Policy Guidance for Processing Right-of-Way Applications for High-Voltage Electric Transmission Lines
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240-0036
https://www.blm.gov
November 18, 2016
In Reply Refer To:
1610, 2800 (350) P
EMS TRANSMISSION 11/30/2016
Permanent Instruction Memorandum No. 2017-002
To: All Field Office Officials
From: Assistant Director, Energy, Minerals and Realty Management
Subject: Policy Guidance for Processing Right-of-Way Applications for High-Voltage Electric Transmission Lines
Program Area: Lands and Realty, National Environmental Policy Act, Land Use Planning.
Purpose: This Instruction Memorandum (IM) updates guidance on the review of right-of-way (ROW) applications for high-voltage electric transmission line projects. For purposes of this policy, high-voltage electric transmission lines are those that are 100 kV or larger. This IM reiterates and clarifies existing Bureau of Land Management (BLM) land use plan (LUP) and National Environmental Policy Act (NEPA) guidance to assist BLM offices with processing these applications.
Policy/Action: Applications for proposed high-voltage electric transmission line projects on BLM-administered public lands are processed as ROWs under Title V of the Federal Land Policy and Management Act (FLPMA) and in accordance with Title 43, Part 2800 of the Code of Federal Regulations (CFR). The processing of high-voltage electric transmission line ROW applications must also comply with the BLM planning, environmental, and other regulatory requirements. To secure obligations imposed by the grant and applicable laws and regulations, the authorized officer shall make a determination of the need for a bond, in accordance with 43 CFR 2805.12(g) and MS-2805.12D. That determination may be made prior to issuance of a new grant or prior to issuance of amendments or renewals.
Review of Applications
The BLM will initiate processing of a ROW application once the applicant has submitted a complete application, including a plan of development (POD) with sufficient detail adequate to initiate the environmental analysis and review process. See Attachment 1 for the POD Outline – High-Voltage Electric Transmission Lines, which may be used to help determine adequacy of the POD.
The BLM has a multiple use and sustained yield mandate, which directs the agency to manage resources in a manner that takes into account the long-term needs of future generations for renewable and non-renewable resources, including, but not limited to recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values. In order to help support the BLM’s mission, the agency has implemented policy that calls for a landscape-scale approach to the mitigation of impacts to resources (and their values, services, and/or functions) from public lands uses, including high-voltage electric transmission lines.
This mitigation approach directs the agency to invoke the full mitigation hierarchy (avoid, minimize, and then, compensate), use best management practices, and ensure that mitigation measures are durable, additional, and timely. The landscape-scale approach to mitigation considers baseline conditions, reasonably foreseeable impacts, including impacts that extend beyond the BLM’s administrative boundaries, and the application of the mitigation hierarchy in the context of the conditions and trends of resources, at all relevant scales, consistent with applicable law. It also requires consideration of both direct and indirect impacts from the proposed action. Mitigation should be considered early and throughout the NEPA analysis process (e.g., scoping, proposed action, alternatives, and environmental effects). Mitigation measures (e.g. design features) proposed by the applicant for the purposes of mitigating resource impacts should be identified by the applicant in the POD (Attachment 1, item 4.d).
The BLM will direct applicants to coordinate, where applicable, with the local U.S. Fish and Wildlife Service (FWS) offices and the State fish and wildlife agencies to develop measures in the project design to sustain and conserve sensitive and federally-listed species.
Where migratory birds may be affected, the Avian Powerline Interaction Committee (APLIC) developed national Avian Protection Plan Guidelines and guidance documents that were subsequently adopted by the FWS. These documents identify the causes of, and minimization methods for avoiding and reducing, avian electrocutions and collisions. The BLM will recommend the applicant employ applicable methods described in current and future APLIC guidance documents to identify project design features that protect migratory birds, including raptors and bald and golden eagles.
Where eagles may be affected, the BLM will direct applicants to coordinate with local offices of the FWS and State fish and wildlife agencies. The BLM will incorporate the FWS’s determination of eagle risk in its NEPA analysis of a project. If the FWS determines that take of eagles is likely, the ROW applicant may be required to develop eagle conservation measures and design features. The BLM will coordinate with the FWS to analyze the applicant’s proposed measures and seek their input on the need for additional design features to further avoid or minimize the project’s impacts on eagles. If the FWS determines that take of eagles is not likely, the BLM will not require specific eagle conservation measures.
National Conservation Lands
The BLM’s National Conservation Lands (i.e. the National Landscape Conservation System) include National Monuments, National Conservation Areas, Forest Reserves, Outstanding Natural Areas, Cooperative Management and Protection Areas, Wilderness and Wilderness Study Areas, Wild and Scenic Rivers, National Scenic and Historic Trails, and Conservation Lands of the California Desert. Public Law 111-11 §2002(c)(2) requires that the BLM manage the National Conservation Lands in a manner that protects the values for which these lands were designated. The BLM does not have legal authority to grant ROWs across Wilderness designated by Congress (FLPMA §501(a)). In addition, the BLM must manage Wilderness Study Areas in a manner that does not impair their suitability for preservation as Wilderness (FLPMA §603(c)). Most high-voltage electric transmission line ROW projects will not be able to meet the non-impairment standard required for siting a project within a Wilderness Study Area. BLM offices processing a ROW application for a high-voltage electric transmission line proposed wholly or partially within a unit of the National Conservation Lands must ensure compliance with BLM policy found in the applicable BLM Manuals (e.g., Manuals 1794, 6100, 6220, 6250, 6280, 6330, 6340, 6400). Regardless of whether or not the application involves the National Conservation Lands, offices must comply with policy relating to conducting wilderness characteristics inventory on BLM lands (BLM Manual 6310).
Cost Recovery
The BLM will not consider an application complete, nor process the application, until the applicant provides adequate cost recovery fees as required by the regulations (43 CFR 2804.14). In most cases, applications for high-voltage electric transmission lines will require greater than 50 Federal work hours to process, and the BLM will determine the application to be a processing fee category 6, as defined in 43 CFR 2804.14.
The coordination with the FWS outlined in this IM will likely result in added costs to the applicant from the BLM processing of the ROW application. The BLM and FWS signed an interagency Memorandum of Understanding (MOU) in May 2013 that provides a process for establishment of project-specific cost recovery agreements to support both agencies’ costs in processing ROW applications (BLM Information Bulletin No. 2013-074).
When preparing estimates of application processing fees and cost reimbursement agreements (CRA), BLM offices must ensure that all work necessary to comply with BLM IM No. 2011-122 (Plan to Ensure Adequate Cadastral Survey Review of Boundary Evidence Prior to Approval of Significant Land and Resource Transactions and Commercial Projects) is included in the hours estimate for cost recovery fee determination. The authorized officer for the project must ensure employees complete a Reimbursable Project Log (Form 1323-1) or similar form for all charges to project accounts and that all time spent working on projects is charged to the appropriate project account.
Processing Timeframes
All offices will identify ROW applications for high-voltage electric transmission line projects as a priority workload and process them as expeditiously as possible. Processing timeframes for ROW applications are set forth in 43 CFR 2804.25, which include high-voltage electric transmission line applications. Additional processing requirements from the Implementation Guidance for the Interagency Transmission MOU may apply when a “Qualifying Project” is involved (IM No. 2010-169). Regulations at 43 CFR 2804.25(c) require that the authorized officer notify the ROW applicant in writing if processing will take longer than 60 days, providing the reasons for the delay as well as an estimate of the timeframe for processing the application.
Denial of Applications
In appropriate circumstances, the BLM can rely on its broad discretion under FLPMA to deny ROW applications (43 CFR 2804.26). For example, the BLM may decide to deny an application if the applicant is not qualified, does not demonstrate the financial or technical capability for constructing or operating the proposed transmission line, or does not meet due diligence requirements (43 CFR § 2804.26(a)(3), (5) and (6)). In addition, the BLM may decide to deny an application if approval of the proposed transmission line would not be 1) consistent with law (e.g., it would be located within designated Wilderness); 2) in conformance with a governing LUP (43 CFR 2804.26(a)(1), (2); or 3) in the public interest. The BLM must support a decision to deny an application using reasoned rationale, and document the decision-making process in the project file. The BLM’s decision to deny an application constitutes an agency action subject to administrative or judicial review.
Applicant Qualifications
The ROW regulations at 43 CFR 2804.26(a)(5) provide the BLM authority to deny any application where the applicant cannot clearly demonstrate the technical or financial capability to construct the project or operate the facilities within the ROW. All ROW applications must include information on the financial and technical capability of the applicant to construct, operate, maintain, and terminate the project (43 CFR 2804.12(a)(5)) in the POD (Attachment 1). The authorized officer must inform applicants of the requirement to maintain financial and technical capability throughout the processing of their application, and that the BLM may request applicants periodically submit information to demonstrate their continued financial and technical capability. The authorized officer must additionally inform applicants that such technical and financial capability will become a condition of any ROW grant, and failure to sustain technical and financial capability for an approved project may be grounds for termination of the authorization.
A variety of factors will be considered in determining whether an applicant has the financial and technical capability to construct, operate, maintain, and decommission a project. Applicants may demonstrate their qualifications by international or domestic experience with permitting, construction, and operation of transmission line projects on Federal or non-Federal lands. Applicants must provide information on the availability of sufficient capitalization to carry out development, including the preliminary study phase of the project and the environmental review and clearance process.
Applicants in bankruptcy or with other financial difficulties would generally present financial risk and authorized officers must require them to provide additional information regarding financial capability. Further evidence of financial and technical capability can include, but is not limited to: conditional commitments of Department of Energy loan guarantees, a guaranteed letter of credit to cover application processing and construction costs, or proof of engineering, procurement, and construction contracts (with appropriate surety bonding) and funding to cover applications processing costs. Failure to provide the requested information at any time during the processing of the application can be the basis for the authorized officer’s denial of the application pursuant to 43 CFR 2804.26(a)(6).
Supplemental Guidance on Land Use Planning and
National Environmental Policy Act Compliance
Effective with the release of this policy is direction for BLM offices to use supplemental guidance that reiterates and clarifies LUP and NEPA compliance policies relating to high-voltage electric transmission lines. The subject supplemental guidance is included with this policy as Attachments 2 and 3.
Timeframe: This policy is effective immediately, for all applications received after the date of publication.
Budget Impact: The processing of high-voltage electric transmission line ROW applications is subject to the cost recovery provisions of the ROW regulations. The BLM collects cost recovery fees after an applicant submits a ROW application and the BLM and the applicant execute a Cost Recovery Agreement (43 CFR 2804.14). This IM will have only minor budget impacts, as cost recovery fees fund most of the actions.
Background: Several significant federal policies and directives establish the processing of high-voltage transmission lines as a high priority. Secretarial Order 3285A1, issued in 2009 and amended in 2010, established the development of environmentally responsible renewable energy and associated electric transmission lines as a priority of the Department of the Interior. In October 2009, nine Federal agencies approved an MOU to improve coordination and expedite siting and construction of electric transmission infrastructure.. The BLM issued implementing policy in July 2010 in IM No. 2010-169, “Implementation Guidance for the Interagency Transmission Memorandum of Understanding” (July 28, 2010).
In August 2011, the President issued a Presidential Memorandum to Executive Departments and Agencies identifying actions for agencies to expedite infrastructure development, including high-voltage transmission lines. On October 5, 2011, the White House announced the creation of a Rapid Response Team for Transmission and the selection of seven transmission projects to serve as pilot demonstrations of streamlined Federal permitting and increased cooperation at the Federal, State, and Tribal levels. On March 22, 2012, Executive Order 13604 on Improving Performance of Federal Permitting and Review of Infrastructure Projects created an interagency initiative, spearheaded by the Office of Management and Budget, to institutionalize best practices to reduce the amount of time required to conduct reviews and to make permitting decisions while improving environmental and community outcomes. Two Presidential Memoranda for Executive Departments and Agencies build on this Executive Order: a May 17, 2013, Presidential Memorandum on “Modernizing Federal Infrastructure Review and Permitting Regulations, Policies, and Procedures” and a June 7, 2013, Presidential Memorandum on “Transforming our Nation’s Electric Grid Through Improved Siting, Permitting, and Review.”
Finally, on November 3, 2015, the President issued a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” This memorandum instructed agencies, including the BLM, “to avoid and then minimize harmful effects to land, water, wildlife, and other ecological resources (natural resources) caused by land- or water-disturbing activities, and to ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities.”
The BLM is releasing a Mitigation Manual (M-1794) and Handbook (H-1794-1) to provide further mitigation policy and guidance for NEPA analysis for public land uses. The manual is targeted for release in 2016. Departmental guidance on mitigation is available in the Department of Interior Manual on Landscape-scale Mitigation Policy (600 DM 6).
This IM helps ensure the accomplishment of the goals and objectives outlined above and provides for more efficient, effective, and consistent processing of applications for high-voltage electric transmission line ROWs. Further information regarding the BLM’s involvement in interagency coordination on high-voltage electric transmission lines and energy corridors can be found on the BLM website at https://www.blm.gov/programs/lands-and-realty/right-of-way/electric-transmission-facilities-and-energy-corridors
Manual/Handbook Sections Affected: This IM modifies the policy for FLPMA grants contained in MS-2801, MS-2803, and MS-2804. Additionally, this IM modifies Appendix D of H-1601-1, the BLM Handbook for Land Use Planning.
Coordination: BLM state and field offices, Renewable Energy Coordination Office (WO-301) and Decision Support, Planning and NEPA (WO-210) Divisions, and the National Conservation Lands and Community Partnerships Directorate (WO-400) reviewed and provided input for this policy prior to its finalization.
Contact: If you have questions or need additional information, please contact me at 202 208 4201, or your staff may contact Robert Jolley, Division Chief, Lands, Realty and Cadastral Survey (WO-350) 202-912-7350; Stephen Fusilier, Branch Chief, Rights-of-Way at 202 912-7148, or Georgeann Smale, Electric Transmission and Energy Corridor Program Lead at 202-912-7319.
Signed by: Authenticated by:
Michael D. Nedd Robert M. Williams
Assistant Director Division of IT Policy and Planning,WO-870
Energy, Minerals, and Realty Management
3 Attachments
1 – Plan of Development Outline - High-Voltage Electric Transmission Lines (4 pp)
2 – Supplemental Guidance – Land Use Planning for High-Voltage Electric Transmission Lines (2 pp)
3 – Supplemental Guidance – National Environmental Policy Act Compliance for High-Voltage Electric Transmission Lines (8 pp)