Hydropower Land Use Planning Overview (1)
Bureau of Land Management
The Bureau of Land Management (BLM) administers roughly 258 million acres of public lands and 700 million acres of mineral estates in the United States. BLM’s land use planning authority is found in Federal Land Policy and Management Act of 1976 (FLPMA) and many other public laws. FLPMA requires the BLM to develop and maintain LUPs called Resource Management Plans (RMPs) that cover individual planning units. RMPs outline areas with "limited, restricted or exclusive use, and designations, such as Areas of Critical Environmental Concern" where development actions may be prohibited. RMPs also regulate the rate at which resource extraction can occur, realty sales, and cadastral surveys. Hydropower projects proposed on BLM managed lands trigger environmental review processes that include, but are not limited to compliance with the BLM's RMP and the National Environmental Policy Act (NEPA).
Every action and approved use on BLM-managed public lands is formed around the RPMs. The BLM prepares RMPs for areas of public lands, called planning areas, which tend to have similar resource characteristics. Planning emphasizes a collaborative environment in which local, state, and tribal governments, the public, user groups, and industries work with the BLM to identify appropriate multiple uses of the public lands. Plans are periodically revised to reflect changing conditions and resource demands.
United States Forest ServiceAbout 192 million acres of lands are managed by the United States Forest Service (USFS) in accordance with the requirements of the National Forest Management Act of 1976. Similar to the BLM, the USFS is bound by FLPMA's provisions and has developed LUPs called Land Management Plans (LMPs). These are separately prepared and implemented for each National Forest. FLPMA uses the "multiple use" clause to describe allowable activities on USFS managed lands. Development activities, such as hydropower projects, are allowed with forest specific provisions to comply with that forest's LMP. The USFS LMPs identify areas administratively open for leasing and whether or not those areas should be leased.
Land Use Planning Overview Process
1.1 to 1.2 – For a Given Location, Is Hydropower Development Consistent with the Land Use Plan? No Action Needed, Continue with Project
Developers should check to see if hydropower development is consistent with the LUP governing the proposed site before applying for a right-of-way, lease or special use permit. If hydropower development is not consistent with the LUP, an amendment or revision is necessary before a permit can be issued. If hydropower development is consistent with the LUP, no amendment is required and the developer may continue with the project.
1.3 to 1.4 - Is the Project on State Land? Initiate State Land Use Planning
Some state land may be governed by state LUPs. A developer should check to see if a LUP is applicable to the project site, and if so, whether the LUP allows hydropower development. If the LUP does not allow for hydropower development, the developer should initiate the state land use plan amendment process.
In Alaska, land use planning is a cooperative process between Alaska Department of Natural Resources and the Alaska Division of Mining Land and Water, which requires citizen participation throughout the planning process. For more information, see:
Land Use Planning:
In Arkansas, land use planning is delegated to cities and municipalities. Ark. Code Ann. §14-56-402 (1957). For more information, see:
In California, the state delegates land-use planning decisions to city and county governments. For more information, see:
Colorado delegates land use planning to county and municipal planning commissions. For more information, see:
Illinois delegates land use planning to municipalities and counties. For more information, see:
Indiana delegates land use planning to municipal and county governments. For more information, see:
The Iowa City Development Board oversees the land use planning for the state of Iowa, but typically land use process is delegated to the county and municipal level. Utility siting is regulated by the Iowa Utilities Board. For more information, see:
In most circumstances, Kentucky delegates land use planning to cities and counties. KY. Rev. Stat. Ann. §100.113 (1978). Public utilities that operate under the jurisdiction of the Kentucky Public Service Commission do not need approval from the planning commission before locating or relocating any service facilities. KY. Rev. Stat. Ann. §100.324(1) (2002). A public utility is defined, in part, as any “person who owns, controls, operates, or manages a facility used or to be used for in the connection with the generation, production, transmission or distribution of electricity to or for the public, for compensation, for lights, heat, power or other uses…” KY. Rev. Stat. Ann. §278.010(3) (2016). For more information, see:
In Louisiana, land use planning is delegated to municipalities and parishes. LA. Stat. Ann. §33:106 (2004). For more information, see:
In Mississippi, land use planning is delegated to local governments. As a result, a hydropower developer will need to consult with the local government in order to determine whether the developer needs a special permit, zoning variance or an amendment to a comprehensive plan or planning regulation. Miss. Code Ann. §17-1-1, et seq. For more information, see:
Missouri delegates land use planning to municipal planning commissions. For more information, see:
In New York, land use planning is a function of cooperative local government action. Local governments may implement comprehensive land use plans and regulate land use development to protect the public health, safety and general welfare of its citizens, or implement special, open space, and farmland protection plans. N.Y. Gen. Muni. L. §§19-o and119-u; N.Y. Gen. City L. §20-g; N.Y. Twn. L. §284(1); N.Y. Village L. § 7-741(1). For more information, see:
North Dakota delegates land use planning to municipal and county governments. For more information, see:
Ohio delegates land use planning to municipalities, townships, and counties. However, the Ohio Power Siting Board has authority to regulate “major utility facilities.” Ohio – Ohio Rev. Code §§ 4906.01 et seq., Power Siting. For more information, see:
Pennsylvania delegates land use planning to municipalities and counties. For more information, see:
Tennessee, delegates land use planning to municipalities and counties. The developer will need to consult with the local government in order to determine whether the developer needs a special exception, zoning ordinance variance or an amendment to the zoning regulations. For more information, see:
In Vermont, land-use planning is a cooperative process between the state, the municipalities and the regional planning commissions. For more information, see:
Washington delegates land use planning to local authorities. Counties must adopt regional comprehensive plans under the Planning Enabling Act (R.C.W. §§ 36.70.010 et seq.). Counties that have a population of 50,000 or more and have grown by more than seventeen percent in the previous ten years are required to “fully plan” under the Growth Management Act (GMA) (R.C.W. §§ 36.70A.010 et seq.) and include additional elements in their comprehensive plan. For more information, see:
West Virginia delegates land use planning to municipalities and counties. For more information, see:
In Wisconsin, a developer should ensure the proposed project complies with adopted land use plans and zoning regulations. Wisconsin delegates land use planning to local governments. 59 Wis. Stat. § 59.69; 60 Wis. Stat. §§ 60.80-82; 60 Wis. Stat. §§ 61.35, 61.351, 61.354; 62 Wis. Stat. §§ 62.23, 62.231, 62.234. For more information, see:
1.5 to 1.6 - Is the Project on Federal Land? Is the Project on BLM or USFS Land?
The Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976 (NFMA) requires the USFS to plan, develop, amend and revise LMPs for National Forest System units. The BLM is required to develop, maintain, and revise land use RMPs by sections 201 and 202 of the Federal Land Policy and Management Act of 1976 (FLPMA). In both cases, the proposed use must be consistent with the LUP or the right-of-way application will be denied. See 36 CFR 219.15(d) ; 43 CFR 1610.5-3.
1.7 to 1.9 - Is this a USFS Plan Revision or a Plan Amendment?
Changes to a forest plan require either a revision or an amendment. A revision creates a new plan for an entire plan area while an amendment adds, modifies or removes one or more plan components. Both revisions and amendments will require some type of National Environmental Policy Act (NEPA) analysis.
The USFS regulations regarding plan revisions can be found at 36 CFR 219.7. The revision process includes public participation, an assessment (as defined by 36 CFR 219.6), development of a revised plan and promulgation of a new plan. In addition, plan revisions always require an Environmental Impact Statement (EIS).
Regulations regarding plan amendments can be found at 36 CFR 219.13. Plan amendments may be made at any time and must be based on a preliminary identification of the need to change the plan. The preliminary identification may be based on new information, changed conditions or changed circumstances. In addition, the USFS is required to provide an opportunity for public participation and to conduct a NEPA analysis. Unlike a plan revision, a plan amendment need not include an EIS. Environmental Assessments (EAs) and Categorical Exclusions (CEs) may suffice, depending on the nature of the amendment.
1.10 – Is this a BLM Plan Revision or a Plan Amendment?
RMPs are changed by either a plan amendment or a plan revision. The revision and development processes are the same, while the amendment process varies, depending on the level of environmental analysis required.
Plan amendments are most often prompted by the need to:
- Consider a proposal or action that does not conform to the plan;
- Implement new or revised policy that changes land use plan decisions, such as an approved conservation agreement between the BLM and the USFWS;
- Respond to new, intensified, or changed uses on public land; and
- Consider significant new information from resource assessments, monitoring, or scientific studies that change land use plan decisions.
Amending an RMP involves changing one or more of the plan’s components. An amendment is initiated when a proposed action requires a change in terms, conditions and decisions of the approved plan. All amendments to RMPs must comply with NEPA. In some cases, NEPA compliance requires the BLM to prepare an Environmental Impact Statement (EIS) for the proposed amendment. If an EIS is required, the amendment process is identical to the revision process. Unlike plan revisions, however, an amendment to an RMP may not require an EIS where a Categorical Exclusion (CE) applies or where the agency issues a Finding of No Significant Impact (FONSI) after conducting an EA.
RMP revisions involve preparation of a new RMP to replace an existing one. See 43 CFR 1610.5-6. RMP revisions are necessary if monitoring and evaluation findings, new data, new or revised policy, or changes in circumstances indicate that decisions for an entire plan or a major portion of the plan no longer serve as a useful guide for resource management. An EIS is always required for a plan revision.
1.11 to 1.13 - Does the Amendment Require an EA or EIS?
NEPA requires the BLM to prepare an EIS for major federal actions that significantly affect the quality of the human environment. Amendments to an RMP require an EIS when the environmental effects of the amendment are significant. When determining the significance of the effects from an amendment context and intensity are considered. If the BLM expects the effects of an amendment to be significant, an EIS is prepared and the amendment process is identical to the revision process.
An EA is a concise public document that helps the BLM determine whether NEPA compliance requires an EIS or a FONSI. If the BLM believes the amendment will not significantly affect the quality of the human environment it prepares an EA. If the EA determines that the effects are insignificant, the BLM issues a FONSI. A FONSI is a document prepared by a federal agency that briefly explains why an action will not have a significant effect on the human environment. If the EA finds the effects are significant, the BLM reinitiates the amendment and NEPA processes from the beginning using an EIS level analysis.
The amendment process will vary depending on whether an EIS or an EA/FONSI is prepared. As stated above, an EIS-level plan amendment process is identical to the plan revision process. If an EA/FONSI is sufficient for NEPA compliance, the amendment process requires fewer steps, many of which are optional. If an EIS level amendment is required, see
Bureau of Land Management - Land Use Planning Process:
1-FD-a Otherwise, see Bureau of Land Management - Land Use Plan Amendment Process:
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- Federal Land Policy and Management Act of 1976
- National Forest Management Act of 1976
- National Environmental Policy Act
- 36 CFR 219.6 Planning Assessment
- 36 CFR 219.7 New Plan Development or Plan Revision
- 36 CFR 219.13 Plan Amendment and Administrative Changes
- 36 CFR 219.15(d) Project and Activity Consistency with the Plan
- 43 CFR 1610.5-3 RMP Conformity and Implementation
- 43 CFR 1610.5-6 RMP Revision
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