July 27, 2023
Ms. Tracy Stone-Manning
Director, Bureau of Land Management
1849 C St. NW, Room 5646
Washington, DC 20240
Attention: 1004–AE78
Subject: BLM Proposed Rule on Rights-of-Way, Leasing, and Operations for Renewable Energy, RIN 1004–AE78
Dear Director Stone-Manning:
I am writing on behalf of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization whose membership is made up of over 2,400 current, former, and retired employees and volunteers of the National Park Service (NPS). Collectively, we represent over 45,000 years of national park management and stewardship experience. Our membership includes former NPS directors, deputy directors, regional directors, and park superintendents. Recognized as the Voices of Experience, the Coalition educates, speaks, and acts for the preservation and protection of the National Park System and mission-related programs of the NPS.
We offer the following comments on the Bureau of Land Management’s (BLM’s) proposed rule on rights-of-way (ROW), leasing, and operations for renewable energy (RIN 1004–AE78). Our comments are generally focused on sections of the proposed rule where we have suggestions or concerns.
SUMMARY
As described in the Federal Register Notice, “the BLM is proposing to amend its existing right-of-way (ROW) regulations, issued under authority of the Federal Land Policy and Management Act (FLPMA). The principal purpose of these amendments would be to facilitate responsible solar and wind energy development on public lands managed by the BLM. The rule would adjust acreage rents and capacity fees for solar and wind energy, provide the BLM with more flexibility in how it processes applications for solar and wind energy development inside designated leasing areas, and update agency criteria on prioritizing solar and wind applications.” (Emphasis added),
GENERAL COMMENTS
- We suggest the BLM revise the “principle purpose” statement about the proposed rule that is described in the Summary section above – It appears that the intent of the proposed rule is to encourage use of designated (or preferred) renewable energy leasing (or development) areas on BLM-managed public lands. We support this intent but think a more effective “principle purpose” statement would be to combine a portion of the third sentence (underlined above) with the underlined second sentence, as follows:
The principal purpose of these amendments would be to facilitate responsible solar and wind energy development (add) inside designated leasing areas on public lands managed by the BLM.
The revision would better focus the “purpose” on the importance of siting projects in appropriate locations. Absent such a revision, there will likely continue to be a disconnect between BLM’s preference for development in suitable pre-identified locations and actual project proposals, which historically have tended to be in “variance areas” that are not within BLM’s “preferred development zones.”
- The Coalition strongly supports the intent of the proposed rule, which is “to facilitate responsible solar and wind energy development [inside designated leasing areas] on public lands managed by the BLM” – We have previously expressed our support for the BLM to reduce leasing fees to encourage renewable energy projects in appropriate locations. For example, in our comments on BLM’s 2023 proposed revision of the programmatic environmental impact statement for solar wind development (solar PEIS), the Coalition expressed our support for BLM to reduce leasing fees to incentivize siting of new or proposed solar energy development projects within previously identified “solar energy zones” (SEZs) or “priority development areas.” We also expressed the concern that under the existing 2012 Western Solar Plan, the majority of solar energy projects in the six western states covered the plan have actually occurred outside of the designated SEZs in locations that are considered “variance areas” rather than within the “priority areas.” We believe that creating effective financial incentives for developers to utilize the locations that BLM has already identified as having high solar energy potential while avoiding major conflicts with other resources and uses is not only appropriate, it is absolutely necessary to “facilitate responsible development.” We also believe it is essential that BLM establish effective siting/screening criteria, including “exclusions,” for ALL kinds of renewable energy projects (i.e., not just for solar energy projects as it currently stands; see General Comment # 2 below) to minimize conflicts with other resources and uses, including avoidance of conflicts with special conservation areas in the vicinity of the proposed project that are managed by the BLM or by other federal or state agencies.
Similarly, in our comments on BLM’s 2023 proposed Idaho Renewable Energy Strategy, we expressed essentially the same support for creating incentives that apply only to “priority development areas” but not to “variance areas.” In essence, the reduced leasing fess described in the proposed rule should primarily encourage developers to utilize locations previously identified by BLM as “priority development areas” having both high potential for renewable energy development and low potential for conflict with other resources and uses. Reduced leasing fees should NOT apply to projects proposed outside of priority development areas.
- We are concerned that existing BLM project planning guidance is generally inadequate and ineffective for wind energyprojects – BLM’s “current” planning guidance for wind energy projects is the outdated BLM’s 2005 Wind Energy PEIS, which is lacking in a number of ways. For example, the Wind Energy PEIS lacks a comprehensive list of “exclusion areas” that are considered off-limits to wind farm development. In contrast, BLM’s solar energy development planning guidance documents contain more effective project screening and siting criteria (including a comprehensive list of “exclusions”) to minimize conflicts between new development and other resources and uses. For example, BLM’s 2012 Western Solar Programmatic EIS (PEIS) required that all future utility-scale solar energy development projects be in conformance with the Plan’s “exclusions” identified in Table A-2 of the PEIS’s Record of Decision. The table provides an extensive list of special conservation areas, including some managed by BLM and some that are not, which would be excluded from consideration for solar energy projects.
In addition, the 2013 Restoration Design Energy Project (RDEP) in Arizona was developed by BLM with significant interagency participation. As described in Section 1.8.3 of the 2013 Record of Decision for the RDEP, Arizona BLM would assess the need for new or expanded SEZs at least once every five years. Periodic review is an important process that should be applied to other BLM renewable energy plans such the 2005 Wind Energy PEIS and the 2012 Western Solar PEIS, as well as to the proposed rule.
Another key component of the RDEP is its emphasis on the reuse of previously disturbed or developed lands that, after remediation or site preparation, may be suitable for renewable energy development, thereby reducing impacts on sensitive resources. The concept of prioritizing reuse previously disturbed sites should also be applied to other BLM renewable energy plans (e.g., the Wind and Solar PEIS’s, etc.), as well as to the proposed rule.
Last but not least, the RDEP includes an effective list of the “exclusions” listed in Table 2-1 of the ROD, which is titled “Areas with Known Sensitive Resources Eliminated from REDA Consideration.” Table 2-1 includes an extensive list of specially protected areas, some areas that are managed by BLM and many that are not (such as units of the National Park System), which are off limits to potential renewable energy development within the planning area.
Similarly, the 2016 Desert Renewable Energy Conservation Plan (DRECP) is focused on 10.8 million acres of public lands in the desert regions of seven California counties. It is a landscape-level plan that streamlines renewable energy development while conserving unique and valuable desert ecosystems and providing outdoor recreation opportunities. As described in its 2016 Record of Decision, the DRECP identifies areas of public lands that are suitable and available for utility-scale solar, wind, and geothermal energy development and associated transmission, and where that development can be focused, incentivized, and streamlined. It also identifies areas that are not suitable and are unavailable for these types of uses.
Section I.4.3 of the ROD identifies criteria that BLM used to identify “conservation lands” within the planning area that constitute locations where landscape and resource conservation, rather than energy development, is a management priority. This concept should be applied to other BLM renewable energy plans (e.g., the Wind and Solar PEIS’s, etc.), as well as to the proposed rule. The DRECP also identifies Development Focus Areas (DFAs) where “where resource conflicts are minimized and renewable energy development would be streamlined and incentivized.” While the DRECP does not refer to Section I.4.3’s criteria as “exclusions,” the criteria listed are very similar to the exclusions identified in the 2012 Western Solar Plan.
In contrast, BLM’s 2005 Wind Energy Programmatic EIS (PEIS) Record of Decision (ROD), which applies to 11 western states, contains relatively ineffective project screening criteria or exclusions. 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 provided for in the 2005 Wind Energy PEIS only considered wind energy potential and potential conflicts with a limited number of categories of specially designated BLM-managed areas. A key shortcoming with the 2005 PEIS is that it did NOT consider potential conflicts with specially protected resources in areas managed by other agencies (such as the NPS) or with Native American cultural sites and other categories of protected natural and cultural resources.
To be frank, BLM’s 2005 Wind Energy PEIS 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. The currently proposed Lava Ridge Wind Project (Project) in central Idaho is a prime example of the shortcomings in BLM’s existing wind energy project guidance. As proposed by Mountain Valley Energy (MVE), the project would involve the construction of up to 400 wind turbines up to 740-feet tall within 0.5 mile of the boundary of Minidoka National Historic Site (Minidoka), a unit of the National Park System. The open, expansive landscape surrounding Minidoka is identified as a Fundamental Resource and Value in the park’s 2016 Foundation Document because the stark “setting” conveys the sense of isolation experienced by Japanese-Americans who were unjustly incarcerated at the Minidoka “relocation center” after the attack on Pearl Harbor. A massive wind farm constructed so close to the internment camp site would forever change the feeling of remoteness and isolation that is fundamental to park visitors understanding the experience of Minidoka incarcerees.
A proper BLM project screening process that included appropriate “exclusions” should have resulted in the initial Lava Ridge proposal being denied or redirected to another location because of its proximity and unavoidable conflicts with the historical and cultural values of Minidoka NHS and the surrounding landscape. However, that did not occur because of obvious gaps in BLM’s wind energy development screening criteria. Simply put, the 2005 Wind Energy PEIS should be updated before BLM creates new incentives such as reduced leasing fees for wind energy projects that may encourage additional inappropriately located projects such as Lava Ridge to occur.
In general, the BLM should not entertain renewable energy project proposals along the boundaries of any specially protected areas much less create new incentives to encourage such develop by reducing leasing fees in these locations. Until BLM establishes more effective wind energy project screening criteria, including a list of “exclusions” that is similar to those in the 2012 Western Solar Plan, the 2013 RDEP, and the 2016 DRECP, the Coalition cannot support BLM applying the proposed rule’s reduced leasing fees to wind energy projects in locations covered by the outdated 2005Wind Energy PEIS. Unfortunately, we see little in the proposed rule that would prevent future wind energy proposals similar to the problematic Lava Ridge Wind Project immediately adjacent to Minidoka NHS.
To address these concerns, in the next section we suggest a number of changes be made to the proposed rule to explicitly exclude renewable energy development on public lands immediately adjacent to special conservation areas managed by the BLM or by other federal or state agencies. While a reasonable argument could be made that the existing language of the proposed rule would provide the BLM with the flexibility to consider conflicts with such resources, the Lava Ridge Wind Project is a troubling example of BLM’s application of such “discretion.” The proposed rule needs more effective “sideboards” to ensure that the incentives it creates apply only to appropriately sited projects in locations with both high potential for renewable energy development potential and low potential for conflicts with other resources and uses.
SECTION-BY-SECTION COMMENTS
- Subpart 2801—General information
2801.5 What acronyms and terms are used in the regulations in this part? We suggest several changes or additions to this section of the proposed rule.
a) Existing and proposed BLM renewable energy plans, such as the wind and solar energy PEIS’s mentioned above, use a variety of terms for “preferred renewable energy development areas.” These terms include “solar energy zones,” “priority development areas,” “development focus areas,” and “renewable energy development areas.” Moving forward, the BLM should settle on one (or at least fewer than four) standard term(s) for the preferred renewable energy project locations that have not only high potential for renewable energy development but also would generally avoid conflicts with other resources and uses. The preferred term(s) should be identified and defined in this section of the proposed rule.
b) The proposed rule should also define the terms “variance areas” and “exclusions” (or “exclusion areas”) if the BLM plans to continue using those terms in its renewable energy planning documents.
c) We recommend the BLM add a definition for “current land use plan” along the lines of the following: Current land use plan means a document developed through a formal planning process to guide the management of activities and uses of public lands that has been approved, amended, or recertified within the past ten years.
Suggestions a) and b) above relate directly to terms used by the BLM to identify locations suitable and appropriate for renewable energy project development as well as to areas that should be off-limits to such activity. Suggestion c) relates to the recency of the plan(s) that serve as the basis for BLM’s project review process. The BLM commonly issues oil and gas leasing proposals based on grossly outdated (i.e., 20 years or older) resource management plans (RMPs); and sometimes issues renewable energy project proposals that are based on similarly outdated RMPs. For example, the Lava Ridge Wind Project in Idaho is based on the 1980 Monument RMP, which accounts, in part, for the significant problems related to that proposal. In principle, the proposed rule’s reduced leasing fees should apply ONLY to “preferred development areas” or “designated leasing areas,” but NOT to the so-called “variance areas” or “variance process lands” (VPLs) identified in BLM renewable energy plans and/or land use plans; and such plans should be no more than ten years old to ensure the leasing decision is based on reasonably up-to-date information and guidance.
- Subpart 2802—Lands Available for FLPMA Grants or Leases
a) 2802.11 How does the BLM designate right-of-way corridors and designated leasing areas?
(b) When determining which lands may be suitable for right-of-way corridors or designated leasing areas, the factors the BLM considers include, but are not limited to, the following:
(Note: The proposed rule would maintain existing subsections 1-9 and add new subsections 10 and 11 below.)
(10) Access to electric transmission; and
(11) Areas for solar and wind energy development with low potential for conflict with resources or uses due to environmental, cultural, and other relevant criteria, which the BLM will identify by;
(i) Assessing the demand for new or expanded areas;
(ii) Applying environmental, cultural, and other screening criteria;
(iii) (We suggest inserting a new subsection iii here that states…) Identifying and excluding from development locations that would conflict with known resources or uses on or adjacent to public lands, including special conservation areas managed by the BLM or by other federal or state agencies.
(iii) (iv) Analyzing proposed areas through the land use planning process described in part 1600 of this chapter.
Comment: The intent of this suggestion is to formalize “identifying exclusions” as part of the review process for identifying appropriate areas for development. Besides identifying areas with high potential for renewable energy development, identifying and excluding areas with high potential for conflict is a logical early step in determining which areas should be avoided and thereby identifying which areas may be appropriate and available for development. Absent explicitly excluding from development “locations that would conflict with known resources or uses on or adjacent to public lands, including special conservation areas managed by the BLM or by other federal or state agencies,” we are concerned that the BLM will continue to entertain major renewable energy projects in inappropriate locations such as the Lava Ridge Wind Project immediately adjacent to Minidoka NHS in central Idaho.
- Subpart 2802—Lands Available for FLPMA Grants or Leases
a) 2804.26 Under what circumstances may the BLM deny my application?
(a) * * * (proposed revision)
(4) Issuing the grant would be inconsistent with FLPMA, other laws, or these or other regulations;
(We suggest adding a new subsection #5 below, then renumbering subsequent subsections accordingly)
(5) Issuing the grant would conflict with known resources or uses on or adjacent to public lands, including special conservation areas managed by the BLM or by other federal or state agencies.
Comment: The intent of this suggestion is to make clear that proposals submitted for such locations will be denied, rather than entertained and processed as a “low priority” as described in § 2804.35. Absent explicit criteria for denying grant applications, we are concerned that the BLM will continue to be open to major renewable energy development project proposals in inappropriate locations such as the Lava Ridge Wind Project immediately adjacent to Minidoka NHS. It simply is not efficient or cost effective for the BLM to continue to entertain and conduct extensive NEPA analyses for project proposals in patently high conflict areas.
b) 2804.35 Application prioritization factors for solar and wind energy development rights-of-way.
In general, our primary concern about this section is that the important criteria listed are presented only as “prioritization factors” with regard to how quickly the BLM would process rights-of way applications. These really should be “decision criteria” guiding BLM’s decision whether to approve or deny such applications. If the BLM truly wants to encourage “responsible renewable energy development” in appropriate locations, such as pre-designated “preferred leasing areas,’ then BLM needs to design it project screening and approval criteria to discourage applications submitted for projects in “unpreferred” locations, such as “variance areas” and “exclusion areas.” As written, this section of the rule falls short of providing the necessary guidance to support efficient and cost effective decision making and unnecessarily leaves the door open for project proposals in inappropriate locations.
Subsection (b) describes “relevant factors” that the BLM will consider when “prioritizing” applications. In our view, the following factors listed in this section are critically important not only for prioritizing the processing of applications but also as decision criteria for approving or denying such applications. We suggest several minor edits as indicated below.
(1) Whether the proposed project is located within an area preferred for solar or wind energy development, such as designated leasing areas, which include solar energy zones, development focus areas, and renewable energy development areas;
(2) Whether the proposed project is likely to avoid adverse impacts to or conflicts with known resources or uses on or adjacent to public lands, and includes specific measures designed to further mitigate impacts or conflicts;
(3) Whether the proposed project is in conformance with the (add) current governing BLM land use plans;
(5) Whether the proposed project incorporates the best management practices set forth in the (add) current applicable BLM land use plans and other BLM plans and policies;
For the reasons stated previously in § 2801.5 above, we believe it is necessary to define “current” so that moving forward the BLM does not base major renewable energy projects and related leasing decisions on outdated programmatic guidance or land use plans. Again, we point to the Lava Ridge Wind Project as a problematic example of this concern.
- Subparts 2805 through 2809 – In general, the Coalition supports the proposed provisions in these sections of the proposed rule. We have no specific comments or concerns about them.
CLOSING COMMENT
In closing, the Coalition strongly supports the intent of the proposed rule, which is to “facilitate responsible solar and wind energy development [inside designated leasing areas] on public lands managed by the BLM.” Our primary concerns are that some sections of the proposed rule seem to encourage solar and wind energy development, in general, while lacking a clear message about what constitutes “responsible” (or “appropriately located”) development. We hope our comments will help improve the proposed rule and contribute to its successful implementation. We greatly appreciate the opportunity to comment on this important issue.
Sincerely,
Michael B. Murray
Chair of the Executive Council
Coalition to Protect America’s National Parks