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 or from the USFWS website: http://forms.fws.gov/3-1383.pdf
The form is simple, but the process is much more elaborate.
➢ 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.
There appears to be no on-line listing of resarch science needs; the Ornithological Council has asked the Chief of the National Wildlife Refuge System if there might be some way to match refuge science needs with researchers in need of research sites.
➢ 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 might 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:
“The Refuge Administration Act provides for expedited consideration of uses that will likely have no detrimental effect on the fulfillment of the purpose(s) of the refuge or the System mission. The intent of this provision is to reduce the administrative burden on the refuge manager and speed the compatibility determination process for uses that are frequently found to be compatible. For minor, incidental, or one-time uses that have been shown to have no significant or cumulative impact to the refuge and would likely generate minimal public interest, the time period for an opportunity for public review and comment may be reduced to the time available.”
To issue a special use permit, a refuge manager must determine:
1. The use is “appropriate”
2. The use “compatible”
The appropriate use policy can be found here
Although the 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 states:
(4) Research. 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.
The criteria for finding that a proposed use is appropriate are as follows:
A. 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 address the criteria below and complete FWS Form 3-2319 for each use reviewed for appropriateness, including uses reviewed in conjunction with a CCP or step-down management plan. If the answers to the questions on FWS Form 3-2319 are consistently “yes,” and if the refuge manager finds, based on sound professional judgment, the use is appropriate for the refuge, the refuge manager then prepares the written justification using FWS Form 3-2319. (If the answer to any of the factors is “no,” refer to section 1.11B) Before undertaking a compatibility determination, the refuge manager should forward the justification to the refuge supervisor to obtain written concurrence when a use is found appropriate. The requirement for concurrence from the refuge supervisor will help us promote Refuge System consistency and avoid establishing precedents that may present management problems in the future. Refuge supervisors will usually consult with their Regional Chief/CNO Assistant Manager and peers in other Regions/CNO as these decisions are made to promote consistency within the Refuge System. 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. This policy clarifies and expands on the compatibility policy (603 FW 2.10D(1)), which describes when refuge managers should deny a proposed use without determining compatibility. If we find a proposed use is not appropriate, we will not allow the use and will not prepare a compatibility determination. By screening out proposed uses not appropriate to the refuge, the refuge manager avoids unnecessary compatibility reviews.
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.
The full compatibility policy can be found here
Compatible use. 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.
A compatibility determination is required for all refuge uses as defined by the term “refuge use” 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. This requirement will apply to all such facilities, structures, improvements, and refuge actions associated with uses that we approve on or after the effective date of this policy and to the replacement or major repair or alteration of facilities, structures, and improvements associated with already approved uses.
Refuge use, and Use of a refuge. A recreational use (including refuge actions associated with a recreational use or other general public use), refuge management economic activity, or other use of a national wildlife refuge by the public or other non-National Wildlife Refuge System entity.
Denying a proposed use without determining compatibility.
(1) 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).
2.11 What are considerations when applying compatibility?
A. Sound professional judgment.
(1) In determining what is a compatible use, the Refuge Administration Act relies on the “sound professional judgment” of the Director. The Director delegates authority to make compatibility determinations through the Regional Director to the refuge manager. Therefore, it is the refuge manager who is required and authorized to exercise sound professional judgment. Compatibility determinations are inherently complex and require the refuge manager to consider their field experiences and knowledge of a refuge’s resources, particularly its biological resources, and make conclusions that are consistent with principles of sound fish and wildlife management and administration, available scientific information, and applicable laws. 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.
(2) 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.
(3) Refuge managers are reminded that, unless otherwise provided for in law or other legally binding directive, permitting uses of national wildlife refuges is a determination vested by law in the Service. Under no circumstances (except emergency provisions necessary to protect the health and safety of the public or any fish or wildlife population) may we authorize any use not determined to be compatible.
B. Materially interfere with or detract from.
(1) 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. Some uses, like a proposed construction project on or across a refuge that affects the flow of water through a refuge, may exceed the threshold immediately, while other uses, such as boat fishing in a small lake with a colonial nesting bird rookery may be of little concern if it involves few boats, but of increasing concern with growing numbers of boats. Likewise, when considered separately, a use may not exceed the compatibility threshold, but when considered cumulatively in conjunction with other existing or planned uses, a use may exceed the compatibility threshold.
(2) 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. For example, the removal of a number of individual animals from a refuge through regulated hunting, trapping or fishing would, in many instances, help the refuge manager manage to improve the health of wildlife populations. However, the take of even one individual of a threatened or endangered species could significantly impact the refuge’s ability to manage for and perpetuate that species. Likewise, wildlife disturbance that is very limited in scope or duration may not result in interference with fulfilling the System mission or refuge purposes. However, even unintentional minor harassment or disturbance during critical biological times, in critical locations, or repeated over time may exceed the compatibility threshold.
(3) 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 in subparagraph D below. If the proposed use cannot be made compatible with stipulations we cannot allow the use.
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. Examples of minor expansion or minor realignment include: expand the width of a road shoulder to reduce the angle of the slope; expand the area for viewing on-coming traffic at an intersection; and realign a curved section of a road to reduce the amount of curve in the road.
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. We do not require refuge managers to independently generate data to make determinations but rather to work with available information. Refuge managers may work at their discretion with the proponent(s) of the use or other interested parties to gather additional information before making the determination. If information available 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. See 2.12A(8) for additional information dealing with priority public uses.
F. Relationship to management plans. The refuge manager will usually complete compatibility determinations as part of the comprehensive conservation plan or step-down management plan process for individual uses, specific use programs, or groups of related uses described in the plan. The refuge manager will incorporate compatibility determinations prepared concurrently with a plan as an appendix to the plan. These compatibility determinations may summarize and incorporate by reference what the refuge manager addressed in detail in the comprehensive conservation plan, step-down management plan, or associated National Environmental Policy Act (NEPA) document.
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.
(1) We will reevaluate compatibility determinations for existing wildlife-dependent recreational uses when conditions under which the use is permitted change significantly, or if there is significant new information regarding the effects of the use, or concurrently with the preparation or revision of a comprehensive conservation plan, or at least every 15 years, whichever is earlier. In addition, a refuge manager always may reevaluate the compatibility of a use at any time.
(2) Except for uses specifically authorized for a period longer than 10 years (such as rights-of-way), we will reevaluate compatibility determinations for all existing uses other than wildlife-dependent recreational uses when conditions under which the use is permitted change significantly, or if there is significant new information regarding the effects of the use, or at least every 10 years, whichever is earlier. Again, a refuge manager always may reevaluate the compatibility of a use at any time.
(3) For uses in existence on November 17, 2000, that were specifically authorized for a period longer than 10 years (such as rights-of-way), our compatibility reevaluation will examine compliance with the terms and conditions of the authorization, not the authorization itself. We will frequently monitor and review the activity to ensure that the permittee carries out all permit terms and conditions. However, the Service will request modifications to the terms and conditions of the permits from the permittee if the Service determines that such changes are necessary to ensure that the use remains compatible. After November 17, 2000, no uses will be permitted or reauthorized, for a period longer than 10 years, unless the terms and conditions for such long-term permits specifically allows for the modifications to the terms and conditions, if necessary to ensure compatibility. We will make a new compatibility determination prior to extending or renewing such long-term uses at the expiration of the authorization. When we prepare a compatibility determination for reauthorization of an existing right-of-way, we will base our analysis on the existing conditions with the use in place, not from a pre-use perspective.
(4) The refuge manager will determine whether change in the conditions under which the use is permitted or new information regarding the effects of the use is significant or not. The refuge manager will make this decision by considering whether or not these new conditions or new information could reasonably be expected to change the outcome of the compatibility determination. Any person at any time may provide information regarding changes in conditions and new information to the refuge manager. However, the refuge manager maintains full authority to determine if this information is or is not sufficient to trigger a reevaluation.
(5) When we reevaluate a use for compatibility, we will take a fresh look and prepare a new compatibility determination following the procedure outlined in paragraph 2.12A.
I. Public review and comment. An opportunity for public review and comment is required for all compatibility determinations. For compatibility determinations prepared concurrently with comprehensive conservation plans or step-down management plans, we can achieve public review and comment concurrently with the public review and comment of the draft plan and associated NEPA document. For compatibility determinations prepared separately from a plan, we will determine the appropriate level of opportunity for public review and comment through a tiered approach based on complexity, controversy, and level of impact to the refuge. See 2.12A(9) for details on public review and comment.
The text below outlines what the refuge manager must document. 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) Use. Identify 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. The refuge manager will determine whether to consider a use individually, a specific use program, or in conjunction with a group of related uses. However, whenever practicable, the refuge manager should concurrently consider related uses or uses that are likely to have similar effects and associated facilities, structures and improvements, in order to facilitate analysis of cumulative effects and to provide opportunity for effective public review and comment.
(2) Refuge name. Identify the name of the refuge.
(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) Refuge purpose(s). Identify the purpose(s) of the refuge from the documents identified in 2.12A(3). For a use proposed for designated wilderness areas within the System, the refuge manager must first analyze whether or not the use can be allowed under the terms of the Wilderness Act (16 U.S.C. 1131-36). If so, the refuge manager must then determine if the use is compatible. As a matter of policy, the refuge manager will also analyze whether or not the use is compatible with the purposes of the Wilderness Act, which makes such purposes supplemental to those of the national wildlife refuge.
(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. The refuge manager may work with the proponent(s) of a use to gather information required in subparagraphs (a) through (e) below to describe the proposed use. If the use is described in sufficient detail in a comprehensive conservation plan, step-down management plan, other plan, or associated NEPA document, the refuge manager may provide a summary of the use and reference the plan or NEPA document. 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? Describe the specific areas of the refuge that will be used: 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. Include a description of other areas that may be affected incidental to the specific use, such as access to the destination area and storage of equipment. This information may be described in writing and on a map.
(c) When would the use be conducted? Describe the time of year and day, and duration of the use.
(d) How would the use be conducted? Describe the 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.
(a) Complete an analysis of costs for administering and managing each use. Implicit within the definition of sound professional judgment is that adequate resources (including financial, personnel, facilities, and other infrastructure) exist or can be provided by the Service or a partner to properly develop, operate, and maintain the use in a way that will not materially interfere with or detract from fulfillment of the refuge purpose(s) and the System mission. If resources are lacking for establishment or continuation of wildlife-dependent recreational uses, the refuge manager will make reasonable efforts to obtain additional resources or outside assistance from States, other public agencies, local communities, and/or private and non-profit groups before determining that the use is not compatible. If adequate resources cannot be secured, the use will be found not compatible and cannot be allowed. Efforts to find additional funding must be documented on the compatibility determination form.
(b) For many refuges, analysis of available resources will have been made for general categories of uses when preparing comprehensive conservation plans, step-down management plans, other plans, or NEPA documents. If the required and available resources are described in sufficient detail in a comprehensive conservation plan, step-down management plan, other plan, or associated NEPA document, provide a summary of the required and available resources for the use and reference the plan or NEPA document. If not sufficiently covered in the planning document, the following should be documented in the compatibility determination:
(i) Resources involved in the administration and management of the use.
(ii) Special equipment, facilities or improvements necessary to support the use. Itemize expenses such as costs associated with special equipment, physical changes or improvements necessary on the refuge that would be required to comply with disabled access requirements.
(iii) Maintenance costs associated with the use (e.g., trail maintenance and mowing, signing, garbage pickup or sanitation costs, parking areas, road repair or grading, building or structure repair, including blinds, boat ramps, kiosks, etc.).
(iv) Monitoring costs (e.g., biological or visitor surveys, maintenance of control sites, etc.) to assess the impact of uses over time on natural resources and quality of the visitors’ experience.
(c) This analysis of cost for administering and managing each use will only include the incremental increase above general operational costs that we can show as being directly caused by the proposed use.
(d) Offsetting revenues, such as entrance fees and user fees that are returned to the refuge, should be documented in determining the costs to administer individual or aggregated uses.
(8) Anticipated impacts of the use.
(a) Identify and describe the reasonably 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.
(b) Refuge managers should distinguish between long-term and short-term impacts. A use may initially only be expected to cause minor impacts to the resource. However, the cumulative impacts over time may become quite substantial. Other uses may have impacts that are very short in duration but very significant while they are occurring, or are the converse: very long in duration but very insignificant in effect.
(c) Although direct impacts on refuge resources, such as wildlife disturbance or destruction of habitats, or degradation of ecological integrity may be easily predicted, the analysis of impacts must also address indirect and cumulative effects that may be reasonably associated with a specific use. Indirect impacts of a proposed use may include taking away or diverting resources from an activity that would support fulfilling the System mission or refuge’s purposes and therefore would be a factor in determining whether the proposed use is compatible or not. A use with little potential for impact on its own may contribute to more substantive cumulative impacts on refuge resources when conducted in conjunction with or preceding or following other uses, and when considered in conjunction with proposed or existing uses of lands and waters adjacent to the refuge.
(d) If the anticipated impacts of the use are described in sufficient detail in a comprehensive conservation plan, step-down management plan, other plan, or associated NEPA document, refuge managers may provide a summary of the anticipated impacts of the use and reference the plan or NEPA document.
(e) Refuge managers should list all conservation objectives in approved refuge management plans (e.g., comprehensive conservation plan, comprehensive management plan, master plan, or step-down management plan), that reasonably might be affected by the proposed use. To the extent possible, the determination of anticipated impacts should include an explanation of the impacts on these specific conservation objectives and how that affects fulfilling refuge purposes or the System mission.
(9) Public review and comment.
(a) The refuge manager must provide an opportunity for public review and comment on the proposed refuge uses(s) before issuing a final compatibility determination. Public review and comment includes actively seeking to identify individuals and organizations that reasonably might be affected by, or interested in, a refuge use. Additionally, public review and comment will offer the public the opportunity to provide relevant information and express their views on whether or not a use is compatible. The extent and complexity of public review and comment that is necessary or appropriate will be determined by the refuge manager. For example, significantly modifying a popular hunting, fishing, or wildlife observation program would likely be controversial and would require considerable opportunity for public review and comment, whereas temporarily closing a small portion of a wildlife observation trail would likely require much less opportunity for public review and comment. For compatibility determinations prepared concurrently with comprehensive conservation plans or step-down management plans, public involvement can be achieved concurrently with the public review and comment of the draft plan and associated NEPA document. For compatibility determinations prepared separately from a plan, handle the level of public review and comment through the following tiered approach.
(i) For minor, incidental, or one-time uses that have been shown by past experience at this or other refuges in the System to result in no significant or cumulative impact to the refuge and would likely generate minimal public interest, the public review and comment requirement can be accomplished by posting a notice of the proposed determination at the refuge headquarters.
(ii) For all other uses, at a minimum, the refuge manager will solicit public comment by placing a public notice in a newspaper with wide local distribution. The notice must contain, at a minimum: a brief description of the compatibility determination process, a description of the use that is being evaluated, the types of information that may be used in completing the evaluation, how to provide comments, when comments are due, and how people may be informed of the decision the refuge manager will make regarding the use. The public will be given at least 14 calendar days to provide comments following the day the notice is published.
(iii) For evaluations of controversial or complex uses, the refuge manager should expand the public review and comment process to allow for additional opportunities for comment. This may include newspaper or radio announcements, notices or postings in public places, notices in the Federal Register, letters to potentially interested people such as adjacent landowners, holding public meetings, or extending the comment period.
(b) Public review and comment efforts must be documented on the compatibility determination form and relevant information retained with compatibility determinations as part of the administrative record. The documentation must include a description of the process used, a summary of comments received, and a description of any actions taken or not taken because of the comments received. All written public comments will be retained in the administrative record. If a comprehensive conservation plan or NEPA document is being prepared, this information would be included in these documents as part of the administrative record.
(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.
(a) Describe any stipulations (terms or conditions) 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.
(b) Protective stipulations in the compatibility determination for a particular use should specify the manner in which that use must be carried out to ensure compatibility. Stipulations must be detailed and specific. They may identify such things as limitations on time (daily, seasonal, or annual) or space where a use could be safely conducted, the routes or forms of access to be used, and any restrictions on the types of equipment to be used or number of people to be involved. Monitoring of the use must be sufficient to evaluate compliance with stated conditions and swift action must be taken to correct or respond to any serious deviations.
(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:
A determination that a use is compatible does not require the use to be allowed. Determinations on whether or not to allow otherwise compatible uses are based on compliance with other laws, the System mission, policy, refuge purposes, availability of resources to manage the use, possible conflicts with other uses, public safety, and other administrative factors. The refuge manager must clearly document and describe in writing the administrative reasons for not permitting a compatible use. Usually, a refuge manager will make this decision prior to making a compatibility determination and completing one will be unnecessary.
What can you do if your permit request is denied?
Procedures for appealing a permit denial are provided in 50 CFR 25.45 (special use permits), 50 CFR 29.22 (rights-of-way), 50 CFR 36.41 (i) (special use permits for refuges in Alaska), or 43 CFR 36.8 (rights-of-way for Alaska). We are providing no administrative mechanism to appeal a compatibility determination.
Details of the appeal process are provided here.