National Park Service - Land Right-of-Way (3-FD-f)
Transmission lines on National Park Service (NPS) lands are authorized by a Right-of-Way (ROW) permit. A ROW permit is an authorization that allows a third party to pass over, under, or through NPS property. The ROW permit is both discretionary and revocable, and the NPS is required to refuse any use of NPS land that would impair or be in derogation of the values and purposes for which the applicable national park (park) was authorized or be incompatible with the public interested, except when authorized by Congress. In addition, there must be specific authority authorizing the requested use and no practicable alternative outside the park.
ROWs for transmission lines across NPS lands are authorized by both 16 U.S.C. 5 and 16 U.S.C. 79. Both statutes may be used to authorize electrical poles and lines for the generation and distribution of electrical power across NPS lands. NPS ROW regulations can be found in 36 CFR 14 et seq.
It is the policy of the NPS to require transmission lines to be placed underground where possible. All overhead lines should be moved underground, if possible, when the opportunity arises.
National Park Service - Land Right-of-Way Process
3-FD-f.1 to 3-FD-f.2 – Contact NPS; Send Developer Application Form SF 299
The developer initiates the ROW application process by sending a letter to the applicable park. Once received, the NPS park official sends the developer a copy of SF 299, along with information regarding the need for environmental and cultural compliance documents, a metes and bounds drawing, and submission of the standard fee. See RM-53.
3-FD-f.3 to 3-FD-f.4 – Hold Preliminary Meeting; Site Evaluation
Directors Order #53 DO-53, section 10.2, recommends the NPS to request a preliminary meeting with the applicant. If the proposal is large, controversial or complex, the NPS should require a meeting. The preliminary meeting allows the NPS to explain park procedures and concerns to the developer and learn about the developer’s timeframes and concerns.
The preliminary meeting is a good time for the developer to obtain information regarding the required permits and consultations, including compliance documentation related to the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). For additional information regarding required permits, consultations and compliance, see On-Site Evaluation: 10.
3-FD-f.5 to 3-FD-f.7 – Application for Transportation and Utility Systems with Facilities on Federal Land
After the preliminary meeting, the developer submits the Application for Transportation and Utility Systems with Facilities on Federal Land, also known as form SF 299. SF 299 allows the NPS to make a preliminary evaluation of the requested use. The NPS may request additional information, as needed, after SF 299 has been submitted.
The application should include a metes and bounds drawing that shows the route of the transmission line. The drawing must include the general and specific area of the requested use and a description of the lands and features for the NEPA and Section 106 NHPA processes. The drawing will be used to construct the legal description, calculate land and facility fees, and guide management in the decision and monitoring processes. For more information regarding the drawing, see RM-53, appendix 5, exhibit 1.
In addition, 36 CFR 14.23 and 14.24 require the developer to provide evidence of citizenship and corporate organization documents, while 36 CFR 14.78 contains additional application requirements specific to power transmission lines:
- A description of the plant that generates the power transported over the line;
- If the requested ROW is part a larger transmission line, a description of the entire line should be provided;
- A statement specifying the requested width of the ROW;
- If the line is to have a nominal voltage of 66 kV or more, the application should include a one-line diagram of the proposed line and the immediate interconnecting facilities including power plants and substations, a power flow diagram for proposed line and connecting major lines showing conditions under normal use, and typical structure drawings of proposed line showing construction dimensions and list of materials;
- Any application for a line right-of-way in excess of 100 feet in width or for a structure or facility right-of-way over 10,000 square feet must state the reasons why the larger right-of-way is required. Rights-of-way will not be issued in excess of such sizes in the absence of a satisfactory showing of the need therefor;
- A detailed description of any environmental impacts; and
- The proposed site, design, and construction of the project shall be consistent with the “Environmental Criteria for Electric Transmission Lines,” prescribed jointly by the Secretary of Agriculture, as well as such other environmental criteria and guidelines as the National Park Service shall from time to time prescribe.
After receiving the application, the NPS reviews it and notifies the developer if it is complete and ready for formal review. If not, the NPS may notify the developer of the deficiencies and provide the developer with an opportunity to correct them or withdraw the application. Otherwise, the NPS may reject the application. Once the application is complete, the review process can continue.
3-FD-f.8 – Is the Proposed Use Compatible with Park Values and Resources?
After receiving the application, the responsible NPS officer must make a managerial finding that the proposed use will not be an impairment or derogation of park resources or values, and that it is not incompatible with the public interest. The application may only be approved if the beneficial purposes and effects outweigh the negative environmental impacts. Consequently, the NPS will not permit uses that:
- Cause injury or damage to park resources;
- Are contrary to the purposes for which the park was established;
- Unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic or commemorative locations within the park;
- Unreasonably interfere with the interpretive, visitor service, or other program activities, or with the administrative activities of the NPS;
- Substantially impair the operation of public facilities or services of NPS concessioners or contractors;
- Present a clear and present danger to public health and safety; or
- Result in significant conflict with other existing uses.
If the proposed use results in any of the above conditions, the NPS denies the ROW application. See DO-53, Section 4.
3-FD-f.9 to 3-FD-f.12 – Preliminary Checklist; Complete NEPA Process; Submit Compliance Documents to the Regional Office for Review
The NPS requires the information listed in the preliminary checklist to screen the requested use under NEPA and the NHPA. The information is used to determine the appropriate analysis and environmental and cultural documents required under those two statutes. The information requested in the preliminary checklist is supplemental to form SF 299. The preliminary checklist should include:
- The type of requested use;
- The project name (a brief descriptive title);
- A proposal;
- The developer’s organization, company or agency/jurisdiction;
- The name, title, phone number, and mailing address of contact person;
- The area of park to be impacted by the use (including a map or drawing with the location indicated);
- All local, state, or federal agencies involved or contacted with respect to the project (include the name, phone number, title, and jurisdiction of the contact person);
- The proposed starting date;
- The proposed ending date;
- An explanation regarding the necessity of the project;
- An analysis of alternative routings or sites, inside and outside the park, and why are they not acceptable;
- The consequences if the project is not sited within the park;
- The scope, location and dimensions of project (include a written description, a general location map, engineering drawings, a site plan, or other descriptive information);
- A description of what is to be done (include details of the work involved and plans for project);
- The preferred method of accomplishing project (include the construction sequence/schedule - if there is interference with activities of the area, discuss detour routes, signing, a safety plan, and an erosion control plan);
- Alternative methods for accomplishing project and the reasons for selection of methods outlined above;
- A list of all major equipment to be used and its purpose, including the type and size of equipment to be used;
- A description of the effects of the project on the park and area during construction;
- A description of the long term effects of the project on the area after construction is completed;
- A description of steps taken to protect the project area, to minimize harmful effects and mitigate any permanent damage or loss discussed above;
- A description of steps taken to restore the project area and eliminate the evidence of work after the project is completed;
- A description of the cumulative effects from this and associated projects;
- Supporting documents, references, photographs, drawings, maps, or other items which clarify the proposal or support any conclusions. Include a list of any other persons consulted about this project (phone number/title/agency/letters);
See RM-53, page C6-7.
The NPS will not approve a ROW permit until NEPA and Section 106 of the NHPA have been complied with and the compliance documents are approved by the applicable NPS Regional Office (Regional Office).
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. For more information regarding the NPS NEPA process, see Environmental Review: 9.
Section 106 of the NHPA requires federal agencies to take into account the effects of their undertakings on historic properties. Undertakings are projects, activities, or programs funded by, or carried out by or on behalf of, an agency, whether agency jurisdiction is direct or indirect, and including federal financial assistance, permits, licenses, and approvals. If the agency determines that the undertaking will have no effect on any historic properties, no action is required. If the undertaking may have an effect on a historic property, the agency must consult with the appropriate State Historic Preservation Officer (SHPO) and Tribal Historic Preservation Officer (THPO), conduct a resource survey and perform an adverse effects assessment. This process may be completed as part of the NEPA process. See RM-53, section C-6; Advisory Council on Historic Preservation - Section 106 Regulations. For more information regarding section 106, see National Historic Preservation Act Section 106 - Resource Survey: 11-FD-a.
The NEPA and Section 106 compliance documents may be prepared by either the NPS or the developer. If the documents are prepared by the NPS, the developer must reimburse the NPS for the cost of their preparation.
After the documents are prepared, the park sends them to the Regional Office for review. If approved, the Regional Office returns the documents, along with any corrections or mitigation measures that must be included in the ROW permit. See RM-53, page A5-23.
3-FD-f.13 – Determine Estimate of All Costs and Send Estimate to Developer
36 CFR 14.22 requires the developer to reimburse the NPS for all costs incurred as a result of processing the ROW application. Cost reimbursement is divided into three charges; an application charge, an administrative charge and a monitoring charge. The developer must submit the application charge along with the application. The application charge covers preliminary work and an initial assessment of the application and is determined by the schedule found in 36 CFR 14.22(a)(3).
The developer must also pay the administrative charge, which reflects the actual costs incurred by the NPS in processing the right-of-way permit, from reception of a complete application to final permit approval and issuance or denial. The NPS may require the developer to make periodic payments of the estimated costs before those costs are incurred. See 36 CFR 14.22(a)(4). The developer may request a cost estimate of the total expected processing costs from the NPS based on the best available cost information. See 36 CFR 14.22(a)(9).
Once the ROW permit is approved, the developer will also be required to pay monitoring costs in accordance with 36 CFR 14.22(b). In addition, 36 CFR 14.26 requires the developer to pay a land use and occupancy fee. The Department of Interior, Office of Valuation Services manages the appraisal process, develosp a Statement of Work and selects the appraiser or appraisal firm. The use fee/rent for a telecommunications facility or utility infrastructure is based on market rent (economic rent) as found in the general market for similar or equivalent uses and as defined by the Uniform Standards of Professional Appraisal Practice (USPAP). Extensive research by a qualified appraiser into comparable leases/rents is expected.
Market rent is defined as the most probable rent that a property should bring in a competitive and open market reflecting all conditions and restrictions of the lease or permit agreement, including permitted uses, use restrictions, expense obligations, term, concessions, renewal and purchase options, and tenant improvements (TIs). See the Dictionary of Real Estate Appraisal, Fifth Edition.
3-FD-f.14 to 3-FD-f.15 – Is the ROW approved?; Send Written Denial to Developer
Once the Regional Office reviews the compliance documentation, a final decision is made to approve or deny the request. The denial should be provided to the developer in writing. The written denial should contain the park’s justification. See DO-53, section 7.
3-FD-f.16 – Draft ROW Permit
Once the Regional Office finishes its review of the compliance documents and approval is granted, the park drafts the ROW permit. The permit should incorporate any corrections or mitigation measures received from the Regional Office into the terms and conditions. The following should be included in the draft and final ROW permit:
- The WHEREAS statements;
- The authorities;
- The legal description;
- A centerline description;
- The effective date;
- The fees for use and occupancy and reimbursement of costs;
- The terms and conditions;
- The hold harmless clause;
- Other clauses, including insurance and bonding clauses, bankruptcy clauses, etc.; and
- The signature page
For more information, see RM-53, pages A5-7 through A5-9.
In addition to any terms and conditions required by the NPS, 36 CFR 14.9 prescribes general terms that must be included in all ROW permits and 36 CFR 14.76(a) prescribes specific terms for power transmission lines that must be included in a transmission power line ROW permit. Both the general and specific terms may be waived by the NPS. 36 CFR 14.76(b) provides a term of 50 years for power transmission lines, though NPS policy limits the term of a ROW permit to 10 years.
3-FD-f.17 to 3-FD-f.21 – ROW Permit
Once the draft permit is complete, the park sends copies of the draft, compliance documents, and drawings to the Regional office for policy compliance and legal sufficiency review. The Regional Office and the responsible NPS Regional Solicitor review and approve the draft with any necessary corrections. The park then prepares three original copies of the ROW permit and sends all three to the developer. The developer should review and sign all three copies. The developer’s signature constitutes an agreement to the terms and conditions in the permit. The park then forwards all three copies to the Regional Office for the responsible NPS Regional Director to sign. The park, Regional Office, and developer each keep one copy of the permit. Once the permit is signed by the Regional Director, the ROW application process is complete and the ROW will go into effect on the date specified in the permit. See RM-53, pages A5-23 through A5-24.
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