Bureau of Land Management - Land Right-of-Way (3-FD-c)
Bureau of Land Management - Land Right-of-Way Process
3-FD-c.1 to 3-FD-c.2 – Is a Right-of-Way Authorization Required to Use Bureau of Land Management (BLM) Land?
The Bureau of Land Management (BLM) may require a right-of-way (ROW) for hydropower 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, issue, or renew ROWs, upon, under, or through BLM-managed lands for the generation, transmission, and distribution of electric energy. 43 USC 1761(a).
However, the BLM’s authority to require a right-of-way (ROW) depends on the date the developer proposed the hydropower project. The BLM may only issue a ROW for hydropower projects proposed after October 24, 1992 (enactment of EPAct 1992) or hydropower projects seeking to expand onto additional BLM lands after October 24, 1992. 43 USC 1761(d).
For projects proposed prior to October 24, 1992, and not seeking to expand, the BLM’s authority to issue section 4(e) conditions or 10(a) recommendations under the Federal Power Act are the primary means by which the BLM ensures the protection of affected BLM lands and resources.
3-FD-c.3 – Contact BLM to Initiate Process
The developer should contact the BLM early on in the planning process to initiate the right-of-way (ROW) application process.
3-FD-c.4 - Pre-Application Checklist
The developer should review the BLM’s Right-of-Way Pre-Application Checklist, which outlines the items to be discussed in the pre-application meeting and gather the required information. BLM - Obtaining a Right-of-Way on Public Lands.
3-FD-d.5 - Conduct Pre-Application Meeting
Before filing an application for a ROW grant, the BLM recommends the developer make an appointment for a pre-application meeting with the appropriate personnel in the local BLM field office. The pre-application meeting is conducted between the BLM and the developer and can significantly reduce the possibility of the developer’s ROW application being denied. 43 CFR 2804.10.
The pre-application meeting provides the opportunity for the developer to fully discuss and describe the proposal in detail and provides an opportunity for the BLM to fully explain the processing requirements. The developer should bring a map of the project area to the meeting. The pre-application meeting will also cover fees, safety, work schedules, and other items. This meeting has the potential to save both the developer and the BLM time and expense. Bureau of Land Management - Obtaining a Right-of-Way on Public Lands Guidance.
During the pre-application meeting, the BLM can:
- Identify potential routing and other constraints;
- Determine whether the lands are located inside a designated or existing right-of-way corridor or a designated leasing area;
- Tentatively schedule the processing of the proposed application; and
- Inform the developer of its financial obligations, such as processing and monitoring costs and rents.
The developer should review the pre-application form before attending the pre-application meeting and may fill out the pre-application prior to or during the meeting. Bureau of Land Management - Obtaining a Right-of-Way on Public Lands Guidance.
3-FD-c.6 to 3-FD-c.8 - Application for Transportation and Utility Systems with Facilities on Federal Land (SF-299)
The developer should submit an Application for Transportation and Utility Systems and Facilities on Federal Lands (SF-299) (Application) to the BLM at the same time that the developer submits to the Federal Energy Regulatory Commission (FERC) its application for a FERC license.
The Application must include, at minimum, the following:
- A detailed description of the project, its location, and dimensions;
- A legal description of the affected public land;
- A map showing the approximate location of the proposed ROW on BLM-managed lands and existing improvements adjacent to the proposal;
- A statement of the developer’s technical and financial capability to complete the project;
- A description of reasonable alternatives that BLM could considered in the analysis of the project; and
- Information related to the use or transportation of any hazardous materials.
Once complete, the developer must deliver the Application to the BLM office having jurisdiction over the lands affected by the proposed ROW. 43 CFR 2804.11.
The BLM notifies the developer in writing when it receives the Application. The BLM then reviews the Application to make sure all the necessary information is included and will request additional information as necessary. 43 CFR 2804.25.
3-FD-c.9 to 3-FD-c.10 - Does the ROW Conform to the Land Use Plan?
The BLM evaluates the developer’s SF-299 application to ensure that the proposed use is consistent with, or can be made consistent with any preexisting land use plans. The BLM may deny the developer’s request for a ROW if the proposal is in conflict with the BLM’s land use plan. If the BLM denies the ROW application, the developer may appeal the decision in accordance with the procedures found in 43 CFR 4 et seq. 43 CFR 2804.26(8).
The BLM also evaluates the application to ensure that there are no other apparent conflicts, such as other valid existing rights to the lands requested in the developer’s application. BLM has the discretion to grant a ROW if doing so is in the public interest. Bureau of Land Management - Obtaining a Right-of-Way on Public Lands Guidance.
3-FD-c.11 to 3-FD-c.13 - Will FERC Be the Lead Agency for the NEPA Process?
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 CFR 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 developer’s submission of a SF-299 application for a ROW triggers the NEPA process. However, for hydropower development on BLM land, the lead agency for the NEPA process could be either FERC or the BLM.
FERC will be the lead agency, and will conduct a NEPA analysis, where the project is licensed by FERC. The NEPA process FERC will follow will vary depending on which FERC licensing process is used. Under the Traditional Licensing Process, FERC’s typical NEPA process will be followed. Under the Alternative Licensing Process and the Integrated Licensing Process, the NEPA process is combined with the FERC licensing process.
For more information on the USFS NEPA process, see:
U.S. Forest Service - NEPA Review:
The BLM may choose to conduct an independent NEPA analysis, supplement and adopt FERC’s NEPA analysis, or approve and adopt FERC’s NEPA analysis as its own. 43 CFR 2804.25. If the BLM decides to conduct an independent NEPA analysis or to supplement FERC’s NEPA analysis, it will incorporate the information developed by FERC to the greatest extent possible.
The BLM is responsible for NEPA compliance for hydropower projects located on BLM lands that are exempt from FERC licensing. For more information on the FERC NEPA process, see:
3-FD-c.14 - Determine Processing Fee Category
If the developer’s proposed use conforms with the BLM’s land use plan and no other conflicts appear, the BLM then determines the developer’s application processing fee. The processing fee is based on the amount of time the BLM estimates it will take to process the ROW application. ROW applications that require over 50 hours of processing time are placed in processing category 6. 43 CFR 2804.14. Large hydropower projects that require a NEPA analysis will almost always be placed in category 6.
The developer must reimburse the BLM in advance for the cost of processing ROW application. 43 CFR 2804.28.
3-FD-c.15 to 3-FD-c.16 – Process Application
Once the application is complete and the application processing fee is received, BLM continues with the review process.
The BLM generally processes ROW applications in the order they are received. The BLM may consider an application that is thorough and complete before considering an application that is incomplete or insufficient. However, the BLM’s consideration of an application may still be delayed for several reasons, including the time needed for the BLM to:
- Inventory work or studies to be completed;
- Complete required inventories;
- Consult with other agencies;
- Consider alternative land use applications;
- Manage priority workloads;
- Respond to weather or seasonal considerations.
3-FD-c.17 to 3-FD-c.18 – Does the Project Require a FERC License?
If the developer is seeking a license from the Federal Energy Regulatory Commission, the BLM may have authority, under the Federal Power Act, to impose section 4(e) conditions on the FERC license. 16 U.S.C. § 797(e).
As part of the section 4(e) process, the BLM will provide FERC with any license conditions BLM deems necessary for the protection of BLM-managed lands or resources. 16 U.S.C. § 797(e). The BLM will formulate the section 4(e) conditions to reflect the terms and conditions the BLM intends to include in the ROW.
Once FERC issues the FERC license with the 4(e) conditions, the BLM will incorporate the conditions, as they appear in the FERC license, into the terms and conditions of the ROW.
3-FD-c.19 to 3-FD-c.22 – Has the Application Been Approved?
If the BLM denies the developer’s application for a ROW, the BLM will provide the developer with a written decision explaining the reasons for the denial. The BLM will also provide information on how and where the developer may file an appeal. 43 CFR 2805.10.
The BLM may deny the developer’s request for a ROW for a number of reasons, including the following:
- 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 Act, other laws, or these or other 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;
- The PODs required by §§2804.25(e)(3) and 2804.12(a)(8) and (c)(1) do not meet the development schedule or other requirements in the POD template and the developer is unable to demonstrate why the POD should be approved; or
- Failure to commence necessary surveys and studies, or plans for permit processing as required by §2804.25(c).
3-FD-c.23 to 3-FD-c.24 – Notify Developer of Approval
If after completing the necessary reviews, inventories and reports, the BLM decides to grant the developer’s request for a ROW, the BLM will notify the developer in writing of its decision. 43 CFR 2805.10.
At this time, the BLM requests that the developer review and sign the ROW Grant and pay the rent and monitoring fee. The monitoring fee reimburses the BLM for monitoring the construction, operation, maintenance, and termination of the project, including protection and rehabilitation of the public lands involved. BLM determines the appropriate Monitoring Category fee and notifies the developer of the rent and monitoring fee in writing. 43 CFR 2805.16.
3-FD-c.25 – Sign and Return ROW Authorization with Required Payments
Before the BLM will issue the ROW, the developer must sign the ROW Grant and pay the required fees. 43 CFR 2805.13.
3-FD-c.26 – Right-of-Way Authorization Grant
The BLM generally waits to grant a ROW until after FERC issues the project license. This allows the BLM to incorporate any section 4(e) conditions of the FERC license into the ROW.
Once FERC issues the license and the BLM receives all of the required fees and a signed copy of the ROW Grant, the BLM signs and returns a copy of the completed ROW Grant to the developer. Bureau of Land Management - Obtaining a Right-of-Way on Public Lands Guidance.
The BLM will inspect and monitor the project for compliance with the terms and conditions of the grant. In addition, the BLM reserves the right of access onto the public lands covered by the ROW grant and, with reasonable notice to the holder, the right of access and entry to any facility constructed in connection with the project. 43 CFR 2805.15.
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- Federal Land Policy and Management Act of 1976
- Federal Power Act
- National Environmental Policy Act
- Title 40 CFR 1502 Environmental Impact Statement
- Title 43 USC 1761 Grant, Issue, or Renewal of Rights-of-Way
- Title 43 CFR 2804 Applying for FLPMA Grants
- Title 43 CFR 2805 Terms and Conditions of Grants
- Title 43 CFR 2801.10