U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
Lands & Realty
 
Carson City District Office
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Obtaining a Right-of-Way on Public Lands

The BLM places a high priority on working with applicants on proposed rights-of-way to provide for the protection of resource values and to process applications expeditiously. This article is designed to acquaint you with this process. A more complete explanation of the BLM right-of-way program is found in Title 43 of the Code of Federal Regulations, Parts 2800 and 2880.

Careful advance planning with BLM personnel who will be handling your application is the key to success. If they know about your plans early, they can work with you to tailor your project to avoid many problems and costly delays later on in the process.

If you are not familiar with local BLM jurisdictions, the best place to start is by contacting a BLM State Office. Each State Office oversees a number of Field Offices, which in turn oversee Resource Areas. Depending on your project, you will most likely be working primarily with personnel at a Field Office.

Each year, thousands of individuals and companies apply to the Bureau of Land Management(BLM) to obtain a right-of-way. A right-of-way grant is an authorization to use a specific piece of public land for certain projects, such as roads, pipelines, transmission lines, and communication sites. The grant authorizes rights and privileges for a specific use of the land for a specific period of time.

Right-of-Way: A Multiple Use

Authorizing rights-of-way has always been a critical part of public land management. With passage of the Federal Land Policy and Management Act (FLPMA) in 1976, new direction was given for this important function. The principles of multiple use and sustained yield set forth in that Act directed the BLM to manage rights-of-way along with other uses, such as livestock grazing, fish and wildlife habitat, mineral extraction, timber harvesting, recreation, and other activities.

Goals of the Right-of-Way Program

The BLM right-of-way program is designed to:

* Coordinate the actions of individuals, government, and business.

* Promote the sharing of rights-of-way.

* Protect the quality of our Nation’s land resources.

* Prevent unnecessary environmental damage to lands and resources.

* Protect the holder’s investments in improvements on the right-of-way.

When You Do--and When You Don’t--Need a Right-of-Way

As a general rule, you do need a right-of-way whenever you wish to build a project on the public lands. Here are some examples of land uses requiring a right-of-way grant, which must be obtained before construction of any kind may begin.

Electrical Generation, Transmission & Distribution Systems: biomass, coal, gas, hydro, nuclear, solar & wind.
Oil & Gas Related Systems: conveyer belts, pipelines & storage facilities.
Transmission & Reception Systems: microwave, radio, telegraph, television, telephone and other electronics.
Transportation Systems: airwasy, canals, highways, roads, trails, tunnels, & tramways.
Water-Related Systems: canals, flumes, pipes/pipelines, reservoirs, ditches, laterals and tunnels.

You don’t need a right-of-way for so called "casual use". What kinds of activities are considered "casual use"? Examples include driving vehicles over existing roads, sampling, surveying, marking routes, traveling on existing roads to private property, collecting data to prepare an application for a right-of-way, and performing certain activities that do not unduly disturb the surface or require extensive removal of vegetation.

Depending on the specifics of your proposed activity, some right-of-way uses on the public lands can be either casual use or use requiring a grant. It’s a good idea to contact the BLM and discuss your plans before assuming your use is casual. The Lands and Realty Specialists can then make a judgement on the requirements in your particular case.

Steps in Applying for a Right-of-Way

Contact the BLM office with management responsibility for the land where the right-of-way is needed.

Arrange a pre-application meeting with the appropriate staff member. Jointly review the application requirements and form to determine what information is needed. If you call ahead to set up the meeting, it can often be arranged and held at the site of your proposed use.

When you have all the information, bring or mail the application, along with the nonrefundable application processing fee, to the appropriate BLM office.

Pre-application Meeting

The pre-application meeting gives both you and the BLM staff a chance to develop a full understanding of each other’s needs. The meeting has the potential of saving both parties time and expense.

For example, in FLPMA. Congress directed that rights-of-way in common be used, to the extent practical, in order to minimize adverse environmental impacts and the proliferation of separate rights-of-way. This is accomplished through a system of designated right-of-way corridors. During the pre-application meeting, the staff may examine the proposed route of your right-of-way to see if it would fit in with existing corridors.

Route changes early is the process are much easier to accomplish for both you and the BLM. The pre-application meeting should also cover fees, safety, work schedules, and other items.

The BLM wants to make the application process as easy as possible. Accordingly, the application form requests a minimum amount of information. Even so, incomplete information is often the reason application periods are unnecessarily prolonged.

To avoid problems, you should at least review the form or, if possible, fill it out during the pre-application meeting with the BLM. Be sure to bring any information that may be useful during the session. For example, Item 8 requests a map of the project area. You may already have a survey or other adequate map that will satisfy this requirement and provide additional information in processing your application.

Completing the Application Form

Directions for completing the application are included on the form; however, the following supplemental instructions may also assist you.

Item 6 - This applies only to oil and gas pipelines. Applicants for oil and gas pipelines must be citizens of the United States. Citizenship is required of all partners in a partnership. Aliens may own or control stock in corporations if the laws of their countries do not deny similar privileges to the citizens of the United States.

Item 7 - Be as specific as possible in describing the project and its location. Be sure to include the legal description of the land involved.

Item 8 - Attach a map(BLM intermediate scale map, 1:100,00; U.S.Geological Survey quadrangle; aerial photo; or equivalent) showing the approximate location of the proposed right-of-way and facilities on public land and existing improvements adjacent to the proposal. Only improvements that may directly affect the proposal need be shown on the map. Include the township, range, section. And a north arrow.

Item 9 - It is not mandatory to submit documentation of other approvals at the time of application. However, if you already have approved documents, reference to that effect or submission of copies of the document may accelerate the processing of the application.

Item 10 - Application fee is discussed in the Costs and Fees section.

Item 12 - If you have no doubts about your capacity to complete the project, write in "[I am/We are] technically and financially capable of completing the project described in this application."

Items 13-19 - It is generally not necessary to complete these items. However, if you have made studies that concern those questions, the information should be submitted to accelerate the processing of the application.

Supplemental - The supplemental page is to be completed only when the application is for an oil and gas pipeline. In such cases, fill in only I(g) and either I(e) or III(c). If this information has been previously submitted with another BLM right-of-way application or grant, provide office and file identification numbers.

To sum up, the application form is considered complete when information has been provided for the following items:

A basic application consists of a completed application form (Standard Form 299), map, and the non-refundable application fee.

Required - Items 1,3,4,5,7,8,10,12,signature, and date; Required if applicable - Items 2,6,11,19,and supplemental page; Optional - Items 9,13,14,15,16,17,and 18.

Costs and Fees

There are three different fees involved for a right-of-way grant:

Application fee - The first fee is a non-refundable application fee to reimburse the United States for the cost of processing the application. Processing fees must be paid when the written application is submitted. The BLM will use the information presented during the pre-application meeting to estimate the application processing fee. The BLM will first designate the project as either major or minor. Fees for minor category projects are charged according to a schedule available at BLM offices. Costs for major category projects depend on whether the project is one authorized under FLPMA or under the Mineral Leasing Act. Major category projects applied for under the authority of FLPMA require payment of reasonable processing costs for rights-of-way. The actual processing costs will be required for rights-of-way applied for under the authority of the Mineral Leasing Act.

Monitoring fee - The second fee is a one-time nonrefundable fee to reimburse the United States for the cost of monitoring compliance with the terms and conditions of the right-of-way grant, including requirements for protection and rehabilitation of the lands involved. The BLM will monitor your construction, operation, and maintenance of the right-of-way and, when the time comes, the shutdown of your activities and the termination of the right-of-way grant. The amount of this fee is also determined according to a schedule available at BLM offices. Again, if the estimated monitoring costs exceed a certain amount, the applicant will be required to reimburse the United States for the actual monitoring costs.

Rental fee - The third fee is the annual rental fee. It is payable in advance and is based on the fair market rental value for the rights authorized. The rental for linear rights-of-way on public lands is usually established via an administrative schedule. This schedule, which is based roughly on land values in the project area, is adjusted annually by an economic index. In some cases, an appraisal establishes the rental. A BLM Appraiser appraises site rights-of-way to determine fair market value.

No application, monitoring, or rental fees are required for:

State or local government or agencies or instrumentalities thereof (except municipal utilities and cooperatives whose principal source of revenue is customer charges)where the land will be used for governmental purposes and the land resources will continue to serve the public interest; Road use agreements or reciprocal road agreements; or Federal Government agencies. Other exemptions, waivers, or reductions in the application and/or rental fees may apply and can be explained by BLM officials during the pre-application meeting.

Remember to Plan Ahead

You should arrange for your pre-application meeting well in advance of when you would like to start work on the project. Processing time for an average grant is 60 to 90 days. However, grants for complex projects can take much longer. Try to contact the BLM as soon as possible. The Assistant Field Manager and staff are ready to provide information, advice, and assistance to help you prepare an application.

Processing a Right-of-Way Application

Once you have filed an application, the BLM reviews it to make sure all needed information has been included. The application is then evaluated to determine the probable impact of the activity on the social, economic, and physical environments. It is also compared with existing land use plans and any existing land use plans and any existing rights or previous right-of-way grants.

A right-of-way application may be denied for any one of the following reasons:

The proposal is inconsistent with the purpose for which the public lands are managed.
The proposal would not be in the public interest.
The proposal is inconsistent with Federal, State, or local laws.
The applicant is not technically or financially capable of accomplishing the project.
Serious environmental consequences that cannot be mitigated would result.
A pre-application meeting will reduce the possibility of the application being denied.

Appeal Rights

If the application is denied, the official written notice will give the reasons for the denial and information on how to file an appeal, should you so desire.

Liability

The holder of a right-of-way grant is responsible for damage or injuries to the United States Government in connection with the holder’s use of the right-of-way.

The holder indemnifies or insures the United States Government harmless for third party liability, damages, or claims arising from the holder’s use and occupancy of the right-of-way.

Your Right-of-Way Responsibilities

Once you have a right-of-way grant, you can proceed with your plans. However, there are a number of responsibilities you should keep in mind. The following questions and answers help explain these responsibilities.

Q. Will the BLM inspect my project?

A. A right-of-way holder may use the right-of-way for only those purposes permitted in the grant. The BLM may suspend or terminate a right-of-way if the holder does not comply with the applicable laws, regulations, terms, or conditions. The BLM may require an immediate temporary suspension of activities within a right-of-way to protect the public health and safety or the environment.

Q. Can I sell or transfer my right-of-way?

A. Yes, with BLM approval. A sale or transfer of your right-of-way is called an assignment. You must submit, in writing, the proposed assignment of all or part of a right-of-way to the BLM, along with a nonrefundable payment of $50.00. The assignment to the new owner is not legally recognized by the United States until it has been approved in writing by the BLM. If the new owner is qualified and agrees to be bound by all of the requirements of the right-of-way grant, the BLM will approve the assignment.


Q. How do I handle removal of resources like timber?

A. If there are any marketable products (such as timber) that have to be removed before construction can begin, you may be required to purchase them before under a separate contract.

Q. If I want to substantially change, improve, or add to my project once I have a right-of-way grant, do I have to get BLM’s approval?

A. Yes. You must file an application to amend your right-of-way grant and receive prior written approval from the BLM for any substantial change in location or authorized use during construction, operation, or maintenance of the right-of-way. Contact the BLM Office involved to determine if the changes are substantial.

A. Yes. The BLM may inspect your project for compliance with the terms and conditions of the grant. In addition, the BLM reserves the right of access onto the public lands covered by the right-of-way grant and, with reasonable notice to the holder, the right of access and entry to any facility constructed in connection with the project.

Q. If the BLM is not satisfied with the way I use my right-of-way, what can the agency do?

 
Last updated: 06-18-2008