United States Department of Agriculture
Forest Service - Southwestern Region
File Code: 2730
Route To:
517 Gold Avenue SW.
Albuquerque, NM 87102-0084
FAX: (505) 842-3800
V/TTY: (505) 842-3292
Date: 31 January 1997
Subject: R3 Road Easement Policy
To: Forest Supervisors
Enclosed is the Region's policy (7 pages) for Department of Transportation (DOT) and Forest Road and Trail Act (FRTA) road easements crossing NFS lands. This direction is in response to the State DOT and Counties expressing concern over differences in Forest Service administration of easements between Forests, and in some cases, between Districts on the same Forest.
Our initial intent was to also address RS-2477 Rights-of-Way (R/W). However, recent court decisions, pending legislation, and ongoing consultation between OGC and the WO are questioning how RS-2477 Rights-of-way have been handled. As a result, the RS-2477 R/W policy for R3 will be addressed as a separate issue. The 1997 Program of Work in RO lands includes developing and implementing Regional policy for determining RS-2477 status and the administration of those R/Ws recognized as outstandin rights. A draft of the Regional RS-2477 policy is scheduled to be completed by the fourth quarter of FY 1997. Currently, Forests should accept assertions made by Counties and States and submit them to RO Lands for review.
One of our goals in developing thispolicy was to delegate approval authority, where possible, to States and Counties for environmental and other areas on FRTA easements. Unfortunately, current laws and regulations do not allow us to do this. States and Counties may perform on-the-ground work, but the FS remains the Federal Land Manager responsible for approval authority for compliance with NEPA and all other laws and regulations.
We will continue to look for ways to streamline processes through Memorandums of Understanding and Programmatic Agreements (PA). Currently, a PA is being developed in Arizona to address how FHWA, the State, and various agencies will coordinate to reduce duplicated effort and efficiently meet legal requirements in the cultural resources area for DOT easements.
The primary focus of this direction is three-fold: consistency in FS administration, clarification in policy direction and interpretation, and identification of opportunities for work reduction. This policy is to be implemented immediately.
If you have questions or need further clarification, please contact Doug Salyer (L&M), Judy Propper (RN) or Bill Woodward (ENG).
/s/
CHARLES W. CARTWRIGHT, JR.
Regional Forester
Enclosure
cc:
Director, L&M
Director, RN
Director, ENG
Director, EMP
D.Salyer, L&M
J.Propper, RN
B.Woodward, ENG
H.Hollis, WL
R3 Easement Policy Swnmary for Public Roads
(01/23/1997)
Public Road: Any road under the jurisdiction of and maintained by a public road authority and open to public travel (23 USC 101).
Public Road Authority (PRA): State, County, Municipality or other local government with the authority to finance, build, operate or maintain highway facilities (23 USC 101)
Open to Public Travel: The road is available (except during scheduled periods, extreme weather or emergency conditions), passable by standard passenger cars and open to the general public for use without restriction other than size, weight or class of registration (23 CFR 660.103).
Rights-of-Way: Land authorized to be used or occupied for constructior, operation, maintenance and termination of a project or facility passing over, upon, under or through such land (36 CFR 251.52). (In the case of road easement, the phrase "passing over, upon, under or through" means overpass, crossing, underpass or tunnel.)
Easement: A special-use authorization for a right-of-way that conveys a conditioned interest (stipulation) in National Forest System (NFS) land (FSH 2709.12).
Highway Easement: Land area set aside for construction, operation, and maintenance (including future minor improvements) of a highway described by sidelines of variable width that are generally parallel to the road centerline, and include construction limits as well as undisturbed land.
Except for unusual circumstances, the sidelines of a variable width right-of-way should parallel the centerline and extend a minimum of 250 feet before changing width from centerline (23 CFR 645.207 & 750.103, FSM 2709.12, 21.3). The shaded area of Exhibit 1, page 6, defines a highway easement boundary.
Department of Transportation (DOT) Easement: An easement issued by the Federal Highway Administration (FHWA) to a PRA for a Federal-Aid road or Forest Highway crossing NFS lands (FSM 2731).
Forest Road and Trail Act (FRTA) Easement: An easement issued by the FS to a PRA for a non-Federal-Aid road or non-Forest Highway crossing NFS lands (FSM 2732).
Operation and Maintenance: Standard highway-related preservation activities to ensure a continued safe and efficient highway for the public (23 CFR 460, 625, 635, 771). These activities include but are not limited to: emergency repairs; restoration of surfacing, shoulders, roadsides; restoration or replacement of all structures (including bridges); cleaning ditches and cross-drainage; minor (less than 100 feet in length) slope flattening for erosion mitigation, snow removal, sight distance or other safety reasons; controlling brush and roadside vegetation to maintain clear zones, sightdistance and to remove hazard trees; slope stabilization & scaling; removal of hazards & other obstructions; preserving and adding traffic
control measures to conform with the Manual on Uniform Traffic Control Devices.(MUTCD), etc. These activities are approved in the easement and do not require an additional NEPA decision. HOWEVER, COMPLIANCE WITH OTHER LAWS AND REGULATIONS IS REQUIRED.
Rehabilitation: Minor reconstruction. Non-standard highway-related operation and maintenance activities to provide minor upgrades to a highway (23 CFR 625, 635, 771). These activities include but are not limited to: minor realignment (ie., straightening dangerous curves); minor widening (adding lane and/or shoulder width); adding auxiliary lanes (passing, turning, climbing, parking, etc.); major (more than 100 feet in length) slope flattening for erosion mitigation, snow removal, sight distance or other safety reasons; etc. Additional NEPA is required for this type of work. A CE may be sufficient in most cases. Compliance with other laws and regulations is also required.
The FHWA is generally the lead agency for preparing necessary NEPA documents. The Forest Service is generally a cooperating agency, unless designated as lead by FHWA. The FHWA is responsible for the NEPA decision on the project. No NEPA decision by the FS is needed for establishing or adding to DOT easements. FHWA has authority (23 USC 317) to appropriate NFS lands for highway purposes. However, if the proposed action requires a significant amendment to the Forest Plan, a FS planning decision in accordance with NEPA is required and that decision is appealable under the provisions of 36 CFR 217.
In addition to NEPA, the FHWA also has responsibility for ensuring compliance with most other applicable laws and regulations. This includes the Endangered Species Act (ESA) and the National Historic Preservation Act (NHPA). The Forest Service remains responsible for compliance with the Archaeological Resources Protection Act (ARPA) and the Native American Graves Protection and Repatriation Act (NAGPRA).
The FS generally consents to the FHWA appropriation and transfer of affected NFS lands under the provisions of the Highway Act of August 27, 1958, by a Letter of Consent (LOC) (FSH 2709.12 and the 1981 FS/FHWA MOU Relating to Forest Highways on NFS Lands). The LOC does not relate to highway engineering functional items, but it does include stipulations (terms & conditions) required for project construction and for future management of the easement. These stipulations are to assure adequate protection of resources and utilization of adjacent NFS lands.
The FS has authority and responsibility to make a NEPA decision on actions to allocate NFS land for the establishment of a FRTA easement, adding additional area to a FRTA easement or on projects to upgrade the standard of highway within anexisting FRTA easement. The FS is also the responsible federal agency for ensuring compliance with all other applicable laws and regulations. This responsibility cannot be delegated.
The FS objective is to have a FRTA or DOT easement or, where applicable, a RS 2477 Rights-of-Way on all public roads crossing NFS lands. This section deals with how projects are to be handled for public roads that have no easement, that are under special use permit or that have an existing FRTA or DOT Easement (RS 2477 Rights-of-Way direction will be handled in a separate document).
Place the road under a FRTA or DOT easement as soon as possible. Place Federal-Aid and Title 23 Highways under a DOT Easement and all other roads under a FRTA Easement.
Critical Points when placing existing roa s under easement:
C. Work Outside Existing Easements or New Project Proposals (Boundary adjustments or new easement needed)
All public roads should have easement widths developed as shown in Exhibit 1 (or Exhibit 2 if minimum Easement width statute exists). Easement width should be sufficient to permit construction and to ensure safe and efficient (FSH 2709.12, 21.3) highway operation and maintenance activities in the future.see section "C. New Project Proposals".
Minor easement adjustments can be made to existing easements with a CE if the work required disturbs less than 5 contiguous acres and there are no significant environmental, social and cultural impacts by the proposed facility. (FSH 1909.15, 31.2). Easement boundaries will be modified to include the new work areas.
National direction to implement the above actions exists in FSMs, FSHs and MOUs with the FHWA. R3 Supplement 39 is almost 20 years old and needs some modification. It will be reviewed and rewritten as needed.
Exhibits 1 and 2 on pages 6 and 7 following.
