Hydropower Land Access Overview (3)
A right-of-way, lease, or other legal right to use the land is required to pass through, under or over a specific property before development can begin on a hydropower project. Obtaining a right-of-way permit ensures the project's pathways does not intervene with another project's pathway. This eliminates resource complications, such as electrical malfunctions, grid backups and safety hazards.
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, either by purchasing the land or negotiating a lease with the private land owner. 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)).
3.3 to 3.4 - Will the Project Be Located on USFS Managed Land?
The USFS administers rights-of-way for utilities on Forest Service managed land via special use permits. Hydropower development on Forest Service managed land requires a special use permit. In addition to the general permit requirements for a special use authorization, the USFS has issued Forest Service Handbook 2709.15 relating to “hydroelectric” development on USFS land.
3.5 to 3.6 - Will the Project Be Located on DOD Managed Land?
There has been a recent increase in the issuance of “enhanced use leases” (EUL) on 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. The process is fully described in
3.7 to 3.8 - Does the Project Require Access to Private Land?
A developer siting a hydropower project on private land will either 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. Other documents or assessments may be required as well.
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 a Right-of-Way Over State Land?
Each state has its own land right-of-way processes. A developer seeking access over or across state land for any reason should refer to that state's regulations.
In California, a developer may need a right-of-way lease from the California State Lands Commission if any portion of the project occupies certain state land. Cal. Pub. Res. Code § 6224.3. For more information, see:
In Colorado, a developer may need a state land right-of-way if any portion of the project occupies certain state land. For more information, see:
In New York, a developer may need a right-of-way easement from the New York State Office of General Services, or the appropriate state agency, to use state lands. For more information, see:
In Vermont, a developer may need a lease, license, or special use right-of-way from the Vermont Agency of Natural Resources if any portion of the project occupies certain state land. Agency of Natural Resources Policy: Use of State Lands. For more information, see:
3.11 to 3.12 — 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.
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:
The California Department of Transportation (Caltrans) requires a State Highway 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). Under California Streets and Highways Code 660(b) an encroachment is any tower, pole, pole line, pipe, pipeline, fence, billboard, stand or building, or any structure, object of any kind or character not particularly mentioned in this definition, or special event, which is in, under, or over any portion of the California highway right of way. Cal. Sts. & High. Code § 660(b). Caltrans is responsible for issuing permits for the placement of structures or fixtures necessary to electric power lines in the state’s right of way. Cal. Sts. & High. Code § 117.
For more information regarding Caltrans encroachment permit requirements, see:
In Colorado, a 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:
In New York, a developer may need to obtain a State Highway Permit for Non-Utility Work and/or a State Highway Utility Work Permit from the New York State Department of Transportation for projects that encroach on, or require work within a State highway right-of-way. N.Y. Highway L. § 52; N.Y. Highway L. § 10; N.Y. Highway L. § 52; 17 CCR-NY §§ 125-134 et seq., Work Permits on State Highways and Bridges. For more information, see:
In Vermont a developer must obtain a Highway Right-of-Way Permit (permit) prior to performing any work or installing a proposed utility project if any portion of the project, including roads, powerlines, or pipelines, will cross over or occupy any part of a state or town highway right-of-way. 19 V.S.A. § 1111; 19 V.S.A. § 304(a)(21). A permit is required for nearly any activity in or directly affecting the highway right-of-way. Vermont Permit and License Information, Work in a State Highway Right of Way.
Vermont Agency of Transportation (VTrans) shares authority and jurisdiction to regulate highways with municipal legislative bodies (MLBs), which include town selectboards, city councils, and village trustees. 19 V.S.A. § 1101; 19 V.S.A. § 303. In general, VTrans has the authority to issue State Highway right-of-way permits, while MLBs have the authority to issue town highway right-of-way permits. 19 V.S.A. § 1101; 19 V.S.A. § 303. Both VTrans and the MLBs regulate highway right-of-ways pursuant to 19 V.S.A § 1101 et seq. and 30 V.S.A. § 2501 et seq.
For more information regarding Vermont State Highway Right-of-Way permits, see:
3.13 to 3.14 - Does the Project Require Federal Authorization Outside the FERC Boundary?
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.
3.15 to 3.16 – Does the Project Require a Right-of-Way over 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.
3.17 to 3.18 – Does the Project Require a Right-of-Way over BLM Managed Land?
Developers must obtain rights-of-way from the BLM for hydropower projects sited on 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.
3.19 to 3.20 – Does the Project Require a Right-of-Way Over USFS Managed 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.
3.21 to 3.22 – Does the Project Require a Right-of-Way Over BOR Managed Land?
If the hydropower project will be located on 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..
3.23 to 3.24 – Does the Project Require a Right-of-Way over NPS Managed Land?
If the hydropower project involves transmission facilities that 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 Congress specifically authorizes the uses or activities and only if there is no practicable alternative to the use of NPS lands.
3.25 to 3.26 – Does the Project Require a Right-of-Way over DOD Managed Land?
If a branch within the DOD manages the land, the developer can apply for 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.
3.27 to 3.28 - Does the Project Require a Right-of-Way over FWS Managed Land?
The Fish and Wildlife Service (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.
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.
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.
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