NPS-53 (REVISED)—NATIONAL PARK USES RIGHTS-OF-WAY (APPENDIX 8)
| Jurisdiction | United States |
(May 1998)
NPS-53 (REVISED)—NATIONAL PARK USES RIGHTS-OF-WAY (APPENDIX 8)
APPENDIX 8
NPS-53 (REVISED) SPECIAL PARK USES RIGHTS-OF-WAY
APPENDIX 8 — RIGHTS-OF-WAY
A right-of-way (ROW), as used within the context of this Appendix, is a permit issued by the National Park Service to a third party to pass over, under or through NPS property. A ROW permit is a discretionary and revocable document and, unlike a deeded easement or fee simple ownership, does not convey or imply any interest in the land. In addition, a ROW permit may only be issued under certain, stringent circumstances. The NPS is under congressional mandate not to allow any use of NPS land that would be a derogation of the values and purposes for which the park was authorized or be incompatible with the public interest, except when authorized by Congress.
Authority
There must be specific authority in the law allowing the type of use for which a ROW is requested. Authority for a utility ROW through parks is found in 16 U.S.C. 5 for electric power and for radio, television and other forms of communication; and 16 U.S.C. 79 for electric power, telephone and telegraph, and a wide variety of water conduits, dams and reservoirs (including sewer); or park-specific legislation.
Authority for highways that are part of the Federal Aid Highway System is found at 23 U.S.C. 317. A discussion of highway ROW is found later in this Appendix. Authority for permitting access to inholdings in Alaska park units is located at 16 U.S.C. 3170(b) (ANILCA) 1110(b).
Authority for roads and utilities constructed for and owned and operated by the parks and/or its concessions, is found at 16 U.S.C. 1-3 and 8. This authority uses the same tests for derogation of values and purposes, and compatibility with the public interests. Examples of uses for which there are no general authorities are roads that are not a part of the Federal Highway System (National Highway System), and oil, gas or other petroleum product pipelines. Oil and gas lines that serve NPS facilities only may be authorized under 16 U.S.C. 1-3 , but these lines may not be extended to serve any other purpose. If authority for the requested use is not found in the general legislation or other sources, the park must deny the use.
Should an unauthorized use already exist, and the park discovers that it is not in derogation of park values, it is not incompatible with public interests, and there are no prudent or feasible alternatives to being on NPS land, the park should advise the user to seek park-specific enabling legislation.
In addition, except as specifically provided by law or policy, there will be no permanent road, structure or installation within any study, proposed, or designated wilderness area. This includes the installation of utilities. (See the Wilderness Act 16 U.S.C. 23). The NPS will not issue any new right-of-way permits or widen or lengthen any existing rights-of-way in designated or purposed wilderness areas.
A ROW proposed for parks in Alaska is subject to the authorities and procedural requirements of Title XI of ANILCA, 16 U.S.C. 3161 et seq. Authority for permitting access to inholdings in Alaska park units is located at 16 U.S.C. 3170(b), (ANILCA 1110(b)). See Appendix 19.
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Policy
A ROW permit is the required instrument for use in documenting and permitting utilities and other uses of NPS land within the National Park System. This includes those utilities not owned by the NPS but serving NPS and/or concession facilities. NPS owned utilities do not require a ROW permit. A ROW permit is not required for those instances when the specific use is authorized by property rights, such as a deeded easement, or by park-specific or other legislation when the legislative language is so written as to have the same effect as a deeded easement.
Issuance of a ROW permit is at the discretion of the Superintendent who must first ask and receive satisfactory answers to these questions.
— Will the use not be in derogation of the values and purposes of the park?
— Is there a specific law that allows the activity?
— Will the use be compatible with the public interest?
— Is there no viable alternative path or location for the use to be placed outside NPS property?
— The authorized activity and services provided must be consistent with the purpose for which the park areas was established.
These questions should be considered tests and applied equally to both new requests and to renewals or conversions of an existing use. If the answer to any of these questions is anything other than yes, the use should be denied.
All parks will use 16 U.S.C. 79 as the authority to permit utility ROW for all electric, telephone and telegraph lines, and for canals, ditches and other water conduits, including sewer lines. 16 U.S.C. § 5 will be used for those utilities not covered under 79, namely radio, television, and other forms of communication transmitting and receiving structures and facilities. This would include cable television lines.
As a general rule, and where and when possible, all new utility lines in parks will be placed underground and in conduit. While economic factors must be considered, undergrounding utility lines should be done by directional boring rather than trenching. For especially long lines or other factors that would make directional boring impractical, the Superintendent may allow trenching to occur in preference to the installation of overhead lines. All parks with existing overhead utility lines should attempt to have those lines placed underground as the opportunity occurs. These lines should also be directionally bored and placed in conduit where and when possible.
Regulations
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NPS general regulations regarding ROW permits are located at 36 CFR Part 14. The regulations for NEPA 102 and NHPA 106 compliance are located at 40 CFR Part 1500 and 36 CFR Part 61. Alaska-specific regulations on ROW's and NEPA compliance cost recovery are located at 43 CFR Part 36 and Subpart 2808. See Appendix 25.
The Right-of-Way Permit
The format for a ROW permit has been standardized and approved, and should be used by all parks originating these documents. The approved templates for fee and non-fee ROW permits are shown here as Exhibits 4 and 5.
The standardized permits have been approved by the Solicitor's Office and when used, do not require further review by their office. Changes to the standardized permit WILL require solicitor review and approval.
If the ROW permit being submitted for review and approval required NEPA and/or Cultural resource compliance, the park will include copies of the compliance documents (Environmental Review and Compliance Form, Environmental Assessment, Environmental Impact Statement, Finding of No Significant Impact, and Assessment of Actions Having an Effect on Cultural Resources, as applicable) with the package. In all instances, the originals of the compliance documentation should remain in the park.
All new ROWs must be submitted to the Regional Director for review, approval and signature. If the permit is a conversion or renewal of an existing permit, which has been reviewed at the Regional level, it will be signed by the Superintendent.
Undocumented utility lines exist in the parks. A line that has been undiscovered for some time would, to a certain extent, be treated as a new permit. If the park decides to allow the line to remain, a ROW permit will be prepared and submitted to the Regional Director for review, approval and signature.
Conversions
Special Use Permits or other documents will not be used to authorize utilities within NPS areas, including those which serve the park. All existing special use or other types of permits issued for this purpose will be converted to ROW permits as they expire.
Right-of-Way Amendments and Renewals
Amendments are normally used to document small or minor changes to the use described, or the stated conditions that regulate that use. Examples of such changes would be: If the company wanted to add an additional...
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