Operation and Maintenance Activities for Existing Right-of-Way Authorizations
The purpose of this Instruction Memorandum is to provide additional guidance and clarification regarding land use plan conformance for operation and maintenance (O&M) activities on existing, authorized rights-of-way (ROW).
This Bureau of Land Management (BLM) California policy is to provide a consistent approach to the application of the Conservation and Management Actions (CMAs) contained within the Desert Renewable Energy Conservation Plan (DRECP) Land Use Plan Amendment (LUPA) to ongoing O&M activities within existing, authorized ROWs.
O&M activities that fall within an existing, authorized right-of-way generally should not require additional BLM authorization. Existing authorizations are recognized within the Record of Decision for the DRECP LUPA as a 'valid and existing right'. Those rights include O&M activities; therefore, these actions are in conformance with the land use plan and are not required to follow the management prescriptions identified within the CMAs.
A BLM permit or approval is, however, required when the ROW grant holder’s activity is outside the geographic or substantive scope of the existing ROW.
These O&M activities may be reviewed by the BLM to determine if the action aligns with the rights already granted by the existing authorization, or if it constitutes a substantial deviation as defined by 43 CFR 2801.5 and 2881.5. If the activity does not constitute substantial deviation, the BLM can informally acknowledge the proposal (email, letter, etc.) and the holder can proceed. 2
If an activity does constitute a substantial deviation, or the activity is not part of the existing authorization, the activity and subsequent authorization must be in conformance with the existing land use plan, including application of the relevant CMAs.
O&M activities that do not constitute a substantial deviation are not required to conduct disturbance cap calculations or apply disturbance mitigation. When disturbance baselines were established, reasonably anticipated O&M activities for authorizations existing at the time of the DRECP Record of Decision (ROD) were included the disturbance baseline.
While BLM will not require application of CMAs (including disturbance cap calculations) to existing, authorized O&M activities, the grant locations where O&M activities are proposed may require site-specific survey or minimization measures in order to ensure compliance with the Endangered Species Act (ESA), National Historic Preservation Act (NHPA), or other Federal and State Laws.
This policy is effective immediately
No fiscal impact anticipated
On September 14, 2016, the BLM signed the ROD for the DRECP LUPA, which amended the California Desert Conservation Area Plan, as well as the Bishop and Bakersfield Resource Management Plans. As part of the LUPA, the BLM recognized existing authorizations and acknowledged that they would continue to operate under the terms of their current authorizations (ROD II.2).
In accordance with the Federal Land Policy and Management Act of 1976 as amended (FLPMA), 43 CFR 1610.5-3 requires strict land use plan conformance for all future right-of-way authorizations, amendments, renewals, and assignments. Land use plan conformance consists of three elements:
- Land use allocation or use class and the allowable uses for the allocation or use class;
- Application of pertinent conservation and management actions (CMAs); and
- Application of any other land use plan decisions.
Many right-of-way authorization holders must periodically conduct O&M activities on their facilities. O&M activities may range in scope from actions inside a communication site building to replacement of electrical distribution poles. Special consideration should be given by the holder to ensure their O&M activities do not constitute a substantial deviation. Regulations (43 CFR 2801.5 and 2881.5) define a substantial deviation as:
- Construction or use outside the boundaries of the right-of-way; or
- Any change from, or modification of, the authorized use. Examples of substantial deviation include: adding equipment, overhead or underground lines, pipelines, structures, or othe facilities not included in the original grant.
Additional considerations include:
- Whether the existing authorization allows or prohibits specific O&M activities
- Some authorizations may not enumerate specific O&M activities, so it may be appropriate for the BLM to determine what prudent and common O&M activities are reasonably expected to accompany the type of facility or use authorized. Industrial standard or regulation will also help inform this determination. As example: a power distribution line authorization may not outline pole replacements in the existing authorization; however, this is considered an O&M activity as long as there is no substantial deviation from the current grant.
- O&M activities that fall within the existing authorization footprint that were not previously authorized or are not reasonably expected, constitute a substantial deviation in location or use and requires a new authorization. For example: replacing a 7.5 kV wooden pole power line with a 250 kV metal lattice pole design. This action may fall within the existing authorized footprint but is a substantial change in height and capacity which would trigger a new authorization (amendment).
This IM does not change manuals or handbooks nor does it replace or cancel previous IMs.
Russell Scofield, Senior Natural Resource Advisor, 760-833-7139 or Erik Pignata, Realty Specialist, 916-978-5655.
Coordination with the California Desert District; California State Office Division of Natural Resources; and the Office of the Regional Solicitor, Pacific Southwest Region.