BLM Solar Energy Zone Right-of-Way Application (3-FD-k)
The SEZs are meant to facilitate utility-scale solar development by streamlining the ROW application process and reducing costs. Advantages of siting a utility-scale solar development within an SEZ include:
- Faster and easier permitting;
- Priority for solar ROW applications sited within SEZs;
- Regional mitigation plans that increase permit efficiency and financial predictability;
- Facilitation of transmission permits;
- Reduced costs due to BLM’s upfront data collection and National Environmental Policy Act (NEPA) analysis; and
- A streamlined and tiered NEPA process
The BLM ROW application process for SEZs must still adhere to the BLM regulations found in 43 CFR 2800 et seq. Consequently, the ROW application process for projects sited within an SEZ will be similar to the process for projects sited outside of the areas covered by the SPEIS. One major difference is that the SPEIS has already amended all of the land use plans within the affected area. Another major difference is that the NEPA process is less involved due to the extensive environmental analysis already performed for the SPEIS. In addition, specific design features and mitigation measures will be required as terms of the ROW. Despite these changes, the basic ROW application process remains the same.
BLM Solar Energy Zone Right-of-Way Application Process
3-FD-k.1 – Contact BLM to Initiate Process
Contacting the BLM office with jurisdiction over the desired site is the first step in the ROW application process. 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-k.2 – Establish Competitive Bidding Procedures
The BLM is required to establish competitive bidding procedures for SEZs and is currently using an interim competitive procedure for SEZ zones. The interim competitive procedure requires the BLM to publish a notice seeking public interest if a party wishes to apply for a solar ROW permit within an SEZ. If numerous parties express interest in the SEZ after the notice has been published, the BLM arranges a competitive bid. The BLM may charge an administrative fee for each bid. The winning bidder becomes the preferred developer. Winning the bid will not result in the issuance of an ROW. The selected developer must still complete the ROW application process and receive approval from the BLM. For a complete discussion of the BLM's interim competitive procedures for SEZs, see the BLM's Solar Energy Website.
3-FD-k.3 to 3-FD-k.5 – 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 meeting, 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.
In addition to the issues outlined above, the BLM has already conducted extensive studies and collected extensive data for each SEZ during the SPEIS process. Consequently, the parties should discuss what studies are still required and what additional data must be collected.
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 meeting are outlined in the site evaluation section of this roadmap. See Site Evaluation Process: 10.
As with data collection and surveys, certain permitting and consultation requirements will be reduced as a result of work done during the SPEIS process, including:
- ’’’Endangered Species Act (ESA) Section 7 Consultation with the Fish and Wildlife Service (FWS)’’’ – the BLM completed a programmatic consultation with the FWS that resulted in a programmatic Biological Opinion (BO) for SEZs. Although a Section 7 Consultation is still required for site-specific development, both programmatic documents can be utilized to reduce cost and effort.
- ’’’National Historic Preservation Act (NHPA) Section 106 Consultation’’’ – the BLM consulted with Indian tribes, State Historic Preservation Offices (SHPOs), the Advisory Council on Historic Preservation (ACHP), and the National Trust for Historic Preservation (NTHP) during the SPEIS process. These parties subsequently entered into a programmatic agreement (PA) that governs future consultation and cultural mitigation.
- ’’’Tribal Consultation’’’ – The BLM consulted affected tribes during the SPEIS process. Consultation is ongoing, and the responsible BLM office will consult with field office cultural staff and the Deputy Preservation Office to determine whether additional archaeological and ethnographic data are required for site-specific projects.
The BLM uses the first pre-application meeting to explain how the programmatic agreements can be used and what work is still required.
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 how the application will be processed. 43 CFR 2805.25 defines processing times for ROW applications. Utility-scale solar development will almost always fall into category 6, which requires over 60 days of processing time. Although the BLM has discretion to prioritize category 6 applications, SEZs are always given the highest priority.
3-FD-k.6 – Application for Transportation and Utility Systems with Facilities on Federal Lands (Form SF-299); Plan of Development (POD)
After the pre-application process has been completed, the developer should complete Form SF-299, also known as 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 extra 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 supplemental information from the developer in addition to the SF-299, including a POD. The Solar PEIS ROD, Appendix B, Section 2, requires developers to submit a POD for all solar development right-of-way 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 of 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)
In addition to the minimum requirements listed above, PODs for solar projects within SEZs are required to contain programmatic and SEZ-specific design features. Design features are mitigation requirements designed to avoid, minimize or mitigate adverse impacts. The design features have been incorporated into the amended land use plans by the SPEIS. Design features are categorized by resource type and are divided into four categories based on projects phases: (1) general; (2) site characterization, siting and design, and construction; (3) operations and maintenance; and (4) reclamation and decommissioning.
Because the programmatic design features are general in nature, not all of them will apply to specific projects. Variation in design features must be disclosed and analyzed. Design features that do not apply to a project should be described in detail, along with the rationale for their exclusion from the POD. Design features not listed in the ROD may be required in addition to the programmatic and SEZ-specific design features. For a list of both programmatic and SEZ-specific design features, see the Solar PEIS ROD, Appendix A.
In addition, the BLM is currently developing regional mitigation plans for all SEZs and conducting a regional mitigation plan pilot program. Regional mitigation plans are designed to address area wide conservation concerns. The regional mitigation plans will be used to inform leasing decisions and project authorizations within SEZs. The plans may be used during the pre-application meeting to determine where within an SEZ a project should be sited. Further, the plans will help determine what mitigation measures should be included in the POD in addition to the required design features.
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-k.7 – Inform Livestock Permittee / Lessee About Proposed Project
As soon as the BLM becomes aware of a proposed utility-scale solar development project, it informs 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. Yhe BLM will encourage the ROW applicant and permittees/lessees to enter into an agreement regarding compensation. The agreement should also address mitigation of effects on forage and water rights.
The BLM sends a certified letter to the permittees/lessees once the developer’s POD is accepted. The letter serves 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. This analysis may be part of the ROW NEPA analysis. Once the NEPA analysis is complete, the BLM issues 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 state that in the absence of a protest, a final grazing decision will be issued concurrenty 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 the the Solar PEIS ROD, Appendix B, Section 2.
3-FD-k.8 to 3-FD-k.9 – 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-k.10 – 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 always require NEPA analysis. Consequently, they 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 and a financial plan. In some cases, the BLM allows developers to perform some of the processing work themselves (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-k.11 to 3-FD-k.12 – Has NEPA Been Completed for the ROW?
The 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 1502.3. If the effects of the action are not significant an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be sufficient.
The BLM has already conducted a thorough environmental review of each SEZ during the SPEIS process. A site-specific environmental review is still required for solar ROW authorizations within SEZs, but it is designed to tier with the SPEIS. Tiering is defined as “using the coverage of general matters in broader NEPA documents in subsequent, narrower NEPA documents.” See the Solar PEIS ROD; 40 CFR 1508.28. Tiering allows the site-specific review to incorporate analyses of significant impacts by reference, thereby reducing redundancy and allowing the site-specific review to focus on issues not already addressed. If all of the relevant impacts have been analyzed in the SPEIS, or if the impacts are not significant, an EA/FONSI will be sufficient. Otherwise, an EIS may be required. An EA/FONSI is preferable, because the process is faster and cheaper than preparing an EIS. The BLM authorized officer, in conjunction with the BLM Washington office, determines the appropriate level of NEPA analysis. For additional information regarding tiering, see the BLM NEPA Handbook.
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, which may take over two years to prepare. The NEPA process must be completed before the BLM can issue an ROW. For more information on the BLM NEPA process, see BLM NEPA Process:
3-FD-k.13 to 3-FD-k.14 – 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 are governed by the processing agreement, as discussed in 3-FD-d.14.
ROW applications are generally processed in the order they are received, but a thorough and complete application may move ahead of an incomplete or error ridden application. In addition, the BLM may institute competitive bidding procedures if competition exists for the same site (as discussed above).
The BLM is required to conduct a Cadastral Survey of the proposed site under certain circumstances as part of the review process, the cost of which will be included in the processing fee. The BLM is also 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-k.15 to 3-FD-k.17 – 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
See 43 CFR 2804.26.
With the exception of ROW decisions within SEZs, 43 CFR 2804.26 and 43 CFR 2801.10 allow an applicant to appeal a ROW denial in accordance with the procedures found in 43 CFR 4 et seq. Authorization of projects within SEZs are not subject to administrative appeals to the IBLA.
3-FD-k.18 to 3-FD-k.21 – Send Unsigned ROW Grant Containing Terms, Conditions and Stipulations to Applicant; Sign and Return ROW Grant; Submit Required Payments; Right-of-Way Grant
If the BLM approves the ROW application, it sends 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. For an example of the terms, conditions and stipulations that are generally included in a solar BLM ROW grant, see the BLM ROW Grant Template. 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 a ROW to a reasonable length. Because of the investment required and term requirements in Power Purchase Agreements (PPAs), the BLM has deemed 30 years to be a reasonable length for utility-scale solar ROWs.
See the Solar PEIS ROD, Appendix B, Section 2.
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.
See the Solar PEIS ROD, Appendix B, Section 2.
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 (as discussed above) to help the BLM determine the appropriate bond amount.
In addition, the BLM may require a bond for cultural resource identification, protection, and mitigation. The bond would cover costs associated with ethnographic studies, inventory, testing, geomorphological studies, data recovery, compensatory mitigation programs, curation, monitoring, treatment of damaged sites, and the preparation and submission of reports.
For more information, see the the Solar PEIS ROD, Appendix B, Section 2.
The programmatic and SEZ-specific design features that were incorporated into the POD will become part of the terms and conditions section of the ROW. See 3-FD-d.11. The BLM may require additional mitigation measures if necessary. Additional measures may be required by regional mitigation plans in some circumstances.
The rental schedule for utility-scale solar ROWs consists of two components. The first component is a base rental per acre annual fee 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 beings 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. 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.
For more information regarding rent, see the Solar PEIS ROD, Appendix B, Section 2.
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-k.22 to 3-FD-k.23 - 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; Solar PEIS ROD, Appendix B, Section 2. 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. An NTP is issued for each phase of development, and compliance must be demonstrated before each NTP is issued. See Solar PEIS ROD, Appendix B, Section 2.
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