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FOREST SERVICE MANUAL
MT. BAKER-SNOQUALMIE N.F.
TITLE 2700 - SPECIAL USE MANAGEMENT
MBS Supplement No. 2700-2000-1
Effective January 18, 2000
POSTING NOTICE: Supplements are numbered consecutively by Title and
calendar year. Post by document name. Remove entire document and replace
with this supplement. Retain this transmittal as the first page of this document.
The last supplement to this Title was MBS Supplement 2700-97-1 to FSM 2730.3.
This supplement supersedes MBS Supplement 2700-97-1.
Document Name
2730.3-4
Superseded
New
(Number of Pages)
14
13
Digest:
2730.3-4 - Adds direction for Forest process and policy concerning access requests.
JOHN PHIPPS
Forest Supervisor
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2730.3 - Policy. The Mt. Baker-Snoqualmie National Forest is an urban interface
Forest and as such, will continually receive requests for access from our corporate
and private inholders, cooperators, and user groups. The following is the process
we will use on the Forest to respond to access requests.
1. Landowners have a statutory right of access to their holdings.
(Alaska National Interest Lands Conservation Act, P.L. 96-487, 12/02/1980)
The type of access we consider granting should be commensurate with the use of the
land being proposed. The Chief has established that in the majority of cases, roads
are appropriate access to private inholdings. We also reaffirm that the access
process will not be used to regulate, obstruct, or unduly hinder legitimate uses of
private property. State and County ordinances and permitting processes are the
appropriate vehicles to regulate private land use.
In the event apparent, unauthorized commercial use of a Forest Development Road
is discovered, appropriate action will be taken to correct the violation.
2. Processing of applications for access is a non-discretionary work activity.
(Title 36, Code of Federal Regulations, Part 251 Section 251.110 (36 CFR 251.110)
The Forest Service is responsible for coordinating the appropriate analysis and
documentation to meet requirements for implementing the National Environmental
Policy Act (NEPA), and for the preparation of the appropriate authorization
governing access. For non-cost share requests, the applicant is responsible for the
completion of all field work and/or surveys necessary for the assessment of the
impacts of their proposal, in order to complete the NEPA documents and T&E
reports required by the Endangered Species Act (ESA). Where the applicant would
elect to have Forest Service specialists undertake such field work, it is appropriate
to enter a collection agreement to cover the cost of this work.
NFLA funds are allocated to units for processing access requests (including funds to
pay for specialists' work, etc., associated with preparing NEPA documents). When
such funds have been exhausted, the District Ranger will consult with the Technical
Services Staff Officer and if no funds are available, advise the applicant the work
cannot be undertaken until funds are available. Applicants may elect to fund this
work via a collection agreement in this case.
3. Biological Assessments (BAs), identified as Biological Evaluations (BEs)
in the Chief's 2730/2670 memo dated 1/28/1993 (See Exhibit 01), which cover
federally listed species will be undertaken in the manner described in the Chief's
memo . The applicant for access must be informed that he/she may participate in
the formal consultation with U.S. Fish & Wildlife Service (USFWS) and National
Marine Fisheries Service (NMFS) [U.S.C. 1536 (a) (3)]. The applicant will be sent
copies of all formal correspondence between the Forest Service and the USFWS and
the NMFS pertaining to their application.
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When submitting the application and BAs to the USFWS and NMFS as
appropriate, a cover letter submitting the documents will state an applicant is
involved, who the applicant is, their address, and phone number.
The applicant may elect to submit additional information through the Forest
Service for consideration by the USFWS and NMFS, over and above their
application and the BAs. The applicant should not send materials directly to the
USFWS and/or NMFS.
The rules and regulations pertaining to consultation timeframes require the
applicant be notified if the normal consultation period (90 days) is extended and the
reasons for such extension. The consultation period begins once the BAs are
accepted by the USFWS and NMFS as being complete, with no additional
information needed for the agencies to prepare a Biological Opinion, Title 50 Code
of Federal Regulations, Part 402, Section 402.14 (50 CFR 402.14).
4. Authorizations which involve construction of new access will be addressed
in the appropriate NEPA document. Commercial road-use permits which
authorize use of existing roads may be categorically excluded from documentation
in an environmental impact statement (EIS) or environmental assessment (EA),
provided there are no extraordinary circumstances related to the action, and other
provisions of FSH 1909.15, Chapter 30 are met. BAs will be prepared for all
permits and/or easement grants (Chief's letter, page 1, Section A., See Exhibit 01.)
Funding for preparation of existing-road, Commercial Road Use Permits will be
borne by the Forest Service, when funds are available. When such funds are not
available, the District Ranger will consult with the appropriate staff and advise
the applicant the work cannot be undertaken until funds are available. Applicants
may elect to fund this work via a collection agreement in this case. A watershed
analysis is not required for use of existing roads.
Where new construction is involved, watershed analysis (or supplementation of an
existing analysis) will be required unless the construction is in a non-key
watershed, and if it is documented in an EA the road location does not cross a
riparian reserve.
5. The Forest Service also has certain obligations regarding Cost Share
Agreements with cooperators. When the Forest enters into a Road Right-of-Way
(R/W) Construction and Use Agreement with a cooperator, it establishes a working
agreement for developing and sharing of a jointly owned road system to benefit both
parties and their intermingled lands. This working agreement represents a Forest
obligation and a partnership which includes the specific responsibilities (see Section
2730.4 - Responsibility and Process, #2).
The method for processing a non-cost share easement is much the same except that
the fact sheet and supplement are not produced. Any values for land or work
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provided by the non-initiating party will be included in a letter of statement and
shown on the agreement balance sheet when the easement is signed (see Section
2730.4 - Responsibility and Process, #1).
2730.4 - Responsibility and Process
The Lands and Minerals Team is responsible for completion of the R/W actions
requested by the District Rangers. The types of actions contemplated are varied,
and are discussed individually by type below.
1. Access Requests (Non-Cost share, Both Existing and New Roads).
Access requests by inholders or corporate owners will be handled in the following
manner:
a. District Ranger will receive the request for access, and refer same to the
Forest R/W Coordinator. The Coordinator will confer with the Area Title
Examiner as to land status records and existing easements, advising the
District Ranger of any problems, and the appropriate type of authorization.
b. District Ranger and his/her staff will review status report, and complete
the necessary NEPA/BA documentation.
c. Following completion of NEPA/BA work by the District Ranger, R/W
Coordinator will see to completion of authorization documents by the Lands
team. R/W Coordinator will complete the case file and submit draft
authorization to Area Title Examiner for review when required.
d. The appropriate Line Officer will execute authorization documents when
completed.
e. R/W Coordinator will close the case and update status records.
2. Access Requests (Cost share, Both Existing and New Roads).
Access requests involving cost share roads, both new and existing, will be handled
in the following manner:
a. When either party is considering construction of a road within an
Agreement Area, it will give written notice to the other party, along with a
map showing the proposed location. The other party will respond, in
writing, to the initiating party within 30 days, of any interest in sharing in
the proposal. A declination to participate as a partner in a specific access
request does not change or diminish the other party's right of access.
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b. The initiating party will locate the road on the ground and notify the
other party, in writing, that it has been located and marked. Promptly
thereafter, a joint review will be made which will include any necessary
revisions and written approval given. Plans, specifications, and other details
needed will be agreed upon and documented. Agreement cannot be
unreasonably withheld, conditioned, or delayed, nor can relocation or
incorporation of features which add appreciably to the cost be required unless
a substantial, actual, and quantifiable benefit has been demonstrated. It is
at this point we agree on needed NEPA work, and who will accomplish.
c. Final approval of construction plans, cost, and R/W description shall be
made in writing promptly after submission, or if corrections are needed for
reasonable cause, agreement reached on same.
d. Both parties need to agree upon tributary area as per the 1993 agreement
guidelines. When plans, tributary area, and cost are approved, the initiating
party will prepare a fact sheet which will display shares. District Ranger
and the Forest Road Manager are responsible for determination of tributary
areas of National Forest lands. When plans, tributary area, and costs are
approved, the initiating party will prepare a fact sheet which will display
shares. When the Forest Service is the initiating party, Fact Sheets are
prepared under the direction of the Forest Development Engineer.
e. When the fact sheet is approved, the initiating party will prepare the
supplement and any easements needed. Upon review and certification by a
journey level cost share specialist, the Forest Supervisor will approve the
supplement and issue easement(s).
A key to the above items 'b' through 'e' is that the non-initiating party will
not unreasonably delay any approvals by inaction and will disclose personnel
or budget limitations which may influence the ability to respond.
3. Federal Highway Grants - USDOT.
Federal Highway Grants will be handled identically to 1) above, with the following
additions:
a. Stipulations will be prepared by the Forest R/W Coordinator in
consultation with the District Ranger. The Stipulations will incorporate the
right of way plan, construction plan, clearing, fire, and erosion control plans,
mitigation agreements, etc., by reference. The aforementioned plans and
agreements will be negotiated and approved by the District Rangers as
applicable. Upon approval, the Stipulations will be signed by the Forest
Supervisor. The R/W Coordinator will review the right-of-way plans and
prepare the Letter of Consent for execution by the Forest Supervisor.
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4. Transfer of Jurisdiction - County, Municipal, etc. Transfer of Jurisdictions,
such as to County or Municipal governments, will be as follows:
a. District Ranger and Road Management will identify such roads as are
passing through existing or proposed subdivisions, and submit a list and map
of same to R/W Coordinator. Coordinator will then communicate to the local
jurisdiction our desire to transfer the USA interest, or terminate same upon
Declaration by the County or Municipality.
5. Easement Terminations. Terminations will be processed as follows:
a. District Ranger will determine the need to terminate following
consultation with Forest Supervisor and Forest Road Manager. This is
important if termination is along a favored recreation or access route.
b. District will formally request termination by letter to the Forest
Supervisor, for approval with a courtesy copy to the Regional Office Lands
section.
c. R/W Coordinator will identify current landowners along route and contact
them for their input/comment regarding the Forest Service intent to
terminate.
d. No BA work is required for termination work. Refer to FSM 1950/FSH
1909.15 for direction on appropriate level of NEPA analysis/documentation.
ATM process should involve the appropriate EA or Plan documents as
necessary.
e. R/W Coordinator will review existing easement documents to determine
appropriate type of document and method of terminating the interest in
accordance with the guidelines within the R6 Desk Guide and relevant OGC
requirements.
f. R/W Coordinator transmits termination package to Regional Forester
through the Forest Supervisor for signature.
g. R/W Coordinator will record final documents with County Auditor and
send courtesy copy to affected landowners.
6. Road Use Permits - Commercial Haul.
The Forest Road Management group is responsible for the overall preparation and
administration of commercial road use permits. Permits are approved by the
District Ranger. Road Management is responsible for scheduling the necessary
NEPA/BA work to be performed by other Forest personnel with the appropriate
District.
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Managing Unauthorized Road Use:
a. When apparent, un-authorized commercial use of a road is discovered,
the Road Manager will be notified who, in turn, will arrange to have the
Forest R/W Coordinator assess the status of the road easement or permit
rights of the user for the road in question.
b. If authorization/right to use the road exists, the Area Road Manager will
inform the District Ranger.
c. If the Forest Service can find no evidence of authorization/right, the
private party will be notified by the Area Road Manager by telephone with a
follow-up letter signed by the District Ranger (see Exhibit 02 for sample
letter). The private party will be given five (5) working days to produce any
evidence of authorization for the road use, or stop all commercial use. Law
enforcement (Forest LEO) will be notified before this step is taken.
d. If haul/use does not cease by the designated date, all trucks using the
road illegally will be ticketed for the first day. If haul/use continues the US
Attorney's Office will be consulted by the Forest Supervisor for subsequent
actions. The Forest expects the private party to cease commercial use and
complete an application for the appropriate type of road use.
e. Haul/use will remain restricted until such time as authorization is
approved, including the necessary level of NEPA, BA, and consultation.
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EXHIBIT 01
United States
Department of
Agriculture
Reply To:
Subject:
To:
Forest
Service
2730/2670
Pacific
Northwest
Region
333 S.W. First
P.O. Box 3623
Portland, OR 97204
Date: Feb 10 1993
Access to Private Inholdings - Endangered Species Act
Forest Supervisors
Enclosed is a letter from the Chief clarifying direction on how to mesh the requirements of the
Alaska National Interest Lands Conservation Act (ANILCA) with provisions in the Endangered
Species Act. Please read it carefully and be sure all personnel working with road access
requests and endangered species evaluations receive a copy.
Any questions can be directed to Lisa Freedman at (503) 326-7140 or Grant Gunderson at (503)
326-4091.
Richard A. Ferraro (for)
JOHN E. LOWE
Regional Forester
Enclosure
cc:
RF,R.Ferraro
RF, T.Rogan
ENG, J.Holt
TM, J.Devlin
F&W, G.Gunderson
LM, L.Freedman
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Caring for the Land and Serving People
EXHIBIT 01
United States
Department of
Agriculture
Reply To:
Subject:
To:
Forest
Service
2730/2670
Washington
Office
14th & Independence
P.O. Box 96090
Washington, DC 20090-6090
Date: Jan 28 1993
Access to Private Inholdings/Endangered Species Act
(ANILCA)
Regional Foresters
This letter replaces our November 25 memorandum on the same subject. It amends statements
in the earlier letter regarding biological evaluations (BA) and "may effect" determinations.
We have received numerous questions regarding requests for road access across National Forest
System lands to adjoining private lands when the expected activity proposal on the private lands
may affect species listed under the Endangered Species Act (ESA). In this situation, one of the
key issues, is how to mesh the requirements of Section 1323(a) of the Alaska National Interest
Lands Conservation Act (ANILCA) with the provisions of the ESA.
ANILCA provides that an owner or private land within the national forest can secure access
across National Forest System lands for the "reasonable use and enjoyment" of the private land.
Any grant of access is subject to the Secretary's regulations at 36 CFR 251.54, Subpart B and
251.110. Those regulations provide for granting of special use authorizations for access
purposes, but such authorizations are made subject to the requirements of all other applicable
laws, which includes the ESA by regulation at 36 CFR 251.56.
This letter addresses Forest Service policy in dealing with the Forest Service's obligations to
provide reasonable access to non-Federal landowners under appropriate terms and conditions and
our obligation to conserve species listed under the ESA. We note at the outset a difference
between Forest Service actions granting access which affect listed species on Federal land as
opposed to actions which provide access to private landowners which then, in turn, may affect
listed species on the private land. Forest Service policy has continually stressed that we do not
regulate activities on private land. Reconciling these two situations requires consultation with
the Fish and Wildlife Service (FWS) and the applicant. We believe the process outlined below
best addresses our respective obligations.
A. The biological evaluation (BE).
The BE for an access application is normally part of the environmental analysis for the action.
The Forest Service Manual (FSM) provides that a BE be prepared prior to an action to determine
if the action "may affect" a listed species FSM 2672.4). According to Federal regulations
implementing the ESA, at 50 CFR 402.02, the granting of easements, licenses, permits, or
rights-of-way constitutes an action subject to the ESA. An application for access across
National Forest System lands constitutes an action requiring a BE.
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Caring for the Land and Serving People
EXHIBIT 01
Regional Foresters
In this BE, the Forest Service must consider the possible impacts on listed species on Federal
land from actions on Federal land. In addition, the Forest Service must disclose the effects
which might occur on private land as a result of the granting of access (50 CFR 402.21). Since
a landowner applying for access is required to indicate the use of the non-Federal land for which
access is requested (36 CFR 251.112), that information shall be the basis for the consideration of
the effects of the action.
B. Consultation with the Fish and Wildlife Service
If, after preparation of the BE for actions on National Forest System lands and consideration of
the associated expected actions on private lands, the Forest Service authorized officer concludes
that the proposed action "may affect" (either beneficially or adversely) a listed species, then
consultation with the FWS is required. The purpose of the consultation is to allow FWS to
prepare a Biological Opinion (Opinion) as to whether the proposed Federal action will or will not
jeopardize the continued existence of the listed species.
If the BE and consideration of associated expected actions on private land (36 CFR 251.112)
indicate "no effect" on a listed species or its critical habitat, no consultation with the FWS is
required. However, if the BE and consideration of associated expected actions on private land
indicate that the action "may affect" a listed species or its critical habitat, consultation with the
FWS is required. Consultation with FWS must be formal, unless, after informal consultation,
written concurrence is obtained from the FWS for a determination of "not likely to adversely
affect" (50 CFR 402.14(b)(1). The applicant for access must be informed that he may
participate in the formal consultation with the FWS (16 U.S.C. 1536 (a) (3)).
The consultation must occur whether or not the applicant chooses to cooperate. No action
should be taken by the Forest Service on the application that results in an irreversible or
irretrievable commitment of resources. Do not issue the authorization during consultation.
As a result of consultation, the FWS will issue an Opinion with one of two possible
determinations: (1) that the proposed action to grant access will not jeopardize a listed species,
or (2) that the proposed action will jeopardize a listed species. The letter is sometimes known as
a "Jeopardy Opinion."
C. The No Jeopardy Opinion.
When it issues a "no jeopardy opinion," the FWS determines that the proposed action will not
jeopardize a listed species. The Opinion will address "incidental take" (50 CFR 402.14 (i)).
Incidental take refers to takings that result from, but are not the purpose of, carrying out an
otherwise lawful activity conducted by the Federal agency or applicant (50 CFR 402.02). An
incidental take statement is a means by which the FWS can allow some Federal action to
proceed, notwithstanding that the action may have some impact on a listed species.
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If no incidental take is allowed, a no incidental take statement will be included. However, in
many instances, there may be an incidental take statement. The incidental take statement allows
the take of the listed species or its habitat subject to "reasonable and prudent measures."
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EXHIBIT 01
Regional Foresters
1. Reasonable and Prudent Measures that apply to National Forest System Lands.
The reasonable and prudent measures that apply to activities occurring on National Forest
System lands shall be included as a provision of any special use authorization. As such, they
shall be fully enforceable by the Forest Service and violation could result in the revocation or
suspension of the authorization.
If the FWS determines that the proposed action will not jeopardize T&E species, then the permit
may be issued without further consideration of the ESA.
2. Reasonable and Prudent Measures that apply to the use of private lands.
If the reasonable and prudent measures apply to activities on private lands, then those measures
should be clearly identified in a certified letter to the applicant. The letter should include a copy
of the Opinion from the FWS and include the following paragraph.
"The terms and conditions prescribed by the United States Fish and Wildlife Service are deemed
by that agency to be reasonable and prudent for the protection of species listed pursuant to the
Endangered Species Act. You and your agents and assigns, are hereby notified of such terms
and conditions which are enforceable by the United States Fish and Wildlife Service. Failure to
abide by the terms and conditions on the lands of the holder may result in civil or criminal
liability under the Endangered Species Act."
If the FWS determines that the proposed action will not jeopardize T&E species, then the permit
may be issued without further consideration of the ESA.
D. The Jeopardy Opinion.
When it issues a "jeopardy opinion," the FWS must provide reasonable and prudent alternatives
to the proposed action, if there are any. Reasonable and prudent alternatives are alternative
actions that can be implemented in a manner consistent with the intended purpose of the action,
and that can be implemented consistent with the scope of the FWS legal authority and
jurisdiction (50 CFR 402.02).
1. No Reasonable and Prudent Alternatives.
If the FWS issues an Opinion and finds no reasonable and prudent alternative to the proposed
action, forward the case to the Chief's office for review.
2. Reasonable and Prudent Alternatives that apply to National Forest System Lands.
Any reasonable and prudent alternatives that apply to National Forest System lands must be
evaluated by the Forest Service to determine if they are acceptable. After consultation with the
applicant, the Forest Service will deem an alternate as acceptable if it allows the landowner
access to his land in a manner which meets the alternatives of the FWS, is consistent with the
general terms and conditions of special use authorizations (36 CFR 251.56) and provides the
landowner "adequate access" as provided at 36 CFR 251, Subpart D. Once an acceptable
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alternative is selected by the Forest Service, the applicant is to be informed of the changes in any
action on National Forest System lands.
EXHIBIT 01
Regional Foresters
Issue the authorization, even if the selected alternative may not be the alternative preferred by the
applicant. The authorization must be subject to the terms and conditions in the Opinion that
apply to National Forest System lands. The applicant must be informed that the alternative
meets the requirements for adequate access and the ESA.
3. Reasonable and Prudent Alternatives that apply to Private Lands.
To the extent that the reasonable and prudent alternatives in the Opinion apply to the applicant's
use of private land, compliance with ESA is the responsibility of the FWS and the National
Marine Fisheries Service (NMFS). Once a special use authorization has been approved for the
use of NFS lands, advise the applicant/owner by certified letter of the terms and conditions
spelled out in the BE that apply to the private lands. The letter should include a copy of the
Opinion from the FWS and include the following paragraph:
"The reasonable and prudent alternatives, as prescribed by the United States Fish and Wildlife
Service are deemed by that agency necessary for protection of species listed pursuant to the
Endangered Species Act. You and your agents and assigns, are hereby notified that such
alternatives are enforceable by the United States Fish and Wildlife Service. Failure to abide by
the conditions of these alternatives on the lands of the holder may result in civil or criminal
liability under the Endangered Species Act."
E. Forest Service enforcement of terms and conditions applicable to private lands.
The Forest Service will not impose restrictions on the use of private land because it has no
authority to do so. However, it is our responsibility to cooperate with the FWS and NMFS in
meeting the intent and purposes of the ESA. To do this, we will provide the applicant for access
with the requirements for the protection of listed species, as prescribed by the FWS and NMFS.
The Secretary of Interior administers the ESA (16 U.S.C. 1540(e)). Any "reasonable and
prudent measures" or "reasonable and prudent alternative," or any other terms and conditions in
an Opinion that apply to private lands, whether or not the applicant is willing to abide by them,
are enforced by the FWS and the NMFS. Therefore, the function of the Forest Service in
issuing any authorization for access across National Forest System lands should be to alert the
applicant to the requirements of the ESA.
George M. Leonard (for)
F. DALE ROBARTSON
Chief
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EXHIBIT 02
Sample Letter to Private Party
File Code:
7730
Date: *
Private Party Name
Address
CERTIFIED MAIL - RETURN
RECEIPT REQUESTED
Dear Sir:
This letter is follow-up documentation of our conversation on
regarding
your haul of commercial products on Forest Development Road #
. As this
road is controlled by the U.S. Forest Service, either a permit or proof of easement rights are
required prior to any hauling of commercial products over it by a private party. Our
records indicate you do not have a permit or easement for this road. If your records indicate
you do in fact have haul rights, I request you produce evidence to that effect to me at the
above address within three days of receipt of this notice.
If you are unable to produce such evidence, or have overlooked the need to obtain haul
rights, you must cease all commercial haul immediately. If you wish to acquire a permit or
easement, please contact
at
for an
application.
It should be noted, due to the Northwest Forest Plan and the Endangered Species Act, the
granting of such rights must be fully assessed for their environmental impacts and then
consulted on with the U.S. Fish and Wildlife Service, as well as the National Marine
Fisheries Service. Depending on the nature of the impacts associated with the road use, this
can take form one to nine months. If surveys are required, such as with opening an old,
closed road, the process can take over a year. I will do everything I can to process your
application in the quickest timeframe possible.
I look forward to your response and trust we can resolve this matter in a timely manner.
Sincerely,
District Ranger