(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.