3.1 Purpose. This chapter provides Fish and Wildlife Service (Service) policy and procedures for participation with the Bureau of Land Management (BLM) in the planning and permitting of pipeline rights-of-way involving lands administered by BLM and the Service.
3.2 Objective. The objective of this chapter is to assure early and complete involvement of the Service in the awarding of pipeline rights-of-way grants issued by BLM. This assures that fish and wildlife resources receive equal consideration with other project purposes, as called for by the Fish and Wildlife Coordination Act, Minerals Leasing Act, and other authorities.
3.3 Scope. The scope of a pipeline right-of-way grant application to cross Federal lands may involve more than one field office (FO) or Region, as well as other Federal agencies and private organizations. Because of such Service and multi-agency involvement, the awarding of pipeline rights-of-way grants present unique planning problems requiring close coordination. To assure that a pipeline right-of-way grant complies with existing requirements, Ecological Services (ES) will coordinate the planning and awarding of a pipeline right-of-way grant among affected Service divisions, Regions, field offices, and applicants. ES will also coordinate the pipeline planning and right-of-way permitting process with BLM, which may be required to issue its own permits for the pipeline right-of-way. The purpose of this activity is planning coordination. These procedures do not supersede such other processes as National Wildlife Refuge compatibility statements or Endangered Species Section 7 Section 7
Section 7 Consultation
The Endangered Species Act (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. Section 7 of the Act, called "Interagency Cooperation," is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species.
Learn more about Section 7 consultations.
3.4 Policy.
A. It is Service policy to identify potential impacts of pipeline rights-of-way grants on fish and wildlife resources early in the planning process. The lead ES office will work with BLM, Service divisions, Regions, field offices, and the pipeline right-of-way applicant to properly plan the pipeline right-of-way. ES will also assist in the development of pipeline rights-of-way alternatives that would avoid, minimize, or in other ways mitigate environmental damage.
B. For pipelines that cross Service lands, an ES project officer will be appointed to provide both a single point of contact for BLM and a coordinated intra-Service response to all Service/BLM-pipeline activities. (See 505 FW 3.2).
C. The extent of ES involvement in each pipeline right-of-way grant process should be based on the following factors:
(1) Endangered Species. Endangered Species staff will be involved early in the planning process to assure integration of Endangered Species Act requirements into the overall planning and permitting process of the pipeline right-of-way.
(2) Important Habitats. Certain important habitats, e.g., wetlands, riparian riparian
Definition of riparian habitat or riparian areas.
Learn more about riparian areas, and unique or sensitive ecological areas, may require Service involvement in planning pipeline rights-of-way.
(3) Service-Managed Lands. National Wildlife Refuge System regulations assure automatic involvement in the permitting process for any pipeline right-of-way crossing lands administered by the Service. ES staff will work closely with Refuges to assure integration of Refuge requirements into the overall pipeline right-of-way planning and permitting process
(4) State Lands Purchased with Federal Aid (FA) Funds. ES staff will notify FA staff of pipeline right-of-way applications so FA can determine if the requested rights-of-way will or will not affect State lands acquired or managed with FA funds.
3.5 National Environmental Policy Act (NEPA) and Environmental Review Responsibility. Under NEPA, the planning and granting of pipeline rights-of-way will also be reviewed by ES. For general NEPA and environmental review responsibilities of the Department of the Interior (Department) and the Service, review 505 FW 1.6 - Responsibilities.
3.6 Authorities. The following general authorities provide the basis for Service involvement in pipelines:
A. Program Authorities
(1) Mineral Leasing Act, as amended (30 U.S.C. 181).
(a) Section 28 of this act requires the Secretary of the Interior (Secretary) to take the lead in granting pipeline rights-of-way (ROW) across Federal lands for oil, natural gas, and byproducts pipelines when lands administered by two or more Federal agencies are involved. The Secretary has delegated this responsibility to BLM. A copy of the existing Memorandum of Understanding (MOU) between the Service and BLM concerning the harmonious and effective cooperative relationships between the two agencies in resource management activities is attached as Exhibit 1.
(b) Section 28 clearly spells out environmental protection requirements to be included in pipeline ROW grants that cross Federal property.
(c) BLM issued final rule making for procedures to carry out the provisions of section 28 of the act on October 9, 1979, (43 CFR 2880). The Service issued a final rule making for procedures to carry out its responsibilities when a pipeline crosses refuge lands, and amended its regulations under the National Wildlife Refuge System Administration Act on August 31, 1977 (50 CFR 29.21).
(d) Coal slurry pipelines are not covered by the Mineral Leasing Act, but are covered by the Federal Land Policy and Management Act (43 U.S.C. 1701 et seq.).
(e) If public lands are involved, BLM will usually take the lead for the environmental impact statement (EIS). However, each land management agency is responsible for issuing its own individual pipeline permit.
(f) Section 185(l) of the act requires pipeline applicants to reimburse the Federal Government for all costs required to process, issue, and administer pipeline right-of-way grants.
(2) National Environmental Policy Act, as amended (42 U.S.C. 4321-4347). For most pipeline right-of-way grants involving lands of two or more Federal agencies, BLM will take the lead in preparing environmental documents. The Service's ES will participate in developing the environmental assessment (EA) and EIS and/or review these documents prepared by BLM, depending on the priority of the pipeline ROW, as determined by the procedure described in 507 FW 4. The Federal Energy Regulatory Commission (FERC) will take the lead when involved with natural gas pipeline ROW on BLM lands. In such cases, BLM will tier its environmental document from the FERC environmental documentation for the ROW.
(3) Fish and Wildlife Coordination Act (FWCA), as amended (16 U.S.C. 661 et seq.). The FWCA is the major authority for ES activities. Whenever a Federal agency proposes to issue a permit or license for activities in waters of the United States, it must consult with ES on potential impacts to fish and wildlife. ES may recommend measures to mitigate those impacts. The legislative authorities discussed in 507 FW 4 include pipeline ROW permit activities of concern under FWCA. The 1946 amendments of this act authorize the transfer of funds to the Fish and Wildlife Service (FWS) to conduct related investigations when the FWS is requested to consult with State fish and wildlife agencies where the "waters of any stream or other body of water are proposed or authorized, permitted, diverted... or otherwise controlled or modified" by an agency under a Federal permit or license. Consultation is to be undertaken for the purpose of "preventing loss of and damage to wildlife resources."
(4) Federal Power Act (FPA), as amended (16 U.S.C. 791-828c). The original statute, passed in 1920, provides for cooperation between the Federal Energy Regulatory Commission (FERC) and other Federal agencies, including resource agencies, in licensing and relicensing power projects. Amendments in 1935 and 1986 added new requirements to incorporate fish and wildlife concerns in licensing, relicensing, and exemption procedures. Lands, such as national wildlife refuge national wildlife refuge
A national wildlife refuge is typically a contiguous area of land and water managed by the U.S. Fish and Wildlife Service for the conservation and, where appropriate, restoration of fish, wildlife and plant resources and their habitats for the benefit of present and future generations of Americans.
Learn more about national wildlife refuge lands, may not be used for purposes inconsistent with the reason for which the land was acquired or created.
(5) Rivers and Harbors Act of 1899, as amended (33 U.S.C. 401 and 403). Section 10 of this act authorizes the Corps of Engineers (COE) to regulate activities in navigable waters of the United States by issuing permits for approved activities. A Section 10 permit will be required whenever a pipeline or pipeline-related activity affects navigable waters. However, the COE will usually not issue Section 10 permits until all other Federal and State pipeline permitting requirements are fulfilled. Similarly, the U.S. Coast Guard will issue permits under Section 9 if a pipeline requires a bridge or causeway across navigable waters of the United States. Additionally, Congressional approval is required for the building of the supporting bridge or causeway if it crosses navigable waters of the United States.
(6) Clean Water Act, as amended, (33 U.S.C. 446 et seq.). Service involvement under this act involves the potential changes in water quality due to the proposed pipeline ROW and its effects on fish and wildlife resources. Under Section 404 of this act, the COE issues permits for the discharge of dredged or fill materials into waters of the United States. Normally, the COE will use its Nationwide permit for pipelines, if the applicant can meet the permit requirements listed in the COE Regulatory Program Guidelines (33 CFR 330) issued November 22, 1991. Section 402 of the Clean Water Act forbids the discharge of any pollutant into waters of the United States, unless a permit for such discharge is first obtained from the Environmental Protection Agency (EPA). Regulations covering the issuance of Section 402 permits were issued as 40 CFR 122, effective April 1, 1983.
(7) National Wildlife Refuge System Administration Act (16 U.S.C. 668 et seq.). Under this act, pipeline ROWs that cross Service lands, and/or involve interests in lands administered by the Service, require an ROW permit from the appropriate Service Regional Director (RD). To issue this ROW permit, the RD must make a finding that the pipeline ROW will be compatible with the purposes of the involved refuge. The RD may also require ROW mitigation measures in order to make a finding of compatibility. If an oil or gas pipeline ROW will cross other Federal lands as well as Service fee title lands, BLM is responsible for issuing the pipeline ROW grant for all Federal lands. Service mitigation measures will be included in the stipulations for such a pipeline ROW grant. The Department of the Interior Solicitor has determined that Refuge easement lands do not come under the requirements of the Mineral Leasing Act. Therefore, an applicant for a pipeline ROW over multiple Federal lands must secure permits from the Service to cross easement lands. In such cases, a BLM ROW permit would not be required. Application procedures, section 29.21-2 (a)(2)(ii) of this act, describes the application fees to be charged for linear facilities.
(8) Endangered Species Act, as amended, (16 U.S.C. 1532 et seq.). The lead Federal agency must request consultation with the Service when it is determined that a pipeline ROW may affect a listed species and/or request a conference when the continued existence of a proposed species is likely to be jeopardized. This consultation process will usually be initiated simultaneously with preparation of the EA or EIS. Conditioning the pipeline ROW permit is the usual method of assuring protection of endangered species.
(9) Federal Aid in Wildlife Restoration Act, as amended, (16 U.S.C. 669 et seq.) and Federal Aid in Sport Fish Restoration Act (16 U.S.C. 77 et seq.). Under these acts, Federal funds are granted to States for, among other things, acquisition of real property for wildlife and sport fish management. It is the State's responsibility to operate and maintain these areas in accordance with approved project purposes. Such property must not be used for any purpose incompatible with the purpose of these Service-approved grants. It is Federal Aid's responsibility to make sure that the States comply with the terms of FA grants.
(10) Wilderness Act, as amended (16 U.S.C. 1131 et seq.). New pipeline ROWs are not allowed to cross designated wilderness areas. However, if a pipeline ROW was in place before an area was designated as a wilderness area wilderness area
Wilderness areas are places untamed by humans. The Wilderness Act of 1964 allows Congress to designate wilderness areas for protection to ensure that America's pristine wild lands will not disappear. Wilderness areas can be part of national wildlife refuges, national parks, national forests or public lands managed by the Bureau of Land Management.
Learn more about wilderness area , the pipeline ROW grant can be renewed. Applications for pipeline ROWs to cross wilderness study areas are not processed until completion of the ongoing study. A pipeline ROW application will be denied if the affected area was designated as a wilderness area without a pipeline ROW provision.
(11) Wild and Scenic Rivers Wild and Scenic Rivers
The Wild and Scenic Rivers Act of 1968 established the National Wild and Scenic Rivers System, and authorizes Congress to preserve certain rivers with outstanding natural, cultural and recreational values in a free-flowing condition for the enjoyment of present and future generations. The act is notable for safeguarding the special character of these rivers, while also recognizing the potential for their appropriate use and development. The act encourages river management that crosses political boundaries and promotes public participation in developing goals for river protection.
Learn more about Wild and Scenic Rivers Act, as amended (16 U.S.C. 1271 et seq.). Under this act, restrictions on pipeline ROWs vary, depending on the designation of the affected river and specific legislation establishing the involved wild or scenic river. Unless specifically exempted by authorizing legislation, pipeline ROWs will not be allowed to cross designated wild rivers. Pipeline ROWs affecting scenic and recreational rivers will be considered on a case-by-case basis.
(12) Federal Land Policy and Management Act (43 U.S.C. 1701 et seq.). A Final Rule under this act by BLM on July 8, 1980, (43 CFR 2808) addresses oil and gas pipeline crossing public lands and requires reimbursement of costs to the Federal Government by a pipeline ROW applicant.
(13) Alaska National Interest Lands Conservation Act (94 Stat. 2371; Pub. L. 96-487). This act details that when more than one Federal agency is involved in a pipeline ROW application, the agency with the more lineal portion of the proposed ROW shall be the lead agency, except when an existing agreement between the involved Federal agencies designates a different lead agency for all or parts of the ROW application review and processing or NEPA compliance. The Secretary of the Interior, under the Mineral Leasing Act (30 U.S.C. 181), has delegated to the Bureau of Land Management lead authority in granting pipeline rights-of-way across Federal lands for oil, natural gas, and byproducts when lands of two or more Federal agencies are involved.
(14) Money and Finance - Agency Agreements (31 CFR - Section 1535). This section describes the procedures for the head of one agency to order goods or services from the head of another agency, and the procedures for reimbursement.
(15) Fish and Wildlife Service Cost Recovery Policy - (264 FW 1-3). This policy addresses both cost recovery for appropriated activities and indirect recovery for reimbursable agreements.
(16) Natural Gas Act (15 U.S.C. 717, et. seq.)This act contains provisions for Right of Eminent Domain for Construction of Pipelines, etc. While there may be no such right over Federal properties, Federal agencies dealing with natural gas pipeline operations should be aware of this provision to forestall any potential right-of-way problems.
(17) Natural Gas Policy Act (15 U.S.C. 7101, et. seq.) FERC's regulations implementing NEPA under this act are found at 18 CFR §380. These regulations cover natural gas and water power projects.
B. Authorities Related to Specific Pipeline Projects.
(1) Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1651-1655). This authorization is the prototype for special legislation concerning pipelines. This act ordered expeditious construction of an oil pipeline from Prudhoe Bay to the port at Valdez, Alaska, and terminated all litigation on the project.
(2) Alaska Natural Gas Transportation Act of 1976 (15 U.S.C. 719 et seq.). This act was designed to expedite construction of a pipeline system to transport natural gas from Prudhoe Bay, Alaska, to the lower 48 States. It gave the President authority to designate a route and provide the broad terms and conditions and environmental standards for construction of a pipeline.
(3) Public Utility Regulatory Policies Act of 1978 (43 U.S.C. 2001 et seq.). Title V of this act is entitled "Crude Oil Transportation System." This is another pipeline-expediting provision designed to speed up the Federal decision-making process as well as the permitting and construction of a pipeline to transport surplus Alaska crude oil to refineries in the Upper Midwest.
3.7 Definitions.
A. Compatible use. A use (e.g., pipeline) that will not interfere with or detract from the purposes for which units of the National Wildlife Refuge System were established.
B. Lead Agency. In this portion of the Service Manual, Lead Agency for pipeline ROWs involving multiple Federal agencies refers to BLM for oil, coal slurry, and other petro-chemical pipeline ROWs, and to FERC for natural gas pipeline ROWs. (Note: this portion of the manual deals solely with Service/BLM coordination for major pipeline ROWs.)
C. Major Pipelines. In this part of the Service Manual, major pipelines are defined as large diameter, long distance pipelines with significant sociological, economic, and/or environmental impacts, that usually will cross more than one field office and/or Regional Office boundary.
D. Memorandum of Understanding (MOU). A written agreement between two or more agencies outlining a specific set of actions and responses or other working agreements between the involved agencies. Exhibit 1 is a copy of the existing MOU between the Service and BLM concerning the harmonious and effective cooperative relationships between the two agencies in resource management activities.
E. National Wildlife Refuge System Easements. An interest in land, less than fee title, that the Secretary of the Interior administers through the Service.
F. Nationwide Permit. A Department of the Army, Corps of Engineers, general permit issued by the Chief of Engineers to regulate with little, if any, delay or paperwork, certain activities having minimal impacts.
G. Notice to Proceed (NTP). Approval to begin construction or other activities by the project authorizing officer. Before authorization is issued, the applicant must agree, among other things, to the specific environmental terms and conditions (stipulations) that are part of the NTP.
H. Other lands. All other lands, or interests therein, and waters administered by the Service that are not included in the National Wildlife Refuge System. These lands may be administrative sites, fish hatcheries, or fish technology centers.
I. Pipeline. In this part, pipeline means a linear pipe facility used for transportation of coal slurry, natural gas, oil, synthetic liquids, or gaseous fuels.
J. Right-of-Way (ROW). A legal right of passage over another agency's property.
K. Right-of-Way (ROW) Grant. As defined at 43 CFR 288, a document authorizing a non-possessory, nonexclusive right to use specified Federal lands for the limited purpose of construction, operation, maintenance, and termination of a pipeline.
L. Temporary Use Permit (TUP). As defined at 43 CFR 288, a revocable, non-possessory privilege to use specified Federal lands in the vicinity of a pipeline ROW in connection with the construction, operation, maintenance, or termination of a pipeline, or for the protection of the natural environment or public safety.
M. Terms and Conditions. Language attached to a pipeline ROW grant, NTP, or a TUP requiring specific actions on the part of the applicant to protect the environment and promote safe and competent construction and operation of the pipeline in question.
3.8 Responsibilities.
A. General Fish and Wildlife Service Responsibilities
The lead Service Regional Office (RO) and involved ES staff bear a heavy responsibility for FWS/BLM coordination activities during all phases of the pipeline ROW grant process. This coordination may cross Federal and State agency boundaries. ES input should be based on the best biological information available. ES requests for interdepartmental coordination, protection, and mitigation of pipeline ROW impacts on fish and wildlife resources will be made pursuant to the Service's Mitigation Policy (see 501 FW 2). Exhibit 2 is a flow chart of BLM's permit planning process showing Service/BLM points of coordination. The Service's Headquarters Office, Regional Offices, field offices, and involved ES staff also undertake NEPA coordination activities concerning applications for pipeline ROW grants. These activities involve providing responses to Environmental Review (ER) and Environmental Coordination (EC) documents that are controlled by the Office of Environmental Policy and Compliance (OEPC). Exhibit 3 is an Application form for Transportation and Utility Systems and Facilities on Federal Lands.
B. Division of Habitat Conservation (DHC). Coordinates reporting requirements for major pipeline ROWs within the Service, and with BLM and other Federal agencies. To assure appropriate and timely coordinated Service involvement with major pipelines, DHC will:
(1) Maintain an interagency communications network to assure the Service's earliest possible involvement in the planning of pipeline ROW grants.
(2) Alert the appropriate Service field offices and Regions to each pipeline ROW application as early as possible. If a pipeline ROW application is designated as a high priority Departmental project, the affected Region will be so advised. DHC will inform the Regional Offices and other parts of the Service Directorate of specific pipeline ROW application issues for which they are responsible. Non-Departmental priority pipeline ROW applications will be elevated in concert with the field for proper level of involvement based on Service priorities and authorities. Some segments of a pipeline ROW application will be of greater concern and require more attention than others. For example, one segment of a requested pipeline ROW may have an endangered species problem, another may affect a wetland, and still another may cross refuge lands.
(3) Provide staff support for pipeline ROW application policy matters to the Director and the Offices of the Assistant Secretary for Fish and Wildlife and Parks and the Secretary. This will assure that the Director is provided with timely and fully coordinated technical briefings as well as Service position and option papers. Representation on pipeline ROW interagency task forces, steering committees, etc., will be provided as needed.
(4) Review proposed Federal pipeline ROW legislation affecting Service responsibilities and make recommendations for the equal consideration of fish and wildlife resources. DHC will keep the Service Directorate informed of potential impacts of new pipeline ROW legislation on Service activities, develop procedures to address Service responsibilities resulting from pipeline ROW legislation, and assure that all levels of the Service are adequately informed of these new mandates.
(5) Assign lead Regional coordination responsibility when a requested pipeline ROW involves more than one Service Region.
(6) Hold responsibility, along with the appropriate Regional Office, for overall accountability for development, critical review, and auditing of pipeline ROW application quarterly cost billings forwarded to the cooperating agencies.
(7) Maintain detailed procedures for pipeline ROW applications. See 506 FW 3.9, Procedures.
C. Regional Office.
(1) The RD will inform Federal, State, and local agencies, as appropriate, that a pipeline ROW has been requested across Service administered lands. The appropriate BLM State Director will be notified of any pipeline ROW grant request to cross Service administered lands. If a requested pipeline ROW is to cross lands owned or managed by two or more Federal agencies, BLM will take the lead for the entire permitting process. In Alaska, the Alaska National Interest Lands Conservation Act specifies that the Federal agency with the longest lineal portion of the requested pipeline right-of-way will be the lead agency. An exception to this act exists when an agreement between involved agencies predetermines lead status (§36.5 (a)(1)), such as the Secretary of the Interior's delegation of program lead responsibility to BLM when the proposed ROW involves public property managed by more than one Federal agency.
(2) When a requested pipeline ROW will involve more than one Service Region, an appropriate RO will be assigned lead responsibility for coordinating field level review and comment by the Service. This pipeline ROW lead responsibility may be assigned to the RO nearest to the involved BLM State or District Office, or to the RO with the most area affected by the proposed pipeline ROW.
(3) Written findings and recommendations of other ROs regarding a pipeline ROW's technical matters must be forwarded to the lead RO for consolidation and presentation to the BLM Office, as appropriate.
(4) When a proposed pipeline ROW will cross Service land, the affected RO will secure a subactivity/project cost-accounting number from the Service Finance Center to provide for application processing reimbursable funding under Service policy (See 264 FW 3).
(5) Each office involved in reimbursable pipeline ROW activities must forward cost-accounting documentation to the Service Finance Center 1 month prior to the beginning of each quarter. Service Finance Center staff will prepare and compile quarterly billing of pipeline ROW program expenses by the field and other programs for submission to the Division of Finance for reimbursement from BLM.
(6) The RO will generally monitor reimbursable pipeline ROW expenditures.
(7) The RO will provide pipeline ROW technical expertise to DHC, as required. This may include detailing knowledgeable field personnel to DHC on short notice.
(8) The RO will keep DHC fully informed of significant pipeline ROW issues and problems (or potential problems) when they arise at the Regional or field level.
D. Field office
(1) The Service field office is responsible for field level review, coordination, and reporting requirements for pipeline ROWs, as assigned by the RO and as contacted by pipeline applicants.
(2) FOs will attempt to ensure the earliest possible coordination of reviews for planning and recommendations for mitigation, pursuant to Service policy for construction of pipeline ROWs. (See 501 FW 2.)
(3) Individual Refuges are responsible for administration of pipeline ROW grants that are requested for lands administered by the Service either in fee title or easement. The Service's Refuges and Wildlife and Fisheries (Hatcheries) programs are responsible for preparing any required NEPA documents.
3.9 Service Procedures on Major Pipeline Projects
A. Service Activity. Service involvement in a pipeline ROW project will normally be triggered by a BLM notice that a pipeline ROW grant has been requested (or a notice from FERC that it has received an application for a natural gas pipeline license). Occasionally, a BLM State Office will make first contact with a Regional or field office. Notification of such contact should immediately be reported to DHC. Granting of pipeline ROWs for such activities will be in accordance with authorities cited in section 28 of the Minerals Leasing Act of 1920.
B. Terms of the MOU. Under the terms of the Service/BLM MOU, the Service will determine its interest in the proposed pipeline ROW and, if of sufficient concern, will develop an ROW project-specific Scope of Work agreement with BLM (Exhibit 1, Chap. 1.4.E.). The agreement will spell out the Service's role in the pipeline ROW application process, the timeframe, and describe reimbursement procedures. The lead RO will designate staff and the amount of staff time to be spent on the ROW application process.
C. Level of Service Involvement. Normally, most of the Service involvement will be at the RO/FO level. The organizational level for Service participation will generally be governed by the organizational level of the lead agency. For example, the lead field office may participate on a pipeline ROW EIS team. Participation in the development of a Secretarial Issue Document will be at the ES level with help from the Region/field. The complexity of intra- and interagency involvement in work on a major pipeline ROW request requires close coordination between the lead RO, other Service offices, and DHC to insure meeting lead agency deadlines with adequate data to support Service positions.
D. Pipeline Project Phases. A major pipeline ROW project is divided into four phases. These are pre-grant; post-grant/pre-primary construction; construction; and operational. Service participation and coordination with BLM in each phase will depend on factors previously discussed. Maximum Service participation for each phase would be:
(1) Pre-Grant Phase.
(a) Development of a pipeline ROW project-specific Scope of Work agreement between BLM and the Service.
(b) Establishment of cost codes for Service reimbursement from the pipeline ROW applicant by the affected RO.
(c) Participation on the BLM lead pipeline ROW EA/EIS team. At this stage, it is essential to ascertain the pipeline ROW impact, if any, on other Service programs, including refuge lands, and develop coordination procedures with BLM. Any required endangered species consultation will usually proceed concurrently with development of the EA/EIS.
(d) Participation in development of the pipeline ROW grant and certain terms and conditions for the grant. Among others, the pipeline ROW grant must contain endangered species and refuge conditions, as appropriate. This ROW grant will also include general environmental plans and mitigation procedures to be required of the applicant for all Federal lands affected by the pipeline ROW. If potential pipeline ROW impacts to fish and wildlife habitat on Federal lands are significant, well-designed mitigation measures can be of major importance during planning, design, and construction of the pipeline ROW.
(e) Fish and wildlife studies on Federal lands may be necessary to develop pipeline mitigation measures when adequate data are lacking. These studies should be initiated as early in the planning process as possible to integrate the results into the pipeline planning and design phases. Some studies may lap over into the post-grant phase for certain critical site-specific concerns, such as anadromous fish streams.
(2) Post-Grant Phase. After issuance of the pipeline ROW grant, the permit recipient will proceed to secure any and all other necessary Federal and State permits, complete planning and design work, and begin development of civil construction and ancillary works, such as establishment of the ROW center-line, access roads, work camps, gravel sites, pumping stations, etc. Other pipeline ROW activities will include:
(a) Review and comment on Temporary Use Permits. See 506 FW 3.7 (L). Involvement in this activity will depend on the amount of Federal lands involved in the pipeline ROW project and degree of impact on fish and wildlife resources. TUPs on Service land will usually be developed by Division of Refuges staff, but should be coordinated with DHC for review and mitigation recommendation activities.
(b) Review and comment on fish and wildlife plans required of the pipeline ROW applicant by stipulations in the pipeline ROW permit. The BLM Authorized Officer has ultimate responsibility for approval of these plans, but will give serious consideration to Service comments, particularly where they affect primary Service responsibilities. These responsibilities include, among others, refuges, endangered species, migratory birds, and anadromous fisheries.
(c) Review of pipeline plans for crossing Federal Aid funded, State-owned lands. Although the States will work directly with the pipeline ROW applicant, the lead Service office must be sure that the Division of Federal Aid is informed of the negotiations.
(d) Assurance that endangered species stipulations established with pipeline ROW applicant and BLM are followed during pre-construction pipeline ROW activities.
(e) If the Service participated in development of an EIS and agreed to the preferred pipeline ROW, it should not request a major realignment in comments on later pipeline ROW permits unless significant new fish and wildlife resource information becomes available. (Note: When involved with a pipeline ROW, the COE will likely use its nationwide permit for section 404 pipeline ROWs. It is important that this and other permits, such as the Coast Guard section 9 and EPA section 402 and 403 permits, be reviewed in the context of previous Service actions and decisions. Section 404 pipeline ROW permit review activities are not reimbursable under section 28 of the Minerals Leasing Act.)
(3) Construction Phase. Service personnel may be involved with certain activities during pipeline ROW construction. During this phase, Service personnel will be under the direction of the BLM Authorized Officer. Service involvement will depend on the fish and wildlife resources affected by the ROW project and may include:
(a) Continued review of Temporary Use Permits.
(b) Assisting the BLM Authorized Officer with the Notice-to-Proceed. involved Federal agency. The issuance of an NTP is a major milestone in a pipeline ROW project. The number of the NTPs to be issued for a pipeline will depend on the length and complexity of the project. Site-specific terms and conditions will be attached to the NTP. If significant fish and wildlife resources are involved, it is important that the Service actively participates in development of the required specific terms and conditions. Internal Service coordination is also essential with all involved Service programs, as well as with State fish and game agencies, and other involved Federal agencies.
(c) Enforcement of Environmental Plans. Depending on agreements with BLM and the involved Service office, Service personnel may be involved with assuring that the pipeline ROW applicant does, in fact, adhere to agreed-upon plans to protect and mitigate impacts on fish and wildlife resources.
(4) Operational Phase.
(a) Occasionally, a significant pipeline ROW project, such as the Trans-Alaska Pipeline System, may involve the Service in monitoring post-construction mitigation activities. These may include, among other things, restoration of habitat on the pipeline ROW. The Service may also review the effectiveness of its input into the pipeline ROW planning and construction process. Studies may be conducted to ascertain actual impacts of pipeline ROW construction compared to forecasts of these impacts.
(b) Oil spills or other accidents from a pipeline in an approved ROW, affecting fish and wildlife resources, may also lead to Service involvement.
E. Right-of-Way Application Procedures for Service lands.
(1) Standard Form 299 (Application for Transportation and Utility Systems and Facilities on Federal lands) will be used for requesting a pipeline ROW for crossing Service lands (see Exhibit 3). The ROW application should be completed in accordance with included specific instructions and should entail the purpose for the pipeline ROW being requested, along with the length, width on each side of the pipeline ROW centerline, and the estimated acreage required.
(2) The RO receiving the pipeline ROW application will estimate the costs expected to be incurred in processing this application and in monitoring the construction, operation, maintenance, and termination of facilities of the pipeline ROW in accordance with 50 CFR 29.21-9 and other reimbursable and cost return authorities outlined in section 3.6 of this chapter. The affected RO will prepare Reimbursable Agreement Form 3-2058 (see 264 FW 3) and forward it to the Service Finance Center.
(3) All pipeline ROW applications filed must include a detailed environmental analysis. The analysis shall include data sufficient so as to enable the Service to prepare an EA and/or EIS in accordance with section 102(2)(C) of NEPA. The Service's Refuges and Wildlife and Fisheries (Hatcheries) programs are responsible for preparing the required NEPA studies and reporting documents.
(4) All pipeline ROW applications must also satisfy appropriate regulations described in this chapter and other regulations, as relevant.
(5) A pipeline ROW grant for Service lands will include requirements to design, construct, and operate all proposed facilities in accordance with the provisions of 49 CFR 192 and/or 195 and the Occupational Safety and Health Act of 1970, Pub. Law 91-596, including any amendments thereto.