Revised Standard Stipulations for Rights-of-Way (ROWs) and Other Land Use Authorizations

In Reply Refer To:
2800 (933) P

                                                               August 21, 2019

 

EMS TRANSMISSION:  08/21/2019
Instruction Memorandum No. ID-2019-023
Expires: 09/30/2022

 

To: Idaho Leadership Committee

 

From: State Director

 

Subject: Revised Standard Stipulations for Rights-of-Way (ROWs) and Other Land Use
 Authorizations

 

Program Area:  Lands and Realty Resources

 

Purpose:  This Instruction Memorandum (IM) incorporates new and revised Standard Stipulations for ROWs and other land use authorizations in Idaho.  One method of increasing consistency is incorporating standard stipulations in ROW grants and other land use authorizations, including new authorizations, assignments, renewals and amendments. 

 

The 43 CFR 2800 and 2900 provide the direction the Bureau of Land Management (BLM) must follow when considering the issuance of ROWs, leases, and permits.  General terms and conditions are found at 43 CFR 2805.12 for ROWs and 2920.7 for land use permits and leases.  Further guidance is provided in the ROW Manual 2800 series.

 

Administrative or Mission Related:  Mission Related.

 

Policy/Action:  Standard stipulations for ROWs and other land use authorizations (i.e., permits, leases, etc.) were collaboratively developed by Idaho State, District and Field Offices, and provide consistent language across BLM Idaho.  When granting, renewing, assigning, or amending a ROW or other land use authorization, in addition to the above-referenced general terms and conditions, the stipulations in Attachment 1 will be implemented as follows:
 
• Specialists and Managers should choose applicable stipulations from the set of standard stipulations based on a project’s environmental analysis, planning documents, agreements, and all pertinent manuals and handbooks.

 

• Standard stipulations will be used whenever applicable without revision.  They should not be revised simply to appease an applicant’s request for language modification.

 

• Non-standard or site-specific stipulations (not included in the list of standard stipulations) may be developed to address issues or conditions not specifically addressed by the standard stipulations.  Site-specific stipulations will be developed on an as-needed basis in response to issues addressed in the environmental analysis, and will be consistent with pertinent laws, regulations, policies, and planning documents. 

 

• In recognition of BLM Idaho’s ongoing ROW renewal backlog, and in accordance with 43 CFR 2805.10(b)(3), managers should renew ROWs for a 50-year term in those instances where the life of the authorized infrastructure equals or exceeds that timeframe.  Examples of these situations include, but are not limited to powerlines, roads, canals, reservoirs, etc.

 

• The strict liability stipulations found at 43 CFR 2807.12(a) and (b), and included as stipulation #11 in Attachment 1 to this IM, should only be included in an authorization following a complete analysis of the foreseeable hazard or risk of damages or injury to the United States.  If the strict liability stipulation is included in an authorization, the Authorized Officer must identify in the authorization the activity and/or facility posing such hazard or risk and the financial limitations on damages commensurate with such hazard or risk.
 
• In cases where bonding is clearly warranted, you should proceed using existing regulations and policy.  Bonding for electrical distribution and transmission line ROWs, however, is not required due to Federal and State regulatory requirements that preclude public electrical utilities from abandoning their infrastructure. 

 

• The statement in the list of stipulations regarding Greater Sage-Grouse is not a stipulation, but rather direction for the Authorized Officer and Specialists to consider when developing mitigation and stipulations for proposals located in Greater Sage-Grouse habitat.

 

• Please note that slickspot peppergrass (Lepidium papilliferum) (LEPA) stipulations differ depending on the area affected by the project being analyzed.  The stipulations reflect agreed-upon language developed during formal consultation with the U.S. Fish and Wildlife Service.  Please select only those LEPA stipulations that pertain to the affected project area.

 

• Attachment 1 does not include stipulations specifically targeted toward communication use leases.  Specialists processing applications for communication use leases may coordinate with Idaho State Office Realty Specialist to get examples of pertinent stipulations.
Managers and specialists should understand and acknowledge that BLM ROWs allow holders to conduct a number of routine operations and maintenance (O&M) activities to keep authorized structures and facilities operational, safe, and in good repair.  The following routine O&M activities, though not an exhaustive list, are considered valid existing rights, and may be conducted by holders as necessary without additional authorization:

 

• Routine ground and air patrols, including those conducted by unmanned aerial vehicles, to inspect for structural defects, hazard trees, etc.

 

• Climbing structures to inspect or make repairs.

 

• Structure/facility maintenance from a vehicle located on a public road or authorized access route, or on or off-road within the ROW.

 

• Structure/facility maintenance from a helicopter. Project-specific stipulations may be required if the helicopter is landing on or staging materials on BLM lands.  Aerial maintenance will abide by special buffers and seasonal restrictions unless otherwise excused in writing by the Authorized Officer.

 

• Cathodic protection surveys and maintenance to check and restore the integrity and function of anode and ground beds.

 

• Pursuant to Section 512 of the Federal Land Policy and Management Act of 1976, removal of individual trees or snags (hazard trees) within or adjacent to the ROW boundary that pose a risk of falling into a power line, conductor or other structure.  Also, routine vegetation clearing to trim or remove shrubs and trees within the ROW and/or treatment with BLM-approved herbicides to control noxious weeds, reduce fuel loads around structures/facilities, and ensure safety and adequate clearance.
 
• Vegetation removal on authorized access and service roads outside the ROW, or on or off-road within the ROW boundary, to allow necessary clearance for access and to provide for worker safety.

 

• Routine inspection and maintenance of authorized roads, as long as road length, width, and alignment remains the same.  Routine activities may include blading to maintain the surface condition and drainage, removing minor physical barriers (i.e. rocks and debris), replacing culverts, rock crossings, or other erosion control structures, and rehabilitating after major disturbances (such as slumping or wash-outs) requiring heavy equipment.  Rehabilitation of major disturbances may include seeding, noxious and invasive weed control, and erosion control as appropriate. Heavy equipment will travel and maneuver on existing service and access roads. Replacement of culverts greater than 24 inches on intermittent streams, or greater than 18 inches on perennial streams, would require BLM approval.

 

• Replacing, reducing or increasing the number of in-kind structures/facilities within the ROW as long as maintenance vehicles remain within the ROW.

 

When processing a reciprocal ROW, consult with the Idaho State Office; a reciprocal ROW may require different stipulations.

 

Timeframe:  This policy is effective immediately.  These stipulations will be periodically reviewed for potential revision.

 

Background:  Standardized, or guide, stipulations have been included in previous manuals and training materials; however, the stipulations were edited in various ways by different states and offices.  Some of the language changes resulted in different requirements, even though the stipulations attempted to address the same issue.  Prior to regulation changes in 2005 and 2008, the BLM Manual 2800 contained a number of “guide” stipulations, which are not contained in the current Manual.  Standardized language is needed because various offices were using different stipulations (or similar stipulations with different wording) for the same issue(s), even when dealing with the same applicant, which led to inconsistent management by various offices, as well as confusion for companies that operated within different field offices.

 

Manual/Handbook Sections Affected:  None.

 

Coordination:  Idaho State Office, District and Field Office staff.

 

Contact:  Questions may be directed to Jim Fincher, Branch Chief for Lands, Minerals and Water Rights, at 208-373-3827 or jfincher@blm.gov.

 

Boise District with Union:  Management is reminded to notify and satisfy any bargaining requirements prior to implementation.

 

Signed by:
John F. Ruhs
State Director

 

Authenticated by:
Terrian Wells
Management and Program Analyst

 

Attachment:
    1 – Revised Stipulations for Idaho-BLM ROW Grants and Land Use Authorizations (15 pp)