Solar Land Use Planning (1)
In addition, some state and local land may be governed by state LUPs. A developer should check to see if a LUP is applicable to the project site, and if so, whether the LUP allows for utility-scale solar development. If the LUP does not allow for utility-scale solar development, the developer should initiate the state or local land use plan amendment process.
Bureau of Land Management
The Bureau of Land Management (BLM) administers roughly 258 million acres of public lands and 700 million acres of mineral estates in the United States. BLM’s land use planning authority is found in the Federal Land Policy and Management Act of 1976 (FLPMA) and many other public laws. FLPMA requires the BLM to develop and maintain LUPs called Resource Management Plans (RMPs) that cover individual planning units.
The BLM’s RMPs form the basis of every action and approved use on BLM managed public lands. The BLM prepares RMPs for areas of public lands, called planning areas, which tend to have similar resource characteristics. Planning emphasizes a collaborative environment in which local, state, and tribal governments, the public, user groups, and industries work with the BLM to identify appropriate multiple uses of the public lands. Plans are periodically revised as changing conditions and resource demands require.
United States Forest ServiceAbout 192 million acres of lands are managed by the United States Forest Service (USFS) in accordance with the requirements of the National Forest Management Act of 1976. The LUPs, called Land Management Plans (LMPs), are prepared and implemented for each National Forest. The USFS LMPs identify areas administratively open for leasing and whether those areas should be leased.
Land Use Planning Process
1.1 to 1.2 – For a Given Location, Is Solar Development Consistent with the Land Use Plan? No Action Needed, Continue With Project
Developers should check to see if utility-scale solar development is consistent with the current LUP for the proposed site before applying for a right-of-way, lease or special use permit. If utility-scale solar development is not consistent with the LUP, an amendment or revision will be necessary before a permit can be issued. If utility-scale development is consistent with the LUP, no amendment will be required and the developer should continue with the project.
1.3 to 1.4 - Is the Project on State Land? Initiate State Land Use Planning
Some state land may be governed by state LUPs. A developer should check to see if a LUP is applicable to the project site, and if so, whether the LUP allows for utility-scale solar development. If the LUP does not allow for utility-scale solar development, the developer should initiate the state land use plan amendment process.
1.5 to 1.6 - Is the Project on Federal Land? Is the Project on BLM or USFS Land?
The Forest and Rangeland Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976 (NFMA) requires the USFS to plan, develop, amend and revise LMPs for National Forest System units. The BLM is required to develop, maintain, and revise land use RMPs by sections 201 and 202 of the Federal Land Policy and Management Act of 1976 (FLPMA). In both cases, the proposed use must be consistent with the LUP, or the RMP respectively, or the right-of-way application will be denied. See 36 CFR 219.15(d) ; 43 CFR 1610.5-3.
1.7 - Is This a USFS Plan Revision or a Plan Amendment?
Changes to a forest plan require either a revision or an amendment. A revision creates a new plan for an entire plan area while an amendment adds, modifies or removes one or more plan components. Both revisions and amendments will require some type of National Environmental Policy Act (NEPA) analysis. The USFS regulations regarding plan revisions can be found at 36 CFR 219.7. The revision process includes public participation, an assessment (as defined by 36 CFR 219.6), development of a revised plan and promulgation of a new plan. In addition, plan revisions always require an Environmental Impact Statement (EIS). Regulations regarding plan amendments can be found at 36 CFR 219.13. Plan amendments may be made at any time and must be based on a preliminary identification of the need to change the plan. The preliminary identification may be based on new information, changed conditions or changed circumstances. In addition, the USFS is required to provide an opportunity for public participation and to conduct a NEPA analysis. Unlike a plan revision, a plan amendment need not include an EIS. Environmental Assessments (EAs) and Categorical Exclusions (CEs) may suffice, depending on the nature of the amendment. Although both processes are included in this roadmap, as a general rule, utility-scale solar development will only require a plan amendment.
1.8 – Initiate USFS Land Use Plan Amendment Process
1.9 – Initiate USFS Land Use Planning Process
1.10 to 1.11 – Is the Project Within a SEZ, Variance Areas, or Exclusion Area? The Land Use Plan Has Already Been Amended; Continue with Project
The BLM created a comprehensive Solar Energy Program that is designed to administer the development of utility-scale solar projects in six southwestern states: Arizona, California, Colorado, Nevada, New Mexico and Utah. The program was implemented by the Solar Programmatic Environmental Impact Statement (SPEIS) and the details of the program are contained in the SPEIS Record of Decision (ROD), issued on October 10, 2012. The SPEIS divides BLM lands within the affected area into Solar Energy Zones (SEZs), variance areas and exclusion areas. A SEZ is an area identified by the BLM as well-suited for utility-scale development and consequently given prioritization for rights-of-way applications. Variance areas are areas that have not been identified as well-suited for utility-scale development, but are nonetheless open to development under certain circumstances. The BLM will evaluate applications for utility-scale development within variance areas on a case by case basis. Utility-scale development in exclusion areas is not permitted. RMPs within SEZs, variance areas or exclusion areas have already been amended by the SPEIS to allow or exclude utility-scale solar development. No amendment or revision to the RMP will be required for rights-of-way authorizations within these areas. However, the SPEIS only amended RMPs within the six affected southwestern states. Siting a utility-scale solar facility outside of the SPEIS affected areas may still require an amendment or revision of an RMP.
1.12 – Is This a Plan Revision or a Plan Amendment?
RMPs are changed by either a plan amendment or a plan revision. The revision and development processes are the same, while the amendment process varies, depending on the level of environmental analysis required.
Plan amendments are most often prompted by the need to:
- Consider a proposal or action that does not conform to the plan;
- Implement new or revised policy that changes land use plan decisions, such as an approved conservation agreement between the BLM and the USFWS;
- Respond to new, intensified, or changed uses on public land; and
- Consider significant new information from resource assessments, monitoring, or scientific studies that change land use plan decisions.
Amending an RMP involves changing one or more of the plan’s components. An amendment is initiated when a proposed action requires a change in terms, conditions and decisions of the approved plan. All amendments to RMPs must comply with NEPA. In some cases, NEPA compliance requires the BLM to prepare an Environmental Impact Statement (EIS) for the proposed amendment. If an EIS is required, the amendment process will be identical to the revision process. Unlike plan revisions, however, an amendment to an RMP may not require an EIS where a Categorical Exclusion (CE) applies or where after conducting an EA, the agency issues a Finding of No Significant Impact (FONSI).
RMP revisions involve preparation of a new RMP to replace an existing one. See 43 CFR 1610.5-6. RMP revisions are necessary if monitoring and evaluation findings, new data, new or revised policy, or changes in circumstances indicate that decisions for an entire plan or a major portion of the plan no longer serve as a useful guide for resource management. An EIS is always required for a plan revision. Utility-scale solar development will generally require a plan amendment rather than a plan revision.
1.13 to 1.15 - Does the Amendment Require an EA or EIS?
NEPA requires the BLM to prepare an EIS for major federal actions that significantly affect the quality of the human environment. Amendments to an RMP will require an EIS when the environmental effects of the amendment are significant. Context and intensity should be considered when determining the significance of the effects. If the BLM expects the effects of an amendment to be significant, an EIS should be prepared and the amendment process should be identical to the revision process.
An EA is a concise public document that helps the BLM determine whether NEPA compliance requires an EIS or a FONSI. If the BLM believes the amendment will not significantly affect the quality of the human environment it should prepare an EA. If the EA determines that the effects are insignificant, the BLM should issue a FONSI. A FONSI is a document prepared by a federal agency that briefly explains why an action will not have a significant effect on the human environment. If the EA reveals the effects to be significant, the BLM should begin the amendment and NEPA process anew using an EIS level analysis.
The amendment process will vary depending on whether an EIS or an EA/FONSI is prepared. As stated above, an EIS-level plan amendment process will be identical to the plan revision process. If an EA/FONSI is sufficient for NEPA compliance, the amendment process will require fewer steps, many of which are optional. If an EIS level amendment is required, see Land Use Planning Process:
1-(FD)-a. Otherwise, see Land Use Plan Amendment Process:
1.16 – Continue with Project
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