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April 22, 2013
In Reply Refer To:
2800 (350) P
Instruction Memorandum No. 2013-124       
Expires:  09/30/2014 
To:                   All Field Office Officials
From:               Assistant Director, Minerals and Realty Management 
Subject:            Right-of-Way Dam Authorizations and New Applications
Program Area:  Rights-of-Way Management.
Purpose: This Instruction Memorandum (IM) provides guidance to protect public health and safety associated with authorized dam facilities.
Policy/Action: On December 27, 2012, the Office of Inspector General for the Department of the Interior (OIG), released Report No. WR-EV-MOA-0015-2011, “Bureau of Land Management, National Park Service, and Office of Surface Mining Reclamation and Enforcement’s Safety of Dams: Emergency Preparedness” (OIG Report) (see http://www.doi.gov/oig/news/safety-of-dams-emergency-preparedness.cfm). The OIG Report recommended under Recommendation 8: 
To the extent practicable, as BLM-ROW agreements or permits that allow for dam operations are reviewed for renewal, amend them to include the Federal Guidelines for Dam Safety (FGDS) requirements or appropriate dam safety and emergency preparedness terms and conditions.  

BLM regulations in 43 CFR 2805.15(e) provide authority for the BLM to modify the terms and conditions of a right-of-way (ROW) grant as a result of changes in legislation, regulation, or as otherwise necessary to protect public health or safety or the environment. As a result of the OIG recommendation, the BLM is amending the dam authorizations per the timeframe below instead of deferring action until individual authorizations are due to expire. Amending the BLM dam authorizations will ensure the protection of public health and safety and provide timely resolution of the OIG recommendation.

Field offices will review the significant and high hazard dam authorizations (attachment 1) in their respective jurisdictions and notify the holders by letter within 60 days of this policy that the BLM will add the provided term and condition to existing authorizations in order to protect public health and safety. Attachment 1 lists the significant and high hazard dam authorizations as of March 2013 extracted from the Legacy Rehost 2000 system.  It is recommended that field offices coordinate with the state office engineering department to ensure the hazard classification of the high and significant hazard dams remains accurate and the correct authorizations are amended. Field offices will also inform grant holders of their responsibilities to protect public and private property, public health and safety, and their liability as found in the regulations at 43 CFR 2805.12(i)(3)(ii)(ii) and 43 CFR 2807.12.  

We will insert the following condition into new and existing authorizations:  
The authorization holder shall comply with the current requirements of the Federal Guidelines for Dam Safety (including FEMA 64, FEMA 65, FEMA 93, FEMA 94, FEMA148, and FEMA 333) for dam site investigation, design, construction, operation and maintenance, and emergency preparedness. Upon request from the BLM, the authorization holder shall provide all supporting documentation for reporting the adequacy and condition of the dam under these Federal Guidelines for Dam Safety. If the terms of these stipulations are not met the ROW holder shall, within 120 calendar days, provide a plan for the cure of the identified deficiencies to the BLM. Failure to report and act on curing dam safety deficiencies may result in suspension or termination of this authorization and the access to the BLM-administered public lands. 
Existing Federal Land Policy and Management Act of 1976 (FLPMA) Grants and pre-FLPMA Grants
Since the BLM initiated the change to the authorization (i.e., terms and conditions), the BLM will issue a final decision letter amending the grant. The final decision will specify the holder’s right to appeal to the Interior Board of Land Appeals. The BLM field office must provide the final decision to the holders within 120 days of the effective date of this policy.
New Authorizations 

Field offices will also ensure all new authorizations contain the new term above. 

Timeframe: This IM is effective immediately. Field offices are responsible for informing authorization holders within 60 days and amending all authorizations within 120 days. The BLM State Director must certify using attachment 2, State Director Certification Memorandum, within 180 days that the field offices have amended any existing authorizations. Please send certification memorandums to Lucas Lucero, Branch Chief Rights-of-Way (WO-350).

Budget Impact: Budget impacts are expected to be minimal and are dependent on the number of authorizations within each field office and the amount of coordination with grant holders and applicants. In most cases, field offices will use 1430 funds. If a field office is processing an application or monitoring a grant, the field office may use the applicable cost recovery fund code (e.g., 5101, 5102, 5103, or 7122).

Background: The BLM administers rights-of-way for a variety of uses including dams and related facilities. Some of these facilities in the OIG Report are considered “high hazard” and “significant hazard” under Federal guidelines found in appendix 2 of attachment 4:  “Federal Guidelines for Dam Safety” (see the Federal Emergency Management Agency website at: http://www.fema.gov/library/viewRecord.do?id=1578). When the failure of the dams could result in loss of life, the Federal Government characterizes the dam as high hazard or a significant hazard.  The BLM-administered public lands also have a number of privately owned dams, of which some qualify as high hazard or significant hazard dams under Federal guidelines.  The Department of the Interior Manual 753 (DM 753) requires each bureau’s dam safety program to include an emergency action plan (EAP) for all of its high hazard and significant hazard dams.  The final OIG audit report identified some instances of missing or inadequately tested EAPs and recommended to include the FGDS requirements or appropriate dam safety and emergency preparedness terms and conditions. This IM addresses the OIG recommendations. 

Manual/Handbook Sections AffectedThis IM affects BLM Manual Section 2805, Rights-of-Way. The manual will include this interim policy when next revised.

Coordination: The Division of Lands, Realty and Cadastral Survey (WO-350) coordinated preparation of this IM with the Division of Business Resources (WO-850), state and field offices, and the Department of the Interior Office of the Solicitor. 

ContactIf you have any questions concerning the content of this IM, please contact me at   202-208-4201, or your staff may contact Kim Berns, Division Chief, Lands, Realty and Cadastral Survey (WO-350) at 202-912-7350; Lucas Lucero, Branch Chief, ROW (WO-350) at 202-912-7342 or LLucero@blm.gov; Jennifer Whyte, Realty Specialist (WO-350) at 202-912-7219 or JWhyte@blm.gov; or Marjorie Chiles, Civil Engineer, Division of Engineering and Asset Management Policy (WO-850) at 202-912-7151 or MDChiles@blm.gov.
Signed by:                                                        Authenticated by:
Michael Nedd                                                    Robert M. Williams
Assistant Director                                             Division of IRM Governance,WO-560
Minerals and Realty Management
2 Attachments

Last updated: 05-28-2013