U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
 
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UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
Washington, DC 20240
 
December 11, 2013
 
In Reply Refer To:
2800 (301) P
 
EMS TRANSMISSION 12/16/2013
Instruction Memorandum No. 2014-019       
Expires:  09/30/2015                                                                                       
 
To:                  All Field Office Officials
 
From:              Assistant Director, Minerals and Realty Management
 
Subject:          Interim Policy for Solar and Wind Energy Inspection and Enforcement
 
Program Area:  Right-of-Way Program – Solar and Wind Energy.
 
Purpose: This Instruction Memorandum (IM) transmits the inspection and enforcement (I&E) requirements for solar and wind energy development right-of-way (ROW) authorizations. The Bureau of Land Management (BLM) policy is to facilitate environmentally responsible development and operation of solar and wind energy projects on the public lands, consistent with the provisions of Secretarial Order 3285, dated March 11, 2009, as amended.
 
Policy/Action: The BLM will inspect authorized solar and wind energy projects to ensure the ROW holder’s compliance with applicable laws, regulations, terms, conditions, and stipulations of the ROW grant (terms and conditions).  The BLM will internally document the number of inspections made for renewable energy authorizations completed under the program element “NH,” and document the inspection in the Legacy Rehost 2000 (LR2000) land record system.
 
This IM promotes consistency in the BLM’s administration of renewable energy development authorizations on public lands.  It does not apply to projects sited on non-public lands. It is the responsibility of the ROW holder to ensure compliance with requirements outside the BLM’s authority.
 
Monitoring Fees
The BLM will consider the I&E management workload when determining monitoring fees for solar and wind energy ROW authorizations. Monitoring of solar and wind energy ROW authorizations generally exceed 50 work hours; therefore, the BLM will require full cost recovery under a Category 6 monitoring determination. Pursuant to 43 CFR 2805.17(c) for monitoring Category 6, the BLM will periodically estimate the costs of monitoring the use of the public lands and notify the holder of the cost. Estimates must include the BLM’s cost to
administer a contract for monitoring and inspection of the ROW if the BLM selects and manages a third-party contractor.
 
Documentation
To improve the effectiveness of the solar and wind energy I&E program, the BLM will require the preparation of an Environmental and Compliance Monitoring Plan (ECMP) for each approved solar and wind energy development ROW authorization. The ECMP will assist in tracking and documenting the terms and conditions. The ECMP will address the construction, operation and maintenance, and decommissioning phases of the authorization. Attachment 1 provides a sample ECMP template.
 
Roles and Responsibilities
BLM
The BLM Authorized Officer (AO) is responsible for inspecting and enforcing compliance with the terms and conditions of a BLM ROW grant. The BLM AO may delegate inspection and enforcement to other personnel within the agency, such as a BLM Compliance Project Manager. 
 
The BLM may also use third-party contractors to assist with I&E where appropriate. However, it remains the BLM’s responsibility to ensure the environmental compliance of a project and coordinate with other agencies for ROW inspection activities. 
 
Right-of-Way Holder
The ROW holder is responsible for the successful implementation of the terms and conditions. The holder will inform the BLM in writing of terms and conditions that it cannot successfully implement, and provide alternative terms and conditions for agency consideration. The holder will ensure BLM personnel have site access at all times (43 CFR 2805.15) to BLM-managed lands, and, as directed by the BLM AO or delegate, provide access to other Federal, State, and local agencies to the BLM-managed public lands.
 
The ROW holder will designate a representative with authority to respond to the BLM and implement corrective actions identified by the BLM during construction, operations, and decommissioning activities.
 
Third-Party Contractor
The BLM may select a third-party contractor to perform compliance and inspection actions for the BLM to implement the ECMP during construction, operation, and decommissioning of the ROW, using established BLM contracting procedures. If the third-party contractor is not General Services Administration-listed, the BLM and holder must allow sufficient time in the project schedule for the contracting process. The third-party contractor will establish and maintain a compliance monitoring team with adequate experience and technical knowledge to perform the project compliance monitoring. The third-party compliance monitoring team will be responsible for coordination, recordation, and reporting responsibilities as determined by the BLM AO or Compliance Project Manager. The BLM will determine the extent of the contractor’s authority and responsibility and will consider delegating the authority to approve non-substantial deviations (see Construction Deviation section of this IM) and implement temporary suspensions of construction (see Enforcement section of this IM). See section 3.0 of the attached ECMP for examples of a third-party compliance manager’s potential responsibilities.
 
The ROW holder may choose to provide a third-party contractor as the BLM’s third-party contractor. When contracted by the holder, the BLM will enter into an agreement with the third-party contractor and the holder, defining the appropriate reporting relationships and funding mechanism. The agreement will identify the holder as providing third-party contractor funding and the BLM providing contractor reporting and direction. The BLM will request the holder to provide names of prospective third-party contractors for the BLM’s approval. Upon BLM approval, the holder will select a third-party contractor. The BLM will not be a party to any financial arrangement between the holder and the third-party contractor.
 
If the third-party contractor’s inspection performance does not meet BLM requirements, the BLM will require the ROW holder to dismiss and replace the contractor. The holder can request permission from the BLM to dismiss a third-party contractor when the holder is dissatisfied with performance, but the holder must include sufficient supporting rationale in its request. The BLM may reject the holder’s request.
 
Start of Construction
Before construction begins, the ROW holder will schedule and hold one or more pre-construction meetings with the BLM. Attachment 5 illustrates a sample pre-construction meeting agenda. The holder will not initiate any construction or other surface-disturbing activities on the ROW until the holder satisfies all pre-construction meeting requirements and the AO provides written authorization to proceed.  The AO will either issue a Notice to Proceed (NTP) (BLM Form 2800-015) or a written letter of approval to proceed for a ROW grant that does not require the AO to issue a separate NTP consistent with 43 CFR 2807.10. The holder must comply with all terms and conditions, including rental, bonding, and pre-construction training requirements, prior to receiving the BLM’s authorization to initiate construction.
 
Inspections
Compliance monitors will remain on the project site(s) during all phases of the project at schedules approved by the BLM and coordinated with the holder. The number of compliance monitors is dependent on the size and complexity of the project, critical nature of environmental and cultural resources involved, possible multiple locations of disturbance, and phase of the project’s life as well as public concern and involvement. The BLM will determine the number of compliance monitors needed onsite in consultation with the holder and will reevaluate the number required throughout the construction phase and the project’s life. The BLM may adjust the compliance monitor schedule as conditions demand. The BLM may require one or more compliance monitors for general compliance monitoring that is not specifically related to monitoring cultural, biological, or paleontological resources.
 
The BLM Compliance Project Manager will conductinspections during construction and decommissioning of a facility. At a minimum, the BLM will conduct a monthly inspection of the project site during construction activities, including an onsite meeting with the third-party compliance manager and a holder representative(s). The BLM may require more frequent inspections for projects that have:  
a.  Construction challenges;
b.  Potential to impact significant biological and/or cultural resources; or
c.   Substantial compliance concerns raised through ongoing project construction, facility operations, or decommissioning. 
The frequency of inspections may decrease during the operation and maintenance phase of the project or as construction activities subside. At a minimum, the BLM will require an annual administrative review of an operating facility and a more thorough review that includes updated records from the holder and a field inspection performed at least once every 3 years. The project ECMP will document the frequency and scope of the BLM post-construction inspections. If determined appropriate, the AO may allow the ROW holder to self-report the project inspection requirements and provide the report to the BLM annually for review.
 
Enforcement
The BLM may suspend or terminate a ROW grant if the holder does not comply with applicable laws, regulations, terms, conditions, or stipulations of the ROW grant (43 CFR 2807.17(a)). The BLM will provide the holder a reasonable opportunity to correct the noncompliance in accordance with 43 CFR 2807.18. The AO must issue a written decision to suspend or terminate a ROW grant. Such decisions are subject to appeal pursuant to 43 CFR 2801.10.
 
The BLM will suspend construction on a project if an activity deviates from the project’s resource protection requirements or authorized construction plans, and the BLM determines the activity is noncompliant.  Noncompliance with any requirement is grounds for immediate temporary suspension of onsite activities by the holder if the noncompliance constitutes a threat to public health or safety or the environment. The BLM AO may delegate the authority to issue an immediate temporary suspension to the third-party compliance manager. Onsite inspectors and compliance monitors also have the authority to halt specific localized operations to protect resources. The BLM Compliance Project Manager or BLM third-party compliance contractor must notify the BLM AO if the BLM or third-party contractor takes actions to suspend construction activities. The BLM AO will review the suspension and either approve the suspension or rescind its approval. The BLM AO will provide a written suspension order to the holder in a timely manner that explains the reasons for the suspension pursuant to 43 CFR 2807.16(a). The BLM Compliance Project Manager, or delegate, will prepare a report and file the report in the compliance section of the project file within 3 working days of the incident, with a copy sent to the AO.  
 
Construction Deviation
The BLM’s ROW regulations at 43 CFR 2807.11 require contacting the BLM when there is a change affecting the ROW. Changes during construction to the location or use authorized by a ROW grant are construction deviations. Construction deviations, sometimes referred to as variances, occur whenever site-specific circumstances or conditions arise during construction that require changes to an approved ROW grant, plan of development, site plan, mitigation measures, or construction, operation, or termination procedures. The holder must request a construction deviation in writing to the BLM. The BLM AO, or delegate, will determine if the construction deviation is a substantial or non-substantial deviation. In addition and prior to BLM approval of any construction deviation, the BLM must complete the appropriate resource clearances and National Environmental Policy Act (NEPA) documentation, if required. 
 
Substantial deviations are changes to the authorized location or use of a ROW and include construction outside the boundaries of the authorized ROW or adding additional facilities or equipment that is not part of the original ROW authorization. The holder must submit any proposed substantial deviations to the BLM for review and approval. The BLM must approve the holder’s request in writing prior to the holder starting any substantial deviation activity.  Moreover, the holder’s request may result in further NEPA analysis and amendments to the ROW grant pursuant to 43 CFR 2807.20. 
 
The BLM AO, or delegate, must also approve any non-substantial deviation activity in writing prior to the holder initiating the activity. Non-substantial deviations, described below, are construction deviations that do not rise to the level of significant deviations, would not result in an amendment to a ROW grant, and may be delegated to a compliance manager or monitor as approved by the BLM and provided for in section 3 of attachment 1. A non-substantial deviation must meet all of the following criteria:
1.  The area of activity or change lies within the approved ROW area including temporary use areas;
2.  The area of activity/change was previously identified and analyzed in the NEPA document;
3.  The area of activity/change does not result in an increase in disturbed acres; and
4.   The deviation creates equal to or less impact to resource values than the original location/activity (i.e., does not involve higher density species habitat than the planned site). 
Timeframe: This policy is effective upon issuance. The National Renewable Energy Office will review activities performed under this interim policy under the National Renewable Energy Coordination Office’s Oversight and Implementation Plan for solar and wind projects.
 
Budget Impact: The application of this policy will have minimal budget impact. The I&E workload for solar and wind energy ROW authorizations are subject to the monitoring cost recovery provisions of the ROW regulations (43 CFR 2805.16).
 
Background: As part of an overall renewable energy program strategy, the Energy Policy Act of 2005 (Public Law 109-58, August 8, 2005) encourages the development of renewable energy resources on the public lands, including solar and wind energy projects. Secretarial Order 3285A1 established the development of environmentally responsible renewable energy as a priority of the Department of the Interior. This IM helps to ensure the accomplishment of these goals and provides an efficient and effective I&E program for solar and wind energy development ROW authorizations.
 
Manual/Handbook Sections AffectedThe BLM will incorporate this interim policy into Rights-of-Way, MS-2805, during the next revision.
 
Coordination: The National Renewable Energy Coordination Office (WO-301) coordinated preparation of this IM with the Division of Lands, Realty and Cadastral Survey (WO-350).  The BLM state and field Offices and the Solicitor’s Office reviewed and provided input to this policy prior to its finalization.
 
ContactIf you have any questions concerning the content of this IM, please contact me at 202‑208-4201, or your staff may contact Ray Brady, Manager, National Renewable Energy Coordination Office at 202-912-7312 or rbrady@blm.gov, or Jayme Lopez, Program Lead, National Renewable Energy Coordination Office at 202-912-7547 or j06lopez@blm.gov.
 
 
Signed by:                                                       Authenticated by:
Michael Nedd                                                  Robert M. Williams
Assistant Director                                           Division of IRM Governance,WO-860
Minerals and Realty Management
                                                           
 
5 Attachments

 
Last updated: 12-18-2013