Solar Land Access Overview (3)
Land Access Overview Process
3.1 to 3.2 - Is the Project on Private Land?
A developer siting a solar utility project on private land will either have to purchase the land or obtain a lease from the owner. The developer should conduct a due diligence review before signing the lease or purchasing the property. At a minimum, the due diligence review should include a title opinion, an environmental assessment, a survey, an on-site inspection and a zoning opinion. Other documents or assessments may be required as well.
3.3 to 3.4 – Is the Project on State Land?
Each state has its own land leasing process. In some cases, the state may have regulations that relate specifically to solar development. A developer seeking to site a solar facility on state land should refer to that state’s regulations.
3.5 to 3.6 - Does the Project Require Access over State Land?
Each state has its own land rights of way process. A developer seeking access over or across state land for any reason should refer to that state's regulations.
3.7 to 3.8 — Will the Activity Encroach on a State or Local Highway Right-of-Way?
State and local governments require an encroachment permit for any object placed in, over, or under a local or state highway right-of-way (i.e. towers, poles, pipelines, fences, and other structures), as well as when a private access road or driveway joins a public road.
3.9 to 3.10 – Is the Project on Tribal Land?
Under a Tribal Energy Resource Agreement (TERA) a tribe may enter into leases and business agreements for the purpose of energy resource development on tribal land for:
- Exploration for, extraction of, or other development of the energy mineral resources of the Indian tribal located on tribal land including, but not limited to, marketing or distribution;
- Construction or operation of an electric generation, transmission, or distribution facility located on tribal land; and
- A facility to process or refine energy resources developed on tribal land.
Under an approved TERA, a tribe may grant rights-of-way for the purpose of energy resource development on tribal land for construction or operation of a pipeline or electric transmission or distribution line serving:
- An electric generation, transmission, or distribution facility located on tribal land, or
- A facility located on tribal land that processing or refines energy resources developed on tribal land.
For tribes that do not elect to pursue a TERA or for energy resources that are not included in an existing TERA, existing regulatory programs for energy resource development on Indian Lands are available as discussed in Tribal Land Leasing:
In addition, the Tribal Energy and Environmental Information Clearinghouse has compiled various applicable Laws and Regulations specifically for solar energy development on tribal lands.
3.11 to 3.12 – Is the Project on Federal Land or Require Access across Federal Land?
Siting a solar utility project on federal land, or gaining access across federal land, requires permission from the managing agency. In most cases, the managing agency will be either the BLM or USFS. The Federal Land Policy and Management Act of 1976 (FLPMA) authorizes both the BLM and the USFS to grant rights-of-way for the generation, transmission and distribution of electric energy. A right-of-way can be any legal instrument that authorizes a holder to use and/or occupy federal land under a grant. Both the BLM and the USFS have general regulations that govern the issuance of a right-of-way. BLM regulations governing rights-of-way can be found at 43 CFR 2800 et seq. and USFS regulations governing special use authorizations can be found at 36 CFR 251.50 – 251.65. In addition, both agencies have promulgated specific procedures that relate specifically to solar development. If the solar utility project is not on the federal land, then the developer may continue with the project.
3.13 to 3.14 – Does the BLM Manage the Land?
The BLM has created a comprehensive Solar Energy Program that is designed to administer the development of utility-scale solar projects in six southwestern states: Arizona, California, Colorado, Nevada, New Mexico and Utah. The program was implemented by the Solar Programmatic Environmental Impact Statement (SPEIS), and the details of the program are contained in the SPEIS Record of Decision (ROD), effective October 10, 2012. The SPEIS contains a programmatic analysis of the environmental impacts of utility-scale solar development in six southwestern states, new procedures for issuing solar rights-of-way, and amendments to 89 land use management plans in the affected areas. These changes will alter the right-of-way permitting process for solar development on BLM lands within the six southwestern states. For BLM lands that are not within those states, the old BLM solar right-of-way policies will apply and land use management plans may still require amendment.
BLM Right-of-Way Application Process Overview:
In addition to a BLM right-of-way for the solar generation facilities and ancillary facilities, developers may require a transmission right-of-way across BLM land in order to connect the solar project to the energy grid. The application process is described in
BLM Transmission Right-of-Way Application Process:
3.15 to 3.16 – Does the USFS Manage the Land?
The USFS administers rights-of-way for utilities on Forest Service land via special use permits. In addition to the general permit requirements for a special use authorization, the USFS has issued a draft of a proposed amendment to Forest Service Handbook 2709.11. The proposed chapter 80 relates to solar development on USFS land. The permitting process outlined in the proposed amendment is similar to the process outlined by the BLM SPEIS, and would require significant documentation from the developer regarding the project.
Forest Service Special Use Authorization:
In addition to special use permits for the solar generation facilities and ancillary facilities, developers may require a transmission right-of-way across Forest Service land in order to connect the solar project to the energy grid. The application process is described in
USFS Transmission Right-of-Way Application Process:
3.17 to 3.18 - Does the BOR Manage the Land?
If the solar project involves transmission facilities that will cross federal lands managed by the BOR (within the United States Department of Interior), the developer must receive a rights-of-way grant from the BOR under 43 U.S.C. 387 and the BOR’s implementing regulations in 43 CFR 429 et seq.
3.19 to 3.20 – Does the NPS Manage the Land?
If the solar project involves transmission facilities that will cross federal lands within the National Park System, National Wild and Scenic Rivers System, National Trails System, National Heritage Areas, and other National Park Service (NPS) Affiliated Areas, the developer must receive a right-of-way permit from the NPS (within the United States Department of Interior) usually under 16 U.S.C. 5 or 16 U.C.S. 79 and the NPS’s implementing regulations in 36 CFR 14.1 et seq. The NPS may only issue right-of-way permits if the uses or activities are specifically authorized by Congress and only if there is no practicable alternative to the use of NPS lands.
3.21 to 3.22 – Does the DOD Manage the Land?
If a branch within the DOD manages the land, the developer may have two options, depending on the specific land in question. First, and in most cases, the developer can apply for a right-of-way from the appropriate military branch. General authority for rights-of-way for electric power and communication lines is provided by 43 USC 961. In addition, some BLM-administered public land has been withdrawn from the public domain for exclusive military use. Any applications for a right-of-way or easement across BLM-administered land under exclusive military use require review and concurrence by the military branch.
Second, there has been a recent increase in the issuance of “enhanced use leases” (EUL) on non-excess military land. In most cases the military will solicit requests for proposals when they have non-excess land suitable for energy development that can enhance the amount of energy produced from renewable sources. A typical EUL involves supplying the military base/installation/facility with a certain amount of energy, and developers may sell the remaining energy produced. Depending on the branch of the military, developers may be able to submit unsolicited proposals. The process is fully described in
Enhanced Use Leasing Process:
3.23 to 3.24 - Does the FWS Manage the Land?
The Fish and Wildlife Service (FWS) manages National Wildlife Refuge System lands. If the solar project involves transmission facilities that will cross federal lands managed by the FWS, a right-of-way is required. The National Wildlife Refuge System Administration Act authorizes the FWS to grant rights-of-way for the construction of power transmission lines across System lands, as long as the use is compatible with the National Wildlife Refuge System mission and the purposes of the specific national wildlife refuge. FWS regulations governing the permitting of rights-of-way across System lands can be found at 50 CFR 29.21 and 29.22.
Authority for rights-of-way across FWS managed lands that are not System lands (including National Fish Hatcheries, Research Areas, and Administrative Sites) can be found in 43 CFR 2800. Rights-of-way across FWS managed non-System lands are also permitted under 50 CFR 29.21 and 29.22.
3.25 to 3.26 – Is the Project within the Right-of-Way of Federal Aid or Direct Federal Highway Projects?
23 U.S.C. 109(l) allows the Federal Highway Administration (FHWA) to permit utility companies to utilize federal aid highway rights-of-way or direct federal highway rights-of-way to site transmission lines. Before approving the right-of-way, the FHWA must (1) ascertain the effect the transmission line will have on safety; (2) determine the environmental and economic effects on agriculture resulting from a disapproval of the right-of-way, and; (3) consider environmental and economic impacts together with the impairment the transmission lines would have on the use of the highway. No use may be authorized that would adversely affect safety.
For direct federal highway projects, approval must be obtained from the FHWA, and the FHWA applies accommodation policies similar to those required on federal aid highway projects. For federal aid highway projects, the applicable state department of transportation creates a utility accommodation plan. In both cases, the utility accommodation plans and policies must conform to the FHWA regulations found in 23 CFR 645.201 et seq.
3.27 – Contact Managing Agency
In extremely rare cases, the managing agency may not be the BLM, USFS, BOR, NPS, DOD, or FWS. In those cases, the developer should contact the managing agency to determine what type of authorization is required.
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