
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[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 
authority vested in Inspector transferred to Secretary of Energy by 
section 3012(b) of Pub. L. 102-486, set out as an Abolition of Office of 
Federal Inspector note under section 719e of Title 15, Commerce and 
Trade.

                  Section Referred to in Other Sections

    This section is referred to in sections 1764, 1770 of this title.
