5409.17,65-66 Page 1 of 12 FOREST SERVICE HANDBOOK WASHINGTON FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK Amendment No. 5409.17-94-6 Effective September 12, 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 5409.17-94-5 to 5409.17,63-64. This amendment supersedes Amendment 5409.17-91-1 to FSH 5409.17,65-66. Superseded New Document Name (Number of Pages) 5409.17,65-66 13 12 Digest: 65 - Changes the caption from "Valuing Reciprocal Noncost-shared Right-of-Way Grants" to "Managing the Cost Share Road System" and provides new direction for managing the cost share program. 66 - Clarifies direction and adds instructions on changing road standards, road storage, road abandonment, settlement of obligations, and conflict resolution. 66.11 - Removes former exhibit 01, which displayed the calculation of shares for an existing road not being reconstructed. This information is now included in 64.4. 66.12 - Removes former exhibit 01, which displayed the calculation of shares for an existing road to be reconstructed. This information is now included in 64.4. JACK WARD THOMAS Chief FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK WO AMENDMENT 5409.17-94-6 EFFECTIVE 9/12/94 65 - MANAGING THE COST SHARE ROAD SYSTEM. The Forest Service has the authority and responsibility to manage the cost share road system but it is not, nor does it function as, a public road agency. This means that maintenance and access expenditures by the agency are made only for National Forest purposes as set out in FSM 5460 and FSM 7730. Public use of a National Forest System road is discretionary. As the road manager, the Forest Service establishes traffic regulations necessary to ensure the safe and efficient use of the cost share roads by all users. The agency must address safety items but may elect to close the road to all users instead of expending funds on remedial actions, for example, by closing an unsafe bridge to all traffic until the bridge is repaired or replaced. See section 65.04 for responsibilities of Forest Service officials. Operate and maintain the cost share road system in accordance with the provisions of the Road Right-of-Way Construction and Use Agreement, easements, road maintenance agreement, and annual maintenance plans. Maintain the road system by a joint, coordinated effort between the Forest Service and cooperators. 65.04 - Responsibility. (FSM 5467.04) The Regional Forester and Forest Supervisor are responsible for: 1. Managing cost share road maintenance in accordance with the terms, provisions, and concepts contained in the Cooperative Road Maintenance Agreement (FSH 1509.11, sec. 32.1), Road Right- of-Way Construction and Use Agreement, and easements. 2. Developing with the cooperator an annual maintenance plan encompassing all cost share roads that enacts the provisions of the Cooperative Road Maintenance Agreement. 3. Maintaining a fiscal accounting of cost share road maintenance and excess cost balances. 4. Inspecting and documenting maintenance performance. 5. Incorporating the reconstruction of roads in a supplement to the Road Right-of-Way Construction and Use Agreement. 6. Managing third party access and maintenance through permits or easements. 7. Training the operation and maintenance personnel in the requirements and principles of the cost share road program. To the extent possible, training should be conducted jointly with the cooperator. 66 - SPECIAL PROBLEMS. 66.1 - Cost Sharing for Existing Road. When preparing a supplement for an existing road owned by one party to an agreement, treat the value contributed by the road as a cost the parties share. Determine the amount of credit for the existing road based on ownership rights and its contributed value to the standard of road that meets the needs of the parties. See section 66.13 for valuing roads on acquired easements. 66.11 - Existing Road Not Being Reconstructed. If the present road is adequate to meet the foreseeable needs of the parties to the agreement without reconstruction, the cost to be shared is the replacement cost, less depreciation of the road. The replacement cost, less depreciation of the road, is the present day cost of replacing the road with one of equivalent utility at current prices less a deduction for depreciation. The following costs may be included, as appropriate, in the replacement cost: 1. Cost of clearing, excavating, grading, draining, stabilizing slopes, and surfacing. In most cases, determine such costs by multiplying remaining quantity estimates by appropriate present-day unit costs less the cost of any deferred maintenance. 2. Depreciated cost of structures that meet the needs of all parties, such as bridges and culverts having at least 10 years remaining useful life. Replace or reconstruct inadequate structures or structures with less than 10 years useful life remaining in the initial supplement unless all parties agree to replacement as stage construction in accordance with section 66.3. 3. Cost allowance for preconstruction and construction engineering if not included in paragraphs 1 and 2, unless treated differently in previous supplements in the agreement. 4. Value of land occupied by the easement, unless treated differently in previous supplements in the agreement. After determining the appropriate replacement cost less depreciation or contribution value, calculate the shares as outlined in section 64.4. 66.12 - Existing Road To Be Reconstructed. When an existing road is inadequate to meet the foreseeable joint needs of the cooperating parties, the supplement that adds it to the joint road system shall provide for its reconstruction to the minimum standard. The only alternative to immediate reconstruction is stage construction (sec. 66.3). The contribution of the existing road is the difference between the value of a new road constructed to the agreed standard and the cost of reconstructing the existing road to the agreed standard. Determine the cost of constructing a road to the agreed standard using current costs as if it were new construction, but adjust the cost for physical depreciation of the structures or other components that are not new. Subtract from this cost the costs of reconstruction needed to bring the existing road up to the agreed standard. The remainder is the contribution of the existing road. After determining the appropriate contribution value and reconstruction cost, calculate the shares as outlined in section 64.4. 66.13 - Roads and Easements Across Third-Party Lands. Where either party acquires a right-of-way across a third-party property that provides all of the rights needed to make the road to be constructed a usable part of the system, and the second- party has no outstanding easement rights, include reasonable acquisition costs, as well as road construction costs, in the costs to be shared. Where the private cooperator has an outstanding easement that is permanent and adequate for the cooperator's needs, but does not convey sufficient rights for an exchange of easements under the cost share agreement, the Forest Service should acquire the additional rights needed to make the road a usable part of the system. If there is no existing road, share the costs of constructing the road but do not include the easement acquisition costs of either party in the costs to be shared. If there is an existing road, the parties share the cost of reconstruction but do not share easement acquisition costs or the cost of the existing road. Both parties are considered to have borne their proportionate share of the easement and construction costs for the existing road. Share the road construction cost or contribution value, as appropriate, as if the road was located on land owned by the easement-holding party, where either party has a permanent easement which conveys: 1. All of the rights needed to grant easements and to control the use by others. 2. The authority to permit use by the public. 66.2 - Collection Right Against Outside Timber. Whenever possible, the Government and cooperator shall agree to cost sharing of any road at the outset and shall base share determinations on the best possible estimates at the time the supplement is written. Usually, the resources within the Agreement Area provide the best basis for an estimate of use that is likely to develop on the roads. If it is likely, however, that timber from outside the agreement area will be hauled over the road, include an estimate of the acres of suitable land in arriving at the proportionate shares of the parties. When the Government and cooperator cannot reach agreement on cost sharing because they disagree on the outside timber that may be hauled over the road, a collection right may be used to resolve the problem if the cooperator constructs all or part of the road, or deposits funds in a cooperative account equal to the cooperator's proportionate share. The collection right allows the cooperator to collect a specified total amount at a specified rate from all haulers of timber from outside the agreement area. When cooperators bear their shares by offsetting construction in another road, do not grant a collection right for outside timber. When using a collection right against outside timber, limit the collection right against Government timber to the agreement area by including the optional language "within the agreement area shown on exhibit " in the second line of a standard easement provision C. Add the following clause to both the cooperator and Forest Service easements when the parties agree to a collection right against outside timber in lieu of the Government's bearing a larger share of the cost at the outset: "The parties recognize that certain timber or other materials may be transported over the road from lands not included in the agreement area as shown on exhibit . Grant shall therefore have the right for 25 (twenty-five) years from the date of this easement to charge and to enforce collections from persons removing timber or other materials from such lands over the road at the rate of $ per MBF for timber (or $ per ton for other materials), until the amounts paid by such means or by credits received from Grant shall total $ . Timber or other materials hauled by Grant from such lands shall be regarded as hauled by someone else. The charges authorized by this paragraph shall be in addition to the total amount authorized for recovery by any other collection right conferred by the terms of this easement." Limit the use of this collection right to those cases where the Forest Service and the cooperator are very far apart in their estimates of the suitable land that is likely to develop from outside the agreement area. Determine the total amount of the cooperator collection right and the rate per thousand board feet (MBF) using the case example in exhibit 01. 66.2 - Exhibit 01 CASE EXAMPLE Situation - The road costs $30,000 to develop a suitable land area containing 350 acres of Government suitable land and 150 acres of cooperator suitable land. There is an additional 100 acres of suitable land outside the agreement area that might result in use of the road. Problem - Government does not think that the suitable land outside the agreement area will result in use of the road. Cooperator thinks it will and wants a collection right. Solution - Have the cooperator construct at least its proportionate share of the road based on the suitable lands within the agreement area. In this case, the cooperator must construct at least $9,000 worth of the road ($30,000 x 150/500 = $9,000). If the cooperator pays for or constructs at least $9,000 of road construction costs, a collection right may be included for the cooperator to charge haulers of timber from the suitable lands outside the agreement area. With the collection right, the cooperator could charge haulers of such outside timber at an amount and rate as shown in the following calculation. Calculation 1. Total cost of road = $30,000 2. Total suitable land inside = 350 acres + 150 acres = 500 acres Percentage of cooperator share inside = 150 acres = 30% 500 acres 3. Total suitable land inside and outside = 500 + 100 = 600 acres 4. Per acre collection right $30,000 x 30% = $15 per acre 600 5. Total allowable cooperator collection right = 100 x $15 = $1,500 6. Rate of collection per MBF = $1,500 = $0.25/MBF 6,000 MBF (volume estimated) Based on the above calculations, the cooperator may implement a collection for the outside suitable lands at a rate for the timber hauled of $0.25 per MBF until it has collected a total of $1,500 or until 25 years have elapsed from the date of the grant. 66.3 - Stage Construction or Reconstruction. Stage construction or reconstruction may be used when both parties agree to its use. It has been used when an existing road was brought into an agreement that was adequate for one party's immediate needs but did not meet the foreseeable needs of both parties and the first party desired to use the road as it existed because of time or money constraints. Stage construction or reconstruction is appropriate in the case of temporary bridges or other structures that still have useful life but need replacement in order to meet the foreseeable needs of both parties. It is also appropriate where existing roads or structures need restoration or partial restoration in order to meet current needs for access or environmental protection, and both parties agree to plan now for additional reconstruction at a later date to meet the parties' long-term needs. When parties agree to stage construction or reconstruction, include the following documentation in the supplement: 1. Items on which the parties agree to defer construction or reconstruction. When the parties agree that the items will be deferred longer than 5 years, describe the anticipated standard of the facility or work item deferred and the need for a lower standard over the period of time until the road is constructed to the higher standard. 2. Construction specifications and standards for the current construction items. 3. Construction program with identification of the party responsible for completion of each item and date that each item in the stage construction must be completed. 4. Agreement by the parties that they are to share costs for all items to be completed within 5 years in the proportion calculated for the original supplement. When the work is to be delayed for a period longer than 5 years, include the agreement by the parties that they will share the cost for the deferred work on the basis stated in section 64.4. The stage construction or reconstruction shall plan for construction of deferred items to begin within 5 years and to be completed promptly, unless otherwise agreed. 66.4 - Cost Share Actions and Endangered Species Act. Each proposed action to be taken under the cost share program must comply with the Endangered Species Act (16 U.S.C. 1536(a)(2). To the extent compatible with other policies, the Forest Service will facilitate biological evaluations and applicable consultation processes with the agencies having designated authority under this act. Ensure that the processes of environmental analysis and associated biological evaluation, consultation with appropriate agencies, and inclusion of biological opinions, are performed prior to granting easements or permits. Further direction is in FSH 1909.15. Existing easement rights require compliance with all applicable State and Federal laws, Executive orders, and Federal regulations. In the event any other agency administering the requirements of the Endangered Species Act alters or changes any legal rights granted, that agency is responsible for acquiring the additional rights through its own processes and procedures. 66.5 - Changing Road Standards. Occasionally there is a need to change the road standard(s) to something less than documented in the plans and specifications of the last constructed or reconstructed standard. The changes might include a reduction in road width, a reduction in surfacing depth, and so forth. When a change in road standards is mutually agreeable, take the following steps to document the change and ensure to the parties in an Agreement that the financial interests of the parties are properly managed: 1. Determine the new road standard(s) and document the change in the form of revised typical sections, line diagrams, or specifications as appropriate. Include documentation adequate to identify the new standard; as a minimum, use a typical section and description by road number(s) and mileposts. 2. Reconcile all accounting and records for past supplements (capital investment) and maintenance for the affected roads. The accounting must be clearly documented and agreed upon by all parties. Maintain the required separation between maintenance and capital investment by keeping work items identified as recurrent or deferred maintenance in the maintenance accounting record and documenting capital investment expenditures to change the current road standard in a supplement. 3. Prepare and process a cost share fact sheet and supplement documenting the revised road standard(s) to be used in the future management of the road(s). Capital investments needed to change from the current road standard to the new road standard are treated as construction/reconstruction using the normal cost sharing process. This process allows full use of the financial options available in the Road Right-of-Way Construction and Use Agreement. 4. Update both road maintenance accounting records and excess cost balance accounting records as necessary to reflect the agreement reached. The supplement may be used to document the results of the reconciliation if the parties so desire. Maintenance funds may not be used to offset construction or reconstruction excess costs. 5. Proceed with the joint use, management, and administration of the roads under the new road standard(s). A typical change in road standard could be a reduction in the depth of rock surfacing. For example, a road was constructed with a surfacing of 6 inches of aggregate surfacing. Party "A" has hauled a large volume and the deferred maintenance records show that Party "A" has a responsibility to replace 3 inches of aggregate surfacing on the road. The parties agree that the road standard can be reduced from 6 inches to 3 inches of aggregate surfacing and meet the future needs of the parties. Update all maintenance accounts to the road standard as documented in the last supplement. In the maintenance account assign the responsibility for the 3 inches of aggregate surfacing to Party "A." Prepare a fact sheet and supplement to document the new road standard. In this example, there are no capital investment costs to achieve the new road standard. Consequently, the supplement would have no construction/reconstruction funds involved. If the parties wish, the balances of the maintenance work (the 3 inches of aggregate owed) could be documented in the supplement. Note that the deferred maintenance responsibility of Party "A" may be balanced against maintenance work on another road included in the maintenance agreement. 66.6 - Road Storage and Road Abandonment. Road storage or road abandonment may require one or a combination of the following measures: 1. Blocking and draining the roadway. Waterways are to be in a self-maintaining condition and erosion must be effectively prevented. 2. Removing culverts and bridges and reestablishing the natural drainage configuration. 3. Returning the roadway to resource production through natural or artificial revegetation (grass, browse, or trees). 66.61 - Road Storage. When the parties determine that a road will be used in the distant future, the road may be placed in a storage condition. If the standard of the road is changed in the process of placing the road in storage, share the construction/reconstruction cost to achieve the new standard using the normal cost sharing process and document in a supplement (sec. 66.5). When the road standard is not changed, treat the activity as maintenance (traffic or non-traffic generated) and account for it in the annual maintenance plan. Maintain a record of deferred maintenance on the road. 66.62 - Road Abandonment. One or both parties may elect to abandon their interest in a road or road segment. 1. Take the following steps when both parties agree to abandon the road or road segment: a. Determine the work needed to: (1) Establish the roadway in a condition that is self- maintaining and erosion safe and has a vegetative cover, and (2) Comply with applicable State Best Management and Forest Practices Acts. b. Determine the costs of the work and the performing party. Allocate shares to the parties on the basis of non-traffic generated maintenance (capital investment share). Where the capital investment share is not documented, use the current process for calculating shares with the tributary area being that area accessed by the facility. c. Reconcile all accounts for the road to be abandoned. Make a separate accounting for construction/reconstruction and maintenance. Deferred Maintenance items, such as brushing, that will not be performed may be offsetting in the accounting. d. Prepare a supplement that documents the cost, payment, and agreement to terminate the easement(s) prior to any work on the ground. The means of settlement of the maintenance accounts may be documented in the supplement. 2. Take the following steps when one party elects to abandon an road or road segment undamaged by natural causes but the other party needs the road at the constructed standard: a. Determine any work needed to correct any elements of the roadway to comply with applicable State Best Management and Forest Practices Acts. b. Determine the costs of the work and the performing party. Allocate shares to the parties on the basis of non-traffic generated maintenance (capital investment share) for the road or road segment. Where the capital investment share is not documented, use the current process for calculating shares with the tributary area being that area accessed by the facility. c. Reconcile all accounts for the road to be abandoned. Make a separate accounting for construction/reconstruction and maintenance. Deferred maintenance items may be offset in the maintenance accounting. d. Prepare a supplement that documents the cost, payment, and agreement to terminate the easement(s) prior to any work on the ground. The means of settlement of the maintenance accounts may be documented in the supplement. 3. Take the following steps when one party elects to abandon a road or road segment damaged by natural causes but the other party needs the road: a. Determine the work needed to: (1) Comply with applicable State Best Management and Forest Practices Acts, and (2) Correct, stabilize, and prevent future resource damage. This may be a separate project or an integral part of the restoration of the facility by the party needing access. b. Determine the costs of the work in paragraph 1 and the performing party. Allocate shares to the parties on the basis of non-traffic generated maintenance (capital investment share) for the road or road segment. Where the capital investment share is not documented, use the current process for calculating shares with the tributary area being that area accessed by the facility. c. Reconcile all accounts for the road to be abandoned. Make a separate accounting for construction/reconstruction and maintenance. Deferred maintenance items may be offset in the maintenance accounting. d. Prepare a supplement that documents the cost, payment, and agreement to terminate the easement(s) prior to any work on the ground. The means of settlement of the maintenance accounts may be documented in the supplement. 66.63 - Easement Termination. Either party may elect to terminate its acquired easement. See section 66.62 for the process to be followed. 66.7 - Terminated Road Right-of-Way Construction and Use Agreement. Section 17 of the Agreement provides that either party may terminate the agreement with a 90-day written notice. Termination of an agreement does not affect any right-of-way document or obligation incurred in a supplement or road maintenance agreement. 66.71 - Settlement of Obligations. The obligations made under an agreement remain in effect until satisfied in full under the terms of the supplement or other contractual arrangement. Update the annual accounting as provided in Section 11 of the Agreement upon notice of termination and determine the outstanding obligations. All settlement arrangements must comply with the statute of limitations (28 U.S.C. 2401(a); 28 U.S.C. 2415-2416). 66.8 - Conflict Resolution. The objective of the cost share program is to reach mutually agreeable solutions providing for cooperative development, use, and maintenance of a road system serving the needs of both parties, with the costs thereof shared equitably. The agreement provides a framework for negotiation but conflicts may arise between the parties. The parties should strive to resolve conflict in a timely manner at the local level using available management tools, including assigned flexibility and authority to make on-the-ground decisions. If for any reason the conflict is not resolved at the local level in a timely manner, formally or informally elevate those issues not resolved to the next highest management level of both parties for resolution. Referring the conflict to the next highest management level for resolution is an expected action on occasion and is considered a positive effort to reach eventual solution. Unilateral actions may include reconstruction, restoration, maintenance, or abandonment of a road or termination of an Agreement. Neither party may act to diminish the other party's interest in a cost share road by unilateral action. Threats of unilateral action or termination of an Agreement rarely resolve conflict in a mutually satisfactory manner. In those situations where resolution of the conflict does require unilateral action by either party, the Regional Forester shall review the circumstances of the situation. The Regional Forester may approve or disapprove a Forest Service unilateral proposal after review of the economic analysis, the history of negotiations, other special circumstances affecting the action, and the need to continue or terminate the agreement. Send a copy of the decision on unilateral actions to the Washington Office, Director of Lands.