit when the Service is likely to incur reclamation costs if the right-of-way is abandoned or terminated.

(1) No bond will be required of a Federal, State, or local government or its agent or instrumentality, except those that are:

(i) Using the facility, system, space, or any part of the right-of-way area for commercial purposes; or

(ii) A municipal utility or cooperative whose principal source of revenue is customer charges.

(2) When the Service requires a bond, the permit holder must agree to the following terms and conditions: Before the permit's effective date, the permit holder must file with the Service a performance bond payable to the Service, issued by a surety satisfactory to the Service, to guarantee its compliance with all terms and conditions of the permit and with all applicable laws and regulations. The Regional Director will determine the amount of the bond and with whom it must be filed.

(g) Communications facilities. If the permit is for a communications facility as defined by the Mobile Now Act (47 U.S.C. 1455(d)(1)), and the permit holder will operate or maintain wireless communications equipment, then they must also agree to the following terms and conditions. These terms and conditions are not applicable to neutral host providers, sometimes referred to as tower companies, that own and maintain tower or support structures but do not operate or maintain wireless communications equipment on those structures.

(1) The permit holder agrees that use of wireless communications equipment is contingent upon the possession of a valid Federal Communications Commission (FCC) or National Telecommunications and Information Administration (NTIA) authorization/license (if required), and the operation of the equipment is in strict compliance with applicable requirements of FCC or NTIA. A copy of each applicable license or authorization must be maintained at all times by the permit holder for each transmitter being operated. The permit holder must provide the Service project manager, when requested, with current copies of all licenses for equipment in or on facilities covered by the permit.

(2) The permit holder must, at the permit holder's sole cost and expense, take all necessary actions to comply with all applicable FCC radio frequency (RF) exposure regulations and requirements, and take reasonable precautions so that neither workers nor the public are subject to RF exposures above the FCC specific levels.

(3) The permit holder agrees that the provisions of 18 U.S.C. 431 (contracts by Member of Congress) and 41 U.S.C. 6306 (prohibition on Members of Congress making contracts with the Federal Government) apply to the permit, as if set forth in full.

(a) If construction is not commenced within 2 years after the date of the right-of-way grant, the right-of-way may be canceled by the Director of the U.S. Fish and Wildlife Service.

(b) Upon completion of construction, the applicant shall file a certification of completion with the Regional Director.

(a) Change in jurisdiction over and disposal of lands. The final disposal by the United States of any tract of land traversed by a right-of-way shall not be construed to be a revocation of the right-of-way in whole or in part, but such final disposition shall be deemed and taken to be subject to such right-of-way unless it has been specifically canceled.

(b) Transfer of permit. Any proposed transfer, by assignment, lease, operating agreement or otherwise, of a permit must be filed with the Regional Director and must be supported by a stipulation that the transferee agrees to comply with and be bound by the terms and conditions of the original permit. A $100 nonrefundable service fee must accompany the proposal. No transfer will occur unless and until approved in writing by the Regional Director.

(c) Disposal of property on termination of right-of-way. In the absence of any agreement to the contrary:

(1) The holder of the right-of-way must, within 6 months after termination of the right-of-way, remove all property or improvements placed there by the holder, other than a road and usable improvements to a road.

(2) After 6 months, all property and improvements in the right-of-way area become the property of the United States.

(3) The Regional Director may use discretion to extend this timeframe.

(a) Payment for use and occupancy of lands under the regulations of this subpart is required for the fair market value or fair market rental value as determined by the Regional Director using any method approved by the Department of the Interior to determine those values.

(1) At the discretion of the Regional Director, the payment may be a fair market rental payment, paid annually, or a lump-sum payment, made before permit issuance.

(2) If any Federal, State, or local agency is exempt from payment under any other provision of Federal law, the agency must inform the Service of the applicable Federal law during the preapplication meeting required by § 29.14. The agency must also otherwise compensate the Service by any other means acceptable to the Regional Director, including, but not limited to, making other land available or loaning of equipment or personnel, except that any such compensation must relate to, and be consistent with, the mission of the National Wildlife Refuge System. For agencies exempted from payment by law, the Regional Director may waive the requirement for other compensation upon finding this requirement to be impracticable or unnecessary.

(b) The terms of the permit will specify the amount of the lump sum paid by the applicant for use and occupancy during the current permit term, or, if applicable, the initial annual rental payment amount for use and occupancy of the permitted area.

(c) When annual rental payments are used, the Regional Director will periodically review and adjust the charges to reflect fair market value. The Regional Director will provide the permit holder with written notice of intent to impose new charges to reflect fair market value commencing with the ensuing charge year. The revised charges will be effective unless the permit holder files an appeal in accordance with § 29.26.

(d) Payments received by the Service for use and occupancy of rights-of-way on Refuge lands and interests in land will be deposited into the Migratory Bird Conservation Fund to carry out the land-acquisition provisions of the Migratory Bird Conservation Act (16 U.S.C. 715 et seq.) and the Migratory Bird Hunting Stamp Act (16 U.S.C. 718 et seq.). Payments received for use and occupancy of rights-of-way on other Service-managed lands and interests in land will be deposited into the National Wildlife Refuge Fund, to make payments annually to counties and other units of local government in accordance with regulations in 50 CFR part 34.

By accepting a right-of-way for a power transmission line, the applicant thereby agrees and consents to comply with and be bound by the following terms and conditions, except those which the Secretary may waive in a particular case, in addition to those specified in § 29.20.

(a) To protect in a workmanlike manner, at crossings and at places in proximity to the transmission lines on the right-of-way authorized, in accordance with the rules prescribed in the National Electric Safety Code, all Government and other telephone, telegraph, and power transmission lines from contact and all highways and railroads from obstruction and to maintain the transmission lines in such manner as not to menace life or property.

(b) Neither the privilege nor the right to occupy or use the lands for the purpose authorized shall relieve the applicant of any legal liability for causing inductive or conductive interference between any project transmission line or other project works constructed, operated, or maintained by the applicant on the servient lands, and any radio installation, telephone line, or other communication facilities now or hereafter constructed and operated by the United States or any agency thereof.

(a) Application procedure. (1) Applications for pipelines and related facilities under this section are to be filed in accordance with § 29.15 with the following exception: When the right-of-way or proposed facility will occupy Federal land under the control of more than one Federal agency or more than one bureau or office of the Department of the Interior, a single application must be filed with the appropriate State Director of the Bureau of Land Management in accordance with regulations in 43 CFR part 2800.

(2) Any portion of the facility occupying land of the National Wildlife Refuge System is subject to the provisions of the regulations in this part.

(b) Right-of-way permits. Right-of-way permits issued under this section are subject to the special requirements of section 28 of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 181 et seq.). Gathering lines and associated structures used solely in the production of oil and gas under valid leases on the lands administered by the Service are excepted from the provisions of this section.

(1) Pipeline safety. Right-of-way permits issued under this section will include requirements that will protect the safety of workers and protect the public from sudden ruptures and slow degradation of the pipeline. An applicant must agree to design, construct, and operate all proposed facilities in accordance with the provisions of 49 CFR part 192 or 195 and in accordance with the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) and any future amendments to that act.

(2) Environmental protection. An application for a right-of-way must contain environmental information required by § 29.16(c)(4). The applicant must also provide a plan of construction, operation, and rehabilitation of the proposed facilities. In addition to terms and conditions imposed under § 29.20, the Regional Director will impose any stipulations required to ensure:

(i) Restoration, revegetation, and curtailment of erosion of the surface;

(ii) That activities in connection with the right-of-way or permit will not violate applicable air- and water-quality standards in related facilities siting standards established by law;

(iii) Control or prevention of damage to the environment, including damage to fish and wildlife habitat, public or private property, and public health and safety; and

(iv) Protection of the interests of individuals living in the general area of the right-of-way who rely on the fish, wildlife, and biotic resources of the area for subsistence purposes.

(c) Disclosure. Applicants that are a partnership, corporation, association, or other business entity must disclose the identity of all participants. Such disclosure will include where applicable:

(1) The name and address of each partner;

(2) The name and address of each shareholder owning 3 percent or more of the shares, together with the number and percentage of any class of voting shares that the shareholder is authorized for voting purposes; and

(3) The name and address of each affiliate of the entity, together with, in the case of an affiliate controlled by the entity, the number of shares and the percentage of any class of voting stock of that affiliate owned, directly or indirectly, by that entity, and in the case of an affiliate that controls the entity, the number of shares and the percentage of any class of voting stock of the entity owned, directly or indirectly, by the affiliate.

(d) Technical and financial capability. The Regional Director may require a financial statement and will issue or renew a right-of-way permit under this section only when satisfied that the applicant has the technical and financial capability to construct, operate, maintain, and terminate the facility.

(e) Reimbursement of costs. (1) In accordance with § 29.18, the holder of a right-of-way permit must reimburse the Service for the cost incurred in monitoring the construction, operation, maintenance, and termination of any pipeline or related facilities as determined by the Regional Director.

(2) Payments received by the Service to reimburse the United States for the costs incurred in monitoring the construction, operation, maintenance, and termination of any pipeline or related facilities will be deposited into the United States Treasury until such time that any provision of law allows these payments to supplement the Service's appropriation.

(f) Public hearing. The Regional Director will give notice to Federal, State, and local government agencies and the public of the opportunity to comment on right-of-way applications under this section. A notice will be published in the Federal Register, and a public hearing may be held where appropriate.

(g) Bonding. Where appropriate, the Regional Director will require the holder of a right-of-way permit to furnish a bond or other satisfactory financial assurance to secure all or any of the obligations imposed by the terms and conditions of the right-of-way permit or by any rule or regulation, not to exceed the period of construction plus 1 year or a longer period if necessary for the pipeline to stabilize or for any reclamation or restoration requirements to be met.

(h) Suspension of right-of-way. If the project manager determines that an immediate temporary suspension of activities within a right-of-way permit area is necessary to protect public health and safety or the environment, the project manager may issue an emergency suspension order to abate such activities prior to an administrative proceeding. The Regional Director must make a determination and notify the permit holder in writing within 15 days from the date of suspension as to whether the suspension should continue and list actions needed to terminate the suspension. The suspension will remain in effect for only so long as an emergency condition continues.

(i) Joint use of rights-of-way. Each right-of-way permit will reserve to the Regional Director the right to issue additional right-of-way permits for compatible uses on or adjacent to permitted rights-of-way areas after giving notice to the permit holder and an opportunity to comment.

(j) Common carriers. Pipelines and related facilities used for the transportation of oil, natural gas, synthetic liquid, or gaseous fuels, or any refined product made from these substances will be constructed, operated, and maintained as common carriers.

(1) The owners or operators of pipelines subject to the regulations in this subpart will accept, convey, transport, or purchase without discrimination all oil or gas delivered to the pipeline without regard to whether such oil or gas was produced on Federal or non-Federal lands.

(2) In the case of oil or gas produced from Federal lands or from the resources on the Federal lands in the vicinity of the pipelines, the Secretary may, after a full hearing following due notice to the interested parties and a proper finding of facts, determine the proportionate amounts to be accepted, conveyed, transported, or purchased.

(3) The common carrier provisions of this section will not apply to any natural gas pipeline operated by any person subject to regulation under the Natural Gas Act (15 U.S.C. ch. 15B, sec. 717 et seq.) or by any public utility subject to regulation by a State or municipal regulatory agency having jurisdiction to regulate the rates and charges for the sale of natural gas to consumers within the State or municipality.

(4) The owners or operators of pipelines will purchase, without discrimination, any natural gas produced in the vicinity of the pipeline that is offered for sale unless that natural gas is subject to State regulatory or conservation laws governing its purchase by owners or operators of pipelines.

(k) Required information. The Regional Director will require, prior to issuing or renewing a right-of-way permit, that the applicant submit and disclose all plans, contracts, agreements, or other information or material that the Regional Director deems necessary to determine whether to issue or renew the right-of-way permit or the terms and conditions that should be included in the permit. That information may include, but is not limited to:

(1) Conditions for and agreements among owners or operators regarding the addition of pumping facilities, looping, or otherwise increasing the pipeline or terminal's throughput capacity in response to actual or anticipated increases in demand;

(2) Conditions for adding or abandoning intake, offtake, or storage points or facilities; and

(3) Minimum shipment or purchase tenders.

(l) State standards. The Regional Director will take into consideration, and to the extent practical comply with, applicable State standards for right-of-way construction, operation, and maintenance, taking into account any additional standards necessary to protect refuge resources.

(m) Congressional notification. The Secretary will promptly notify the Committee on Natural Resources of the United States House of Representatives and the Committee on Energy and Natural Resources of the United States Senate upon receipt of an application for a right-of-way for pipeline 24 inches or more in diameter, and no right-of-way permit for such a pipeline will be issued until a notice of intention to permit the right-of-way, together with the Secretary's detailed findings as to the terms and conditions the Secretary proposes to impose, has been submitted to those committees.

(a) Application for a right-of-way. When denial of an application for a right-of-way permit is based on a determination that the proposed use is not compatible with the purposes for which the area was established, the denial may be appealed to the Regional Director and subsequently to the Director, but no further.

(b) Existing authorized right-of-way. The termination of an existing authorized right-of-way permit may be appealed to the Regional Director and subsequently to the Director and then further appealed to the Secretary.

(c) Grant of a requested right-of-way. A party with standing may appeal the Service's decision to issue a requested right-of-way permit to the Regional Director, subsequently to the Director, and finally to the Secretary.

(d) Appeals to the Secretary. Appeals to the Secretary must follow the applicable regulations in 43 CFR part 4.

If a court holds any provisions of the regulations in this subpart or their applicability to any person or circumstance invalid, the remainder of the regulations in this subpart and their applicability to other people or circumstances will not be affected.