FSH 2709.11 Special Uses Handbook

FSH 2709.11 – special uses handbook

Chapter 10 – Application and authorization processing

Supplement No.: 2709.11-2004-5

Effective Date: November 3, 2004

Duration: This supplement is effective until superseded or removed.

Posting Instructions: Supplements are numbered consecutively by Handbook number and calendar year. Post by document; remove the entire document and replace it with this supplement. Retain this transmittal as the first page(s) of this document. The last supplement to this Handbook was 2709.11-2004-4, to chapter 30.

Digest:

10 – Revises captions and coding throughout to conform to parent text. Updates style, format, and content to conform to parent text. Removes material now covered in parent text or no longer needed. For example, most of the direction in former sections 11 through 14 is now superceded by the proposal and application screening regulation published in 1998 (36 CFR 251.54) and the current parent text in sections 11 and 12. Removes direction specific to grizzly bear (“Endangered Species Act Situations,” formerly at sections 11.1 and 15.42) and pesticides (formerly at section 14.12) because those are two of many issues that are addressed through Forest Plan consistency and NEPA analysis required of all projects. Removes direction regarding Land Use Grant Instruments, which are no longer acceptable as authorization formats for new or amended uses (R1 Supplement to FSM 2711). Removes obsolete cross references and guidance regarding “Engineering Considerations” formerly at section 15.

12.11a – Recodes and expands in paragraph 1d direction on proof of ownership formerly at section 13.2.

12.32b – Adds new guidance for rejecting proposals when the proponent has a criminal conviction or pending criminal charges relevant to the proposed use.

12.32c – Adds new guidance for assuring that a person signing an authorization for a non-individual entity is duly authorized to sign for that entity.

12.5 – Adds cross reference for cultural resources permit application requirements.

12.52 – Revises direction on collection agreements formerly at section 11, “Applicant Performance.” Adds direction for Mineral Leasing Act cost reimbursement and third party contracting in controversial situations.

14 – Recodes and revises direction for consolidated authorizations, master authorizations, and right-of-way management plans formerly at section 15. Adds cross-reference to R1 Supplement to FSM 2704.33 for required pre-approval reviews.

14.1 – Expands paragraph 1d to provide minimum requirements for Location Exhibits. Revises direction for legal descriptions, updates cross references, revises direction for map specifications formerly captioned, “Special-use Authorization Attachments” and “Special-use Plat Specifications” (formerly sec. 15). Expands paragraph 2 for clarification that authorizations may be issued to married couples, trusts, and groups, and to include direction regarding multiple owners formerly at section 15, “Holder Designations.”

14.2 – Recodes and updates civil rights compliance direction formerly at section 15.41.

14.3 – Moves policy and responsibility statements formerly at section 15.42 to the Manual (FSM 2713.1). Moves detailed guidance formerly at FSM 2713.1 to the Handbook. Recodes and reformats with minor editorial changes the insurance and liability guidance formerly at section 15.42. Expands guidance for insurance policy review and adds review checklists as new
exhibit 07.

19 – Provides corrections to the parent text exhibit for authority and maximum term for certain uses.

12 – Responding to Proposals Subject to Initial and Second-level Screening

12.1 – Pre-Application Meeting

12.11 – Contents of Proposals

12.11a – Proposals for All Special Uses Other Than Noncommercial Group Use

1. Proposals for special uses, other than noncommercial group use, must contain at a minimum (36 CFR 251.54(d)(2)(ii)):

d. For proposals involving existing facilities, businesses, or access to private property, documentation verifying that the proponent is the owner or “effective owner” (FSM 2716.1). Examples of acceptable documents include “Bill of Sale,” “Decree of Distribution,” recorded purchase contract, and title.

12.3 – Second-Level Screening of Proposals

12.32 – Criteria for Second-Level Screening of Proposals

12.32b – Financial and Technical Capability

The proponent may be deemed unqualified, and therefore the proposal may be rejected, if the proponent has a criminal record or pending criminal charges, which are directly relevant to the proposed use or bear upon the proponent’s character in the conduct of business or service activities. For example, conviction or unresolved charges of violation of State or Federal fish and wildlife laws could be grounds for rejecting a proposal for an outfitter and guide permit. A conviction for fraud could be grounds for rejecting a proposal for a concession authorization. The authorized officer should consult with the Regional Office and perhaps the Office of the General Counsel when considering pending criminal charges as the sole basis for rejecting a proposal.

12.32c – Signature and Acceptance of Responsibility

Except for individuals (which includes married couples), the holder should provide verification that the person(s) signing the authorization for the holder is (are) duly authorized to do so. Verification may be accomplished through a corporate secretary attestation, as provided for on the corporate signature page of Form FS-2700-4 (5/03). In other cases, the holder should provide other documentation, such as a copy of a resolution from a board of directors, a letter including an attestation from the corporate secretary or the legal equivalent, a copy of agency delegation of authority documentation, or similar evidence.

12.5 – Acceptance of Written Applications for Proposals That Meet Initial and Second-Level Screening Criteria

See FSH 2709.11, section 44.4 for additional application requirements for cultural resources permits.

12.52 – Environmental Analysis

4. Applicants for uses that would be authorized under Mineral Leasing Act (MLA) authority must reimburse the Forest Service for administrative and other costs incurred in processing the application (FSM 2726.31d). No collection agreement is required for billing MLA cost reimbursement.

5. Until cost recovery regulations are adopted (FSH 2709.11, sec. 31.32), applicants for non-MLA uses may enter into voluntary collection agreements (FSM 1584) with the Forest Service to fund Forest Service administrative expenses.

6. While it is generally preferred that the applicant directly provide or directly contract for the provision of information required for the environmental analysis, in highly controversial proposals it may be appropriate for the Forest Service to contract third parties for such services, while the applicant reimburses the Forest Service for those costs.

14 – Preparing and Issuing Authorizations

1. Consolidate Related Uses in a Single Authorization. Uses of different types authorized to the same holder may be consolidated in a single authorization when each additional use is clearly ancillary to a primary use or activity. When deciding whether to consolidate uses or issue separate authorizations for related uses, consider the following:

a. Consolidation should simplify, not complicate special-use administration.

b. All mandatory clauses for each use designation (sec. 51.3) must be included in a consolidated authorization.

c. Unless exempt, fees must be calculated for each use in a consolidated authorization. See sections 31.22, paragraph 11, and 36.42 for additional direction for consolidated authorization fees.

d. Road rights-of-way authorizations are generally issued on standard forms with terms and conditions tailored for road uses (sec. 53). When a private road exclusively accesses another authorized use (for example, a driveway serving a recreation residence), it may be appropriate to consolidate the road as a secondary use. In such cases, include any relevant clauses from the standard road authorization form, and when appropriate, include an operation and maintenance plan for the road. When the road is not used exclusively to access the primary use, issue a separate authorization for the road.

When consolidating uses in a single authorization, identify the primary use and secondary uses on the face of the authorization (purpose statement) and in the Special Use Data System (SUDS) record of the authorization.

2. Master Authorizations. Rights-of-way systems and networks, or portions thereof, for roads, pipelines, water transmission, powerlines, or telephone lines may be consolidated under master authorizations subject to the following guidelines.

a. Improvements and facilities directly ancillary to the system or network considered the primary use, and owned and operated by the holder, may be consolidated in a master authorization (see para. 1). Examples are switchyards, transformer banks, and similar powerline components located along and adjacent to a powerline right-of-way. Short segment or spur-type private purpose roads used exclusively for access to other system or network facilities may also qualify as a secondary use. However, where road networks are more extensive than occasional spurs, a separate or master authorization should be prepared for the road system.

b. Master authorizations should only authorize operation and maintenance, not construction. Construction of new facilities should be authorized by a separate permit that terminates when construction is complete. The newly constructed facilities and improvements may then be amended into the appropriate master authorization for operation and maintenance.

c. Master authorizations for activities or projects involving multiple Forests or Grasslands may be delegated to a lead Forest or Grassland on a case-by-case basis (FSM 2704.32, para. 4). The lead Forest or Grassland shall, in consultation with participating Forests and Grasslands, issue the authorization and all amendments, and shall collect all fees. Unless agreed otherwise, participating Forests and Grasslands shall remain responsible for other administrative actions for uses on their respective units, including: responding to proposals for new uses (sec. 12), approving project plans, monitoring authorized activities, conducting inspections on behalf of the authorized officer, and all other customary field administration duties.

3. Regional Office Review: See R1 Supplement to FSM 2704.33, paragraphs 1 and 2, for situations requiring Regional Office review before issuing certain authorizations.

4. Construction, Operation and Maintenance, and Right-of-Way Management Plans: The purpose of construction, operation and maintenance, and right-of-way management plans is to protect National Forest System (NFS) land and resources affected by the holder’s activities. These plans may address case-specific terms and conditions as extensions of or in addition to standard authorization clauses. When needed, such plans should be prepared by the holder, approved by the authorized officer, and attached as exhibits to the authorization. When doing so, insert or amend a statement similar to the following into an appropriate paragraph on the face of the authorization:

“subject to the conditions set out below and to the Operation and Maintenance plan labeled “Exhibit __” attached to and made a part of this authorization.”

Construction plans are generally short-lived, developed to specify mitigation measures to be applied during construction only. Operation and maintenance plans are generally in effect throughout the tenure of the authorization, applying to ongoing activities required of, or by, the holder. Right-of-way management plans are a type of operation and maintenance plan usually developed for major linear rights-of-way such as powerlines, pipelines, and highways. Right-of-way management plans generally coordinate the holder’s vegetation management with the goals and objectives of NFS resource management in the areas crossed by the right-of-way. Right-of-way management plans are recommended for all electric transmission lines of 115 kV or larger and for highways in special management areas. Such plans are appropriate for all other rights-of-way other than the most minor, and may otherwise be required at the authorized officer's discretion.

In practice, the distinction between these types of plans can become blurred, and a single plan can be developed to accomplish multiple objectives. When developing such plans, the authorized officer and the holder should participate in joint field reviews to assure mutual understanding of objectives, needs, and potential management practices. Involve people from appropriate working levels in joint preparation or revision of the plan to reinforce mutual understanding, commitment, and accomplishment. Some plans may be simple, single-page documents while others may be quite lengthy. Consider the following guidelines when developing such plans.

a. Plan Content: These plans should be detailed working documents, tailored to the scope and particular circumstances of a specific authorization, and which generally consist of:

(1) Title and approval blocks, or separate signature page for lengthy plans.

(2) Statement outlining background, needs and specific management objectives.

(3) Narrative and/or graphic section which identifies planned land and resource management and protection practices in appropriate detail by right-of-way segment or specified location.

(4) A concise narrative describing practices, schedules and responsibilities. Management practices must be specific as to responsibilities, limitations, and scheduling based on sound vegetation, land, and resource management consistent with the holder's needs.

b. General Plan Considerations:

(1) Requirements of law, regulation, policy, and land and resource management plans may need to be translated into specific terms and conditions for the authorization. Commitments and decisions made in project planning, environmental analysis, and implementation stages must be carried forward into the construction, operation and maintenance phases of a project through the appropriate plan. Differences in personnel, responsibilities, and missions make bridging these phases difficult. The written plan spans these gaps and provides a mechanism for consistency and accomplishment.

(2) Plans must fully consider both the needs of the holder (and the purpose for which authorization was granted), and Forest Service management objectives for underlying and adjacent lands and resources.

(3) Plans should be kept simple, specific, practical, and be achievable within economic reasonability.

c. Special Considerations for Certain Situations:

(1) Oil and Gas Pipelines – Plans should address emergency measures and DOT oil spill contingency plans.