RAPID/Roadmap/3-FD-c (1)

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Regulatory and Permitting Information Desktop Toolkit

Federal BLM Right-of-Way Application Process Overview (3-FD-c)

Title V of the Federal Land Policy and Management Act of 1976 (FLPMA) authorizes the Bureau of Land Management (BLM) to issue rights-of-way (ROWs) for the generation, transmission and distribution of electric energy. This includes electric energy generated by a solar utility. See 43 USC 1761(a)(4). Prior to 2012, the BLM processed all solar development project applications in accordance with their solar energy development policy and the BLM ROW regulations. See 43 CFR 2800 et seq.; BLM IM 2011-003. On October 10, 2012 the BLM issued a record of decision (ROD) for the solar programmatic environmental impact statement (SPEIS) that created a Solar Energy Program for six southwestern states: Arizona, California, Colorado, Nevada, New Mexico and Utah. The Solar Energy Program divides BLM managed land within those states into three zones for purposes of utility-scale solar development: Solar Energy Zones (SEZs), variance areas and exclusion areas. The Solar Energy Program is intended to make utility-scale solar permitting more efficient, standardized and environmentally responsible. In addition to updating and altering the solar energy development policy for areas within the Solar Energy Program, the SPEIS also amended all 89 resource management plans (RMPs) within the affected area. The amendments identified SEZs, variance areas and exclusion areas within the unit governed by each RMP. Maps delineating SEZs, variance areas and exclusion areas for each of the six states can be found at Argonne National Laboratory's Solar Energy Development Programmatic EIS Website.


BLM Right-of-Way Application Process Overview Process

3-FD-c.1 to 3-FD-c.2 – Will the Project be Under 20 MW?

The SPEIS ROD only applies to utility-scale solar development on BLM lands. Utility-scale solar facilities are defined by the SPEIS ROD as projects with capacities of 20 megawatts (MW) or greater that generate electricity that is delivered into the electricity transmission grid. See the Solar Programmatic Environmental Impact Statement Record of Decision. Projects that do not have a capacity of 20 MW or greater will be authorized in accordance with the BLM solar energy development policy and the BLM ROW regulations. See Bureau of Land Management Solar Right-of-Way Application Process:
3-(FD)-j


3-FD-c.3 – Will the Project be Sited within the Area Governed by the Solar PEIS?

The SPEIS ROD only altered the BLM’s solar energy development policy and amended RMPs in Arizona, California, Colorado, Nevada, New Mexico and Utah. SEZs, variance areas and exclusion areas do not currently exist outside of those six states. Projects sited outside of those areas will still be authorized in accordance with the solar energy development policy and the BLM ROW regulations. In addition, applications filed prior to the SPEIS are considered "pending" and are also authorized in accordance with the solar energy development policy and the BLM ROW regulations. See Bureau of Land Management Solar Right-of-Way Application Process:
3-(FD)-j
. In addition, if the proposed project does not conform to the unit RMP, an amendment may still be required. See Land Use Plan Amendment Process:
1-(FD)-b
.


3-FD-c.4 to 3-FD-c.5 – Will the Project be Sited within a Solar Energy Zone (SEZ)?

A SEZ is an area identified by the BLM as well-suited for utility-scale solar development and consequently given prioritization for rights-of-way applications. SEZs are designed to streamline and improve the utility-scale solar development process in designated areas on BLM managed land. RMPs within the six southwestern states have been amended by the SPEIS to include SEZs. A SEZ will generally have insolation values of 6.5 kWh/m2/day, be located close to transmission lines and be located away from culturally and environmentally sensitive areas. SEZs total approximately 285,000 acres.

The BLM has taken measures to streamline the ROW process. Priority will be given to processing ROW applications within SEZs. Projects within a SEZ will be subject to mandatory design features in order to facilitate avoidance, minimization and mitigation of environmental effects. In addition, the SPEIS already contains a programmatic NEPA analysis, a Programmatic Agreement with State and Tribal Historic Preservation Offices (SHPOs and THPOs), and programmatic consultations with the Fish and Wildlife Service (FWS) for SEZs. As a result of these measures, the NEPA and permitting processes for projects sited in SEZs will be streamlined, shorter and less expensive.

New applications (applications filed after June 30, 2009) filed within a SEZ will be subject to the decisions adopted by the SPEIS ROD. See Bureau of Land Management SEZ Right-of-Way Application Process:
3-(FD)-k
. Pending applications (applications filed before June 30, 2009) filed within a SEZ will not be subject to the decisions adopted by the SPEIS ROD. See Bureau of Land Management Solar Right-of-Way Application Process:
3-(FD)-j
.


3-FD-c.6 to 3-FD-c.7 – Will the Project be Sited within a Variance area?

As with SEZs, variance areas have been established by the SPEIS RMP amendments. 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. In other words, a variance area is an area within the six southwestern states that is not in a SEZ, but is not excluded from utility-scale solar development. Variance areas total approximately 19 million acres.

The BLM will consider utility-scale solar development applications within a variance area on a case-by-case basis. The BLM will base their approval or denial of the ROW on environmental considerations in coordination with appropriate federal, state, and local agencies as well as Indian tribes and the public. Unlike development in a SEZ, development within a variance area will not benefit from programmatic studies and environmental analyses. An Environmental Impact Statement (EIS) will be probably be required, and tiering (the process of incorporating programmatic NEPA analysis into site-specific analysis) will not be available to the same extent. For example, much of the environmental analysis in the SPEIS will not be applicable to projects within a variance area. Other similar environmental analyses in the same geographic area may be helpful, however.

ROW applications within variance areas will be given a lower priority than those within SEZs. In addition, the burden is on the developer to demonstrate that avoidance, minimization and mitigation measures will be sufficient. The developer is also expected to demonstrate conformance with state and local plans and the ability to obtain all necessary permits.

Parts of variance areas may become SEZs through BLM’s identification protocol or petition process. The BLM assesses the need for new or expanded SEZs in the six states affected by the SPEIS once every five years. In addition, the public may submit a written petition to the BLM. Petitions must have a rational basis and should identify policy, environmental or market changes that warrant the expansion or creation of an SEZ. The BLM uses a four step process to analyze the need for new or expanded SEZs:

  1. Assess the demand for new or expanded SEZs;
  2. Establish technical and economic suitability criteria;
  3. Apply environmental, cultural, and other screening criteria; and
  4. Analyze proposed SEZs through a planning and NEPA process.


New or expanded SEZs should be in areas that have a low-level resource conflict, are close to transmission access, and are economically and technically suitable for solar energy development. For more information on the identification protocol or petition process for new or expanded SEZs, see the Solar Programmatic Environmental Impact Statement Record of Decision.

New applications (applications file after October 28, 2011) filed within a variance area will be subject to the decisions adopted by the SPEIS ROD. See Bureau of Land Management Variance Area Right-of-Way Application Process:
3-(FD)-l
. Pending applications (applications file after October 28, 2011) filed within a variance area will not be subject to the decisions adopted by the SPEIS ROD. See Bureau of Land Management Solar Right-of-Way Application Process:
3-(FD)-j
.


3-FD-c.8 to 3-FD-c.9 – Will the Project be Sited within an Exclusion Area

Utility-scale solar development is not allowed in exclusion areas under any conditions. Exclusions areas have been identified by the BLM as not well-suited for utility-scale solar development. Exclusion areas total approximately 79 million acres.

The exclusion areas have been incorporated into affected RMPs by amendment. Exclusion categories are used to define exclusion areas. There are 32 exclusion categories, listed in table A-2 of the SPEIS ROD. Exclusion area boundaries will change over time as land use plans are revised or amended and new information on resource conditions is developed.

A developer may request that the BLM amend an RMP to allow for a non-conforming use within exclusion areas. The BLM will consider amendment requests on a case-by-case basis; however a successful amendment in an exclusion area is unlikely. See Land Use Plan Amendment Process:
1-(FD)-b
. In addition, the developer may petition the BLM to create a new SEZ or expand an existing one. See above at 3-FD-c.5.

New applications (applications file after October 28, 2011) filed within an exclusion area will be subject to the decisions adopted by the SPEIS ROD. Pending applications (applications file after October 28, 2011) filed within an exclusion area will not be subject to the decisions adopted by the SPEIS ROD.





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