RAPID/Roadmap/3 (2)

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RAPID

Regulatory and Permitting Information Desktop Toolkit

Bulk Transmission Land Access Overview (3)

Siting electric transmission facilities is a complex process, which may require access over a combination of federal, state, local, tribal, and private land. Generally, to gain access over federal, state, local or tribal land the developer will need to obtain permission in the form of a right-of-way or other use authorization. For access over private land, the developer must generally negotiate an easement with the private land owner. However, under specific conditions, eminent domain may be used after failing to reach an agreement with the private landowner.


Land Access Overview Process

3.1 to 3.2 – Is the Project on Private Land?

If the developer needs to site a transmission facility on private land, the developer must obtain a private easement from the landowner. Under certain circumstances, typically under the requirements of “public use,” the state may authorize a taking of private property with just compensation, commonly referred to as eminent domain. In addition, when the Federal Energy Regulatory Commission (FERC) issues a Construction Permit under Section 216 of the Federal Power Act (FPA), where the developer cannot negotiate an easement with the private landowner, the developer is granted the right of eminent domain under Section 216(e) of the FPA.

3.3 to 3.4 – Is the Project on Municipal or County Land?

If the project is on municipal or county land, the developer should consult with the local government on the process for obtaining a right-of-way. The process will vary depending on the municipality or county.

3.5 to 3.6 – Does the Project Cross State Land?

The process for obtaining a right-of-way over state lands will vary from state to state. In some cases the state may have regulations or procedures specific to transmission siting. A developer seeking to site a transmission facility on state land should refer to section 3-(ST)-b or 3-(ST)-b(1) of the roadmap.

Alaska

In Alaska, a developer may need state land right-of-way from the Alaska Division of Mining Land and Water (ML&W) to use state lands under the provision of AS 38.05.850. For more information, see:

State Land Right-of-Way:
3-AK-b

Arizona

In Arizona, a developer who plans to construct transmission lines across Arizona state land must obtain a Right-of-Way (ROW) from the Arizona State Land Department (ASLD). For more information, see:

State Land Right-of-Way:
3-AZ-b

California

A developer will need to obtain a 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:
3-CA-b

Colorado

In Colorado, a developer may need a state land right-of-way from the Colorado State Board of Land Commissioners. For more information, see:


State Land Right-of-Way:
3-CO-b

Hawaii

Currently, the RAPID Toolkit does not have state specific content regarding Hawaii rules and regulations for state land right-of-way permit.

Idaho

In Idaho, a developer may need a state land right-of-way from the Idaho Department of Lands to access state land. For more information, see:

State Land Right-of-Way:
3-ID-b

Illinois

In Illinois, a developer must obtain a Public Utility Easement to access state land. Illinois – State Property Control Act (30 I.L.C.S. §§ 605 et seq.) For more information, see:

State Land Right-of-Way:
3-IL-b

Iowa

In Iowa, a developer must obtain a State Land Right-of-Way Permit in order to conduct a project that will have continuing impact on the availability or desirability of public lands or waters. For more information, see:

State Land Right-of-Way:
3-IA-b

Kansas

In Kansas, a developer must obtain approval for a state land right-of-way from the applicable state agency. Any Kansas State agency head has authority to grant a right-of-way over, upon or under any state land. The state land right-of-way permitting process differs pending on which state agency has jurisdiction over the land. 75 K.S.A. § 2131.

State Land Right-of-Way:
3-KS-b

Michigan

In Michigan, a developer may need a state land right-of-way from the Michigan Department of Natural Resources Finance and Operations Division – Real Estate Services Section. For more information, see:

State Land Right-of-Way:
3-MI-b

Minnesota

In Minnesota, a developer who plans to construct transmission lines across state land needs to obtain a Utility Crossing License from the Minnesota Department of Natural Resources. For more information, see:

State Land Right-of-Way:
3-MN-b

Missouri

In Missouri, a developer may need to obtain a state land right-of-way 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:
3-MO-b

Nebraska

In Nebraska, a developer must obtain a Utility Easement to access state land. 72 N.R.S. § 818. For more information, see:

State Land Right-of-Way:
3-NE-b

New Mexico

The New Mexico State Land Office (NMSLO) administers the issuance of right of way (ROW) easements on or over state lands in New Mexico. For more information, see: State Land Right-of-Way:
3-NM-b

Nevada

In Nevada, a developer seeking a lease or a right-of-way on state lands must submit an Application for Authorization to Use State Lands to the NDSL to obtain the proper authorization for the proposed project. NRS 322.050. State Land Access Overview:
3-NV-b

Ohio

In Ohio, a developer may need a state land right-of-way to access state lands. For more information, see:

State Land Right-of-Way:
3-OH-b


Oregon

In Oregon, a developer may need an easement for an encroachment on state lands. For more information, see:

Easements on Trust and Non-Trust Land:
3-OR-b

South Dakota

In South Dakota, a developer must obtain a state land right-of-way certificate from the South Dakota Department of School and Public Lands for projects proposed across any school or public lands. For more information, see:

State Land Right-of-Way:
3-SD-b

Texas

In Texas, a developer may need a lease, from the Texas General Land Office to access state owned land. For more information, see:

State Land Access:
3-b-TX

Utah

In Utah, a developer may need a state land easement from the Utah Division of Forestry, Fire and State Lands for a project on or over any state lands. For more information see:

State Land Easement:
3-UT-b

Washington

In Washington, any developer that needs access to or through state lands must obtain the appropriate permit or lease from the Washington State Department of Natural Resources. For more information, see; State Land Access Permits:
3-WA-b

Wyoming

In Wyoming, a developer may need a state non-roadway easement for projects over state land from the Wyoming Board of Land Commissioners. For more information, see:

State Non-Roadway Easement:
3-WY-b


3.7 to 3.8 — Will the Activity Encroach on a State or Local Highway Right-of-Way?

State and local governments require an encroachment permit 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 driveway joins a public road.

Alaska

In Alaska, a developer must obtain 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 Permit:
3-AK-c

California

In California, the California Department of Transportation (Caltrans) requires an encroachment permit 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 Encroachment Permit:
3-CA-c

Colorado

In Colorado, a developer may need a State Highway Access Permit and/or a State Utility-Special Use Permit for projects that encroach on a state highway right-of-way. The Colorado Department of Transportation (CDOT) has the authority to regulate the design, construction, improvement, maintenance and general management of the state highway system and state highway right-of-ways, including state highway access. 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 Encroachment Permits:
3-CO-c

Hawaii

In Hawaii, a developer may need a state highway right-of-way permit for any project activity that is adjacent to or within a state highway right-of-way. For more information, see: State Highway Encroachment Permits:
3-HI-c

Idaho

A developer needs an State Highway Encroachment Permit from the Idaho Transportation Department (ITD) to add, modify, relocate, maintain, or remove an encroachment on the state highway or within the state highway rights-of way under IDAPA 39.03.42. For information, see: State Highway Encroachment Permit:
3-ID-c

Illinois

A developer must obtain a Utility Permit from the Illinois Department of Transportation to construct a transmission facility "…located, placed, or constructed upon, under or along any highway, or upon any township or district road…” 605 I.L.C.S. §113(a), Illinois Regulations – 92 I.A.C. §§ 530 et seq., Accommodation of Utilities on Right-of-Way. Illinois defines utility to include any “privately, publicly or cooperatively owned line, facility or system for producing, transmitting or distributing….power, electricity…which directly or indirectly serves the public.” 92 I.A.C. §530.30. For more information, see:

State Highway Right-of-Way:
3-IL-c

Iowa

In Iowa, developers who plans to place utility lines in a state highway right-of-way need to obtain a Utility Permit from the Iowa Department of Transportation. For more information, see:

State Highway Right-of-Way:
3-IA-c

Kansas

In Kansas, a developer may need to obtain a Use of Highway Right-of-Way or a Utility Permit Agreement from the Kansas Department of Transportation (KDOT) if the project will involve the installation, relocation, removal, or maintenance along, over or under any state highway right-of-way. K.S.A.§§ 68-404, 415; Kansas Department of Transportation - Utility Accommodation Policy. For more information, see:

State Highway Encroachment Permits:
3-KS-c

Michigan

In Michigan, a utility developer may need to obtain a right-of-way construction permit from the Michigan Department of Transportation Development Services Division (MDOT) in order to construct facilities or undertake operations, other than normal vehicular or pedestrian travel, on a state highway right-of-way. MDOT has statutory authority to regulate utility accommodations and to issue state highway rights-of-way in accordance with 23 CFR 645 and state law. MDOT regulates the use of the State Right-of-Way by acting as the primary liaison between MDOT and other state governmental agencies, the Federal Highway Administration, utility companies, and permit applicants. MCL § 247.183; MDOT Right-of-Way Construction Permits. For more information, see:

State Highway Encroachment Permits:
3-MI-c

Minnesota

In Minnesota, a developer will need to obtain 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:
3-MN-c

Missouri

In Missouri, a utility developer must obtain 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 Encroachment Permit:
3-MO-c

Montana

In Montana, a developer may need a number of state highway encroachment permits from the Montana Department of Natural Resources & Conservation to access a state highway right-of-way. For more information, see:

State Highway Encroachment Permits:
3-MT-c

Nebraska

In Nebraska, a transmission developer must obtain an Occupy Right-of-Way Permit from the Nebraska Department of Roads to encroach upon any portion of a State highway right-of-way with an underground or aboveground pipe, pole line, conduit or guy wire. 39 N.R.S. §§ 1359(1), 1361; 410 N.A.C §§ 001.02, 002.02; Department of Roads Permit Application Guidelines, at p.2. For more information, see:

State Highway Right-of-Way:
3-NE-c

New Mexico

In New Mexico, a developer may need a number of state highway encroachment permits from the New Mexico Department of Transportation to access a state highway right-of-way. For more information, see:

State Highway Encroachment Permits:
3-NM-c

Nevada

In Nevada, a developer needs a State Highway Encroachment Permit from the Nevada Department of Transportation for any projects that encroach on any Nevada street, highway, or other right-of-way for one year or longer. For more information, see:

State Highway Encroachment Permit:
3-NV-c

Ohio

In Ohio, a 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 Permits:
3-OH-c


Oregon

In Oregon, a developer needs a State Highway Encroachment Permit for any project activity that encroaches on a Oregon highway right-of-way. For more information, see:

State Highway Encroachment Permit:
3-OR-c

South Dakota

In South Dakota, a developer must obtain a Utility Permit from the South Dakota Department of Transportation (SDDOT) to install, relocate, or expand utility facilities on or near an interstate or non-interstate highway right-of-way. 70:04 S.D. §§ 05-05.01. For more information, see:

State Highway Utility Permit:
3-SD-e

Texas

In Texas, a developer may need a number of state highway encroachment permits from the Texas Department of Transportation for any project that encroaches on a State highway right-of-way. For more information, see:

State Highway Encroachment Permits:
3-TX-c

Utah

In Utah, a developer may need a State highway right-of-way permit from the Utah Department of Transportation for any projects that encroach upon a State highway. For more information, see:

State Highway Encroachment Permits:
3-UT-c

Washington

In Washington State, developers who plan to place utility lines in a state highway right-of-way will need to obtain Utility Permit or Franchise from the Washington State Department of Transportation. For more information, see:

State Highway Encroachment Permits:
3-WA-c

Wisconsin

In Wisconsin, a developer must obtain a Utility Permit to construct, operate and maintain utility facilities within a State trunk highway right-of-way from the Wisconsin Department of Transportation (“WisDOT”). 66 Wis. Stat. §§ 66.0831. For more information, see:

State Highway Right-of-Way:
3-WI-c

Wyoming

In Wyoming, a developer must obtain a State highway right-of-way permit from the Wyoming Department of Transportation for projects that is to or from a State highway right-of-way. For more information, see:

State Highway Encroachment Permits:
3-WY-c


3.9 to 3.10 – Is the Project on Tribal Land?

Transmission rights-of-way over tribal lands may be permitted in three different ways. 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 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 ROWs with the Secretary of the Interior’s approval.

Tribal Right-of-Way Process:
3-FD-b

3.11 to 3.12 – Is the Project on Federal Land?

If the project is on federal land, the process will vary depending on which federal land management agency is responsible for overseeing the land. Potential federal land management agencies involved in the transmission siting process include:

3.13 to 3.14 - Does the BLM Manage the Land?

If the transmission facility will cross federal lands managed by the BLM (within the United States Department of Interior), the developer must receive a right-of-way (ROW) grant from the BLM under Title V of the Federal Land Policy and Management Act of 1976 (FLPMA) ( 43 U.S.C. 1761-1771) and the BLM’s implementing regulations in 43 CFR 2800 et seq. Generally, the BLM grants ROWs for a term appropriate for the life of the project.

Bureau of Land Management Right-of-Way Application Process:
3-FD-c

3.15 to 3.16 – Does the USFS Manage the Land?

If the transmission facility will cross National Forest Systems (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.

United States Forest Service Special Use Authorization:
3-FD-d

3.17 to 3.18 - Does the BOR Manage the Land?

If the transmission facility will cross federal lands managed by the BOR (within the United States Department of Interior), the developer must receive a rights-of-way grant from the BOR under Section 10 of the Act of August 4, 1939 (43 U.S.C. 387) and the BOR’s implementing regulations in 43 CFR 429 et seq.

Bureau of Reclamation Use Authorization Process:
3-FD-e

3.19 to 3.20 – Does the NPS Manage the Land?

If the transmission facility will cross 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 the uses or activities are specifically authorized by Congress and only if there is no practicable alternative to the use of NPS lands.

National Park Service Right-of-Way Application Process:
3-FD-f

3.21 to 3.22 – Does the DOD Manage the Land?

If a branch within the DOD manages the land, the developer must receive 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.

Department of Defense Right-of-Way Application Process:
3-FD-g

3.23 to 3.24 - Does the USFWS Manage the Land?

The Fish and Wildlife Service (FWS) manages National Wildlife Refuge System lands. 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.

United States Fish and Wildlife Service Right-of-Way Application Process:
3-FD-m

3.25 to 3.26 – 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.

Federal Highway Administration Utility Accommodation Process:
3-FD-n

3.27 – Contact Managing Agency

If the project is sited on land managed by an agency not listed here, contact the agency directly.





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