[Federal Register Volume 65, Number 202 (Wednesday, October 18, 2000)]
[Notices]
[Pages 62484-62496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26390]



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

[[Page 62484]]


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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.

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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 case-by-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 
wildlife-dependent 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

[[Page 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 re-evaluations 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-
of-way 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 re-evaluate 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 re-evaluate compatibility determinations. Among other clarifying 
language we added the following: whenever a re-evaluation 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 right-of-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-of-ways), 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.

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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 Bankhead-Jones 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

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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 non-concurrence 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,

[[Page 62488]]

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

[[Page 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-of-ways) 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

[[Page 62490]]

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 wildlife-dependent 
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 non-priority public 
uses. Where there are conflicts between priority and non-priority 
public uses, priority public uses take precedence.
    H. Re-evaluation of uses. (1) We will re-evaluate compatibility 
determinations for existing wildlife-dependent 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 re-evaluate 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 re-evaluate 
compatibility determinations for all existing uses other than wildlife-
dependent 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 long-term 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 re-
authorization of an existing right-of-way, 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

[[Page 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, refuge-specific 
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 non-profit 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, step-down 
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.

[[Page 62492]]

    (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

[[Page 62493]]

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 re-evaluation date. At the time the 
compatibility determination is made, the Refuge Manager will insert the 
required maximum 10-year re-evaluation 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 Pre-Acquisition 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 pre-acquisition 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. Pre-acquisition compatibility determinations should document the 
type, level, timing and location of wildlife-dependent recreational 
public

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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):
____ Use is Not Compatible
____ Use is Compatible With Following Stipulations
Stipulations Necessary to Ensure Compatibility:
Justification:
Signature: ______ Refuge Manager:-------------------------------------

(Signature and Date)

Concurrence: ______ Regional Chief:-----------------------------------

(Signature and Date)

Mandatory 10- or 15-year Re-evaluation Date:--------------------------

    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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