Title 36—Parks, Forests, and Public Property--Volume 1
PART 14—RIGHTS-OF-WAY
§ 14.1   Purpose and scope.
(a) Consistent with applicable Federal law, the regulations in this part establish procedures an entity must follow when applying for a right-of-way permit and provisions under which the NPS may authorize a right-of-way permit within a National Park System unit, under applicable current or future statutory authority, whether the statutory authority is System-wide or specific to a System unit.
(b) The regulations in this part ensure that use of lands and waters, and the operation and maintenance of infrastructure under a right-of-way permit will:
(1) Comply with all applicable statutory authorities, including the NPS Organic Act (54 U.S.C. 100101 et seq. );
(2) Protect lands, waters, and resources of the National Park System; and
(3) Protect visitor uses and experiences within the National Park System, as well as promote the health and safety of the public and NPS employees and volunteers.
§ 14.2   Definitions for this part.
Applicant means an entity that has submitted an application for a right-of-way permit or an application for a special use permit for construction.
Co-location means the placement of infrastructure on or in authorized infrastructure owned or controlled by another or within an area authorized for use by another.
Entity means a party including, but not limited to, Federal, State, and local governments, Tribes, citizens, and organizations of the United States, including corporations, associations, partnerships, and non-profit organizations.
Infrastructure means public utilities and power and communications facilities, as described in 54 U.S.C. 100902, and any other equipment, facility, installation or use that the NPS may authorize under a right-of-way permit.
Operation and maintenance means the use of infrastructure for purposes specifically authorized in a right-of-way permit, including means of access and actions associated with its service on a routine and on-going basis to ensure good order, safe conditions, and timely repair.
Permitted area means the land or water mapped, described, and authorized for use of lands and waters, and operation and maintenance in a right-of-way permit or for construction in a special use permit for construction, and may include routes and means of access.
Permittee means an entity that holds a current, fully executed right-of-way permit or a special use permit for construction.
Right-of-way permit means a discretionary and revocable special use permit issued by the NPS to authorize the use of lands and waters, and operation and maintenance. 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.
Special use permit for construction means a discretionary and revocable special use permit issued by the NPS to authorize the construction of infrastructure, or construction activities associated with infrastructure, within the National Park System. A special use permit for construction 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.
§ 14.3   Pre-application meeting.
Prior to submitting an application for a right-of-way permit, the potential applicant should contact the superintendent of the System unit that would be affected by the project to schedule a pre-application meeting to discuss the project and the permitting process along with applicable law and policy. Through a pre-application meeting, the NPS may inform the potential applicant about documentation needed to make an application complete, and provide the potential applicant with an expected timeline and potential costs the NPS will incur to review and process the application.
§ 14.4   Right-of-way permit application.
(a) Complete application requirement. The NPS will not begin processing a right-of-way permit application until it has determined the applicant has complied with the requirements in this part, including the submission of all required information. Making this determination does not guarantee the NPS will issue a right-of-way permit.
(b) Application form. (1) To request a 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 this part, to the superintendent of the System unit. If materials required in this part were previously filed with the superintendent for the issuance of another right-of-way permit for the same System unit, the NPS may decide the applicant is not required to resubmit these materials, provided the previous date of filing, place of filing, and existing right-of-way permit number are included in the new application.
(2) The SF-299 must be signed by the applicant or applicant's authorized representative.
(3) The applicant must submit the application charge pursuant to § 14.7 of this part.
(c) Applicant documentation. Only citizens, corporations, partnerships, and associations of the United States are eligible to apply for a right-of-way permit.
(1) Corporations. An application by a corporation must include:
(i) A copy of its charter or articles of incorporation, duly certified by the proper official of the State where the corporation was organized.
(ii) A copy of the law under which the corporation was formed and proof of organization and good standing under the same.
(iii) If a corporation is operating in a State other than its State of incorporation, a certificate of good standing from the proper official of the State where it is operating that it has complied with the laws of that State governing foreign corporations operating in such State.
(iv) An affidavit from the appropriate individual at the corporation certifying:
(A) The corporation's ability to do business in the State or States where the affected park area is located;
(B) The corporation's ability to file an application for the stated purpose; and
(C) The ability of the individual filing the application to bind and sign for the corporation for purposes of the application.
(2) Partnerships, limited liability companies, and similar entities. An application by an association of individuals with legal standing must be accompanied by:
(i) A certified copy of articles of association or other current governing documents, if any, indicating appropriate signature authority and authority to file the application. If these articles or documents do not exist, all members must sign the application.
(ii) Evidence of U.S. citizenship for each individual member of the association.
(3) Individuals. An application by an individual must be accompanied by evidence of U.S. citizenship.
(d) Maps. (1) Applicants must provide a map that meets current NPS mapping standards, showing at a minimum:
(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 right-of-way permit.
(2) The NPS may require an official land survey, legal description, and digital information.
(e) Water Rights. Unless otherwise required by Federal law, applications requesting authorization to operate and maintain infrastructure to support the storage, diversion, conveyance, or use of water, must include proof of the applicant's valid water right from the appropriate State official or State law.
(f) Access. (1) The applicant must include a description of proposed access routes and means of access.
(2) Access routes and means of access will be limited to existing roads, or existing or NPS-approved routes, trails, or access points.
(3) Unless otherwise provided by law, the NPS will not authorize new roads by a right-of-way permit.
(4) No right of access is granted under a right-of-way permit. Access routes and means of access identified in a right-of-way permit are revocable at the discretion of the NPS.
(g) Co-location. (1) The applicant must design infrastructure to accommodate co-location to the greatest extent possible after consideration of potential impacts to park area resources, values, public health and safety, and visitor experience.
(2) Before proposing a new or undisturbed location for infrastructure, the applicant must demonstrate that they have evaluated all options for co-location with existing infrastructure.
(3) Each entity seeking to co-locate will be required to have a separate right-of-way permit.
(h) Financial assurance and liability insurance. As appropriate to the proposed project, the NPS may require proof of acceptable financial assurance and liability insurance.
(i) Additional Information. The NPS may require in writing that applicants submit additional information before an application is considered complete.
§ 14.5   Review of a complete right-of-way permit application.
(a) Standards of review. (1) The NPS will issue a right-of-way permit only if the proposed use of lands and waters, and operation and maintenance are not incompatible with the public interest and consistent with applicable laws and policies, including statutes governing administration of the National Park System, regulations, and NPS planning documents.
(2) Except where Federal law provides otherwise, the NPS will issue a right-of-way permit only if the applicant has demonstrated that there is no practicable alternative to locating the infrastructure within the National Park System.
(b) Managerial findings. After completing review of an application, the NPS will notify the applicant in writing that the right-of-way permit is:
(1) Conditionally approved; or
(2) Denied, with an explanation.
(c) Execution of right-of-way permits. The applicant must sign a conditionally approved right-of-way permit prior to execution by the NPS. No right-of-way permit is valid until it has been executed by the NPS.
(d) Behavior and conduct. At any time during the application process for a right-of-way permit, the NPS may, in its discretion, suspend or end the application process if the applicant:
(1) Is delinquent in paying any cost recovery, use and occupancy fees, or other debts to the Federal Government;
(2) Has an unresolved criminal or civil violation with the Federal Government;
(3) Has been notified that they are liable for damages under the System Unit Resource Protection Act (SURPA), 54 U.S.C. 100721-100725, for injuries to park area resources, or have not resolved or fully paid response costs and damages under SURPA; or
(4) Has caused unpermitted resource damage, impacts to visitors, management problems, or the applicant has violated the terms and conditions of any permit issued by a Federal agency, including the NPS.
§ 14.6   Application withdrawal.
(a) An applicant may withdraw an application at any time during the permitting process.
(b) If at any time during the permitting process an applicant does not respond to a written communication from the NPS within 90 days, the NPS may presume that the application has been withdrawn without further notice to the applicant.
(c) When an application is withdrawn or presumed withdrawn, the permitting process is terminated and the applicant must resubmit a new application pursuant to § 14.4 of this part.
§ 14.7   Cost recovery.
(a) The NPS will recover all costs from applicants and permittees pursuant to 54 U.S.C. 103104, according to NPS cost recovery policy, even in the case of withdrawn or denied applications, and suspended or terminated right-of-way permits. In addition to the application charge referred to in paragraph (b) of this section, the NPS may recover other actual costs incurred in processing an application for a right-of-way permit or special use permit for construction, including, but not limited to, costs incurred from completion of required compliance and reviews, appraisal or valuation related costs, and costs incurred from monitoring or managing permittee activities during the term of a permit.
(b) An applicant must pay an application charge with each application for a right-of-way permit unless this charge is waived by the NPS pursuant to NPS cost recovery policy. The application charge will include costs incurred by the NPS for review of the application to determine if it is complete. At its discretion, the NPS also may include costs incurred for initial discussions (including pre-application meetings) in the application charge.
(1) The minimum application charge for a right-of-way permit is the cost of two hours of the System unit permit coordinator's time, plus one hour of their supervisor's time, including overhead costs.
(2) If the System unit permit coordinator is the superintendent, then the minimum application charge is the cost of two hours of the superintendent's time, including overhead costs.
(3) The application charge addresses the costs incurred by the NPS in initially discussing and reviewing an application for completeness and does not constitute all of the costs that the NPS may recover.
§ 14.8   Use and occupancy fee.
(a) Every permittee must pay a use and occupancy fee to the NPS for the use and occupancy of federally owned lands and waters within the National Park System, except as provided in paragraph (e) of this section.
(b) The use and occupancy fee will be the fair market value of the use and occupancy of federally owned lands and waters under the right-of-way permit.
(1) The NPS may adopt any method approved by the Department of the Interior to determine the use and occupancy fee.
(2) Costs for administration of the right-of-way program will be collected by the NPS in accordance with OMB Circular A-25 at the current indirect cost rate and will be retained as cost recovery under 54 U.S.C. 103104 out of the use and occupancy fees collected on right-of-way permits issued.
(3) If a permittee's infrastructure is for both exempt and non-exempt uses or users, as provided in paragraphs (e)(1) through (4) of this section, only those discrete portions that serve exempt uses or users may be eligible for exemption from the use and occupancy fee.
(c) The use and occupancy fee may be re-evaluated at any time during the term of a right-of-way permit at the discretion of the NPS, but at a minimum will be re-evaluated every 10 years.
(d) The use and occupancy fee will be re-evaluated when a right-of-way permit is renewed under § 14.12 of this part and when a subsequent right-of-way permit is issued for infrastructure that was authorized under an expired right-of-way permit that was not renewed in a timely manner.
(e) A permittee may be exempt from paying a use and occupancy fee if their infrastructure is exclusively:
(1) Used by a Federal Government agency, including the NPS;
(2) Serving the purposes of an authorized use and occupancy for which the NPS is already receiving compensation that was determined in consideration of services provided by the permittee;
(3) Operated or used by a Tribal, State, or local government for a direct non-commercial use; or
(4) For a project that is clearly in the public interest and consistent with the purposes and values of the park area.
§ 14.9   Resource impact considerations.
The NPS may direct the use and disposition of resources disturbed under a right-of-way permit. The permittee may be required to mitigate or compensate for permitted impacts to NPS resources and lost uses.
§ 14.10   Terms and conditions.
(a) A right-of-way permit will authorize the permittee to conduct specific operation and maintenance. Operation and maintenance not specifically authorized in the right-of-way permit requires written authorization or an amended right-of-way permit.
(b) The NPS will issue a right-of-way permit for a term that is consistent with applicable law and policy and may be up to 50 years when determined appropriate by the NPS.
(c) A permittee, by accepting a right-of-way permit, agrees and consents to comply with and be bound by the following terms and conditions, and any additional terms and conditions or modifications that may be required by the NPS in a right-of-way permit:
(1) To comply with all applicable laws and policies, including NPS regulations and planning documents.
(2) To ensure that all of its employees, agents, officers, contractors, and subcontractors comply with all of the terms and conditions of the right-of-way permit and requirements of this part.
(3) To pay the United States the full value of all damage to the lands, waters, or other property of the United States caused by permittee or permittee's employees, agents, officers, contractors, and subcontractors, and to indemnify the United States against any liability for damages to life, person, or property arising from operation and maintenance; except that where a right-of-way permit is issued to a State or other government agency whose power to assume liability by agreement is limited by law, such State or agency shall indemnify the United States as provided above to the extent allowed by law.
(4) That the exercise of authorized activities under a right-of-way permit will not unduly interfere with the management, administration, or disposal by the United States of any land, waters, structures, or interests in land or waters affected thereby. The permittee must agree and consent to the use and occupancy by the United States, its grantees, permittees, licensees, invitees, and lessees of any part of the permitted area not actually occupied for the purpose of the right-of-way permit to the extent that such use does not materially interfere with the full and safe utilization thereof by the permittee.
(5) That except as expressly authorized by the right-of-way permit or subsequently approved in writing by the NPS, the permittee may not move, remove, alter, damage, or destroy any park area resources, including vegetation, within the permitted area or other areas of the System unit. As directed by the NPS, the permittee must take all reasonable measures to avoid or minimize damage to park area resources. The NPS may require mitigation or compensation for permitted impacts to System unit resources authorized under this permit. The NPS may also direct the use and disposition of the disturbed resources.
(6) That the NPS will have a right of access at any time to the permitted area.
(7) That, unless an extension is granted in writing by the NPS, within 6 months after the expiration or termination of the right-of-way permit, the permittee will have completed removal of all infrastructure from the permitted area, as well as restoration and reclamation of the permitted area, to NPS standards directed and approved by the NPS. Any infrastructure not removed within that time will be deemed abandoned and will be disposed of in accordance with applicable Federal law, and the permittee will be liable for all costs incurred by the NPS that are associated with removing and disposing of such infrastructure, as well as with restoration and reclamation of the permitted area, to the satisfaction of the NPS. This obligation will survive the termination or expiration of a right-of-way permit.
(8) That the right-of-way permit terms and conditions, use and occupancy fee, and other stipulations and provisions may be modified during a right-of-way permit transfer, amendment, or renewal process.
§ 14.11   Special use permit for construction.
(a) Permit requirement. Applicants must apply for and obtain a separate special use permit for construction prior to beginning construction associated with a right-of-way permit.
(b) Application form. The applicant must use the currently approved application form for a special use permit.
(c) Complete application. The NPS will not begin processing an application for a special use permit for construction until the NPS has reviewed the application and determined that it is complete.
(d) Associated right-of-way permit. The NPS will only issue a special use permit for construction simultaneously or after it issues an associated right-of-way permit.
(e) Application information. (1) The applicant must include all of the information required by the currently approved special use permit application form. This information must include, at a minimum, the following information:
(i) Description of proposed activity.
(ii) Requested location.
(iii) Proposed schedule, including proposed start and end dates, and interim activities.
(iv) List of equipment.
(2) The applicant is encouraged to attach additional pages with information useful in evaluating the permit request, including:
(i) Construction drawings.
(ii) A map showing areas for construction activities, including staging areas and access routes.
(iii) A construction area restoration plan, as applicable.
(3) The NPS may require additional information by written request.
(f) Affidavit. Prior to issuing a special use permit for construction, the NPS may require the applicant to provide an affidavit stating that all other required land rights, water rights, permits, certifications, approvals, and authorizations necessary for a viable project have been secured.
§ 14.12   Right-of-way permit renewal.
(a) Right-of-way permit renewal means the issuance of a new, separate, consecutive right-of-way permit, in response to a timely right-of-way permit application, for a new term and with new terms and conditions, as applicable.
(b) A permittee must submit a new, complete right-of-way permit application to continue use of lands and waters, and operation and maintenance of infrastructure beyond the term of a current right-of-way permit, unless the current right-of-way permit is extended under § 14.14(c) of this part.
(1) Permittees are encouraged to submit a timely, complete application at least six months prior to expiration of their current right-of-way permit.
(2) Renewal applications must meet the criteria in § 14.4 of this part.
(3) The term of a right-of-way permit may only be reset for a new and continuous term by renewal.
(4) The decision to renew a right-of-way permit is at the discretion of the NPS.
(c) If a right-of-way permit expires prior to issuance of a renewal, the infrastructure that had been authorized under the right-of-way permit will, upon expiration, be considered in trespass under § 14.16 of this part.
§ 14.13   Right-of-way permit transfer.
(a) Right-of-way permit transfers are necessary when a current permittee intends to convey ownership or control of and responsibility for the use and lands and waters, and operation and maintenance to a new entity.
(b) The NPS will not consider a transfer request until both of the following have occurred:
(1) The current permittee has provided a written request to the NPS that is signed by a representative legally authorized to bind the permittee, that contains the permit number and a statement clearly describing the reason for the requested transfer.
(2) The new entity has provided the NPS with written notice of its acceptance of and agreement to comply with the terms and conditions of the existing right-of-way permit. The written notice must be signed by a representative legally authorized to bind the new entity, and must contain the following information:
(i) Name of the entity;
(ii) Address and phone number of the entity;
(iii) Name, title, and contact information of the representative of the entity assuming responsibility for the right-of-way permit;
(iv) Statement affirming that the existing permitted uses, permitted areas, and purposes specified in the right-of-way permit remain the same;
(v) Proof of acceptable financial assurance and liability insurance, if required as a condition of the right-of-way permit, or requested as a modification by the NPS;
(vi) Proof of eligibility and suitability to hold a right-of-way permit as required by § 14.4 and § 14.5 of this part; and
(vii) Any additional information that the NPS may require by written request.
(c) The decision to approve a transfer is at the discretion of the NPS. A right-of-way permit transfer will be documented as an amendment to the existing right-of-way permit and will be reviewed and executed using the procedures that apply to the review and execution of right-of-way permits in paragraphs (a)-(d) in § 14.5 of this part.
(d) Unless and until a transfer is approved in writing by the NPS, the current permittee named on the right-of-way permit will remain responsible for compliance with the terms and conditions of the right-of-way permit, including all financial obligations.
§ 14.14   Right-of-way permit amendment.
(a) A permittee may request or the NPS may initiate an amendment to a right-of-way permit. If the NPS initiates an amendment, it will provide notice to the permittee.
(b) An amendment to an existing right-of-way permit may address operation and maintenance, the use and occupancy fee, a new permittee as a result of an approved transfer, or other terms and conditions.
(1) If a permittee requests an amendment to a right-of-way permit that would modify, change, or add to the authorized uses or locations, then the NPS may require the permittee to include some or all of the materials required under § 14.4.
(2) If modifications, changes, or additions to the authorized uses or locations proposed by the permittee are deemed significant by the NPS, then the NPS may require the permittee to submit a complete right-of-way permit application requesting a new right-of-way permit.
(c) An amendment may not alter the term of a right-of-way permit, except for a single extension of up to one year to prevent expiration of the right-of-way permit when there is a reasonable delay or ongoing good faith negotiations regarding renewal of an expiring right-of-way permit.
(d) Requests by the permittee for an amendment to a right-of-way permit must be in writing, signed by a representative legally authorized to bind the permittee, and must contain the following information:
(1) Right-of-way permit number;
(2) Permittee name;
(3) System unit name;
(4) Description of the activities and infrastructure authorized by the right-of-way permit;
(5) Description of the proposed amendment;
(6) Description of the purpose or justification for the requested amendment; and
(7) Other information required by the NPS.
(e) The decision to approve an amendment is at the discretion of the NPS. Amendments will be reviewed and executed using the procedures that apply to the review and execution of right-of-way permits in paragraphs (a) through (c) in § 14.5. An approved amendment is deemed to be a part of the original right-of-way permit.
§ 14.15   Right-of-way permit suspension and termination.
(a) At any time during the term of a right-of-way permit and upon written notice provided to the permittee, the NPS may suspend or terminate all or any part of the right-of-way permit without liability or expense to the United States.
(b) If the NPS intends to suspend or terminate all or part of a right-of-way permit, the permittee may be provided an opportunity to cure the cause prior to commencement of the suspension or termination.
(c) Reasons for suspension or termination include, but are not limited to:
(1) Visitor and resource protection concerns;
(2) Failure to comply with right-of-way permit terms and conditions;
(3) Failure to comply with any provision of this part; or
(4) Abandonment or nonuse.
(d) A permittee may terminate a right-of-way permit by providing a written notice of termination to the NPS that is signed by the permittee's authorized representative and identifies the desired date of termination.
(e) Upon suspension, the permittee remains responsible for fulfilling all obligations under the permit, including payment of any use and occupancy fees and cost recovery due.
(f) Upon termination, the permittee will remain responsible for fulfilling all obligations under the permit, including:
(1) Payment of any use and occupancy fees and any cost recovery due;
(2) Restoration and reclamation of the permitted area; and
(3) Any other terms and conditions that survive the termination of the right-of-way permit.
§ 14.16   Trespass.
(a) Any uses, activities, or infrastructure not specifically authorized under a valid right-of-way permit or other legal authorization are prohibited and considered a trespass against the United States.
(b) The NPS may require an entity in trespass to immediately remove any of its infrastructure in trespass or cease the uses or associated activities and may pursue any additional legal remedy, penalty, or fees available.
(c) The NPS may continue to enforce the terms and conditions of an expired right-of-way permit, including collection of cost recovery and use and occupancy fees. An entity with an expired right-of-way permit has no authorization for continued use of lands and waters, and operation and maintenance, and those uses and associated infrastructure are considered a trespass.
(d) The NPS may require an entity to apply for a permit to authorize maintenance activities on infrastructure considered in trespass. Any permit issued for maintenance will not authorize the presence of the infrastructure. A maintenance permit will be considered only for activities that are required to maintain the safety of the infrastructure, and to protect public health and safety, visitor experience, or the resources and values of the park area.
§ 14.17   Penalties.
Violation of any section of this part, including any term and condition of a right-of-way permit, may result in fine or imprisonment, or both, in accordance with 36 CFR 1.3.
§ 14.18   Restoration and reclamation.
(a) After expiration or termination of the right-of-way permit, the permittee must restore or reclaim the permitted area to standards directed and approved by the NPS.
(b) If restoration or reclamation is not completed within a reasonable time or in accordance with a schedule established in a special use permit for the restoration and reclamation activities, the permittee will be liable to the NPS for all costs of restoring and reclaiming the permitted area undertaken by the NPS, or its contractor, to the satisfaction of the NPS. This obligation will survive the termination or expiration of a right-of-way permit.
§ 14.19   Severability.
If a court holds any provisions of the regulations in this part or their applicability to any person or circumstances invalid, the remainder of these rules and their applicability to other people or circumstances will not be affected.