BLM Solar Right-of-Way Application Process (Non-Solar Programmatic Environmental Impact Statement Areas) (3-FD-j)
This section delineates the BLM ROW process for solar projects that are not within a SPEIS affected area and are not "pending". For more information regarding “pending” applications, see BLM Right-of-Way Application Process Overview:
BLM Solar Right-of-Way Application Process (Non-Solar Programmatic Environmental Impact Statement Areas) Process
3-FD-j.1 – Contact BLM to Initiate Process
The first step in the ROW application process is to contact the BLM office with jurisdiction over the desired site is. The required pre-application meetings should be scheduled during this initial contact. In addition, the developer can obtain general information regarding the ROW process at this time.
3-FD-j.2 to 3-FD-j.3 – Does Competition Exist for the Right-of-Way System?
ROW applications are generally processed on a first come, first serve basis. However, 43 CFR 2804.23 authorizes the BLM to determine if competition exists for a particular ROW site, and if so, to establish competitive bidding procedures. The BLM must provide notice and a description of the bidding procedures in both a local newspaper and the Federal Register.
3-FD-j.4 to 3-FD-j.6 – Conduct Pre-Application Meetings; Site Evaluation; Establish Early Coordination with Land Managers and Stakeholders
43 CFR 2804.10 encourages developers to schedule a pre-application meeting with the BLM before submitting the SF 299 ROW application. The general purpose of the pre-application meetings, as outlined by Instruction Memorandum No. 2011-061, is to:
- Identify potential environmental and siting constraints;
- Determine whether lands are available for proposed right-of-way uses;
- Discuss potential alternative site locations;
- Discuss timeframes for processing proposed applications;
- Inform applicants of financial obligations in processing an application; and
- Facilitate coordination with federal, state, tribal and local government agencies
The BLM has posted a pre-application checklist that describes the issues to be discussed at the pre-application meetings. It should be noted, however, that the checklist is a general description of a generic pre-application ROW meeting. The issues discussed at the pre-application meetings will be tailored to utility-scale solar development at the proposed site.
Instruction Memorandum No. 2011-061 applies specifically to the solar and wind development pre-application process and requires two pre-application meetings. The purpose of the first application meeting is for the developer to:
- Provide the BLM with general information regarding the proposal;
- Determine whether the proposed site is available for utility-scale solar development;
- Inform the developer of potential siting and environmental constraints;
- Facilitate a discussion regarding the ROW application process; and
- Determine whether alternate sites are available
In addition, the developer and the BLM will discuss a timeframe for the ROW application process, as well as any requirements the developer will have to satisfy in addition to completion of the SF 299 application. Many of the requirements discussed in the first pre-application meeting are outlined in the site evaluation section of this roadmap. See See Site Evaluation Process: 10.
The purpose of the second pre-application meeting is to “initiate and ensure early coordination with federal, state, tribal, and local government agencies.” See Instruction Memorandum No. 2011-061. Early coordination is required by 43 CFR 2804.10(b). The BLM will help the developer coordinate with other stake holders (including other federal agencies, state agencies, tribal governments, and local governments) in order to schedule the meeting. The second meeting allows the other stakeholders to voice their concerns, make recommendations, and discuss potential siting and environmental constraints. The BLM will not accept a solar ROW application until the developer completes both the first and second pre-application meetings.
Upon completion of the pre-application meetings, the BLM will screen the proposed project to determine the priority given to the application. 43 CFR 2804.25 defines processing categories for ROW applications. Utility-scale solar development will almost always fall into category 6, which requires over 60 days of processing time. The BLM has discretion to prioritize category 6 applications. For utility-scale solar development, the BLM will use screening criteria to determine whether the proposed project has a low, medium or high potential for conflict with culturally and environmentally sensitive resources. The criteria used by the BLM can be found in Instruction Memorandum No. 2011-061. Low conflict projects will be processed faster than high conflict projects. The purpose of the screening is to redirect developers towards environmentally and culturally compatible sites. In addition, the BLM may reject applications outright under certain circumstances, for example when the proposed site is within an ROW exclusion area.
3-FD-j.7 – Application for Transportation and Utility Systems with Facilities on Federal Lands (Form SF299); Plan of Development (POD)
After the pre-application process has been completed, the developer should complete SF-299, or the Application for Transportation and Utility Systems with Facilities on Federal Lands. The application form is not long, and most of the required items are easily completed, with specific instructions included in the form itself. However, there are a number of critical items that require greater amounts of work and attention, the most important of which is the Plan of Development (POD).
Plan of Development
43 CFR 2804.25(b) authorizes the BLM to require information from the developer in addition to the SF299, including a POD. Instruction Memorandum 2011-060 requires developers to submit a POD for all solar development ROW applications. A POD should include information regarding “construction, operation, rehabilitation, and environmental protection…” See 43 CFR 2804.25(b). In addition, the BLM has created a Solar Energy POD outline that identifies the minimum requirements for a solar energy POD. The BLM may request information in excess of the minimum requirements. In addition, the BLM may require the developer to supplement the POD with additional information at any time during the application process.
The BLM, as part of the minimum requirements for solar PODs, requires developers to include documentation in the solar POD establishing their financial and technical capability to construct a utility-scale solar facility, in accordance with the due diligence requirements of Instruction Memorandum 2011-060 and 43 CFR 2804.12(a)(5). 43 CFR 2804.26(a)(5) authorizes the BLM to reject an application where the developer is not sufficiently competent. The BLM may require the developer to submit information regarding past solar development experience and the availability of capitalization.
Other minimum requirements for solar PODs include, but are not limited to:
- A discussion of alternatives to site location, engineering designs, technologies, etc.;
- An Environmental mitigation plan; and
- A Decommissioning and Site Reclamation Plan (DSRP).
The POD provides the BLM with the informational basis to conduct the ROW NEPA analysis and the application review process. The developer must submit the POD prior to the initiation of NEPA analysis. The developer is required to strictly adhere to BLM POD submission schedules. Failure to do say may result in rejection of the application. The timeline for POD submissions can be found on the Solar Energy POD page.
3-FD-j.8 – Inform Livestock Permittee / Lessee About Proposed Project
As soon as the BLM becomes aware of a proposed utility-scale solar development project, it should inform affected livestock permittees/lessees about potential impacts on their grazing rights. Notification may occur when the developer initially contacts the BLM or after the pre-application meetings.
The BLM conducts an on-site visit with the developer and the permittees/lessees to explain the project and how it may affect grazing rights, discuss mitigation and compensation strategies and encourage participation in the NEPA process. 43 CFR 4120.3-6(c) requires the permittees/lessees to be compensated for improvements placed upon the land, and the BLM will encourage the ROW applicant and permittees/lessees to enter into an agreement regarding compensation for the improvements and for mitigation of effects on forage and water rights.
If the BLM determines that the proposed development will adversely affect grazing rights, a certified letter must be sent to the permittees/lessees. The letter will serve as the two year cancelation notice required by 43 CFR 4110.4-2(b). Grazing rights may not be canceled for two years after the notification unless the permittees/lessees waive the two year period. In addition, a NEPA analysis should be conducted regarding the decision to cancel the grazing rights (and issue new ones). This analysis may be part of the ROW NEPA analysis. Once the NEPA analysis is completed, the BLM will issue a proposed grazing decision that states the date of cancellation (two years from the date of the permittees/lessees receipt of the certified letter). In addition, the decision addresses compensation for improvements, issuance of new grazing rights and the management of new rights. The proposed grazing decision should also state that in the absence of a protest, a final grazing decision will be issued concurrent with the Environmental Assessment (EA) decision of record or the Environmental Impact Statement (EIS) Record of Decision. A protest must be made within 15 days of the receipt of the proposed grazing decision or the final grazing decision will go into effect.
Information regarding the involvement of grazing permittees/lessees with the solar ROW application process can be found in Instruction Memorandum No. 2011-181.
3-FD-j.9 to 3-FD-j.10 – Review Application Material for Completeness
The BLM will review the initial application and notify the developer within 30 calendar days whether the application is “complete” and ready for formal review, or whether additional information must be submitted. Once the application is complete, the review process can continue.
3-FD-j.11 – Establish Written Processing Agreement
Processing fees for utility-scale solar development ROW applications are governed by 43 CFR 2804.14 and 43 CFR 2804.19. 43 CFR 2804.14 contains a processing schedule, with six processing categories based on the estimated number of hours required to process the ROW application. Utility-scale solar development ROWs almost always require an EIS (outside of SPEIS affected areas), and as a result, will almost always require more than 50 hours of work. Applications that require over 50 hours of processing time are placed in processing category 6.
43 CFR 2804.19 requires the BLM and the developer to enter into a written agreement that describes how the BLM will process the category 6 application. The agreement should contain a work plan (including NEPA analysis) and a financial plan. In some cases, the BLM allows developers to perform some of the processing work (generally aspects of the NEPA analysis), but the work must be performed to BLM standards. The BLM periodically estimates costs for specific work periods and notifies the developer of the amount due. Each invoice must be paid before the BLM will continue processing the application.
3-FD-j.12 to 3-FD-j.13 – Does the ROW Conform with the Land Use Plan?; Amend Land Use Plan
43 CFR 1610.5-3 requires all projects sited on BLM managed land to conform to the Resource Management Plan (RMP) governing the relevant land unit. The BLM will assess whether utility-scale solar development conforms to the relevant RMP during the pre-application process. If the proposed project is not in conformance with the relevant RMP, the developer may request that the BLM amend the RMP. The amendment (and attendant environmental analysis) should be conducted concurrently with the review of the ROW application and the ROW NEPA analysis.
3-FD-j.14 to 3-FD-j.15 – Has NEPA Been Completed for the ROW?
The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental consequences of their proposed actions, and any reasonable alternatives, before undertaking a major federal action. An Environmental Impact Statement (EIS) is required when a major federal action significantly affects the quality of the human environment. See 40 CFR 1502. Approval of a utility-scale solar facility on federal land will generally constitute a major federal action. Consequently, most utility-scale solar project ROW authorizations outside of the SPEIS affected areas require the BLM to prepare an EIS as part of the application review process.
As stated above, the NEPA process cannot begin until the developer has submitted a POD. The developer will be required to pay for the NEPA analysis, and an EIS can take over two years to prepare. The final EIS should contain a discussion of the environmental impacts of the proposed federal action, alternatives to the proposed action, and mitigation measures. The NEPA process must be completed before The BLM can issue an ROW. For more information regarding the BLM NEPA process, see BLM NEPA Process:
3-FD-j.16 to 3-FD-j.17 – Is Segregation Required?
43 CFR 2804.25(e) allows the BLM to temporarily segregate public lands from the operation of the public land laws, including the Mining Law, that are subject to new or pending ROW applications for utility-scale solar development.
Segregation begins when the BLM publishes a notice in the Federal Register. The notice must contain a description of the segregated lands. The segregation period may not exceed two years, unless the BLM determines, in writing, that an extension is necessary. Notice of the extension must be filed in the Federal Register before the initial two year period has expired. The extension may not exceed two years, and only one extension may be filed.
The practical effect of segregation is to prevent location of mining claims on the proposed site while the BLM is processing the ROW application. Mining claims that are located on proposed solar sites create land use conflicts, as mining activities are generally not compatible with proposed solar projects. Before the segregation rule was promulgated, mining claims were being located on proposed solar sites for speculative purposes, forcing the solar developers to pay the mining claimants to release their claims. The current rule allows the BLM to prevent the location of mining claims on the proposed site while they consider utility-scale solar development ROW applications.
Once an ROW application has been approved, the BLM may then exclude all other uses of the site, including mining activities.
3-FD-j.18 to 3-FD-j.19 – Process Application; Was the ROW Approved?
Once the application has been submitted the BLM reviews it for completeness. The BLM also reviews the project proposal for land use conflicts and conformance with the applicable land use plan. The BLM determines a processing category for the application (usually category 6 for utility-scale solar development) and begins the NEPA process. The processing fees will be governed by the processing agreement, as discussed in 3-FD-d.16.
ROW applications are generally processed in the order they are received, but a thorough and complete application can move ahead of an incomplete or error ridden one. In addition, the BLM may institute competitive bidding procedures if competition exists for the same site (as discussed above).
The BLM is required to complete reviews, inventories and reports as part of the NEPA analysis and application review. Consequently, review of utility-scale solar development ROW applications may take two or more years to complete. Once the review process is complete, the developer will be notified in writing of the BLM’s decision.
3-FD-j.20 to 3-FD-j.22 – Send Applicant Written Decision Explaining Denial
If the BLM rejects an application, it will send the applicant a written decision explaining the reasons for the denial. The BLM may deny an application if:
- The proposed use is inconsistent with the purpose for which BLM manages the public lands described in the application;
- The proposed use would not be in the public interest;
- The developer is not qualified to hold a grant;
- Issuing the grant would be inconsistent with the Acts, laws or regulations;
- The developer does not have or cannot demonstrate the technical or financial capability to construct the project or operate facilities within the right-of-way; or
- The developer does not adequately comply with a deficiency notice (see §2804.25(b) of this subpart) or with any BLM requests for additional information needed to process the application.
3-FD-j.23 to 3-FD-j.26 – Send Unsigned Grant Containing Terms, Conditions and Stipulations to Applicant; Sign and Return Grant; Submit Required Payments; Right-of-Way Grant
If the BLM approves the ROW application, it will send the applicant the ROW grant to review and sign. The ROW grant will contain numerous terms, conditions and stipulations that the applicant will be required to agree to and comply with. Some of the important terms and conditions are discussed below.
Term of Authorization
Title V of FLPMA and the BLM regulations limit the term of authorization for an ROW to a reasonable length. Because of the term requirements in Power Purchase Agreements (PPAs) and the capital investment required, the BLM has deemed 30 years to be a reasonable length for utility-scale solar ROWs. See Instruction Memorandum No. 2011-003
The developer may not begin ground disturbing activities until the BLM issues a Notice to Proceed. The BLM will not authorize more than three phases of development, and the developer must begin the initial phase of development within 12 months of the initial Notice to Proceed, but not later than 24 months after the effective date of the ROW authorization. In addition, the project schedule must comply with the POD. The BLM will issue a Notice to Proceed for each phase of the project. Failure to comply with these due diligence terms may result in suspension or revocation of the ROW.
Performance and Reclamation Bond
43 U.S.C. 1764(i) and 43 CFR 2805.12(g) authorize the BLM to require a bond as part of the ROW grant. For utility-scale solar projects, a performance and reclamation bond is required. The bond is often substantial and will consist of three components:
- An environmental and hazardous waste component;
- A decommissioning component; and
- A restoration and reclamation component
All three components will be part of one bond and may be used to address a single incident. The developer must submit a Reclamation Cost Estimate (RCE) as part of the DSRP to help the BLM determine the appropriate bond amount. For more information regarding the performance and reclamation bond, see Instruction Memorandum No. 2011-003.
Mitigation plans are required to help reduce the impact of utility-scale solar projects on culturally and environmentally sensitive resources. Although the mitigation plans will generally be tailored to each particular project, Row grants may include:
- Decommissioning and Site Reclamation Plans;
- Grading, Drainage, Erosion and Sedimentation Control Plans;
- Vegetation Management Plans;
- Habitat Restoration and Management Plans;
- Hazardous Materials Management Plans;
- Cultural Resources Management and Mitigation Plans; and
- Visual Restoration Monitoring and Compliance Plans
Mitigation plans are a required part of the POD, but new mitigation plans and measures may arise during the NEPA process. If so, the POD should be supplemented. The terms and conditions portion of each ROW grant should require the developer to implement the mitigation plans contained in the POD.
The rental schedule for utility-scale solar ROWs consists of two components. The first component is an annual, per acre base rental fee. The fee is based on the value of the land subject to the ROW. The initial base rent is due upon the issuance of the ROW. The second component is a megawatt (MW) capacity fee. The MW capacity fee is charged on an annual basis, starting when the facility begins producing electricity. The MW capacity fee will be implemented over five years after the start of electrical generation to allow for diligent testing and operation, with the fee increasing by 20% each year. For more information regarding rent, including schedules and fee calculations, see Instruction Memorandum No. 2010-141. In addition, the developer must submit monitoring fees to the BLM. The monitoring fee covers the costs the incurred by the federal in monitoring the construction, operation, maintenance, and termination of the project and protection and rehabilitation of the lands covered by the grant. See 43 CFR 2805.16.
Other terms and conditions will be required, many of which will be tailored to the specific project. Failure to comply with any of the terms, conditions or stipulations may result in suspension or cancellation of the ROW. In order to suspend or terminate the ROW, the BLM must first notify the developer and give the developer a reasonable opportunity to correct any non-compliance. See 43 CFR 2807.17; 43 CFR 2807.18.
Upon receiving the ROW grant, the developer should review and sign it. The developer must then return the signed grant to the BLM, along with any required initial payments, such as monitoring fees and the initial base rent. Once the BLM receives the signed grant and the initial payments, a BLM officer will sign and return a completed copy of the ROW to the developer.
3-FD-j.27 to 3-FD-j.28 - Have ROW Stipulations Been Met?; Notice to Proceed
All solar ROWS must include a provision that specifies that ground disturbing activities may not begin until the BLM issues a Notice to Proceed (NTP). See 43 CFR 2807.10; Instruction Memorandum No. 2011-003. Before issuing an NTP, the BLM confirms that the developer has complied with all of the terms and conditions contained in the ROW. The BLM also verifies that all other necessary permits and authorizations have been obtained from the relevant authorities. If the developer is not compliant, it must come into compliance before an NTP can be issued. For phased projects, the developer must begin construction within 12 months after the issuance of the NTP, but no later than 24 months after the effective date of the ROW authorization. Construction must be completed within the timeframes described in the POD. An NTP is issued for each phase of development, and compliance must be demonstrated before each NTP is issued. See 43 CFR 2807.10; Instruction Memorandum No. 2011-003.
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- Pre-Application Checklist
- Solar Energy Plan of Development Outline
- Argonne National Laboratory's Solar Energy Development Programmatic EIS Website
- Instruction Memorandum No. 2011-061
- Instruction Memorandum No. 2011-181
- Instruction Memorandum 2011-060
- Instruction Memorandum No. 2011-003
- Instruction Memorandum No. 2010-141