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Federal BLM Variance Area Right-of-Way Application Process (3-FD-l)

As part of BLM’s Solar Energy Program, the Solar Programmatic Environmental Impact Statement (SPEIS) amended 89 BLM land use plans in Arizona, Colorado, New Mexico, California, Utah and Nevada. The amendments created designated Variance Areas, which are BLM administered lands within the six southwestern states that have not been designated as a Solar Energy Zone (SEZ), but are not excluded from solar energy development by the SPEIS. Variance areas total approximately 19 million acres.

The BLM will consider utility-scale solar right-of-way (ROW) applications within variance areas on a case-by-case basis. Environmental considerations will be evaluated in conjunction with federal, state and local agencies and tribes. Public outreach will also be conducted to assess potential issues and barriers. This evaluation is called the “variance process.”

Although the BLM must still adhere to the ROW regulations found in 43 CFR 2800 et seq., the focus of the variance process is on “collecting the right data and evaluating it with the right parties to assess the appropriateness of a given proposal, rather than on a prescriptive set of measures that would be established at a programmatic level.” See the Solar PEIS ROD, Appendix B, Section 5.3. Consequently, the developer must adhere to data collection and survey protocols proscribed by the relevant resource management agencies. The burden is on the developer to show that the project is suitable for the proposed site and that it will avoid, minimize or mitigate impacts on culturally and environmentally sensitive resources.

The BLM will consider a variety of factors when processing variance area ROW applications. A list of these factors can be found in the Solar PEIS ROD, Appendix B, Section 5.3. In some cases, the BLM may deny an application before completing the NEPA process based on information received from the applicant regarding these factors.


BLM Variance Area Right-of-Way Application Process Process

3-FD-l.1 – Contact BLM to Initiate Process

Contacting the BLM office with jurisdiction over the desired site is the first step in the ROW application process. The required pre-application meetings should be scheduled during this initial contact. In addition, the developer can obtain general information regarding the ROW process at this time.


3-FD-l.2 to 3-FD-l.3 – Does Competition Exist for the Right-of-Way System?

43 CFR 2804.23 authorizes the BLM to determine if competition exists for a particular ROW site or system and if so, to establish competitive bidding procedures. The BLM must provide notice and a description of the bidding procedures in both a local newspaper and the ’’Federal Register’’.

Although the BLM has the authority to use competitive bidding procedures, it has no intent to use them in variance areas except in limited circumstances where two or more applications have competing interests. See the Solar PEIS ROD, Section 6.


3-FD-l.4 to 3-FD-l.6 – Conduct Pre-Application Meetings; Site Evaluation; Establish Early Coordination with Land Managers and Stakeholders

43 CFR 2804.10 encourages developers to schedule a pre-application meeting with the BLM before submitting the SF-299 ROW application. The general purpose of the pre-application meeting, as outlined by Instruction Memorandum No. 2011-061 is to:


  • Identify potential environmental and siting constraints;
  • Determine whether lands are available for proposed right-of-way uses;
  • Discuss potential alternative site locations;
  • Discuss timeframes for processing proposed applications;
  • Inform applicants of financial obligations in processing an application; and
  • Facilitate coordination with Federal, state, tribal and local government agencies

The BLM has posted a Pre-Application Checklist that describes the issues to be discussed at the pre-application meetings. It should be noted, however, that the checklist is a general description of a generic pre-application ROW meeting.

Two pre-application meetings are required for proposed projects within variance areas. The purpose of the first application meeting is for the developer to provide the BLM with general information regarding the proposal, determine whether the proposed site is available for utility-scale solar development, inform the developer of potential siting and environmental constraints, facilitate a discussion regarding the ROW application process, and determine whether alternate sites are available. The BLM will also identify resource information that the developer will need to collect in support of the variance process. The developer and the BLM will discuss a timeframe for the ROW application process, as well as any additional requirements the developer will have to satisfy. Many of the requirements discussed in the first meeting (including coordination activities, discussed below) are outlined in the site evaluation section of this roadmap. See Site Evaluation Process: 10

The purpose of the second pre-application meeting is to initiate and ensure early coordination with federal, state, tribal, and local government agencies. See the Solar PEIS ROD, Appendix B, Section 5.1. Early coordination is required by 43 CFR 2804.10(b). The BLM will help the developer coordinate with other stakeholders (including other federal agencies, state agencies, tribal governments, and local governments) in order to schedule the meeting. The second meeting allows the other stakeholders to voice their concerns, make recommendations, and discuss potential siting and environmental constraints.

In addition, the BLM commences coordination activities at the second meeting. These activities involve coordination or consultation with other stakeholders. Appendix B of the Solar PEIS ROD provides a list of coordination activities that must be performed as part of the variance process.

The BLM will not accept a solar ROW application until the developer completes both the first and second pre-application meetings. Upon completion of the pre-application meetings, the BLM will screen the proposed project to determine how the application should be processed. 43 CFR 2805.25 defines processing times for ROW applications. Utility-scale solar development will almost always fall into category 6, which requires over 60 days of processing time. The purpose of the screening is to redirect developers towards environmentally and culturally compatible sites. In addition, the BLM may reject applications outright under certain circumstances, for example when the proposed site is within a ROW exclusion area.

Projects sited within variance areas will be given a lower priority than those sited within an SEZ. In some cases, the BLM may suggest that the developer choose a different site or technology. When suggesting alternatives, the BLM will consider:

  • Availability of suitable locations within SEZs;
  • Availability of suitable locations near transmission access;
  • Land use conflicts; and
  • Conflicts with culturally and environmentally sensitive resources.


3-FD-l.7 – Application for Transportation and Utility Systems with Facilities on Federal Lands (Form SF299); Plan of Development (POD)

After the pre-application process has been completed, the developer should complete Form SF299, also known as the Application for Transportation and Utility Systems with Facilities on Federal Lands. The application form is not long, and most of the required items are easily completed, with specific instructions included in the form itself. However, there are a number of critical items that require extra work and attention, the most important of which is the Plan of Development (POD).


Plan of Development

43 CFR 2804.25(b) authorizes the BLM to require supplemental information from the developer in addition to the SF299, including a POD. The Solar PEIS ROD, Appendix B, Section 2 requires developers to submit a POD for all solar development right-of-way applications. A POD should include information regarding “construction, operation, rehabilitation, and environmental protection…” See 43 CFR 2804.25(b). In addition, the BLM has created a Solar Energy POD outline that identifies the minimum requirements for a solar energy POD. The BLM may request information in excess of the minimum requirements. In addition, the BLM may require the developer to supplement the POD with additional information at any time during the application process.

The BLM, as part of the minimum requirements for solar PODs, requires developers to include documentation in the solar POD of their financial and technical capability to construct a utility-scale solar facility, in accordance with the due diligence requirements of Solar PEIS ROD, Appendix B, Section 2 and 43 CFR 2804.12(a)(5). 43 CFR 2804.26(a)(5) authorizes the BLM to reject an application where the developer is not sufficiently competent. The BLM may require the developer to submit information regarding past solar development experience and the availability of capitalization.

Other minimum requirements for solar PODs include, but are not limited to:

  • A discussion of alternatives to site location, engineering designs, technologies, etc.;
  • An environmental mitigation plan; and
  • A decommissioning and Site Reclamation Plan (DSRP)

In addition to the minimum requirements listed above, PODs for solar projects within variance areas are required to contain programmatic design features. Design features are mitigation requirements designed to avoid, minimize or mitigate adverse impacts. The design features have been incorporated into the amended land use plans by the SPEIS. Design features are categorized by resource type and are divided into four categories based on projects phases: (1) general; (2) site characterization, siting and design, and construction; (3) operations and maintenance; and (4) reclamation and decommissioning.

Not all of the design features will apply to specific projects because the programmatic design features are general in nature. Variation in design features must be disclosed and analyzed. Design features that do not apply to a project should be described in detail, along with the rationale for their exclusion from the POD. Design features not listed in the ROD may be required in addition to the programmatic design features. For a list of programmatic design features, see the Solar PEIS ROD, Appendix A.

The variance process requires developers to follow data collection and survey protocols, as discussed above. The BLM uses a variety of factors to assess ROW applications for projects sited within a variance area. These factors are listed in the Solar PEIS ROD, Appendix B, Section 5.3. Developers are required to collect data relating to many of these factors and submit that data along with the POD and SF299 for the BLM’s consideration. It is the developer’s responsibility to show that the data warrants approval of the ROW and that impacts to culturally and environmentally sensitive resources will be avoided, minimized or mitigated.

The POD provides the BLM with the informational basis to conduct the ROW NEPA analysis and the application review process. The developer must submit the POD prior to the initiation of NEPA analysis. The developer is required to strictly adhere to BLM POD submission schedules. Failure to do say may result in rejection of the application. The timeline for POD submissions can be found on the Solar Energy POD page.


3-FD-l.8 – Inform Livestock Permittee / Lessee About Proposed Project

As soon as the BLM becomes aware of a proposed utility-scale solar development project, it informs affected livestock permittees/lessees about potential impacts on their grazing rights. Notification may occur when the developer initially contacts the BLM or after the pre-application meetings.

The BLM conducts an on-site visit with the developer and the permittees/lessees to explain the project and how it may affect grazing rights, discuss mitigation and compensation strategies, and encourage participation in the NEPA process. 43 CFR 4120.3-6(c) requires the permittees/lessees to be compensated for improvements placed upon the land. Yhe BLM will encourage the ROW applicant and permittees/lessees to enter into an agreement regarding compensation. The agreement should also address mitigation of effects on forage and water rights.

The BLM sends a certified letter to the permittees/lessees once the developer’s POD is accepted. The letter serves as the two year cancellation notice required by 43 CFR 4110.4-2(b). Grazing rights may not be canceled for two years after the notification unless the permittees/lessees waive the two year period. In addition, a NEPA analysis should be conducted regarding the decision to cancel the grazing rights. This analysis may be part of the ROW NEPA analysis. Once the NEPA analysis is complete, the BLM issues a proposed grazing decision that states the date of cancellation (two years from the date of the permittees/lessees receipt of the certified letter). In addition, the decision addresses compensation for improvements, issuance of new grazing rights, and the management of new rights. The proposed grazing decision should state that in the absence of a protest, a final grazing decision will be issued concurrenty with the Environmental Assessment (EA) decision of record or the Environmental Impact Statement (EIS) Record of Decision. A protest must be made within 15 days of the receipt of the proposed grazing decision or the final grazing decision will go into effect.

Information regarding the involvement of grazing permittees/lessees with the solar ROW application process can be found in the Solar PEIS ROD, Appendix B, Section 2.


3-FD-l.9 to 3-FD-l.10 – Review Application Material for Completeness

The BLM will review the initial application and notify the developer within 30 calendar days whether the application is “complete” and ready for formal review, or whether additional information must be submitted. Once the application is complete, the review process can continue.


3-FD-l.11 to 3-FD-l.12 – Hold Public Meeting; Conduct Additional Inter-agency Coordination and Consider Environmental Factors

The BLM is required to hold at least one pubic meeting as part of the variance process. The purpose of the meeting is to address potential issues and barriers related to the project. The meeting must be held before the NEPA process begins, be located in the proximity of affected communities and be adequately noticed.

The BLM is also required to conduct additional inter-agency cooridnation and consider environmental factors concurrently with the public meeting. A list of environmental factors that must be considered can be found in section B.5.3 of the Solar PEIS ROD, while a list of coordination activities can be found in section B.5.5.


3-FD-l.13 - Is the Application Appropriate for Processing?

The BLM may, within its discretion and in accordance with FLPMA, deny an application for a solar ROW within a variance area before conducting a NEPA review. Such decisions are assessed on a case by case basis and must be be supported by a reasoned analysis and adequate administrative record. The decisions are based on the information provided by the developer and input from federal, state, and local government agencies, tribes, and the public. If the BLM determines that the application is appropriate for processing, it begins the NEPA review. See the Solar PEIS ROD, section B.5.6.


3-FD-l.14 – Establish Written Processing Agreement

Processing fees for utility-scale solar development ROW applications are governed by 43 CFR 2804.14 and 43 CFR 2804.19. 43 CFR 2804.14 contains a processing schedule, with six processing categories based on the estimated number of hours required to process the ROW application. Utility-scale solar development ROWs always require NEPA analysis. Consequently, they will almost always require more than 50 hours of work. Applications that require over 50 hours of processing time are placed in processing category 6.

43 CFR 2804.19 requires the BLM and the developer to enter into a written agreement that describes how the BLM will process the category 6 application. The agreement should contain a work plan and a financial plan. In some cases, the BLM allows developers to perform some of the processing work (generally aspects of the NEPA analysis), but the work must be performed to BLM standards. The developer should establish a cost recovery account sufficient to cover all costs of the United States associated with accepting, processing, and reviewing the application. See the Solar PEIS ROD, Appendix B, Section 5.2.


3-FD-l.15 to 3-FD-l.16 – Does the ROW Conform with the Land Use Plan?; Amend Land Use Plan

43 CFR 1610.5-3 requires all projects sited on BLM managed land to conform to the Resource Management Plan (RMP) governing the relevant land unit. The BLM will assess whether utility-scale solar development conforms to the relevant RMP during the pre-application process. If the proposed project is not in conformance with the relevant RMP, the developer may request that the BLM amend the RMP. The amendment (and attendant environmental analysis) should be conducted concurrently with the review of the ROW application and the ROW NEPA analysis. See Land Use Plan Amendment Process:
1-(FD)-b
.


3-FD-l.17 to 3-FD-l.18 – Has NEPA Been Completed for the ROW?

The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental consequences of their proposed actions and any reasonable alternatives, before undertaking a major federal action. An Environmental Impact Statement (EIS) is required when a major federal action significantly affects the quality of the human environment. See 40 CFR 1502.3. If the effects of the action are not significant an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be sufficient.

Projects sited within a variance area will not benefit from tiering to the same extent as an SEZ. Tiering is defined as “using the coverage of general matters in broader NEPA documents in subsequent, narrower NEPA documents.” See the Solar PEIS ROD; 40 CFR 1508.28. Tiering allows the site-specific review to incorporate analyses of significant impacts by reference, thereby reducing redundancy and allowing the site-specific review to focus on issues not already addressed. If all of the relevant impacts have been analyzed in the SPEIS, or if the impacts are not significant, an EA/FONSI will be sufficient. Otherwise, an EIS may be required. Because the SPEIS focused most of its environmental analysis on SEZs, significant impacts within variance areas will generally need to be addressed. Consequently, projects sited within variance areas will generally require the preparation of an EIS.

As stated above, the NEPA process cannot begin until the developer has submitted a POD. The developer will be required to pay for the NEPA analysis, which may take over two years to prepare. The NEPA process must be completed before the BLM can issue an ROW. For more information on the BLM NEPA process, see BLM NEPA Process:
9-(FD)-a
.


3-FD-l.19 to 3-FD-l.20 – Is Segregation Required?

43 CFR 2804.25(e) allows the BLM to temporarily segregate public lands from the operation of the public land laws, including the Mining Law, that are subject to new or pending ROW applications for utility-scale solar development.

Segregation begins when the BLM publishes a notice in the ‘’Federal Register’’. The notice must contain a description of the segregated lands. The segregation period may not exceed two years, unless the BLM determines, in writing, that an extension is necessary. Notice of the extension must be filed in the ‘’Federal Register’’ before the initial two year period has expired. The extension may not exceed two years, and only one extension may be filed.

The practical effect of segregation is to prevent location of mining claims on the proposed site while the BLM is processing the ROW application. Mining claims that are located on proposed solar sites create land use conflicts as mining activities are generally not compatible with the proposed solar project. Before the segregation rule was promulgated, mining claims were being located on proposed solar sites for speculative purposes, forcing the solar developers to pay the mining claimants to release their claims. The current rule allows the BLM to prevent the location of mining claims on the proposed site while they consider utility-scale solar development ROW applications.

Once an ROW application has been approved, the BLM may then exclude all other uses of the site, including mining activities.


3-FD-l.21 to 3-FD-l.22 – Process Application; Was the ROW Approved?

Once the application has been submitted the BLM reviews it for completeness. The BLM also reviews the project proposal for land use conflicts and conformance with the applicable land use plan. The BLM determines a processing category for the application (usually category 6 for utility-scale solar development) and begins the NEPA process. The processing fees are governed by the processing agreement, as discussed in 3-FD-d.14.

ROW applications are generally processed in the order they are received, but a thorough and complete application can move ahead of an incomplete or error ridden application. Row applications for projects sited within variance areas are given a lower priority than those sited within an SEZ. In addition, the BLM may institute competitive bidding procedures if competition exists for the same site, as discussed above.

The BLM is required to conduct a Cadastral Survey of the proposed site under certain circumstances as part of the review process, the cost of which will be included in the processing fee. The BLM is also required to complete reviews, inventories, and reports as part of the NEPA analysis and application review. Consequently, review of utility-scale solar development ROW applications may take two or more years to complete. Once the review process is complete, the developer will be notified in writing of the BLM’s decision.


3-FD-l.23 to 3-FD-l.25 – Send Applicant Written Decision Explaining Denial

If the BLM rejects an application, it will send the applicant a written decision explaining the reasons for the denial. The BLM may deny an application if:

  • The proposed use is inconsistent with the purpose for which BLM manages the public lands described in the application;
  • The proposed use would not be in the public interest;
  • The developer is not qualified to hold a grant;
  • Issuing the grant would be inconsistent with the Acts, laws or regulations;
  • The developer does not have or cannot demonstrate the technical or financial capability to construct the project or operate facilities within the right-of-way; or
  • The developer does not adequately comply with a deficiency notice (see §2804.25(b) of this subpart) or with any BLM requests for additional information needed to process the application


See 43 CFR 2804.26.

With the exception of ROW decisions within SEZs, 43 CFR 2804.26 and 43 CFR 2801.10 allow an applicant to appeal a ROW denial in accordance with the procedures found in 43 CFR 4 et seq.


3-FD-l.26 to 3-FD-l.29 – Send Unsigned Grant Containing Terms, Conditions and Stipulations to Applicant; Sign and Return Grant; Submit Required Payments; Right-of-Way Grant

If the BLM approves the ROW application, it sends the applicant the ROW grant to review and sign. The ROW grant will contain numerous terms, conditions and stipulations that the applicant will be required to agree to and comply with. Some of the important terms and conditions are discussed below.


Term of Authorization

Title V of FLPMA and the BLM regulations limit the term of authorization for a ROW to a reasonable length. Because of the investment required and term requirements in Power Purchase Agreements (PPAs), the BLM has deemed 30 years to be a reasonable length for utility-scale solar ROWs. See the Solar PEIS ROD, Appendix B, Section 2.


Diligent Development

The developer may not begin ground disturbing activities until the BLM issues a Notice to Proceed. The BLM will not authorize more than three phases of development, and the developer must begin the initial phase of development within 12 months of the initial Notice to Proceed, but not later than 24 months after the effective date of the ROW authorization. In addition, the project schedule must comply with the POD. The BLM will issue a Notice to Proceed for each phase of the project. Failure to comply with these due diligence terms may result in suspension or revocation of the ROW.


Performance and Reclamation Bond

43 U.S.C. 1764(i) and 43 CFR 2805.12(g) authorize the BLM to require a bond as part of the ROW grant. The bond is often substantial and will consist of three components:

  1. An environmental and hazardous waste component;
  2. A decommissioning component; and
  3. A restoration and reclamation component


All three components will be part of one bond and may be used to address a single incident. The developer must submit a Reclamation Cost Estimate (RCE) as part of the DSRP (as discussed above) to help the BLM determine the appropriate bond amount.

In addition, the BLM may require a bond for cultural resource identification, protection, and mitigation. The bond would cover costs associated with ethnographic studies, inventory, testing, geomorphological studies, data recovery, compensatory mitigation programs, curation, monitoring, treatment of damaged sites, and the preparation and submission of reports.

For more information, see the Solar PEIS ROD, Appendix B, Section 2.


Mitigation

The programmatic design features that were incorporated into the POD will become part of the terms and conditions section of the ROW. See 3-FD-d.14. The BLM may require additional mitigation measures if necessary. Additional measures may be required by regional mitigation plans in some circumstances.


Rent

The rental schedule for utility-scale solar ROWs consists of two components. The first component is a base rental per acre annual fee based on the value of the land subject to the ROW. The initial base rent is due upon the issuance of the ROW. The second component is a megawatt (MW) capacity fee. The MW capacity fee is charged on an annual basis, starting when the facility beings producing electricity. The MW capacity fee will be implemented over five years after the start of electrical generation to allow for diligent testing and operation, with the fee increasing by 20% each year. In addition, the developer must submit monitoring fees to the BLM. The monitoring fee covers the costs the incurred by the federal in monitoring the construction, operation, maintenance, and termination of the project and protection and rehabilitation of the lands covered by the grant. See 43 CFR 2805.16. For more information regarding rent, including schedules and fee calculations, see the Solar PEIS ROD, Appendix B, Section 2.

Other terms and conditions will be required, many of which will be tailored to the specific project. Failure to comply with any of the terms, conditions or stipulations may result in suspension or cancellation of the ROW. In order to suspend or terminate the ROW, the BLM must first notify the developer and give the developer a reasonable opportunity to correct any non-compliance. See 43 CFR 2807.17; 43 CFR 2807.18

Upon receiving the ROW grant, the developer should review and sign it. The developer must then return the signed grant to the BLM, along with any required initial payments, such as monitoring fees and the initial base rent. Once the BLM receives the signed grant and the initial payments, a BLM officer will sign and return a completed copy of the ROW to the developer.


3-FD-l.30 to 3-FD-l.31 - Have ROW Stipulations Been Met?; Notice to Proceed

All solar ROWS must include a provision that specifies that ground disturbing activities may not begin until the BLM issues a Notice to Proceed (NTP). See 43 CFR 2807.10; Solar PEIS ROD, Appendix B, Section 2. Before issuing an NTP, the BLM confirms that the developer has complied with all of the terms and conditions contained in the ROW. The BLM also verifies that all other necessary permits and authorizations have been obtained from the relevant authorities. If the developer is not compliant, it must come into compliance before an NTP can be issued. An NTP is issued for each phase of development, and compliance must be demonstrated before each NTP is issued. See Solar PEIS ROD, Appendix B, Section 2.




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