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

(a) Authorized purposes. The Secretary of the Interior may grant, issue, or renew rights-of-way over, on, under, or through public lands. This includes public lands as defined in section 1702(e) of this title that are reserved from entry under section 24 of the Federal Power Act. The Secretary of Agriculture may do the same for lands within the National Forest System. In both cases, wilderness land is excluded. The rights-of-way may be for the following:

(1) Reservoirs, canals, ditches, flumes, laterals, pipes, pipelines, tunnels, and other facilities and systems for impounding, storing, transporting, or distributing water.

(2) Pipelines and other systems for transporting or distributing liquids and gases, other than water, oil, natural gas, synthetic liquid or gaseous fuels, or any refined product made from them. They may also be for storage and terminal facilities connected with those systems.

(3) Pipelines, slurry and emulsion systems, and conveyor belts for transporting and distributing solid materials, and facilities for storing those materials in connection with them.

(4) Systems for generating, transmitting, and distributing electric energy. The applicant must also comply with all applicable Federal Energy Regulatory Commission requirements under the Federal Power Act, including part 1 1 of that Act.

(5) Systems for transmitting or receiving 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. This does not include facilities constructed and maintained in connection with commercial recreation facilities on National Forest System lands.

(7) Other transportation or other systems or facilities that are necessary, in the public interest, and require rights-of-way over, on, under, or through those lands.

(b) Procedures applicable; administration. (1) Before granting, issuing, or renewing a right-of-way, the responsible Secretary must require the applicant to submit and disclose plans, contracts, agreements, and other information reasonably related to the use or intended use of the right-of-way. This includes information about the right-of-way’s effect on competition. The Secretary must require the information the Secretary considers necessary to decide, under this Act, whether to grant, issue, or renew the right-of-way and what terms and conditions it should contain.

(2) If the applicant is a partnership, corporation, association, or other business entity, the responsible Secretary, before granting a right-of-way under this subchapter, shall require the applicant to disclose the identity of the entity’s participants when the Secretary considers that disclosure necessary to decide, under this subchapter, whether to grant, issue, or renew the right-of-way and what terms and conditions it should contain. When applicable, the disclosure must include: (A) the name and address of each partner; (B) the name and address of each shareholder who owns 3 percent or more of the shares, together with the number and percentage of any class of voting shares of the entity that the shareholder is authorized to vote; and (C) the name and address of each affiliate of the entity. For an affiliate controlled by the entity, the disclosure must also give the number of shares and the percentage of any class of that affiliate’s voting stock owned directly or indirectly by the entity. For an affiliate that controls the entity, the disclosure must instead give the number of shares and the percentage of any class of the entity’s voting stock owned directly or indirectly by the affiliate.

(3) The Secretary of Agriculture may administer all rights-of-way granted or issued under earlier Acts for lands under the Agriculture Secretary’s jurisdiction. This includes rights-of-way granted or issued under authority that earlier Acts gave to the Secretary of the Interior.

(c) Permanent easement for water systems; issuance, preconditions, and related rules. (1) When an applicant meets this subsection’s requirements and submits a written application under paragraph (2), the Secretary of Agriculture must issue, without requiring reimbursement, a permanent easement for a water system described in subsection (a)(1). The system must cross Federal lands within the National Forest System, called “National Forest Lands” here, and must have been constructed and operating, or put into operation, before October 21, 1976. The Secretary must issue the easement if: (A) the National Forest Lands crossed are in a State where the appropriation doctrine governs ownership of water rights; (B) when the application is submitted, the water system is used only for agricultural irrigation or livestock watering; (C) the use served by the system is not located only on Federal lands; (D) the facilities originally built as part of the system have operated substantially continuously without abandonment; (E) the applicant has a valid existing right under applicable State law to the water the system will convey; (F) the applicant gives the Secretary of Agriculture a recordable survey and other information about the system’s location and characteristics that is needed to manage National Forest Lands properly; and (G) the applicant submits the application on or before December 31, 1996.

(2)(A) This subsection does not affect grants made under an earlier Act. If such an earlier right-of-way grant is a valid existing right, it remains fully in effect unless its owner tells the Secretary of Agriculture that the owner elects to have a water system on that right-of-way governed by this subsection and submits a written application for an easement under this subsection. If an easement is then issued under this subsection, the earlier grant is treated as relinquished and ends.

(B) Easements issued under this subsection are fully transferable with all existing conditions. No fee or new condition or stipulation may be imposed when one is transferred. The holder must notify the Secretary of Agriculture within 60 days after any change in the holder’s address or any change in ownership of the facilities.

(C) These easements include all changes or modifications to the original facilities that existed on October 21, 1976, the date this Act was enacted.

(D) Any extension or enlargement of the facilities after October 21, 1976 requires a separate authorization. This subsection does not authorize it.

(3)(A) Unless this subsection provides otherwise, the Secretary of Agriculture may terminate or suspend an easement issued under this subsection by following the procedural and other rules in section 1766 of this title. The easement ends if the water system is used for any purpose other than agricultural irrigation or livestock watering. For purposes of paragraph (1)(D), if the system is not used for agricultural irrigation or livestock watering for any continuous five-year period, that nonuse creates a rebuttable presumption that the facilities have been abandoned.

(B) This subsection does not assert that the United States has any right or claim concerning the reservation, acquisition, or use of water. It does not give the Secretary of Agriculture power or authority to regulate or control in any way the appropriation, diversion, or use of water for any purpose, and it does not reduce any such power or authority the Secretary already has under applicable law. It also does not require anyone to convey or transfer to the United States any right or claim to appropriate, divert, or use water.

(C) Unless this subsection provides otherwise, all rights-of-way issued under this subsection remain subject to all conditions and requirements of this Act.

(D) If a right-of-way issued under this subsection is allowed to deteriorate until it threatens people or property, and the holder, after consulting with the Secretary of Agriculture, refuses to make the repairs and perform the maintenance needed to remove the threat, the Secretary may perform that repair and maintenance on the right-of-way and charge the holder for its costs. The Secretary may do this whether or not the Secretary required the holder to provide a bond or other security under subsection (i).

(d) Rights-of-way on certain Federal lands. If a project, or part of a project, was licensed under Part I of the Federal Power Act or received an exemption from that Part, and the project is on lands reserved under section 24 of that Act, no permit, right-of-way, or other approval under this section is required for the project’s continued operation, including continued operation under section 15 of the Federal Power Act, if the project did not receive such approval before October 24, 1992. This exception does not apply if the Commission determines that the project uses additional public lands or National Forest lands that are not subject to that reservation.