September 2015 Bar Bulletin
BLM Proposes Changes to Rules for Wind and Solar Permitting
By Andrew Bell
The U.S. Bureau of Land Management is about to change the way it permits utility-scale renewable energy projects for the next 20 years.
In September 2014, the U.S. Department of the Interior's (DOI) Bureau of Land Management (BLM) published a proposed rule to amend its regulations governing solar and wind rights-of-way.1 The proposed rule, which is expected to become final later this year, would establish a framework for the designation of preferred "designated leasing areas" (DLAs) and competitive leasing procedures inside and outside DLAs.
The BLM would also codify wind and solar bonding, rental, megawatt capacity fee, and pre-application policies established through a series of instruction memoranda issued in February 2011,2 with each policy containing more favorable terms for lands located within a DLA. A final rule is expected later this year.
While well intended, these wholesale changes are unlikely to simplify an already cumbersome BLM permitting process. After summarizing key aspects of the proposed rule, the following examines how they could be improved.
Learning the Rules
The proposed rule would build on the solar energy zone (SEZ) concept of the BLM's 2012 Solar Energy Plan3 by creating a new DLA land use plan designation for areas identified as preferred locations for solar or wind energy development. DLAs would be created through the BLM's land use planning process and attendant National Environmental Policy Act (NEPA) review.4
All wind and solar rights-of-way issued within a DLA would be termed "leases" rather than "grants."5 The BLM would identify new DLAs based on nominations and expressions of interest, on its own initiative, or both.6
The BLM's existing regulations allow competitive leasing only in instances where it receives two or more competing right-of-way applications over the same lands.7 The proposed rule would expand this mandate by allowing the BLM to include land in a competitive offer on its own initiative, even in the absence of competition, both inside and outside DLAs.8 Competitive leasing would be mandatory within DLAs and left to BLM discretion outside DLAs.9
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