62484 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Final Compatibility Policy Pursuant to

the National Wildlife Refuge System

Improvement Act of 1997

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Notice.

SUMMARY: This notice contains our final

policy that describes the process for

determining whether or not a use of a

national wildlife refuge is a compatible

use. This final compatibility policy

incorporates the compatibility

provisions of the National Wildlife

Refuge System Improvement Act of

1997 (NWRSIA–1997) that amends the

National Wildlife Refuge System

Administration Act of 1966 (NWRSAA–

1966) into our policy as part 603

Chapter 2 of the Fish and Wildlife

Service Manual. Also, published

concurrently in the final rule section of

this Federal Register are our final

compatibility regulations describing the

process for determining whether or not

a use of a national wildlife refuge is a

compatible use.

DATES: This policy is effective

November 17, 2000.

FOR FURTHER INFORMATION CONTACT: To

obtain copies of this final policy or for

additional information, contact: J.

Kenneth Edwards, Refuge Program

Specialist, Division of Refuges, U.S.

Fish and Wildlife Service, 4401 North

Fairfax Drive, Room 670, Arlington,

Virginia 22203 (Telephone 703/358–

1744, Fax 703/358–2248). You may also

download a copy from: http://

www.fws.gov/r9pdm/home/

newfrnotice.html.

SUPPLEMENTARY INFORMATION: We

published the Draft Compatibility Policy

Pursuant to the National Wildlife Refuge

System Improvement Act of 1997 in the

Federal Register on September 9, 1999

(64 FR 49067). In addition, we

published the Proposed Compatibility

Regulations Pursuant to the National

Wildlife Refuge System Improvement

Act of 1997 in the Federal Register on

September 9, 1999 (64 FR 49056). We

invited the public to provide comments

on the proposed rule and draft policy by

November 8, 1999. During this 60-day

comment period, we received several

requests for an extension to the

comment period. In order to ensure that

the public had an adequate opportunity

to review and comment on the proposed

rule and draft policy, we extended the

comment period until December 8, 1999

(64 FR 62163 and 62217 published

November 16, 1999). Therefore, the

proposed rule and draft policy were

available for public review and

comment for 90 days. We revised the

proposed rule and draft policy based on

comments we received.

Background

The NWRSIA–1997 amends and

builds upon the NWRSAA–1966

providing an ‘‘Organic Act’’ for the

National Wildlife Refuge System. The

NWRSIA–1997 clearly establishes that

wildlife conservation is the singular

National Wildlife Refuge System

mission, provides guidance to the

Secretary of the Interior (Secretary) for

management of the National Wildlife

Refuge System, provides a mechanism

for refuge planning, and gives refuge

managers uniform direction and

procedures for making decisions

regarding wildlife conservation and uses

of the National Wildlife Refuge System.

The NWRSAA–1966 required the

Secretary, before permitting uses, to

ensure that those uses are compatible

with the purposes of the refuge. We

built this legal requirement into our

policy and regulations. Since 1966, the

compatibility standard for refuge uses

has helped us manage refuge lands

sensibly and in keeping with the general

goal of putting wildlife conservation

first. The NWRSIA–1997 maintains the

compatibility standard as provided in

the NWRSAA–1966, provides

significantly more detail regarding the

compatibility standard and

compatibility determination process,

and requires that we promulgate the

compatibility process in regulations.

This policy will help ensure that

compatibility becomes a more effective

conservation standard, is more

consistently applied across the entire

National Wildlife Refuge System, and is

more understandable and open to

involvement by the public.

The House Report accompanying the

NWRSIA–1997 states ‘‘Currently, the

law does not include a mission or a

definition of a ‘‘compatible use’’ for the

Refuge System. Refuge managers are

responsible for determining, on a caseby-case basis, whether activities on

refuges are compatible. Management of

the Refuge System has been the focus of

numerous studies in the last two

decades, including two General

Accounting Office reports, two reports

of advisory boards to the Interior

Department, a report prepared by the

USFWS, and several hearings by the

former Committee on Merchant Marine

and Fisheries, which then had

jurisdiction over the Refuge System.

These reports and hearings highlighted

that refuges have not always been

managed as a national system because of

the lack of an overall mission for the

System. These reports concluded that

the lack of an overall mission and

management procedures had allowed

numerous incompatible uses to be

tolerated on wildlife refuges.’’ The

House Report further states ‘‘H.R. 1420

establishes that the conservation of fish,

wildlife, plants and their habitats is the

mission of the National Wildlife Refuge

System and sets forth the policy and

procedures through which the System

and individual refuges are to be

managed in order to fulfill that mission

for the long-term benefit of the

American public. H.R. 1420 requires

that public use of a refuge may be

allowed only where the use is

compatible with the mission of System

and purpose of the individual refuge,

and sets forth a standard by which the

Secretary shall determine whether such

uses are compatible.’’ Lastly, the House

Report states ‘‘The Committee expects

that this legislation will diminish the

likelihood of future litigation by

providing a statutory compatibility

standard, a process for making those

determinations, a clear conservation

mission for the System, and a planning

process that will ensure greater public

involvement in management decisions

on refuges.’’

The NWRSIA–1997 includes a

number of provisions that specifically

address compatibility. The following is

a summary of those provisions and how

they apply to us.

We will not initiate or permit a new

use of a national wildlife refuge or

expand, renew, or extend an existing

use of a national wildlife refuge, unless

we have determined that the use is a

compatible use and that the use is not

inconsistent with public safety. We may

make compatibility determinations for a

national wildlife refuge concurrently

with the development of a

Comprehensive Conservation Plan.

On lands added to the National

Wildlife Refuge System after March 25,

1996, we will identify, prior to

acquisition, withdrawal, transfer,

reclassification, or donation of any such

lands, existing compatible wildlifedependent recreational public uses (if

any) that we will permit to continue on

an interim basis pending completion of

a Comprehensive Conservation Plan for

the national wildlife refuge.

We may authorize wildlife-dependent

recreational uses on a national wildlife

refuge when we determine they are

compatible uses and are not

inconsistent with public safety. We are

not required to make any other

determinations or findings to comply

with the NWRSAA–1966 or the Refuge

Recreation Act of 1962 (RRA–1962) for

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices 62485

wildlife-dependent recreational uses to

occur except for consideration of

consistency with State laws and

regulations.

Compatibility determinations in

existence on the date of enactment of

the NWRSIA–1997, October 9, 1997,

will remain in effect until and unless

modified. In addition, we will make

compatibility determinations prepared

during the period between enactment of

the NWRSIA–1997 and the effective

date of the compatibility regulations

published elsewhere in this issue of the

Federal Register under the existing

compatibility process. After the effective

date of those regulations, we will make

compatibility determinations and reevaluations of compatibility

determinations under the compatibility

process in those regulations.

Those regulations, published

elsewhere in this issue of the Federal

Register, will comply with all the

compatibility requirements in the

NWRSIA–1997.

Purpose of This Final Policy

The purpose of this final policy is to

establish in policy the process for

determining compatibility of proposed

refuge uses and procedures for

documentation and periodic review of

existing uses, and to ensure that we

administer proposed and existing uses

according to the compatibility

provisions of the NWRSIA–1997.

Published concurrently in this Federal

Register are our final compatibility

regulations. This final compatibility

policy reflects the final compatibility

regulations and provides additional

detail for each step in the compatibility

determination process.

Summary of Comments Received

We received 506 comment letters by

mail, fax or email on our proposed rule

and draft policy. They were from

Federal, State and local governments,

U.S. Congress, Alaska Native Village

Corporations, non-government

organizations, research institutions and

individuals.

Some comments addressed specific

elements in the proposed rule and

specific elements in the draft policy,

while many comments addressed an

issue that was common to both the

proposed rule and draft policy. Since

the comments on the proposed rule and

draft policy were so intertwined and

oftentimes a comment on an issue was

directly related to both the proposed

rule and draft policy, we chose to

address the comments collectively by

issue rather than by proposed rule and

draft policy separately. Since we

analyzed the comments collectively on

the proposed rule and draft policy, we

are including a full summary of the

comments and our responses in the

SUPPLEMENTARY INFORMATION section of

the final rule only and not in the

SUPPLEMENTARY INFORMATION section of

this notice of our final policy.

We considered all of the information

and recommendations for improvement

included in the comments and made

changes to the proposed rule and draft

policy where appropriate. The number

of issues addressed in each comment

letter varied widely, ranging from one

issue to several issues. We identified 28

groups of issues. See the SUPPLEMENTARY

INFORMATION section of our final rule for

a full summary of the comments and our

responses.

Revisions to the Draft Policy

We considered all of the information

and recommendations for improvement

included in the comments we received

during the 90-day public review and

comment period. We made changes to

the proposed rule and draft policy as

discussed in the ‘‘Summary of

Comments Received’’ section of the

final rule published in today’s issue of

the Federal Register. The following

represents a summary of the significant

revisions made to the proposed rule and

draft policy.

(1) In the proposed regulations and

draft policy we stated that lands subject

to the patent restrictions imposed by

Section 22(g) of ANCSA are subject to

the compatibility standard. In the final

regulations (25.21(b)) and final policy

(2.8(C)) we have provided more detail

on how this will be implemented. These

changes allow us to conduct

compatibility determinations differently

with regard to the ANCSA 22(g) lands

in recognition of the unique status of

these lands.

(2) In the proposed regulations and

draft policy we stated that we will not

allow making proposed refuge uses

compatible with replacement of lost

habitat values or other compensation. In

the final regulations (26.41(b) and (c))

and final policy (2.11(C) and (D)) we

maintain this requirement with one

exception. We will not allow making

proposed refuge uses compatible with

replacement of lost habitat values or

other compensatory mitigation, except

for maintenance of an existing right-ofway including minor expansions or

minor realignments to meet safety

standards. This change provides a

workable mechanism for dealing with

previously approved right-of-ways.

(3) In the proposed regulations and

draft policy we stated that prior to

approving each compatibility

determination, the Refuge Manager will

consult with the regional office

supervisor. In the final regulations

(26.41(a)(14)) and final policy

(2.12(A)(14)) we changed the required

regional office consultation to a required

regional office concurrence on all

compatibility determinations. This

change will help ensure that we look at

both large-scale (System mission) and

local-scale (refuge purposes) issues

when preparing compatibility

determinations.

(4) In the proposed regulations and

draft policy we stated that the Refuge

Manager may temporarily suspend,

allow, or initiate any use in a refuge if

necessary to immediately act in order to

protect the health and safety of the

public or any fish or wildlife

population. We stated in the draft policy

that these temporary actions should not

exceed 12 months. In the final policy

(2.10(C)) we reduced the time frame for

these temporary actions to not exceed

30 days.

(5) In the proposed regulations and

draft policy we stated that we would reevaluate compatibility determinations

for existing uses whenever any one of a

number of criteria was met. In the final

regulations (25.21(f), (g), (h) and (i)) and

final policy (2.11(H)) we added

significant detail to clarify certain

aspects of how and when we would reevaluate compatibility determinations.

Among other clarifying language we

added the following: whenever a reevaluation is triggered we will take a

fresh look at the use and complete a

new compatibility determination

following the procedure outlined in the

regulations and policy; whenever we

prepare a compatibility determination

for re-authorization of an existing rightof-way, we will base our analysis on the

existing conditions with the use in

place, not from a pre-use perspective;

for uses in existence on the effective

date of these regulations that were

specifically authorized for a period

longer than 10 years (such as right-ofways), our compatibility re-evaluation

will examine compliance with the terms

and conditions of the authorization, not

the authorization itself, however, the

Service will request modifications to the

terms and conditions of the permits

from the permittee if the Service

determines that such changes are

necessary to ensure that the use remains

compatible; and after the effective date

of these regulations no uses will be

permitted or re-authorized, for a period

longer than 10 years, unless the terms

and conditions for such long-term

permits specifically allows for the

modifications to the terms and

conditions, if necessary to ensure

compatibility.

62486 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices

Required Determinations

We have analyzed the impacts of this

final policy in concert with the final

rule published concurrently in today’s

issue of the Federal Register. For

compliance with applicable laws and

executive orders affecting the issuance

of rules and policies, see the

SUPPLEMENTARY INFORMATION section of

the final rule.

Primary Author

J. Kenneth Edwards, Refuge Program

Specialist, Division of Refuges, U.S.

Fish and Wildlife Service, is the

primary author of this notice.

Final Compatibility Policy

Fish and Wildlife Service

National Wildlife Refuge System Uses

Refuge Management: Part 603 National

Wildlife Refuge System Uses

Chapter 2 Compatibility

2.1 What is the Purpose of This

Chapter?

This chapter provides policy for

determining compatibility of proposed

and existing uses of national wildlife

refuges.

2.2 What Does This Policy Apply To?

This policy applies to all proposed

and existing uses of national wildlife

refuges where we have jurisdiction over

such uses.

2.3 What is the Compatibility Policy?

The Refuge Manager will not initiate

or permit a new use of a national

wildlife refuge or expand, renew, or

extend an existing use of a national

wildlife refuge unless the Refuge

Manager has determined that the use is

a compatible use.

2.4 What Are the Objectives of This

Chapter?

A. To provide guidelines for

determining compatibility of proposed

national wildlife refuge uses and

procedures for documentation and

periodic review of existing national

wildlife refuge uses; and

B. To ensure that we administer

proposed and existing national wildlife

refuge uses according to laws,

regulations, and policies concerning

compatibility.

2.5 What Are Our Statutory

Authorities for Requiring Uses of

National Wildlife Refuges To Be

Compatible?

A. National Wildlife Refuge System

Administration Act of 1966 as amended

by the National Wildlife Refuge System

Improvement Act of 1997, 16 U.S.C.

668dd–668ee (Refuge Administration

Act): This law states that ‘‘The Secretary

is authorized, under such regulations as

he may prescribe, to—(A) permit the use

of any area within the System for any

purpose, including but not limited to

hunting, fishing, public recreation and

accommodations, and access whenever

he determines that such uses are

compatible’’ and that ‘‘* * * the

Secretary shall not initiate or permit a

new use of a refuge or expand, renew,

or extend an existing use of a refuge,

unless the Secretary has determined that

the use is a compatible use and that the

use is not inconsistent with public

safety.’’ The law also provides that, in

administering the National Wildlife

Refuge System, ‘‘* * * the Secretary is

authorized to * * * Issue regulations to

carry out this Act.’’ A significant

directive of the Refuge Administration

Act is to ensure that we maintain the

biological integrity, diversity, and

environmental health of the National

Wildlife Refuge System for present and

future generations of Americans. We are

now using the term ‘‘ecological

integrity’’ in lieu of the phrase

‘‘biological integrity, diversity, and

environmental health.’’ Uses that we

reasonably may anticipate to conflict

with pursuing this directive to maintain

the ecological integrity of the System are

contrary to fulfilling the National

Wildlife Refuge System mission and are

therefore not compatible. Fragmentation

of the National Wildlife Refuge System’s

wildlife habitats is a direct threat to the

integrity of the National Wildlife Refuge

System, both today and in the decades

ahead. Uses that we reasonably may

anticipate to reduce the quality or

quantity or fragment habitats on a

national wildlife refuge will not be

compatible.

B. Refuge Recreation Act of 1962, 16

U.S.C. 460k–460k–4 (Refuge Recreation

Act): This law requires that any

recreational use of a national wildlife

refuge must be compatible with the

primary purposes for which the refuge

was established.

C. Alaska National Interest Lands

Conservation Act of 1980, P.L. 96–487,

94 Stat. 23–71 (ANILCA): Section 304 of

ANILCA adopted the compatibility

standard of the Refuge Administration

Act for Alaska refuges.

2.6 What Do These Terms Mean?

A. Compatibility determination: A

written determination signed and dated

by the Refuge Manager and Regional

Chief, signifying that a proposed or

existing use of a national wildlife refuge

is a compatible use or is not a

compatible use. The Director makes this

delegation through the Regional

Director.

B. Compatible use: 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.

C. Comprehensive conservation plan:

A document that describes the desired

future conditions of a refuge or planning

unit and provides long-range guidance

and management direction to achieve

the purposes of the refuge; helps fulfill

the mission of the Refuge System;

maintains and, where appropriate,

restores the ecological integrity of each

refuge and the Refuge System; helps

achieve the goals of the National

Wilderness Preservation System; and

meets other mandates.

D. Conservation, and Management: To

sustain and, where appropriate, restore

and enhance, healthy populations of

fish, wildlife, and plants utilizing, in

accordance with applicable Federal and

State laws, methods and procedures

associated with modern scientific

resource programs. Such methods and

procedures include, consistent with the

provisions of the National Wildlife

Refuge System Administration Act of

1966 (16 U.S.C. 668dd–668ee),

protection, research, census, law

enforcement, habitat management,

propagation, live trapping and

transplantation, and regulated taking.

E. Coordination area: A wildlife

management area made available to a

State: (1) by cooperative agreement

between the U.S. Fish and Wildlife

Service and a State agency having

control over wildlife resources pursuant

to section 4 of the Fish and Wildlife

Coordination Act (16 U.S.C. 664); or, (2)

by long-term leases or agreements

pursuant to title III of the BankheadJones Farm Tenant Act (7 U.S.C. 1010 et

seq.). The States manage coordination

areas but they are part of the National

Wildlife Refuge System. The

compatibility standard does not apply to

coordination areas.

F. Director: The Director, U.S. Fish

and Wildlife Service or the authorized

representative of such official.

G. Fish, Wildlife, and Fish and

wildlife: Any member of the animal

kingdom in a wild, unconfined state,

whether alive or dead, including a part,

product, egg, or offspring of the

member.

H. National wildlife refuge, and

Refuge: A designated area of land,

water, or an interest in land or water

located within the National Wildlife

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices 62487

Refuge System but does not include

coordination areas.

I. National Wildlife Refuge System,

and System: All lands, waters, and

interests therein administered by the

U.S. Fish and Wildlife Service as

wildlife refuges, wildlife ranges,

wildlife management areas, waterfowl

production areas, coordination areas,

and other areas for the protection and

conservation of fish and wildlife

including those that are threatened with

extinction as determined in writing by

the Director or so directed by

Presidential or Secretarial order. The

determination by the Director may not

be delegated.

J. National Wildlife Refuge System

mission, and System mission: To

administer a national network of lands

and waters for the conservation,

management, and where appropriate,

restoration of the fish, wildlife, and

plant resources and their habitats within

the United States for the benefit of

present and future generations of

Americans.

K. Plant: Any member of the plant

kingdom in a wild, unconfined state,

including any plant community, seed,

root, or other part of a plant.

L. Purpose(s) of the refuge: The

purposes specified in or derived from

the law, proclamation, executive order,

agreement, public land order, donation

document, or administrative

memorandum establishing, authorizing,

or expanding a national wildlife refuge,

national wildlife refuge unit, or national

wildlife refuge subunit. For refuges that

encompass Congressionally designated

wilderness, the purposes of the

Wilderness Act are additional purposes

of the wilderness portion of the refuge.

M. Refuge management activity: An

activity conducted by the Service or a

Service-authorized agent to fulfill one or

more purposes of the national wildlife

refuge, or the National Wildlife Refuge

System mission. Service-authorized

agents include contractors, cooperating

agencies, cooperating associations,

refuge support groups, and volunteers.

N. Refuge management economic

activity: A refuge management activity

on a national wildlife refuge which

results in generation of a commodity

which is or can be sold for income or

revenue or traded for goods or services.

Examples include: farming, grazing,

haying, timber harvesting, and trapping.

O. Refuge Manager: The official

directly in charge of a national wildlife

refuge or the authorized representative

of such official. In the case of a national

wildlife refuge complex, this refers to

the official directly in charge of the

complex.

P. Regional Chief: The official in

charge of the National Wildlife Refuge

System within a Region of the U.S. Fish

and Wildlife Service or the authorized

representative of such official.

Q. Refuge use, and Use of a refuge: A

recreational use (including refuge

actions associated with a recreational

use or other general public use), refuge

management economic activity, or other

use of a national wildlife refuge by the

public or other non-National Wildlife

Refuge System entity.

R. Regional Director: The official in

charge of a Region of the U.S. Fish and

Wildlife Service or the authorized

representative of such official.

S. Secretary: The Secretary of the

Interior or the authorized representative

of such official.

T. Service, We, and Us: The U.S. Fish

and Wildlife Service, Department of the

Interior.

U. Sound professional judgment: A

finding, determination, or decision that

is consistent with principles of sound

fish and wildlife management and

administration, available science and

resources, and adherence to the

requirements of the National Wildlife

Refuge System Administration Act of

1966 (16 U.S.C. 668dd–668ee), and

other applicable laws. Included in this

finding, determination, or decision is a

refuge manager’s field experience and

knowledge of the particular refuge’s

resources.

V. State, and United States: One or

more of the States of the United States,

Puerto Rico, American Somoa, the

Virgin Islands, Guam, and the territories

and possessions of the United States.

W. Wildlife-dependent recreational

use, and Wildlife-dependent recreation:

A use of a national wildlife refuge

involving hunting, fishing, wildlife

observation and photography, or

environmental education and

interpretation. The National Wildlife

Refuge System Administration Act of

1966 (16 U.S.C. 668dd–668ee) specifies

that these are the six priority general

public uses of the National Wildlife

Refuge System.

2.7 What Are Our Responsibilities?

A. Director

Provides national policy for making

compatibility determinations to ensure

that such determinations comply with

all applicable authorities.

B. Regional Director

(1) Ensures that refuge managers

follow laws, regulations, and policies

when making compatibility

determinations.

(2) Makes the final decision on

compatibility determinations when the

Regional Chief does not concur with the

Refuge Manager.

(3) Notifies the Director regarding

controversial or complex compatibility

determinations.

C. Regional Chief

(1) Reviews all compatibility

determinations for the purpose of

deciding whether to concur.

(2) Refers a compatibility

determination to the Regional Director if

the Regional Chief does not concur with

the Refuge Manager. Discusses nonconcurrence with the Refuge Manager

for possible resolution before referring

to the Regional Director.

(3) Notifies the Regional Director

regarding controversial or complex

compatibility determinations.

D. Refuge Manager

(1) Determines if a proposed or

existing use is subject to the

compatibility standard.

(2) Determines whether a use is

compatible or not compatible.

(3) Documents all compatibility

determinations in writing.

(4) Ensures that we provide for public

review and comment opportunities for

all compatibility determinations, unless

previously provided.

(5) Refers all compatibility

determinations to the Regional Chief for

concurrence.

2.8 What is the Compatibility

Standard for Alaska Refuges?

A. The Refuge Administration Act

establishes the same standard for

compatibility for Alaska refuges as for

other national wildlife refuges. The

provisions of ANILCA are the primary

guidance refuge managers should apply

when examining issues regarding

subsistence use. We may alter the

compatibility process, in some cases, for

Alaska refuges to include additional

procedural steps, such as when

reviewing applications for oil and gas

leasing on non-North Slope lands

(ANILCA Sec. 1008) and for

applications for transportation and

utility systems (ANILCA Sec. 1104).

B. Alaska refuges established before

the passage of ANILCA have two sets of

purposes. Purposes for pre-ANILCA

refuges (in effect on the day before the

enactment of ANILCA) remain in force

and effect, except to the extent that they

may be inconsistent with ANILCA or

the Alaska Native Claims Settlement

Act, in which case the provisions of

those Acts control. However, the

original purposes for pre-ANILCA

refuges apply only to those portions of

the refuge established by the prior

executive order or public land order,

62488 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices

and not to those portions of the refuge

added by ANILCA.

C. Section 22(g) of the Alaska Native

Claims Settlement Act provides that

patents issued to Village Corporations

for selected land within the boundaries

of a refuge existing on December 18,

1971, the signing date of the Act, will

contain provisions that these lands

remain subject to laws and regulations

governing the use and development of

such refuges. This includes application

of the compatibility standard for such

use and development, excepting certain

differences provided in regulation (50

CFR 25.21) that acknowledge the unique

status of these lands.

2.9 When is a Compatibility

Determination Required?

A. We require a compatibility

determination for all refuge uses as

defined by the term ‘‘refuge use’’ and

must include in the analysis

consideration of all associated facilities,

structures, and improvements,

including those constructed or installed

by us or at our direction. This

requirement will apply to all such

facilities, structures, improvements, and

refuge actions associated with uses that

we approve on or after the effective date

of this policy and to the replacement or

major repair or alteration of facilities,

structures, and improvements

associated with already approved uses.

B. Facilities, structures, and

improvements commonly associated

with recreational public uses include:

environmental education centers; boat/

fishing docks; parking lots; boat ramps;

roads; trails; viewing platforms/towers;

and visitor centers.

C. Facilities, structures, and

improvements commonly associated

with refuge management economic

activities include: loading/unloading

areas; construction, operation, and

maintenance buildings; parking lots;

roads and trails; fences; stock ponds and

other livestock watering facilities; and

crop irrigation facilities.

D. We will make compatibility

determinations for such facilities,

structures, and improvements at the

same time we make the compatibility

determination for the use or activity in

question.

2.10 When is a Compatibility

Determination Not Required?

A. Refuge management activity. We

do not require a compatibility

determination for refuge management

activities as defined by the term ‘‘refuge

management activity’’ except for ‘‘refuge

management economic activities.’’

Examples of refuge management

activities which do not require a

compatibility determination include:

prescribed burning; water level

management; invasive species control;

routine scientific monitoring, studies,

surveys, and censuses; historic

preservation activities; law enforcement

activities; and maintenance of existing

refuge facilities, structures, and

improvements. In addition, we do not

require compatibility determinations for

State wildlife management activities on

a national wildlife refuge pursuant to a

cooperative agreement between the

State and the Fish and Wildlife Service

where the Refuge Manager has made a

written determination that such

activities support fulfilling the refuge

purposes or the System mission.

B. Other exceptions. (1) There are

other circumstances under which the

compatibility requirements may not be

applicable. The most common

exceptions involve property rights that

are not vested in the Federal

Government, such as reserved rights to

explore and develop minerals or oil and

gas beneath a refuge. In some cases,

these exceptions may include water

rights, easements, or navigable waters.

Exceptions may apply when there are

rights or interests imparted by a treaty

or other legally binding agreement,

where primary jurisdiction of refuge

lands falls to an agency other than us,

or where legal mandates supersede

those requiring compatibility. Where

reserved rights or legal mandates

provide that we must allow certain

activities, we should not prepare a

compatibility determination. In the case

of reserved rights, the Refuge Manager

should work with the owner of the

property interest to develop stipulations

in a special use permit or other

agreement to alleviate or minimize

adverse impacts to the refuge.

(2) Communication and cooperation

between the Refuge Manager and the

owner of reserved rights will help

protect refuge resources without

infringing upon privately-held rights.

Refuge managers may find it helpful in

these instances to secure legal advice

from the Department of the Interior

Office of the Solicitor.

(3) Compatibility provisions of the

Refuge Administration Act do not apply

to Department of Defense overflights or

non-Department of Defense overflights

above a refuge. However, other Federal

laws (e.g., Airborne Hunting Act,

Endangered Species Act, Bald Eagle

Protection Act) may govern overflights

above a refuge. For Department of

Defense overflights, active

communication and cooperation

between the Refuge Manager and the

local base commander will be the most

effective way to protect refuge

resources. For non-Department of

Defense overflights, active

communication and cooperation

between the Refuge Manager and

personnel at local airports, pilot training

schools, and private groups regarding

the Federal Aviation Administration’s

requested minimum altitudes over

national wildlife refuges will be the

most effective way to protect refuge

resources.

(4) Compatibility requirements apply

to activities on bodies of water in or

within any area of the National Wildlife

Refuge System. Under 50 CFR 25.11,

this is effectively to the extent of the

ownership interest of the United States

in lands or waters. Where activities on

water bodies not within an area of the

National Wildlife Refuge System are

affecting refuge resources, the Refuge

Manager should seek State cooperation

in managing the activities. If necessary,

the Refuge Manager should consider

refuge-specific regulations that would

address the problem or consult with the

Office of the Solicitor regarding other

legal remedies for injury to refuge

resources.

(5) Compatibility provisions of the

Refuge Administration Act do not apply

to activities authorized, funded, or

conducted by another Federal agency

that has primary jurisdiction over the

area where a refuge or a portion of a

refuge has been established, if those

activities are conducted in accordance

with a memorandum of understanding

between the Secretary or the Director

and the head of the Federal agency with

primary jurisdiction over the area.

C. Emergencies. The Refuge

Administration Act states that the

Secretary may temporarily suspend,

allow, or initiate any use in a refuge if

the Secretary determines it is necessary

to immediately act in order to protect

the health and safety of the public or

any fish or wildlife population.

Authority to make decisions under this

emergency power is delegated to the

Refuge Manager. Temporary actions

should not exceed 30 days and will

usually be of shorter duration. Such

emergency actions are not subject to the

compatibility determination process as

outlined in this chapter. When using

this authority, the Refuge Manager will

notify the Regional Chief in advance of

the action, or in cases where the nature

of the emergency requires immediate

response, as soon as possible afterwards,

and typically no later than the start of

business on the first normal workday

following the emergency action. The

Refuge Manager will create a written

record (memorandum to the file) of the

decision, the reasons supporting it, and

why it was necessary to protect the

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices 62489

health and safety of the public or any

fish or wildlife population.

D. Denying a proposed use without

determining compatibility. (1) The

Refuge Manager should deny a proposed

use without determining compatibility

if any of the following situations exist:

(a) The proposed use conflicts with

any applicable law or regulation (e.g.,

Wilderness Act, Endangered Species

Act, Marine Mammal Protection Act,

Migratory Bird Treaty Act);

(b) The proposed use conflicts with

any applicable executive order, or

written Department of the Interior or

Service policy;

(c) The proposed use conflicts with

the goals or objectives in an approved

refuge management plan (e.g.,

comprehensive conservation plan,

comprehensive management plan,

master plan or step-down management

plan);

(d) The proposed use has already been

considered in an approved refuge

management plan and was not accepted;

(e) The proposed use is inconsistent

with public safety;

(f) The proposed use is a use other

than a wildlife-dependent recreational

use that is not manageable within the

available budget and staff; or

(g) The proposed use conflicts with

other resource or management

objectives provided that the Refuge

Manager specifies those objectives in

denying the use.

(2) A compatibility determination

should be prepared for a proposed use

only after the Refuge Manager has

determined that we have jurisdiction

over the use and has considered items

(a) through (g) above (see Exhibit 1).

E. Existing compatibility

determinations. Compatibility

determinations in existence prior to the

effective date of this policy will remain

in effect until and unless modified and

will be subject to periodic re-evaluation

as described in section 2.11 H. Any use

specifically authorized for a period

longer than 10 years (such as right-ofways) is subject to a compatibility

determination at the time of the initial

application and when the term expires

and we receive a request for renewal.

We will use periodic re-evaluations for

such long-term uses to review

compliance with permit terms and

conditions.

2.11 What Are Considerations When

Applying Compatibility?

A. Sound professional judgment. (1)

In determining what is a compatible

use, the Refuge Administration Act

relies on the ‘‘sound professional

judgment’’ of the Director. The Director

delegates authority to make

compatibility determinations through

the Regional Director to the Refuge

Manager. Therefore, it is the Refuge

Manager who is required and authorized

to exercise sound professional

judgment. Compatibility determinations

are inherently complex and require the

Refuge Manager to consider their field

experiences and knowledge of a refuge’s

resources, particularly its biological

resources, and make conclusions that

are consistent with principles of sound

fish and wildlife management and

administration, available scientific

information, and applicable laws. When

a refuge manager is exercising sound

professional judgment, the Refuge

Manager will use available information

which may include consulting with

others both inside and outside the

Service.

(2) The Refuge Manager must also

consider the extent to which available

resources (funding, personnel, and

facilities) are adequate to develop,

manage, and maintain the proposed use

so as to ensure compatibility. The

Refuge Manager must make reasonable

efforts to ensure that the lack of

resources is not an obstacle to

permitting otherwise compatible

wildlife-dependent recreational uses

(hunting, fishing, wildlife observation

and photography, and environmental

education and interpretation). If

reasonable efforts do not yield adequate

resources to develop, manage, and

maintain the wildlife-dependent

recreational use, the use will not be

compatible because the Service will lack

the administrative means to ensure

proper management of the public

activity on the refuge.

(3) Refuge managers are reminded

that, unless otherwise provided for in

law or other legally binding directive,

permitting uses of national wildlife

refuges is a determination vested by law

in the Service. Under no circumstances

(except emergency provisions necessary

to protect the health and safety of the

public or any fish or wildlife

population) may we authorize any use

not determined to be compatible.

B. Materially interfere with or detract

from. (1) When completing

compatibility determinations, refuge

managers use sound professional

judgment to determine if a use will

materially interfere with or detract from

the fulfillment of the System mission or

the purpose(s) of the refuge. Inherent in

fulfilling the System mission is not

degrading the ecological integrity of the

refuge. Compatibility, therefore, is a

threshold issue, and the proponent(s) of

any use or combination of uses must

demonstrate to the satisfaction of the

Refuge Manager that the proposed use(s)

pass this threshold test. The burden of

proof is on the proponent to show that

they pass; not on the Refuge Manager to

show that they surpass. Some uses, like

a proposed construction project on or

across a refuge that affects the flow of

water through a refuge, may exceed the

threshold immediately, while other

uses, such as boat fishing in a small lake

with a colonial nesting bird rookery may

be of little concern if it involves few

boats, but of increasing concern with

growing numbers of boats. Likewise,

when considered separately, a use may

not exceed the compatibility threshold,

but when considered cumulatively in

conjunction with other existing or

planned uses, a use may exceed the

compatibility threshold.

(2) While refuge managers should be

looking for tangible impacts, the fact

that a use will result in a tangible

adverse effect, or a lingering or

continuing adverse effect is not

necessarily the overriding concern

regarding ‘‘materially interfere with or

detract from.’’ These types of effects

should be taken into consideration but

the primary aspect is how does the use

and any impacts from the use affect our

ability to fulfill the System mission and

the refuge purposes. For example, the

removal of a number of individual

animals from a refuge through regulated

hunting, trapping or fishing would, in

many instances, help the Refuge

Manager manage to improve the health

of wildlife populations. However, the

take of even one individual of a

threatened or endangered species could

significantly impact the refuge’s ability

to manage for and perpetuate that

species. Likewise, wildlife disturbance

which is very limited in scope or

duration may not result in interference

with fulfilling the System mission or

refuge purposes. However, even

unintentional minor harassment or

disturbance during critical biological

times, in critical locations, or repeated

over time may exceed the compatibility

threshold.

(3) The Refuge Manager must consider

not only the direct impacts of a use but

also the indirect impacts associated

with the use and the cumulative

impacts of the use when conducted in

conjunction with other existing or

planned uses of the refuge, and uses of

adjacent lands or waters that may

exacerbate the effects of a refuge use.

C. Making a use compatible through

replacement of lost habitat values or

other compensatory mitigation. We will

not allow compensatory mitigation to

make a proposed refuge use compatible,

except by replacement of lost habitat

values as provided in (D) below. If the

proposed use cannot be made

62490 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices

compatible with stipulations we cannot

allow the use.

D. Existing Right-of-ways. We will not

make a compatibility determination and

will deny any request for maintenance

of an existing right-of-way which will

affect a unit of the National Wildlife

Refuge System, unless (1) the design

adopts appropriate measures to avoid

resource impacts and includes

provisions to ensure no net loss of

habitat quantity and quality; (2) restored

or replacement areas identified in the

design are afforded permanent

protection as part of the national

wildlife refuge or wetland management

district affected by the maintenance;

and (3) all restoration work is completed

by the applicant prior to any title

transfer or recording of the easement, if

applicable. Maintenance of an existing

right-of-way includes minor expansion

or minor realignment to meet safety

standards. Examples of minor expansion

or minor realignment include: expand

the width of a road shoulder to reduce

the angle of the slope; expand the area

for viewing on-coming traffic at an

intersection; and realign a curved

section of a road to reduce the amount

of curve in the road.

E. Refuge-specific analysis. We must

base compatibility determinations on a

refuge-specific analysis of reasonably

anticipated impacts of a particular use

on refuge resources. We should base this

refuge-specific analysis on information

readily available to the Refuge Manager,

including field experience and

familiarity with refuge resources, or

made available to the Refuge Manager

by the State, Tribes, proponent(s) or

opponent(s) of the use, or through the

public review and comment period.

Refuge-specific analysis need not rely

on refuge-specific biological impact

data, but may be based on information

derived from other areas or species

which are similarly situated and

therefore relevant to the refuge-specific

analysis. We do not require refuge

managers to independently generate

data to make determinations but rather

to work with available information. The

Refuge Manager may work at their

discretion with the proponent(s) of the

use or other interested parties to gather

additional information before making

the determination. If information

available to the Refuge Manager is

insufficient to document that a

proposed use is compatible, then the

Refuge Manager would be unable to

make an affirmative finding of

compatibility, and we must not

authorize or permit the use. See 2.12 (A)

(8) for additional information dealing

with priority public uses.

F. Relationship to management plans.

The Refuge Manager will usually

complete compatibility determinations

as part of the comprehensive

conservation plan or step-down

management plan process for individual

uses, specific use programs, or groups of

related uses described in the plan. The

Refuge Manager will incorporate

compatibility determinations prepared

concurrently with a plan as an appendix

to the plan. These compatibility

determinations may summarize and

incorporate by reference what the

Refuge Manager addressed in detail in

the comprehensive conservation plan,

step-down management plan, or

associated National Environmental

Policy Act (NEPA) document.

G. Managing conflicting uses. The

Refuge Manager may need to allocate

uses in time and/or space to reduce or

eliminate conflicts among users of the

refuge. If this cannot be done, the

Refuge Manager may need to terminate

or disallow one or more of the uses. The

Refuge Administration Act does not

prioritize among the six wildlifedependent recreational uses. Therefore,

in the case of direct conflict between

these priority public uses, the Refuge

Manager should evaluate, among other

things, which use most directly

supports long-term attainment of refuge

purposes and the System mission. This

same analysis would support a decision

involving conflict between two nonpriority public uses. Where there are

conflicts between priority and nonpriority public uses, priority public uses

take precedence.

H. Re-evaluation of uses. (1) We will

re-evaluate compatibility

determinations for existing wildlifedependent recreational uses when

conditions under which the use is

permitted change significantly, or if

there is significant new information

regarding the effects of the use, or

concurrently with the preparation or

revision of a comprehensive

conservation plan, or at least every 15

years, whichever is earlier. In addition,

a refuge manager always may reevaluate the compatibility of a use at

any time.

(2) Except for uses specifically

authorized for a period longer than 10

years (such as right-of-ways), we will reevaluate compatibility determinations

for all existing uses other than wildlifedependent recreational uses when

conditions under which the use is

permitted change significantly, or if

there is significant new information

regarding the effects of the use, or at

least every 10 years, whichever is

earlier. Again, a refuge manager always

may re-evaluate the compatibility of a

use at any time.

(3) For uses in existence on November

17, 2000 that were specifically

authorized for a period longer than 10

years (such as right-of-ways), our

compatibility re-evaluation will

examine compliance with the terms and

conditions of the authorization, not the

authorization itself. We will frequently

monitor and review the activity to

ensure that the permittee carries out all

permit terms and conditions. However,

the Service will request modifications to

the terms and conditions of the permits

from the permittee if the Service

determines that such changes are

necessary to ensure that the use remains

compatible. After November 17, 2000 no

uses will be permitted or re-authorized,

for a period longer than 10 years, unless

the terms and conditions for such longterm permits specifically allows for the

modifications to the terms and

conditions, if necessary to ensure

compatibility. We will make a new

compatibility determination prior to

extending or renewing such long-term

uses at the expiration of the

authorization. When we prepare a

compatibility determination for reauthorization of an existing right-ofway, we will base our analysis on the

existing conditions with the use in

place, not from a pre-use perspective.

(4) The Refuge Manager will

determine whether change in the

conditions under which the use is

permitted or new information regarding

the effects of the use is significant or

not. The Refuge Manager will make this

decision by considering whether these

new conditions or new information

could reasonably be expected to change

the outcome of the compatibility

determination. Any person at any time

may provide information regarding

changes in conditions and new

information to the Refuge Manager.

However, the Refuge Manager maintains

full authority to determine if this

information is or is not sufficient to

trigger a re-evaluation.

(5) When we re-evaluate a use for

compatibility, we will take a fresh look

and prepare a new compatibility

determination following the procedure

outlined in section 2.12 A.

I. Public review and comment. An

opportunity for public review and

comment is required for all

compatibility determinations. For

compatibility determinations prepared

concurrently with comprehensive

conservation plans or step-down

management plans, we can achieve

public review and comment

concurrently with the public review and

comment of the draft plan and

Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices 62491

associated NEPA document. For

compatibility determinations prepared

separately from a plan, we will

determine the appropriate level of

opportunity for public review and

comment through a tiered approach

based on complexity, controversy, and

level of impact to the refuge. See 2.12

A9 for details on public review and

comment.

2.12 What Information Do We Include

in a Compatibility Determination?

A. All compatibility determinations

will include the following information.

To maintain consistency, we will use

the format provided in Exhibit 2 for

documenting all compatibility

determinations.

(1) Use. Identify the use. A use may

be proposed or existing, and may be an

individual use, a specific use program,

or a group of related uses. The Refuge

Manager will determine whether to

consider a use individually, a specific

use program, or in conjunction with a

group of related uses. However,

whenever practicable, the Refuge

Manager should concurrently consider

related uses or uses that are likely to

have similar effects and associated

facilities, structures and improvements,

in order to facilitate analysis of

cumulative effects and to provide

opportunity for effective public review

and comment.

(2) Refuge name. Identify the name of

the refuge.

(3) Establishing and acquisition

authority(ies). Identify the specific

authority(ies) used to establish the

refuge (e.g., Executive Order, public

land order, Secretarial Order, refugespecific legislation, or general

legislation).

(4) Refuge purpose(s). Identify the

purpose(s) of the refuge from the

documents identified in 2.12 A (3). For

a use proposed for designated

wilderness areas within the System, the

Refuge Manager must first analyze

whether the use can be allowed under

the terms of the Wilderness Act (16

U.S.C. sections 1131–36). If so, the

Refuge Manager must then determine

whether the use is compatible. As a

matter of policy, the Refuge Manager

will also analyze whether the use is

compatible with the purposes of the

Wilderness Act, which makes such

purposes supplemental to those of the

national wildlife refuge.

(5) National Wildlife Refuge System

mission. The mission of the National

Wildlife Refuge System is ‘‘to

administer a national network of lands

and waters for the conservation,

management, and where appropriate,

restoration of the fish, wildlife, and

plant resources and their habitats within

the United States for the benefit of

present and future generations of

Americans.’’

(6) Description of use. Describe the

nature and extent of the use. The Refuge

Manager may work with the

proponent(s) of a use to gather

information required in items (a)

through (e) below to describe the

proposed use. If the use is described in

sufficient detail in a comprehensive

conservation plan, step-down

management plan, other plan, or

associated NEPA document, the Refuge

Manager may provide a summary of the

use and reference the plan or NEPA

document. At a minimum, the Refuge

Manager must address and include the

following in the compatibility

determination:

(a) What is the use? Is the use a

priority public use?

(b) Where would the use be

conducted? Describe the specific areas

of the refuge that will be used: habitat

types and acres involved; key fish,

wildlife, and plants that occur in or use

that habitat; and the proportion of total

refuge acreage and the specific habitat

type involved. Include a description of

other areas that may be affected

incidental to the specific use, such as

access to the destination area and

storage of equipment. This information

may be described in writing and on a

map.

(c) When would the use be

conducted? Describe the time of year

and day, and duration of the use.

(d) How would the use be conducted?

Describe the techniques to be used,

types of equipment required, and

number of people per given period.

Include supporting uses and associated

facilities, structures and improvements

as appropriate, e.g., boating and boat

ramps to support fishing, camping and

campsites to support hunting, etc.

(e) Why is this use being proposed?

Describe the reason for the use and the

need to conduct the use on the refuge.

Describe the extent to which other areas

in the vicinity provide similar

opportunities.

(7) Availability of resources. (a)

Complete an analysis of costs for

administering and managing each use.

Implicit within the definition of sound

professional judgment is that adequate

resources (including financial,

personnel, facilities, and other

infrastructure) exist or can be provided

by the Service or a partner to properly

develop, operate, and maintain the use

in a way that will not materially

interfere with or detract from fulfillment

of the refuge purpose(s) and the System

mission. If resources are lacking for

establishment or continuation of

wildlife-dependent recreational uses,

the Refuge Manager will make

reasonable efforts to obtain additional

resources or outside assistance from

States, other public agencies, local

communities, and/or private and nonprofit groups before determining that

the use is not compatible. If adequate

resources cannot be secured, the use

will be found not compatible and

cannot be allowed. Efforts to find

additional funding must be documented

on the compatibility determination

form.

(b) For many refuges, analysis of

available resources will have been made

for general categories of uses when

preparing comprehensive conservation

plans, step-down management plans,

other plans, or NEPA documents. If the

required and available resources are

described in sufficient detail in a

comprehensive conservation plan, stepdown management plan, other plan, or

associated NEPA document, provide a

summary of the required and available

resources for the use and reference the

plan or NEPA document. If not

sufficiently covered in the planning

document, the following should be

documented in the compatibility

determination:

(i) Resources involved in the

administration and management of the

use.

(ii) Special equipment, facilities or

improvements necessary to support the

use. Itemize expenses such as costs

associated with special equipment,

physical changes or improvements

necessary on the refuge that would be

required to comply with disabled access

requirements.

(iii) Maintenance costs associated

with the use (e.g., trail maintenance and

mowing, signing, garbage pickup or

sanitation costs, parking areas, road

repair or grading, building or structure

repair, including blinds, boat ramps,

kiosks, etc.).

(iv) Monitoring costs (e.g., biological

or visitor surveys, maintenance of

control sites, etc.) to assess the impact

of uses over time on natural resources

and quality of the visitors’ experience.

(c) This analysis of cost for

administering and managing each use

will only include the incremental

increase above general operational costs

that we can show as being directly

caused by the proposed use.

(d) Offsetting revenues, such as

entrance fees and user fees that are

returned to the refuge, should be

documented in determining the costs to

administer individual or aggregated

uses.

62492 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices

(8) Anticipated impacts of the use. (a)

Identify and describe the reasonably

anticipated impacts of the use. In

assessing the potential impacts of a

proposed use on the refuge’s purpose(s)

and the System mission, refuge

managers will use and cite available

sources of information, as well as their

best professional judgment, to

substantiate their analysis. Sources may

include planning documents,

environmental assessments,

environmental impact statements,

annual narrative reports, information

from previously-conducted or ongoing

research, data from refuge inventories or

studies, published literature on related

biological studies, State conservation

management plans, field management

experience and consultation with

wildlife research professionals, State

wildlife resource managers and industry

professionals, etc. Refuge managers are

not required to independently generate

data on which to base compatibility

determinations. The Refuge Manager

may work with the proponent(s) of the

use and other interested parties to

gather additional information before

making the determination. If available

information to the Refuge Manager is

insufficient to document that a

proposed use is compatible, then the

Refuge Manager would be unable to

make an affirmative finding of

compatibility and we must not

authorize or permit the use. If the use

is a priority public use, and sufficient

information is not available, the Refuge

Manager should work with the

proponent of the use to acquire the

necessary information before finding the

use not compatible based solely on

insufficient available information. This

does not mean that the burden of

information collection is shifted to the

Refuge Manager, but that the Refuge

Manager should take steps to ensure

that the additional information needs

are clearly identified and that

appropriate assistance is provided in

facilitating the collection of that

information.

(b) Refuge managers should

distinguish between long-term and

short-term impacts. A use may initially

only be expected to cause minor

impacts to the resource. However, the

cumulative impacts over time may

become quite substantial. Other uses

may have impacts which are very short

in duration but very significant while

they are occurring, or are the converse:

very long in duration but very

insignificant in effect.

(c) Although direct impacts on refuge

resources, such as wildlife disturbance

or destruction of habitats, or

degradation of ecological integrity may

be easily predicted, the analysis of

impacts must also address indirect and

cumulative effects that may be

reasonably associated with a specific

use. Indirect impacts of a proposed use

may include taking away or diverting

resources from an activity that would

support fulfilling the System mission or

refuge’s purposes and therefore would

be a factor in determining whether the

proposed use is compatible or not. A

use with little potential for impact on its

own may contribute to more substantive

cumulative impacts on refuge resources

when conducted in conjunction with or

preceding or following other uses, and

when considered in conjunction with

proposed or existing uses of lands and

waters adjacent to the refuge.

(d) If the anticipated impacts of the

use are described in sufficient detail in

a comprehensive conservation plan,

step-down management plan, other

plan, or associated NEPA document,

refuge managers may provide a

summary of the anticipated impacts of

the use and reference the plan or NEPA

document.

(e) Refuge managers should list all

conservation objectives in approved

refuge management plans (e.g.,

comprehensive conservation plan,

comprehensive management plan,

master plan, or step-down management

plan), that reasonably might be affected

by the proposed use. To the extent

possible, the determination of

anticipated impacts should include an

explanation of the impacts on these

specific conservation objectives and

how that affects fulfilling refuge

purposes or the System mission.

(9) Public review and comment. (a)

The Refuge Manager must provide an

opportunity for public review and

comment on the proposed refuge uses(s)

before issuing a final compatibility

determination. Public review and

comment includes actively seeking to

identify individuals and organizations

that reasonably might be affected by, or

interested in, a refuge use. Additionally,

public review and comment will offer

the public the opportunity to provide

relevant information and express their

views on whether or not a use is

compatible. The extent and complexity

of public review and comment that is

necessary or appropriate will be

determined by the Refuge Manager. For

example, significantly modifying a

popular hunting, fishing, or wildlife

observation program would likely be

controversial and would require

considerable opportunity for public

review and comment, whereas

temporarily closing a small portion of a

wildlife observation trail would likely

require much less opportunity for

public review and comment. For

compatibility determinations prepared

concurrently with comprehensive

conservation plans or step-down

management plans, public involvement

can be achieved concurrently with the

public review and comment of the draft

plan and associated NEPA document.

For compatibility determinations

prepared separately from a plan, the

level of public review and comment will

be handled through the following tiered

approach.

(i) For minor, incidental, or one-time

uses which have been shown by past

experience at this or other refuges in the

System to result in no significant or

cumulative impact to the refuge and

would likely generate minimal public

interest, the public review and comment

requirement can be accomplished by

posting a notice of the proposed

determination at the refuge

headquarters.

(ii) For all other uses, at a minimum,

the Refuge Manager will solicit public

comment by placing a public notice in

a newspaper with wide local

distribution. The notice must contain, at

a minimum: a brief description of the

compatibility determination process, a

description of the use that is being

evaluated, the types of information that

may be used in completing the

evaluation, how to provide comments,

when comments are due, and how

people may be informed of the decision

the Refuge Manager will make regarding

the use. The public will be given at least

14 calendar days to provide comments

following the day the notice is

published.

(iii) For evaluations of controversial

or complex uses, the Refuge Manager

should expand the public review and

comment process to allow for additional

opportunities for comment. This may

include newspaper or radio

announcements, notices or postings in

public places, notices in the Federal

Register, letters to potentially interested

people such as adjacent landowners,

holding public meetings, or extending

the comment period.

(b) Public review and comment efforts

must be documented on the

compatibility determination form and

relevant information retained with

compatibility determinations as part of

the administrative record. The

documentation must include a

description of the process used, a

summary of comments received, and a

description of any actions taken or not

taken because of the comments

received. All written public comments

will be retained in the administrative

record. If a comprehensive conservation

plan or NEPA document is being

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prepared, this information would be

included in these documents as part of

the administrative record.

(10) Use is compatible or not

compatible. Identify whether the use is

compatible or not compatible. This is

where the Refuge Manager indicates

whether the use would, or would not,

materially interfere with or detract from

the fulfillment of the National Wildlife

Refuge System mission or the purposes

of the refuge.

(11) Stipulations necessary to ensure

compatibility. (a) Describe any

stipulations (terms or conditions)

necessary to ensure compatibility. If a

use is not compatible as initially

proposed, it may be modified with

stipulations that avoid or minimize

potential adverse impacts, making the

use compatible. It is not the

responsibility of the Refuge Manager to

develop a sufficient set of stipulations

so as to make an otherwise not

compatible proposed use, compatible. If

the use cannot be modified with

stipulations sufficient to ensure

compatibility, the use cannot be

allowed.

(b) Protective stipulations in the

compatibility determination for a

particular use should specify the

manner in which that use must be

carried out to ensure compatibility.

Stipulations must be detailed and

specific. They may identify such things

as limitations on time (daily, seasonal,

or annual) or space where a use could

be safely conducted, the routes or forms

of access to be used, and any restrictions

on the types of equipment to be used or

number of people to be involved.

Monitoring of the use must be sufficient

to evaluate compliance with stated

conditions and swift action must be

taken to correct or respond to any

serious deviations.

(12) Justification. After completing the

steps described above, the Refuge

Manager will provide a written

justification for the determination. The

justification must provide a logical

explanation describing how the

proposed use would, or would not,

materially interfere with or detract from

the fulfillment of the National Wildlife

Refuge System mission or the purposes

of the refuge.

(13) Signature. The Refuge Manager

will sign and date the compatibility

determination and submit it to the

Regional Chief for review and

concurrence.

(14) Concurrence. The Regional Chief

will sign and date the compatibility

determination if in concurrence. If the

Regional Chief does not concur the

Regional Chief must discuss the

determination with the Refuge Manager

and attempt to resolve the differences. If

they do not agree the Regional Chief

must refer the compatibility

determination to the Regional Director

and the use may not be allowed unless,

upon review, the Regional Director

makes a written determination that the

use is compatible.

(15) Mandatory 10- or 15-year reevaluation date. At the time the

compatibility determination is made,

the Refuge Manager will insert the

required maximum 10-year reevaluation date for uses other than

wildlife-dependent recreational uses or

a 15-year maximum re-evaluation date

for wildlife-dependent recreational uses.

2.13 How Do We Expedite the

Compatibility Determination Process?

The Refuge Administration Act

provides for expedited consideration of

uses that will likely have no detrimental

effect on the fulfillment of the

purpose(s) of the refuge or the System

mission. The intent of this provision is

to reduce the administrative burden on

the Refuge Manager and speed the

compatibility determination process for

uses that are frequently found to be

compatible. For minor, incidental, or

one-time uses which have been shown

to have no significant or cumulative

impact to the refuge and would likely

generate minimal public interest, the

time period for an opportunity for

public review and comment may be

reduced to the time available.

2.14 What Do We Do With Existing

Uses That are not Compatible?

Existing uses determined to be not

compatible will be expeditiously

terminated or modified to make the use

compatible. Except with written

authorization by the Director, this

process of termination or modification

will not exceed 6 months from the date

that the compatibility determination is

signed.

2.15 May We Deny Uses That are

Compatible?

A determination that a use is

compatible does not require the use to

be allowed. Determinations on whether

to allow otherwise compatible uses are

based on compliance with other laws,

the System mission, policy, refuge

purposes, availability of resources to

manage the use, possible conflicts with

other uses, public safety, and other

administrative factors. The Refuge

Manager must clearly document and

describe in writing the administrative

reasons for not permitting a compatible

use. Usually, a refuge manager will

make this decision prior to making a

compatibility determination and

completing one will be unnecessary.

2.16 What are the Procedures for

Appealing a Permit Denial?

Procedures for appealing a permit

denial are provided in 50 CFR 25.45

(special use permits), 50 CFR 29.22

(rights-of-way), 50 CFR 36.41 (i) (special

use permits for refuges in Alaska), or 43

CFR 36.8 (rights-of-way for Alaska). We

are providing no administrative

mechanism to appeal a compatibility

determination.

2.17 When Do We Prepare PreAcquisition Compatibility

Determinations?

A. When we add lands to the National

Wildlife Refuge System, the Refuge

Manager assigned management

responsibility for the land to be

acquired, will identify prior to

acquisition, withdrawal, transfer,

reclassification, or donation of those

lands, existing wildlife-dependent

recreational public uses (if any)

determined to be compatible that we

will permit to continue on an interim

basis, pending completion of the

comprehensive conservation plan. For

this purpose, the Refuge Manager will

make a pre-acquisition compatibility

determination that will apply to existing

wildlife-dependent recreational public

uses that may be allowed, if determined

to be compatible during the interim

between acquisition and completion of

the comprehensive conservation plan.

The purpose of this policy is to inform

the public, prior to acquisition, which

pre-existing wildlife-dependent

recreational public uses will be allowed

to continue on newly acquired lands.

Such decisions must be based on the

compatibility standards and procedures

outlined in this chapter. These preacquisition compatibility

determinations for continuing existing

wildlife-dependent recreational public

uses will be made in writing, using the

format in Exhibit 2.

B. Pre-acquisition compatibility

determinations only apply to existing

wildlife-dependent recreational public

uses and are intended to be short-term

in nature, bridging the gap between

acquisition of refuge lands and

completion of refuge comprehensive

conservation plans. They should be

made in conjunction with the

preparation and release of appropriate

pre-acquisition Realty documentation,

prepared pursuant to NEPA. Preacquisition compatibility

determinations should document the

type, level, timing and location of

wildlife-dependent recreational public

62494 Federal Register / Vol. 65, No. 202 / Wednesday, October 18, 2000 / Notices

uses that are presently occurring on

lands proposed for acquisition.

2.18 What Is the Relationship of

Compatibility to NEPA?

NEPA requires us to examine the

environmental impact of our actions,

incorporate environmental information,

and utilize public participation, as

appropriate, in the planning and

implementation of our actions. NEPA

compliance is required whenever we

take an action. It is the action that

triggers NEPA. A compatibility

determination is not an action under

NEPA, rather it is only one of many

factors that we take into account

whenever we consider taking an action,

i.e., allow a refuge use. Deciding

whether to allow the use is the action,

not the compatibility determination.

Comprehensive conservation plans,

step-down management plans, and the

issuance of special use permits are

actions about allowing or not allowing

refuge uses. These actions require NEPA

compliance. Many compatibility

determinations will be completed

concurrently with these processes.

Compatibility determinations are an

integral part of our decision about

refuge uses; however, it is important to

note that compatibility is only one of

many factors that we take into account

when we consider allowing or not

allowing a refuge use.

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Compatibility Determination

Use:

Refuge Name:

Establishing and Acquisition Authority(ies):

Refuge Purpose(s):

National Wildlife Refuge System Mission:

Description of Use:

Availability of Resources:

Anticipated Impacts of the Use:

Public Review and Comment:

Determination (check one below):

ll Use is Not Compatible

ll Use is Compatible With Following

Stipulations

Stipulations Necessary to Ensure

Compatibility:

Justification:

Signature: lll Refuge Manager: llll

(Signature and Date)

Concurrence: lll Regional Chief: llll

(Signature and Date)

Mandatory 10- or 15-year Re-evaluation

Date: llllllllllllllllll

Dated: July 28, 2000.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 00–26390 Filed 10–17–00; 8:45 am]

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