43 U.S.C. § 1761 — Grant, issue, or renewal of rights-of-way

Page 571 TITLE 43—PUBLIC LANDS § 1761 1 So in original. Probably should be part ‘‘I’’. 2 So in original. The period preceding the semicolon probably should not appear. 3 So in original. Probably should be ‘‘right-of-way’’. Subsec. (e). Pub. L. 95–514, § 8(b), substituted intro- ductory word ‘‘In’’ for ‘‘Prior to October 1, 1988, or thereafter, in’’. Statutory Notes and Related Subsidiaries GRAZING PERMIT RENEWALS Pub. L. 108–108, title III, § 325, Nov. 10, 2003, 117 Stat. 1308, provided in part: ‘‘That beginning in November 2004, and every year thereafter, the Secretaries of the Interior and Agriculture shall report to Congress the extent to which they are completing analysis required under applicable laws prior to the expiration of grazing permits, and beginning in May 2004, and every two years thereafter, the Secretaries shall provide Congress recommendations for legislative provisions necessary to ensure all permit renewals are completed in a timely manner. The legislative recommendations provided shall be consistent with the funding levels requested in the Secretaries’ budget proposals’’. APPEALS OF REDUCTIONS IN GRAZING ALLOTMENTS ON PUBLIC RANGELAND; TIME; EFFECTIVE DATE OF RE- DUCTIONS; SUSPENSION PENDING FINAL ACTION ON AP- PEAL Provisions requiring appeals of reductions in grazing allotments on public rangelands to be taken within a certain time period; providing that reductions of up to 10 per centum in grazing allotments are effective when so designated by the Secretary; suspending proposed re- ductions in excess of 10 per centum pending final action on appeals; and requiring final action on appeals to be completed within 2 years of filing of the appeal were contained in the following appropriation acts: Pub. L. 102–381, title I, Oct. 5, 1992, 106 Stat. 1378. Pub. L. 102–154, title I, Nov. 13, 1991, 105 Stat. 993. Pub. L. 101–512, title I, Nov. 5, 1990, 104 Stat. 1917. Pub. L. 101–121, title I, Oct. 23, 1989, 103 Stat. 704. Pub. L. 100–446, title I, Sept. 27, 1988, 102 Stat. 1776. Pub. L. 100–202, § 101(g) [title I], Dec. 22, 1987, 101 Stat. 1329–213, 1329–216. Pub. L. 99–500, § 101(h) [title I], Oct. 18, 1986, 100 Stat. 1783–242, 1783–245, and Pub. L. 99–591, § 101(h) [title I], Oct. 30, 1986, 100 Stat. 3341–242, 3341–245. Pub. L. 99–190, § 101(d) [title I], Dec. 19, 1985, 99 Stat. 1224, 1226. Pub. L. 98–473, title I, § 101(c) [title I], Oct. 12, 1984, 98 Stat. 1837, 1840. Pub. L. 98–146, title I, Nov. 4, 1983, 97 Stat. 921. Pub. L. 97–394, title I, Dec. 30, 1982, 96 Stat. 1968. Pub. L. 97–100, title I, Dec. 23, 1981, 95 Stat. 1393. Pub. L. 96–514, title I, Dec. 12, 1980, 94 Stat. 2959. Pub. L. 96–126, title I, Nov. 27, 1979, 93 Stat. 956. § 1753. Omitted Editorial Notes CODIFICATION Section, Pub. L. 94–579, title IV, § 403, Oct. 21, 1976, 90 Stat. 2775; Pub. L. 95–514, § 10, Oct. 25, 1978, 92 Stat. 1808, provided for the establishment and maintenance of grazing advisory boards and expired on Dec. 31, 1985. SUBCHAPTER V—RIGHTS-OF-WAY § 1761. Grant, issue, or renewal of rights-of-way (a) Authorized purposes The Secretary, with respect to the public lands (including public lands, as defined in sec- tion 1702(e) of this title, which are reserved from entry pursuant to section 24 of the Federal Power Act (16 U.S.C. 818)) and, the Secretary of Agriculture, with respect to lands within the National Forest System (except in each case land designated as wilderness), are authorized to grant, issue, or renew rights-of-way over, upon, under, or through such lands for— (1) reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, tunnels, and other facilities and systems for the impoundment, storage, transportation, or distribution of water; (2) pipelines and other systems for the trans- portation or distribution of liquids and gases, other than water and other than oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom, and for storage and terminal facilities in connection therewith; (3) pipelines, slurry and emulsion systems, and conveyor belts for transportation and dis- tribution of solid materials, and facilities for the storage of such materials in connection therewith; (4) systems for generation, transmission, and distribution of electric energy, except that the applicant shall also comply with all applicable requirements of the Federal Energy Regu- latory Commission under the Federal Power Act, including part 1 1 thereof (41 Stat. 1063, 16 U.S.C. 791a–825r).; 2 (5) systems for transmission or reception of radio, television, telephone, telegraph, and other electronic signals, and other means of communication; (6) roads, trails, highways, railroads, canals, tunnels, tramways, airways, livestock drive- ways, or other means of transportation except where such facilities are constructed and maintained in connection with commercial recreation facilities on lands in the National Forest System; or (7) such other necessary transportation or other systems or facilities which are in the public interest and which require rights-of- way over, upon, under, or through such lands. (b) Procedures applicable; administration (1) The Secretary concerned shall require, prior to granting, issuing, or renewing a right- of-way, that the applicant submit and disclose those plans, contracts, agreements, or other in- formation reasonably related to the use, or in- tended use, of the right-of-way, including its ef- fect on competition, which he deems necessary to a determination, in accordance with the pro- visions of this Act, as to whether a right-of-way shall be granted, issued, or renewed and the terms and conditions which should be included in the right-of-way. (2) If the applicant is a partnership, corpora- tion, association, or other business entity, the Secretary concerned, prior to granting a right- to-way 3 pursuant to this subchapter, shall re- quire the applicant to disclose the identity of the participants in the entity, when he deems it necessary to a determination, in accordance with the provisions of this subchapter, as to whether a right-of-way shall be granted, issued, or renewed and the terms and conditions which should be included in the right-of-way. Such dis- closures shall include, where applicable: (A) the Page 572 TITLE 43—PUBLIC LANDS § 1761 name and address of each partner; (B) the name and address of each shareholder owning 3 per centum or more of the shares, together with the number and percentage of any class of voting shares of the entity which such shareholder is authorized to vote; and (C) the name and address of each affiliate of the entity together with, in the case of an affiliate controlled by the entity, the number of shares and the percentage of any class of voting stock of that affiliate owned, di- rectly or indirectly, by that entity, and, in the case of an affiliate which controls that entity, the number of shares and the percentage of any class of voting stock of that entity owned, di- rectly or indirectly, by the affiliate. (3) The Secretary of Agriculture shall have the authority to administer all rights-of-way grant- ed or issued under authority of previous Acts with respect to lands under the jurisdiction of the Secretary of Agriculture, including rights- of-way granted or issued pursuant to authority given to the Secretary of the Interior by such previous Acts. (c) Permanent easement for water systems; issuance, preconditions, etc. (1) Upon receipt of a written application pur- suant to paragraph (2) of this subsection from an applicant meeting the requirements of this sub- section, the Secretary of Agriculture shall issue a permanent easement, without a requirement for reimbursement, for a water system as de- scribed in subsection (a)(1) of this section, tra- versing Federal lands within the National For- est System (‘‘National Forest Lands’’), con- structed and in operation or placed into oper- ation prior to October 21, 1976, if— (A) the traversed National Forest lands are in a State where the appropriation doctrine governs the ownership of water rights; (B) at the time of submission of the applica- tion the water system is used solely for agri- cultural irrigation or livestock watering pur- poses; (C) the use served by the water system is not located solely on Federal lands; (D) the originally constructed facilities com- prising such system have been in substantially continuous operation without abandonment; (E) the applicant has a valid existing right, established under applicable State law, for water to be conveyed by the water system; (F) a recordable survey and other informa- tion concerning the location and characteris- tics of the system as necessary for proper management of National Forest lands is pro- vided to the Secretary of Agriculture by the applicant for the easement; and (G) the applicant submits such application on or before December 31, 1996. (2)(A) Nothing in this subsection shall be con- strued as affecting any grants made by any pre- vious Act. To the extent any such previous grant of right-of-way is a valid existing right, it shall remain in full force and effect unless an owner thereof notifies the Secretary of Agri- culture that such owner elects to have a water system on such right-of-way governed by the provisions of this subsection and submits a writ- ten application for issuance of an easement pur- suant to this subsection, in which case upon the issuance of an easement pursuant to this sub- section such previous grant shall be deemed to have been relinquished and shall terminate. (B) Easements issued under the authority of this subsection shall be fully transferable with all existing conditions and without the imposi- tion of fees or new conditions or stipulations at the time of transfer. The holder shall notify the Secretary of Agriculture within sixty days of any address change of the holder or change in ownership of the facilities. (C) Easements issued under the authority of this subsection shall include all changes or modifications to the original facilities in exist- ence as of October 21, 1976, the date of enact- ment of this Act. (D) Any future extension or enlargement of fa- cilities after October 21, 1976, shall require the issuance of a separate authorization, not author- ized under this subsection. (3)(A) Except as otherwise provided in this subsection, the Secretary of Agriculture may terminate or suspend an easement issued pursu- ant to this subsection in accordance with the procedural and other provisions of section 1766 of this title. An easement issued pursuant to this subsection shall terminate if the water sys- tem for which such easement was issued is used for any purpose other than agricultural irriga- tion or livestock watering use. For purposes of subparagraph (D) of paragraph (1) of this sub- section, non-use of a water system for agricul- tural irrigation or livestock watering purposes for any continuous five-year period shall con- stitute a rebuttable presumption of abandon- ment of the facilities comprising such system. (B) Nothing in this subsection shall be deemed to be an assertion by the United States of any right or claim with regard to the reservation, acquisition, or use of water. Nothing in this sub- section shall be deemed to confer on the Sec- retary of Agriculture any power or authority to regulate or control in any manner the appro- priation, diversion, or use of water for any pur- pose (nor to diminish any such power or author- ity of such Secretary under applicable law) or to require the conveyance or transfer to the United States of any right or claim to the appropria- tion, diversion, or use of water. (C) Except as otherwise provided in this sub- section, all rights-of-way issued pursuant to this subsection are subject to all conditions and re- quirements of this Act. (D) In the event a right-of-way issued pursuant to this subsection is allowed to deteriorate to the point of threatening persons or property and the holder of the right-of-way, after consulta- tion with the Secretary of Agriculture, refuses to perform the repair and maintenance nec- essary to remove the threat to persons or prop- erty, the Secretary shall have the right to un- dertake such repair and maintenance on the right-of-way and to assess the holder for the costs of such repair and maintenance, regardless of whether the Secretary had required the hold- er to furnish a bond or other security pursuant to subsection (i) of this section. (d) Rights-of-way on certain Federal lands With respect to any project or portion thereof that was licensed pursuant to, or granted an ex- Page 573 TITLE 43—PUBLIC LANDS § 1761a emption from, part I of the Federal Power Act [16 U.S.C. 791a et seq.] which is located on lands subject to a reservation under section 24 of the Federal Power Act [16 U.S.C. 818] and which did not receive a permit, right-of-way or other ap- proval under this section prior to October 24, 1992, no such permit, right-of-way, or other ap- proval shall be required for continued operation, including continued operation pursuant to sec- tion 15 of the Federal Power Act [16 U.S.C. 808], of such project unless the Commission deter- mines that such project involves the use of any additional public lands or National Forest lands not subject to such reservation. (Pub. L. 94–579, title V, § 501, Oct. 21, 1976, 90 Stat. 2776; Pub. L. 99–545, § 1(b), (c), Oct. 27, 1986, 100 Stat. 3047, 3048; Pub. L. 102–486, title XXIV, § 2401, Oct. 24, 1992, 106 Stat. 3096.) Editorial Notes REFERENCES IN TEXT The Federal Power Act, referred to in subsecs. (a)(4) and (d), is act June 20, 1920, ch. 285, 41 Stat. 1063, which is classified generally to chapter 12 (§ 791a et seq.) of Title 16, Conservation. Part I of the Act is classified generally to subchapter I (§ 791a et seq.) of chapter 12 of Title 16. For complete classification of this Act to the Code, see section 791a of Title 16 and Tables. This Act, referred to in subsecs. (b)(1) and (c)(3)(C), is Pub. L. 94–579, Oct. 21, 1976, 90 Stat. 2743, known as the Federal Land Policy and Management Act of 1976. For complete classification of this Act to the Code, see Ta- bles. AMENDMENTS 1992—Subsec. (a). Pub. L. 102–486, § 2401(1), inserted ‘‘(including public lands, as defined in section 1702(e) of this title, which are reserved from entry pursuant to section 24 of the Federal Power Act (16 U.S.C. 818))’’. Subsec. (a)(4). Pub. L. 102–486, § 2401(2), substituted ‘‘Federal Energy Regulatory Commission under the Federal Power Act, including part 1 thereof (41 Stat. 1063, 16 U.S.C. 791a–825r).’’ for ‘‘Federal Power Commis- sion under the Federal Power Act of 1935 (49 Stat. 847; 16 U.S.C. 791)’’. The substitution was made to reflect the probable intent of Congress, in the absence of clos- ing quotations designating the provisions to be struck out. Subsec. (d). Pub. L. 102–486, § 2401(3), added subsec. (d). 1986—Subsec. (b)(3). Pub. L. 99–545, § 1(c), added par. (3). Subsec. (c). Pub. L. 99–545, § 1(b), added subsec. (c). Executive Documents TRANSFER OF FUNCTIONS Enforcement functions of Secretary or other official in Department of Agriculture, insofar as they involve lands and programs under jurisdiction of that Depart- ment, related to compliance with land use permits for other associated land uses issued under sections 1761, and 1763 to 1771 of this title, and such functions of Sec- retary or other official in Department of the Interior related to compliance with land use permits for tem- porary use of public lands and other associated land uses, issued under sections 1732, 1761, and 1763 to 1771 of this title, with respect to pre-construction, construc- tion, and initial operation of transportation systems for Canadian and Alaskan natural gas transferred to Federal Inspector, Office of Federal Inspector for Alas- ka Natural Gas Transportation System, until first an- niversary of date of initial operation of Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, §§ 102(e), (f), 203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, 1376, effective July 1, 1979, set out in the Appendix to Title 5, Government Organization and Employees. Of- fice of Federal Inspector for the Alaska Natural Gas Transportation System abolished and functions and au- thority vested in Inspector transferred to Secretary of Energy by section 3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal Inspector note under section 719e of Title 15, Commerce and Trade. Func- tions and authority vested in Secretary of Energy sub- sequently transferred to Federal Coordinator for Alas- ka Natural Gas Transportation Projects by section 720d(f) of Title 15. § 1761a. Streamlining the Forest Service process for consideration of communications facility location applications (a) Definitions In this section: (1) Communications facility The term ‘‘communications facility’’ in- cludes— (A) any infrastructure, including any transmitting device, tower, or support struc- ture, and any equipment, switches, wiring, cabling, power sources, shelters, or cabinets, associated with the licensed or permitted unlicensed wireless or wireline transmission of writings, signs, signals, data, images, pic- tures, and sounds of all kinds; and (B) any antenna or apparatus that— (i) is designed for the purpose of emit- ting radio frequency; (ii) is designed to be operated, or is oper- ating, from a fixed location pursuant to authorization by the Federal Communica- tions Commission or is using duly author- ized devices that do not require individual licenses; and (iii) is added to a tower, building, or other structure. (2) Communications site The term ‘‘communications site’’ means an area of covered land designated for commu- nications uses. (3) Communications use The term ‘‘communications use’’ means the placement and operation of a communications facility. (4) Communications use authorization The term ‘‘communications use authoriza- tion’’ means an easement, right-of-way, lease, license, or other authorization to locate or modify a communications facility on covered land by the Forest Service for the primary purpose of authorizing the occupancy and use of the covered land for communications use. (5) Covered land The term ‘‘covered land’’ means National Forest System land. (6) Forest Service The term ‘‘Forest Service’’ means the United States Forest Service of the Depart- ment of Agriculture. (7) Organizational unit The term ‘‘organizational unit’’ means, within the Forest Service— (A) a regional office; (B) the headquarters;