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U.S. Forest Service - Transmission Right-of-Way (3-FD-d)

Information current as of 2020
In the United States, a developer may need a Right-of-Way (ROW) authorization for a project on United States Forest Service (USFS)-managed public lands under Title V of the Federal Land Policy and Management Act of 1976 (FLPMA). The USFS grants ROW authorizations for the generation, transmission and distribution of electric energy, as special use authorizations. 36 C.F.R. §§ 251.9-251.126.

Transmission lines on USFS managed land may be sited within ROW corridors. The Secretary of Agriculture must 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. Section 503 of FLPMA

ROW Corridors

Corridors are generally established through the Land Management Plan (LMP) amendment process. The Secretary of Agriculture designated transmission corridors on USFS land in 11 western states. The USFS, in conjunction with the Bureau of Land Management (BLM) 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 LMPs. Energy Policy Act, 42 U.S.C. § 368.

Interagency Operating Procedures

The 2009 ROD established Interagency Operating Procedures (IOPs) for ROW Applications within the energy transmission corridors established in the 11 contiguous western states. IOPs are required for project applications within Section 368 Corridors. The IOPs can be 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 to agency standards found in an agency guidebook; require that 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 Plan of Development (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 USFS special use authorization regulations. Additionally, the USFS will only issue a special use authorization if the use is consistent with the mission of the Forest Service and if the use cannot reasonably be accommodated on non-National Forest Service lands.

U.S. Forest Service - Transmission Right-of-Way Process

3-FD-d.1 – Contact USFS to Initiate Process

The developer must contact the USFS officer with jurisdiction over the proposed site as early as possible in advance of the proposed use. 36 C.F.R. § 251.54(a).

3-FD-d.2 to 3-FD-d.3 – Conduct Pre-Proposal Meeting

The pre-proposal meeting (also known as the pre-application meeting) allows the developer to obtain information regarding the requirements for obtaining a special use authorization. The USFS officer explains the proposal and application process and outlines the terms and conditions that must be included in the special use authorization. At a minimum, the USFS officer should advise the developer of the following:

  • The proposal must pass the nine criteria in the initial screening process to be considered for further screening;
  • Preference in processing applications and issuing authorizations is given to uses that offer public services and benefits over private uses;
  • Special application procedures may apply to a particular land use or administrative unit;
  • A proposal for a commercial use may involve a competitive interest determination and USFS solicitation;
  • A planning permit issued on form FS-2700-4 may be required for complex or sensitive proposals.

Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, § 12.1.

In addition, the USFS officer advises the developer regarding additional permits and consultations that may be required. Many of these requirements are discussed in the site evaluation section of this roadmap. See On-Site Evaluation Process: 10.

3-FD-d.4 to 3-FD-d.6 – Request Planning Permit, if Necessary

The developer may request planning permits for major developments. Planning permits may be valid for a term of up to ten (10) years. In some cases, a planning permit may be required. Once the on-the-ground investigation and master development plan are complete, the developer submits an Application for a special use authorization. The planning permit request must still pass the initial and secondary screening process, but issuance of the permit is categorically excluded from the National Environmental Policy Act (NEPA) process. See Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, §12.1.5.

If a planning permit is not requested or required, the developer should submit a proposal to the USFS. The developer must file a proposal for a special use authorization orally or in writing with the appropriate District Ranger or Forest Supervisor. In addition to basic information identifying the developer, the proposal must include:

  • Sufficient evidence that the developer has or will have, prior to commencement of construction, the technical and financial capability to construct, operate, maintain, and terminate the proposed use ( 36 C.F.R. § 251.54(d)(3));
  • Except for requests for a planning permit for a major development, a description of the project, including maps and appropriate resource information, in sufficient detail to enable the Authorized Officer (AO) to determine the feasibility of the proposed use or activity; any benefits to be provided to the public; safety issues associated with the proposal; the lands to be occupied or used; the terms and conditions to be included in the authorization; and the proposal's compliance with applicable laws, regulations, and orders ( 36 C.F.R. § 251.54(d)(4)).
  • Any other information and data requested in writing by the AO that are needed to determine the feasibility of the proposed use; the proposal's compliance with applicable laws, regulations, and orders; the proposal's compliance with requirements for clearances, certificates, permits, or licenses; and suitable terms and conditions to be included in the authorization ( 36 C.F.R. § 251.54(d)(5)).

See Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, §12.11(a).

If the developer is a private or public corporation, the AO may also request information regarding the corporation’s organization, makeup and standing. See Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, § 12.11(a)(2)(b) and (d); 36 C.F.R. § 251.54(d)(2)(ii)(B), (D)(1)-(5).

3-FD-d.7 to 3-FD-d.9 – Initiate Initial Screening of Proposal

After the proposal is filed, the AO conducts an initial screening to determine whether the proposed action is consistent with existing laws, regulations, and applicable LMPs. In order to pass the initial screening process, the proposal must meet nine (9) criteria:

  • The proposed use is consistent with the laws, regulations, orders, and policies establishing or governing National Forest System lands, with other applicable federal law, and with applicable state and local health and sanitation laws;
  • The proposed use is consistent or can be made consistent with standards and guidelines in the applicable forest land and resource management plan prepared under the National Forest Management Act and 36 C.F.R. § 219;
  • The proposed use will not pose a serious or substantial risk to public health or safety;
  • The proposed use will not create an exclusive or perpetual right of use or occupancy;
  • The proposed use will not unreasonably conflict or interfere with administrative use by the USFS, other scheduled or authorized existing uses of the National Forest System, or use of adjacent non-National Forest System lands;
  • The developer does not have any delinquent debt owed to the USFS under terms and conditions of a prior or existing authorization, unless such debt results from a decision on an administrative appeal or from a fee review and the proponent is current with the payment schedule;
  • The proposed use does not involve gambling or providing of sexually oriented commercial services, even if permitted under state law;
  • The proposed use does not involve military or paramilitary training or exercises by private organizations or individuals, unless such training or exercises are federally funded; and
  • The proposed use does not involve disposal of solid waste or disposal of radioactive or other hazardous substances.

See 36 C.F.R. § 251.54(e)(1). For explanations and examples regarding the above criteria, see Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, §12.21.

If the proposal fails one or more of the initial screening criteria, the AO returns the proposal to the developer along with a written explanation (or oral explanation if the proposal was filed orally) of the denial. If the proposal is denied after the initial screening, it will not receive further evaluation. See 36 C.F.R. § 251.54(e)(2).

If the proposal passes the initial screening, the AO notifies the developer that the proposal is subject to second level screening. At this point, the AO provides the developer with additional information required to continue the approval process. At a minimum, the AO provides the developer with guidance and information regarding the following:

  • Possible land use conflicts as identified by review of forest land and resource management plans, landownership records, and other readily available sources;
  • Proposal and application procedures and probable time requirements;
  • Developer qualifications;
  • Applicable fees, charges, bonding, and/or security requirements;
  • Necessary associated clearances, permits, and licenses;
  • Environmental and management considerations;
  • Special conditions; and
  • Identification of on-the-ground investigations which will require temporary use permits

See 36 C.F.R. § 251.54(e)(2); Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, §12.3.

3-FD-d.10 to 3-FD-d.15 – Initiate Second Level Screening of Proposal

Once the proposal has passed the initial screening and the developer has been notified, the AO performs a second level screening. The AO may request additional information to obtain a full description of the proposed project and its effects. For example, the project description must identify:

  • The location and scope of the proposed use, the resources affected, anticipated improvements, and method of operation when construction is complete;
  • Construction phases and their estimated starting and completion dates;
  • Any technical requirements for development or operation of the project; and
  • Other federal, state, and private lands affected by the proposed use and any other agencies that have licensing or regulatory authority over the proposed use.

A project proposal may pass the initial screening without this information, but it is required in order to pass the second level screening. Therefore, the AO may request the additional necessary information in order to complete the analysis.

See 36 C.F.R. § 251.54(e)(5); Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, §12.31(b).

The AO must reject a proposal after the second level screening if:

  • The proposed use would be inconsistent or incompatible with the purposes for which the lands are managed, or with other uses; or
  • The proposed use would not be in the public interest; or
  • The developer is not qualified; or
  • The developer does not or cannot demonstrate technical or economic feasibility of the proposed use or the financial or technical capability to undertake the use and to fully comply with the terms and conditions of the authorization; or
  • There is no person or entity authorized to sign a special use authorization and/or there is no person or entity willing to accept responsibility for adherence to the terms and conditions of the authorization

See 36 C.F.R. § 251.54(e)(5); Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, §12.32.

If the proposal passes the initial and second level screening, the AO notifies the developer that the USFS will accept a written Application. The AO provides the developer with additional guidance and information regarding the Application process, including the USFS procedures for processing the Application and estimated time requirements. Once an Application is accepted, NEPA is triggered. See 36 C.F.R. § 251.54(g)(1).

If the proposal fails to pass the second level screening, the AO returns the proposal to the developer along with a written explanation for the denial. Unlike proposals that fail to pass the initial screening, the AO may reconsider proposals that failed to pass the second level screening. The proposal must be corrected and resubmitted to the AO before it may be reconsidered. See 36 C.F.R. § 251.54(g)(1); Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, §12.4.

3-FD-d.16 to 3-FD-d.18 – Application for Transportation and Utility Systems with Facilities on Federal Lands (Form SF299)

After the pre-application process has been completed, the developer should complete Form SF299, also known as the Application for Transportation and Utility Systems with Facilities on Federal Lands. The AO reviews the proposed use for the requested site, including effects on the environment, based on the Application. The AO may require additional information in the Application, in addition to the information provided in the proposal, in order to obtain a full description of the project’s proposed use and its effects. The information in the Application should form the basis of the NEPA review. See 36 C.F.R. § 251.54(g)(2)(i).

The USFS 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-d.19 – Consult with DOE

The USFS is required to consult with the United States Department of Energy (DOE) when it accepts a special use authorization request for transmission lines with a capacity of 66kV or higher. A copy of the application and related documents describing the request must be forwarded to the Secretary of Energy. See Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, § 11.11.

3-FD-d.20 – Establish Cost Recovery Agreement

36 C.F.R. § 251.58 and Forest Service Handbook 2709.11 – Special Uses Handbook, Chapter 20, govern USFS cost recovery and processing fees. The USFS may recover necessary processing fees for Special Use Applications. 36 C.F.R. § 251.58 contains a processing schedule, with six processing categories based on the estimated number of hours required to process the Special Use Application. Applications that require over 50 hours of processing time are placed in processing category 6. Large transmission projects that require a NEPA analysis will almost always be placed in category 6.

The USFS estimates the agency’s processing cost for Category 6 Applications based on the complexity of the project, the amount of information required to assess the Application, and the degree to which that information can be provided by the developer. 36 C.F.R. § 251.58(c)(1). When processing Category 6 Applications the USFS agent must determine the issues to be addressed and develop preliminary work and financial plans for estimating recoverable costs.

For Category 6 Applications, the USFS and developer may enter into a Category 6 Major Cost Recovery Agreement. Developers who enter into this Agreement may qualify for a reduction in processing fees, in accordance with 36 C.F.R. § 251.58(c)(1)(ii). The developer may request a reduction in processing fees based on its written analysis of:

  • Actual costs;
  • The monetary value of the rights or privileges to be granted;
  • That portion of the costs incurred for the benefit of the general public interest;
  • Any public service to be provided;
  • The efficiency of the USFS processing or monitoring; and
  • Other factors relevant to determining the reasonableness of the costs.

Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 20, § 23.41 The USFS determines whether the processing fees should be reduced based on the developer’s analysis and notifies the developer of its decision in writing.

Processing fees must be paid in full before the USFS will process the Application, unless a category 6 major cost recovery agreement provides for periodic payments. See Forest Service Handbook 2709.11 – Special Uses Handbook, Chapter 20, Section 26(3)(a). If the estimated cost of the Category 6 Application is lower than the full reasonable cost, the developer is responsible for the difference. Likewise, if the payment exceeds the full reasonable cost, the developer will receive a refund. See 36 C.F.R. § 251.58(c)(5)(iii) and (6)(iii).

3-FD-d.21 to 3-FD-d.22 – Does the Special Use Authorization Conform to the Land Management Plan?

36 C.F.R. § 219.15(d) requires all projects and activities approved on USFS-managed land to be consistent with the applicable LMP. As stated above, the AO will assess whether the proposed use is consistent, or can be made consistent, with the applicable LMP during the initial assessment. If necessary, the developer may petition the USFS to amend the LMP to include the proposed use. For more information regarding the USFS Land Use Amendment Process, see Land Use Plan Amendment Process:

Some LMPs 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 amended LMPs in 10 western states to include Section 368 Corridors across USFS-managed land. Projects sited within the Section 368 Corridors will not require any additional amendments.

3-FD-d.23 to 3-FD-d.24 – Has NEPA Been Completed for the Special Use Authorization?

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.

Chapter 10, section 12.52 of the Forest Service Handbook 2709.11 – Special Uses Handbook states that “[a]n environmental analysis must be conducted pursuant to NPEA to determine the effect the proposed use may have on the natural and human environment ( 36 C.F.R. § 251.54(g)(2)).” The developer is responsible for NEPA related costs, and the NEPA process must be completed before a special use authorization can be issued.

The USFS 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 special use 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 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.

For more information on the USFS NEPA process, see USFS NEPA Process:

3-FD-d.25 to 3-FD-d.26 – Process Application

Once the USFS receives form SF-299, the AO reviews the Application and evaluates the requested use for the requested site. See 36 C.F.R. § 251.54(g)(2). The Application should be processed concurrently with the NEPA review. Authorizations may not be issued until all pre-requisites have been met and the administrative appeal period has expired.

3-FD-d.27 to 3-FD-d.29 – Return Application with Written Decision Explaining Denial

If the Application is denied, the AO returns the Application to the developer with a written explanation of the denial. The developer may appeal the decision under 36 C.F.R. § 215.

3-FD-d.30 to 3-FD-d.34 – Notify Developer of Approval

If the USFS approves the special use authorization, it notifies the developer in writing. The USFS meets with the developer to discuss the terms and administration of the authorization. All of the terms and conditions included in the authorization are mandatory. In addition, the USFS provides the developer with the anticipated schedule of authorization. For power lines, the USFS issues the special use authorization for electric transmission lines using form FS-2700-31 for a term not to exceed 50 years. All special use authorizations must:

  • Accurately identify the holder(s);
  • Cite the statutory authority for granting the authorization;
  • Specify a term consistent with Forest Service Handbook 2709.11 – Special Uses Handbook, Chap. 10, §n19, exhibit 2;
  • Accurately describe the area of use and the activity authorized;
  • Clearly state the use and privileges authorized, including improvements that may be installed or used.

In addition, the developer must be identified by name, business entity, partnership, corporation, association, municipality, or agency of the Federal, State or local government.

The AO includes applicable terms and conditions in FS-2700-31 and sends it to the developer for review, unsigned. The developer has 60 days from the receipt of the authorization to sign it. The developer’s signature makes all terms and conditions of the authorization binding. The developer returns the signed authorization to the AO. The authorization becomes effective as soon as it is received and signed by the AO.

36 C.F.R. § 251.56 requires special use authorizations to contain terms and conditions that will:

  • Carry out the purposes of applicable statutes and rules and regulations issued thereunder;
  • Minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment;
  • Require compliance with applicable air and water quality standards established by or pursuant to applicable federal or state law; and
  • Require compliance with state standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance if those standards are more stringent than applicable federal standards.

In addition, the AO may include any terms necessary to:

  • Protect federal property and economic interests;
  • Manage efficiently the lands subject to the use and adjacent thereto;
  • Protect other lawful users of the lands adjacent to or occupied by such use;
  • Protect lives and property;
  • Protect the interests of individuals living in the general area of the use who rely on the fish, wildlife, and other biotic resources of the area for subsistence purposes;
  • Require siting to cause the least damage to the environment, taking into consideration feasibility and other relevant factors; and
  • Otherwise protect the public interest.

Other terms that should be addressed include, but are not limited to:

  • Preconstruction Approvals - The USFS must approve the location, design and plans of all development within the authorized area prior to construction.
  • Rent – The USFS uses the BLM’s linear rental fee schedule for transmission special use authorizations across National Forest System land. Energy Policy Act, 42 U.S.C. § 367.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 ten (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.
  • Insurance – The developer must furnish proof of the insurance to the AO prior to the issuance of the electric power line special use authorization. The authorization may be conditioned upon a review of the policy and the United States must be named as an additional insured.
  • Bonding – The AO may require the developer to furnish a bond to secure obligations required by the terms and conditions of the special use authorization. The AO may increase or decrease the bond as necessary. 36 C.F.R. § 251.56(e)
  • Resource Protection – the special use authorization may include terms that address compliance with environmental laws, water pollution, esthetics, vandalism, pesticide use, archeological and paleontological discoveries, Native American graves protection and repatriation, protection of habitat and hazardous materials.
  • Interagency Operating Procedures – as stated above, many IOPs require the inclusion of specific stipulations in the special use authorization. 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. 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 special use authorization.

Other terms and conditions may be required, some of which may be tailored to the specific project. See form FS-2700-31 for a full list of standard electric transmission line easement terms and conditions.

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