Federal Solar Land Access(3-FD)
Siting a solar utility project on federal land requires permission from the managing agency. In most cases, the managing agency will be either the BLM or USFS. The Federal Land Policy and Management Act of 1976 (FLPMA) authorizes both the BLM and the USFS to grant rights-of-way for the generation, transmission and distribution of electric energy. A right-of-way (ROW) can be any legal instrument that authorizes a holder to use and/or occupy federal land under a grant. Both the BLM and the USFS have general regulations that govern the issuance of a right-of-way. BLM regulations governing rights-of-way can be found at 43 CFR 2800 et seq. and USFS regulations governing special use authorizations can be found at 36 CFR 251.50 – 251.65.
In addition, both agencies have promulgated specific procedures that relate specifically to solar development. For example, the BLM rental schedule for utility-scale solar ROWs consists of two components. The first component is an annual, per acre base rental fee. The fee is 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 begins producing electricity. The MW capacity fee is 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.
Other agencies may also grant permission to use their lands for various purposes, including utility-scale solar project and transmission lines, including:
- The Bureau of Reclamation (BOR), which may grant ROWs under 43 U.S.C. 387, as implemented by regulations at 43 CFR 429 et seq.
- The National Park Service (NRPS), which may grants ROWs under 16 U.S.C. 5 or 16 U.C.S. 79 as implemented by regulations at 36 CFR 14.1 et seq.
- The Department of Defense (DOD), which may grant ROWs under 43 USC 961. The DOD may also grant Enhanced Use Leases (EULs) on non-excess military land.
- The Fish and Wildlife Service (FWS), which may grant ROWs under the National Wildlife Refuge System Administration Act as implemented by regulations at 50 CFR 29.21 and 29.22.
- The Federal Highway Administration (FHWA), which may grant permission to site transmission lines within federal aid highway ROWs or direct federal highway ROWs under 23 U.S.C. 109(l), as implemented by regulations at 23 CFR 645.201 et seq.
- The Bureau of Indian Affairs (BIA) may grant ROWs across tribal lands under certain circumstances. Tribes and individual Indian land owners also have the power to grant ROWs across their land with BIA approval under certain circumstances.
Determine Which Federal Permits Apply
Use this overview flowchart and following steps to learn which federal and state permits apply to your projects.
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