Rights-of-Way (ROW) Renewals and Reauthorizations for Energy Infrastructure
June 26, 2020
EMS TRANSMISSION: 6/29/2020
Instruction Memorandum No. WY-2020- 015
Expires: 09/30/2023
To: District Managers
From: Timothy Wilson, Acting Deputy State Director, Division of Minerals & Lands
Subject: Rights-of-Way (ROW) Renewals and Reauthorizations for Energy Infrastructure
Program Area: Lands and Realty Management
Purpose: On April 10, 2019 the President of the United States issued Executive Order (EO) 13868 (Attachment 1) entitled “Promoting Energy Infrastructure and Economic Growth.” Section 6 of EO 13868 addresses energy (ROWs) that are still vital to America’s energy operations and infrastructure but are expired. Expired authorizations create legal and operational uncertainties for the owners and operators of the energy infrastructure within the United States and potentially create unresolved liabilities for the Federal Government. The purpose of this IM is to provide a framework for BLM Wyoming field offices (FOs) to address expired or expiring ROWs to comply with EO 13868.
Administrative or Mission Related: Mission related
Policy/Action: The Bureau of Land Management (BLM) in Wyoming has a significant backlog of energy related expired and expiring ROWs. Many of the subject ROWs have been expired for up to 10 years without being either reauthorized or closed of record. On April 10, 2019 President Trump signed EO 13868 into effect, and Section 6 of the subject EO specifically requires the Secretary of the Interior to:
a) Develop a master agreement (Category V) for energy infrastructure ROW renewals or reauthorizations; and
b) Within 1 year of the date of this order, initiate renewal or reauthorization processes for all expired energy ROW grants, leases, permits, and agreements … to the extent permitted by law.
Although the backlog of expired ROWs within Wyoming include other non-energy Federal Land Policy and Management Act (FLPMA) related case types not addressed by this EO, in certain circumstances these ROWs support the operational continuity of energy production (e.g. road, water pipeline) and may need to be addressed to prevent interruption to those operations and minimize additional future liabilities. As such, there is a need to also consider these as a component of BLM-Wyoming’s response to EO 13868. Consistent with the requirements of EO 13868, the first priority will be the reauthorization or closure of the energy cases identified by the EO, as appropriate.
In order to comply with Section 6(b) of the EO all offices which have a backlog of expired energy-related ROWs will:
1) By July 31, 2020 FO’s will issue a Notice of Non-Compliance – Held for Suspension or Termination to any Holder with an expired grant that has not filed a SF-299 renewal application. The Holder, upon receipt of the Notice, will have 30 days to respond to any request by the Authorized Officer (AO) or file an SF-299 for renewal or request relinquishment. Failure by the grant Holder to take the required action will result in the BLM seeking administrative remedies. In the event termination of the grant is required pursuant to 43 CFR 2807.16-19 or 2886.16-19; trespass actions under 43 CFR 2808 or 2880 may be pursued. Therefore, contact with the Holder(s) should be in the form of an official letter sent Certified Mail - Return Receipt Requested. Holders that do not respond to a Notice are also subject to termination or trespass and FO’s will take appropriate action as necessary.
2) By August 14, 2020 Field Offices with expired energy ROW applications will provide to the WYSO:
a) Updated spreadsheets with projected completion date consistent with this IM (Attachment 2-How to Update the Expired ROW Spreadsheets); this spreadsheet along with LR2000 will be updated by the 3rd of every month, thereafter. If sufficient progress in reducing the backlog of expired ROWs is made by a FO, spreadsheet updates could become less frequent, as determined by the National Office.
b) An Action Plan (AP) for remaining expired energy ROWs will be developed by the FO’s to address the current backlog of existing expired energy ROWs. To ensure Wyoming continues to comply with the EO, this policy requires that the AP incorporate all expiring energy ROW through calendar year 2020. The goal is to complete as many, if not all, of the expired and expiring energy ROWs by the end of calendar year 2020. FO’s will include information including, but not limited to, identifying the work months that are needed to complete the work and any additional support that may be necessary in order to meet the E. O. deadline(s).
c) According to LR2000, BLM Wyoming has approved a number of assignments after the date of ROW expiration. Many of these ROWs also have pending renewals that may not have been processed. These are to be identified within the AP if they were not properly renewed prior to, or at the time assignment. If renewal has been completed, LR2000 and the AP must be updated with the appropriate data standards.
d) Backdating of renewal grants is not authorized. Each renewal must be from the current date of renewal forward. All rentals that are in arrears, will be collected through Lands and Realty Authorization Module (LRAM) and Collections and Billing System (CBS) which will include interest and penalties. Any renewal that is current on rent through the Administrative Procedures Act will be considered as renewed annually until all formal documentation can be completed. Any backdated renewals issued by a FO will be identified within the AP and provide a corrective action to bring those grants into regulatory compliance.
3) By August 14, 2020 expired and relinquished ROWs will be evaluated and managed as follows:
a) A compliance inspection will be scheduled for any ROW relinquished within the past 5 years which is under an ongoing reclamation plan and is current on rental payments. If reclamation is determined to be complete in the inspection, the BLM may close the file of record. The FO will provide a projected date of closure or close case files that have met this requirement.
b) The FOs will inventory any expired ROW relinquished five or more years prior to the date of this IM in which BLM has not been diligent in the acceptance process of the relinquishment (e.g. continued rental, agreed to a reclamation plan or schedule, conducted proper compliance). FOs may close the case without action unless the AO can justify the accountability of the Holder after this period of time.
c) For expired ROW’s relinquished less than five years ago, FOs will complete compliance and determine relinquishment requirements. FOs will work with the company to accomplish reclamation in accordance with the RMP.
The WY BLM reserves the right to create a Category V Master Agreement for cost recovery as indicated in Section 6(a), above if a significant amount of the backlogged ROWs have not had cost recovery already collected, as part of this effort. FO’s may recommend certain cases for a Category V Master Agreement within the aforementioned AP.
Timeframe: Effective immediately.
Budget Impact: This policy will not result in additional program costs due to the collection of proper cost reimbursement under the law. The implementation of this IM will likely reduce costs to the BLM by reducing unresolved liabilities and ensuring continuity of energy operations. The AO will determine the appropriate cost recovery category and collect fees prior to performing any work on renewal applications.
Background: Title V of the Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1764(i)) and Section 28 of the Mineral Leasing Act (MLA) (30 U.S.C. 185) provide BLM with authority to reauthorize expired energy ROW grants. The implementing regulations can be found at 43 CFR 2806.10(a), 2807.16-19, 2808, 2885.11, 16-23, 2886.16-19, 2887.12 and 2880)).
Manual/Handbook Sections Affected: None.
Coordination: The BLM Branch of Fluid Minerals Operations, Lands and Appraisals coordinated preparation of this IM with the Office of the Solicitor, Rocky Mountain Regional Office, and BLM-Wyoming Field Offices.
Contact: If there are any questions concerning this IM, please contact Michael T. Hogan, Realty Officer at 307-775-6257 or mthogan@blm.gov.
Signed by:
Christopher D. Hite
FOR Acting Deputy State Director
Minerals and Lands
Authenticated by:
Jessica Camargo
State Director’s Office
2 - Attachments:
Executive Order 13868 (1p)
How to Update the Expired ROW Spreadsheets
Distribution
Field Managers 1 (w/atch.)
CF 2 (w/atch.)