Research and monitoring activities require a “special use” permit. Employees of the U.S. Fish and Wildlife Service do not need this permit.
The application form can be downloaded here.
➢ We strongly encourage researchers to meet with refuge managers prior to submitting an application. Discuss the research and the logistical aspects insofar as refuge management is concerned (i.e., use of vehicles, off-hour access, modification of vegetation). Be prepared to explain how the knowledge derived from your research can help this refuge and the National Wildlife Refuges generally. Although usefulness to the National Wildlife Refuge/Refuge System is not strictly required by law, it will certainly go a long way to helping an understaffed and overburdened refuge manager decide that whatever workload your presence will add – however minimal – is worthwhile.
➢ Apply as far in advance as possible. The two required analyses can be very time-consuming and most refuges are understaffed and may find it difficult to make the time to undertake this process. A simple project that will have little or no impact to the refuge or other refuge users might not entail a lengthy approval process, but refuge management might need several months to consider more complex proposals that could have impacts on the refuge or require coordination with refuge staff and/or other refuge users.There is a provision for expedited review but as you can’t know if the refuge manager will consider expedited review appropriate for your proposal, assume for the purpose of planning that a full review will be needed. Nonetheless, it can’t hurt to ask if expedited review is appropriate.
To issue a special use permit, a refuge manager must determine:
Although the Appropriate Refuge Uses policy addresses recreational uses, the USFWS made clear when it published this policy that it would subject proposed uses for research to the same analysis, “Not all research may be appropriate. Some research may affect fish, wildlife, and plants in a manner neither consistent with refuge management plans nor compatible with refuge purposes or the Refuge System mission. Some research may interfere with or preclude refuge management activities, appropriate and compatible public uses, or other research. Some research may be appropriate off the refuge, but not on the refuge. For example, some natural and physical research may not be wildlife-dependent and may be accomplished successfully at locations off the refuge. Because not all research supports the establishing purposes of refuges or the Refuge System mission, we cannot define research as a refuge management activity. Therefore, we did not exempt all research from evaluation under this policy.” 71 F.R.36415 (26 June 2006).
The appropriate use policy also state, “We actively encourage cooperative natural and cultural research activities that address our management needs. We also encourage research related to the management of priority general public uses. Such research activities are generally appropriate. However, we must review all research activities to decide if they are appropriate or not as defined in section 1.11. Research that directly benefits refuge management has priority over other research.”
To summarize the appropriate use policy, a refuge use is appropriate if the use meets at least one of the following three conditions:
(1) It is a wildlife-dependent recreational use of a refuge. This finding does not require refuge supervisor concurrence.
(2) It contributes to fulfilling the refuge purpose(s), the Refuge System mission, or goals or objectives described in a refuge management plan approved after October 9, 1997, the date the Improvement Act was signed into law. This finding does not require refuge supervisor concurrence.
(3) The refuge manager has evaluated the use following the guidelines in this policy and found that it is appropriate. The refuge manager will base the finding of appropriateness on the following 10 criteria:
(a) Do we have jurisdiction over the use? If we do not have jurisdiction over the use or the area where the use would occur, we have no authority to consider the use.
(b) Does the use comply with all applicable laws and regulations? The proposed use must be consistent with all applicable laws and regulations (e.g., Federal, State, tribal, and local). Uses prohibited by law are not appropriate.
(c) Is the use consistent with applicable Executive orders and Department and Service policies? If the proposed use conflicts with an applicable Executive order or Department or Service policy, the use is not appropriate.
(d) Is the use consistent with public safety? If the proposed use creates an unreasonable level of risk to visitors or refuge staff, or if the use requires refuge staff to take unusual safety precautions to assure the safety of the public or other refuge staff, the use is not appropriate.
(e) Is the use consistent with refuge goals and objectives in an approved management plan or refuge purpose(s). These goals and objectives are documented in refuge management plans, such as CCPs and step-down management plans. Refuges may also rely on goals and objectives found in comprehensive management plans or refuge master plans developed prior to passage of the Improvement Act as long as these goals and objectives comply with the tenets and directives of the Improvement Act. If the proposed use, either itself or in combination with other uses or activities, conflicts with a refuge goal, objective, or management strategy, the use is generally not appropriate.
(f) Has an earlier documented analysis not denied the use or is this the first time the use has been proposed? If we have already considered the proposed use in a refuge planning process or under this policy and rejected it as not appropriate, then we should not further consider the use unless circumstances or conditions have changed significantly. If we did not raise the proposed use as an issue during a refuge planning process, we may further consider the use.
(g) For uses other than wildlife-dependent recreational uses, is the use manageable within available budget and staff? If a proposed use diverts management efforts or resources away from the proper and reasonable management of a refuge management activity or wildlife-dependent recreational use, the use is generally not appropriate. In evaluating resources available, the refuge manager may take into consideration volunteers, refuge support groups, etc. If a requested use would rely heavily on volunteer or other resources, the refuge manager should discuss the situation with the refuge supervisor before making an appropriateness finding. The compatibility policy also addresses the question of available resources (603 FW 2.12A(7)).
(h) Will the use be manageable in the future within existing resources? If the use would lead to recurring requests for the same or similar activities that will be difficult to manage in the future, then the use is not appropriate. If we can manage the use so that impacts to natural and cultural resources are minimal or inconsequential, or if we can establish clearly defined limits, then we may further consider the use.
(i) Does the use contribute to the public’s understanding and appreciation of the refuge’s natural or cultural resources, or is the use beneficial to the refuge’s natural or cultural resources? If not, we will generally not further consider the use.
(j) Can the use be accommodated without impairing existing wildlife-dependent recreational uses or reducing the potential to provide quality (see section 1.6D), compatible, wildlife-dependent recreation into the future? If not, we will generally not further consider the use.
But that’s not all….
The refuge manager must find a use is appropriate before undertaking a compatibility review of the use.
Although a refuge use may be both appropriate and compatible, the refuge manager retains the authority to not allow the use or modify the use. For example, on some occasions, two appropriate and compatible uses may be in conflict with each other. In these situations, even though both uses are appropriate and compatible, the refuge manager may need to limit or entirely curtail one of the uses in order to provide the greatest benefit to refuge resources and the public. See the compatibility policy (603 FW 2.11G) for information concerning resolution of these conflicts.
A compatible use is a proposed or existing wildlife-dependent recreational use or any other use of a national wildlife refuge that, based on sound professional judgment, will not materially interfere with or detract from the fulfillment of the National Wildlife Refuge System mission or the purposes of the national wildlife refuge.
To summarize the compatible use policy, a compatibility determination is required for all refuge uses and must include in the analysis consideration of all associated facilities, structures, and improvements, including those constructed or installed by us or at our direction.
The refuge manager should deny a proposed use without determining compatibility if any of the following situations exist:
(a) The proposed use conflicts with any applicable law or regulation (e.g., Wilderness Act, Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act);
(b) The proposed use conflicts with any applicable executive order, or written Department of the Interior or Service policy;
(c) The proposed use conflicts with the goals or objectives in an approved refuge management plan (e.g., comprehensive conservation plan, comprehensive management plan, master plan or step-down management plan);
(d) The proposed use has already been considered in an approved refuge management plan and was not accepted;
(e) The proposed use is inconsistent with public safety;
(f) The proposed use is a use other than a wildlife-dependent recreational use that is not manageable within the available budget and staff; or
(g) The proposed use conflicts with other resource or management objectives provided that the refuge manager specifies those objectives in denying the use.
(2) A compatibility determination should be prepared for a proposed use only after the refuge manager has determined that we have jurisdiction over the use and has considered items (a) through (g) above (see Exhibit 1).
What are considerations when applying compatibility?
A. Sound professional judgment.
When a refuge manager is exercising sound professional judgment, the refuge manager will use available information that may include consulting with others both inside and outside the Service. The refuge manager must also consider the extent to which available resources (funding, personnel, and facilities) are adequate to develop, manage, and maintain the proposed use so as to ensure compatibility. The refuge manager must make reasonable efforts to ensure that the lack of resources is not an obstacle to permitting otherwise compatible wildlife-dependent recreational uses (hunting, fishing, wildlife observation and photography, and environmental education and interpretation). If reasonable efforts do not yield adequate resources to develop, manage, and maintain the wildlife-dependent recreational use, the use will not be compatible because the Service will lack the administrative means to ensure proper management of the public activity on the refuge.
B. Materially interfere with or detract from.
When completing compatibility determinations, refuge managers use sound professional judgment to determine if a use will materially interfere with or detract from the fulfillment of the System mission or the purpose(s) of the refuge. Inherent in fulfilling the System mission is not degrading the ecological integrity of the refuge. Compatibility, therefore, is a threshold issue, and the proponent(s) of any use or combination of uses must demonstrate to the satisfaction of the refuge manager that the proposed use(s) pass this threshold test. The burden of proof is on the proponent to show that they pass; not on the refuge manager to show that they surpass.
While refuge managers should be looking for tangible impacts, the fact that a use will result in a tangible adverse effect, or a lingering or continuing adverse effect is not necessarily the overriding concern regarding “materially interfere with or detract from.” These types of effects should be taken into consideration but the primary aspect is how does the use and any impacts from the use affect our ability to fulfill the System mission and the refuge purposes.
The refuge manager must consider not only the direct impacts of a use but also the indirect impacts associated with the use and the cumulative impacts of the use when conducted in conjunction with other existing or planned uses of the refuge, and uses of adjacent lands or waters that may exacerbate the effects of a refuge use.
C. Making a use compatible through replacement of lost habitat values or other compensatory mitigation. We will not allow compensatory mitigation to make a proposed refuge use compatible, except by replacement of lost habitat values as provided below for existing rights of way.
D. Existing rights-of-way. We will not make a compatibility determination and will deny any request for maintenance of an existing right-of-way that will affect a unit of the National Wildlife Refuge System, unless (1) the design adopts appropriate measures to avoid resource impacts and includes provisions to ensure no net loss of habitat quantity and quality; (2) restored or replacement areas identified in the design are afforded permanent protection as part of the national wildlife refuge or wetland management district affected by the maintenance; and (3) all restoration work is completed by the applicant prior to any title transfer or recording of the easement, if applicable. Maintenance of an existing right-of-way includes minor expansion or minor realignment to meet safety standards.
E. Refuge-specific analysis. We must base compatibility determinations on a refuge-specific analysis of reasonably anticipated impacts of a particular use on refuge resources. We should base this refuge-specific analysis on information readily available to the refuge manager, including field experience and familiarity with refuge resources, or made available to the refuge manager by the State, tribes, proponent(s) or opponent(s) of the use, or through the public review and comment period. Refuge-specific analysis need not rely on refuge-specific biological impact data, but may be based on information derived from other areas or species that are similarly situated and therefore relevant to the refuge-specific analysis.
F. Relationship to management plans.
G. Managing conflicting uses. The refuge manager may need to allocate uses in time and/or space to reduce or eliminate conflicts among users of the refuge. If this cannot be done, the refuge manager may need to terminate or disallow one or more of the uses. The Refuge Administration Act does not prioritize among the six wildlife-dependent recreational uses. Therefore, in the case of direct conflict between these priority public uses, the refuge manager should evaluate, among other things, which use most directly supports long-term attainment of refuge purposes and the System mission. This same analysis would support a decision involving conflict between two nonpriority public uses. Where there are conflicts between priority and nonpriority public uses, priority public uses take precedence.
H. Reevaluation of uses. See the policy for more details about reevaluating compatibility determinations for existing uses.
I. An opportunity for public review and comment is required for all compatibility determinations.
The text below summarizes what the refuge manager must document (see the policy itself for more detail). Reading this text will give you insight into what might make your proposal more acceptable and insight into the burden this policy imposes on the refuge manager.
(1) The use. A use may be proposed or existing, and may be an individual use, a specific use program, or a group of related uses.
(2) Refuge name.
(3) Establishing and acquisition authority(ies). Identify the specific authority(ies) used to establish the refuge (e.g., Executive Order, public land order, Secretarial Order, refuge-specific legislation, or general legislation).
(4) The refuge purpose(s).
(5) National Wildlife Refuge System mission. The mission of the National Wildlife Refuge System is “to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans.”
(6) Description of use. Describe the nature and extent of the use. At a minimum, the refuge manager must address and include the following in the compatibility determination:
(a) What is the use? Is the use a priority public use?
(b) Where would the use be conducted? ( habitat types and acres involved; key fish, wildlife, and plants that occur in or use that habitat; and the proportion of total refuge acreage and the specific habitat type involved.
(c) When would the use be conducted? (time of year/day and duration)
(d) How would the use be conducted? (techniques to be used, types of equipment required, and number of people per given period. Include supporting uses and associated facilities, structures and improvements as appropriate, e.g., boating and boat ramps to support fishing, camping and campsites to support hunting, etc.)
(e) Why is this use being proposed? Describe the reason for the use and the need to conduct the use on the refuge. Describe the extent to which other areas in the vicinity provide similar opportunities.
(7) Availability of resources, including an analysis of costs for administering and managing each use.
(8) Anticipated impacts of the use. In assessing the potential impacts of a proposed use on the refuge’s purpose(s) and the System mission, refuge managers will use and cite available sources of information, as well as their best professional judgment, to substantiate their analysis. Sources may include planning documents, environmental assessments, environmental impact statements, annual narrative reports, information from previously conducted or ongoing research, data from refuge inventories or studies, published literature on related biological studies, State conservation management plans, field management experience and consultation with wildlife research professionals, State wildlife resource managers and industry professionals, etc. Refuge managers are not required to independently generate data on which to base compatibility determinations. The refuge manager may work with the proponent(s) of the use and other interested parties to gather additional information before making the determination. If available information to the refuge manager is insufficient to document that a proposed use is compatible, then the refuge manager would be unable to make an affirmative finding of compatibility and we must not authorize or permit the use. If the use is a priority public use, and sufficient information is not available, the refuge manager should work with the proponent of the use to acquire the necessary information before finding the use not compatible based solely on insufficient available information. This does not mean that the burden of information collection is shifted to the refuge manager, but that the refuge manager should take steps to ensure that the additional information needs are clearly identified and that appropriate assistance is provided in facilitating the collection of that information. See the policy for more details.
(9) Public review and comment.
(10) Use is compatible or not compatible. Identify whether the use is compatible or not compatible. This is where the refuge manager indicates whether or not the use would, or would not, materially interfere with or detract from the fulfillment of the National Wildlife Refuge System mission or the purposes of the refuge.
(11) Stipulations necessary to ensure compatibility. If a use is not compatible as initially proposed, it may be modified with stipulations that avoid or minimize potential adverse impacts, making the use compatible. It is not the responsibility of the refuge manager to develop a sufficient set of stipulations so as to make an otherwise not compatible proposed use, compatible. If the use cannot be modified with stipulations sufficient to ensure compatibility, the use cannot be allowed.
(12) Justification. After completing the steps described above, the refuge manager will provide a written justification for the determination. The justification must provide a logical explanation describing how the proposed use would, or would not, materially interfere with or detract from the fulfillment of the National Wildlife Refuge System mission or the purposes of the refuge.
And that’s not all…
Even if the use is found to be appropriate and compatible, it can still be denied.
What can you do if your permit request is denied?
Procedures for appealing a special use permit denial are provided in 50 CFR 25.45.