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Regulatory and Permitting Information Desktop Toolkit

Federal Federal Geothermal Land Leasing (3-FD-a)


Some states do have approval authority over Federal lands.

The following steps should be taken when to determine if the state has approval authority over federal lands:

  1. How are Geothermal Resources defined;
  2. Who owns geothermal resources under state law;
  3. If the State has ownership of the geothermal resource-
  • that is underlying state land, or
  • subject to a reservation, or
  • an outright statutory assertion of ownership by the state (e.g., Alaska) then follow the leasing procedures for the state.
(Geothermal Leasing 101: Federal, State and Private Land, Andrew T. Braff (2009))

If State does not have approval authority:

Competitive Geothermal Lease Sale Nomination Process (43 CFR 3203)
The Bureau of Land Management (BLM) will accept nominations to include certain described lands in a geothermal lease sale at the appropriate BLM State Office. Nominations must be submitted in writing on Form 3203-001, Nomination of Lands for Competitive Geothermal Leasing (attachment 2). Lands surveyed under the public land survey system are to be described to the nearest aliquot part. Each nomination is to be no larger than 5,120 acres, unless the area includes one or more irregular subdivisions.

A nominator may submit more than one nomination. Each nomination requires a nonrefundable filing fee (see 43 CFR 3203.12), currently $100 plus $0.10 per acre, rounded up to the nearest acre. The fee is updated annually.

A nominator may request that lands be offered as a block, or the BLM may offer leases as a block on its own initiative for competitive sale. The block request must specify that the lands will be associated with a project or unit and include information to support the request. The BLM may require the nominator to submit additional information to support the request.


Federal Geothermal Land Leasing Process

3-FD-a.1 - Nomination of Lands for Competitive Geothermal Leasing (Form 3203-1) Nomination Fee

All federal geothermal leases, except for direct use, are required to be formally nominated, and if available for leasing offered to the highest qualified bidder in a competitive sale (auction).


3-FD-a.2 - Adjudicate Nomination

When the BLM receives a nomination, it is adjudicated, and configured into lease parcels by the respective BLM state office. Lease parcels are then forwarded to the appropriate field office or USFS regional office where the appropriate environmental analysis and review is conducted.

Expending the Fees: Funds receipted into Sub-activity 5104 may be used for adjudicative actions associated with the lands nominated for leasing. These funds may be expended immediately upon receipt without further appropriation. However, expenditures must not exceed the collected amount.


3-FD-a.3 - Which Agency is the Surface Management Agency?

The BLM administered more that 261 million surfaces of public lands and about 700 million acres of subsurfacemineral estate (Federal lands beneath surface lands ownered or managed by other parties, such as the Forest Service (FS), National Park Service (NPS), Bureau of Reclamation (BOR), Fish and Wildlife Service (FWS), Department of Defense (DOD), and other federal agencies). Lands managed by the NPS, FWS, DOD, are generally not available for geothermal leasing, while lands managed by the FS and BOR may be available for leasing.

BLM is required to obtain consent from the surface management agency prior to making lands available for geothermal leasing. If the nominated lands are managed by either agency, BLM will forward the request to the responsible agency for their consent.

Nominations for leasing on Public lands managed by BLM will be forwarded to the appropriated BLM field office for processing.


See 43 CFR 3201: Available Lands

See BLM MOU WO 300-2006-08: Memorandum of Understanding between DOI and DOA - Implementation of Section 225 of the Energy Policy Act of 2005 Regarding Geothermal Leasing and Permitting (Forest Service Agreement No. 06-SU-11132428-051)


3-FD-a.4 - Check/Evaluate Parcels

The Geothermal Steam Act of 1970 as amended, requires that geothermal leasing on National Forest System lands be subject to the consent of, and subject to conditions prescribed by, the Secretary of Agriculture. This authority has been delegated from the Secretary to the Chief of the Forest Service, who in turn has delegated the authority to the Regional Foresters. Regional Foresters may further delegate the authority to Forest Supervisors.

Regional Foresters receive geothermal lease nominations from the BLM State Director, asking for a consent decision. The Regional Forester will forward the nominations to the appropriate National Forest for action.


3-FD-a.5 - Has Leasing NEPA Been Conducted for this Parcel?

The Forest staff reviews the nominated lands, and checks to see if the lands have a current geothermal leasing analysis.

If no geothermal leasing analysis has been completed, or if the completed analysis is out of date, go to 3-FD-a.6 NEPA Process.

If there is a current leasing analysis, go to 3-FD-a.7 – Letter of Consent to Lease with Stipulations.


3-FD-a.6 - NEPA Process

Bureau of Land Management-NEPA Process:
9-FD-a


3-FD-a.7 - Letter of Consent to Lease with Stipulations

The Regional Forester, or Forest Supervisor if authority has been delegated, sends a letter to appropriate BLM State Director, transmitting the geothermal leasing consent decision, including appropriate lease stipulations that would be required.


3-FD-a.8 - Are Adequate Records Readily Available?

Adequate records include current resource surveys.

See Interagency Agreement between the Bureau of Land Management and the Bureau of Reclamation, December 1982


3-FD-a.9 - Interim Progress Report

When adequate records are not available to the BOR, an interm progress report will be provided to BLM within 30 days. Teh report will include an estimate of when BOR will reach a decision on consent to leases and concurrence on conditions and site specific stipulations.


3-FD-a.10 - Response

BOR will respond to BLM within 60 days, when adequate records are available to make a decision on whether to concur or not concur with the request for geothermal leasing.


3-FD-a.11 - Are the Lands Available for Leasing?

BLM may issue leases on: (43 CFR 3201.10)

If your activities under your lease or permit might adversely affect a significant thermal feature of a National Park System unit, BLM will include stipulations to protect this thermal feature in your lease or permit. These stipulations will be added, if necessary, when your lease or permit is issued, extended, renewed or modified.

BLM will not issue leases for: (43 CFR 3201.11)

  • Lands where the Secretary has determined that issuing the lease would cause unnecessary or undue degradation of public lands and resources;
  • Lands contained within a unit of the National Park System, or otherwise administered by the National Park Service;
  • Lands within a National Recreation Area;
  • Lands where the Secretary determines after notice and comment that geothermal operations, including exploration, development or utilization of lands, are reasonably likely to result in a significant adverse effect on a significant thermal feature within a unit of the National Park System;
  • Fish hatcheries or wildlife management areas administered by the Secretary;
  • Indian trust or restricted lands within or outside the boundaries of Indian reservations;
  • The Island Park Geothermal Area; and
  • Lands where Section 43 of the Mineral Leasing Act of 1920 (30 U.S.C. 226–3) prohibits geothermal leasing, including:
    • Wilderness areas or wilderness study areas administered by BLM or other surface management agencies;
    • Lands designated by Congress as wilderness study areas, except where the statute designating the study area specifically allows leasing to continue; and
    • Lands within areas allocated for wilderness or further planning in Executive Communication 1504, Ninety-Sixth Congress (House Document 96–119), unless such lands are allocated to uses other than wilderness by a land and resource management plan or are released to uses other than wilderness by an Act of Congress.

Additionally, Geothermal Leases are NOT issued under the Geothermal Steam Act of 1970 under the following circumstances:


3-FD-a.12 - Non-Consent Letter

The BOR will issue a non-consent letter to BLM when the lands nominated are not available for geothermal leasing. Non-Consent may be based on geothermal leasing and development would not be compatible with BOR's management decisions, BOR has or is in the process of having the lands withdrawn for protection of resources, facilities, or a specific public purpose.


3-FD-a.13 - Consent Letter with Stipulations

BOR will notify BLM of it's consent to leases and list site specific stipulations and and other special conditions to be attached to the geothermal lease.


3-FD-a.14 - Check/Evaluate Parcels

The BLM receives nominations from applicants, which may include proposed tract configurations for parcels. It is Bureau policy that a decision to not implement oil and gas or geothermal leasing decisions, as contained in current RMPs/MFPs must be made by the State Director with appropriate input from the affected Field Manager. The State Director must provide a letter to those who submitted the expression of interest for the tract, stating the reasons for not offering the parcel(s), the factors considered in reaching that decision, and an approximate date when analysis of new information bearing on the leasing decision is anticipated to be complete and when a decision to lease (or amend the plan) is expected to be made. This would apply to tracts deferred for more than one lease sale. That notification should be provided as soon as practicable and shall be placed in the permanent file created for the lease tracts at issue.

There may be many administrative reasons for temporarily not offering a particular nominated parcel, but those reasons narrow with time. Where existing NEPA documentation is sufficient to support continued implementation, a decision not to lease that extends beyond the one year cou1d be considered a change in land use allocation outside of the planning process that effectively removes large parcels of land from mineral development without following appropriate planning procedures. The Bureau planning regulations state very clearly in 43 CFR 1610.5-3(a), "All future resource management authorizations ... shall conform to the approved plan. " Proposals for actions that do not conform to approved land use plans should be considered through the land use plan amendment process, 43 CFR 1610.5-5. If a manager finds that a tract is more appropriately withheld from leasing in an area currently open to leasing under the RMP for periods longer than one year, the manager should strongly consider a plan amendment, with an appropriate range of alternatives, NEPA analysis and public participation.


3-FD-a.15 - Are the Lands Available for Leasing?

BLM may issue leases on: (43 CFR 3201.10)

If your activities under your lease or permit might adversely affect a significant thermal feature of a National Park System unit, BLM will include stipulations to protect this thermal feature in your lease or permit. These stipulations will be added, if necessary, when your lease or permit is issued, extended, renewed or modified.

BLM will not issue leases for: (43 CFR 3201.11)

  • Lands where the Secretary has determined that issuing the lease would cause unnecessary or undue degradation of public lands and resources;
  • Lands contained within a unit of the National Park System, or otherwise administered by the National Park Service;
  • Lands within a National Recreation Area;
  • Lands where the Secretary determines after notice and comment that geothermal operations, including exploration, development or utilization of lands, are reasonably likely to result in a significant adverse effect on a significant thermal feature within a unit of the National Park System;
  • Fish hatcheries or wildlife management areas administered by the Secretary;
  • Indian trust or restricted lands within or outside the boundaries of Indian reservations;
  • The Island Park Geothermal Area; and
  • Lands where Section 43 of the Mineral Leasing Act of 1920 (30 U.S.C. 226–3) prohibits geothermal leasing, including:
    • Wilderness areas or wilderness study areas administered by BLM or other surface management agencies;
    • Lands designated by Congress as wilderness study areas, except where the statute designating the study area specifically allows leasing to continue; and
    • Lands within areas allocated for wilderness or further planning in Executive Communication 1504, Ninety-Sixth Congress (House Document 96–119), unless such lands are allocated to uses other than wilderness by a land and resource management plan or are released to uses other than wilderness by an Act of Congress.

Additionally, Geothermal Leases are NOT issued under the Geothermal Steam Act of 1970 under the following circumstances:


3-FD-a.16 - Are Lands Available for Leasing Under the Land Use Plan?

The requirement that lands be “available” means both that the lands are open to geothermal leasing consistent with the terms of the applicable land use plan, and also that adequate pre-leasing National Environmental Policy Act (NEPA) compliance has been completed. Nominated lands cannot be included in a lease sale until the BLM confirms that leasing conforms to the land use plan and all NEPA requirements have been met.

All geothermal decisions must be provided for and in conformance with the applicable land use plan. Prior to geothermal lease sales, individual BLM field offices must prepare Documentation of Plan Conformance and NEPA Adequacy (also termed DNAs) for parcels within their respective jurisdictions to determine: (1) whether the issuance of a particular lease is in conformance with the applicable land use plan; and (2) whether the BLM can properly rely upon existing NEPA documents that analyze the potential impacts of geothermal leasing (i.e., an environmental impact statement that accompanies a land use plan).

Upon completion of the DNA, the BLM field office can make one of the following recommendations to the BLM State Office: (1) the parcel(s) be offered for sale; (2) the parcel(s) be offered for sale with slightly modified legal descriptions or additional lease sale notices and stipulations.

Final PEIS for Geothermal Leasing in the Western US (Section 1-14) This PEIS seeks to amend appropriate land use plans to facilitate the leasing process. On NFS lands, where the BLM leases the mineral estate, the FS forwards consent determinations to BLM as to which parcels should be offered for lease. The BLM cannot lease lands over the objection of the FS. The FS makes its consent decision after conducting a leasing analysis, including NEPA. This analysis determines if an area is administratively open to leasing and if so, what if any special stipulations are required. The proposed action identifies the lands open to leasing and those that are closed by statute, regulation, or order. The FS will conduct a separate process to determine if these lands are administratively open or closed. This subsequent leasing determination will be used to amend FS land use plans, as appropriate.


3-FD-a.17 - Can the Land Use Plan be Amended?

The land use plan may be able to amended to provide for geothermal leasing. The Programmatic Geothermal Leaing EIS (12/2008) ammended BLM and provided the basis for leasing analysis on USFS lands in the 11 western states and Alaska.

Sometimes the LUP may not be able to be amended if:

  • the lands have been determined not to be available for leasing
  • the plan is currently under revision and land use decisions have been deferred until completion of the current revision


3-FD-a.18 - Notify Nominator that the Land Is Not Available for Leasing

BLM will notify the nomination when all or a portion of thelands requested for leasing are not available. The letter will include the reasons for the lands not being available.


3-FD-a.19 - Land Use Plan Amendment Process

It is Bureau of Land Management (BLM) policy that the State Directors follow current land use allocations and existing land use plan decisions for Fluid Minerals and related energy actions when preparing land use plan amendments or revisions. This policy is consistent with BLM handbook H-1624-1 "Planning for Fluid Mineral Resources" chapter I B.2, rel.l-1583.

In a related matter, nothing in the CEQ NEPA regulations requires postponing or denying a proposed action that is covered by the Environmental Impact Statement (EIS) for the existing land use plan to preserve alternatives during the course of preparing a new land use plan and EIS (see 40 CFR 1506.1 (c)(2)). Consequently, all Field Offices are expected to follow their respective approved land use plans in offering for sale, parcels with expressions of interest.

Land Use Plan Amendment Process.:
1-FD-b


3-FD-a.20 - Consolidate List of Parcels and Post Final Sale Notice at Least 45 Days Prior to Sale

Offices are encouraged to hold geothermal lease sales in conjunction with quarterly oil and gas lease sales when lands are available. The BLM may include lands in a competitive lease sale on its own initiative.

Sale Notice
At least 45 days prior to sale, the BLM will post a notice of the parcels to be included in the sale, with appropriate stipulations or restrictions on use, along with the time, date, location, and sale format and procedures.

Parcel Withdrawal or Sale Cancellation
The BLM may withdraw parcels before the sale begins. If parcels are withdrawn, a notice will be posted in the State Office Information Access Center (Public Room) before the day of the sale. Withdrawn parcels will be announced before the sale begins.

Providing Notice of a Competitive Lease Sale
The lands available for competitive lease sale will be described in a Notice of Competitive Geothermal Lease Sale, which will include:

  1. The lease sale format and procedures;
  2. The time, date, and place of the lease sale; and
  3. Stipulations applicable to each parcel.

At least 45 days before conducting a competitive lease sale, BLM will post the Notice in the BLM office having jurisdiction over the lands to be offered, and make it available for posting to surface managing agencies having jurisdiction over any of the included lands.

BLM may take other measures of notification for the competitive sale such as:

  1. Issuing news releases;
  2. Notifying interested parties of the lease sale;
  3. Publishing notice in the newspaper; or
  4. Posting the list of parcels on the Internet.


3-FD-a.21 - Conduct Lease at Oral Auction

BLM will hold a competitive lease sale at least once every 2 years for lands available for leasing in a state that has nominations pending. A sale may include lands in more than one state. BLM may hold a competitive lease sale in a state that has no nominations pending.

If the nominated lands are available, they will be offered in an oral competitive auction, awarded to the highest qualified bidder. The EPAct eliminated the previous two-tier leasing program and replaced it with a competitive leasing system similar to the oil and gas leasing system.

In contrast to the previous limitation that competitive leasing occur only in Known Geothermal Leasing Areas, the EPAct requires that all lands available for geothermal leasing first be offered competitively to the highest qualified bidder, with the following exceptions:

  • Those parcels not receiving a bid are then available noncompetitively for a period of two years following the competitive lease sale, and
  • Lands designated for:
  1. direct use leasing only;
  2. areas for which grandfathered noncompetitive lease applications were pending on August 8, 2005; and
  3. under certain circumstances, lands that are subject to mining claims are not subject to the competitive sale process.

Noncompetitive direct use leases may be issued in areas designated by the BLM as being appropriate for direct uses only (for example, if a power plant would be unsuitable in that location due to unacceptable impacts on other resource uses or users). A noncompetitive direct use lease may also be issued after the BLM determines that there is no competitive interest. If there is competitive interest in an area otherwise deemed appropriate for exclusive direct use, the lands may be offered at the next competitive lease sale as a standard geothermal lease, but with a stipulation restricting operations to direct uses. The BLM may designate direct use areas in response to an application.


3-FD-a.22 - Signed Agreement to Purchase Lease upon Win

When a potential bidder signs in at the BLM geothermal lease auction a declaration must be signed that if a successful bidder that the lease will be purchased.


3-FD-a.23 - Did the Lease Receive a Successful Bid?


Bidder Qualifications
For leases that may be issued under the Geothermal Steam Act of 1970, as amended, the bidder must:

  1. Be a Citizen of the United States; an association of such citizens; a municipality; or a corporation organized under the laws of the United States or of any State or territory thereof; and
  2. Be in compliance with acreages limitation requirements wherein the bidder’s interests, direct and indirect, do not exceed 51,2000 acres, and
  3. Certify that all parties in interest in this bid are in compliance with 43 CFR 3200 and the leasing authority cited therein.

Bid Form
On the day of the sale, the successful bidder must give the BLM a properly completed and signed Competitive Bid (Form 3000-2), with the payment. A bidder may not withdraw a bid, since this form is a legally binding offer by the prospective lessee to accept a lease and all its terms and conditions. Once the form is signed, it is binding and cannot be changed. A bid form that has information crossed out or is otherwise altered will not be accepted.


3-FD-a.24 - Due Day of Lease: 20% of Bonus Bid, Full Rental Fee, Full Application Fee

Payment due by close of business on the day of the sale includes the following:

  1. 20 percent of the bid;
  2. the total amount of the first year rental (currently $2 per acre); and
  3. the competitive lease application processing fee. The lease application processing fee is currently $140, updated annually (see 43 CFR 3000.12). All payments must be paid by close of official business hours on the day of the sale unless the BLM specifies another time.

Forms of payment
Payment must be by personal check, cashier’s check, certified check, bank draft, money order, wire transfer, or credit card (Discover, Visa, American Express, or MasterCard only), subject to the limitations below. Checks must be made payable to: The U.S. Department of the Interior, Bureau of Land Management. Cash will not be accepted. A certified check may be required if a check received in the past has been returned for insufficient funds. If payment is by credit card, the bidder must remain available until the BLM has determined that the transaction is accepted. If the transaction is refused, the bidder must pay by another means and an extension of time to pay the money will not be granted.

Limitations on Credit Cards and Debit Payments
In accordance with National Business Center Instruction Memorandum No. 2005-008, Change 1, dated December 13, 2004, effective February 1, 2005, credit or debit cards cannot be used for any amount in excess of $99,999.99 for any purpose.

Failure to Pay
If a bidder fails to make all required payments, or fails to meet the qualifications in §3202.10, BLM will revoke acceptance of the bid and keep all money that has been submitted.


3-FD-a.25 - Remainder of Bonus Bid Due within 15 Days

Within 15 calendar days after the day of the sale, the balance of the bid must be submitted to either the BLM office that conducted the sale or the office serving those lands nominated, as specified in the sale notice.


3-FD-a.26 - Issue Competitive Lease to Lessee within 60 Days (Form 3200-24a)

Once a bid form has been accepted and all the monies due have been paid, the lease (Form 3200-24a) may be issued, usually within 60 days.


3-FD-a.27 - Sign Lease and Return to BLM; Lease Effective First Day of the Following Month

The lease is effective the first day of the month following the month in which it is signed by the authorized officer.


3-FD-a.28 - Place Parcel on 2 Year Availability List

(43 CFR 3204.5, .10, and .11)

Lands that do not receive a bid at a competitive lease sale are available for a two-year period, beginning the first business day after the sale.

An Offer to Lease (Form 3200-24a) must be properly completed and signed. (Note: The lease form may be copied. However the document’s first two pages are required to be on one sheet, double sided. If the form’s first two pages are not on a double sided single sheet or an obsolete lease form is used, the offer will be rejected).

A payment consisting of the $375.00 and the advanced first year’s rental of $1.00 per acre (If a parcel consists of fractional acreage, please round the acres up to the nearest whole acre) are to be submitted with the Offer to Lease.

Multiple applications filed on the same parcel the day after the sale shall be considered simultaneously filed and the winner picked at random at the close of business that day.

For 30 days after the lease sale, noncompetitive applications will be accepted only for parcels as configured in the lease sale Notice (parcel integrity). After the 30-day period, you may file a noncompetitive application for any available lands covered by the lease sale.

(See BLM Geothermal FAQ)


3-FD-a.29 - Offer to Lease Geothermal Resources (Form 3200-24a), Application Fee, Full Amount of First Year's Rental

For a 2-year period following a competitive lease sale, you may file a noncompetitive lease application for lands on which no bids were received, on a form available from BLM. Submit 2 executed copies of the applicable form to BLM. At least one form must have an original signature. The BLM accept only exact copies of the form on one 2-sided page.

Application Amendment
You may amend your application for a noncompetitive lease at any time before we issue the lease, provided your amended application meets the requirements in this subpart and does not add lands not included in the original application. To add lands, you must file a new application.

Application Withdrawal
During the 30-day period after the competitive lease sale, BLM will only accept a withdrawal of the entire application. Following that 30-day period, you may withdraw your noncompetitive lease application in whole or in part at any time before BLM issues the lease. If a partial withdrawal causes your lease application to contain less than the minimum acreage required under §3206.12, BLM will reject the application.


  • For 30 days after the competitive geothermal lease sale, noncompetitive applications will be accepted only for parcels as configured in the Notice of Competitive Geothermal Lease Sale.
  • Subsequent to the 30-day period specified in paragraph (a)(1) of this section, you may file a noncompetitive application for any available lands covered by the competitive lease sale.

All applications for a particular parcel under this section will be considered simultaneously filed if received in the proper BLM office any time during the first business day following the competitive lease sale. You may submit only one application per parcel. An application will not be available for public inspection the day it is filed. BLM will randomly select an application among those accepted on the first business day to receive a lease offer.

Subsequent to the first business day following the competitive lease sale, the first qualified applicant to submit an application will be offered the lease. If BLM receives simultaneous applications as to date and time for overlapping lands, BLM will randomly select one to receive a lease offer.


3-FD-a.30 - Sign Lease and Give Copy to Lessee; Lease Effective First Day of the Following Month

The lease is effective the first day of the month following the month in which it is signed by the authorized officer.









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