ACQUIRING FEDERAL RIGHTS-OF-WAY FROM THE BUREAU OF LAND MANAGEMENT

• Jurisdiction: United States

Rights-of-Way How Right is Your Right-of-Way?
(May 1998)
CHAPTER 6A
ACQUIRING FEDERAL RIGHTS-OF-WAY FROM THE BUREAU OF LAND MANAGEMENT
Vern Rholl
Bureau of Land Management
Meeker, Colorado

INTRODUCTION

Since the passage of the Federal Land Policy and Management Act (FLPMA) in 1976, and more particularly over the past fifteen years, the Federal government has adopted many changes in the way rights-of-way are processed. FLPMA consolidated over two dozen right-of-way authorities into one. Regulations were changed to eliminate unnecessary requirements, and to streamline the way rents are determined. Authority to issue rights-of way was redelegated to the field offices, and procedural policies were rewritten to speed up turn around times.

Today, the keys to acquiring a right-of-way across public lands administered by the Bureau of Land Management include early planning, pre-application contacts as far in advance as possible, and ongoing, effective communication.

I. Basic Authorities

Most rights-of-way issued by the Bureau of Land Management are done so under the authority of the Federal Land Policy and Management Act of 1976¹ (FLPMA), or the Mineral Leasing Act of 1920² (MLA). While the MLA is used to authorize oil and natural gas pipelines, as well as any related facilities, FLPMA is a general authority for just about everything else that needs such an authorization. The implementing regulations for these authorities are found at 43 CFR Part 2800, and 43 CFR Part 2880, respectively.

Although there are some differences in these authorities and the way a right-of-way is managed under them, the process used to apply for and issue a grant is basically the same for both.

II. Preapplication Contacts

One of the main keys to acquiring a right-of-way in a timely manner is early preapplication contact with the office having jurisdiction over the lands involved.³ In general, this will be the office that is at the lowest organizational level for the state in which a right-of-way is sought. At one time this was the Area Office. However, through reorganization it may now be the District Office, or the Field Office, depending upon what state you're in.

During a preapplication meeting, the Bureau representative can tell a prospective applicant what constitutes a complete application, what the filing and monitoring fees are expected to be, what land use planning constraints may apply, whether or not a plan of development (POD) will be required, what resource-related data or information they might need to supply, what level of NEPA documentation is anticipated, what timing constraints or conflicts are expected, whether or not a Temporary Use Permit will be necessary, and, perhaps most importantly of all, whether or not a right-of-way is even needed in the first place.

The need for a right-of-way is noted here for several reasons. In some cases, rights may already be held for some facilities. While FLPMA repealed past authorities for issuing rights-of-way, it specifically did not terminate

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existing rights granted under them.⁴ At least two of these repealed authorities, RS 2477,⁵ and its oftentimes overlooked sibling RS 2339,⁶ required no request to, or written documentation from the Federal government.

In the case of State Highways, the proper agency to contact for certain highway rights-of-way⁷ is the Federal Highway Administration, even though the proposal involves public lands under Bureau jurisdiction.

In some cases involving access, no right-of-way grant is required.⁸ For example, access to mining claims located under the 1872 Mining Law is regulated under 43 CFR Subpart 3809. On-lease or on-unit access related to oil and gas leasing operations is regulated under 43 CFR Part 3160.⁹ Some uses are simply allowed as casual uses.¹⁰

In many cases, the Bureau representative can assist in the preparation of the application. It can then be filed immediately, and the estimated cost recovery fees can be paid. Even if the application and estimated fees are not submitted at this meeting, the Bureau representative can still inform the applicant of what the estimated fees will be. These can then be submitted with the application, which will generally allow the Bureau to begin processing immediately, as opposed to waiting for the applicant to respond to the formal Category Determination. It is important to note that the fees are only estimates until the Category Determination is issued. It is also important to note that this Determination is an appealable decision. If it is appealed, no processing will take place until the IBLA makes its decision, or the fees are paid (in protest).¹¹

III. Application Content

The regulations require the use of an application form approved by the Bureau Director.¹² At this time, this is Standard Form 299 (SF 299) for most rights-of-way.¹³ It is readily available from any Bureau office. It is also available on the Internet (see OH-28). As long as it is legible, it can be hand-written. Of greatest importance is that it be complete.

With two exceptions, the required information is the same for rights-of-way under FLPMA and the MLA. The required items are spelled out in the

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regulations at 43 CFR 2802.3 , and 43 CFR 2882.2-3, and include (1) the applicants name address and phone number, along with the name and phone number of any agent acting on their behalf, (2) a description of the proposed project, (3) a map, aerial photo, or the equivalent, (4) a statement of the applicant's technical and financial capability to construct, operate, maintain, and terminate proposed facilities, and (5) certification that the applicant is legal age, authorized to do business in the state where the lands are located, and that the information submitted is correct. The additional requirements for an MLA application, is disclosure of the applicant's citizenship, and applicable business entity information.

SF 299 is actually a relatively easy form to complete. Blocks 1 through 6, involve names, addresses and phone numbers, business entity status, what type of action is requested, and citizenship (which is only required for MLA rights-of-way) and are self explanatory. Block 7 is perhaps the most important part of the whole application. This is where the applicant is asked to describe in detail the proposed action...all parts of the proposed action. This block should provide the purpose and need, and proposed action parts of the document we will need to prepare in order to comply with the National Environmental Policy Act (NEPA).¹⁴ It can also be the place where the applicant explains what mitigative measures are proposed, which can have a direct effect on what level of NEPA documentation is required.

This is where additional needs that may require a Temporary Use Permit can be spelled out, which alleviates the need for separate applications and filing fees¹⁵ .

In many cases, the best way to respond to Block 7 is to provide a Plan of Development (POD). In cases involving projects which are expected to result in significant impacts to the environment, projects involving the storage or use of toxic or hazardous substances, and projects involving injection of produced water, a POD will be required.¹⁶

A POD has no required format, and needs to be only of sufficient detail to fully explain the proposal, and its purpose. It should contain a complete description of all proposed facilities, and details of the discrete operations needed to develop them. It should also contain a complete list of mitigation measures. As noted above, a complete POD can provide the purpose and need, the proposed action, and the mitigation portions of any environmental document prepared, and, in some cases, eliminate the need for an...