[Federal Register Volume 64, Number 174 (Thursday, September 9, 1999)]
[Notices]
[Pages 49067-49077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22993]



  Federal Register / Vol. 64, No. 174 / Thursday, September 9, 1999 / 
Notices  

[[Page 49067]]



DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Draft 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: We propose to establish in policy, the process for determining 
whether or not a use of a national wildlife refuge is a compatible use. 
This draft 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 3 of the Fish and Wildlife Service Manual. Published 
concurrently in this Federal Register are our proposed compatibility 
regulations describing the process for determining whether or not a use 
of a national wildlife refuge is a compatible use.

DATES: Submit comments on or before November 8, 1999.

ADDRESSES: Send comments concerning this draft compatibility policy via 
mail, fax or email to: Chief, Division of Refuges, U.S. Fish and 
Wildlife Service, 4401 North Fairfax Drive, Room 670, Arlington, 
Virginia 22203; fax (703)358-2248; e-mail Compatibility__Policy__ 
C[email protected].

FOR FURTHER INFORMATION CONTACT: Chief, Division of Refuges, U.S. Fish 
and Wildlife Service, Telephone (703) 358-1744.

SUPPLEMENTARY INFORMATION: The NWRSIA-1997 amends and builds upon the 
NWRSAA-1966, providing an ``Organic Act'' for the National Wildlife 
Refuge System. It 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 national 
wildlife 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 national 
wildlife refuge. We built this legal requirement into our policy and 
regulation. For 32 years, the compatibility standard for national 
wildlife refuge uses has helped us manage national wildlife 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 ensure that 
compatibility becomes a more effective conservation standard, more 
consistently applied across the entire National Wildlife Refuge System, 
and more understandable and open to involvement by the public.

Compatibility and the NWRSIA-1997

    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 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 concurrently 
with this notice under the existing compatibility process. After the 
effective date of the compatibility regulations, we will make 
compatibility determinations and re-evaluations of compatibility 
determinations under the compatibility process in the regulations.
    By October 9, 1999, we will issue final regulations establishing 
the process for determining whether or not a use of a national wildlife 
refuge is a compatible use. These regulations will:
    1. Identify the refuge official responsible for making 
compatibility determinations;
    2. Require an estimate of the time-frame, location, manner, and 
purpose of each use;
    3. Require the identification of the effects of each use on 
national wildlife refuge resources and purposes of each national 
wildlife refuge;
    4. Require that compatibility determinations be made in writing;
    5. Provide for the expedited consideration of uses that will likely 
have no detrimental effect on the fulfillment of the affected national 
wildlife refuge's purposes or the National Wildlife Refuge System 
Mission;
    6. Provide for the elimination or modification of any use as 
expeditiously as practicable after we make a determination that the use 
is not a compatible use;
    7. Require, after an opportunity for public comment, reevaluation 
of each existing use, other than wildlife-dependent recreational uses, 
if conditions under which the permitted use change significantly or if 
there is significant new information regarding the effects of the use, 
but not less frequently than once every 10 years, to ensure that the 
use remains a compatible use. In the case of any use authorized for a 
period longer than 10 years (such as an electric utility right-of-way), 
the reevaluation will examine compliance with the terms and conditions 
of the authorization, not examine the authorization itself;
    8. Require, after an opportunity for public comment, reevaluation 
of each existing wildlife-dependent recreational use when conditions 
under which the permitted use change significantly or if there is 
significant new information regarding the effects of the use, but not 
less frequently than in conjunction with each preparation or revision 
of a comprehensive conservation plan or at least every 15 years, 
whichever is earlier; and

[[Page 49068]]

    9. Provide an opportunity for public review and comment on each 
evaluation of a use, unless we have already provided an opportunity 
during the development or revision of a Comprehensive Conservation Plan 
for the national wildlife refuge or have already provided an 
opportunity during routine, periodic determinations of compatibility 
for wildlife-dependent recreational uses.

Purpose of This Draft Policy

    The purpose of this draft policy is to establish in policy, the 
process for determining compatibility of proposed national wildlife 
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 proposed 
compatibility regulations. This draft compatibility policy reflects the 
proposed compatibility regulations and provides additional detail for 
each step in the compatibility determination process.

Fish and Wildlife Service Directives System

    Because many of our field stations are located in remote areas 
across the United States, it is important that all employees have 
available and know the current policy and management directives that 
affect their daily activities. The Fish and Wildlife Service Directives 
System, consisting of the Fish and Wildlife Service Manual, Director's 
Orders, and National Policy Issuances, is the vehicle for issuing the 
standing and continuing policy and management directives of the 
Service. New directives are posted on the Internet upon approval, 
ensuring that all employees have prompt access to the most current 
guidance.
    The Fish and Wildlife Service Manual contains our standing and 
continuing directives with which our employees must comply and has 
regulatory force and effect within the Service. We use it to implement 
our authorities and to ``step down'' our compliance with Statutes, 
Executive orders, and Departmental directives. It establishes the 
requirements and procedures to assist our employees in carrying out our 
authorities, responsibilities, and activities.
    Director's Orders are limited to temporary policy, procedures, 
delegations of authority, emergency regulations, special assignments of 
functions, and initial functional statements on the establishment of 
new organizational units. All Director's Orders must be converted as 
soon as practicable to appropriate parts of the Fish and Wildlife 
Service Manual or removed. Material appropriate for immediate inclusion 
in the Fish and Wildlife Service Manual generally is not issued as a 
Director's Order.
    National Policy Issuances promulgate the Director's national 
policies for managing the Service and its programs. These policies are 
necessarily broad and generally require management discretion or 
judgment in their implementation. They represent the Director's 
expectations of how the Service and its employees will act in carrying 
out their official responsibilities.
    The Fish and Wildlife Service Manual, Director's Orders, and 
National Policy Issuances are available on the Internet at http://
www.fws.gov/directives/direct.html. When finalized, we will incorporate 
this compatibility policy into the Fish and Wildlife Service Manual as 
Part 603 Chapter 3.

Comment Solicitation

    If you wish to comment, you may submit your comments by any one of 
several methods. You may mail comments to: Chief, Division of Refuges, 
U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 670, 
Arlington, Virginia 22203. You may comment via the Internet to: 
Compatibility__Policy__ C[email protected]. Please submit Internet 
comments as an ASCII file avoiding the use of special characters and 
any form of encryption. Please also include: ``Attn: 1018-AE98'' and 
your name and return address in your Internet message. If you do not 
receive a confirmation from the system that we have received your 
Internet message, contact us directly at (703)358-1744. You may also 
fax comments to: Chief, Division of Refuges, (703)358-2248. Finally, 
you may hand-deliver comments to the address mentioned above.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the record, which we will honor to the extent 
allowable by law. There also may be circumstances in which we would 
withhold from the record a respondent's identity, as allowable by law. 
If you wish us to withhold your name and/or address, you must state 
this prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses and from individuals identifying themselves 
as representatives or officials of organizations or businesses, 
available for public inspection in their entirety.
    We seek public comments on this draft compatibility policy and will 
take into consideration comments and any additional information 
received during the 60-day comment period.
    We published a notice in the Federal Register on January 23, 1998 
(63 FR 3583) notifying the public that we would be revising the Fish 
and Wildlife Service Manual, establishing regulations as they relate to 
the NWRSIA-1997, and offering to send copies of specific draft Fish and 
Wildlife Service Manual chapters to anyone who would like to receive 
them. We will mail a copy of this draft Fish and Wildlife Service 
Manual compatibility chapter to those who requested one, along with a 
copy of the proposed compatibility regulations published concurrently 
in this Federal Register. In addition, this draft Fish and Wildlife 
Service Manual compatibility chapter and the proposed compatibility 
regulations will be available on the National Wildlife Refuge System 
web site (http://refuges.fws.gov) during the 60-day comment period.

Required Determinations

    We have analyzed the impacts of this policy in concert with the 
proposed 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 proposed 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.

Draft Compatibility Policy

FISH AND WILDLIFE SERVICE
NATIONAL WILDLIFE REFUGE SYSTEM USES
Refuge Management
Part 603 National Wildlife Refuge System Uses
Chapter 3 Compatibility
603 FW 3.1

    3.1  What is the purpose of this chapter? This chapter provides 
guidance for determining compatibility of proposed and existing uses of 
national wildlife refuges.
    3.2  What does this policy apply to? This policy applies to all 
proposed and

[[Page 49069]]

existing uses of national wildlife refuges where we have jurisdiction 
over such uses.
    3.3  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.
    3.4  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.
    3.5  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 
Refuge System, ``* * * the Secretary is authorized to * * * Issue 
regulations to carry out this Act.''
    A significant goal of the Refuge Administration Act is to ensure 
that we maintain the biological integrity, diversity, and environmental 
health of the Refuge System for present and future generations of 
Americans. Fragmentation of the Refuge System's wildlife habitats is a 
direct threat to the integrity of the 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 refuge will not be 
compatible.
    B. Refuge Recreation Act of 1962, 16 U.S.C. 460k (Refuge Recreation 
Act). This law requires that any recreational use of a refuge must be 
compatible with the primary purposes for which the refuge was 
established.
    C. Alaska National Interest Lands Conservation Act of 1980, 16 
U.S.C. 140hh-3233, 43 U.S.C. 1602-1784 (ANILCA). Section 304 of the 
ANILCA adopted the compatibility standard of the Refuge Administration 
Act for Alaska refuges.
    3.6  What do these terms mean?
    A. Compatible use means a proposed or existing wildlife-dependent 
recreational use or any other use of a national wildlife refuge that, 
in the sound professional judgment of the Refuge Manager, will not 
materially interfere with or detract from the fulfillment of the 
National Wildlife Refuge System Mission or the major purposes of the 
affected national wildlife refuge.
    B. Compatibility determination means a written determination signed 
and dated by the Refuge Manager, signifying that a proposed or existing 
use of a national wildlife refuge is either a compatible use or a not 
compatible use. The Director delegates authority to make this 
determination through the Regional Director, to the Refuge Manager.
    C. Comprehensive Conservation Plan means a document that describes 
the desired future conditions of a national wildlife refuge, and 
provides long-range guidance and management direction for a Refuge 
Manager to accomplish the purposes of the affected national wildlife 
refuge, contribute to the National Wildlife Refuge System Mission, and 
to meet other relevant mandates.
    D. Conservation, and Management mean 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 means 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 as a part 
of the National Wildlife Refuge System. The compatibility standard does 
not apply to coordination areas.
    F. Director means the Director, U.S. Fish and Wildlife Service or 
the authorized representative of such official.
    G. Fish, Wildlife, and Fish and wildlife mean 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 mean a designated area of 
land, water, or an interest in land or water located within the 
external boundaries of the National Wildlife Refuge System but does not 
include coordination areas.
    I. National Wildlife Refuge System, and Refuge System mean all 
lands, waters, and interests therein administered by, or subject to the 
jurisdiction of, the U.S. Fish and Wildlife Service as wildlife 
refuges, wildlife ranges, wildlife management areas, waterfowl 
production areas, and other areas administered by the U.S. Fish and 
Wildlife Service for the protection and conservation of fish and 
wildlife, including those that are threatened with extinction. A 
complete listing of all areas of the Refuge System is in the current 
annual ``Report of Lands Under Control of the U.S. Fish and Wildlife 
Service.''
    J. National Wildlife Refuge System Mission, and Refuge System 
Mission mean 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 means 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 means 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.
    M. Refuge Manager means the person who is directly in charge of a 
national wildlife refuge.
    N. Refuge use, and Use of a refuge mean a recreational use 
(including refuge actions associated with a recreational use or other 
general public

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use), refuge management economic activity, or other use of a national 
wildlife refuge by the public or other non-Service entity.
    O. Refuge management economic activity means any refuge management 
activity on a national wildlife refuge which results in generation of 
income or in 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. Specifically excluded from 
this definition are refuge management activities which generate 
commodities not sold for income or revenue and not traded for goods or 
services, on or off a national wildlife refuge.
    P. Refuge management activity means an activity conducted by the 
Service or a Service-authorized agent to fulfill all purposes or at 
least 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, 
friends organizations, and volunteers.
    Q. Regional Director means the official in charge of a region of 
the U.S. Fish and Wildlife Service or the authorized representative of 
such official.
    R. Secretary means the Secretary of the Interior or the authorized 
representative of such official.
    S. Service, and We mean the U.S. Fish and Wildlife Service, 
Department of the Interior.
    T. Sound professional judgment means 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 a Refuge Manager's knowledge 
of the particular affected refuge's resources.
    U. State, and United States mean 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.
    V. Wildlife-dependent recreational use, and Wildlife-dependent 
recreation mean 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, as amended, specifies that these are the 
six priority general public uses of the National Wildlife Refuge 
System.
    3.7  What are our responsibilities?
    A. Director.
    (1) 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) Notifies the Director regarding controversial or complex 
compatibility determinations.
    C. 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. The 
Director delegates the authority to make this determination, through 
the Regional Director, to the Refuge Manager.
    (3) Consults with the Regional Office supervisor or designee prior 
to approving each compatibility determination.
    (4) Documents all compatibility determinations in writing.
    (5) Ensures that we provide for public review and comment 
opportunities for all compatibility determinations, unless previously 
provided.
    3.8  What is the compatibility standard for Alaska refuges?
    A. The Refuge Administration Act, as amended, establishes the same 
standard for compatibility for Alaska refuges as for other national 
wildlife refuges, but it specifically acknowledges that the ANILCA 
provisions take precedence if any conflict arises between the two laws. 
Additionally, the provisions of the 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 the ANILCA have 
two sets of purposes. Purposes for pre-ANILCA refuges (in effect on the 
day before the enactment of the ANILCA ) remain in force and effect, 
except to the extent that they may be inconsistent with the 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, and not to those portions 
of the refuge added by the 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 in accordance with the Service's compatibility 
rules and procedures with regard to such use and development.
    3.9 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: campgrounds/campsites; 
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.
    3.10  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 include: prescribed burning;

[[Page 49071]]

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.
    B. Other exceptions.
    1. There are other circumstances under which the requirements of 
compatibility may not be applicable. The most common of these 
exceptions involves 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 navigability issues. 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 Solicitor's Office.
    3. Compatibility provisions of the Refuge Administration Act do not 
apply to Department of Defense or other 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 military overflights, active communication and cooperation 
between the Refuge Manager and the local base commander 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 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 Refuge System are affecting refuge resources, 
the Refuge Manager should seek State cooperation in controlling the 
activities. If necessary, the refuge manger should consider refuge-
specific regulations that would address the problem.
    5. Compatibility provisions of the Refuge Administration Act do not 
apply to activities authorized, funded, or conducted by another Federal 
agency which 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 in the Refuge System if the Secretary determines it is necessary 
to act immediately 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 12-months 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 
Office supervisor or designee 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 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 is inconsistent 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 is inconsistent 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);
    (c) the proposed use has already been considered in an approved 
refuge management plan and was not accepted;
    (d) the proposed use is inconsistent with any applicable Executive 
Order, or written Department of the Interior or Service policy;
    (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 only be prepared for a 
proposed use 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 3.11 G. Any use 
specifically authorized for a period longer than 10 years (such as 
rights-of-way) 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.
    3.11  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.
    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

[[Page 49072]]

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 Refuge System 
Mission or the major purpose(s) 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. A use that has a tangible adverse effect will ``materially 
interfere with or detract.'' That effect should be one where we can 
reasonably foresee a lingering or continued adverse effect or influence 
on refuge resources. 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 for improving 
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 a tangible, lingering or continued adverse 
effect on refuge resources. However, even unintentional 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 compensation. We will not allow making proposed refuge 
uses compatible through replacement of lost habitat values or other 
compensation. If we cannot make the proposed use compatible through 
stipulations we cannot allow the use.
    D. 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 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. 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.
    E. 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.
    F. 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 uses, the Refuge Manager should evaluate, among other 
things, which use most directly supports long-term attainment of refuge 
purposes and the Refuge 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 uses, 
priority uses take precedence.
    G. Re-evaluation of uses.
    1. We will re-evaluate compatibility determinations for existing 
wildlife-dependent recreational uses when conditions under which the 
permitted use changes 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 rights-of-way), we will re-evaluate compatibility 
determinations for all other existing uses when conditions under which 
the permitted use changes 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 10 years, whichever is earlier. Again, a Refuge Manager 
always may re-evaluate the compatibility of a use at any time.
    3. For uses specifically authorized for a period longer than 10 
years (such as long-term rights-of-way), our re-evaluation will examine 
compliance with the terms and conditions of the authorization, not the 
authorization itself. However, we will frequently monitor and review 
the activity to ensure that all permit terms and

[[Page 49073]]

conditions are being carried out. We will make a new compatibility 
determination prior to extending or renewing such long-term uses at the 
expiration of the authorization.
    H. 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 associated NEPA document. For compatibility 
determinations prepared separate 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 3.12 A10 for details on public review and comment.
    3.12  What are the steps for preparing compatibility 
determinations?
    A. The following steps outline the procedure for reviewing uses for 
compatibility. 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, 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 3.12 A3. For a use proposed for designated 
wilderness areas within the Refuge System, the Refuge Manager must 
first analyze whether the activity 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 activity is compatible. As a 
matter of policy, the Refuge Manager will also analyze whether the 
activity 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 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?
    (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 facilities 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. Consider 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 Refuge 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 surveys, maintenance of 
control sites, etc) to assess the impact of uses over time.
    c. This analysis of cost for administering and managing each use 
will only include the incremental increase above general operational 
costs

[[Page 49074]]

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.
    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 
purpose(s) and the Refuge 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 narratives, 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, etc. Refuge Managers are 
not required to independently generate data on which to base 
compatibility determinations. The Refuge Manager may work with the 
proponent of the use 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.
    b. Refuge Managers should distinguish between long-term and short-
term impacts. For example, 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. Direct impacts on refuge resources, such as wildlife disturbance 
or destruction of habitats, may be easily predicted. However, the 
analysis of impacts must also address indirect and cumulative effects 
that may be reasonably associated with a specific use. 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.
    9. Justification. After completing the steps described above, the 
Refuge Manager will provide a logical explanation for the 
determination. The justification must describe how the proposed use is 
reasonably expected to affect fulfilling the refuge's major purpose(s) 
and the Refuge System Mission.
    10. Public review and comment.
    a. The Refuge Manager must provide 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 separate from a plan, the level 
of public review and comment will be handled through the following 
tiered approach.
    b. For minor, incidental, or one-time uses which have been shown by 
past experience at this or other refuges in the Refuge System to result 
in no significant, cumulative, lingering or continuing adverse impacts 
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 so as 
to maximize the opportunity for comment as is practicable. 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. This period may be reduced by the Refuge Manager when 
there is not sufficient time to provide the full 14-days.
    c. 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.
    d. 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 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 prepared, this information would be included in these 
documents as part of the administrative record.
    11. Use is compatible or not compatible. Identify whether the use 
is compatible or not compatible. This is where the Refuge Manager 
states whether the use materially interferes with or detracts from 
fulfilling the National Wildlife Refuge System Mission or the major 
purposes of the refuge.
    12. Stipulations necessary to ensure compatibility.
    a. Describe any stipulations 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

[[Page 49075]]

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 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.
    13. Consultation with Regional Office. Prior to approving each 
compatibility determination, the Refuge Manager will consult with their 
Regional Office supervisor or designee. The consultation will be 
documented by recording on the compatibility determination form the 
date and name of person consulted with.
    14. Signature. The Refuge Manager will sign and date the 
compatibility determination.
    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.
    3.13  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 Refuge 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, cumulative, 
lingering, or continuing adverse impacts 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.
    3.14  What do we do with existing uses that are not compatible? 
Existing uses determined to be not compatible will be terminated or 
modified to make the use compatible as expeditiously as practicable.
    3.15  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 Refuge 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.
    3.16  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 29.23 (rights-of-way), 50 CFR 36.41(b) 
(special use permits for refuges in Alaska), or 43 CFR 36.8 (rights-of-
way for Alaska).
    3.17  Compatibility on Lands Added to the National Wildlife Refuge 
System.
    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 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 and location of wildlife-dependent recreational public uses 
that are presently occurring on lands proposed for acquisition.
    3.18  What is the relationship of compatibility to NEPA?
    A. Analysis done to comply with NEPA with regard to proposed 
actions are closely related to the compatibility determination process 
because the NEPA process requires analysis of the impacts of a proposed 
action on the natural, cultural, and physical environment, and requires 
public participation in the decision-making process. The information 
developed in complying with NEPA will be useful in completing 
compatibility determinations.
    B. Comprehensive Conservation Plans and step-down management plans 
will have associated NEPA compliance documentation, and Refuge Managers 
should ensure that the analysis in the NEPA document adequately covers 
the factors that are relevant to compatibility determinations. If this 
is done, it will only be necessary to summarize and reference the 
analysis and conclusion in the compatibility determination. Final 
compatibility determinations should be deferred until the NEPA document 
is completed and a decision is made on the proposed action. Public 
involvement efforts should be undertaken concurrently to the extent 
practicable.
    C. A decision to allow a proposed use, or terminate or 
significantly modify an existing use made independent of a formal 
planning process should be accompanied by appropriate NEPA 
documentation. However, if a proposed use is not authorized, as a 
result of a compatibility determination, no action results that would 
require NEPA documentation. NEPA compliance for authorizations of uses 
that are categorically excluded should be documented with an 
Environmental Action Statement as described in 550 FW 3. The Refuge 
Manager may work with the proponent(s) of a use to provide the 
appropriate NEPA documentation.

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[[Page 49076]]

[GRAPHIC] [TIFF OMITTED] TN09SE99.001



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[[Page 49077]]

Exhibit 2--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:
    Justification:
    Public Review and Comment:
    Use is Compatible or Not Compatible (circle one):
    Stipulations Necessary to Ensure Compatibility:
    Consultation with Regional Office:
    Signature:
    Refuge Manager: ______________________________

(Signature/Date)

    Mandatory 10 or 15-year Reevaluation Date: ____________________

    Dated: May 26, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-22993 Filed 9-8-99; 8:45 am]
BILLING CODE 4310-55-P