Other Permits

A special use authorization may not be required if a landowner’s property can be accessed using an existing NFS road that is identified as open to public use on a Forest’s Motor Vehicle Use Map . To confirm whether authorization is needed or not, a landowner would need to contact the local Forest Service office.

NFS roads that are open to the public usually are not maintained to the same standard as roads that are maintained by State or county road agencies. NFS roads are rarely maintained for “user comfort” because it is not within the FS’s management objective or fiscal ability to do so. That is, NFS roads are often bumpy, dusty and not designed or maintained for residential or passenger vehicle use.

• When a landowner wants to perform maintenance on an existing NFS road that is open to the public, such as grading, snowplowing, or vegetation trimming.
• A landowner needs to use a road that is not shown as open to the public on the Forest’s Motor Vehicle Use Map.
• No road exists to access the landowner’s property and a route across NFS lands needs to be constructed or improved.

The Forest Service typically issues special use permits, not easements, to grant noncommercial road use to access private property.

In most cases, the Federal Land Policy and Management Act (FLPMA) is the statutory authority used to authorize noncommercial road use to private property. Regulations at 36 CFR 251, Subparts B and D govern the process. Forest Service Authorized Officers are to grant “only those access facilities or modes of access that are needed for the reasonable use and enjoyment of the land and that minimizes the impacts on the Federal resources (36 CFR 251.114(a). In some cases, non-motorized modes of access may be determined to provide adequate access.

Special use authorizations for road access usually are granted for a period of 20 years. At the end of that period, a new authorization may be issued if access is still required and existing road use is compliant with permit terms and conditions.

A cost recovery fee may be charged for processing road access applications if Forest Service personnel spend one hour or more to analyze and process an application, and if it is approved, produce a permit (see 36 CFR 251.58). This fee is collected at the time an application is accepted and the Forest Service begins processing it.

If a special use authorization is issued, a cost recovery fee also may be charged if the Forest Service must spend one hour or more monitoring authorized activities, such as road construction or reconstruction. This fee usually is collected at the time a special use authorization is issued.

The amount charged for cost recovery processing and monitoring will depend on the complexity of the project. If processing or monitoring requires less than 50 hours of Forest Service personnel time, under the 2020 fee schedule, the cost recovery fee would be $130 - $1,239. For projects requiring more than 50 hours, the full actual cost to the government may be charged. Payment of cost recovery fees does not guarantee issuance of an authorization.

If a special use authorization is issued, a land use rental fee will be charged for each year of the authorized use on NFS lands (see 36 CFR 251.57 and 36 CFR 251.114(b)). The amount of the rental fee is determined by the total acreage encumbered by the use. The rental fee is adjusted annually following a nationally published inflation rate. For a 20-year authorization, the minimum rental fee could exceed $2,000.

Special use permits are not transferable. However, if a landowner sells their property, a new authorization may be issued to the buyer. The seller and buyer would need to complete a 2700-3a form and submit it to the appropriate Forest Service office along with a copy of the deed for the property being accessed.

Landowners need to demonstrate:

• Lack of access to their property ((36 CFR 251.114 (f)(1)) - that they lack existing rights or routes of access available by deed or under State or common law.
• Proposed access route minimizes adverse impacts to resources (36 CFR 251.114(f)(2));
• Location and method of access is consistent with Congressionally designated areas and Forest Plan (36 CFR 251.114(f)(3));
• All legal recourse to obtain access across non-Federal land has been exhausted or has little chance of success (36 CFR 251.114(f)(4));

Supporting documentation such as the following may be provided to demonstrate the above:

• Deeds and other documents related to the ownership history of the property to be accessed and surrounding lands;
• Maps demonstrating the location or lack of historic access;
• Evidence that legal recourse to obtain access across adjacent lands has been exhausted or has little chance of success; and
• Documentation showing that efforts to purchase or otherwise acquire access rights from neighbors have been unsuccessful.

County records offices, a real estate attorney, or a title insurance company may be able to assist landowners with obtaining needed documentation.

If reasonable access exists or may be obtained using non-federal land, the Forest Service will not issue an authorization for the use of public lands merely to provide a landowner with a less costly or less restrictive access route.

Besides the information described above, if no reasonable alternative to the use of NFS lands exists, the Forest Service will need the following information to process a road access request:

Landowners are encouraged to schedule a pre-application meeting or phone call to go over the specific situation, ensure that the landowner understands the Forest Service process, regulations, policies, and to ask any questions. Applications or questions can be sent to the Lands inbox at SM.FS.hmlands@usda.gov.

• Complete SF 299 application form (link)
• A detailed map (U.S. Geological Survey quadrangle or equivalent) or plat (survey or equivalent) showing the requested use in relation to NFS lands, identification of landowner’s property, scale, map legend, legal description, and a north arrow.
• A description of the proposed method of access.
• A description of the proposed use of the property to which the landowner is seeking access.
• Any construction or maintenance proposed and landowner plans for environmental protection and rehabilitation.
• A copy of the landowner’s property deed.
• Documentation of technical and financial capability to demonstrate that the landowner is capable of constructing, operating, and maintaining the requested road and, if needed decommissioning the road and reclaiming NFS land if use terminates.

Documentation must be complete for the Forest Service to process a request. For example, list any proposed new construction, brush or tree removals, culverts, or materials that need to be brought across NFS lands. Failure to provide information with the initial proposal can cause delays and increase costs.

Landowners are encouraged to schedule a pre-application meeting or phone call to go over the specific situation, ensure that the landowner understands the Forest Service process, regulations, policies, and to ask any questions.

After an application has been accepted and the applicable cost recovery processing fee has been collected, the Forest Service will analyze the potential environmental consequences of the requested use, as required by the National Environmental Policy Act ,(NEPA ). If needed, an operation and maintenance plan may be developed to ensure protection of Forest resources and address road maintenance activities such as tree trimming, grading, surfacing, snow plowing, etc.

Once the NEPA analysis is completed, the Forest Service will make a decision whether to deny the use, issue an authorization for the use as proposed, or issue an authorization for the use with modifications. This process typically take two to six months from receipt of a complete proposal, but it could take longer for projects that are large, complex, have the potential to impact special environmental resources, or when necessary plant, animal, or cultural resources surveys need to take place in a specific season.

Only after an authorization has been issued and signed by all parties, may access (including any authorized construction or maintenance activities) proceed. The special use authorization states what use of NFS lands is granted. It does not imply permission, so if a holder wishes to make changes to the road that are not covered by the authorization or operating plan (e.g. widen, surface, install ditches/ gates, remove trees, etc.), the holder will need to obtain authorization from the Forest Service.

The authorized access route will be periodically inspected by Forest Service personnel to ensure use is consistent with the terms and conditions of the authorization and operating plan. If any deficiencies are observed, the holder will be contacted to make needed corrections.