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CHAPTER 1530 - INTERDEPARTMENTAL
1531 - DEPARTMENT OF THE INTERIOR
1531.1 - Bureau of Land Management
The following is a Memorandum of Understanding for Major Facility siting between USDA
Forest Service (FS), USDI Bureau of Land Management (BLM), and Montana Department of
Natural Resource and Conversation (DNRC)"
MEMORANDUM OF UNDERSTANDING
FOR
MAJOR FACILITY SITING
BETWEEN
USDA - FOREST SERVICE (FS), USDI - BUREAU OF LAND MANAGEMENT (BLM), AND
MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION (DNRC)
To coordinate activities under the Montana Major Facility Siting Act (MFSA), Montana
Environmental Policy Act (MEPA), and federal land management authorities and
responsibilities, the agencies agree upon the requirements and procedures outlined herein. This
Memorandum of Understanding dated 5-25-88, 1988, supercedes all previous Memorandums of
Understanding for major facility siting and any supplements thereto between the three parties.
SECTION I - INTRODUCTION
This section covers those items common to both Sections II and III of this Memorandum.
A. Purpose and Objectives
1.
Purpose - to provide guidelines and procedures for the three agencies to effectively
work together on planning, programming, responding to applications, and resolving
environmental issues or management concerns related to cooperative siting of
major facilities as set forth under the authorities listed herein for the respective state
and federal agencies (Section C).
2.
Objectives
a.
Define and implement at all appropriate administrative levels procedures to
ensure coordinated MFSA project proposal analysis and planning for the FS,
BLM, and DNRC in the State of Montana.
b.
Ensure agency efforts under this agreement follow appropriate procedures to
communicate and effectively coordinate the following tasks:
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(1) Respond cooperatively to respective agency responsibilities and authorities,
(2) Avoid duplication of effort,
(3) Increase efficiency,
(4) Expedite the decision and analysis
process,
(5) Share skills and knowledge,
(6) Exchange information,
(7) Define and coordinate the public
involvement process,
(8) Reduce costs to all parties, including project proponents.
c.
Facilitate the use of intergovernmental agreements to coordinate agency
responsibilities on a project-by-project basis.
B. Enabling Agreements
1.
Master (Level I) agreements. Standing Level I agreements consist of three
Memorandums of Understanding (MOU) between the Governor of Montana
(Governor) and federal agencies authorizing and encouraging cooperation. These
include:
a.
b.
c.
2.
December 1973 Planning MOU between the Forest Service Regional Forester
and the Governor;
June 1975 MOU between the BLM State Director and the Governor;
September 1981 joing OMOU between the Regional Forester, State Director,
and the Governor (Montana Natural Resource Council).
This MOU is construed to be a level II agreement under the auspices of the above
Level I agreements, and is intended to provide sufficient direction to facilitate
coordination and cooperation at both program planning and project-specific levels.
C. Authorities
Principal agency authorities associated with this Memorandum of Understanding are:
1.
Forest Service
a.
Section 5 of the Act of April 24, 1950 (Granger-Thye Act)
b.
Multiple Use-Sustained Yield Act of 1960
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2.
3.
c.
National Environmental Policy Act of 1969
d.
Intergovernmental Cooperation Act, 1968
e.
Mineral Leasing Act of 1920
f.
National Forest Management Act of 1976
g.
Federal Land Policy and Management Act of 1976
h.
and all acts amendatory thereof or supplemental thereto and Secretary of
Agriculture's regulations.
Bureau of Land Management
a.
Right-of-way regulations, 43 Code of Federal Regulations 2800
b.
Intergovernmental Cooperation Act, 1968
c.
National Environmental Policy Act, 1969
d.
Mineral Leasing Act of 1920
e.
Federal Land Policy and Management Act of 1976
f.
and all acts amendatory thereof or supplemental thereto and all regulations in
effect for these purposes.
Montana Department of Natural Resources and Conservation
a.
Montana Major Facility Siting Act, 1975
b.
Montana Environmental Policy Act, 1971
c.
all acts amendatory thereof or supplemental thereto
d.
and implementing rules.
SECTION II - PLANNING
Future long-range facility planning addresses regional concerns related to project siting.
Agency coordination, energy information management, and joint development of planning
processes are within the scope of long-range planning. This agreement constitutes the
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framework within which federal land and resource management planning related to facility siting
opportunities will be coordinated with state government. It is intended there will be continuing
information exchange between parties to this agreement to maintain current knowledge of and
provide input into planning efforts and project proposals.
For example, the DNRC will share with the UFSFS and BLM the information concerning
future facilities filled in long-range plans required by the MFSA and will provide periodic
updates of the status of these facilities. The federal agencies will share with the involve the
parties at all stages of the development of land and resource management plans relating to the
planning for and location of corridors or future easements or rights-of-way for siting linear
facilities covered by MFSA. This involvement will include notification to the state when
federal power marketing agencies apply for easements across federal lands.
SECTION III - PROJECT MANAGEMENT AND SHORT-RANGE PROGRAM PLANNING
This section is concerned with actual proposals under the jurisdiction of the MFSA and/or
MEPA which affect, or have the potential for affecting, federal lands administered by the Bureau
of Land Management or Forest Service.
A.
Procedures
The cooperative process envisioned by this agreement is one where state and federal
agencies seek to coordinate each agency's decision making responsibility and to streamline
where possible individual agency permit procedures so that required state and federal
approvals occur within a concurrent time frame and facilitate reaching a mutually
agreed-upon decision.
1.
Projects covered by the Major Facility Siting Act:
a.
Conversion and Generation Projects: Where iting a conversion or generation
facility covered by MFSA also requires a federal agency evaluation under NEPA
for granting an easement or right-of-way, a joint evaluation by DNRC and the lead
federal agency, and a joint environmental analysis will be produced. Procedures
for the joint environmental analysis will be as described under Section III(A)(2) of
this agreement. If the granting of an easement or right-of-way across federal lands
involves linear facilities associated with generation and conversion facilities, that
evaluation will follow the procedures outlined for linear facilities (Section
III(A)(1)(b).
b.
Linear Facilities:
For transmission lines, pipelines, or linear associated facilities covered by MFSA,
the state decision with input from federal agencies and the public will follow a
two-step process identifying first a route and subsequently a centerline. Under this
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process, state and federal agencies will develop a project agreement as described in
Section III. Each project agreement will be developed in consideration of the
following process and Section IV - Limitation, Amendments, and Termination.
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Route Phase. Under this agreement, DNRC, BLM, and USFS will work
cooperatively through the environmental analysis process to reach a joint
recommendation on a route within which an easement or right-of-way will be
granted by each affected agency following a centerline evaluation. This
recommendation will include a recommended route width and identification of
areas that must be avoided, or if crossed, would require mitigation measures, as
defined in each agencies respective statutory or administrative law and procedures.
To the extent possible, DNRC and the affected federal land management
agency(ies) will attempt to narrow the route and work towards identification of a
mutually acceptable centerline at the time of route decision. The ability of DNRC,
BLM and FS to make centerline level decisions across federal lands at the route
stage will necessarily depend on the nature of the environment and resources
affected by various routes, including the presence or absence of exclusion areas,
sensitive areas, and areas of concern within the various routes.
The ultimate decision authority enacting the recommendations of the DNRC under
the Major Facility Siting Act rests with the Board of Natural Resources and
Conservation (Board). The Board has the reponsibility to minimize impacts over
the entire area affected by a facility. Thus, the narrowing of a route across federal
lands also will consider how the proposed location across federal lands will affect
centerline decisions by the Board on adjacent state and private lands. The
certificate issued by the Board would specifically identify those areas, including
federal land, where additional centerline level work would be required.
To the extent that route widths on federal lands can be narrowed to 500 feet or less,
and that adequate mitigation can be formulated and applied to identified sensitive
areas or areas of concern, a federal record of decision or decision notice
incorporating the cooperative findings can be issued at the route certification stage
for route segments crossing federal lands. In such cases, subsequent centerline
evaluation will not be performed by DNRC and the final location within the
narrowed route will be developed by the project proponent in consultation with the
land managing agency, which will ensure that mitigation previously agreed upon is
incorporated into the conditions of the federal easement or right-of-way. The
Board will be apprised by DNRC that certification of a narrowed route meeting
these conditions will constitute a de facto centerline decision across federal lands
which must be incorporated into the approved centerline crossing all ownerships
when a centerline is approved. When approved at the route phase as a de facto
centerline, a project's final design, survey, and construction may proceed on federal
lands at the discretion of the land managing agency under the terms of a Record of
Dicision or Decision Notice which incorporates the Board's decision.
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Centerline Phase. After submission of an application for a centerline, notice will
again be given by DNRC to the affected agency(ies). At this time, and where
necessary, a mutually agreeable schedule for review and approval of a centerline
will be established. Where possible, the centerline and necessary mitigation
identified on federal lands will be jointly recommended to the Board. After or
concurrent with Board approval of a centerline, a federal Record of Decision or
Decision Notice could be issued that approves the jointly accepted centerline
location and incorporates necessary mitigation into permits and easements.
2.
Projects under Montana Environmental Policy Act and National Environmental Policy Act.
For projects where DNRC is assigned lead state agency under MEPA, and the BLM or FS
is assigned lead agency under NEPA, a joint project agreement will be signed under the
provisions of this section. Project agreements may be entered into at subordinate
management levels (e.g. forest or district manager) when a lead forest or district is named.
This Agreement will establish roles and responsibilities of state and federal agencies in the
preparation of a joint environmental analysis. The analysis would evaluate the proposed
project and its alternatives so that the requirements of both state and federal agencies could
be met. Following the joint analysis process, state agencies would consider
recommendations contained in the document when granting various permits and
easements. Similarly, the federal agencies would consider incorporating these
recommendations into the federal Record of Decision.
Additionally, the following procedures will apply to all projects:
3.
4.
Notification.
a.
Within 10 working days after receiving and accepting a proposal under MFSA or
requiring agency compliance with MEPA, the DNRC will consult with the BLM
and the FS to determine whether or not they will be affected by the proposal. The
persons to be contacted are the agency representatives to the Corridor Oversight
Review Committee.
b.
If the GLM or the FS are affected by the proposal, the DNRC will forward a copy
of the proposal to each agency involved unless copies have already been provided
by the project proponent.
c.
In the event other federal or state agencies have responsibilities under or are
affected by a proposal, the agencies will invite them to participate in the review and
analysis of the project.
Project Agreement
a.
The agencies involved in the project will establish communication to develop a
project agreement, if deemed necessary, and develop a coordination schedule.
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b.
The DNRC, BLM and FS will each designate a lead agent within the project
agreement to coordinate all agency activities related to the proposal.
c.
Responsibilities of each agency will be identified and project roles defined at the
initial coordination meeting. When appropriate and necessary, a joint project plan
or coordination agreement will be prepared to describe the:
(1)Lead agency or agencies with responsibility to initiate action and coordinate the
cooperative efforts of all parties involved in the study;
(2)Study area;
(3)Study objectives, methodology, and significant steps to be used in the inventory,
analysis, and evaluation processes and public involvement program. Also,
standards, guidelines, and procedures to be used in the study process in order
to achieve a consistent quality product will be specified. Joint or separate
responsibilities of each agency or agencies will be assigned for each step or
part of the process. The time schedule for completing the study will be
consistent with the requirements of the Montana Major Facility Siting Act,
Montana Environmental Policy Act, National Environmental Policy Act, and
individual agency priorities, timeframes, staff, and budget limitations;
(4)Financial arrangements will be documented on individual collection agreements
or procurement arrangements.
(5)Skill and equipment sharing, including contributions of each agency and the
project proponent;
(6)Joint monitoring plan that will be developed as part of project approval by
federal and state agencies. This plan will describe each agencies' role and
responsibility in meeting the conditions for project approval.
B. Authorization
After the study process within Section III-A has been completed, each agency subject to its
laws and regulations is responsible for reaching decisions on the project authorization,
construction supervision, and project administration. If the three agencies substantially
concur in approving a proposed project, it is the intent of this agreement that a mutually
acceptable location be selected. Such agreement would include, but not be limited to,
items such as:
1.
2.
3.
4.
5.
Establishing energy need by the Department of Natural Resources and
Conservation:
Establishing that all appropriate alternatives are less acceptable than the proposed
one;
Ensuring that the location selected is consistent with Montana corridor planning
goals and objectives and BLM and FS land and resource management plans:
Keeping environmental impacts of the proposed facility at a mutually acceptable
level;
Establishing that the proposed project may be permitted to cross federal or state
lands; and
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6.
Making joint recommendations for routes and centerlines as provided in Section III
of this agreement.
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SECTION IV - LIMITATIONS, AMENDMENTS, AND TERMINATION
A.
Limitations
1.
The cooperating agencies function under separate laws and regulations and the
private, state, National Resource, and National Forest System lands involved are
often managed to meet different combinations of resource and environmental
objectives. It is, therefore, understood that while agreeing on a mutually
acceptable inventory, analysis, and evaluation process, and on each of the interim
decisions that lead to final decisions, it does not necessarily follow that the
agencies will be in unanimous agreement on individual agency decisions.
In the event of differing conclusions, each agency will prepare separate reports on
its decision under the Montana Major Facility Siting Act, Montana Environmental
Policy Act, or National Environmental Policy Act as the case may be. In such a
case, appropriate data may be used by all agencies.
B.
2.
No member of, or delegate to, Congress or Resident Commissioner shall be
admitted to any share or part of this agreement, or to any benefit that may arise
therefrom; but this provision shall not be construed to extend to this agreement if
made with a corporation or federal power marketing agency for its general benefits.
3.
Nothing herein shall be construed as binding the United States or the State of
Montana for payment of money in excess of appropriations authorized by law
beyond the current fiscal year or until appropriations are available and a finance
plan for subsequent years has been approved by the appropriate federal or state
agency.
4.
Nothing herein should be construed as binding the Bureau of Land Management,
Forest Service, and the Department of Natural Resources and Conservation to
procedures or decisions not authorized by law, regulation, or policy.
Termination and Amendments
1.
This Memorandum of Understanding shall become effective on 3-15-88, 1988, and
shall remain in effect for a period of five (5) years unless extended by the parties.
Before the expiration of the five (5)-year period, the parties agree to review this
Memorandum of Understanding to determine whether it should be renewed,
modified, or terminated.
2.
This Memorandum of Understanding may be terminated at any time by the
Regional Forester, State Director, or Director, provided the other parties are given
at least 30 days written notice.
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3.
Amendments can be made at any time through mutual consent of all three agencies.
Any amendments must be in writing and attached as supplement to this
Memorandum of Understanding.
Approval:
/s/ John W. Mummua
Region 1 Regional Forester
Forest Service
U.S. Department of Agriculture
/s/ Mau---- Le Noue
Montana State Director
Bureau of Land Management
U.S. Department of Interior
/s/ Larry Fasbender
Director
Montana Department of Natural Resources
and Conservation
State of Montana
Mar 11 1988
Date
Mar 23 1988
Date
3-25-88
Date