EXECUTIVE SUMMARY

Broadband, also known as high-speed Internet access, has the potential to bring new services and products to American consumers and businesses, fostering innovation, investment, and job-producing economic growth. The President has recognized the economic vitality that can result from broadband deployment and has called on our Nation to be aggressive about the expansion of broadband. On March 26, 2004, the President called for a national goal of universal, affordable access to broadband by 2007. A key to widespread broadband deployment is ensuring that broadband providers have timely and cost-effective access to rights-of-way -- the legal right to pass through property controlled by another -- so that they can build out their networks across the Nation. In the broadband context, rights-of-way include access to the conduits, corridors, trenches, tower sites, undersea routes and other locations that broadband networks occupy. These passageways often cross large areas of land owned or controlled by the Federal Government. Thus, effective and efficient federal rights-of-way policies and practices are critical for promoting broadband deployment.

To ensure that the Federal Government’s rights-of-way policies and practices facilitate the aggressive deployment of broadband networks, the Bush Administration created a Federal Rights-of-Way Working Group composed of representatives from most of the major federal agencies with land management responsibilities. The mission of the Working Group is to identify and recommend changes in federal policies, regulations, and practices that would improve the process of granting rights-of-way for broadband communications networks on lands under federal jurisdiction. The Working Group is seeking reforms that would not only facilitate broadband deployment, but also improve access to rights-of-way for other interested stakeholders, such as members of industries outside the telecommunications sector. At the same time these reforms are designed to assist federal agencies in efficiently and effectively performing their vital role as the stewards of public lands, while working cooperatively with their counterparts in state, local, and tribal governments.

Based on information gathered from the communications industry, the federal agencies, state, local and tribal representatives, and other stakeholders, the Working Group has produced the following report, which sets forth recommendations in the four main areas below. Nothing in this report, however, relieves rights-of-way applicants of their obligation to comply fully with all applicable laws and regulations. The Working Group recognizes that some agencies have already implemented some of these recommendations and we commend them for doing so. To make lasting, nationwide improvements in federal land management, however, we urge all of the agencies to devote the time and resources to fully implement each of these recommendations.

(1) Information Access and Collection

· Within three months of the release of this report, the Administration should set up a central Web portal to be administered by the National Telecommunications and Information Administration (NTIA) with information about the federal rights-of-way permit process and links to all of the federal land management agencies.

· Within six months of the release of this report, all federal land management agencies should update their Web sites to ensure that the information is centrally located on a prominently displayed rights-of-way home page with agency contact information.

· By August 2004, all federal land management agencies should institute pre-application meetings with potential rights-of-way applicants. These meetings, which will occur before an applicant files its application, are designed to promote an early exchange of information between applicant and agency, resulting in better-prepared applications and more timely processing.

· By December 2004, all federal land management agencies should use a common application form (the existing Standard Form 299) as a way to streamline and standardize applications to save time and reduce costs.

(2) Timely Process

· To prevent undue delay that can increase the costs of deployment and cause deferral or even abandonment of a project, the Working Group recommends that all federal land management agencies institute, by December 2004, specific target time frames for completion of various steps involved in the rights-of-way permit process. For example, in instances where a pre-application meeting has been held, agencies should review an application and notify the applicant within 30 days as to whether the application is “complete” and accepted for formal review.

· Federal agencies should designate a lead agency for projects involving more than one federal agency, and by December 2004, adopt internal procedures to ensure that such designations occur.

· Federal agencies should use project managers, who are responsible for overseeing all aspects of an application’s review within an agency, to help ensure timely processing of rights-of-way grants.

· Federal agencies should encourage the telecommunications sector, state, local and tribal officials, and other stakeholders to participate in planning and coordination efforts for utility corridors and communications sites. In many cases, though not all, an applicant can save considerable time and expense by using a designated corridor or site rather than breaking new ground.

(3) Fees and Other Charges

· The Working Group recommends a set of principles, as well as specific techniques, for standardizing and simplifying cost recovery, fees, and rental payments. It further suggests that federal agencies initiate rulemaking proceedings, as necessary and appropriate, to develop and implement cost recovery regulations that incorporate these recommendations by December 2004.

· For larger inter-agency projects where a lead agency has been designated, the affected federal agencies should agree on consolidating cost recovery and rental fee duties and placing them with the lead agency.

· The Working Group recommends greater use of rental fee schedules, rather than appraisals, which should result in more efficient use of resources, a quick turnaround, and greater transparency of the process.

· All relevant federal land management agencies that are not currently using fee schedules should commence rulemakings, as necessary and appropriate, for the purpose of greater use of fee schedules in determining rights-of-way rental payments. These agencies should initiate these rulemakings by December 2004.

(4) Compliance

· Federal agencies involved in granting and monitoring rights-of-way should make formal training available to their staff, and by December 2004 should establish procedures to publicize the availability of such training.

· Federal agencies should by December 2004 begin informing grantees of the option of hiring reputable third-party contractors, who, in conjunction with agency compliance monitors, ensure that grantees properly perform planning and environmental studies, and initial phase construction work to the agency’s satisfaction.

· Federal agencies should require grantees to submit periodic compliance reports, which will facilitate necessary inspections and reduce the need for some physical monitoring. Agencies that determine a rulemaking is necessary before requiring compliance reporting should initiate such a proceeding by December 2004.

· By December 2004, any relevant federal land management agency that does not recover its monitoring costs should commence a rulemaking, as necessary and appropriate, to implement its authority to recover such costs.

· The Working Group recommends that, where appropriate, agencies use their authority to impose reasonable, but adequate, bonding requirements to secure fulfillment of a grantee’s compliance obligations, and initiate any rulemaking necessary to implement such a requirement by December 2004.

To ensure that the Bush Administration is responsive to the needs of all stakeholders, a year after the release of this report, each of the federal agencies will submit a report to the Office of Management and Budget (OMB) describing their efforts to implement the recommendations in this report and listing any steps that still need to be taken. The improved federal land management processes that ensue from these recommendations, together with the agencies’ commitment to implementation, will help the Administration take a significant step forward in meeting its goal of greater broadband deployment throughout the Nation.

Introduction

This report addresses the interaction between broadband deployment and rights-of-way management -- two seemingly unrelated issues that, when taken together, play an important role in the success of this Nation’s technological and economic development. Broadband, also known as high-speed Internet access, promises great advances in commerce, education, healthcare, national security, public safety and many other areas. Access to rights-of-way -- the conduits, corridors, trenches, tower sites, undersea routes, and other physical locations that modern communications networks occupy -- is a critical ingredient for the deployment of broadband networks and services. To ensure that broadband providers are able to obtain rights-of-way in a timely and cost-effective manner, the Bush Administration formed a Federal Rights-of-Way Working Group to assess the management of rights-of-way over lands under federal jurisdiction. The following report contains the Working Group’s findings and recommendations for how the Federal Government can reform its approach to rights-of-way management to help bring the promise of broadband to all Americans, while ensuring that federal land managers fulfill their important roles as stewards of our Nation’s public property.

Broadband communications networks enable the transmission of vast amounts of information over great distances in a short period of time. In addition to browsing the World Wide Web at high speeds, broadband opens new opportunities for telemedicine, access to libraries and research facilities, the provision of entertainment services, and countless other services that can boost our economy, improve our productivity, and enhance our lives. High-speed lines connecting homes and businesses to the Internet increased by 18% during the first half of 2003, from 19.9 million to 23.5 million lines.[1] Nevertheless, broadband technologies are unavailable to some Americans. Accordingly, the President announced on March 26, 2004 a national goal of universal, affordable access to broadband technology by 2007.[2]

In addition to his most recent comments, President Bush has emphasized, “[i]n order to make sure the economy grows, we must bring the promise of broadband technology to millions of Americans.”[3] The President noted that “[t]he private sector will deploy broadband. But government at all levels should remove hurdles that slow the pace of deployment.”[4] The President's Council of Advisors on Science and Technology[5] (PCAST) examined broadband, holding hearings and issuing a report setting forth steps that could be taken to facilitate deployment.[6] Among other suggestions, PCAST highlighted rights-of-way management as a critical component of broadband deployment. PCAST noted that:

If [rights-of-way] access is unfairly denied, delayed, or burdened with unjustified costs, broadband deployment is slowed, and our citizens are deprived of access to vital communications facilities. . . . It should be a priority of this Administration to ensure that [rights-of-way] issues are dealt with in a balanced manner that facilitates prompt [rights-of-way] access for broadband networks while preserving legitimate government interests to protect public health, safety and welfare, and ensuring that government entities are fairly compensated for the costs of managing their rights-of-way and that disruption of rights-of-way is minimal.[7]

To ensure that broadband providers are able to obtain rights-of-way in a timely and cost-effective manner, the Administration formed a Federal Rights-of-Way Working Group in July 2002 to examine land management practices across the Federal Government. Led by the National Telecommunications and Information Administration at the Department of Commerce, the Working Group includes representatives from most of the federal agencies with major rights-of-way management responsibilities.[8] The primary participants in the Working Group are from the following federal agencies:

Department of Agriculture

· Forest Service.[9] The Forest Service manages public lands in national forests and grasslands, totaling approximately 192 million acres.

Department of Commerce

· National Oceanographic and Atmospheric Administration (NOAA).[10] NOAA promotes sustainable economic development, jobs and prosperity along the Nation's coastal areas. NOAA manages a network of 13 national marine sanctuaries.

· National Telecommunications and Information Administration (NTIA).[11] NTIA serves as the President’s principal advisor on domestic and international telecommunications and information technology policies and manages the Federal Government’s use of the radio spectrum.

Department of Defense

· Army Corps of Engineers.[12] The Army Corps of Engineers provides engineering services to the Nation, including planning, designing, building, and operating water resources and other civil works projects, such as navigation, flood control, environmental protection, and disaster response.

· Department of the Navy.[13] The Navy holds property for use in support of its military mission.

Department of the Interior[14]

· Bureau of Land Management (BLM).[15] BLM administers 261 million acres of our Nation’s public lands, located primarily in 12 western states. BLM administers approximately 85,000 rights-of-way on the public lands, including about 23,000 oil and gas pipeline and 12,000 electric transmission system rights-of-way. BLM processes over 5,500 rights-of-way actions annually.

· National Park Service.[16] The National Park Service is responsible for protecting the Nation’s national parks and monuments, and conserving the scenery, natural and historic objects, and wildlife therein. The National Park System of the United States comprises 388 areas covering more than 83 million acres in 49 States, the District of Columbia, American Samoa, Guam, Puerto Rico, Saipan, and the Virgin Islands.

· Bureau of Indian Affairs (BIA).[17] BIA is the lead federal agency responsible for improving the lives and protecting the trust assets of American Indians, Indian tribes, and Alaska natives through services and relationships. BIA grants rights-of-way over American Indian-owned lands with the consent of the Indian owner (tribal or individual).

Department of Transportation

· Federal Highway Administration (FHWA).[18] The Federal Highway Administration, through its Federal Lands Highway Program, provides access to and within national forests, national parks, Indian reservations, and other public lands by preparing plans, letting contracts, supervising construction facilities, and conducting bridge inspections and surveys. FHWA also provides funds for transportation projects owned and controlled by state departments of transportation, and is charged with oversight of how the monies are spent and how the resulting roadways are maintained and operated. Increasingly, these operational needs involve more use of fiber optics for intelligent transportation systems and other capacity-improving activities.

Independent Agencies

· General Services Administration (GSA).[19] GSA obtains the buildings, products, technology, and other essentials that federal agencies need. GSA provides services to over one million federal workers located in 8,300 government-owned and government-leased buildings nationwide.

The Working Group brought together most of the major federal land management agencies to conduct a comprehensive review of federal rights-of-way policies and practices. The Working Group focused on streamlining and simplifying rights-of-way management processes, where possible and appropriate, to meet the needs of communications providers, as well as stakeholders from other industries seeking rights-of-way access. At the same time, the Working Group recognized the vital role that the federal agencies play as stewards of public property, and the Working Group attempted to improve the federal agencies’ abilities to carry out their missions in an efficient manner. The overarching goal of this endeavor is to ensure that federal rights-of-way policies and practices serve to promote broadband deployment for the benefit of all Americans.

This report reflects many hours of discussion and consensus building by members of the Working Group. While some of these discussions led to new approaches to rights-of-way management, we also substantially built upon the significant efforts and collaboration that BLM and the Forest Service have already undertaken to build consistency within their rights-of-way programs and to implement management practices that work well, result in a better use of agency resources, and are supported by industry. Part I of this report describes the scope of the Working Group’s mission and activities. Part II briefly discusses the major federal statutes that govern rights-of-way management. Part III delineates the issues that the Working Group addressed and provides the Working Group’s recommendations, together with suggested implementation strategies.

Part I: Scope of the Working Group’s Mission and Activities

A. Mission

The mission of the Working Group is to identify and recommend changes in federal laws, regulations, policies, and practices that would improve the process for obtaining rights-of-way for the deployment of broadband networks on federally-owned or federally-controlled real property. In fulfilling this mission, the Working Group attempted to strike an appropriate balance between two sometimes competing interests: (1) the telecommunications industry’s desire to build out broadband networks in a timely and cost-effective manner; and (2) the federal land managers’ responsibility to ensure appropriate use of public land. In balancing these interests, the Working Group sought reforms that would provide industry with a more customer service oriented experience while concurrently allowing federal land managers to operate more effectively and efficiently. In general, these reforms are aimed at streamlining, standardizing, and simplifying rights-of-way management across all of the relevant federal agencies. When implemented by the agencies, the Working Group expects the reforms to reduce burdens on industry, shorten construction time on projects, allow agencies to use their resources more efficiently, and facilitate the delivery of more broadband services to American consumers and businesses.

Although the Working Group focused on reforms aimed at promoting broadband deployment, the Working Group expects that our recommendations will improve rights-of-way management for the telecommunications industry as a whole, as well as other industries that require access to rights-of-way on federal lands, such as the energy industry. Indeed, the majority of the Working Group’s recommendations are designed to improve rights-of-way policies, procedures, and practices that should benefit all rights-of-way stakeholders.

B. Activities

As part of its research and policy development, the Working Group conducted a series of outreach meetings and informal discussions with stakeholders. [20] Specifically, the Working Group met with the following stakeholders:

Industry representatives, including incumbent local exchange carriers, competitive local exchange carriers, telephone cooperatives, wireless providers, satellite companies, cable companies, trade associations, the TelROW Coalition, and the International Rights of Way Association;

State, local, and tribal officials and associations, including the National Association of Regulatory Utility Commissioners (NARUC), National Association of Telecommunications Officers and Advisors (NATOA), National League of Cities, National Association of Counties, U.S. Conference of Mayors, Local and State Government Advisory Committee, American Association of State Highway and Transportation Officials (AASHTO), American Public Works Association (APWA), Coastal States Organization, representatives of state public utility commissions, and representatives of the Navajo Nation; and

Environmental protection, historic preservation, and other stakeholder groups.

Based on information gathered from all of these stakeholders, as well as our own research, the Working Group focused its efforts in four basic areas:

(1) Information Access and Collection: Broadband providers operating across multiple jurisdictions are often required to supply the same information in different applications to numerous permitting authorities. The Working Group looked for ways to streamline and standardize applications to save time and reduce costs.

(2) Timely Process: Broadband providers have an important need to obtain rights-of-way permits on a timely basis. Otherwise, undue delay can increase the costs of deployment and can sometimes prevent deployment altogether. The Working Group examined practices that could ensure timely and appropriate action on rights-of-way applications.

(3) Fees: The nature and amount of fees charged to broadband providers vary widely across different agencies. The Working Group scrutinized various fee structures, looking for approaches that are appropriate and reasonable, and that do not unfairly impede the deployment of broadband networks.

(4) Compliance: Rights-of-way managers have a legitimate interest in ensuring that broadband providers take appropriate action to plan, permit, construct, operate, and maintain the rights-of-way. The Working Group looked for examples of remediation and maintenance requirements that accomplish those important objectives without placing undue burdens on broadband providers.

The Working Group divided itself into the following three committees to tackle the issues: the information collection and timely process committee, the fees committee, and the compliance committee. Each committee closely examined current federal rights-of-way practices and policies, and looked for ways to improve those practices and policies. The Working Group placed great emphasis on reaching consensus wherever possible on our recommendations, which are set forth in Part III below.

The Working Group recognized that some stakeholders suggested additional rights-of-way issues for our consideration, such as compliance with environmental and historic preservation laws, known as the National Environmental Policy Act (NEPA)[21] and the National Historic Preservation Act (NHPA).[22] Although these issues are important, they are beyond the scope of this report, and the Working Group addresses them only to the extent that they relate to the four general issue areas described above. The Working Group also observes that other expert stakeholders are actively engaged in addressing NEPA and NHPA issues. For example, the White House Council on Environmental Quality (CEQ) has established a special NEPA Task Force. Created on May 20, 2002, the NEPA Task Force reviewed the current NEPA implementation practices and procedures in a variety of areas and made recommendations to the CEQ for improving the NEPA process based upon the information collected and the public comments received.[23] The recommendations are posted on the NEPA Task Force’s Web site.[24] The Task Force intends to publish a separate report presenting best practices based on the case studies it evaluated.[25]

Part II: Laws Governing Rights-of-Way on Federal Lands

A variety of laws govern rights-of-way on federal lands. Several laws specifically authorize Federal Government agencies to approve private parties’ access to federal lands for a wide range of purposes. Other laws contain environmental protection, historic preservation, and other requirements that impact rights-of-way on federal lands. In order to provide context for the recommendations in Part III of this report, we offer the following overview of the major laws governing rights-of-way on federal lands.

A. Laws Authorizing Rights-of-Way Grants

By virtue of the almost one-half billion acres of public and forest lands that it governs, the Federal Land Policy Management Act of 1976 (FLPMA) is the most significant of the laws authorizing federal agencies to grant easements and other rights-of way.[26] The FLPMA empowers the Secretary of the Interior, for “public lands,”[27] and the Secretary of Agriculture, for National Forest System lands, to grant, issue, or renew rights-of way for a variety of facilities, including “systems for transmission or reception of radio, television, telephone, telegraph, and other electronic signals, and other means of communication.”[28] The Act requires that each right-of-way grant contain terms and conditions that will, among other things, “minimize damage to scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment.”[29] The Secretaries of these agencies may also impose such terms and conditions deemed necessary to “protect Federal property and economic interests.”[30] Other provisions of FLPMA describe the Secretaries’ ability to: promulgate regulations; require advance rental payments; and impose bonding requirements, among other duties.[31]

For federal lands not covered by FLPMA, Congress has also provided executive branch agencies with authority to grant rights-of-way on federal lands within their control. Specifically, Public Law No. 87-852,[32] as recodified in Public Law No. 107-217,[33] gives executive branch agency heads the authority to grant for real property controlled by his or her agency:

an easement that the head of the agency decides will not be adverse to the interests of the Government, subject to reservations, exceptions, limitations, benefits, burdens, terms, or conditions that the head of the agency considers necessary to protect the interests of the Government . . . . [34]

Significantly, the law specifically grants executive branch agency heads the discretion to impose terms, conditions, or even burdens on the easements, if such measures are necessary to project government interests. The statutory subtitle that includes Public Law 87-852, as codified, states that one of its purposes is to provide the Federal Government with an “economical and efficient system for . . . [u]sing available property.”[35] Except as restricted by limitations not relevant here, the statute supplements executive branch agencies’ powers under other laws.[36]

In addition to FLPMA and Public Law No. 87-852, other more specific laws may provide rights-of-way authority to a particular agency. For example, the National Marine Sanctuaries Act[37] allows NOAA to issue special use permits for specific activities in a national marine sanctuary if the Secretary of Commerce determines authorization is necessary to “establish conditions of access to and use of any sanctuary resource.”[38] The Secretary may assess fees for such special permits,[39] as well as suspend or revoke permits, and assess civil penalties for violations of any term or condition of the grant.[40] This Act also requires permit holders to submit to the Secretary annual reports describing the activities conducted under the permit and the revenues derived from such activities.

B. Laws Affecting Rights-of-Way

Although not directly authorizing federal agencies to grant rights-of-way, laws such as the National Environmental Policy Act (NEPA),[41] the National Historic Preservation Act (NHPA),[42] and the Endangered Species Act (ESA)[43] affect whether rights-of-way are granted and may require that specific conditions or limitations be included in the grant of a particular right-of-way. Congress enacted NEPA:

To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.[44]

This law requires federal agencies to study the environmental effects of their actions through an interdisciplinary planning process that integrates environmental and economic issues. In cases where the environmental effects may be significant, the NEPA process informs and seeks input from the public, tribes, states, and local agencies, as well as other federal agencies.

Under NHPA, the Federal Government provides leadership for preservation efforts and fosters conditions to facilitate the harmonious existence in modern society of prehistoric and historic resources. As amended in 1992, Section 110 of the Act outlines a broad range of responsibilities for federal agencies. Among other responsibilities, the provision calls for federal agencies to establish preservation programs commensurate with their mission, and to designate qualified Federal Preservation Officers to coordinate their historic preservation activities.[45]

In 1973, Congress passed the ESA to conserve the ecosystems that sustain endangered and threatened species. Congress considered such fish, wildlife, and plant species to be “of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.”[46] Therefore, Congress established a policy requiring all federal agencies and departments to seek to conserve these species and to support the Act’s purposes. The Interior Department’s Fish and Wildlife Service and the Commerce Department’s National Marine Fisheries Service administer the law. Section 7 of the ESA directs all federal agencies to use their existing authorities to conserve threatened and endangered species and in consultation with the U.S. Fish and Wildlife Service, to ensure that their actions do not jeopardize listed species or destroy or adversely impact critical habitat. Section 7 applies to management of federal lands as well as other federal actions that may affect listed species, such as the issuance of permits, licenses, or other actions authorizing private activities. NEPA, NHPA, ESA and other laws may impose additional responsibilities on right-of-way grantees that may impact their ability to use public lands for the desired commercial purposes. [47]

Part III: Issues and Recommendations

In discussions with stakeholders and federal agency staff, the Working Group discovered that rights-of-way concerns generally fall into the following four main categories: (a) information access and collection, (b) timely process, (c) fees, and (d) compliance. In each of the main categories, the Working Group examined a variety of individual, yet related issues. Below, the Working Group discusses these issues, offers its recommendations, and presents a roadmap for implementation of the recommendations. Nothing in this report, however, relieves rights-of-way applicants of their obligation to comply fully with all applicable laws and regulations.

A. Information Access and Collection

A potential applicant for a rights-of-way permit and the affected agency(ies) confront several issues related to accessing and collecting information. First, the applicant needs access to general information about how to obtain a permit. Second, the applicant must interact with the appropriate agencies so that they are advised early in the application process of potential issues, concerns, and information requirements that may be needed by the agencies to evaluate the applicant’s request for a right-of-way. In this section, the Working Group offers recommendations for improving the accessibility and quality of general information available to applicants for rights-of-way permits. The Working Group also offers recommendations for streamlining and simplifying the process for agencies to collect information from applicants. In both instances, the Working Group’s recommendations are designed to reduce burdens on applicants and to allow agencies to make better use of their limited resources.

1. Information about Obtaining a Right-of-Way over Federal Lands

Issue: To prepare an application for a rights-of-way permit, a potential applicant typically needs information about agency personnel contacts, application forms, fees, and other planning and permitting requirements. While some federal agencies provide excellent, easy-to-find information about their rights-of-way processes,[48] other federal agencies have significant room for improvement. Indeed, the Working Group’s research has shown that few federal agencies have a clearly identifiable rights-of-way section on their Web sites, complete with an application form, delineated steps to follow in the rights-of-way process, and agency contacts. Instead of obtaining a clear roadmap for how to obtain a rights-of-way permit, the potential applicant often gets lost in a maze of confusing regulations and policies, incomplete information, and receives no contact information for asking directions. The resulting uncertainty causes delays, drives up costs, and slows deployment of networks.

Recommendation: The Working Group believes that the Internet provides the most cost effective and most easily accessible means to disseminate information about the rights-of-way permit process to potential applicants. Accordingly, the Working Group offers two recommendations: (1) establish a central federal Web portal for rights-of-way information; and (2) update individual agency Web sites and link them to the central Web portal.

Central Web Portal. The Working Group recommends that the Administration create a central Web portal with information about the rights-of-way permit process for federal lands. The Web portal would contain general information about obtaining a rights-of-way permit over federally-owned or federally-controlled real property. This central Web portal also would list and link to the appropriate, updated Web sites for each federal agency with authority to grant rights-of-way permits on federal lands (see below). The Working Group recommends that NTIA, as the lead agency in the Working Group, host and maintain the central Web portal. To draw attention to the Web portal, the Working Group also recommends that a referral Web page be established in the business gateway section of the FirstGov.gov Web site,[49] which is the official U.S. gateway to all government information.

After the central Web portal is established, the Working Group recommends that NTIA investigate the feasibility of employing more advanced, automated services on the central Web portal. For example, the central Web portal could engage a potential applicant in a series of questions about the type, scope, and location of the project. In turn, the Web portal could employ software that would take this information and give the potential applicant the relevant contact information of the federal agencies likely to have jurisdiction over their application, a copy of a rights-of-way application, and information about environmental protection, historic preservation, endangered and threatened species, and other issues that would need to be addressed as part of the rights-of-way application process. The information entered by the potential applicant could also generate an e-mail alert to each relevant agency, noting that an application request had been made.

Updated Agency Web sites. The Working Group also recommends that individual land management agencies update their Web sites to ensure they meet the following criteria: [50]

· Information is centrally located on a prominently displayed rights-of-way home page with appropriate links to sub-pages.

· All information is up-to-date.

· All information is organized in a logical, user-friendly format.

· Agency contact information (including e-mail addresses) is current and easily accessible on the Web site.

Implementation: In consultation with the Working Group, NTIA should take the lead in creating a central Web portal for information on federal rights-of-way on the existing NTIA Web site. This new portal should be created within three months of the release of this report. NTIA should work with GSA, which maintains the FirstGov.gov Web site, to establish a referral Web page directing federal rights-of-way inquiries to the NTIA Web portal. Other federal agencies with land management responsibilities should also update their Web sites according to the criteria above within six months of the release of this report.

2. Pre-application Meeting

Issue: As part of their responsibility to administer rights-of-way, federal agencies are often required to review and evaluate a variety of factors regarding an applicant’s proposed use of federal land, such as whether: (1) the proposal is consistent with the stated purpose for which the public lands are managed; (2) the proposal is in the public interest; (3) the applicant is technically or financially capable of accomplishing the project; (4) the proposal is consistent with applicable federal, state, local, or tribal laws; and (5) the applicant is able to mitigate any adverse environmental consequences resulting from the proposal. In addition, some federal applications may require coordination with state, local, or tribal governments. Due to the potential complexity of this review, applicants for rights-of-way permits often lack a good understanding of the potential issues that their applications may raise, the impacts to government agency resources that may be needed to evaluate the application, and the information needed by those government agencies in order to effectively evaluate the applications pursuant to the laws, regulations, and policies governing these types of requests. As a result, federal agencies frequently ask applicants to provide additional information before applications are accepted. This situation causes delays and additional costs for applicants and is an inefficient use of scarce agency resources.

Recommendation: To ensure that applicants are fully aware of all of the approval criteria and the process by which their applications will be evaluated and to ensure that all relevant government entities are properly engaged in the review process, the Working Group strongly recommends that a pre-application meeting occur between the applicant and the relevant agencies. Knowing the specific details of a project and engaging in an early and candid discussion with the relevant federal, state, local, and/or tribal officials before the application is filed can facilitate a more efficient processing of the rights-of-way application. Such a meeting will enable the government representatives to identify issues regarding land management consistency and/or constraints; potential or alternative route selection; cost recovery; rental or land use payments; NEPA requirements, including any studies that may be needed to comply with NHPA and ESA; cultural site considerations; work schedules; safety; remediation; and compliance. During the pre-application meeting, agency personnel will examine the proposed right-of-way to determine whether it could fit in an existing rights-of-way utility corridor or communications site (see discussion below). Applicants should be advised to bring a map of the project area to the pre-application meeting.[51] By establishing a dialogue between the applicant and all of the affected government entities, the pre-application meeting has the potential to save time and money for all parties. Adoption of this recommendation should not impose any additional burden on agencies’ resources because existing staff would attend the pre-application meetings.

The Working Group recommends that the federal agencies post clear instructions for a potential applicant on their Web sites, noting that the burden is on the applicant to contact all potentially relevant federal agencies and to request a pre-application meeting. Once a potential applicant has made a request for a pre-application meeting, however, each of the agencies should work cooperatively to facilitate the meeting. A potential applicant should consider inviting the appropriate state, local, and tribal officials, if applicable. Federal agencies should strive to schedule a pre-application meeting within 30 days of receiving a request from a potential applicant for such a meeting.

Implementation: By August 2004, each federal agency with rights-of-way responsibilities should post on their Web sites, and add to any applicable practice manuals, clearly articulated information for a potential rights-of-way applicant on the importance of a pre-application meeting and the steps that a potential applicant should take to set up that pre-application meeting.

3. A Single, Standardized Rights-of-Way Application

Issue: Although most federal agencies require a relatively similar body of information from rights-of-way applicants, their methods for collecting that information vary widely among agencies. Some agencies, such as BLM and the Forest Service, use a common application form; others such as the Navy or NOAA do not, just requiring similar information in whatever manner the applicant wishes to present it so long as it satisfies agency guidelines. As a result, applicants often submit the same information in different formats for different federal agencies, even when the agencies are collaborating on the review of the same project. This situation causes applicants to expend unnecessary time and resources to satisfy duplicative requirements. In contrast, where agencies such as BLM and the Forest Service have used a single common application form, industry stakeholders have noted the benefits from standardizing the information collection.

Recommendation: The Working Group recommends that all agencies with rights-of-way responsibilities for federal lands adopt a single, standardized form for rights-of-way applications. A single, standardized form will reduce filing burdens on applicants and will provide a consistent source of information for affected federal agencies. Specifically, the Working Group recommends that all federal agencies adopt the Standard Form 299 (SF-299) for use beginning no later than December 2004. (See Appendix B for a copy of Standard Form 299, currently in use by BLM and the Forest Service.)

The SF-299 requests information about the type of project proposed by the applicant. This information includes the project’s location; the applicant’s technical and financial capability to construct, operate, maintain and terminate the project; the applicant’s need for the particular right-of-way; and the general environmental impact of the proposed project.

The SF-299 provides much of the basis for obtaining information to determine if the applicant is qualified and the project is viable. Use of the SF-299 is intended to simplify information collection for both the applicant and the federal agencies. There are unique parts of each federal agency’s mission, however, that cannot be captured in a standardized form and that may require particular information from an applicant in order for a federal agency to assess whether to grant a right-of-way. Thus, later in the process, a federal agency may need to request further information specific to the project or an agency’s mission.[52] Accordingly, the filing of an SF-299 does not preclude an agency from requesting additional information from the applicant. However, use of a common application form, coupled with a pre-application meeting, should reduce duplication and delays based on information solicitation.

The process of developing the SF-299 involved more than 20 federal agencies and the general public. The current version, first issued in 1999, resulted from consultation among the Forest Service, Bureau of Land Management, Fish and Wildlife Service, National Park Service, U.S. Department of the Interior Solicitor’s Office, U.S. Department of Agriculture Office of General Counsel, Department of Transportation Office of Surface Transportation, and Department of Transportation Federal Aviation Administration.

The SF-299 is available in an electronic format so an applicant can download the form from the Internet, complete the application, and submit it via U.S. mail. After full implementation of OMB’s e-gov initiative, the Working Group expects that applicants will be permitted to file the SF-299 electronically. The submitted SF-299, together with the appropriate cost recovery fees and a NEPA/NHPA checklist,[53] if applicable, should provide all the basic information necessary for a federal agency to complete its initial screening of the proposed permit (see below). The Working Group recognizes, however, that the complexity of the project under review, determines the extent of any additional information needed to complete the SF-299. Use of the SF-299 can provide applicants with useful guidance about the type of information that federal agencies require in their decision-making and can help to expedite the agency’s initial review process.

Implementation: Each federal land management agency that does not currently use the SF-299 should initiate any agency action necessary, including rulemaking, to adopt the SF-299 as its primary means of collecting information from rights-of-way applicants. The Working Group recommends that such rulemakings commence immediately upon release of this report so that all federal land management agencies could begin using the SF-299 by December 2004. Once an agency formally adopts the SF-299 for use, that agency should post the SF-299 on its Web site. While electronic filing of the SF-299 is not currently available, the federal agencies should work with OMB to enable electronic filing of this document by applicants as soon as possible.

B. Timely Processing

Issue: In order to construct their networks in a cost-effective manner, broadband providers, like other rights-of-way users, need timely decisions from land managers. Lengthy delays can add tremendous costs to a broadband project, cause companies to lose their funding, delay expansion into a particular market or community, and/or result in the deferral or abandonment of a broadband project. In outreach meetings with representatives from all sectors of the telecommunications industry, company representatives voiced many complaints about the length of time that rights-of-way applications take in federal agencies’ land management processes. The Working Group found that delays result from a variety of causes, including limited funds, inadequate staffing, a lack of skills and expertise, meeting environmental planning, approval and permitting requirements, the absence of time frames for processing applications, or no enforcement of such time frames. The reassignment of staff to handle
national emergencies (e.g., wildfires) can also result in lengthy delays. Although some of these issues are beyond the Working Group’s ability to address, we believe that the recommendations below can substantially improve an agency’s ability to process an application in a timely fashion.

1. Time Frames

Issue: A rights-of-way applicant often has little information about when an agency will complete its review of the application and issue a permit, or even complete various steps along the way. The lack of clear time frames often frustrates applicants who are trying to coordinate funding, construction, and other aspect of a project. Uncertainty can derail and even defeat the deployment of broadband networks.

Recommendation: The Working Group recommends that, during or shortly after the pre-application meeting, the affected agencies identify all steps and decisions that need to be made by each agency relative to processing a right-of-way and establish an estimated time frame for the review process. Early designation of a lead agency and project managers would facilitate the development of such a time frame and its timely execution. (See discussion below regarding lead agency and project managers.) The Working Group recommends the use of specific target time frames for various steps of the rights-of-way process. Time frames would help to expedite processing, provide predictability to the applicant, and provide agencies with a way to measure their performance. Some federal agencies already strive to meet the target time frames set out below. For purposes of establishing time frames, a proposal will be accepted as an application when the lead or responsible agency determines that the proposal provides the information necessary to evaluate it pursuant to NEPA, and meet any other applicable environmental requirements as needed by the agency(ies) having jurisdiction to approve the project. The Working Group recommends that all federal land management agencies establish the following time frames for processing rights-of-way permits:

Target Time Frames for Initial Screening and Response for All Projects

For applicants that have participated in a pre-application meeting, agencies should review the initial application (the SF-299) and notify the applicant within 30 calendar days whether the application is “complete” and ready for formal review, or whether the application is incomplete and must be revised or supplemented.

For applicants that have not arranged for and participated in a pre-application meeting, then the agencies should review the application and notify the applicant within 60 days as to whether the application is complete.[54]

Target Time Frame for Final Decisions on Small, Uncomplicated Projects[55]

For small, uncomplicated rights-of-way projects, agencies should strive to grant or deny a proposal within 60 days of receiving a complete application.[56]

Target Time Frame for Final Decisions on Large, Complex Projects

For larger, complex projects, the agency(ies), in consultation with the applicant and other affected parties, should establish a schedule of processing time frames and notify the applicant of that schedule within 60 days after the application is deemed complete.

Implementation: By August 2004, every federal agency with land management responsibilities should implement the target time frames as part of their internal practices for processing rights-of-way applications. To help ensure that agencies meet these targets, agencies should report to their respective Secretaries, or his/her designee, on an annual basis, with the first report due December 31, 2004, regarding the number of permits or easements that were issued within the targets and the number of permits or easements that were issued outside the targets. If applicable, the report should also explain why the target time frames were not met and should contain recommendations for improving timeliness in the future. By incorporating an annual reporting requirement, these target time frames will benefit not only rights-of-way applicants, but also agency personnel by providing an opportunity to demonstrate success and/or the need for additional information or resources.

2. Identification of Lead Federal Agency

Issue: Applicants also voiced the concern that, when projects affect more than one federal agency, coordination between agencies is often unpredictable. Varying local priorities, agency requirements, staffing levels, funding, and land-use planning decisions complicate agency cooperation and coordination. A lack of coordination between federal agencies often results in delays and imposes unnecessary costs on the applicant.

Recommendation: The Working Group recommends that, for rights-of-way projects that involve more than one federal agency, the agencies involved should designate a lead agency immediately following the pre-application meeting described above and before an application is filed. Agencies should use the following factors in the selection of a lead agency: (1) amount of land crossed, the difficulty of crossing certain land, and the impact to the land and resources; (2) the personnel and financial resources available to process expeditiously the rights-of-way application; (3) the expertise of the various agencies; and (4) the agency that manages the federal land over which there is the greatest degree of controversy or concern with respect to the proposed project. The responsibilities of the lead federal agency would include managing communications with all affected government agencies; managing the budget and personnel resources devoted to an application; ensuring that deadlines are met; and coordinating with all the other federal, state, local, and tribal agencies involved in the project with respect to related processes, approvals, and permits. One of the most important responsibilities of the lead agency is to serve as the primary contact for the applicant, who should work directly with the lead agency.

Implementation: The Working Group recommends that by August 2004, federal land management agencies adopt internal operating practices to ensure that a lead agency is designated for multi-agency projects. For most projects, these operating practices need not be extensive and should not require the adoption of any new rules. On particularly complex projects, agencies may wish to set forth the details of the responsibilities of the lead federal agency in a letter, memorandum of understanding, or other document mutually agreed to by all the affected federal agencies.[57]

3. Project Managers

Issue: Stakeholders also have noted that the rights-of-way process within a federal agency is slowed when several people at the agency have responsibility for different parts of the process, but there is no clear leader on the project. Consequently, delays occur because of a lack of coordination and communication. The applicant in such cases often must deal with multiple agency personnel, with resulting inefficiencies for both the applicant and the agency. The lack of clear leadership on a given project within an agency makes inter-agency coordination more difficult as well.

Recommendation: To improve timeliness, the Working Group recommends the use of project managers by federal agencies. The responsibilities of the project manager would include managing the budget and personnel resources devoted to processing an application and facilitating the permit’s issuance; ensuring that target time frames are met; coordinating with all other federal, state, local, and tribal agencies involved in the project; and serving as the primary point of contact for industry, contractors, and other government entities. Project managers can provide skills and expertise with respect to regulations, requirements, and contacts that are usually not retained at every field office. Project managers are also extremely useful for agencies that are involved in multi-agency projects, as they can improve and simplify inter-agency coordination. As with lead agencies, applicants should avail themselves of the benefits of the single contact point that project managers provide. BLM has successfully utilized national project managers who coordinate large/complex project proposals, and other agencies may benefit from consulting with BLM about its experience.

Implementation: All federal agencies with land management responsibilities should (1) implement the use of the project manager approach for large, complex projects; and (2) designate project manager responsibilities, where appropriate, in employees’ work plans. Federal agencies should provide training for personnel, if necessary, to carry out the duties of a project manager.

4. Utility Corridor Planning

Issue: In constructing their networks, broadband providers are often confronted with the challenge of finding suitable, cost-effective routes for laying fiber optic cables, or other linear communications media, while minimizing any potential environmental or historic preservation impacts that may slow an agency’s review process. Energy companies have faced similar issues in laying pipelines, and many of those companies have embraced the use of utility corridors as the most optimal solution.[58]

Recommendation: As a way to help streamline the rights-of-way process for broadband companies, the Working Group recommends that companies take advantage of previously designated rights-of-way utility corridors when possible. Congress addressed the issue of rights-of-way utility corridors in Section 503 of the FLPMA. Section 503 states that the Secretary of the Interior shall designate corridors to minimize adverse environmental impacts and the proliferation of separate rights-of-way.[59] In addition, the National Energy Policy and Executive Order 13213 requires BLM to emphasize rights-of-way planning and corridor designations.[60] Since 1979, the Western Utility Group[61] and others have worked in cooperation with BLM and the Forest Service to identify and designate corridors in their land management plans.[62]

In recognition of the benefits of utility corridor designation, the Working Group recommends that the federal land management agencies encourage the telecommunications sector, agencies with environmental and regulatory responsibilities, state transportation department officials, and state historic preservation officials to participate in the land and resource planning processes and proceedings that federal agencies use to designate utility corridors. The Working Group suggests that federal agencies reach out to telecommunications entities in their utility corridor designation process. Utility corridors provide a way for various stakeholders to work together to identify rights-of-way across federal lands that may be used by more than one company. In many instances, using a designated utility corridor can significantly expedite the processing of rights-of-way for new telecommunication transmission facilities by eliminating the need to do extensive environmental and other impact studies required for new sites, and thereby result in time and financial savings for the applicant. The Working Group recognizes that utility corridors may not always present the most efficient or cost-effective route for rights-of-way applicants and these applicants should retain the flexibility to apply for other routes. Nonetheless, the Working Group encourages applicants to use utility corridors wherever practicable.

Implementation: The federal agencies should promote the use of designated utility corridors to all potential applicants by means of public awareness through postings on their Web sites,[63] as well as information provided to applicants at the pre-application meeting. Postings on agency Web sites could include a fact sheet that includes maps and descriptions about the location of existing and planned utility corridors and provide information about how interested telecommunications companies and other stakeholders can get involved in these federal land management planning processes. While BLM and the Forest Service already actively participate in the Western Utility Group’s current Western Regional Corridor Study, other Federal land management agencies should also become more active participants.

5. Communications Site Plans

Issue: In addi

Report by the Federal Rights-of-Way Working Group

The Federal Rights-of-Way Working Group

Bureau of Land Management

The Federal Rights-of-Way Working Group Members