UNITED STATES DEPARTMENT OF THE
INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
December 19, 2008
In Reply Refer To:
2800 (350) P
EMS TRANSMISSION 12/22/2008
Instruction Memorandum No. 2009-043
Expires: 09/30/2010
To:
All Field Officials
From:
Director
Subject:
Wind Energy Development Policy
Program Area: Right-of-Way Management, Wind
Energy.
Purpose: This Instruction Memorandum (IM)
provides updated guidance on processing right-of-way applications for wind
energy projects on public lands administered by the Bureau of Land Management
(BLM).
Policy/Action: This IM updates and replaces the
Wind Energy Development Policy (IM 2006-216), issued August 24, 2006, and the
Interim Wind Energy Development Policy (IM 2003-020), issued October 16,
2002. In addition, this IM further clarifies the BLM Wind Energy
Development policies and best management practices (BMPs) provided in the Wind
Energy Development Programmatic Environmental Impact Statement (EIS) of June
2005. Issuance of this IM ensures BLM-wide consistency in the processing
of right-of-way applications and the management of authorizations for wind
energy site testing and development on the public lands. The initiation of
any new planning effort to create, revise, or amend a BLM land use plan will
comply with policy provided in this IM. Land use planning efforts already
underway will be assessed on a case-by-case basis to determine any necessary
modifications or amendments.
Inventory and Planning: The BLM Land Use Planning Handbook
(H-1601-1) requires that land use planning efforts address existing and
potential development areas for renewable energy projects, including wind
energy (see H-1601-1, Appendix C, II. Resource Uses, Section E. Lands and
Realty). The BLM encourages the development of wind energy within
acceptable areas, consistent with the Energy Policy Act of 2005 and the BLM
Energy and Mineral Policy (August 26, 2008).
In October 2003, the BLM initiated the preparation of a
Wind Energy Development Programmatic EIS to address the impacts of the future
development of wind energy resources on public lands. The Department of
Energy’s (DOE) National Renewable Energy Laboratory (NREL) assisted the BLM in
the preparation of the Programmatic EIS and provided an inventory assessment of
wind energy resources on public lands in the Western United
States. Appendix B of the Programmatic EIS includes wind resource
potential maps for each BLM field office. The Programmatic EIS Record of
Decision (ROD) addressed the amendment of individual BLM land use plans and
established both policies and BMPs regarding the development of wind energy
resources on BLM-administered public lands. The revised BLM wind energy
policies and BMPs are included as Attachment 1 to this IM. Wind energy
site testing and monitoring activities are typically in conformance with
existing land use plans and, therefore, a land use plan amendment to address
these activities is not likely to be necessary.
In cases where wind energy development proposals are not
in conformance with an existing land use plan, it may be appropriate to amend
the land use plan concurrently using the same analysis for the wind energy
development proposal. Field offices with land use plans that were not
amended by the Programmatic EIS Record of Decision may amend their plans at
anytime by following the requirements under 43 CFR 1610.5-5. When
considering a proposed plan amendment, field offices will tier to, or
incorporate analysis from, the Programmatic EIS as appropriate under Chapter V
of the BLM National Environmental Policy Act (NEPA) Handbook (H-1790-1).
All land use planning efforts initiated after the issuance
of this IM will address wind resource potential, public concerns, and
opportunities for wind energy development within the land use planning area
consistent with the BLM Land Use Planning Handbook (appendix C). Field
offices will incorporate wind energy resource development potential in these
planning efforts to facilitate the processing of future wind energy
applications. The land use plan revision process will address the
environmental and public concern issues associated with commercial wind energy development. This
will provide an opportunity to potentially reduce the amount of additional
environmental review and documentation required to process a specific
application in the future.
Information on wind energy resources is available at www.energyatlas.org. In
addition, wind resources information is also available from the Department of
Energy site at www.eere.energy.gov/windandhydro/windpoweringamerica/wind_maps.asp. Field
offices are encouraged to use this information as the inventory base for land
use planning.
Visual Resource Management (VRM)
The
BLM Land Use Planning Handbook requires that VRM management classes be
identified in land use plans based on inventories of visual resources as well
as management considerations for other potential land uses (e.g., wind energy
development). The VRM management classes may differ from VRM inventory
classes based on the management priorities for land uses in an area. The
VRM management classes are intended to establish landscape management
objectives for a variety of surface disturbing activities. The VRM
management classes are not intended to be used to exclude or preclude land
uses, including opportunities for development of wind energy in areas with high
wind energy resource potential.
Therefore, it is critical that when the BLM makes land use
decisions it considers the attainability and manageability of VRM objectives
relative to the wind energy resources and development potential and is
consistent with our national energy priorities.
The VRM management class designations must be carefully
considered in areas with high wind energy resource potential (wind power class
5 and above). This is especially important when considering the
differences in resource management constraints relative to VRM Class II and
Class III management classes in a planning area. The goal of the VRM
program is to apply the basic principles of design of wind energy projects at
the site-specific project level to mitigate or minimize visual resource impacts
and meet VRM objectives established in the land use plan. In many cases,
VRM management objectives designated at the land use planning level can be met
through strategic placement of facilities and thoughtful design treatments that
visually integrate the facilities into the landscape setting, thereby avoiding
unnecessary land use plan restrictions. Performing Geographic Information
Systems-based (GIS) viewshed analyses in areas of high wind energy resource
potential and high visual resource values during land use planning can assist
in determining suitability and compatibility between these resources, promote
more integrated resource management, and avoid unwarranted exclusion and
avoidance designations. Application of state-of-the-art digital terrain
modeling and visual simulations as well as an integrated environmental design
approach to project planning will go far to successfully integrate wind energy
projects into the visual landscape. Conducting such analyses will provide
the BLM with more objective criteria and defensible analysis to base VRM
management class designations in the future. The BLM and wind energy
operators will work collaboratively to seek creative ways to provide for
renewable energy development while protecting visual resource values on the
public lands.
Wildlife and Migratory Birds
In July 2003, the Fish and Wildlife Service (FWS) issued
“Voluntary Interim Guidelines to Avoid and Minimize Wildlife Impacts from Wind
Turbines.” The guidelines are currently being reviewed by a Wind Turbine
Guidelines Advisory Committee established under the Federal Advisory Committee
Act (FACA) to provide further advice and recommendations to the Secretary of
the Interior (Secretary) on effective measures to avoid or minimize impacts to
wildlife and their habitats from wind energy facilities. The voluntary
interim guidelines are not mandatory requirements in BLM land use plan
decisions. Until the Secretary determines the applicability of final
guidelines for the Department of the Interior (DOI) agencies, the FWS interim
guidelines should only be used as a general guide to assist the BLM in siting
decisions and the design of pre-development surveys, mitigation measures, and
post-construction monitoring for site-specific projects.
The BLM Washington Office IM 2008-050 (December 18, 2007)
provides interim guidance for Federal responsibilities under the Migratory Bird
Treaty Act. This guidance addresses analysis of BLM land use planning
decisions to avoid or minimize measurable negative impacts to migratory bird
populations. The BLM guidance on migratory birds and the FWS guidelines
may be used for site-specific wind energy projects to assist in developing
mitigation measures for
avoiding or minimizing impacts to wildlife and avoiding or
minimizing measurable negative impacts to migratory birds. The BLM 6840
Manual also provides guidance on Special Status Species Management.
Areas of Critical Environmental Concern (ACEC)
The BLM will not issue right-of-way authorizations for
wind energy development for areas in which wind energy development is
incompatible with specific resource values. Specific lands excluded from
wind energy site testing and monitoring and wind energy development include
designated areas that are part of the National Landscape Conservation System
(NLCS) (e.g., Wilderness Areas, Wilderness Study Areas, National Monuments,
National Conservation Areas, Wild and Scenic Rivers, and National Historic and
Scenic Trails). Wind energy development is permitted in one National
Conservation Area, the California Desert Conservation Area (CDCA), in
accordance with the provisions of the California Desert Conservation Area
Plan 1980.
The Wind Energy Programmatic EIS established the previous
policy that all ACECs were to be excluded from wind development. This IM
changes this policy to ensure consideration of the purpose and specific
environmental sensitivities for which the area was designated. All new,
revised, or amended land use planning efforts will address and analyze ACEC
land use restrictions individually, including restrictions to wind energy
development. For future land use planning efforts, ACECs will not
universally be excluded from wind energy site testing and monitoring or wind
energy development but will be managed consistent with the management
prescriptions for the individual ACEC. Existing land use plans and planning
efforts may be amended as necessary, with appropriate level of NEPA analysis
and decision, to address this change in wind energy and ACEC policy, consistent
with the procedures of 43 CFR 1610.5.5. A site-specific land use plan
amendment to address this change in policy may be addressed concurrently with
the processing of a wind energy application. This revised policy will
continue to provide protection of sensitive resource values in ACECs consistent
with the management prescriptions for the individual ACEC.
Avoidance and Exclusion Areas
Land use plans may identify right-of-way avoidance areas
or exclusion areas under the BLM land use planning guidelines (see Appendix C
of the BLM Land Use Planning Handbook
H-1601-1). Avoidance areas, as defined by the land
use planning guidelines, do not preclude the issuance of rights-of-way for wind
energy site testing and monitoring activities or wind energy development or
preclude the issuance of permits, leases, or easements under Section 302 of the
Federal Land Policy and Management Act (FLPMA). These uses in avoidance
areas may be available with special stipulations or mitigation
measures. For such authorizations, the area’s environmental sensitivity
and other feasible alternatives will be strongly considered.
Applications: All wind energy and wind
energy-related facilities will be applied for under Title V of the FLPMA and
Title 43, Part 2800 of the Code of Federal Regulations. The regulations
cited in this IM refer to the right-of-way regulations which were published in
the Federal Register on April 22, 2005, and became effective on June
21, 2005.
Wind energy site testing and monitoring facilities
(meteorological towers) will not be authorized by a land use permit under the
43 CFR 2920 regulations but will be authorized as FLPMA
rights-of-way. Geotechnical testing activities for foundation designs or
other purposes will be authorized, however, by a land use permit under the 43
CFR 2920 regulations.
Applications for a wind energy right-of-way grant may be
submitted for one of the following three types of wind energy projects:
1.
A
site-specific grant for individual meteorological towers and instrumentation
facilities with a term that is limited to 3
years;
2.
A
project area grant for a larger site testing and monitoring area, with a term
of 3 years that may be renewed consistent with 43 CFR 2807.22 and the provisions
of this IM beyond the initial term of the grant; or
3.
A
development grant with a term that is not limited by the regulations, but will
generally be for a term of 30 years.
Preapplication
Applications for any of the above projects will be submitted
using Form SF-299, Application for Transportation and Utility Systems and
Facilities on Federal Land, consistent with the requirements of 43 CFR
2804.12. The BLM authorized officer will encourage wind energy applicants
to schedule preapplication meetings (43 CFR 2804.10) with the BLM to:
·
Assist
in the preparation and processing of applications,
·
Identify
potential issues and conflict areas,
·
Identify
visual resource issues and define the viewshed area of the proposed project for
visual resources modeling,
·
Identify
any environmental or cultural resource studies that may be needed,
·
Assess
public interest and concerns,
·
Identify
other authorized uses,
·
Identify
other general recreation and public uses in the area,
·
Discuss
potential alternative site locations, and
·
Discuss
potential financial obligations (cost recovery fees, rental, and bonding) that
the applicant must be willing to assume.
Coordination
Early informal public contacts with local community
leaders and other interested parties are important in increasing public
awareness and avoiding potential conflicts, especially in areas where other
uses exist on the public lands. The applicant is encouraged to meet
jointly with the BLM and the state wildlife agency early in the process to
facilitate coordination on potential wildlife issues. Upon determining
that the application is complete, the BLM field office will initiate
consultation with the Department of Defense (DOD) on potential military
airspace conflicts for both site testing and monitoring applications and for
wind development projects, consistent with interagency protocol
procedures. The military protocol procedures and a listing of DOD
points-of-contact (Regional Environmental Coordinators) for consultation
purposes are provided at www.blm.gov/wo/st/en/prog/energy/wind_energy.html. The
BLM will initiate the consultation with the DOD within 30 days after receipt of
a complete wind energy right-of-way application. In addition, the
applicant is encouraged to submit the required filings with the Federal
Aviation Administration (FAA) as early in the application process as possible
to identify any air safety and lighting measures that will be required for the
project. In addition, after meteorological towers are authorized and
constructed, the BLM will ensure the location of these towers are noted on
aerial navigation hazard maps for low-level flight operations that may be
undertaken by the BLM and other Federal or state agencies for fire operations,
wild horse and burro census and gathers, wildlife inventories, facility
maintenance, or other activities.
Fees
All wind energy right-of-way applications and
authorizations are subject to appropriate cost recovery fees for processing and
monitoring as well as rental fees as required by 43 CFR 2804.14, 43 CFR
2805.16, and 43 CFR 2806.10. The policy guidance on rental fees contained
in this IM is based on comparable payment practices for existing wind energy
right-of-way authorizations on Federal and non-Federal lands. Wind energy
right-of-way authorizations are considered non-linear right-of-way grants and,
therefore, are not subject to the requirements of 43 CFR 2806.23 regarding multiyear
rental payments. However, by policy, the holder of a wind energy site
testing and monitoring right-of-way grant may pay the required rental fee for
the entire term of the grant in advance.
Processing Timeframes
Right-of-way applications for wind energy site testing and
monitoring or wind energy development projects will be identified as a priority
field office workload and will be processed in as timely a manner as
possible. The processing time frames for right-of-way applications as
required by 43 CFR 2804.25 will be followed for all wind energy
applications. Site testing and monitoring right-of-way applications should
be processed within a 60-day time frame, consistent with the requirements of 43
CFR 2804.25. The regulations require that the authorized officer notify
the right-of-way applicant in writing if processing will take longer than 60
days, the reasons for the delay, and an estimate of the time frame for
processing the application. The BLM Washington Office, Land, Realty and
Cadastral Survey Division (WO-350) may be able to assign a right-of-way project
manager, if requested by the state director, to coordinate the processing of
any major wind energy development right-of-way application.
Authorizations:
1. Site-specific Grant for Testing and Monitoring:
A site-specific FLPMA right-of-way grant (Form 2800-14)
will be used to authorize individual meteorological towers and instrumentation
facilities. The area authorized for these facilities will be the minimum
necessary for construction and maintenance of the temporary facility and any
access required to the site. The term of a site-specific right-of-way
grant will be limited to
3 years from the date of issuance. A site-specific
right-of-way grant will not be renewed beyond this term. A new right-of-way
application will be required if the holder of the site-specific right-of-way
grant wishes to continue monitoring at the site. Numerous site-specific
right-of-way grants for wind energy site testing and monitoring may be issued
to various right-of-way holders in the same area and do not establish any
exclusive or preferential rights regarding future wind energy
development. In addition, the BLM retains the right to authorize other
compatible uses of the public lands in the area.
Rent: The rental fee for a site-specific right-of-way grant for wind
energy site testing and monitoring will be a minimum of $100 per year for each
meteorological tower or instrumentation facility location and includes no
additional rental fee for the acreage of each site location. Some BLM
field offices have existing site-location rental fees for temporary facilities
on the public lands that can be used for wind energy site testing and
monitoring facilities. In some cases these fees will exceed the minimum
$100 per year fee. The rental fee for a site testing and monitoring
right-of-way grant is paid annually, in advance, on a calendar-year basis
consistent with the regulations (43 CFR 2806.12). However, by policy, the
holder of a site-specific right-of-way grant may pay the required rental fee
for the entire term of the grant in advance.
Grant Administration: Each site-specific site testing and
monitoring authorization will contain appropriate BMPs and may contain
appropriate site-specific stipulations, including but not limited to road
construction and maintenance, vegetation removal, and number and location of
wind monitoring sites. A bond will be required for site testing and
monitoring authorizations to ensure compliance with the terms and conditions of
the authorization. A minimum bond in the amount of $2,000 per
meteorological tower will be required for all authorizations. The amount
of the reclamation bond may include potential reclamation and administrative
costs to the BLM.
The wind inventory data collected and held by the
right-of-way grant holder is proprietary information, will be protected by the
Privacy Act, and may be withheld under the Freedom of Information Act to the
extent allowed by Federal law.
Site testing and monitoring authorizations may be assigned
consistent with the provisions of the regulations (43 CFR
2807.21). However, all assignments must be approved by the BLM authorized
officer and the qualifications of all assignees must comply with the Due
Diligence section of this IM and the requirements of the regulations (43 CFR
2804.12(a)(5) and 43 CFR 2804.26(a)(5)).
2. Project Area Grant for Testing and
Monitoring:
A FLPMA right-of-way grant (Form 2800-14) that includes
provisions for renewal beyond the
3-year term (43 CFR 2807.22) will be used to authorize
wind energy site testing and monitoring facilities for a project area and the
access required to the project area and facilities. A project area as used
in this IM describes an area of land where wind resource information is being
collected to determine the wind energy resource potential of the area. The
holder of the project area grant retains an interest in the site testing and
monitoring project area, but will be required to submit a separate right-of-way
application (43 CFR 2807.20) and Plan of Development (POD) to the BLM for
review, analysis, and separate approval for any future wind energy development
proposal. The interest retained by the holder of the project area grant is
only an interest to preclude other wind energy right-of-way applications during
the 3-year term of the grant. The lands within the grant area will not be
available for other wind energy right-of-way applications. The holder of
the project area grant establishes no right to development and is required to
submit a separate right-of-way application for wind energy development to the
BLM for analysis, review, and decision. The BLM retains the right to
authorize other compatible uses of the public lands.
Acreage: The lands involved in the project area grant will be defined by
aliquot legal land descriptions and configured to involve a reasonable amount
of land to support a possible right-of-way application for a wind energy
development project in the future. There are no statutory or regulatory
limits on the acreage of a site testing and monitoring right-of-way
application; however, the BLM may request additional information from the
applicant to determine if the project area is a reasonable size for a potential
wind energy development project in the area. The BLM may request general
information on the potential wind resources of the area, the potential project
size and megawatt capacity of the area, and the potential project development
configuration and limitations to assist in determining whether the application
is of a reasonable size. Applicants seeking large acreage sites should be
advised that the BLM will require those applicants to provide rationale
describing how they would potentially develop such large acreage. The BLM
is not required to accept applications that are not in the public interest;
however, BLM field offices will not inappropriately limit the size of project
areas that may be needed to evaluate an area for potential wind energy
development. Any amendments to site testing and monitoring right-of-way
authorizations that would add additional acreage to the authorization would
still be limited to the 3-year term of the initial grant.
Site Testing: To assess the wind resource development potential
of a project area, an applicant is not required to place site testing and
monitoring facilities (meteorological towers) on every parcel of public land
involved in a project area in order to adequately assess the wind resources of
a project area on public lands. In some cases, an applicant may propose to
place meteorological towers on adjacent private, state, or other land without
any meteorological towers on public land.
The BLM Washington Office has a funding agreement with the
DOE’s NREL. Any BLM field office may request the NREL to assist in
evaluating the applicant’s proposal for the siting and number of meteorological
towers. In order for NREL to evaluate the proposal, the field office must
submit the following information to NREL: a topographic map of the area
showing the boundary of the proposed project area, land ownership, proposed
location and height of the meteorological towers, and proposed access
roads. The BLM Land, Realty and Cadastral Survey Division (WO-350) can
provide the point-of-contact at NREL for these evaluations.
If the evaluation determines that the meteorological tower
placement on adjacent non-Federal land is capable of characterizing the wind
patterns on public lands, then a NEPA document will be prepared describing the
Federal action as the issuance of a right-of-way grant with limited activities
on the public land. If the evaluation concludes that the proposal cannot
adequately assess the wind patterns on public lands or the project area
proposed is not consistent with good wind testing techniques, then the
applicant will be notified of this finding and given the opportunity to amend
the proposal. If the proponent does not amend the application, the BLM
authorized officer may reject the application.
In cases where a right-of-way grant is issued for a
project area and no meteorological towers are installed on public lands, the
Due Diligence section of this IM requires the proponent to install the
meteorological towers on the non-Federal land within 12 months from the
effective date of authorization. The holder will provide the BLM with good
cause as to the nature of any delay. The purpose of the Due Diligence
provisions of the IM are to preclude land speculators from obtaining a
right-of-way grant for a project area with valuable wind energy resources that
would preclude other applicants with serious interests in the potential
development of wind energy on the public lands.
Renewal: The right-of-way grant for a project area is issued for an
initial term of 3 years from the date of issuance. This term can be
renewed (43 CFR 2807.22) for a term not to exceed
3 years if a separate right‑of‑way application and POD
is submitted for a wind energy development project prior to the end of the
initial term of the site testing and monitoring grant. A request for
renewal authorization must be submitted 120 days before the end of the term of
the grant (43 CFR 2807.22). However, the development right-of-way
application and POD are not required to be submitted until just prior to the
end of the term of the site testing and monitoring authorization. The
request for renewal should be carefully reviewed to determine if the acreage
requested may be reduced to reflect the area proposed for the wind energy
development project.
The holder of the site testing and monitoring right-of-way
grant should be advised that appropriate environmental and geotechnical studies
and inventory information should be collected in conjunction with the wind
energy site testing and monitoring studies during the
3-year term of the initial grant. The grant holder is
required to submit a study design strategy to the BLM for review and comment in
advance to ensure the environmental studies are of sufficient detail and scope
for the project area. The data gathered is an integral part of preparing
the initial POD for a proposed wind energy development if an application is
submitted in the future. Developers should begin the required
environmental studies during the initial grant period and not wait until they
submit an application for renewal of the site testing and monitoring
authorization.
Plan
of Development: The
grant holder is required to submit, prior to the end of the initial term of the
site testing and monitoring grant, a separate right-of-way development
application and POD to retain the interest in the project area. The
applicant is encouraged to schedule a preapplication meeting with the BLM prior
to submittal. The pre-application meeting will provide an opportunity to
discuss the environmental and sensitive issues that may be associated with the
proposed wind energy development project, processing timeframes and
environmental analysis and review procedures, cost recovery requirements, and
potential mitigation measures that could be included in the POD.
Concurrent
submittal of a POD with the right-of-way application for the wind energy
development project is consistent with the provisions of 43 CFR
2804.25. The BLM will not accept a POD that is simply a conceptual plan of
development and must be of sufficient detail to provide the basic information
necessary to begin the environmental analysis and review process for the
proposed wind energy development project. Attachment 2 provides an outline
of the minimum requirements for the initial POD.
The initial wind energy POD must be submitted prior to the
end of the 3-year term of a site testing and monitoring authorization. If
the initial POD is incomplete, the wind energy right-of-way applicant will be
contacted by letter and must provide a complete POD consistent with the POD
requirements to the BLM within 90 days. If the applicant has not responded
within
90 days, or if the applicant has responded and the
information provided is not sufficient, the BLM will send a 30-day show-cause
letter to the applicant prior to issuing any decision to reject the application
for failure to respond pursuant to the regulations (43 CFR 2804.25(b) and
2804.26(a)(6)). During the NEPA review process, additional information may
be requested of the applicant. The BLM will provide the applicant
reasonable periods of time to respond to these requests for additional
information.
Rent: The rental fee for a project area grant will be based on the
total public land acreage of the project area included in the right-of-way
grant. The rental fee for the total public land acreage of the grant will
be $1,000 per year or $1 per acre per year, whichever is greater. This
rental fee is based on comparable fees on non-Federal lands and is consistent
with the limited use of the land. There is no additional fee for the
installation of each meteorological tower or instrumentation facility located
within the site testing and monitoring project area. This rental fee is
based on the value of the use of the area for site testing and monitoring and the
value of the option held by the holder that precludes other wind energy
right-of-way applications during the 3-year term of the grant, comparable to
similar option payments on private lands. The rental fee for a site
testing and monitoring right-of-way grant is paid annually, in advance, on a
calendar-year basis consistent with the regulations (43 CFR
2806.12). However, by policy, the holder of a site testing and monitoring
right-of-way grant may pay the required rental fee for the entire term of the
grant in advance.
Grant Administration: Each project area grant will contain
appropriate BMPs and may contain appropriate site-specific stipulations,
including but not limited to road construction and maintenance, vegetation
removal, and number and location of wind monitoring sites. A bond will be
required for site testing and monitoring authorizations to ensure compliance
with the terms and conditions of the authorization. A minimum bond in the
amount of $2,000 per meteorological tower will be required for all authorizations. The
amount of the reclamation bond may include potential reclamation and
administrative costs to the BLM.
The wind inventory data collected and held by the
right-of-way grant holder is proprietary information, will be protected by the
Privacy Act, and may be withheld under the Freedom of Information Act to the
extent allowed by Federal law. However, general wind resource information
must be provided to the BLM, at the time a separate right-of-way application
for development is submitted, to support the environmental analysis and review
of the proposed development. This information becomes public information
to the extent allowed by Federal law and will be used for analysis and
decision-making purposes related to the processing of the right-of-way
application for a wind energy development project. Biological and cultural
resource studies and data collected by the right-of-way grant holder and
provided to the BLM will become public information to the extent allowed by
Federal law.
Site testing and monitoring authorizations may be assigned
consistent with the provisions of the regulations (43 CFR
2807.21). However, all assignments must be approved by the BLM authorized
officer and the qualifications of all assignees must comply with the Due Diligence
section of this IM and the requirements of the regulations
(43 CFR 2804.12(a)(5) and 43 CFR 2804.26(a)(5)). A partial assignment of a
site testing and monitoring authorization will not be approved if such action
would hinder the BLM management of the authorization or the associated public
lands.
3. Development Grant:
A FLPMA right-of-way grant (Form 2800-14) will be used to
authorize all facilities held by the holder of the grant on the public lands
related to a commercial wind energy development project. This
authorization will include the wind turbine facilities as well as the onsite
access roads, electrical and distribution facilities, and other support
facilities authorized by the wind energy development right-of-way
grant. Other offsite facilities, such as electrical transmission and
additional access roads, may require a separate linear right-of-way
authorization. The lands involved in the development grant will be defined
by aliquot legal land descriptions and be configured to minimize the amount of
land involved, while still allowing an adequate distance between turbine
positions and reasonable right-of-way boundaries. In the absence of any
specific local zoning and management issues, no turbine will be positioned
closer than 5 rotor-diameters from the center of the wind turbine to the
right-of-way boundary in the dominant upwind or downwind direction to avoid
potential wind turbulence interference issues with adjacent wind energy
facilities unless it can be demonstrated that site conditions, such as
topography, natural features, or other conditions such as offsets of turbine
locations, warrant a lesser distance. Further, for safety reasons, no
turbine on public land will be positioned closer than 1.5 times the total
height of the wind turbine to the right-of-way boundary. In cases where
the applicant holds a long-term lease right on adjacent Federal or non-Federal
lands for wind energy development or the adjacent non-Federal landowner
provides a setback waiver, these minimum setbacks may be eliminated, allowing
turbines to be placed closer to the right-of-way boundary.
The right-of-way holder should be encouraged, through
terms and conditions of the right-of-way authorization, to work with the BLM to
increase the public awareness of the benefits of wind energy development by
providing information and public points-of-access near the development where
safe and appropriate. These measures may include onsite interpretive
resources and photo locations. The BLM and right-of-way holder may provide
a positive message on the responsible use of renewable resources and the
multiple resource uses of the public lands.
Rent: The rental fee for a development grant has been updated from
the fee originally established by the Interim Wind Energy Development Policy in
October 2002. The new rental fee established by this IM is $4,155 per
megawatt of the total anticipated installed capacity of the wind energy project
on public land based on the approved POD, a capacity factor of 30 percent, a
Federal rate of return of 5.27 percent, and an average purchase price of $0.03
per kilowatt hour. The Federal rate of return is based on the 10-year
average of the 30-year Treasury bond yield (January 1998 to January 2008).
The rental fee is a fixed annual BLM-wide rent based on the following
formula:
Annual rent = (Anticipated total installed capacity in
kilowatts on public land as identified in the approved POD) x (8760 hours per
year) x (30 percent capacity factor) x (5.27 percent federal rate of return) x
($0.03 average price per kilowatt hour).
Example for one megawatt (1,000 kW) of anticipated total
installed capacity on public land:
Annual rent = (1,000 kW) x (8760 hours) x (0.30 capacity)
x (0.0527 rate of return) x ($0.03 per kWh) or $4,155 per megawatt of
anticipated total installed capacity on public land.
The annual rental fee will be phased in as follows:
First year - 25 percent
of the total rental fee or $1,039 per megawatt
Second year - 50 percent of the total rental fee or
$2,078 per megawatt
Third year - 100 percent of the total
rental fee or $4,155 per megawatt
The full annual rental fee will apply at any time prior to
3 years upon the start of commercial operations of the project. The rental
fee is paid annually, in advance, on a calendar-year basis consistent with the
regulations (43 CFR 2806.12). The BLM will not assess a separate turbine
installation fee (an additional one-time payment for each turbine installation),
a production rental fee, or other fees as part of the wind energy rental
fee. Any separate linear right-of-way authorizations issued for offsite
facilities to support the wind energy project, such as electrical transmission
lines, will be subject to the linear right-of-way rental provisions of 43 CFR
2806.20.
All wind energy right-of-way holders are subject to rent
in accordance with this IM, unless they are specifically exempt from rent by
statute or regulation. Some holders or facilities may be exempt from rent
pursuant to the Rural Electrification Act of 1936, as amended (43 CFR
2806.14(d)).
Grant Administration: The term of a development grant is not
limited by the regulations; however, the terms of most existing grants for
major wind energy development projects recognize the overall costs and useful
life of wind energy facilities and are generally for a term of 30
years. The grant may be renewed for additional terms, consistent with the
provisions of the regulations (43 CFR 2807.22). The BLM also retains the
right to authorize other compatible uses of the public lands within the
right-of-way grant during the term of the grant.
A bond will be required for all development grants to
ensure compliance with the terms and conditions of the right-of-way
authorization and the requirements of applicable regulatory
requirements. The amount of the bond may include potential reclamation and
administrative costs to BLM. A minimum bond in the amount of $10,000 per
wind turbine, considering salvage values of turbines and towers, will be
required for all wind energy development projects on public
lands. However, the amount of the required bond will be determined during
the right-of-way authorization process on the basis of site-specific and
project-specific factors. Acceptable bond instruments include cash,
cashier’s or certified check, certificate or book entry deposits, negotiable
U.S. Treasury bonds equal in value to the bond amount, or surety bonds from the
approved list of sureties (U.S. Treasury Circular 570) payable to the Bureau of
Land Management. A letter of credit is not an acceptable form of
bond. All bonds will be periodically reviewed (at least every 5 years) by
the BLM authorized officer to ensure adequacy of the bond.
The development grant may be assigned consistent with the
provisions of the regulations (43 CFR 2807.21). However, all assignments
must be approved by the BLM authorized officer and the qualifications of all
assignees must comply with the Due Diligence section of this IM and the requirements
of the regulations (43 CFR 2804.12(a)(5) and 43 CFR 2804.26(a)(5)). A
partial assignment of the grant will not be approved if such action would
hinder the BLM management of the authorization or the associated public lands.
All final decisions issued by the authorized officer in
connection with the authorization of any of the above described wind energy
projects are appealable under 43 CFR Part 4 (43 CFR 2801.10). It should also be
noted that right-of-way grants are issued as full force and effect decisions
(43 CFR 2801.10(b)) and will remain effective during any appeal period, unless
stayed by the Interior Board of Land Appeals (IBLA).
Competitive Interest: The right-of-way regulations (43
CFR 2804.23(c)) provide authority for identifying public lands under
competitive bidding procedures for wind energy right-of-way
authorizations. However, the BLM will only initiate a competitive process
if a land use planning decision has specifically identified an area for
competitive wind energy leasing. The Programmatic EIS and associated ROD
did not identify any competitive wind energy leasing areas for any BLM land use
plans; therefore, any competitive leasing areas would need to be identified
through a local land use planning process. Site testing and monitoring or
wind energy development right-of-way applications will be processed, therefore,
on a first-come basis. The BLM will encourage applicants who may have an
interest in a common area to establish a partnership or cooperative agreement
that establishes compatible use of the site among the applicants. If the
applicants choose not to form a partnership or cooperative agreement, the BLM
will proceed to process the first complete application with attached cost
recovery fees required by 43 CFR 2804.14.
Due Diligence: There are some concerns regarding
the potential for land speculators to obtain right-of-way grants and control
valuable wind energy resource areas that would preclude other applicants with
serious interests in the potential development of wind energy on the public
lands. These concerns can be mitigated by applying the applicant
qualification requirements of the regulations (43 CFR 2804.12(a)(5) and 43 CFR
2804.26(a)(5)) and requiring certain due diligence provisions in the
right-of-way authorization for site testing and monitoring or wind energy
development.
Technical and Financial Capability
The regulations provide authority to require the
application to include information on the applicant’s technical capability to
construct, operate, and maintain the wind energy facilities and associated
transmission facilities (43 CFR 2804.12(a)(5)). This technical capability
can be demonstrated by international or domestic experience with wind energy projects
or other types of electric energy-related projects on either Federal or
non-Federal lands. The applicant should provide information on the
availability of sufficient capitalization to carry out development, including
the preliminary study phase of the project, as well as the site testing and
monitoring activities. Actual development or ownership of similarly-sized
wind energy facilities or other types of electric energy-related facilities
within the last 5 years by the applicant would generally constitute evidence of
financial capability. However, applicants in bankruptcy or other related
financial difficulties may not be able to meet the due diligence provisions of
the right-of-way authorization. Attachment 2 provides an outline of the information
to include in the POD, which requires the submittal of information on the
financial and technical capability of the applicant. The regulations
provide the authority to deny the application if the applicant cannot
demonstrate adequate technical ability to construct, operate, and maintain the
wind energy facilities (43 CFR 2804.26(a)(5)).
Terms and Conditions
Due diligence is encouraged by the limited 3-year term of
the site testing and monitoring right-of-way authorization. The project
area grant can only be renewed if a separate right-of-way application and POD
is submitted for a wind energy development project prior to the end of the
initial term of the project area grant. In addition, the site testing and
monitoring authorization and the wind energy development authorization will
include a due diligence requirement for installation of facilities consistent
with an approved POD.
The following due diligence requirements must be included
in the terms and conditions of either the site testing and monitoring
authorization or the wind energy development authorization:
·
If
monitoring facilities under a site testing and monitoring right-of-way
authorization have not been installed within 12 months after the effective date
of the authorization or consistent with the timeframe of the approved POD, the
holder will provide the BLM good cause as to the nature of any delay, the
anticipated date of installation of facilities, and evidence of progress toward
site monitoring activities.
·
·
If
construction of wind energy facilities under a wind energy development
authorization has not commenced within 2 years after the effective date of the
grant or consistent with the timeframe of the approved POD, the right-of-way
holder will provide the BLM good cause as to the nature of any delay, the
anticipated date of construction, and evidence of progress toward commencement
of construction.
Failure of the holder to comply with the due diligence
terms and conditions of either the site testing and monitoring authorization or
the wind energy development authorization provides the authorized officer the
authority to terminate the authorization (43 CFR 2807.17). The rental fee
provisions outlined in this IM also mitigate, to some extent, the concerns
regarding due diligence.
Environmental Review: The Programmatic EIS addressed a
range of alternatives including the proposed action that would implement a wind
energy development program with the establishment of a set of policies and BMPs
for wind energy development on the public lands. In accordance with this
IM, the BLM is clarifying some of the policies and BMPs established in the
Programmatic EIS. In particular, ACECs will not be universally excluded
from wind energy site testing and monitoring or wind energy development but will
be managed consistent with the management prescriptions for the individual
ACEC. Consistent with the analysis in the Programmatic EIS, this revised
policy will continue to provide protection of sensitive resource values in ACEC
areas and will not result in effects outside the range of effects analyzed in
the Programmatic EIS.
The revised policies and BMPs are included in attachment 1
of this IM and are applicable to all wind energy activities on BLM-administered
public lands. The BMPs establish environmentally sound and economically
feasible mechanisms to protect and enhance natural and cultural
resources. They identify the issues and concerns that need to be addressed
by project-specific plans. Mitigation measures protecting these resources
will be required to be incorporated into the project POD. These mitigation
measures will include the specific programmatic BMPs as well as additional
mitigation measures contained in other existing and relevant BLM guidance or
stipulations developed to address site-specific or species-specific concerns
through project-level analysis.
To the extent that the Programmatic EIS addresses
anticipated issues and concerns associated with an individual wind energy
project, including potential cumulative impacts, the BLM will, by policy, tier
off of the analysis in the Programmatic EIS and limit the scope of additional
project-specific NEPA analyses. The site-specific NEPA analyses will
include analysis of project site configuration and micrositing considerations,
monitoring program requirements, and appropriate site-specific
stipulations. In addition, offsite compensatory mitigation may be
appropriate to consider for some projects consistent with BLM offsite
mitigation policies (see IM 2008-204 dated September 30, 2008).
1) Site-specific or Project Area Applications: The scope of the environmental
analysis required for either a site-specific application or a project area
application includes direct, indirect, and cumulative effects of the proposed
site testing and monitoring-related facilities. The site testing and
monitoring right-of-way authorization is for a limited term (3 years) and
usually includes only a few wind monitoring towers with instruments attached to
measure various meteorological parameters such as wind speed, wind direction,
and temperature at various heights above the ground. The footprint for
each monitoring tower is small and the need for site clearances should be
limited to the areas of proposed surface disturbance and associated areas of
potential effect. Some newer technologies using sonar equipment are also
being used to collect wind data. This type of equipment also has a small
footprint and requires little or no surface disturbance.
The environmental review should not address wind energy
development facilities, as the installation of wind turbines are not proposed
during site testing and monitoring. The environmental review of wind
energy development facilities will occur at the point in time when a wind
energy development application is submitted. The reasonably foreseeable
development discussions in the environmental analysis for a site testing and
monitoring right-of-way application should focus on anticipated installation of
additional wind monitoring facilities during the term of the right-of-way
grant. Typically only a small number of wind energy site testing and
monitoring authorizations ever lead to actual wind energy development
projects. Therefore, the reasonably foreseeable development discussion
should not focus on uncertain future development scenarios. However, the
cumulative impacts of other wind energy site testing activities and any other
reasonably foreseeable activities that potentially impact the same
environmental resources in the area are required to be addressed in the environmental
analysis.
Categorical Exclusion: The use of a Categorical Exclusion (CX) for
the issuance of short-term right-of-way authorizations may be applicable to
site testing and monitoring activities or sites. The relevant CX as
identified by the BLM NEPA Handbook, H-1790-1, Appendix 4, Section E. 19
(January 30, 2008), encompasses “issuance of short-term (3 years or less)
rights-of-way or land use authorizations for such uses as storage sites, apiary
sites, and construction sites where the proposal includes rehabilitation to
restore the land to its natural or original condition.” Although the
authorization is for a project area, the use is limited to a small site with
potentially short-term minimal impacts. The CX for “nondestructive data
collection, inventory (including field, aerial, and satellite surveying and
mapping), study, research and monitoring activities” may also be applicable to
wind energy site testing and monitoring activities. However, these site
testing and monitoring activities must be subject to sufficient review to
determine if any of the extraordinary circumstances identified in the
guidelines apply.
A project area authorization is limited in term to 3
years. Although a project area authorization may be renewed, the holder is
required to submit a separate right-of-way application for any wind energy
development project. The right-of-way regulations (43 CFR 2807.20) require
that the application be submitted and processed consistent with the provisions
of 43 CFR Subpart 2804 as a separate and distinct application. The
right-of-way grant holder has established no right to development and is
required to submit a separate application to BLM for analysis, review, and
decision. The proposed wind energy development project will be evaluated
upon the submittal of an actual application for the development project. Alliance
to Protect Nantucket Sound, Inc. v. United States Department of the Army,
288 F. Supp.2d 64, 80 (D. Mass. 2003), affd, 398 F.3d 105 (1st Cir.
2005), supports the proposition that an authorization to collect wind data and
an authorization to develop a wind energy development project are not
"connected actions," as that term is defined at 40 CFR
1508.25. The court held that the Army's authorization of a data tower in
Nantucket Sound does not automatically trigger the authorization for a wind
energy project; that information from the data tower was not required for the
wind energy project but may be used if available and relevant; and that the
data tower's utility does not depend on the ultimate authorization of the wind
energy project. A contrary decision was reached in Blue Ocean
Preservation Society v. Secretary of Energy, 754 F. Supp. 1450 (D. Hawaii
1991), so it is advisable to consult with the Solicitor's Office in complex
cases.
2) Development Application: The scope of the NEPA analysis and
the compliance requirements with the Endangered Species Act, the National
Historic Preservation Act, and other laws for a wind energy development
right-of-way application will be broader than a site testing and monitoring
application as the installation of wind turbines, access roads, and electrical
transmission facilities will be addressed in the wind energy development NEPA
analysis. However, the footprint of wind energy facilities is typically
smaller than other types of energy production facilities. The level of
site clearances should be limited to the areas of proposed surface disturbances
and associated areas of potential effect, including the access roads to wind
turbine locations as well as the electrical transmission and other support
facilities. The wind energy development facilities, however, may extend
over a large geographic area and have a broad area of influence. The
potential impact from these facilities may, therefore, extend beyond the small
footprint of the individual wind turbine locations and it may be necessary to
provide setbacks from important natural resource areas.
The reasonably foreseeable development discussion in the
environmental analysis for a wind energy development project should focus on
the potential for installation of additional wind turbines and increased
production and electrical transmission from the project area. In addition,
the cumulative impacts of other wind energy projects and any other reasonably
foreseeable projects that potentially impact the same environmental resources
in the area are required to be addressed in the environmental
analysis. Project-specific environmental analyses for wind energy
development tiered to the analyses conducted in the Programmatic EIS allow the
project-specific analyses to focus just on the critical, site-specific issues
of concern. For this reason, tiering to the Programmatic EIS is the
preferred approach when appropriate. Tiering to the Programmatic EIS would
allow for the preparation of an Environmental Assessment (EA) for an individual
action as long as the remaining effects of the individual action are not
significant. The level of NEPA documentation necessary will be determined
based on the context and intensity of the proposed action and how much analysis
may be tiered to the Programmatic EIS. It may also be possible to combine
the required environmental review process for a wind energy development project
with applicable state or local environmental procedures for energy facility
siting. This would both streamline the process and be consistent with
Departmental policy on intergovernmental cooperation.
LR 2000 Data Entry: Commodity code 974 (Wind
Energy Facilities) will generally be used with case type 285003 to identify
wind energy site testing and development right-of-way applications and
authorizations, and ancillary facilities that are authorized with the same
grant as the wind facility. Commodity code 974 will not be used for
ancillary rights-of-way (transmission lines and roads) that are authorized as
separate grants. Action codes were also established in LR 2000 in
September 2005 to track compliance with the customer service standards of the
right-of-way regulations. These Action codes also apply to wind energy
applications and authorizations. The Remarks section of LR 2000 for a wind
energy site testing and monitoring case is required to identify the number of
meteorological towers authorized and located on the public land. In
addition, the Remarks section for a wind energy development case is required to
identify the number of turbines and total MW capacity authorized and located on
the public land.
Timeframe: This IM is effective immediately
upon receipt. Pending applications will be processed consistent with the
provisions of this IM. Existing wind energy right-of-way authorizations
requiring amendments may include provisions of this IM. Any amendment of
an existing wind energy right-of-way grant that includes an adjustment of
rental provisions consistent with this IM will be effective at the next billing
date after the amendment is made.
Budget Impact: The application of this policy will
have some impact on budget. However, wind energy right-of-way applications
are subject to the cost recovery provisions of the regulations and most
applications for a wind energy development right-of-way will probably meet the
criteria for full reasonable costs (43 CFR 2804.14(b)). In addition, BLM
monitoring activities are also subject to the cost recovery provisions of the
regulations. Workload impacts should be clarified through the streamlined
procedures identified by this IM and by the priority established for processing
wind energy right-of-way applications. There is also a positive
impact through the implementation of consistent procedures in the processing of
wind energy right‑of‑way applications.
Background: As part of an overall strategy to
develop a diverse portfolio of domestic energy supplies for our future, the
National Energy Policy of 2001 and the Energy Policy Act of 2005 (Public Law
109-58, August 8, 2005) encourage the development of renewable energy
resources, including wind energy. Section 211 of the Energy Policy Act
established a goal that the BLM would approve 10,000 megawatts of non-hydropower
renewable energy projects on the public lands by 2015. The development of
wind energy will be an important contribution to that goal. The BLM Energy
and Mineral Policy, signed by the Director on August 26, 2008, also recognizes
that the public lands are an important source of the Nation’s renewable energy
resources, including wind energy.
The United States has significant potential for wind
energy development, especially on Federal lands in the West. The Federal
wind energy production tax credit, state‑level tax credits, and other
incentives, including renewable energy portfolio standards in several states,
have generated a strong interest in commercial wind energy projects on
BLM-administered public lands. Project proposals on public land will create
a workload that demands a commitment of resources and a priority to the timely
and consistent processing of right-of-way applications for wind energy site
testing and monitoring activities and for commercial wind energy
development.
Manual/Handbook Sections Affected: This Instruction Memorandum and
policy amends BLM Right-of-Way Management Manual 2801 and Handbook H-2801-1.
Coordination: This IM incorporates the policies
and BMPs established by the Programmatic EIS and associated
ROD. Preparation of the Programmatic EIS provided an opportunity for
public comment and input on the proposed BLM wind energy program, policies, and
BMPs as well as land use plan amendments. Preparation of this IM was
coordinated with the Division of Decision Support, Planning and NEPA (WO-210),
the Division of Fish, Wildlife and Plant Conservation (WO-230), and the
Division of Recreation and Visitor Services (WO-250). The BLM state
offices were also provided an opportunity to review the IM and provide input
prior to finalization.
Contact: If you have any questions
concerning the content of this IM, please contact Michael D. Nedd, Assistant
Director, Minerals and Realty Management, at 202-208-4201, or your staff may
contact the BLM Land, Realty and Cadastral Survey Division (WO-350). Points
of contact for wind energy right-of-way questions include Rick Stamm, Realty
Specialist, at 202-452-5185 and Ray Brady, Energy Policy Lead, at 202-557-3378.
Signed
by:
Authenticated by:
Henri R.
Bisson
Robert M. Williams
Acting,
Director
Division of IRM Governance,WO-560
2 Attachments
1
– BLM Wind Energy Program – Policies and Best Management Practices (19 pp)
2
– Wind Energy Plan of Development (4 pp)