By Deborah Quick, Esq.
Advancing the Biden administration’s goal of substantially increasing the production of renewable energy from federally-owned lands, on December 21, 2021 the Department of the Interior’s Bureau of Land Management (BLM) issued Decision Records approving the Arica and Victory solar energy projects on a combined 2,665 acres of federally-owned lands located in Riverside County, California. Together, the projects will generate 465 megawatts (MW) of electricity using photovoltaic technology, as well as provide 400 MW of battery storage. [See: BLM Rights of Way Case File Nos. CACA 56898 and CACA 56477, Decision Records dated December 2021; Call for Nominations or Expressions of Interest for Solar Leasing Areas on Public Lands in the States of Colorado, New Mexico, and Nevada, 86 Fed.Reg. 242, 72272 (Dec. 21, 2021)]
The projects were approved in conformance with the Desert Renewable Energy Conservation Plan (DRECP), a “collaborate, inter-agency landscape-scale planning effort covering 22.5 million acres in seven California counties.” DRECP Record of Decision (2016), at ES-1. The DRECP seeks to “facilitate the timely and streamlined permitting of renewable energy projects” while advancing “federal and state conservation goals and other federal land management goals” while meeting “the requirements of the federal Endangered Species Act … and Federal Land Policy and Land Management Act.” Ibid.
In addition, the Department of the Interior (DOI) issued a solicitation for “nominations or expressions of interest” in opportunities for utility-scale solar leases within identified solar energy zones (SEZ) on federally-owned lands in Colorado, New Mexico and Nevada. 86 Fed.Reg. 242, 72272. The SEZ were designated in the 2012 Western Solar Plan, which “amended BLM resource management plans (RMPs) to designate SEZs on public land determined to be suitable for utility-scale solar energy development” in six southwestern states. 86 Fed.Reg. 242, 72272.
Background
The process for adopting the DRECP began in 2008, with DOI and its partner federal and state agencies seeking to streamline the permitting process for utility-scale renewable energy projects in the California desert counties of Imperial, Inyo, Kern, Los Angeles, Riverside, San Bernardino, and San Diego, while advancing conservation of identified species and other natural and cultural resources, as well as fulfilling BLM’s mandate to manage federal lands for multiple uses. A draft of the plan was released six years after the effort began, in 2014, and the DRECP was adopted in 2016.
The DRECP utilized two strategies that departed from prior BLM planning effort. Previously, BLM’s decisions to allow specific private development activities on federally-owned lands were reactive, i.e., BLM waited for private applications to identify specific areas proposed for development before engaging in any analysis of that land for suitability. The DRECP, however, implemented Land Use Plan Amendments to the California Desert Conservation Area Plan to identify “areas appropriate for renewable energy development.” Second, the DRECP covers private, state, and federal land, enabling landscape-level planning.
Also in 2008, BLM initiated the Western Solar Plan (WSP), with similar goals to the DRECP:
. . .to streamline permitting of utility-scale renewable energy development on federally-owned lands in the southwest, while advancing conservation and multiple-use goals.
The WSP was narrower in scope than the DRECP, however, in that it targeted only solar energy development, and covers only BLM-managed federal lands. Like the DRECP, the WSP used Land Use Plan Amendments, this time to designate SEZs as appropriate for utility-scale solar development. The WSP was adopted in 2012.
The Projects Approved and Nominations Solicited
The Arica and Victory projects are located on 2,665 acres of adjacent lands and will share access roads, transmission and interconnection infrastructure, and each project will install up to 200 MW of battery storage. BLM formally consulted with the U.S. Fish and Wildlife Service (FWS) pursuant to the Endangered Species Act, with FWS determining that the projects were consistent with its Biological Opinion for the DRECP, including that the projects are not likely to jeopardize the continued existence of the federally threatened Mojave population of the desert tortoise. FWS concurred with BLM’s determination that the projects are not likely to adversely affect various federally-endangered bird species. Likewise, BLM obtained concurrence with its finding of no effect for all historical properties located within the project’s area of potential effect. BLM’s consultation with six Indian tribes is ongoing.
BLM’s solicitation of “nominations or expressions of interest” for solar leasing within the WSP seeks development proposals to be submitted up to and including January 20, 2022. 86 Fed.Reg. 242, 72272. In the event that multiple proposals are received for the same or overlapping lands, BLM “may hold a competitive leasing process.” 86 Fed.Reg. 242, 72273. In the absence of multiple proposals, BLM “may accept and process non-competitive solar development applications” for lands identified in the notice. Ibid.
Conclusion and Implications
The Obama administration invested in a multiple-year effort to adopt landscape-level planning in support of utility-scale renewable energy development on a commercially-sustainable timeline and with greater certainty regarding mitigations. The fate of these efforts was unclear during the four years of the Trump administration. In just under a year, the Biden administration has begun in earnest the long-awaited implementation process.
