Policy for Managing Operations and Maintenance (O&M) Activities on Bureau of Land Management (BLM) Rights-of-Way (ROW)
In Reply Refer To: January 23, 2020
2800 (933) P
EMS TRANSMISSION: 1/24/2020
Instruction Memorandum No. ID-2020-009
Expires: 09/30/2023
To: District Managers
From: John F. Ruhs,
State Director
Subject: Policy for Managing Operations and Maintenance (O&M) Activities on Bureau of Land Management (BLM) Rights-of-Way (ROW)
Program Area: Lands and Realty Management
Purpose: The purpose of this Instruction Memorandum (IM) is to provide guidance to Districts and Field Offices for managing operations and maintenance (O&M) activities within and along BLM-authorized rights-of-way to ensure the continued use and reliability of the authorized facilities and infrastructure, and to reduce the threat of wildfire damage to and from the facilities and infrastructure. This IM clarifies the requirements for Authorized Officer (AO) notification, National Environmental Policy Act (NEPA) compliance, and resource surveys for O&M actions conducted by ROW holders or operators (ROW holders). The overall objective of this IM is to ensure that ROW holders are not unnecessarily delayed or prevented from carrying out their obligations to maintain authorized facilities and infrastructure in safe and operational order while mitigating potential hazards to public safety and to private or federal lands within and adjacent to their ROW.
This IM also provides interim guidance for implementing Section 512 of the Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1772), Secretarial Order (SO) 3372, and IM WO-2018-070.
Administrative or Mission Related: Mission
Policy/Action: The BLM recognizes that ROW holders are granted the authority and responsibility to conduct O&M activities within their ROW (43 CFR 2805.14(a)). This IM clarifies that routine and emergency O&M activities are a valid existing right, inherent to each ROW.
The BLM also recognizes that ROW holders must meet applicable State and Federal regulatory requirements designed to ensure public health and safety while providing a reliable public service. As such, ROW holders perform many activities to keep their facilities operational and in good working order, including routine, non-routine and emergency O&M. Routine and emergency O&M activities do not require additional BLM authorization.
Routine O&M activities
Routine O&M activities are crucial for keeping facilities and infrastructure operational, safe and in good repair. Federal regulations require ROW holders to conduct O&M activities that comply with project-specific terms and conditions and in a manner that controls or prevents damage to scenic, aesthetic, cultural, and environmental values, including fish and wildlife habitat (43 CFR 2805.12(a)(8)). Although the ROW holder’s notification of routine O&M activities is recommended, the ROW holder may perform these activities without notifying BLM, unless the ROW grant contains a term(s) specifically requiring prior notification. Also, unless required by a specific grant term, routine O&M activities that follow the above requirements do not require additional environmental analysis (e.g., NEPA analysis, National Historic Preservation Act Section 106 consultation, or other resource surveys). Examples of routine O&M activities include, but are not limited to:
• Ground-based or aerial (manned or unmanned) patrols to inspect for structural and conductor defects, conductor clearance problems, and hazardous trees.
• On-structure inspection and repair of hardware, e.g., insulator replacement, cross arm repair or replacement, hardware tightening.
• Infrastructure/facility maintenance from a vehicle located on a public road or authorized access route.
• Infrastructure maintenance from a helicopter, unless the helicopter is landing or staging materials on BLM lands. Aerial maintenance will abide by special buffers and seasonal restrictions included in the grant unless otherwise authorized in writing by the AO.
• Cathodic protection surveys and maintenance to check and restore the integrity and function of anodes and ground beds.
• Trimming or removal of tall shrubs and trees to ensure adequate clearances.
• Removal of hazard trees, as defined in FLPMA Section 512, within or outside a ROW that pose a risk of falling into a power line, conductors or other infrastructure.
• Vegetation removal on authorized access and service roads to allow necessary clearance for vehicular access and to provide for worker safety.
• Reduction of fuel loads around infrastructure and facilities in fire-prone areas within the ROW by: 1) removing vegetation and/or treatment with herbicide(s) from the approved BLM list, and in accordance with the Pesticide Use Permit, or 2) application of fire retardant coating to infrastructure and facilities. When using herbicide, applicator(s) will hold a current State of Idaho pesticide applicator's license or be under the direct supervision of a licensed applicator. Herbicide will be applied according to label directions, and the ROW holder will report to BLM the amount used for BLM’s herbicide application yearly report.
• Inspection and treatment of wooden structures with preservatives to retard rotting and structural degradation.
• Inspection and maintenance of authorized roads. So long as road length, width, and alignment remain the same, activities may include blading the road to maintain the surface condition and drainage, removing minor physical barriers (i.e. rocks and debris), repairing/replacing culverts, rock crossings, or other erosion control structures, and rehabilitating after major disturbances (such as washouts or slumping) 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 authorized service and access roads. Replacement of culverts greater than 24 inches on intermittent streams, or greater than 18 inches on perennial streams, require BLM approval.
• Actions taken under the authority of the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, or Idaho Code. Appropriate permits will be acquired from U.S. Fish and Wildlife Service (FWS) and/or Idaho Department of Fish and Game (IDFG) prior to nest relocation or removal. As a courtesy, ROW holder will provide the AO with a copy of the required FWS and/or IDFG permit prior to commencing the activity.
• Pole/structure replacement. The material-type (e.g. wood or steel) does not matter, and increases or reductions in height and width are not considered a substantial deviation if they do not conflict with regulatory or land use plan restrictions. Construction-related vehicles may be located on or off a road within the boundary of the ROW.
• Increasing the number of in-kind structures within the ROW and/or modifying the structure type for tensioning purposes at specific sites along a line to reduce wildfire risks caused by line sag or sway.
Detailed direction for addressing vegetation management in and adjacent to ROWs, including management of hazard trees, is contained in FLPMA Sec. 512 (43 U.S.C. 1772), IM WO-2018-070 (Attachment 1), and IM ID-2020-006 (Attachment 2). AOs should consult these documents to understand their decision space and the inherent rights and responsibilities of ROW holders regarding O&M, including vegetation management.
Emergency O&M activities
Situations requiring a ROW holder’s emergency response are those that may result in immediate or direct threats to public health or safety, damage to private property, threaten to damage or impair Federal resources or programs, or threaten or impair the ROW holder’s use of the ROW or the holder’s ability to provide continued service to its customers. Examples of emergency conditions include, but are not limited to, the following:
• Pipeline ruptures.
• Authorized road ROWs damaged or potentially damaged from slumping, blocked culverts, flood waters, etc.
• Damage to facilities, infrastructure or improvements from lightning strike, high winds, wildfire, snow, ice, etc.
• Power line or system outages or fire hazards caused by trees falling into facilities or infrastructure.
• Vegetation and hazard trees, within or adjacent to the ROW, that pose an imminent threat. See definition of a hazard tree in Section 512 of FLPMA.
• Issues or defects that render or could render authorized infrastructure or improvements inoperable, or reduce their capacity for optimum service, including failure of power line conductor splices.
If an emergency or high-priority defect arises, the ROW holder may take immediate corrective action to fix the problem, safeguard human health or safety, provide uninterrupted service to its customers, or prevent damage to adjoining or nearby private property and public land. This includes emergency work both within and adjacent to the ROW. Holders must notify the BLM within three (3) days of the occurrence. Actions are frequently the same as those that occur during routine O&M activities (e.g. infrastructure/facility repair/replacement, hazard tree removal, etc.), but are in response to an emergency. If a ROW grant requires a Notice to Proceed or prior approval from the AO before conducting a specific O&M activity and the ROW holder believes that not conducting this activity would jeopardize human health or safety, interrupt service to its customers, damage adjoining private property or public land, or present a wildfire risk, this IM supersedes such grant-specific direction in order to immediately reduce the potential risk.
Substantial Deviations
Non-routine maintenance that rises to the level of a substantial deviation (43 CFR 2801.5(b)) (except emergency-prompted actions) requires approval prior to implementation through a grant amendment or short-term ROW. Examples of non-routine activities include, but are not limited to the following:
• Moving authorized structure(s) to a location outside the existing ROW.
• Construction of pads for maintenance equipment outside of the ROW.
• Creation of a new road outside of the existing ROW (except in an emergency).
• Rebuilding facilities or infrastructure where the structure type or height conflicts with regulatory or land use plan requirements.
• Widening a ROW.
Vegetation management activities undertaken to comply with 43 CFR 2805.12(a)(4), which requires the ROW holder to do everything reasonable to prevent and suppress wildfires on or in the immediate vicinity of the ROW, do not constitute a substantial deviation.
If the AO determines that a ROW holder’s proposed O&M activities are a substantial deviation, the AO will notify the ROW holder within 15 days from receipt of notice that a grant amendment is required (43 CFR 2807.20), and will process the amendment application in compliance with BLM policy to streamline environmental reviews.
Inherent Right of Reasonable Access
Issuance of a ROW grant provides the holder with the inherent right of reasonable access to their ROW for inspection and O&M activities. Unless specifically required in the grant, or unless access roads are closed or limited through a Travel Management Plan, the ROW holder does not need additional authorization to access their ROW for routine O&M activities. Cross country (off-road) travel to access ROW facilities is not permitted without the AO’s approval; however, the ROW holder may locate/maneuver equipment outside the ROW to safely access facilities and infrastructure without the construction of pads or roads.
Short-term ROWs should be granted by the AO in situations where temporary equipment pad or access road construction is required. For such permitting, AOs will ensure streamlined environmental reviews in compliance with Secretarial Order 3355 and associated supplemental guidance. As a part of grant renewal, the AO should work with the ROW holder to ensure that the width of the ROW is sufficient to accommodate routine O&M activities, and that access to the ROW is included in the grant.
Requirements Imposed by State or Federal Law
This IM does not supersede or negate any requirements imposed by State or Federal law. The ROW holder is responsible for ensuring that their activities comply with all applicable State and Federal laws (43 CFR 2805.12(a)(1)).
Timeframe: This IM is effective upon date of issuance.
Budget Impact: None
Background: The recent nationwide increase in the number and scope of destructive wildfires has emphasized the need for effective facilities O&M and vegetation management to reduce the threat of wildfire both from and to authorized facilities and infrastructure. FLPMA Section 512 acknowledges that ROW holders may need to address conditions outside a ROW to mitigate hazards to public safety and private property/federal land adjacent to a ROW as long as those activities comply with requirements to protect natural and cultural resources and values (43 CFR 2805.12).
Manual/Handbook Sections Affected: No Manual or Handbook sections are affected.
Coordination: Boise Field Solicitor’s Office, Washington Office, Idaho State Office, District, and Field Office staff.
Contact: Questions may be directed to Marlo Draper, Acting Branch Chief for Lands, Minerals, and Water Rights, at (208) 373-3827 or mdraper@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:
Robyn Anderson
Administrative Specialist
Attachments
1 – IM WO-2018-07
2 – IM ID-2020-006