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Bureau of Land Management - Transmission Right-of-Way (3-FD-c)

Information current as of 2019
In the United States, a developer may need a Right-of-Way (ROW) from the Bureau of Land Management (BLM) for projects on BLM-managed public lands under Title V of the Federal Land Policy and Management Act of 1976 (FLPMA). FLPMA authorizes the BLM to grant right-of-way (ROW) authorizations for the generation, transmission and distribution of electric energy. BLM regulations governing the authorization and management of ROWs can be found at 43 C.F.R. §§ 2801.2-2809.19.


Transmission lines on BLM land are often sited within ROW corridors. Section 503 of FLPMA requires the Secretary of the Interior to establish ROW corridors to the extent practical and to reserve in each ROW grant the right to grant additional ROWs for compatible uses on or adjacent to the issued ROW. BLM manual 2802.1(B)(1) establishes the BLM corridor philosophy, which states that “[w]henever possible the BLM will manage ROW use of public land through a system of designated corridors. Use of designated corridors for future ROW grants will be actively encouraged by the BLM.” The designated corridors are the preferred sites for ROWs and applicants are encouraged to site transmission lines within them, although use of a corridor is not required. See BLM Manual 2802.1(B)(1)&(2).

ROW Corridors

Corridors are generally established through the Resource Management Plan (RMP) amendment process. In addition, Section 368 of the Energy Policy Act of 2005 (EPAct) required the Secretary of the Interior to designate transmission corridors on BLM land in 11 western states. The BLM, in conjunction with the United States Forest Service (USFS) and the United States Department of Defense (DOD), prepared a Programmatic Environmental Impact Statement (PEIS) that proposed the designation of more than 6,000 mile of Section 368 Corridors. These corridors are called West Wide energy corridors, and a Record of Decision (ROD) was signed on January 14, 2009 that incorporated the proposed corridors into the applicable RMPs.

Interagency Operating Procedures

The 2009 ROD established Interagency Operating Procedures (IOPs) for ROW applications within the West Wide energy corridors. IOPs are required for project applications within Section 368 Corridors. IOPs are found in the West Wide PEIS ROD in Appendix B. IOPs contain requirements related to consultation with other agencies as well as planning, construction, operation, and decommissioning of a project. Many of the IOPs require specific actions or plans. For example, IOPs may require decommissioning activities conform with agency standards found in an agency guidebook; require that particular pieces of equipment, such as gravel work pads, be removed; or require the developer to submit a decommissioning plan. Some IOPs may require action before the application is filed, while others are a required component of the POD or the ROW grant as stipulations. Developers should consult the IOPs when considering a project within a Section 368 Corridor. The IOPs do not change any of the requirements found in BLM ROW regulations.



Bureau of Land Management - Transmission Right-of-Way Process


3-FD-c.1 – Contact BLM to Initiate Process

The developer must contact the BLM office with jurisdiction over the site desired for development. The required pre-application meetings should be scheduled during this initial contact. In addition, the developer can obtain general information regarding the ROW process at this time.

3-FD-c.2 to 3-FD-c.3 – Does Competition Exist for the Right-of-Way System?

ROW applications are generally processed on a first come, first serve basis. However, 43 C.F.R. § 2804.23 authorizes the BLM to determine if competition exists for a particular ROW site or system and if so, to establish competitive bidding procedures. The BLM must provide notice and a description of the bidding procedures in both a local newspaper and the Federal Register.

As a practical matter, competition rarely exists between developers for linear ROWs. Transmission lines are often sited next to each other within the same ROW corridor and do not take up as much space as other types of ROWs, allowing for greater flexibility. If a corridor becomes too crowded, the BLM may expand it or designate a new one.

3-FD-c.4 to 3-FD-c.6 – Conduct Pre-Application Meetings

43 C.F.R. § 2804.10 encourages developers to schedule a pre-application meeting with the BLM before submitting the SF 299 ROW application. The general purpose of the pre-application meeting, as outlined by Instruction Memorandum No. 2011-061 is to:

  • Identify potential environmental and siting constraints;
  • Determine whether lands are available for proposed right-of-way uses;
  • Discuss potential alternative site locations;
  • Discuss time frames for processing proposed applications;
  • Inform applicants of financial obligations in processing an application; and
  • Facilitate coordination with federal, state, tribal and local government agencies.

The BLM has posted a pre-application checklist that describes the issues to be discussed at the pre-application meetings.

Many of the requirements discussed in the pre-application meeting are outlined in the site evaluation section of this roadmap. See On-Site Evaluation Process: 10(1).

Early coordination is required by 43 C.F.R. § 2804.10(b). The BLM will help the developer coordinate with other stake holders (including other federal agencies, state agencies, tribal governments, and local governments) and will invite them to participate in the pre-application meeting.

Upon completion of the pre-application meetings, the BLM will screen the proposed project to determine the priority given to the application. 43 C.F.R. § 2804.25 defines processing times for ROW applications. ROWs that require an Environmental Impact Statement (EIS) will almost always fall into category 6, which requires over 60 days of processing time. The BLM has discretion to prioritize category 6 applications.

3-FD-c.7 to 3-FD-c.8 – Does the ROW Conform with the Land Use Plan

43 C.F.R. § 1610.5-3 requires all projects sited on BLM-managed public land to conform to the Resource Management Plan (RMP) governing the relevant land unit. The BLM will assess whether transmission development at the proposed site conforms to the relevant RMP during the pre-application process. If the proposed project does not conform with the relevant RMP, the developer may request that the BLM amend the RMP. The amendment (and attendant environmental analysis) should be conducted concurrently with the review of the ROW application and the ROW NEPA analysis.

As stated above, some RMPs already authorize designated transmission corridors. If the proposed project is sited within one of these designated transmission corridors, no amendment is necessary. In addition, the West Wide PEIS ROD amended 92 RMPs in 11 western states to include Section 368 Corridors across BLM land. Projects sited within the Section 368 Corridors will not require any additional amendments.

The developer should continuously communicate with BLM to ensure ongoing consistency with the land use plan. Land use plans may be under revision, and constant contact with BLM is the most effective way to ensure that the developer is aware of any pertinent changes. For more information regarding the BLM Land Use Amendment Process, see Land Use Plan Amendment Process:
1-FD-b.

3-FD-c.9 – Application for Transportation and Utility Systems with Facilities on Federal Lands (Form SF299); Plan of Development

After the pre-application process has been completed, the developer should complete Form SF299, or the Application for Transportation and Utility Systems with Facilities on Federal Lands. The application form is not long, and most of the required items are easily completed with specific instructions included in the form itself. However, there are a number of critical items that require greater amounts of work and attention, the most important of which is the Plan of Development (POD).

Plan of Development 43 C.F.R. § 2804.25(f) authorizes the BLM to require additional information from the developer in addition to the SF299, including a POD. BLM Manual 2804.10(D)(1)(b) and (c) require a POD when a proposed project requires an EIS or the ROW proposal is a major project (e.g. 500kv transmission line or greater). A POD should include information regarding “construction, operation, rehabilitation, and environmental protection…” See 43 C.F.R. § 2804.25(c). In addition, the BLM has created a Powerline POD outline that identifies the minimum requirements for a powerline POD. However, the BLM may request information in excess of the minimum requirements. The BLM may require the developer to supplement the POD with additional information at any time during the application process.

In addition, the BLM requires developers to provide documentation of their financial and technical capability to construct and maintain the proposed facility. This information may be included in the POD. See BLM Manual 2803.10(C) and 43 C.F.R. § 2804.12(a)(5).

43 C.F.R. § 2804.26(a)(5) authorizes the BLM to reject an application where the developer is not sufficiently competent.

The POD provides the BLM with the informational basis to conduct the ROW NEPA analysis and the application review process. The developer must submit the POD prior to the initiation of NEPA analysis. The developer is required to strictly adhere to BLM POD submission schedules. Failure to do say may result in the BLM rejecting the application.

3-FD-c.10 to 3-FD-c.11 – Review Application Material for Completeness

The BLM will review the initial application and notify the developer within 30 calendar days whether the application is complete and ready for formal review, or whether additional information must be submitted. Once the application is complete, the review process can continue.

3-FD-c.12 – Establish Written Processing Agreement

Processing fees for ROW applications are governed by 43 C.F.R. § 2804.14 and 43 C.F.R. § 2804.19. 43 C.F.R. § 2804.14 contains a processing schedule, with six processing categories based on the estimated number of hours required to process the ROW application. Applications that require over 50 hours of processing time are placed in processing category 6.

43 C.F.R. § 2804.19 requires the BLM and the developer to enter into a written agreement that describes how the BLM will process a Category 6 Application. The agreement should contain a Work Plan (including NEPA analysis) and a Financial Plan. In some cases, the BLM allows developers to perform some of the processing work (generally aspects of the NEPA analysis), but the work must be performed to BLM standards. The BLM periodically estimates costs for specific work periods and notifies the developer of the amount due. Each invoice must be paid before the BLM will continue processing the application.

3-FD-c.13 to 3-FD-c.14 – Has NEPA Been Completed for the ROW?

The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental consequences of their proposed actions and any reasonable alternatives, before undertaking a major federal action. An Environmental Impact Statement (EIS) is required when a major federal action significantly affects the quality of the human environment. See 40 C.F.R. § 1502.3. If the effects of the action are not significant an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be sufficient.

The BLM has already conducted a thorough environmental review of Section 368 Corridors during the West Wide PEIS process. A site-specific environmental review is still required for transmission ROW authorizations within Section 368 Corridors, but it is designed to tier with the West Wide PEIS. Tiering is defined as “using the coverage of general matters in broader NEPA documents in subsequent, narrower NEPA documents.” See 40 C.F.R. § 1508.28. Tiering allows the site-specific review to incorporate analyses of significant impacts by reference, thereby reducing redundancy and allowing the site-specific review to focus on issues not already addressed. If all of the relevant impacts have been analyzed in the West Wide PEIS, or if the impacts are not significant, an EA/FONSI will be sufficient. Otherwise, an EIS may be required. An EA/FONSI is preferred, because it is faster and cheaper than preparing an EIS. The BLM authorized officer, in conjunction with the BLM Washington Office, will determine the appropriate level of NEPA analysis. For additional information regarding tiering, see the BLM NEPA handbook, H-1790-1.

As stated above, the NEPA process cannot begin until the developer has submitted a POD. The developer will be required to pay for the NEPA analysis, which may take over two years to prepare. The NEPA process must be completed before the BLM can issue an ROW. For more information on the BLM NEPA process, see Bureau of Land Management - NEPA Review Overview:
9-FD-a.

3-FD-c.15 to 3-FD-c.16 - Does the ROW Conform with the Land Use Plan?

43 C.F.R. § 1610.5-3 requires all projects sited on BLM-managed public land to conform to the Resource Management Plan (RMP) governing the relevant land unit. Following NEPA review, the developer should consult with BLM to ensure that the current project specifications comply with the current RMP. If the proposed project does not conform with the relevant RMP, the developer may request that the BLM amend the RMP. The amendment (and attendant environmental analysis) should be conducted concurrently with the review of the ROW application and the ROW NEPA analysis.

As stated above, some RMPs already authorize designated transmission corridors. If the proposed project is sited within one of these designated transmission corridors, no amendment is necessary. In addition, the West Wide PEIS ROD amended 92 RMPs in 11 western states to include Section 368 Corridors across BLM land. Projects sited within the Section 368 Corridors will not require any additional amendments.

The developer should continuously communicate with BLM to ensure ongoing consistency with the land use plan. Land use plans may be under revision, and constant contact with BLM is the most effective way to ensure that the developer is aware of any pertinent changes. For more information regarding the BLM Land Use Amendment Process, see Land Use Plan Amendment Process:
1-FD-b.

3-FD-c.17 to 3-FD-c.18 – Process Application

Once the application has been submitted the BLM reviews it for completeness. The BLM also reviews the project proposal for land use conflicts and conformance with the applicable land use plan. The BLM determines a processing category for the application (usually category 6 for transmission lines over 500kV) and begins the NEPA process. The processing fees will be governed by the processing agreement, as discussed in 3-FD-d.17.

ROW applications are generally processed in the order they are received, but a thorough and complete application can move ahead of an incomplete or error ridden application. In addition, the BLM may institute competitive bidding procedures if competition exists for the same site, as discussed above.

The BLM is required to complete reviews, inventories and reports as part of the NEPA analysis and application review. Consequently, review of major transmission ROW applications may take two or more years to complete. Once the review process is complete, the developer will be notified in writing of the BLM’s decision.

3-FD-c.19 to 3-FD-c.21 – Send Developer Written Decision Explaining Denial

If the BLM rejects an application, it will send the applicant a written decision explaining the reasons for the denial. The BLM may deny an application if:

  • The proposed use is inconsistent with the purpose for which BLM manages the public lands described in the application;
  • The proposed use would not be in the public interest;
  • The developer is not qualified to hold a grant;
  • Issuing the grant would be inconsistent with the Acts, laws or regulations;
  • The developer does not have or cannot demonstrate the technical or financial capability to construct the project or operate facilities within the right-of-way; or
  • The developer does not adequately comply with a deficiency notice (see §2804.25(b) of this subpart) or with any BLM requests for additional information needed to process the application.

See 43 C.F.R. § 2804.26.

43 C.F.R. § 2804.26 and 43 C.F.R. § 2801.10 allow an applicant to appeal a ROW denial in accordance with the procedures found in 43 C.F.R. §§ 4.1-4.1610.

3-FD-c.22 to 3-FD-c.25 – Send Unsigned Grant Containing Terms, Conditions and Stipulations to Applicant

If the BLM approves the ROW application, it sends the applicant the ROW grant to review and sign. The ROW grant will contain numerous terms, conditions, and stipulations that the applicant is required to agree to and comply with, including;

  • The Term of Authorization - Title V of FLPMA and the BLM regulations limit the term of authorization for a ROW to a reasonable length. ROW authorizations are generally limited to 30 years, although they may be longer is some cases. See BLM manual 2805.11(C).
  • Performance and Reclamation Bonds - 43 U.S.C. § 1764(i) and 43 C.F.R. § 2805.12(g) authorize the BLM to require a bond as part of the ROW grant. Bonds are normally required and are used to “cover any losses, damages, or injuries to human health, the environment and property in connection with the use and occupancy of the ROW…” See BLM manual 2805.12(D). Bonds usually apply to specific stipulations, and the amount of the bond is determined by estimating the cost to the United States of satisfying all of the stipulations in the event of noncompliance.
  • Rent – The BLM uses a per acre rental schedule to determine rental fees for linear rights of way. The annual per acre rent is determined by multiplying the per acre zone value by the encumbrance factor by the rate of return by the annual adjustment factor. The per acre rental values are adjusted every year and the schedule is revised every 10 years. See 43 C.F.R. § 2806.20 and 43 C.F.R. § 2806.22. Rental schedules can be obtained from BLM state or field offices.
  • Interagency Operating Procedures – as stated above, many IOPs require the inclusion of specific stipulations in the ROW grant. These stipulations will generally relate to the construction, operation or decommissioning of a project. Developers siting projects within Section 368 Corridors should review the IOPs found in the West Wide PEIS ROD.

Other terms and conditions will be required, many of which will be tailored to the specific project. Failure to comply with any of the terms, conditions or stipulations may result in suspension or cancellation of the ROW. In order to suspend or terminate the ROW, the BLM must first notify the developer and give the developer a reasonable opportunity to correct any non-compliance. See 43 C.F.R. § 2807.17; 43 C.F.R. § 2807.18 Upon receiving the ROW grant, the developer should review and sign it. The developer must then return the signed grant to the BLM, along with any required initial payments, such as monitoring fees and the initial base rent. Once the BLM receives the signed grant and the initial payments, a BLM officer will sign and return a completed copy of the ROW grant to the developer.

3-FD-c.26 to 3-FD-c.27 - Have the ROW Stipulations Been Met?

The grant may include a requirement for BLM to provide a written Notice to Proceed. If the grant contains such a provision, then the developer may not initiate construction, operation, maintenance, or termination until BLM issues the Notice to Proceed.


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