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Hydropower Land Access Overview (3)

A hydropower developer may need a right-of-way, lease, or other use approval to access property necessary for project development. A developer may need access to or need to pass through, under, or over federal, state, local, tribal, or private land for hydropower development.

To develop certain non-federal hydropower projects on a federal reservation, developers must obtain a license from Federal Energy Regulatory Commission (FERC), which will grant access to federal lands within the project boundary subject to conditions set forth by the relevant land management agency. If a facility is exempt from FERC licensing, developers of projects on federal reservations will need to obtain access through the relevant land management agency’s rights-of-way application process. A developer seeking to construct a hydropower project on a Bureau of Reclamation (BOR) dam authorized for Federal hydropower development or any BOR conduit must obtain a Lease of Power Privilege from the BOR.

Land access is a key consideration not only for the generation facility, but also for rights-of-way necessary to connect the project to the grid (access roads, gen-tie lines, encroachment, etc.) It is therefore critically important to determine who owns the land to be developed and what type of authorization is required. Developers seeking to develop on private land must obtain property rights to the land, by either purchasing the land or negotiating a lease with the private landowner. To develop on state land, the developer might be required to obtain from the state a lease, a right-of-way, or both. For example, for non-FERC licensed hydropower projects, if transmission facilities must be sited on state land in order to connect the project to the grid, the developer will need to obtain a transmission right-of way.


Land Access Overview Process

3.1 to 3.2 – Will the Project Be Located on a Bureau of Reclamation (BOR) Dam Reserved for Non-Federal Hydropower Development or a BOR Conduit?

If the hydropower project will be located on a Bureau of Reclamation (BOR) dam reserved for non-federal hydropower development under reclamation law or a BOR conduit, the developer must obtain a Lease of Power Privilege (LOPP) from the BOR. LOPPs grant contractual rights to generate hydroelectric power from facilities located on BOR managed land. (See 1992 Memorandum of Understanding between FERC and BOR (1992 MOU)). For more information, see:

Bureau of Reclamation - Lease of Power Privilege:
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3.3 to 3.4 – Does the Project Require Access to USFS Managed Land?

If the proposed project requires access to United States Forest Service (USFS) land, a developer will likely need to obtain a Special Use Authorization. The USFS administers rights-of-way for utilities on Forest Service managed land via special use authorizations. Hydropower development on USFS managed land requires a Special Use Authorization. In addition to the general permit requirements for a special use authorization, the USFS has issued a Forest Service Handbook 2709.15 relating to “hydroelectric” development on USFS land. For more information, see:

U.S. Forest Service - Special Use Authorization:
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3.5 to 3.6 – Will Project Require Access to DOD Managed Land?

If a branch within the United States Department of Defense (DOD) manages the land, the developer must receive a use authorization from the appropriate military branch. The DOD also issues Enhanced Use Leases (EUL) for access to non-excess military land. In most cases, the military will solicit requests for proposals when they have non-excess land suitable for energy development that can enhance the amount of energy produced from renewable sources. A typical EUL involves supplying the military base/installation/facility with a certain amount of energy, and developers may sell the remaining energy produced. Depending on the branch of the military, developers may be able to submit unsolicited proposals. For more information, see.

Department of Defense - Enhanced Use Lease:
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3.7 to 3.8 – Does the Project Require Access to Private Land?

If the proposed project requires access to private land, the developer will have to purchase the land or obtain a lease from the owner. The developer should conduct a due diligence review before signing the lease or purchasing the property. At a minimum, the due diligence review should include a title opinion, an environmental assessment, a survey, an on-site inspection, and a zoning opinion.

Private lands may include rights-of-way held by railroads or telecommunication companies that may be affected by the development of a hydropower project. If the hydropower project will cross over or affect such a right-of-way, the developer will also need to negotiate a private lease agreement with the holder of the right-of-way for an easement across the right-of-way.

3.9 to 3.10 – Does the Project Require Access to State Land?

A developer seeking access to, through, under, or over state land may need a lease, right-of-way, or other approval from the state agency with jurisdiction over the land. Each state has its own land right-of-way process. Some states have a centralized state land right-of-way process where a single state entity regulates state land access. Other states have a more decentralized state land access process where the state agency with jurisdiction over land has its own regulatory process for land access approvals. The developer should refer to the state’s regulations determine the necessary state land access approvals required for development.

Alaska

In Alaska, a hydropower developer may need a lease, easement, or right-of-way from the Alaska Division of Mining Land and Water to access state lands. AS 38.05.850. For more information, see:

State Land Right-of-Way Overview:
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Arkansas

In Arkansas, a hydropower developer may need a Land Lease or Permit from the Arkansas Commissioner of State Lands or the Arkansas Game and Fish Commission when the project involves the “taking of sand, gravel…and timber or logs” from any state land or riverbed. For more information, see: State Land Right-of-Way:
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California

In California, a hydropower developer may need a State Land Right-of-Way Lease from the California State Lands Commission (Commission) if any portion of the project, such as roads, power lines, or pipelines, will cross over or occupy certain state land under the jurisdiction of the Commission. Cal. Pub. Res. Code § 6224.3. For more information, see: State Land Right-of-Way:
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Colorado

In Colorado, a hydropower developer may need a State Land Right-of-Way from the Colorado State Board of Land Commissioners if any portion of the project occupies certain state lands. For more information, see: State Land Right-of-Way:
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Illinois

In Illinois, a hydropower developer may need a Public Utility Easement to access state land. For more information, see: State Land Right-of-Way:
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Indiana

In Indiana, a hydropower developer may need a State Land Easement from either the Indiana Department of Administration, Indiana Department of Natural Resources, or other appropriate agency in control of the land to construct transmission lines or develop a proposed project on, under, or across state land. For more information, see: State Land Right-of-Way:
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Iowa

In Iowa, a hydropower developer may need a State Land Right-of-Way Permit from the Iowa Department of Natural Resources in order to place transmission lines or other structures on state-owned land. For more information, see: State Land Right-of-Way:
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Kentucky

In Kentucky, a hydropower developer may need a state land lease or other approval from the Kentucky Finance and Administration Cabinet or other state agency to access state land. KY. Rev. Stat. Ann. §56.463(6) (1956). For more information, see: State Land Right-of-Way:
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Louisiana

In Louisiana, a hydropower developer may need a state land right-of-way, lease, or other approval from the Louisiana State Land Office, the Louisana Department of Natural Resources or the relevant agency with jurisdiction to access state lands. For more information, see:

State Land Right-of-Way Overview:
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Minnesota

In Minnesota, a hydropower developer may a Utility Crossing License from the Minnesota Department of Natural Resources to construct a utility transmission project over, under, or across any state lands or public waters. For more information, see:

State Land Right-of-Way:
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Mississippi

In Mississippi, a hydropower developer may need a State Land Right-of-Way Easement or Lease from the state agency with jurisdiction over the land, if the proposed project will be located in, on, or above state-owned real property. For more information, see: State Land Right-of-Way:
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Missouri

In Missouri, a developer may need a State Land Easement from the state agency with jurisdiction over the state land or from the Missouri Board of Public Buildings. For more information, see: State Land Right-of-Way:
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New York

In New York, a hydropower developer may need a state land right-of-way easement or easements from the appropriate state agency if the proposed project will be located in, on, or above state owned real property. New York Public Lands Law §2. For more information, see:

State Land Right-of-Way Overview:
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North Dakota

In North Dakota, a hydropower developer may need a State Land Right-of-Way Permit from the North Dakota Department of Trust Lands before constructing and operating a project on state land. For more information, see: State Land Right-of-Way:
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Ohio

In Ohio, a hydropower developer may need a state land right-of-way and/or lease from the Ohio Department of Natural Resources or the appropriate state agency with jurisdiction for projects that will be located in, on, or above state-owned real property. For more information, see: State Land Right-of-Way Overview:
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Pennsylvania

In Pennsylvania, a hydropower developer may need a State Land Right-of-Way from the state agency with jurisdiction over the land to access state land. For more information, see: State Land Right-of-Way:
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Tennessee

In Tennessee, a hydropower developer may need a State Land Right-of-Way or Land Lease from the state agency with jurisdiction over the land if the proposed project requires access to state-owned property. Tenn. Code Ann. §12-2-112(a)(4). For more information, see: State Land Right-of-Way:
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Vermont

In Vermont, a hydropower developer may need to obtain a Utility Right-of-Way from the Vermont Agency of Natural Resources before constructing utility lines within or near a state land right-of-way. For more information, see: State Land Right-of-Way:
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Washington

In Washington, a hydropower developer may need a permit, lease, or right-of-way from the Washington Department of Ecology to access state lands. For more information, see: State Land Right-of-Way Overview:
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West Virginia

In West Virginia, a hydropower developer may need to purchase the land or obtain a State Land Right-of-Way Easement from the appropriate state agency with jurisdiction over the land. For more information, see: State Land Right-of-Way:
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Wisconsin

In Wisconsin, a developer may need a State Land Right-of-Way from the Wisconsin Public Lands Commission or the Wisconsin Department of Natural Resources to access state lands. For more information, see: State Land Right-of-Way:
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3.11 to 3.12 – Will the Project Encroach on a State or Local Highway Right-of-Way?

A developer may need a lease, right-of-way, or other approval from the state or local agency with jurisdiction for projects that encroach upon a state or local highway. State and local governments require encroachment approval (e.g., lease, right-of-way, etc.) for any object placed in, over, or under a local or state highway right-of-way (i.e. towers, poles, pipelines, fences, and other structures), as well as when a private access road or driveways that join a public road.

Alaska

In Alaska, a hydropower developer may need a State of Alaska Department of Transportation and Public Facilities Encroachment Permit (Encroachment Permit) from the Alaska Department of Transportation and Public Facilities (DOT&PF) prior to constructing, maintaining, or changing an encroachment within a DOT&PF highway right-of-way (ROW), unless otherwise provided for by agency regulations. 17 AAC § 10.010; Alaska Stat. § 19.25.200(a). For more information, see:

State Highway Right-of-Way Overview:
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Arkansas

In Arkansas, a hydropower developer may need a State Highway Right-of-Way Permit from the Arkansas State Highway and Transportation Department (AHTD) when a project encroaches within a state highway right-of-way. AHTD issues two types of State Highway Right-of-Way Permits (i.e., District Utility Permits and AHTD Utility Permits) that allow utilities to “install, relocate, maintain or remove” facilities on state highway property. For more information, see: State Highway Right-of-Way Overview:
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California

In California, a hydropower developer may need a State Highway Encroachment Permit from the California Department of Transportation for all activities related to the placement of encroachments within, under or over California highway rights-of-way. Cal. Sts. & High. Code § 670(a)(2). For more information, see: State Highway Right-of-Way:
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Colorado

In Colorado, a hydropower developer may need a State Highway Access Permit and/or a State Utility-Special Use Permit from the Colorado Department of Transportation for projects that encroach on a state highway right-of-way. CRS 43-1-110 et seq., Powers and Duties of the Department of Transportation; CRS 43-2-102, Department of Transportation Maintain Highway System; Colorado – C.R.S. 43-2-147, Access to Public Highways. For more information, see: State Highway Right-of-Way Overview:
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Illinois

In Illinois, a hydropower developer may need to obtain a Highway Utility Permit from the Illinois Department of Transportation to work within the right-of-way of an Interstate, U.S. State route, Illinois state route, or state maintained roadway. 606 I.C.S §9-113; Illinois Department of Transportation Website – Utility Permits. For more information, see: State Highway Right-of-Way:
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Indiana

In Indiana, a hydropower developer may need a Highway Right-of-Way Permit from the Indiana Department of Transportation prior to constructing transmission lines in a state highway right-of-way. For more information, see: State Highway Right-of-Way:
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Iowa

In Iowa, a hydropower developer may need a Utility Permit from the Iowa Department of Transportation to place utility structures in a state highway right-of-way. For more information, see: State Highway Right-of-Way:
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Kentucky

In Kentucky, a hydropower developer may need to obtain a State Highway Encroachment Permit from the Kentucky Department of Highways for projects that encroach on a state highway right-of-way. For more information, see: State Highway Right-of-Way:
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Louisiana

In Louisiana, a hydropower developer may need a State Highway Right-of-Way Utility Permit from the Louisiana Department of Transportation & Development for projects that encroach on a state highway right-of-way. Louisiana – La. Admin. Code tit. 70.2.1 et seq., Utilities; Louisiana – La. Stat. Ann. §§ 48:381 et seq., Utilities and Facilities. For more information, see: State Highway Right-of-Way:
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Minnesota

In Minnesota, a hydropower developer may need a Utility Accommodation Permit from the Minnesota Department of Transportation in order to construct utility lines in a state highway right-of-way. For more information, see: State Highway Right-of-Way:
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Mississippi

In Mississippi, a hydropower developer may need a State Highway Right-of-Way Encroachment Permit from the Mississippi Department of Transportation for projects that encroach on a state highway right-of-way. 37-04002 Miss. Code. R. §1100. For more information, see: State Highway Right-of-Way:
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Missouri

In Missouri, a hydropower developer may need a Right-of-Way construction Permit from the Missouri Department of Transportation (MoDOT) if the project will involve the installation, relocation, or maintenance of a utility on the right-of-way of a state roadway, or if the project will affect the roadway, shoulders, or right-of-way. § 643.3.1. For more information, see: State Highway Right-of-Way:
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New York

In New York, a hydropower developer may need a State Highway Permit for Non-Utility Work and/or a State Highway Utility Work Permit for projects that encroach on, or require work within a State highway right-of-way. N.Y. Highway L. § 52. Additionally, a developer may need to obtain an Occupancy Permit and/or a Work Permit from the New York State Thruway Authority (Thruway Authority) in order to use, occupy, or conduct work on real property under the Thruway Authority’s jurisdiction. For more information, see: State Highway Right-of-Way Overview:
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North Dakota

In North Dakota, a hydropower developer may need a Utility Occupancy Permit from the North Dakota Department of Transportation before installing, replacing, or maintaining any utilities on a state highway right-of-way. For more information, see: State Highway Right-of-Way:
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Ohio

In Ohio, a hydropower developer must obtain one or more permits from the Ohio Department of Transportation in order to “use or occupy” a portion of a state road or highway right-of-way. O.R.C. § 5515.01. For more information, see: State Highway Right-of-Way:
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Pennsylvania

In Pennsylvania, a hydropower developer may need a Highway Occupancy Permit from the Pennsylvania Department of Transportation before performing any work along or within a state highway right-of-way involving the placing of utilities facilities or other structures. 67 PA. Code. §459.3(a)(1980). For more information, see:

State Highway Right-of-Way:
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Tennessee

In Tennessee, hydropower developer may need to apply for and execute a Utility Use and Occupancy Agreement with the Tennessee Department of Transportation to install a new utility facility within a state highway right-of-way. Tenn. Comp. R. & Regs. 1680-6-1-.04. For more information, see: State Highway Right-of-Way:
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Vermont

In Vermont, a hydropower developer may need to obtain a Highway Right-of-Way Permit from the Vermont Agency of Transportation prior to performing any work within or near a state highway right-of-way. For more information, see: State Highway Right-of-Way:
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Washington

In Washington, a hydropower developer may need to a Utility Permit or Franchise from the Washington State Department of Transportation to place a utility facility within a state highway right-of-way. For more information, see: State Highway Right-of-Way:
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West Virginia

In West Virginia, a hydropower developer may need to obtain a State Highway Right-of-Way Permit from the West Virginia Division of Highways for projects that encroach on a state highway right-of-way. For more information, see: State Highway Right-of-Way:
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Wisconsin

In Wisconsin, a hydropower developer may need to obtain a Utility Permit from the Wisconsin Department of Transportation to construct, operate and maintain utility facilities within a state trunk highway right-of-way. 66 Wis. Stat. §§ 66.0831. For more information, see: State Highway Right-of-Way:
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3.13 to 3.14 – Does the Project Require Access to Federal Land Outside the FERC Boundary?

If the project requires access to federal land outside the FERC boundary then the developer must comply with the applicable land management agency’s regulations. FERC has authority to license non-federal hydropower projects, which includes the authority to license projects within federal reservations. As such, FERC licensees do not need to obtain rights-of-way from federal land management agencies through the typical right-of-way application process. However, Section 4(e) of the Federal Power Act requires FERC to find the license will not interfere or be inconsistent with the original purposes of the reservation. If the project boundaries include land within a federal reservation, the agency charged with managing the land may require the license be conditioned to protect the reservation. For projects licensed by FERC with facilities located outside the project area, the developer should consider each of the land access considerations discussed below.

Whether the FERC licensing process applies depends on the size and type of the hydropower facility. FERC may grant an exemption to a project, which authorizes the project to proceed without completing the FERC licensing process. Developers seeking to develop a hydropower facility with an installed capacity of 5MW or less, located on a non-federally owned conduit used for agricultural, municipal, or industrial consumption, may be granted an exemption under the Qualifying Conduit exemption (16 U.S.C. 823a(a)). FERC may also grant either a Conduit Exemption or a 10MW Exemption. The Conduit Exemption applies to projects up to 40 MW, associated with a conduit used primarily for non-hydroelectric purposes (16 U.S.C. 823a(b)). The 10MW Exemption is for projects of 10MW or less, associated with a non-federal, pre-2005 dam, or natural water feature (16 U.S.C. 2705 and 2708). Developers seeking to develop all other non-federal hydropower facilities will not be authorized to proceed without completing the FERC licensing process. If the developer is authorized to proceed without completing the FERC licensing process, the developer should consider each of the land access considerations discussed below.

FERC Hydropower Overview:
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3.15 to 3.16 – Does the Project Require Access to Tribal Land?

There a three main ways a developer can gain access to tribal lands. First, if a tribe has entered into a Tribal Energy Resource Agreement (TERA), a tribe may enter into leases and business agreements for the purpose of energy resource development on tribal land for:

  • Exploration for, extraction of, or other development of the energy mineral resources of the Indian tribal located on tribal land including, but not limited to, marketing or distribution;
  • Construction or operation of an electric generation, transmission, or distribution facility located on tribal land; and
  • A facility to process or refine energy resources developed on tribal land.

Second, 25 U.S.C. 324 authorizes the Secretary of the United States Department of Interior to approve rights-of-way across tribal lands with approval from the tribe and the individual Indian landowners. Third, 25 U.S.C. 2218 allows individual Indian landowners to negotiate and authorize rights-of-way, leases, easement, or other approvals with the Secretary of the Interior’s approval. For more information, see:

Tribal Land Right -of-Way:
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3.17 to 3.18 – Does the Project Require Access to BLM Managed Land?

A developer must obtain rights-of-way from the BLM for hydropower projects that will cross or require access to BLM managed land, which are not licensed by FERC. For example, a developer would need to obtain right-of-way access from the BLM to construct a small hydropower project exempt from FERC licensing on BLM managed land. In addition to BLM rights-of-way for the generation and ancillary facilities, developers may be required to obtain a transmission right-of-way across BLM land in order to connect the project to the energy grid. Ancillary facilities such as any system, which impounds, stores, transports, or distributes water, require a right-of-way. BLM grants of rights-of-way must comply with relevant land use planning. For more information, see:

Bureau of Land Management – Land Right-of-Way:
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3.19 to 3.20 – Does the Project Require Access to USFS Managed Land?

If the project’s associated transmission lines, outside the FERC project boundary, crosses or requires access to National Forest System’s (NFS) land managed by the USFS, the developer must receive rights-of-way approval through a Special Use Authorization under Title V of the Federal Land Policy and Management Act of 1976(FLPMA) ( 43 U.S.C. 1761-1771) and The USFS’s implementing regulations in 36 CFR 251 et seq. For more information, see:

U.S. Forest Service - Transmission Right-of-Way :
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3.21 to 3.22 – Does the Project Require Access to BOR Managed Land?

If the project, outside of the FERC project boundary, will be located on or needs access BOR-managed land, the developer may need to obtain a Use Authorization from the BOR, as required by Section 10 of the Reclamation Project Act of August 4, 1939 (43 U.S.C. 387) and the BOR’s implementing regulations at 43 CFR 429 et seq.. For more information, see:

Bureau of Reclamation - Use Authorization:
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3.23 to 3.24 – Does the Project Require Access to NPS Managed Land?

If the project, outside of the FERC project boundary, will be located on or needs access to federal lands within the National Park System, National Wild and Scenic Rivers System, National Trails System, National Heritage Areas, and other National Park Service (NPS) Affiliated Areas, the developer must receive a right-of-way permit from the NPS (within the United States Department of Interior) usually under 16 U.S.C. 5 or 16 U.C.S. 79 and the NPS’s implementing regulations in 36 CFR 14.1 et seq. The NPS may only issue right-of-way permits if Congress specifically authorizes the uses or activities and only if there is no practicable alternative to the use of NPS lands.

National Park Service – Land Right-of-Way:
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3.25 to 3.26 – Does the Project Require Access to DOD Managed Land?

If the project, outside of the FERC project boundary, will be located on or needs access to lands managed by a branch of the DOD, the developer must obtain a right-of-way from the appropriate military branch. General authority for rights-of-way for electric power and communication lines is provided by 43 USC 961. In addition, some BLM-administered public land has been withdrawn from the public domain for exclusive military use. Any applications for a right-of-way or easement across BLM-administered land under exclusive military use require review and concurrence by the military branch. For more information, see:

Department of Defense – Land Right-of-Way:
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3.27 to 3.28 – Does the Project Require Access to USFWS Managed Land?

If the project requires access to U.S. Fish and Wildlife Service (FWS) managed lands, the developer must obtain a land right-of-way from FWS. FWS manages National Wildlife Refuge System lands. If the hydropower project involves transmission facilities that will cross federal lands managed by the FWS, a right-of-way is required. The National Wildlife Refuge System Administration Act authorizes the FWS to grant rights-of-way for the construction of power transmission lines across System lands, as long as the use is compatible with the National Wildlife Refuge System mission and the purposes of the specific national wildlife refuge. FWS regulations governing the permitting of rights-of-way across System lands can be found at 50 CFR 29.21 and 29.22.

Authority for rights-of-way across FWS managed lands that are not System lands (including National Fish Hatcheries, Research Areas, and Administrative Sites) can be found in 43 CFR 2800. Rights-of-way across FWS managed non-System lands are also permitted under 50 CFR 29.21 and 29.22. For more information, see:

U.S. Fish and Wildlife Service – Land Right-of-Way:
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3.29 to 3.30 – Is the Project within the Right-of-Way of Federal Aid or Direct Federal Highway Projects?

23 U.S.C. 109(l) allows the Federal Highway Administration (FHWA) to permit utility companies to utilize federal aid highway rights-of-way or direct federal highway rights-of-way to site transmission lines. Before approving the right-of-way, the FHWA must (1) ascertain the effect the transmission line will have on safety; (2) determine the environmental and economic effects on agriculture resulting from a disapproval of the right-of-way, and; (3) consider environmental and economic impacts together with the impairment the transmission lines would have on the use of the highway. No use may be authorized that would adversely affect safety.

For direct federal highway projects, approval must be obtained from the FHWA, and the FHWA applies accommodation policies similar to those required on federal aid highway projects. For federal aid highway projects, the applicable state department of transportation creates a utility accommodation plan. In both cases, the utility accommodation plans and policies must conform to the FHWA regulations found in 23 CFR 645.201 et seq. For more information, see:

Federal Highway Administration - Utility Accommodation:
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3.31 – Contact Managing Agency

In extremely rare cases, the managing agency may not be the BLM, USFS, BOR, NPS, DOD, or FWS. In those cases, the developer should contact the managing agency to determine what type of authorization is required.




Contact Information

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Edit Federal Energy Regulatory Commission
Regional Office Hydropower Contacts Visit Website


Edit BLM
Division of Lands, Realty, and Cadastral Survey Directory 202-912-7088 Visit Website


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Resource Advisory Councils Visit Website


Edit USFS
Forest Service Organizational Directory Visit Website


Edit Bureau of Indian Affairs
General Contact 303-969-5270 Visit Website


Edit Bureau of Reclamation
Hydropower Program: Power Resources Office Directory Visit Website


Edit National Park Service
Hydropower Licensing Contacts Visit Website