U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, DC 20240
February 7, 2011
In Reply Refer To:
1610 (210) P
EMS TRANSMISSION 02/08/2011
Instruction Memorandum No. 2011-059
To: All Field Office Officials
Subject: National Environmental Policy Act Compliance for Utility-Scale Renewable
Energy Right-of-Way Authorizations
Program Area: National Environmental Policy Act, Lands and Realty.
Purpose: The purpose of this Instruction Memorandum (IM) is to reiterate and clarify existing Bureau of Land Management (BLM) National Environmental Policy Act (NEPA) policy to assist offices that are analyzing externally-generated, utility-scale renewable energy right-of-way applications. It includes examples and guidance applicable to renewable energy right-of-way applications that supplement information in the BLM’s NEPA Handbook (H-1790-1). Utility-scale renewable energy projects are distinct from many other types of land and realty actions due to their size and potential for significant resource conflicts, as well as the priority that has been placed on them by the Department of the Interior (DOI).
New Energy Frontier
The DOI and the BLM are working with local communities, Tribes, state regulators, industry, and other Federal agencies in building a clean energy future by providing sites for environmentally sound development of renewable energy on public lands. The Energy Policy Act of 2005 (Title II, Section 211) establishes a goal for the Secretary of the Interior to approve 10,000 megawatts (MWs) of electricity from non-hydropower renewable energy projects located on public lands. Further, Secretarial Order 3285A1 dated March 11, 2009, as amended February 22, 2010, establishes the development of environmentally responsible renewable energy as a priority for the DOI.
The BLM relies on industry to identify renewable energy technologies and general project locations and configurations that are technically and economically viable given current market
conditions, renewable portfolio standards, technological advancements, and transmission access. Through pre-application activities, and as the NEPA analysis for a proposed project proceeds, the BLM works with applicants, federal land and resource management agencies, and stakeholders in identifying appropriate project locations that conform with federal law, regulation, and policy, and with existing land use plans, minimizing the need for land use plan amendment.
Disclosing Pre-application Activities in the NEPA Process
As described in IM No. 2011-061, pre-application activities are an essential part of the BLM right-of-way application and NEPA process for utility-scale renewable energy projects. It is important that offices incorporate pre-application activities in their NEPA documents and discuss this information in scoping meetings and other public meetings that are part of the NEPA process. Pre-application activities can be incorporated into a NEPA document in a variety of ways. For example, this information can be included as part of the background information for the proposed action. This information should also be reflected in the alternatives section of the NEPA document, either as part of the alternatives considered but eliminated from further analysis, or as an alternative that is given detailed consideration in the NEPA document (see Alternatives section below). It is also important to identify in the NEPA document any existing decisions that were relied upon to guide pre-application activities.
Purpose and Need
The purpose and need statement as a whole describes the problem or opportunity to which the BLM is responding and what the BLM hopes to accomplish by the action. The purpose and need statement in a NEPA document for a renewable energy right-of-way application must describe the BLM’s purpose and need for action, not the applicant’s interests and objectives (BLM NEPA Handbook Section 6.2). The applicant’s interests and objectives, including any constraints or flexibility with respect to their proposal, help to inform the BLM’s decision and cannot be ignored in the NEPA process. The applicant’s interest and objectives should be described in the NEPA document (e.g., in the background section or in the project description). This information will help determine which alternatives are analyzed in detail through the NEPA process and may also provide a basis for eliminating some alternatives from detailed analysis.
For most renewable energy projects the BLM’s purpose and need for action will arise from the BLM’s responsibility under the Federal Land Policy and Management Act (FLPMA) to respond to a right-of way application requesting authorized use of public lands for a specific type of renewable energy development. The purpose and need statement should also describe the BLM’s authorities and management objectives with respect to renewable energy and public lands (see example below). Additionally, offices should include a description of the BLM’s decision(s) to be made as part of the purpose and need statement to help establish the scope of the NEPA analysis (BLM NEPA Handbook Section 6.2). In responding to a right-of-way application the BLM may decide to deny the proposed right-of-way, grant the right-of way, or grant the right-of-way with modifications. In accordance with the right-of-way regulations, modifications may include modifying the proposed use or changing the route or location of the proposed facilities (43 CFR 2805.10(a)(1)).
The following purpose and need statement is provided as an example. Changes in the statement as written are expected based on project-specific circumstances including appropriate reference to land use plans or other management objectives or policies for an area (e.g., Secretarial Order 3310, dated December 22, 2010, Protecting Wilderness Characteristics on Lands Managed by the BLM). In some situations, distinguishing the “purpose” from the “need” as two separate aspects of the purpose and need statement may provide an opportunity to better clarify why the BLM is proposing an action (BLM NEPA Handbook Section 6.2).
In accordance with NEPA, the BLM must explore alternative means of meeting the purpose and need for the action. For a renewable energy right-of-way application, alternatives will include denying the application (the No Action Alternative) and granting the application as submitted by the applicant following the pre-application process (the Proposed Action). The BLM must consider other reasonable alternatives through the NEPA process, including modifications to the right-of-way application as submitted, that meet the purpose and need for the action and provide a clear basis for choice among options (40 CFR 1502.14). Alternatives should be developed to address unresolved resource conflicts, including those under the stewardship of other Federal agencies. “Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant” (Question 2a, Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, March 23, 1981). The nature and number of alternatives analyzed in detail in the NEPA process will vary by project.
For renewable energy rights-of-way, there are many different types of alternatives that are considered by the BLM and the applicant during pre-application activities and that are suggested to the BLM by external parties through scoping and comments on the draft NEPA document. These alternatives typically include: modified site configurations (e.g., varied turbine or solar panel layouts, or different configurations for support and access facilities), modifications to the proposed technology (e.g., wet vs. dry cooling), different technologies (e.g., photovoltaic vs. concentrated solar power), other BLM land locations, non-Federal land locations, reduced project footprint/MW, and phased construction.
The BLM must develop a well-supported rationale when deciding if such alternatives are reasonable and whether to analyze them or eliminate them from detailed analysis (40 CFR 1502.14(a)). The BLM may eliminate an alternative from detailed analysis for a variety of reasons, including, for example, if the alternative does not respond to the BLM’s purpose and need, if the alternative is not technically or economically feasible (as informed by the applicant’s interests and objectives), or if the alternative is inconsistent with the existing management prescriptions for the area as set forth in the governing land use plan (BLM NEPA Handbook Section 6.6.3). There may be multiple reasons why an alternative is eliminated from detailed analysis. All reasons that support the BLM’s decision to eliminate an alternative from detailed analysis should be disclosed in the NEPA document. The determination of whether and how a given alternative is carried forward for analysis in the NEPA process will vary by project.
The BLM may elect to analyze in detail an alternative that might otherwise be eliminated to assist in decision-making, including potential amendments to an existing land use plan (BLM NEPA Handbook Section 6.6.1). For example, in limited circumstances, the BLM may choose to evaluate a non-Federal land alternative or an alternative technology that is raised through scoping to the extent necessary to support a decision regarding the pending application. In such cases, the resulting analysis may be restricted by the amount of information available for an alternative technology and/or location (e.g., no plan of development will likely exist). The BLM should make clear in the NEPA document that such information is lacking (40 CFR 1502.22; see BLM NEPA Handbook Section 6.7.2 for additional information).
The BLM must independently evaluate the information submitted by an applicant regarding the proposed action and potential alternatives (40 CFR 1506.5(a)). The BLM should seek the assistance of other Federal, State and/or local agencies in evaluating such information for renewable energy development. For example, the Department of Energy has agreed to provide the BLM assistance in assessing the technical and/or economic feasibility of project proposals and potential alternatives, as well as confirm information provided by wind and solar energy developers (contact BLM Washington Office WO-350 for more information).
Impact Analysis for Nationally Designated Systems or Units
NEPA documents for wind and solar energy rights-of-way must present an integrated analysis of whether and how the direct, indirect, and cumulative impacts of a proposed action and alternatives may affect nationally designated systems or units. These include, but are not limited to, units of the National Park Service (NPS) and other areas under NPS administration (e.g., National Historic Trails); Fish and Wildlife Service Refuges; units of the U.S. Forest Service; and designated Wilderness and other units of the National Landscape Conservation System. As appropriate, this analysis should be presented in the NEPA document so that it is easily identifiable to the public (e.g., as a summary section for each alternative). To avoid duplication, cross-referencing to applicable impact sections of the NEPA document is encouraged.
Timeframe: Effective upon issuance.
Budget Impact: None.
Background: In reviews of Environmental Impact Statements (EIS) prepared for recent renewable energy projects, specifically EISs for solar energy right-of way applications, concerns have been raised regarding the project purpose and need statements and the range of alternatives, especially with regard to alternative site locations. In order to assist field offices with the NEPA compliance process, it was determined that a reiteration and clarification of existing NEPA guidance, with a focus on renewable energy lands and realty actions, was necessary.
Manual/Handbook Sections Affected: This IM does not affect any manual/handbook sections; it is intended for use in conjunction with the BLM NEPA Handbook (H-1790-1). References to specific sections of the Handbook have been included in the IM.
Coordination: This policy was coordinated with the Office of the Solicitor; the Renewable Resources and Planning, and Minerals and Realty Management directorates; the National Park Service; the Fish and Wildlife Service; and the Department of the Interior.
Contact: If there are any questions concerning this IM, please contact Ed Roberson, Assistant Director, Renewable Resources and Planning, 202-208-4896; Ray Brady, Energy Policy Team, 202-912-7312 or firstname.lastname@example.org; or Shannon Stewart, Senior Planning and Environmental Analyst, Washington Office Division of Decision Support, Planning and NEPA (WO-210), at 202-912-7219, or email@example.com.
Signed by: Authenticated by:
Robert V. Abbey Robert M. Williams
Director Division of IRM Governance,WO-560