2709.12,42-46 Page 1 of 12 FOREST SERVICE HANDBOOK WASHINGTON FSH 2709.12 - ROAD RIGHTS-OF-WAY GRANTS HANDBOOK Amendment No. 2709.12-94-6 Effective September 19, 1994 POSTING NOTICE. Amendments are numbered consecutively by Handbook number and calendar year. Post by document name. Remove entire document and replace with this amendment. Retain this transmittal as the first page of this document. The last amendment to this Handbook was Amendment 2709.12-94-5 to 2709.12,40-41. Superseded New Document Name (Number of Pages) 2709.12,42-46 - 12 Digest: 44 - Moves the footnotes in exhibit 01 (Form FS-2700-4d) to the end of the document (Construction Stipulation). JACK WARD THOMAS Chief FSH 2709.12 - ROAD RIGHTS-OF-WAY GRANTS HANDBOOK WO AMENDMENT 2709.12-94-6 EFFECTIVE 9/19/94 42 - APPLICATIONS. The filing and processing of applications for Federal Land Policy and Management Act road rights-of-way is the same as specified in chapter 10 except for temporary permits issued to cooperators in cost share agreement areas. The cooperative agreement in FSH 5409.17, chapter 60 provides the application procedure. A plat or written description of the right-of-way that is to become a part of the permit or easement is mandatory. When a written description is used, it must be accompanied by a portion of a map having a large enough scale to adequately show the location of the use. When a plat is used, it must show at a minimum the location of the right-of-way, specify the width, and identify the subdivisions or tracts on which the right-of-way is situated. For existing roads, an adequately annotated and identified portion of a planimetric map showing the road or an aerial photo may serve as the plat. For new roads, a sketched location on a planimetric map with a scale of 2 inches = 1 mile is adequate if the location is marked on the ground clearly and referenced adequately. The map must identify right-of-way width and lands crossed. Label ties and locations that are not surveyed as approximate. Require a surveyed centerline when the right-of-way is close to property lines and there is any possibility of encroachment on land owned by third parties. The exhibits in section 41.22 and section 41.23 show approved modifications of clauses for road permits. The standard clauses are broad purposely to cover most conditions encountered. Do not modify or substitute standard clauses in the authorization with Regional or forest clauses unless approved by the Washington Office, Director of Lands, except where permits specifically indicate that Regions may develop alternate wordings. 43 - TERM OF AUTHORIZATION. Section 504(b) of the Federal Land Policy and Management Act (FLPMA) (FSM 2733) requires that each right-of-way issued under that authority be limited to a reasonable term in light of all circumstances concerning the project. Establish the duration based on such considerations as the cost of the facility, its useful life, and any public purpose it serves. The authorization must specify whether it is renewable or not renewable and must include the terms and conditions applicable to such renewal. The approved formats in the exhibits 01 of sections 41.11 and 41.12, are based on the assumption that the purpose of the road is to serve the landowners' long-term needs to manage natural resources. In the event that the use is for other purposes, revise the clause establishing the term of use based on the following examples for easements or permits to reflect a reasonable term. 1. Some alternative wordings for the first phrase of clause D in exhibit 01, section 41.11 (FLPMA Forest Road Easement) and exhibit 01 section 41.12 (FLPMA Private Road Easement) are as follows: a. This easement shall continue for as long as needed for access to the (project) ; Provided, and so forth. b. This easement shall expire on (date) . At that time, if the Grantee still needs the road for (the purposes for which this easement is granted), the easement will be reissued for a period of 10 years (or the estimated remaining life of the project, whichever is less). At the time of reissuance, the terms and conditions of the easement may be modified and new conditions or stipulations added at the discretion of the Forest Service; provided, and so forth. (Delete the second proviso if term is 30 years or less.) c. This easement shall expire on (date - not to exceed 20 years), and shall not be renewable. (Omit remainder of clause D.) d. This easement shall continue for as long as the property served is used for (a single-family residence)(agricultural purposes)(a recreation residence); provided, and so forth. 2. The following alternative wordings may be substituted for clause 14 of exhibit 01, section 41.22 (Forest Road Special-Use Permit, Form FS-2700-4b) and clause 16 of exhibit 01, section 41.23 (Private Road Special-Use Permit, Form FS-2700-4c)): a. Unless sooner terminated, or revoked by the Regional Forester, this permit shall expire and terminate on (date - not to exceed 20 years). At that time, if the permittee still needs the road for the purposes for which this permit is granted, the permit will be reissued for a period of 10 years (or the estimated remaining life of the project, whichever is less). At the time of reissuance, the terms and conditions may be modified and new conditions or stipulations added at the discretion of the Forest Service. b. Unless sooner terminated, or revoked by the Regional Forester, this permit shall continue as long as needed for access to the (project) . Other appropriate term clauses may be developed in consultation with the Regional Attorney to meet the needs of other situations. 44 - CONSTRUCTION STIPULATIONS. Plans and specifications for the road to be constructed may be either attached to the construction stipulations or incorporated by reference to the specific plans or specifications that have been approved by and placed on file with the Forest Service. The plans and specifications must provide for prevention of soil erosion and stream damage during and after construction. They must be in such a form as to define for the permittee and the Forest Service the facility to be built. The general rule is that they should be in the same form and detail that would be needed for a similar road to be built under contract or by a timber sale purchaser. Form specifications without detailed plans are not acceptable as a substitute for plans and specifications, except as noted in the following: 1. In determining the degree of detail for surveys, designs, plans, specifications, and construction staking, consider terrain, soil type, esthetic values, water quality, and other resource values in conjunction with road design criteria. For very minor roads, short logging spurs, and skid trails in easy terrain, the Regional Forester may authorize the use of form specifications prepared for Region-wide or Forest-wide use coupled with construction staking on the ground. 2. The stipulations must include all clauses necessary to provide adequate control of the construction activity. They must include appropriate provisions for timber disposal, brush disposal, drainage installation, fire tool requirement, watchman service, and any other conditions or specifications that the environmental analysis finds necessary. The content of the stipulations may vary to meet the needs of each individual project. 3. A performance bond may be required where necessary, but shall not be substituted for adequate plans, specifications, and inspections of work in progress. 4. The applicant must do the work needed for preparation of plans and specifications. Sensitive areas may require a complete survey and design. A professional engineer should prepare design plans for such structures as bridges, retaining walls, and major culverts. Often it is desirable for a Forest Officer to participate in the location work, especially when location is the critical factor and the applicant is not experienced in such work. 5. Avoid problems in interpretation of requirements and construction performance by setting forth clearly in the stipulation the specifications and requirements and by inspecting the work while in progress. Inspection is especially important during early stages of construction work. 6. Exhibit 01 is a sample format for a stipulation to be used in FLPMA easements (sec. 41.11 and sec. 41.12) and FLPMA permits (sec. 41.22 and sec. 41.23). Expand, condense, or modify it as necessary to fit the individual situation. 44 - Exhibit 01 CONSTRUCTION STIPULATION This Stipulation, made this day of , 19 , by and between , hereinafter referred to as the Holder, and USDA Forest Service, acting by and through its authorized representative, hereinafter referred to as the Forest Service. Whereas, the Holder has been issued a special-use authorization dated for the use and occupancy of National Forest land for the use (and maintenance) of a road, and such authorization requires that all construction conform with approved plans, specifications, and stipulations. Now, therefore, the Holder agrees to the following terms and conditions, and the Forest Service hereby authorizes the construction to proceed in accordance with these terms and conditions. 1. Construction/reconstruction of the road shall be in accordance with the plans and specifications (set forth in exhibit , attached hereto and made a part hereof)(on file at and identified as ).1/ 2. The Forest Service may suspend all or any part of the construction/reconstruction activities (and/or revoke or terminate the special-use authorization without administrative proceedings) 2/ upon breach of any of the conditions herein. Prior to suspension, revocation, or termination, the Forest Service shall give the Holder written notice of the grounds for such action and reasonable time to cure any noncompliance. However, the Forest Service may require immediate temporary suspension of all or any part of the activities when the Forest Service determines it is necessary to protect the public health, safety, or the environment. If requested by the Holder, the superior to the officer ordering the suspension, revocation, or termination shall arrange within 10 days of the request for an on-the-ground review of the conditions with the Holder. The superior shall affirm, modify, or cancel the temporary suspension as soon after the review as possible. 3. The Holder shall cut only timber as necessary in clearing for road construction, reconstruction, and maintenance. Timber so cut shall, unless otherwise agreed to, be cut into logs of lengths specified by the Forest Service and decked along the road for disposal by the Forest Service. 4. The Holder shall do everything reasonably within its power to prevent forest fires and shall not dispose of material by burning in open fires during the closed season established by law or regulation without a written permit from the Forest Service. 5. The Holder shall repair fully all damage to National Forest roads and trails caused by the Holder in exercise of the privileges granted. 44 - Exhibit 01--Continued 6. The Holder shall be responsible for the prevention and control of soil erosion and gullying in the construction area and adjacent areas and shall take such preventative measures as are necessary to repair and revegetate damaged areas and to prevent future damage. 7. The Holder shall protect scenic and esthetic values in the construction area as far as possible. 8. The Holder shall take reasonable precautions to protect all public land survey monuments and accessories, private property corners, and Forest boundary markers. In the event that any such land markers or monuments are damaged or destroyed, the Holder shall reestablish or reference the corner in accordance with directions and procedures to be furnished by the Forest Service. 9. The Holder shall maintain a muffler or spark arrester satisfactory to the Forest Service on the exhaust systems of all trucks and tractors or other internal combustion engines used in connection with this project. 10. During the fire season, as determined by the Forest Service, the Holder shall furnish and maintain in serviceable condition a fire-tool box and fire tools to be used only for suppression of forest fires. The toolbox shall be located at the site and shall contain the following tools: (List tools). 11. The Holder shall equip each gasoline powersaw at all times with a spark-arresting muffler, in good working condition and adapted to that machine. During periods of dangerous fire weather, as determined by the Forest Service, the Holder must transport and keep with each powersaw at all times such fire tools and portable extinguishers as specified and to take other precautionary measures as may be required by the Forest Service. 12. (And so forth, other clauses as appropriate). In Witness Whereof, the Holder and the Forest Service have caused this stipulation to be executed on this day of , 19 . USDA, Forest Service By (Title) (Title) 1/ Use the appropriate wording. 2/ Omit when stipulations are used with an easement or an authorization granted to another Federal agency. 45 - DETERMINATION OF FEES. Section 504(g) of the Federal Land Policy and Management Act requires that "The holder of a right- of-way shall pay annually in advance the market value thereof as determined by the Secretary. . .". The regulations implementing this section of the Act authorize the collection in advance of payments for up to five years when the annual rental is less than $100. The fee for use of an existing Forest Development Road System road must include the fee for the use of the land on an annual basis and, where applicable, a payment in advance for commercial hauling of the applicant's proportionate share of the replacement value less depreciation of the existing road. 45.1 - Land Use Fees. Use linear rights-of-way fee schedule with appropriate adjustments as discussed in FSM 2712. 45.2 - Road Use Fees. Determine the applicant's proportionate share of the value of the existing road by using the procedures in FSH 5409.17, Rights-of-Way Acquisitions Handbook, chapter 60. This method is not a real estate appraisal to determine fair market value but is the commonly accepted method for recovery of road investments by owners of forest roads. 45.3 - Waiver of Rental Fees. Under the following conditions Forest Officers may waive fees in full: 1. The authorization is to another Federal agency. 2. The applicant provides a valuable benefit to the public of substantially equal value or more. 3. The applicant conveys to the United States a reciprocal right-of-way of substantially equal value. 4. For raw-land right-of-way authorizations, in recognition of the contribution of the Grantee's construction of the road that will become a part of the Forest Development Road System upon acceptance. 45.31 - Waiver for Federal Agencies. Waive the fee in its entirety when the authorization is to another Federal agency, unless the agency charges the Forest Service for similar uses. The reservation form in section 41.13 does not provide for the payment of a fee. If a fee is to be charged, insert the first paragraph of clause I from exhibit 01 of section 41.12 into the authorizing document. 45.32 - Waiver for Construction of a Road That is Part of the Forest Development Road System or the Grant of Reciprocal Rights- of-Way. When the road will be constructed for the United States as part of the forest development road system under the jurisdiction of the Forest Service, waive the fee in its entirety. When the value of reciprocal rights-of-way granted to the United States is substantially similar to the value of the rights granted to the applicant, waive the fees in their entirety. See section 45.33 for the procedure to be used in determining whether the values are substantially similar. When fees are waived in full, delete the fee, interest, and penalty clause from the permit or easement and replace with the following clause: The annual fee for this use is waived in consideration of the contribution by the (grantee) (permittee) to the programs of the Forest Service through the (grant of reciprocal rights-of-way) (construction of the road as a part of the forest development road system under the jurisdiction of the Forest Service). 45.33 - Partial Waiver. Fees may be waived partially when the applicant would qualify under 2 or 3 of sec. 45.3, except that the value of the applicant's contribution is less than substantially equal to the value of the fee for the right-of-way authorization. In the cases where the value of a raw-land right- of-way acquired from the United States exceeds the value of the right conveyed to the United States, reduce the fee for the use in proportion to the value of the rights conveyed to the United States. For example, if the value of the easement to the United States is $500 and the value of the right-of-way authorization is $750 the fee percentage is calculated as: $750 - $500 = .333 or 33.3% 750 The annual fee is 33.3 percent of the section 45.1 rental fee. If the rental fee is $120, the fee charged is $120 x .333, or $40 per year. Adjust all future rate determinations by the percentage established at the time of the easement exchange. If the fee calculation at the time of exchange does not exceed the current minimum fee or the difference in value of the easements is $100 or less, consider the values to be "substantially similar" for the purpose of 36 CFR 212.10(a) and waive the fee in its entirety. If the value of the right-of-way conveyed to the United States substantially exceeds the value of the right-of-way granted, the United States shall pay the difference as consideration for the right-of-way granted. The deed to the United States must recite the consideration as "$ and the grant of reciprocal rights-of-way". 46 - ADMINISTRATION OF RIGHTS-OF-WAY. The amount of administrative latitude varies among the various types of authorizations. Rights-of-way on Federal Development Road System roads retain the full control and management of the road to the United States. Rights-of-way for private roads do not provide for general Government administration of the road. The private road is the responsibility of the grantee or permittee along with the responsibility to prevent damage to the adjoining National Forest lands. 46.1 - Easements. An easement conveys a partial interest in National Forest System lands to the grantee. The document specifies the rights and responsibilities of both the United States and the grantee. The granting document does not authorize construction, reconstruction, or maintenance activity by the easement holder on Federal Development Road System roads. A separate authorization in the form of construction stipulations or a maintenance agreement is necessary before the holder may begin any of these activities on the right-of-way. The private road easements authorize the easement holder to maintain the road but require that the Forest Supervisor approve all construction or reconstruction. 46.11 - Termination. The Forest Service may terminate an easement in accordance with the specific termination provisions of the easement, the law authorizing the grant, and the regulations promulgated by the Secretary. Unless the easement is being terminated with the consent of the grantee or in accordance with the terms of the easement, all actions to terminate the easement require that the proceedings be instituted under 7 CFR 1.130-1.151. Copies of the regulations are available upon request from the Washington Office, Lands Staff. Send notice of termination to the grantee by certified mail. The notice must include the effective date and the event or occurrence that resulted in the termination. If the easement was recorded in the county records, prepare a notice of termination in recordable form and record it at the expense of the United States in each county where the easement was recorded, except where the easement expired at the end of a period of time established in the deed, and the easement stated that it was not renewable. The Forest Service cannot terminate right-of-way reservations granted to other Federal agencies without the consent of that agency. Agency consent is not needed if the term of the grant has expired. 46.2 - Permits. The administrator of permits has more administrative latitude than in the case of easements. A permit conveys permission to use and does not convey a partial interest in the land. 46.21 - Suspension. When the permittee violates the terms of a special-use road permit and fails to correct the conditions constituting the violation when requested, the Forest Service may suspend all or any part of the use authorized by the permit until the violations are corrected. Bring violations of the terms of the permit to the attention of the permittee promptly and request corrective action. The time allowed to correct the actions or conditions that constitute the violation depends on the nature of the violation and the corrective action required. When the permittee fails to correct the violation promptly, the Forest Service may suspend all or any part of the use authorized by the permit until the conditions constituting the violation are corrected. Use suspension as a device to obtain compliance with the terms of the permit when other efforts to obtain compliance have failed. The Forest Service official, or a successor, who issued the permit shall make the decision and take action to suspend use under the permit. Prepare the notice to suspend use in writing. Have it delivered to the permittee personally or sent by certified mail, return receipt requested. The notice must state clearly the nature of the use which it is to suspend as well as the conditions that the permittee must correct or action the permittee must take before resuming use. The suspension notice must state clearly when and under what conditions the suspension will be lifted. Prepare the notice of suspension removal in writing and handle in the same way as the original suspension notice. 46.22 - Termination. A permit terminates as the result of a specified event, condition, action, or by mutual agreement. Termination is the factual situation where the permit no longer exists and the permitted activity is no longer authorized. The issuing officer shall document the termination of a permit by notifying the permittee of the termination in writing. The decision to terminate is subject to appeal under 36 CFR 211.18. 46.22a - Replacement With Easement. Before granting replacement easements, obtain written consent to terminate the permit from the permittee. The consent to termination may be incorporated in the application for the easement. Roads under permit may be incorporated in a local public road system. Termination of the permit must coincide with the granting of the Forest Road and Trail Act easement to the public road agency. If the permittee does not agree to termination, forward the case to the Regional Forester with a recommendation to revoke on the basis of a higher use of the right-of-way. 46.22b - Transfer of Permit. If a permittee sells or otherwise conveys the title to the property served by the road constructed under the authority of a special-use permit, issue a replacement permit to the new owner. The replacement permit shall include the same clauses, conditions, and expiration date as the original permit. The new owner must make any disclosures required by FLPMA and meet any other requirements of law needed to be eligible to hold a special-use authorization. 46.22c - Land Exchange. (FSM 5430.3). If the permittee is not the proponent in the exchange or does not consent to termination of the permit, the usual solution is for the exchange proponent to execute an easement for the road that is placed in escrow, pending completion of the exchange and issuance of a patent for the selected land. See FSH 5409.13, chapter 30, for additional information on handling permits. 46.22d - Nonpayment of Fees. When payment is not received by the due date specified in the permit, advise the holder in writing that the permit has terminated, but will be reinstated upon receipt of payment, interest, processing and administrative costs, and penalty. Also, advise the holder that unless fees and charges are paid within a specific period, the private road rights-of-way must be restored to as near the natural condition as reasonably practicable. Give a time table for the start and completion of the restoration. 46.22e - Abandonment of Use. Before termination of a special-use road permit, the permittee must put the road in the condition required by the permit, unless otherwise agreed to by the Forest Service. Ordinarily, the Forest Service does not terminate a road permit for lack of use unless the permittee has indicated in writing that the permit is no longer desired. However, in the case of permits for low-standard or temporary roads, it may sometimes be very difficult to obtain anything in writing from the permittee. In such event, revoke permits without the permittee's consent. Notify the permittee that removal of the improvements and restoration of the area is required by both the permit and regulations. If the permittee fails to comply within a reasonable time, perform the required work and send a bill to the permittee for the costs incurred by the Government. Coordinate the preparation of the bill for collection and the follow-up for nonpayment with the fiscal staff. 46.23 - Revocation. Revocation is a unilateral cancellation of the rights or privileges granted. It is a recalling or rescinding of an authorization. Only the Regional Forester may revoke a permit. It is generally exercised only to accommodate higher public uses and only when the consent of the holder cannot be secured for modification or termination of the authorization. 46.3 - Additional Users of Roads. 46.31 - Additional Non-Federal Users. Normally, if an additional private party or parties need to use, on a temporary basis, a road already constructed as a private road by a permittee, direct them to arrange with the permittee to use the road. The Forest Service looks to the permittee for enforcement of the terms of the permit. If the second party needs long-term use of the road or is unable to reach agreement with the permittee, the second party shall apply to the Forest Service for permission to use the road. Under the terms of the authorization the Forest Service may permit such use provided certain requirements are met. It is important to condition the additional use so that it does not interfere materially with the use by the first permittee. It is very seldom that material interference occurs in these cases. If it is determined that there may be interference, the applicant must improve the road to accommodate its use as a condition of permission to use the road. This is a Forest Service decision. The second requirement is a suitable arrangement for the bearing of proportionate maintenance costs either by written agreement with the special-use permittee or in accordance with arrangements imposed by the Forest Service. Maintenance arrangements between the applicant and the permittee are necessary and are the responsibility of the permittee, but the permittee must provide reasonable protection to adjoining National Forest land. The arrangement shall be in writing with a signed copy furnished to the Forest Service. If the subsequent applicant and the permittee are unable to agree on maintenance arrangements, the Forest Service reviews their points of difference and specifies an equitable solution. An applicant who is to use a private road under easement shall reimburse the easement holder for a proportionate share of the current replacement value of the road. If the parties cannot agree on the amount of reimbursement, the Forest Service helps them make the necessary determination. 46.32 - Additional Federal Users. The United States has the right to make such use of the road as is necessary to meet its needs, so long as its use does not interfere with the grantee's use. This use is available to other agencies as well as the Forest Service. If the Forest Service decides that it needs to make significant use of the road, add the road to the Forest Development Road System and replace the private road permit with an appropriate permit or easement to use the system road. Such a replacement right-of-way may have the fee waived in full or in part if it meets the conditions in sec. 45.3.