The instruction memoranda include new pre-application meeting requirements and screening criteria intended to prioritize applications on disturbed lands and facilitate the rejection of poorly sited applications. The memoranda also include greater emphasis on rejecting applicants that fail to meet the due-diligence requirements of the Federal Land and Policy Management Act of 1976 (FLPMA) and its implementing regulations, and guidance on the appropriate scope of alternatives to be considered during National Environmental Policy Act (NEPA) review of wind and solar applications.
The three instruction memoranda respond to a rash of wind and solar right-of-way applications in 2009 and 2010. They shake up the BLM's standard ‘first come, first serve’ approach by encouraging the weeding out of speculative applications and the prioritization of projects that are most likely to succeed.
The new guidance also seeks to reduce controversy during the NEPA process by defining the scope of appropriate alternatives for wind and solar projects on BLM-administered lands.
Noteworthy elements of each instruction memorandum include the following:
– Pre-Application Screening and Prioritization. All wind and solar development applicants now must attend at least two pre-application meetings with the BLM before a development right-of-way application and its associated plan of development can be submitted (the process is discretionary for wind testing applications, however). This requirement also applies to existing applications (as of Feb. 8) for which NEPA review has not yet begun.
The first meeting will assess the proposed project's land use, siting and environmental constraints. The second meeting will consist of an early ‘all agencies’ consultation with local, state, federal and tribal agencies. The BLM will use the meetings to assess whether it should recommend that an application not be filed or recommend that the applicant modify the project proposal.
This memorandum sets forth a series of low-, medium- and high-potential conflict screening criteria to assist the field staff's assessment of new applications. The guidance specifically states that the BLM will use the screening process to divert projects from high-conflict areas to low-conflict areas (essentially, previously disturbed lands close to transmission) and may reject applications that fail to ‘avoid areas where development would cause significant impacts to sensitive resources and values that are the basis for special designations or protections.’
The BLM will also use the screening criteria to prioritize the processing of accepted applications. Project applicants will need to take the screening process seriously because the BLM will apply it to determine whether to move forward with or reject an application.
The process is also significant because it will generate the administrative record of any challenge to the BLM's decision to reject an application. Finally, the same process will influence a project's relative priority status once the BLM accepts an application and will ultimately inform the selection of project alternatives under NEPA.
– Due-Diligence. The guidance reiterates the BLM's existing due-diligence requirements under FLPMA by emphasizing that field offices may reject applications in which a proponent has failed to demonstrate sufficient experience and/or capitalization to undertake the project or otherwise fails to take adequate steps to complete an acceptable plan of development.
– NEPA Purpose and Need Statements and Alternatives. A new instruction memorandum attempts to find the middle ground between positions frequently held by project applicants and opponents over the choice of project alternatives. The memorandum emphasizes that the purpose and need statement of a NEPA document must comprehend the BLM's broader obligations under FLPMA and applicable BLM renewable energy policies rather than just the project goals of the applicant. The net result is that not all reasonable alternatives considered in the NEPA document (and ultimately selected for approval) may meet the developer's goals. The memorandum contains a model purpose and need statement to this effect.
In order to balance the equation, the memorandum also prescribes limits on the universe of potentially reasonable alternatives by specifying that ‘other BLM lands’ alternatives should be limited to feasible sites that are not yet subject to diligently pursued solar or wind applications, and that project alternatives based on non-federal land sites, different technologies and distributed generation should not be analyzed as full alternatives because they fail to respond to the BLM's purpose and need under NEPA.
While the new NEPA and due-diligence guidance essentially emphasize existing NEPA and BLM policies, project applicants should pay close attention to the new pre-application screening requirements. Even though the new screening process mirrors industry best practices to some degree, it also has substantial repercussions for developers because it can form the basis of a BLM decision to reject an application, as well as the administrative record of any challenge to such a decision.
The same process will also influence a project's relative priority status once the BLM accepts an application and will ultimately inform the selection of project alternatives under NEPA.
Andrew C. Bell is a land use and natural resources attorney who advises developers of utility-scale wind and solar projects. He can be reached at (415) 666-2296.