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UNITED STATES
DEPARTMENT OF THE INTERIOR |
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BUREAU OF LAND
MANAGEMENT |
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WASHINGTON, D.C.
20240 |
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April 4,
2007 |
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In Reply Refer
To: |
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2800 (350)
P |
EMS TRANSMISSION
04/11/2007
Instruction Memorandum No.
2007-097
Expires: 09/30/2009
To:
All Field Officials
From:
Director
Subject:
Solar Energy Development Policy
Program Area: Rights-of-Way Management, Solar Energy Facilities Management, Solar
Energy
Purpose: This Instruction Memorandum (IM)
establishes policy for the processing of right-of-way applications for solar
energy development projects on public lands administered by the Bureau of Land
Management (BLM) and evaluating the feasibility of installing solar energy
systems on BLM administrative facilities and projects.
Policy/Action:
This IM replaces the Solar Energy Development Policy (IM No. 2005-006),
issued October 20, 2004. The BLM’s
general policy is to facilitate environmentally responsible commercial
development of solar energy projects on public lands and to use solar energy
systems on BLM facilities where feasible.
Applications for commercial solar energy facilities will be processed as
right-of-way authorizations under Title V of the Federal Land Policy and
Management Act (FLPMA) and Title 43, Part 2804 of the Code of Federal Regulations
(CFR). Commercial
concentrating solar power (CSP) or photovoltaic
(PV) electric generating facilities must comply with the BLM’s planning,
environmental and right-of-way application requirements, as do other similar
commercial uses.
The BLM will evaluate the feasibility of
installing PV systems on administrative facilities and on range improvement,
resource monitoring, public safety, and recreation projects. Project planning and design should
incorporate an appropriate analysis to determine the feasibility, cost and
benefits of using PV systems.
In
June 2006, an Energy
Savings Performance Contract was awarded to Johnson Controls, Inc. for the
installation of energy efficiency technologies into BLM facilities. Phase II of the contract, expected to be
awarded in May 2007, will include the installation of solar and other renewable
energy technologies. Trent Duncan, BLM Utah State
Office, at 801-539-4090 or Pat Fleming, BLM
National Science and Technology Center, at 303-987-6856 can provide additional
information on installing PV systems on BLM administrative facilities or for
other project uses.
Inventory and
Planning
The Department of
Energy’s National Renewable Energy Laboratory (NREL) has prepared solar
insolation potential maps at the request of the BLM for Arizona, California,
Nevada, and New Mexico. The maps
identify areas with one percent or less slope
with high levels of solar insolation that have potential for commercial solar
energy development. Solar maps from
NREL are available at http://www.nrel.gov/csp/maps.html.
New or updated BLM land use plans are
required to consider NREL maps showing areas having commercial solar energy
development potential. The land use
plans or revisions should address potential impacts of solar energy development
and related environment and local community issues. The land use plans should sufficiently
analyze and consider the potential for solar energy development and the local
environmental or community issues related to making lands available (or not
available) for commercial solar energy development. When necessary, the land use plan
amendment and the environmental analysis for the solar energy development
proposal can be prepared and processed concurrently. This policy does not require
updates
for recently completed plans
to include an analysis of solar energy development.
Right-of-Way Applications
Applications for commercial solar energy
facilities, both PV and CSP, will be processed as right-of-way authorizations
under Title V of the FLPMA and Title 43, Part 2804 of the CFR. Applications submitted to the BLM for
commercial solar energy development projects will use Form SF-299, Application
for Transportation and Utility Systems and Facilities on Federal Land,
consistent with the requirements of 43 CFR 2804. No separate authorization is necessary if
the installation of a PV system is part of another authorized facility or
use. As an example, oil and gas
operators may install PV facilities for operating metering equipment and
lighting systems on their lease area as part of an approved oil and gas lease
operation. In addition, oil and gas
pipeline right-of-way authorizations would allow for the use of PV facilities at
pump station locations. Those are
valid uses that the BLM can encourage and allow.
Right-of-way applications for solar
energy development projects will be identified as a high priority Field Office
workload and will be processed in a timely manner. This priority is consistent with the
President’s National Energy Policy of 2001 and the Energy Policy Act of
2005. Adequate resources should be
provided to review and process the application. The applicant must submit a complete and
acceptable application and provide a cost recovery payment before the BLM will
initiate processing of a right-of-way application. It is anticipated that most right-of-way
applications for solar energy development will be Category 6, full cost recovery applications. The BLM will apply sound
business practices in expediting the application process. For further
information regarding the BLM ROW application process, please refer to the
following BLM web site: http://www.blm.gov/wo/st/en/prog/energy/cost_recovery_regulations.html.
The BLM authorized
officer should schedule pre-application meetings with applicants (43 CFR 2804.10). This facilitates preparation and
processing of applications that identifies potential issues and land use
conflicts impacting the authorized officer’s decision to grant or not grant the
right-of-way authorization. The
pre-application process will identify any environmental or cultural resource
studies that may be needed, assess public interest and concerns, identify other
authorized uses within or near the area, allow consideration of potential
alternative site locations, and outline arrangements for paying the costs
associated with processing a right-of-way grant.
Early public
notification and involvement of local communities and other interests is also
important in increasing public acceptance and avoiding potential conflicts,
especially in areas where other uses exist on the public lands. The application process is
pre-decisional and may or
may not result in the BLM granting a right-of-way
authorization.
A BLM State or Field Office right-of-way
project manager will be assigned to process the application; ensure appropriate cost
recovery; and monitor construction and use of the
land for the authorized purpose. As
an option, the BLM State Director may request assistance of a National
Right-of-Way Project Manager from the BLM Washington Office (WO-350).
Solar energy right-of-way applications
and authorizations are subject to appropriate cost recovery
and rental payments required
by 43 CFR 2804.14, 43 CFR 2805.16, and 43 CFR
2806.10, and the bonding
requirements of 43 CFR 2805.12(g).
A right-of-way grant (Form 2800-14) will
be used to authorize all facilities held by the holder of the grant on the
public lands related to a commercial solar energy development project. This authorization will include the
solar collectors, tower, turbine generator, fossil fired generator for hybrid
systems, thermal storage, access roads, electrical and transmission facilities,
and other testing
and support
facilities. The lands involved in the right-of-way
grant will be defined by aliquot legal land descriptions and be configured to
minimize the amount of land involved.
The right-of-way authorization will
contain appropriate stipulations relating to all aspects of project development
including, but not limited to, road construction and maintenance, vegetation
removal, natural, cultural and biological resources mitigation and monitoring,
and site reclamation. In addition,
an approved Plan of Development (POD) for construction and operation of the
solar facility must be completed prior to beginning construction. When possible, the right-of-way
authorization and POD can be processed simultaneously.
The right-of-way
holder should be encouraged, through terms and conditions of the right-of-way
authorization, to work with the BLM to increase public acceptance and awareness
of the benefits of solar energy development by providing information and public
viewing areas at safe locations near the development. The BLM and right-of-way holder can
provide a positive message on the responsible use of renewable resources and the
multiple resource use on public lands.
A bond will be
required for solar energy development right-of-way grants to ensure compliance with the terms and conditions
of the authorization and the requirements of the regulations, including reclamation. The reclamation provisions within the
POD should include not only removal of solar collectors and other
structures, but also the reclamation of access roads and disturbed
areas. The amount of the
bond will consider potential reclamation and administrative costs to the
BLM.
The term length of the authorization is
not limited by regulation; however, it should recognize the overall costs and
useful life of solar energy facilities (43 CFR 2805.10(a)(3)).
The term of the solar
energy authorization for a commercial facility should not exceed the design life
of the project, typically 30 years.
The authorization may
be renewed consistent with the provisions of the regulations (43 CFR
2807.22(a)). Other compatible uses may be authorized,
but are unlikely due to the intensive use of the site for PV or CSP facility
equipment.
The right-of-way grant may be assigned
consistent with the provisions of the regulations (43 CFR 2807.21(b)).
However, all assignments shall be
approved by the BLM authorized officer and the qualifications of all assignees
must comply with 43 CFR 2803.10 and the Due Diligence section of this IM and the
requirements of the regulations (43 CFR 2807.21(c)(1) and 43 CFR 2807.21(d)). The assignment shall not interfere with
the BLM’s enforcement of the terms and conditions of the authorization or
management of the associated public lands.
All final decisions issued by the
authorized officer in connection to the authorization of solar energy projects
can be appealed under 43 CFR part 4 and 43 CFR 2801.10. It should also be noted that right-of-way
grants are issued as full force and effect decisions (43 CFR 2801.10(b)) and will remain effective during any
appeal period.
Rental
All solar energy right-of-way
authorizations are subject to rent in accordance with this IM, unless they are
specifically exempt from rent by statute or regulation. Some holders or facilities may be exempt
from rent pursuant to the Rural Electrification Act of 1936, as amended (43 CFR
2806.14(d)).
The holder of a right-of-way
authorization shall pay an annual rent established by the BLM using real estate
appraisals and reviews procured from the Department of the Interior, Appraisal
Services Directorate. The rents
paid will be in conformance with 43 CFR 2806.10(a).
The appraisal should
consider the value of the rights to be conveyed and the lease of comparable
lands in an early or similar stage of potential development, e.g., commercial
land or industrial land, as of the date of the appraisal.
The procured appraisal and review report will be prepared on a
site-specific basis and reflect market conditions for setting rental
payments. Since the rental payment reflects the full
use of the public land for solar facilities, similar to a lease for industrial
purposes, there are no additional royalty payments for electric
generation.
The appraisal assignment to estimate
annual rental should also include a request to identify an appropriate rental
index for updating the rental payment.
The justification for the index should reflect normal market conditions
for updating rental payments on similarly used land.
The rental payment will be phased in over
a 3-year period to permit additional data collection that may be required after
the approval of the grant, preparation and approval of a POD, and construction
of the facility. The rent for the
first year will be 25 percent of the BLM approved rent, 50 percent the second
year, and 100 percent the third year.
Competitive
Interest
Right-of-way applications for solar
energy development will generally be accepted and processed on a first-come,
first-serve basis. The right-of-way
regulations (43 CFR 2804.23(c)) provide authority for offering public
lands under competitive bidding procedures for solar energy right-of-way
authorizations. The BLM will
initiate a competitive process if a land use planning decision has specifically
identified an area for competitive leasing. The BLM may also consider other public
interest and technical factors in determining whether to offer lands for
competitive leasing. Competitive
bidding will follow the procedures required by 43 CFR 2804.23(c).
Due Diligence
The BLM will
discourage applicants from holding right-of-way authorizations for purposes of
speculating, controlling, or hindering development of solar energy on public
lands. Speculative interest can be mitigated
by
ensuring the applicant
meets qualification requirements of the
regulations (43 CFR 2803.10(a-c)), and requiring certain due diligence
provisions in the right-of-way authorization for solar energy
development.
The regulations clearly provide authority
to require that the application include information on the applicant’s technical
and
financial
capability to construct,
operate, maintain and terminate the solar energy facilities (43 CFR
2803.10(b)). This technical capability can be
demonstrated by obtaining the
funding, designing, constructing or successfully operating an energy generating
project. Actual ownership,
development, or successful management of similar-sized electric energy-related
facilities within the last 5 years by the applicant would generally constitute
evidence of financial capability. The regulations provide the authority to
deny the application if the applicant cannot demonstrate adequate technical
ability to construct, operate, and maintain the solar energy facilities
(43 CFR 2804.26(a)(5)). The BLM may also deny an application if
the applicant does not provide, in a timely manner, additional information
requested by BLM to process an application or the cost recovery funds required
by 43 CFR 2804.14.
In addition, the solar energy development
right-of-way grant shall include a due diligence requirement for installation of
facilities consistent with an approved POD. If construction of solar energy
facilities has not commenced within 3 years after the effective date of the
grant, the right-of-way holder shall provide the BLM good cause as to the nature
of any delay, evidence of progress toward beginning construction, and the
anticipated date of start-up operations.
Failure of the holder to comply with the due diligence provisions of the
solar energy development right-of-way grant provides the authorized officer the
authority to terminate the authorization (43 CFR 2807.17).
Environmental Review
The scope of the environmental analysis
required by the National Environmental Policy Act (NEPA) for a solar energy
development project should address all aspects of the solar project, including
direct, indirect, and cumulative effects of the proposed action.
The scope of the NEPA analysis and the
compliance requirements with the Endangered Species Act, the Migratory Bird
Treaty Act, the National Historic Preservation Act, and other laws for a solar
energy development right-of-way application should address the installation and
maintenance of solar collectors, water for steam generation and cooling
purposes, oil or gas used by backup generators, thermal or electrical storage,
turbines or engines, access roads and electrical inverters and transmission
facilities. The scope and level of
site clearance should include the areas of proposed surface disturbance and
areas potentially affected by the project.
The level of NEPA analysis will be
determined by project scoping and the anticipated potential impacts on the
environment. The level of analysis
will reflect the amount of land needed for the solar energy collection and
associated support facilities, the amount of surface to be disturbed, water
requirements, and potential impacts on wildlife and other resources. It may be possible to combine the
required environmental review process for a solar energy development project
with other required State or local environmental requirements. This would streamline the process and be
consistent with Departmental policy on intergovernmental
cooperation.
LR 2000 Data
Entry
Commodity code 975 will be used to identify solar
energy applications and authorizations in LR 2000, the BLM case
recordation system. In addition, the data entry will also
identify under the comment section whether the authorization is for a PV or CSP
facility. This will allow the BLM
to track and report solar energy activities on public land within LR 2000.
Timeframe:
This policy is effective immediately.
Background: As part of an
overall strategy to develop a diverse portfolio of domestic energy supplies for
our future, the National Energy Policy of 2001 and the Energy Policy Act of 2005
(Public Law 109-58, August 8, 2005) encourage the development of renewable
energy resources, which
includes
solar
energy. Section 211 of the Energy
Policy Act of 2005 encourages the approval of at least 10,000 megawatts (MW) of
non-hydropower renewable energy projects on the public lands within the next 10
years.
Solar energy has significant potential in
the western United States for converting the sun’s light into electricity using
technology that is rapidly improving.
Solar energy currently accounts for less than one percent of total U.S.
electricity supply. As the cost of
producing solar energy declines, there will be a greater interest in locating
large solar power systems on public lands.
Please refer to the
attachment for additional information regarding PV and CSP solar
systems.
Budget Impact:
The application of this policy will have a minimal budget impact. Any land use planning associated with
this policy will be part of existing planning efforts. Land use plans will
take into account the solar mapping data described under the Inventory and
Planning section of this IM.
It is assumed that
any solar energy commercial development will probably meet the criteria for full
cost recovery. In addition, the BLM
post authorization monitoring activities are subject to the cost recovery
provisions of the regulations.
These procedures will minimize any unnecessary budget and workload
impacts.
Manual/Handbook Sections Affected: Manual 2801, Right-of-Way Management and
Handbook H-2801-1. Land Use Planning
Handbook H-1601-1.
Coordination: The Washington Office Planning, Assessment
and Community Support Division (WO-210), the Property, Acquisition and
Headquarters Services Division (WO-850), and the BLM State Offices were
contacted to provide input on this policy prior to finalization.
Contact: Please direct
any questions concerning the content of this IM to the Washington Office
Division of Lands, Realty and Cadastral Survey, attention: Rick Stamm, at 202- 452-5185; or rick_stamm@blm.gov.
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Signed by: |
Authenticated
by: |
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James M.
Hughes |
Robert M.
Williams |
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Acting,
Director |
Division of IRM
Governance,WO-560 |
1 Attachment