RAPID/Roadmap/3-FD-c (3)

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RAPID

Regulatory and Permitting Information Desktop Toolkit

Federal Bureau of Land Management Right-of-Way Application Process (3-FD-c)

A developer may need to obtain a right-of-way (ROW) from the Bureau of Land Management (BLM) if the hydropower project will be located on BLM-managed public lands under Title V of the Federal Land Policy and Management Act of 1976 (FLPMA). 43 USC 1761(a). FLPMA authorizes the BLM to grant, issue, or renew rights-of-way over, upon, under, or through BLM lands for the generation, transmission, and distribution of electric energy. BLM’s authority to issue a right-of-way is limited to those hydropower projects that were proposed after October 24, 1992 or that would expand onto BLM-managed lands after October 24, 1992. 43 USC 1761(d). A BLM-issued ROW will contain the terms and conditions that the BLM deems necessary for the protection of BLM-managed lands and resources.


Bureau of Land Management Right-of-Way Application Process 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 developer with an opportunity to discuss and describe the proposed project in detail. The BLM uses this opportunity to explain the application process and to outline the requirements of obtaining an ROW. BLM - Obtaining a Right-of-Way on Public Lands.

During the pre-application meeting, the BLM can:

  1. Identify potential routing and other constraints;
  2. Determine whether or not the lands are located within a designated or existing right-of-way corridor;
  3. Tentatively schedule the processing of the proposed application; and
  4. Inform the developer of its financial obligations, such as processing and monitoring costs and rents.

43 CFR 2804.10.

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. BLM - Obtaining a Right-of-Way on Public Lands.

3-FD-c.6 to 3-FD-c.8 - Application for Transportation and Utility Systems with Facilities on Federal Land (Form SF-299)

The developer should submit an Application for Transportation and Utility Systems and Facilities on Federal Land (SF-299 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 SF-299 Application includes, among other things, 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.

43 CFR 2804.12.

Once complete, the developer delivers the [SF-299]] 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(b).

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. BLM - Obtaining a Right-of-Way on Public Lands.


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 Process:
9-FD-g

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: FERC Overview:
7-FD-e


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.

BLM - Obtaining a Right-of-Way on Public Lands.


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 proposal is not in conformance with the applicable Land Use Plans;
  • The proposal would not be in the public interest;
  • The developer is not qualified to hold a grant;
  • The proposal is inconsistent with Federal, State, or local laws;
  • The developer is not technically or financially capable of accomplishing the project; or
  • Serious environmental consequences may occur from the proposed project that cannot be mitigated.

43 CFR 2804.26.


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. BLM - Obtaining a Right-of-Way on Public Lands.

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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