[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 43USC1761]
TITLE 43--PUBLIC LANDS
CHAPTER 35--FEDERAL LAND POLICY AND MANAGEMENT
SUBCHAPTER V--RIGHTS-OF-WAY
Sec. 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 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)) 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 transportation 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 distribution 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 Regulatory
Commission under the Federal Power Act, including part 1 \1\ thereof
(41 Stat. 1063, 16 U.S.C. 791a-825r).; \2\
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\1\ So in original. Probably should be part ``I''.
\2\ So in original. The period preceding the semicolon probably
should not appear.
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(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 driveways, 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 information
reasonably related to the use, or intended use, of the right-of-way,
including its effect on competition, which he deems necessary to a
determination, in accordance with the provisions 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, corporation, association, or
other business entity, the Secretary concerned, prior to granting a
right-to-way \3\ pursuant to this subchapter, shall require 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 disclosures shall include, where
applicable: (A) the 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,
directly 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, directly or indirectly,
by the affiliate.
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\3\ So in original. Probably should be ``right-of-way''.
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(3) The Secretary of Agriculture shall have the authority to
administer all rights-of-way granted 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 pursuant to paragraph (2)
of this subsection from an applicant meeting the requirements of this
subsection, the Secretary of Agriculture shall issue a permanent
easement, without a requirement for reimbursement, for a water system as
described in subsection (a)(1) of this section, traversing Federal lands
within the National Forest System (``National Forest Lands''),
constructed and in operation or placed into operation 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 application the water
system is used solely for agricultural irrigation or livestock
watering purposes;
(C) the use served by the water system is not located solely on
Federal lands;
(D) the originally constructed facilities comprising 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 information concerning the
location and characteristics of the system as necessary for proper
management of National Forest lands is provided 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 construed as affecting
any grants made by any previous 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
Agriculture that such owner elects to have a water system on such right-
of-way governed by the provisions of this subsection and submits a
written application for issuance of an easement pursuant to this
subsection, in which case upon the issuance of an easement pursuant to
this subsection 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
imposition 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
existence as of October 21, 1976, the date of enactment of this Act.
(D) Any future extension or enlargement of facilities after October
21, 1976, shall require the issuance of a separate authorization, not
authorized under this subsection.
(3)(A) Except as otherwise provided in this subsection, the
Secretary of Agriculture may terminate or suspend an easement issued
pursuant 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 system for which such
easement was issued is used for any purpose other than agricultural
irrigation or livestock watering use. For purposes of subparagraph (D)
of paragraph (1) of this subsection, non-use of a water system for
agricultural irrigation or livestock watering purposes for any
continuous five-year period shall constitute a rebuttable presumption of
abandonment 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 subsection shall be deemed
to confer on the Secretary of Agriculture any power or authority to
regulate or control in any manner the appropriation, diversion, or use
of water for any purpose (nor to diminish any such power or authority of
such Secretary under applicable law) or to require the conveyance or
transfer to the United States of any right or claim to the
appropriation, diversion, or use of water.
(C) Except as otherwise provided in this subsection, all rights-of-
way issued pursuant to this subsection are subject to all conditions and
requirements 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 consultation with the
Secretary of Agriculture, refuses to perform the repair and maintenance
necessary to remove the threat to persons or property, the Secretary
shall have the right to undertake 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 holder
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 exemption 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 approval under
this section prior to October 24, 1992, no such permit, right-of-way, or
other approval shall be required for continued operation, including
continued operation pursuant to section 15 of the Federal Power Act [16
U.S.C. 808], of such project unless the Commission determines 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, Sec. 501, Oct. 21, 1976, 90 Stat. 2776; Pub.
L. 99-545, Sec. 1(b), (c), Oct. 27, 1986, 100 Stat. 3047, 3048; Pub. L.
102-486, title XXIV, Sec. 2401, Oct. 24, 1992, 106 Stat. 3096.)
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, as amended, which is
classified generally to chapter 12 (Sec. 791a et seq.) of Title 16,
Conservation. Part I of the Act is classified generally to subchapter I
(Sec. 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, as amended, known as the Federal
Land Policy and Management Act of 1976. For complete classification of
this Act to the Code, see Tables.
Amendments
1992--Subsec. (a). Pub. L. 102-486, Sec. 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, Sec. 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
Commission 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 closing quotations designating the
provisions to be struck out.
Subsec. (d). Pub. L. 102-486, Sec. 2401(3), added subsec. (d).
1986--Subsec. (b)(3). Pub. L. 99-545, Sec. 1(c), added par. (3).
Subsec. (c). Pub. L. 99-545, Sec. 1(b), added subsec. (c).
Transfer of Functions
Federal Power Commission terminated and functions, personnel,
property, funds, etc., transferred to Secretary of Energy (except for
certain functions transferred to Federal Energy Regulatory Commission)
by sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title 42, The
Public Health and Welfare.
Enforcement functions of Secretary or other official in Department
of Agriculture, insofar as they involve lands and programs under
jurisdiction of that Department, 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 Secretary or other
official in Department of the Interior related to compliance with land
use permits for temporary 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, construction, and initial operation of
transportation systems for Canadian and Alaskan natural gas transferred
to Federal Inspector, Office of Federal Inspector for Alaska Natural Gas
Transportation System, until first anniversary of date of initial
operation of Alaska Natural Gas Transportation System, see Reorg. Plan
No. 1 of 1979, Secs. 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. Office of Federal Inspector for
the Alaska Natural Gas Transportation System abolished and functions and
