Coalition Comments on BLM’s Proposed Programmatic EIS for Solar Energy Development

Second, it is not uncommon for older BLM land use plans (RMPs, etc.) to not include baseline VRM Class determinations for the applicable management area. For example, the 1986 Monument RMP⁶https://eplanning.blm.gov/public_projects/lup/36121/42518/45285/monumentRMP_ok.pdf which remains in effect and covers portions of BLM’s Shoshone and Burley Districts in southern Idaho near Minidoka NHS, contains no VRM Class determinations for what has recently become the project area for the Lava Ridge Wind Project. Since there is no baseline VRM Class determination, then it follows that BLM has not determined management objectives for the protection of visual resources within the project area or for the larger area covered by the land use plan. In such cases, we recommend that proposed energy projects automatically be deferred from further consideration until the underlying land use plan has been updated. This, in effect, would be an “implicit exclusion” from solar energy development of locations lacking baseline VRM Class determinations. Otherwise, BLM waiting until after a massive project has been proposed to determine VRM classes for a project area reeks of a conflict of interest unless such a determination is made by an independent third party such as the Argonne National Laboratory.

Third, since visual resource impacts are such a common concern with so many proposed energy development projects near national parks and other specially protected places, BLM should consider a standard minimum set-back distance (such as 10 miles) for proposed projects from nearby units of the National Park System, designated wilderness areas, and significant cultural resource sites such as Native American sacred sites. Set-back(s) sufficient to avoid, not just reduce, impacts would be consistent with guidance described in “Best Management Practices for Reducing Visual Impacts of Renewable Energy Facilities on BLM-Administered Lands.”⁷https://www.blm.gov/sites/default/files/documents/files/Library_BMP_Reducing_Visual_Impacts_Renewable_Energy.pdf

Specifically, Section 6.2.1, p. 141, recommends: “Site facilities and ROWs outside of sensitive viewsheds or as far as possible from sensitive viewing locations.” (Emphasis added)

Exclusion # 31: In California, BLM-administered lands* proposed for transfer to the National Park Service with the concurrence of the BLM (Note: *Three specific geographic areas described as (1) the narrow strip of BLM-administered lands between Fort Irwin and Death Valley National Park, (2) an area of public lands on the northeastern side of the Mojave National Preserve adjacent to the California and Nevada border, and (3) an area along the northern boundary of Joshua Tree National Park.) – We have no information to suggest a change in status of the three geographic areas described above. However, for the sake of due diligence, we recommend that BLM re-consult NPS officials about these three locations. In addition, if the plan is expanded to include additional states, BLM should consult NPS officials regarding sensitive viewsheds near parks in each of those states.

Exclusion # 32. Specific areas identified since the publication of the Supplement to the Draft Solar PEIS by the BLM based on continued consultation with cooperating agencies and tribes to protect sensitive natural, visual, and cultural resources – In general, locations fitting this exclusion are not itemized in the Plan but are illustrated only in general terms in Figure A-1: “Areas Identified for Exclusion Following Publication of the Supplement to the Draft Solar PEIS Based on Continued Consultation with Cooperating Agencies and Tribes.”

Based on the apparent locations shown in the figure (i.e., on the map) and the figure’s reference to “Cooperating Agencies and Tribes,” we surmise that the excluded areas may be resource-sensitive and/or culturally-sensitive sites that were identified by the respective agencies, such as the NPS, or by Tribes. We believe such consultation is entirely appropriate; and BLM should generally avoid allowing solar energy development in the immediate vicinity of units of the National Park System or near Native American cultural sites. However, now that the Plan is being reviewed, BLM should re-consult cooperating agencies (including NPS) and Tribes to allow them the opportunity to provide updated information about areas of concern that BLM should exclude from solar energy development. Fresh consultation is especially important if BLM considers expanding the new plan to include states that were not covered under the 2012 Plan.

Should BLM establish similar exclusions for wind energy development? Yes, absolutely!! Such criteria are sorely lacking in the 2005 BLM Wind Energy Plan.⁸https://windeis.anl.gov/documents/fpeis/maintext/Vol1/Vol1Complete.pdf For example, as described in the plan (p. 2-3): “In constructing the Maximum Potential Development Scenario (MPDS), NREL applied screening criteria to BLM-administered lands within the 11-state study area. These screens included (1) location of BLM- administered lands determined to be off limits for wind energy development by virtue of statutory or administrative controls (i.e., Wilderness Areas, Wilderness Study Areas, National Monuments, and National Conservation Areas [NCAs]), and (2) occurrence of Class 3 or higher wind resources.”

In other words, the screening process only considered potential conflicts with a limited number of categories of specially designated BLM-managed areas. It did not consider potential conflicts with specially protected resources in areas managed by other agencies (such as the NPS), with Native American cultural sites, or other categories of protected natural and cultural resources. To be frank, the Wind Energy Plan has done a poor job of preventing (i.e., avoiding) conflicts between proposed wind farms and specially protected resources located nearby, such as units of the National Park System. For example, consider the proposed Lava Ridge Wind Energy Project located on BLM-managed lands immediately adjacent to Minidoka National Historical Site (NHS) in southern Idaho. The project is generating significant controversy and conflict because of its close proximity to a culturally sensitive Japanese-American confinement site that has been protected since 2001 as a unit of the National Park System (first as a national monument and then re-designated as a national historic site in 2008). Had BLM’s 2005 Wind Energy Plan included appropriate exclusions similar to those in its Western Solar Plan, we suspect the Lave Ridge project would have been pre-emptively rejected and/or re-directed to a more appropriate location well before the current level of controversy had developed.

So, yes, BLM should update its 2005 Wind Energy Plan to include core concepts (such as exclusion areas and priority development areas) similar to what is included in the Western Solar Plan.

Land Use Allocations: The 2012 Western Solar Plan and associated land use plan amendments: (1) excluded lands from utility-scale solar energy development based on a variety of criteria (about 79 million acres or 319,702 km2 ); (2) identified specific locations well suited for utility-scale production of solar energy (i.e., SEZs or “priority areas”) where the BLM prioritizes development (about 285,000 acres or 1,553 km2 ), and (3) allowed for responsible utility-scale solar energy development in variance areas outside of priority areas and exclusion areas in accordance with the variance process described in the 2012 PEIS (about 19 million acres or 82,964 km2 ). The BLM intends that at least one proposed alternative would consider adjustments to the land use allocations of SEZs, variance areas, and exclusion areas as well as potential updates to the process and procedures that apply in each area. The BLM is interested in receiving public feedback on these and other provisions that could be addressed under this programmatic EIS.

Comment:We strongly support BLM’s goal of prioritizing and incentivizing solar energy development in “priority areas” or SEZs, whichever term BLM decides to use moving forward. As described in the FR Notice, the intent of identifying SEZs in the 2012 plan “was to speed development of solar energy projects on BLM lands with high potential for solar energy generation and low potential for resource conflicts.” However, a major concern with the current program is that, according to the FR Notice, since implementation of the Plan “the majority of authorized solar developments on public land have occurred in variance areas, not SEZs” (emphasis added). “Variances” should be the exception, not the norm.

A comparison of the respective acreages for exclusion areas, SEZs, and variance areas is revealing. Of over 98 million acres covered by the Plan, 79 million acres (80%) are excluded from all solar energy development (which is good); only 285,000 acres (<1%) are located in SEZs and therefore encouraged for development (which is inadequate); and the remaining 19 million acres (19%) comprise the variance areas which are potentially eligible for development, presumably with some degree of potential resource conflicts (which allows potential development in too many “unprioritized” areas).

First, as a practical matter the total amount of acreage in SEZs is too small to expect it to routinely be the first choice of developers. The criteria for determining SEZs should be re-evaluated and adjusted, in order to reasonably and systematically increase (e.g., up to million acres) the total acreage of SEZs having a “high priority” for solar energy development with limited potential for resource conflicts. Criteria for identifying SEZs should prioritize the use of previously disturbed sites and proximity to existing electrical transmission and storage infrastructure: and should avoid the development of pristine or previously undisturbed sites.

Second, as a matter of proportion and to reduce the potential of adverse impacts from solar energy development in variance areas, it would make sense for BLM to reduce the total acreage of “variance areas” that could potentially be developed. This could be accomplished by BLM identifying up to 5% (or up to 5 million acres) of the total area covered by the current Plan as “preferred (or priority) variance areas.” Within the 19 million acres of variance areas that are currently developable, surely there must be locations that are relatively more suitable for development and/or would have relatively fewer resource conflicts compared to many other variance locations. We suggest that BLM develop criteria to distinguish “preferred (or priority) variance areas” from the rest of the variance areas based on their relative suitability for energy generation and/or avoidance of resource conflicts. For example, the criteria should give preference to using previously disturbed sites for new solar energy development. Other criteria, which would limit the overall footprint of new development, could include proximity to existing transmission systems and energy storage facilities. In any case, it would be reasonable for BLM to identify up to several million acres as “preferred (or priority) variance areas” where solar energy development is allowed to supplement the limited acreage provided in the SEZs where energy development is encouraged.

In terms of encouraging increased use of SEZs by developers, in addition to increasing the total acreage covered by SEZs, adjustments should also be made in the mechanisms for incentivizing development within the SEZs (and “preferred (or priority) variance areas” if such a category is developed). We will comment more specifically about this in the sections below.

Variance Process: The Western Solar Plan provides for utility-scale energy development in “variance areas” outside of SEZs and exclusion areas. BLM anticipates at least one proposed alternative will include changes to the variance process. Additionally, since implementation of the Western Solar Plan, the majority of authorized solar developments on public land have occurred in variance areas, not SEZs. As such, the BLM will consider whether the purpose of the variance process (i.e., pre- screening potential projects) is being met through other mechanisms… such that the variance process need not be continued.

Comment: As described in the Western Solar Plan (p. 43), “a variance area is defined by the BLM as an area that may be available for a utility-scale solar energy ROW with special stipulations or considerations. The BLM is identifying ALL lands outside of exclusion areas and SEZs as variance areas for utility-scale solar energy development.” (Emphasis added) The fact that BLM is allowing any and all location(s) outside of designated exclusion areas and SEZs to be potentially developed with solar energy facilities essentially defeats the purpose of prioritizing development within the SEZs in the first place. Although BLM states that SEZs have “a high potential for solar energy generation and low potential for resource conflicts,” developers are obviously not finding that to be enough of an incentive to prioritize their selection of those areas for new solar energy generation facilities.

As stated previously, the relatively small amount of acreage offered by the SEZs (<1% of the total plan area) likely explains the limited use of SEZs to date. A re-evaluation of the criteria used for distinguishing between an SEZ and a variance area would be appropriate. It would also be appropriate to consider establishing new criteria to identify “preferred (or priority) variance areas,” which would be those locations that are relatively more suitable for solar energy development and that have relatively fewer resource conflicts than other variance areas. In essence, development within SEZs should continue to be encouraged, while development within “preferred (or priority) variance areas” could be allowed. However, any development proposals outside of SEZs and “preferred (or priority) variance areas” should be discouraged or prohibited.

We note that the FR Notice discussion of the Variance Process does NOT mention BLM Instruction Memorandum (IM) 2023-015⁹https://www.blm.gov/policy/im-2023-015 on the Variance Process for Solar Energy Applications. This raises several obvious questions: Does BLM intend to incorporate IM 2023-015, as written, into the proposed PEIS? Or does BLM intend to revisit/revise the IM as part of the PEIS development process? We suggest the latter would be most appropriate. For example, there are provisions in Attachment 3 of the IM (e.g., item #24 in the Variance Factors to Be Considered Checklist), that we think should be reconsidered and revised, based on inconsistencies between similar provisions in similar plans such as the DRECP and the RDEP. In any case, BLM should clearly explain how the new PEIS will relate to and/or affect other current BLM policies related to solar energy development, such as IM 2023-015.

Definition of Utility-Scale: The Western Solar Plan was limited to “utility-scale” solar energy development, which at the time was defined as “any project capable of generating 20 or more megawatts (MW) of electricity that is delivered into the electricity transmission grid.” Thus, decisions on projects generating less than 20 MW have not been made under the Western Solar Plan and continue to be made based on existing land use plan requirements, applicable policy, and individual site-specific NEPA analyses. The BLM intends to consider modifying the definition of utility-scale development.

Comment: The definition of “utility-scale solar” is typically determined by size based on the amount of energy generated; however, definitions vary widely and there is no generally accepted definition of the term “utility-scale” with regards to solar energy projects. For example, the U.S. Energy Information Administration (EIA)¹⁰https://www.eia.gov/tools/faqs/faq.php?id=427&t=8 considers “utility-scale electricity generation” to be electricity generation from power plants with at least 1 megawatt (MW) of total electricity generating capacity. Similarly, the Solar Energy Industries Association¹¹https://www.seia.org/initiatives/utility-scale-solar-power defines a solar project as “utility-scale” if it has a generation capacity of 1 megawatt (MW) or larger. In contrast, the National Renewable Energy Laboratory has defined “utility- scale” solar energy projects as being 5 megawatts (MW) or larger¹²https://www.nrel.gov/docs/fy12osti/51137.pdf. To add to the confusion, the Department of Energy defines “utility-scale renewable energy projects as those 10 megawatts or larger”¹³3 In any case, BLM’s definition of utility scale projects as being those that “generate 20 MW or more” is clearly outdated and inflated compared to the definitions used by federal energy agencies, as well as that used by the solar energy industry. In principle, the Solar Energy Plan should apply to all commercial solar energy projects proposed for development on public lands. We therefore recommend that BLM redefine the term as follows: In the context of this plan, “utility scale” means “any project capable of generating with at least 1 megawatt (MW) of https://www.energy.gov/scep/slsc/renewable-energy-utility-scale-policies-and-programs#:~:text=Utility- scale%20renewable%20energy%20projects%20are%20typically%20defined%20as,to%20address%20and%20overco me%20potential%20barriers%20to%20implementation.

In any case, BLM’s definition of utility scale projects as being those that “generate 20 MW or more” is clearly outdated and inflated compared to the definitions used by federal energy agencies, as well as that used by the solar energy industry. In principle, the Solar Energy Plan should apply to all commercial solar energy projects proposed for development on public lands. We therefore recommend that BLM redefine the term as follows: In the context of this plan, “utility scale” means “any project capable of generating with at least 1 megawatt (MW) of electricity that is delivered into the electricity transmission grid.”

Incentivizing Development in SEZs, i.e., Priority Areas: In the Western Solar Plan, BLM stated that it intended to implement various policies and procedures for projects in SEZs and certain other initiatives to incentivize future utility-scale solar energy development in SEZs (see Western Solar Plan, Appendix B, Section B.4.3). BLM completed some of these efforts but believes additional incentives should be considered. BLM is interested in receiving public comment on what additional incentives would facilitate faster and easier permitting in SEZs, improve and facilitate appropriate mitigation, and encourage solar energy development on suitable lands adjacent to SEZs.

Comment: If BLM truly intends to promote SEZs as areas with “high potential for solar energy generation and low potential for resource conflicts,” then BLM needs to establish a suite of effective incentives to encourage such use. As the old saying goes, “time is money, and money is time.” In this case, we believe the most effective incentives relate to either time, such as how long it takes to process an application or conduct a NEPA review; or to money, such as how much are project fees or acreage rental rates for priority vs. low priority projects. In addition to re-evaluating and increasing the limited amount of acreage currently included in the SEZs to encourage the use of priority areas, BLM should consider the following incentives:

• Expedited and streamlined NEPA reviews of projects proposed for SEZs – In principle, SEZs are pre-identified and pre-screened locations with “high potential for solar energy generation and low potential for resource conflicts.” This should allow for less complicated and time-consuming NEPA reviews. For example, in some cases where new proposals are made for an area covered by an existing plan/EIS (such as the DRCEP or RDEP), it may be appropriate to prepare only an environmental assessment (EA) for the new proposals that is tiered to the existing plan/EIS, rather than preparing a full environmental impact statement (EIS). In contrast, BLM should require an EIS be prepared for any solar energy project proposed in variance areas. Such a review is likely to be more time consuming and costly to prepare, and should be given a lower priority by BLM than preparing NEPA reviews for projects proposed in SEZs. (Again, it is critical that BLM increase the amount of acreage in the proposed SEZs so that there is a reasonable number of “priority areas” for developers to consider.)
• Projects outside of SEZs and outside of “preferred (or priority) variance areas,” if those are established, should be prohibited or at least strongly discouraged through disincentives
• Projects located in “preferred (or priority) variance areas” should have a higher right-of-way (ROW) grant application processing fees; higher acreage rent and megawatt (MW) capacity fees than projects; and higher performance and reclamation bonds compared to projects located in SEZs. Charging lower fees for projects located within SEZs is reasonable given that such locations have already been determined as having a “high potential for solar energy generation and low potential for resource conflicts” compared to variance area locations. If necessary, BLM should revise its regulations at 43 CFR § 2806.52 (Rents and fees for solar energy development grants) to implement the suggested differentiation in acreage rent and megawatt capacity feesLastly, projects located outside of SEZs in “preferred (or priority) variance areas” should have more extensive post-development monitoring and reporting requirements than those located in SEZs

CLOSING COMMENT

In conclusion, the 2012 Western Solar Plan has been reasonably effective at guiding BLM right-of-way siting decisions for proposed solar energy projects on public lands, while generally avoiding major conflicts with the protection of other resources and uses through the identification of SEZs and by the exclusion of specific categories of land from utility-scale solar energy development. However, it is appropriate for BLM to review the Plan at this time to update it and expand it to additional states where the potential development of utility-scale solar energy projects exists.

That said, the Plan has been less than effective at encouraging developers to actually site projects within designated SEZs, rather than in the much larger “variance areas.” It is therefore critical that BLM make effective adjustments in the Plan now that will ensure future projects are directed toward pre-identified, pre-screened locations that are most suitable for solar energy development and have few, if any, significant conflicts with the conservation of other resources and uses.

Last but not least, the Western Solar Plan should serve as an appropriate model for a much needed overhaul and update of 2005 Wind Energy Plan. The core planning principles used in the solar plan (such as the identification of priority development areas and exclusions areas) should be applied to the preparation of an update to the wind energy plan. This would help to significantly reduce conflicts between proposed wind energy projects on public lands and the conservation of nearby protected resources, such as national parks and Native American cultural sites.

We appreciate the opportunity to comment on this important planning process.

Sincerely,