CHAPTER 12 DRAFT RIGHTS OF WAY HANDBOOK

• Jurisdiction: United States

Rights of Access and Surface Use
(Nov 1984)
CHAPTER 12
DRAFT RIGHTS OF WAY HANDBOOK

TABLE OF CONTENTS

SYNOPSIS

Pages

Introduction Memorandum

Bureau Manual

Rights of Way Handbook

Preface rights of way handbook

Table of Contents for Handbook

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INTRODUCTION MEMORANDUM

Memorandum

To: Directorate Overview Group

THRU: Deputy Director, Land & Renewable Resources (200)

From: Terms & Conditions Study Group Leader

Subject: Study Group Report and Recommendations

This report conveys the findings and recommendations of the Terms and Conditions Study Group. Our accomplishments were primarily the result of the Study Group's efforts, however, the support provided by Bureau management at all levels and members of their staffs who were willing to help on numerous occasions provided significant contributions. We greatly appreciate their support and assistance.

Discussion:

The study group was established to review and analyze alleged impacts right-of-way terms and conditions contributed to the Northwest Pipeline Company's appeal. Major concerns of Northwest Pipeline Company involved BLM's terms and conditions in comparison with those used in private right-of-way easements and the inconsistency of the Bureau's use and administration of terms and conditions. The alleged inconsistencies included differences between BLM state, district, and resource area offices; variations in stipulation content and requirement; and terms and conditions which exceeded rehabilitation needs by imposing experimental and enhancement requirements.

Objectives for the Study Group were to address the allegations and develop recommended policy, guidance, direction, and assistance to effect remedial actions. To the extent that a study group can influence and develop recommendations that could result in change, we believe we have done that. However, management acceptance and use of the recommendations will provide the ultimate test.

Many of the factors which caused the Study Group to be initiated could not be addressed objectively or effectively primarily because industry's issues and concerns resulted from management styles and attitudes. Contributing factors appeared to be an unwillingness to accept risk, failure to ensure consistent application of stipulations and compliance inspections, and a lack of confidence in the capabilities of private industry and its contractors.

These situations were exhibited in a variety of ways, most of which can be related to time—time to do the job right. Grant terms and conditions were written, rewritten, and written again to ensure that a specific resource or environmental concern was protected or mitigated. This resulted in a proliferation of terms and conditions with considerable redundancy and much inconsistency. Time pressures resulted in employees reproducing copies of previously used stipulations and limited or no review and analysis of the proposed action. In many instances BLM was writing all the grant terms and conditions in spite of the fact that the action proponent had construction, operation, and/or maintenance plans. Bureau employee time and effort could be saved in many instances through the use of performance stipulations. Performance stipulations are defined as actions that are identified in an applicant's plan of development intended to prevent or mitigate resource and/or environmental damage and, when accepted and approved by the authorized officer, would require most technical situations to be covered by one stipulation added to the grant, "The holder shall perform all actions and activities in conformance with the approved Plan of Development."

Factors contributing to the above situations were the 2803 Manual Appendix which was cumbersome and difficult to use; a reluctance because of time pressures to analyze, use, and apply only the necessary mitigating measures; and a desire to ensure that all potential situations were covered by stipulation. Another factor appears to be the Bureau has generally used employees with limited experience and background to develop stipulations and to assure their on-the-ground execution. Competent technical and professional skills are available in all the Bureau offices, however, this expertise and knowledge was generally not sought until a serious problem or situation developed on the project.

Much of the inconsistency in administering grant terms and conditions occurred when the holders (industry) crossed State, district, and/or resource area boundaries. Compliance responsibilities changed, compliance inspectors changed and philosophies and attitudes changed. Some were positive changes, but most were negative changes in the eyes of Industry, which provided a basis for their allegations.

State, district, and resource area offices have not consistently coordinated activities relative to the use and administration of right-of-way grant terms and conditions. This has resulted in inconsistencies on single projects as well as with individual companies. Some flexibility is necessary, however, we believe much of the inconsistency which occurred between areas of responsibility was confusing to industry and can, to a large degree, be resolved.

We believe the Bureau Manual Sections 2800 through 2803 lack some essential policy guidance. This absence contributed to the development of cumbersome stipulations and the basis for misunderstanding and inconsistency.

Our attempt to resolve the problems and issues is summarized by the following recommendations:

1. Rewrite Bureau Manual Sections 2800, 2801, and 2803.

We have provided draft manual sections which set out significant guidance statements designed to clarify the intent of using stipulations, encourage the use of industry generated performance stipulations, and provide a process to encourage the objective analysis of a proposed action.

2. Use of Performance Stipulations.

The difference between performance stipulations and developmental stipulations is as follows:

Developmental Stipulations—We (BLM) dictate how a resource conflict will be mitigated by construction techniques and impose these requirements by way of grant stipulations.

Performance Stipulations—We (BLM) identify to the action proponent (industry) our resource and environmental concerns at the time we initially review the proposed action. Industry, through the Plan of Development, identifies to BLM by their survey, design, and illustrations how the concerns will be avoided, mitigated, or restored. When acceptable to BLM, this plan can be incorporated with the grant. Thereafter our compliance (inspections) requires industry or their contractor to perform in accordance with their approved Plans of Development. Changes in the Plans of Development can be made when the need is identified.

We are recommending maximum use of performance stipulations through industry-prepared construction, operation, and maintenance plans (Plans of Development) and allow management discretion for the use of developmental stipulations for small projects and small contractors. Performance stipulations enable the Bureau to request and approve construction, operation, and maintenance plans from the action proponents that will mitigate resource damage without the use of developmental stipulations.

We also believe that more consideration must be given to the administration of the right-of-way compliance function. Appropriate inter-office and inter-staff involvement in all phases of the right-of-way granting process would enhance the understanding and coordination between the Bureau and industry. These actions would considerably diminish the opportunities for inconsistencies and misunderstanding. Similarly, to integrate the concepts recommended by the study group into the Phoenix Training Center curriculum would also improve compliance consistency.

3. Handbook Concept.

We recommend that the present appendix to Manual 2803 be replaced with a handbook. This will require that mandatory (boiler plate) stipulations be included in the grant. The handbook will contain a listing of guide stipulations commonly used in right-of-way permits and grants. They should not be unilaterally used. They are to be used, as written, when applicable to the proposed action. The handbook also includes an outline to be used to

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"trigger" a thought process when a proposed action is received, a set of stipulations generally applicable to the proposed action, and optional special or unique stipulations related to the proposed action. These too are to be used, when applicable, as written.

After using the handbook stipulations, the need to mitigate site specific and/or unique situations should be minimal. We would further recommend that the handbook concept be expanded to include all surface disturbing actions in BLM. Initially our Study Group planned to develop the concept for mill sites, mineral pits, Applications for Permits to Drill (APD's), etc. We ultimately determined that including all surface disturbing actions in our study had the potential of reducing the quality of our efforts on right-of-way and/or extending our timeframe, therefore, the mineral related actions were given only limited consideration. We have, however, tried them in the concept and format we are recommending and believe these actions are also compatible. Examples of how other program actions could be considered in this concept have been included in the handbook section.

We would urge that, if the Study Group's recommendations are adopted as set out in the manual and handbook, an evaluation program be implemented to assure that concepts are effective and that they are used in the field offices. In our discussions with industry representatives, we have found the concepts to be very acceptable. However, there remains a nagging concern with industry that BLM field offices will not accept the concepts or that they will ultimately revert back to the use of stipulations rather than industry...