• New BLM Guidelines Establish Mitigation Fees for Solar Projects on Public Lands in Southwestern United States
  • July 23, 2016 | Author: Phyllis J. Kessler
  • Law Firm: Duane Morris LLP - New York Office
  • The Bureau of Land Management (BLM) expanded its roadmap for development of solar projects on government land by releasing new guidelines on March 2, 2016. The new guidelines expand the federal government’s approach to its Western Solar Plan, which commenced in 2012. 

    In July 2012, the Department of the Interior, in partnership with the Department of Energy, published the Final Programmatic Environmental Impact Statement (PEIS) for solar development on federal lands in six southwestern states: Arizona, California, Colorado, Nevada, New Mexico and Utah. The PEIS established solar energy zones (SEZs), which have access to existing or planned transmission, the fewest resource conflicts and incentives for development of solar projects. Seventeen SEZs were identified.

    The new guidelines establish mitigation strategies for SEZs in Arizona, Colorado and Nevada. The purpose of the guidelines is to provide certainty regarding mitigation that might be required for a solar project built on public lands. The need for compensatory mitigation is evaluated by BLM based on potential residual impacts, i.e., impacts that cannot be avoided or minimized during the construction and operation of a solar project. 

    The guidelines provide factors to be evaluated in each SEZ and set forth regional goals and objectives for each region. The major focus is to provide a recommended fee to be paid by a developer that will offset unavoidable residual impacts of the solar project on habitat, cultural resources, visual resources and ecological services, as well as to offer a suite of mitigation actions and locations. In addition, long-term monitoring will be used to evaluate the effectiveness of the regional compensatory mitigation strategy. Mitigation fees will be determined at the end of the project-specific NEPA (National Environmental Policy Act) evaluation and are developed as a per acre fee. While the regulations do not provide this, we assume that there will be some room to negotiate these fees. The March 2, 2016, guidelines provided final mitigation strategies for three SEZs in Arizona and one in Nevada. The guidelines for Colorado are in draft and comments may be submitted by April 18, 2016.